Looking for a generic BoA cardmember agreement

[roflcopter]

A side question from my other thread, does anyone know where I could find a generic BoA cardmember agreement so I can review its arbitration clause? I know BoA stopped including them in mid-2009, but that shouldn't matter regarding my case since the card in question and its agreement is from 2006-07 and should be governed under the rules at that time.

The JDB and their rent-a-lawyer haven't attached any contracts or cardmember agreements to the summons and complaint, refused to say if they had one when I asked the lawyer, and discovery isn't allowed in IL so I can't force them to deliver documents before trial (which is in late January) but I'd like to fire off a notice of exercising the arbitration clause, but without an agreement I'm kind of in the dark on what to cite.

Will the courts accept a stay/dismissal over arbitration if there's no cardmember agreement on file from the plaintiff showing that one exists? Or would the request be enough for the lawyers to pony up the document in fear of getting the case dropped for lack of evidence?

Thanks in advance - I'm feeling very confident about the case right now, and I guess eager to start throwing paperwork at them!

[malinrott]

I have a good friend that works at BofA. If you can't get one by monday, I will ask her if she can get a copy sent to me.

[trueq]

I can fax it if you send me private PM

[BrokeBob]

BTW, it was August 13 that they stopped. Anything before that, the agreement is valid.

[Downto0]

I simply would deny every attempt where the attorney, or the judge, tries to get you to admit that the debt is yours.

I would still file the motions which the judge said he would deny and let him deny them. You have grounds for appeal. I would bring up the facts of your motions in court and let the judge dismiss them. You have more grounds for appeal.

You should also make sure that you object to these denials and dismissals to preserve your rights for appeal on these denials and dismissals.

Arbitration won't do you much good because the judge, if he follows suit, will simply deny this also. I would think twice before bringing the issue up because you have just admitted that there was an agreement with BoA. There you sit trying to deny the debt when you admitted that you did have an agreement with BoA.

They have nothing, unless you admit to something.

How could the affiant know anything about the account before it came to him via collections? Only someone working directly with BoA could know that you started an account with them and made the charges on the account. This someone would be able to bring forth account statements detailing the charges, an agreement and possibly a signature. All of this affiant's knowledge is hearsay.

You are being sued for account stated and breach of contract.

The account stated is pretty simple. They sent you a letter saying that you owe them x amount of money. You did not answer that letter so you implicitly admitted to the account stated.

This is a typical default setup for those who do not show. If you show and deny the debt then the account stated claim is gone.

When someone sues for breach of contract, there has to be a contract. They have not produced one and you have not admitted there is one. If you elect arbitation you will be admitting to an agreement/contract.

Read this:http://www.supremecourt.ohio.gov/rod/docs/pdf/4/2009/2009-Ohio-2167.pdf

and this:http://www.sconet.state.oh.us/rod/docs/pdf/4/2004/2004-Ohio-623.pdf

Edited November 1, 2009 by Downto0

[roflcopter]

The reason I want the generic agreement (hopefully from around the 06-07 years) is so I can compare it to whatever they provide me at/before trial. Arbitration is a last resort sort of thing but it's something that if I can exercise, I'd like to, in case some of the firms begin taking credit card cases from JDBs again.

I'm pretty sure I can get them to produce the documents after they get this letter from me, that I'm sending Monday CMRRR:

Dear Ms. Scumbag Jerko:

In regards to case XXXXXXXXX, trial date X/XX/2010, I hereby demand the following:

1) Pursuant to Uniform Commercial Code §9-406 and 810 Illinois Compiled Statutes 5/9-406, you are required to provide me with all paperwork necessary to show assignment(s) that prove you have title to this alleged debt and standing to litigate.

2) Pursuant to Uniform Commercial Code §9-210 and 810 Illinois Compiled Statutes 5/9-210, you are required to provide me with all accounting of what monies owed this alleged debt consists of and how the alleged amount came to be.

This information has not yet been provided to me in any form from you, your Plaintiff, or any other party, in violation of the UCC and Illinois Statute. If I am not sent all the information above within 10 days of receipt of this letter via certified mail, be aware of my intent not only to have this frivolous lawsuit dismissed due to your obvious lack of standing and your lack of proof showing my obligation to pay this alleged debt, but I will also begin the process of a counter-suit against your firm and the Plaintiff for violations of Illinois Statute, the UCC, and the FDCPA.

If you do not have the information I demand, please send via certified mail your intent to have this lawsuit dismissed with prejudice within the same 10-day time frame and ensure that your Plaintiff removes any and all references to this alleged debt from any and all credit reports. You may also consider this an official dispute of the alleged debt under the FDCRA.

I do not wish to continue legal proceedings any more than necessary, and do not wish to waste your firm nor the court's time on this matter. Please provide me this documentation or your intent to dismiss within 10 days of reciept.

Thank you,

roflcopter

With this, I believe I can either a) have them drop the case/get it dismissed for lack of standing or get them to provide the paperwork necessary to show they have standing, which will then allow me to exercise arbitration on the contract they have. Any advice on the letter?

[Downto0]

The reason I want the generic agreement (hopefully from around the 06-07 years) is so I can compare it to whatever they provide me at/before trial. Arbitration is a last resort sort of thing but it's something that if I can exercise, I'd like to, in case some of the firms begin taking credit card cases from JDBs again.

It doesn't hurt to look at an agreement just to see what a BoA agreement looks like, however, I doubt if they have one for your case otherwise they would have produced it with the claim.

I think you are too far into this case. The judge may not honor your request to elect arbitration. He hasn't been very friendly thus far. The lawyer would certainly object.

If things go as bad as they can go, then I'd say you could ask, as a last resort, for arbitration. At this point, you should make the point that the judge has been biased against your attempt to defend yourself and entirely favorable to the plaintiff, that arbitration would allow you a fresh start to set things straight.

The judge, if he's in the same mood, will simply say "denied", but you have registered your objection and paved a path to raise these issues in appeals court.

Remember this point... a lot of the time you have to object to the court's rulings in order to appeal them. I've read several opinions where the appeals court would not hear an argument because the issues, in question, were not objected to in the lower court. The safe thing to do, then, is to object to everything which is unfavorable.

I'd leave out the last two paragraphs of your letter. Ending with intent to sue will leave the best impression. Your last paragraph suggests otherwise.

I wouldn't tell them about the dispute because you don't need to. They already should know. If they are negligent and do not list the account as "disputed", then you have them for another violation.

Anyway, even if the judge is entirely against you, the plaintiff still has to show ownership and an accounting of the debt. The cases I gave you a link to you are persuasive argument for the accounting of the debt. The one case basically said that an affidavit was insufficient, which is all they have in your case.

I don't know how you talked to the judge but, if I were you, I wouldn't talk to him like you did last time. It may have been because you were pro se, or it may have been that he thought you thought you knew it all.

I've had this same experience myself. I went in citing case law as if the judge were supposed to stand up and salute. These judges are proud arrogant people. They don't like someone coming in uneducated in law and telling them what they have to do. They can deny all common sense with impunity. That's what the appeals courts are for.

The opposing lawyer, on the other hand, is fair game - but not in court, in front of the proud arrogant judge.

Edited November 1, 2009 by Downto0

[roflcopter]

In regards to the judge, I'm going to go with 'arrogant, cranky old man' since he showed up nearly 45 minutes late for the docket call, talked down to the other 5 defendants he saw (even though 4 of them were there just to settle/agree to the amount owed,) shouted at a defendant who couldn't speak English because he didn't bring someone who could translate from English-Spanish, etc. It's irrelevant anyway, since he did say he grants motions for change of judge and I'll be drafting one of those this week. I'm not interested in my case being heard before a judge where "Your Honor, I would like to file two motions in this case" gets me cut off and talked down to like a child.

The first judge from my original appearance date was much friendlier both to me and other pro se defendants so here's hoping the judge is changed to him (though I'm unsure if I can choose the judge or if it's just assigned.)

If this ends up going to trial, I'll be sure to object to anything and everything relevant so as to lay foundation for an appeal, if I need one. I've also removed the last 2 paragraphs from the letter.

[roflcopter]

Basically my game plan is this, depending on outcome(not including Motion to Change Judge:)

A) I send off demand for documents, they don't follow through/don't provide proper proof. I file Motion to Dismiss due to lack of standing, citing the UCC and ILCS statutes, then counter-sue for FDCPA violations/damages.

I send off demand for documents, they provide flimsy documentation that under the letter of the law satisfies the UCC. I take them to court and win by attacking the documents and getting them tossed out.

C) I send off demand for documents, they provide strong documentation/contracts/statements and a solid chain of custody. I file a Motion to Dismiss or Motion to Compel Arbitration, since any BoA contract from that time frame will give me the ability to elect arbitration, and I can claim (rightly) that because I had no information from the Plaintiff regarding my right to arbitration in the contract they reference before this time, I should be able to elect.

Edited November 1, 2009 by roflcopter

[Downto0]

Let us know what happens.

[roflcopter]

Also, another quick question: Should I send the request for documents to both Unifund and the lawyers, or just the lawyers? I want all my ducks in a row on this.

[unusualsuspect]

At this point, you need to change judges. This one clearly shows bias towards the Plaintiff.

I'd be getting ready for an appeals case either way. So do what was mentioned earlier. Make all those motions.

Have you even conducted discovery yet? I'd start about now...

[roflcopter]

At this point, you need to change judges. This one clearly shows bias towards the Plaintiff.

Being taken care of.

I'd be getting ready for an appeals case either way. So do what was mentioned earlier. Make all those motions.

Have you even conducted discovery yet? I'd start about now...

IL doesn't allow discovery for Small Claims. That's why I'm sending the letter demanding docs under the UCC, because otherwise I think they can just show up at trial with whatever they want and I'll only have a few minutes to review it before the trial starts (or possibly just during the trial.)

I can at least get a MTD heard, so I'll file the MTD and Motion to Change Judge after I send the letter.

[unusualsuspect]

Can you petition to remove out of small claims? I've done that 2 times just to be able to get more "lenient" rules (discovery mainly).

It's usually granted w/o any fanfare.

[roflcopter]

TrueQ, thanks very much for the CMA. I'll quote the relevant arbitration clause here (most emphasis mine):

LITIGATION

The Arbitration provisions below apply to you unless you were given the opportunity to reject the Arbitration provisions and you did so reject them, in which case, you agree that any litigation brought by you against us regarding this account or this Agreement shall be brought in a court located in the State of Delaware.

Arbitration: Any claim or dispute ("Claim") by either you or us against the other, or against the employees, agents or assigns of the other, arising from or relating in any way to this Agreement or any prior Agreement or your account (whether under a statute, in contract, tort, or otherwise and whether for money damages, penalties or declaratory or equitable relief), including Claims regarding the applicability of this Arbitration Section or the validity of the entire Agreement or any prior Agreement, shall be resolved by binding arbitration.

The arbitration shall be conducted by the National Arbitration Forum ("NAF") under the Code of Procedure in effect at the time the Claim is filed. Rules and forms of the National Arbitration Forum may be obtained and claims may be filed at any National Arbitration Forum office, www.arb-forum.com or P.O. Box 50191, Minneapolis, Minnesota 55405, telephone 1-800-474-2371. If the NAF is unable or unwilling to act arbitrator, we may substitute another nationally recognized, independent arbitration organization that uses a similar code of procedure. At your written request, we will advance any arbitration filing fee, administrative and hearing fees which you are required to pay to pursue a Claim in arbitration. The arbitrator will decide who will be ultimately responsible for paying those fees. In no event will you be required to reimburse us for any arbitration filing, administrative or hearing fees in an amount greater than what your court costs would have been if the Claim had been resolved in a state court with jurisdiction. Any arbitration hearing at which you appear will take place within the federal judicial district that includes your billing address at the time the Claim is filed. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 ("RAA). Judgment upon any artibration award may be entered in any court having jurisdiction. The arbitrator shall follow existing substantive law to the extent consistant with the FAA and applicable statutes of limitations and shall honor any claims or privilege recognized by law. If any party requests, the arbitrator shall write an opinion containing the reasons for the award.

No Claim submitted to arbitration is heard by a jury and no Claim may be brought as a class action or as a private attorney general. You do not have the right to act as a class representative or participate as a member of a class of claimants with respect to any Claim. This Arbitration Section applies to all Claims now in existence or that may arise in the future.

This Arbitration Section shall survive the termination of your account with us as well as any voluntary payment of the debt in full by you, any bankruptcy by you or sale of the debt by us.

For the purposes of this Arbitration Section, "we" and "us" means MBNA America Bank, N.A., its parent, subsidiaries, affiliates, licensees, predecessors, successors, assigns, and any purchaser of your account, and all of their officers, directors, employees, agents and assigns or any and all of them. Additionally, "we" or "us" shall mean any third party providing benefits, services, or products in connection with the account (including but not limited to credit bureaus, merchants that accept any credit device issued under the account, rewards or enrollment services, credit insurance companies, debt collectors (and all of their offices, directors, employees, and agents) if, and only if, such a third party is named by you as a co-defendant in any Claim you assert against us. Also, for the purposes of this Arbitration Section, "you" or "yours" shall mean any person or entity approved by us to use the Account, including but not limited to all persons or entities contractually obligated on the Account and all authorized users of the account.

If any part of this Arbitration Section is found to be invalid or unenforcable under any law or statute consistent with the FAA, the remainder of this Arbitration Section shall be enforceable without regard to such invalidity or unenforceability.

THE RESULT OF THIS ARBITRATION AGREEMENT IS THAT, EXCEPT AS PROVIDED ABOVE, CLAIMS CANNOT BE LITIGATED IN COURT, INCLUDING SOME CLAIMS THAT COULD HAVE BEEN TRIED BEFORE A JURY, AS CLASS ACTIONS OR AS PRIVATE ATTORNEY GENERAL ACTIONS.

Wow, I understand why the companies loved arbitration prior to NAF going kaput. If they've actually got a contract with my name/sig on it, this is getting tossed to arbitration so fast.

Anyway, my letter to the lawyer goes out CMRRR today, so this will probably be over long before it hits the courtroom again - but we'll see!

Another question, trueq - do you have any primers on submitting your arbitration claim? I've seen you say you've submitted 6-figure claims against the companies, do you have any samples of these? What are you claiming against them to come to those numbers, FDCPA/state violations + damages?

[trueq]

You are "jumping the gun" here. slow down.

NAF will not take the claim.

You guys need to agree on an alternate. That will take at least 12 months.

Your experts need to consult their experts to make sure rules are similar enough to NAF.

Read this:

http://www.consumerlaw.org/naf/nclc-rpts-udap-jul-aug-2009-web.pdf

and this:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=297310&highlight=trueq+mess&page=2

Use the roadblocks and obstacles available in this wonderful arbitration clause.

(AAA is an automatic rejection as an alternate suggestion. Tell them AAA is acceptable, if they initiate. AAA will not accept their claim!!!!)

Then read this:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=297619&highlight=NCLC

[roflcopter]

You are "jumping the gun" here. slow down.

NAF will not take the claim.

You guys need to agree on an alternate. That will take at least 12 months.

Your experts need to consult their experts to make sure rules are similar enough to NAF.

Read this:

http://www.consumerlaw.org/naf/nclc-rpts-udap-jul-aug-2009-web.pdf

and this:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=297310&highlight=trueq+mess&page=2

Use the roadblocks and obstacles available in this wonderful arbitration clause.

(AAA is an automatic rejection as an alternate suggestion. Tell them AAA is acceptable, if they initiate. AAA will not accept their claim!!!!)

Then read this:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=297619&highlight=NCLC

I fully understand that I'm jumping the gun/looking to the future - hell, they haven't even provided me with a contract or agreement that I could exercise arbitration on! I just try to be five steps ahead whenever I can. I'll read up on those links you provided me, and I'll send you my email address in PM so I can look over your JAMS filing.