Confirming Arbitration Award

[willgolf4food]

Ok my first post so below is the answer to the question suppose to post.

1. Who is suing you? MBNA Via W&A(Now Mann Bracken)

2. For how much? Started at 12,000 now I think close to 20,000

3. Who is the original creditor?MBNA

4. How do you know you are being sued? Served papers

5. How were you served? Were you served? Latest hearing regular mail

6. What was your correspondence (if any) with the people suing you before you think you were being sued? BunBunch of stuuf from NAF and then they have filed and had dismissed 3 times before for Fiat Default hearing to Confirm

7. Where do you live? Texas

8. When is the last time you paid on this account? 02/04

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or looking it up online (many states have this information posted daily). Open

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. Yes

12. Does your summons require a response? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? No

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? Stuff from NAF and copy of statements for 2003.

14. What is the SOL on the debt?I think 4 years.

Ok Now I have a hearing set for 12-01-08 and I have filed numerous Motions none have been responded to. I am told that there maybe some other motions I should file. One related to standing with regard to ownership of debt.

I don't know if W&A/MB own it or are attorney's for MBNA.

I am retired and only income is from retirement pension which I believe under TX law is protected but someone has said that since it goes to a bank account even though it is in another state they could siege the account if they win the confirmation. Is this right. Home is Homesteaded under Texas law.

I would love if someone can give me any ideas and help. I am disabled although not getting any money for the job related disability(another story and a long one).

I would love to have an attorney but am operating Pro Se as I don't have any money. If I could find a attorney that could get rid of this I would pay some down and payments on the rest.

Thanks in advance. I think I have attached the motions I have filed. I had to zip otherwise they exceed the limit.

Debt Related.zip

[M&M]

I have the exact same thing going on. Same CC Co. and W&A now MB as their attorneys. Does the complaint state MBNA as the Plaintiff? If it does they are probably the ones bringing the Action against you. Read the complaint carefully, it should say Plaintiff MBNA etc. If your SOL is 4 years look for the last date of activity that was reported on your credit reports. If you have canceled checks etc. see when you made the last payment. Your state should have info about the SOL make sure if the SOL is expired you put this in your answer. From dealing with these people check to make sure the account numbers are the same in all of the paperwork, they are using 2 different ones against me. Have you asked for request for Documents and Admissions? If not and it's not too late make sure you do this. When you Motion the Court are you using TX Rules of Court, they will ignore them if they do not follow the rules of your state.

[willgolf4food]

it says card services fka MBNA.

Some place I read that you might be able to settle with them for a lot less. I have looked into BK but really would like to avoid it. If I do that then they would get nothing so seems something would be better than nothing. Problem is I can't afford very much up front.

[willgolf4food]

I was just given this link to a court case that seems to be right on. Since I am acting Pro Se and looks like that is my only option no call backs etc from any attorney's willing to help. I think I need to file a motion for the judge to look at next week but not sure how to word it. Can Anyone help Please Pretty please!!

Here is the case. http://courtstuff.net/cgi-bin/as_web.exe?c05_08.ask+D+6560810

Thanks in advance.

[willgolf4food]

Here is a copy of a motion I am thinking might work. Any comments?

Motion to dismiss hearsay.zip

[willgolf4food]

Hmnn 145 views and no comments.

[Tazjeepcj7]

1. Maybe you should explain what the Plaintiff should have provided to prove the Texas General Arbitration Act applies to the arbitration award.

2. Needs to be reworded anyway, you should probably address each exhibit in separate sentences or maybe even separate paragraphs.

Certainly nothing I've contributed should be taken as competent legal advice!

[Tazjeepcj7]

Various links that may (or may not) help:

http://www.texasbar.com/Template.cfm?Section=Home&Template=/ContentManagement/ContentDisplay.cfm&ContentID=608

http://www.attorney-mediators.org/bindingarb.html

http://texas-arbitration-case-law.blogspot.com/

http://www.texas-opinions.com/law-arbitration.html

http://www.houston-opinions.com/Texas-arbitration-cases.html

[willgolf4food]

Well I had my court today and haven't lost yet. I discussed my motions and he asked several questions and I responded. The one he was most interested in was the Gurber case and the 1 year to confirm an award. I hope I read that section of title 9 riight some input on this would be appriciated. The MB basically read the arbitration law as they intrerupted it and counter my claim that the account number on the supporting paper work and to the award being different because they change when they charged off. I told the Judge I know that is not a fact. I didn't say it but I had an account with that same number on it. It is not part of this Confirmation. Maybe I should bring that up? What do you all think. The Judge asked us both if we had a Judgement prepared. I didn't know for sure what he was asking for. Now I think he wanted a "Motion For Judgement" In my favor.. Any help on drafting this would be greatly appriciated. I am going to drop off a summary of my points tomorrow. He stated he was taking it under advisment and would issue a ruling on Friday and gave me a number to call to get the rulling. As I left court another attorney followed me out and told me to fill the summary showing the points and to attach the Judgement with it. He stated I did a very good job and thought the Judge was leaning my way but I should get this down to 2 pages and the Judgment order. So PLEASE ANY HELP QUICKLY IS NEEDED!!! He said I should get it to him tomorrow.

Thanks In advance.

[Tex_Tea]

I am taking it that the files that need to be put together are in your last zip, Motion to dismiss hearsay.zip, and the attorney who followed you out did not say what kind of motion. Normally, with an arbitration award, one would file a motion to vacate.

Also, people may be more inclined to help if you posted your work instead of the zip. With a zip, people may have some concerns about downloading some malware, ie a virus, etc. You could probably just cut and paste it.

[willgolf4food]

I would Love to post none zipped but it keeps saying file is too big. I am going to take an admin suggestion and post as new post. I will try then again maybe change from Word to straight text. Yes it is a summary of the motion is what I understand.

Thanks

[willgolf4food]

Just to let you know the Judge finaly ruled on my case and with all of your help WE BEAT MBNA & their MANN BRACKEN.

Called the clerk this morning and it was like pulling teeth to get the rulling she kept saying it has been mailed. Finaly I said just tell in who's favor was the Summary Judgment issued and she said hold on and started reading and then said the DEFENDANT.

This wouldn't have happened without the help I got on this and one other site.

THANKS SO MUCH!!!!!

[merrybucks]

Congratulations on the win! What a great way to end the week.

[Tex_Tea]

That's awesome!!! Thanks for letting folks know. I am so glad to hear that.

[willgolf4food]

Got the copy of the Summary Judgement, I wrote out in December, signed by the Jdge in the Mail a few minutes ago.

No comments on why he ruled as he did but I am sure from his questions in court it was the 1 year to confirm Arbitration. I provided in my brief to him that case summary and cite.

And I know there attorney was trying to gloss over the may confirm in 1 year. I should have put monetary damages since the ruling by Appeal cort was before they filed the for confirmation.

[Betty109]

I'm going through this same thing in Missouri over an alleged debt to MBNA that CACV purchased in 2006. I also plan on using that FAA rule of one year to file an arbitration award--it has been three years since they won the arbitration award at the NAF. I was hunting around on the net tonight to see if anyone ever wins with that defense and was glad to see that you did. Yeah! That's great news!

I'm also going to throw in a bunch of other defenses, including that I feel it's unconstitutional and unconscionable, that they have no evidence to link me to the debt or to any agreement, and whatever else I can think of.

[Tex_Tea]

Betty,

As a contributor to this thread as well as the other, I am pleased that you find it useful and wish you luck as you fight arbitration in Missouri. The other thread has pertinent information as well. In fact, it was a later thread that followed this one, so definitely read it if you have not:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=291451

I would not be surprised if some debt collector attorneys try to make the case that the FAA only prescribes one year to confirm an arbitration award and does not preclude confirmation beyond a year. Some of the cases in this thread and the other could be used to oppose that. I would still do some research on cases specific to the jurisdiction you are in and its courts of appeal.

[Betty109]

Thanks, Texas Tea. I appreciate your help!

If I were in Texas, I'd win this case hands down as I know that clause is interpreted as an SOL there (and in New York) and 3 years have passed since the NAF issued this award against me.

I've since learned that Missouri does not see that statute as a SOL--unfortunately. But I'll try to use it anyway. I know that the brilliant argument in Photopaint Techs., LLC v. Smartlens Corp., 207 F.Supp.2d 193, 196-202, 204-209 (S.D.N.Y.2002) has swayed other courts.

I think it's insanity that some courts don't see that statute as an SOL. If it's not an SOL, they could take such cases to court 100 years from now. There has to be some limit put on these jerks.