Had MTD hearing today re: arbitration

[Baggins]

Went with my mom to court today for our MTD complaint based on arbitration election.

Judge treated it like a normal debt dispute and just asked "do you dispute the debt". He was nice enough however to allow me to speak on behalf of my mom which was good. Never did he mention our MTD (the reason we were there in the first place!) and scheduled a trial for late december.

This is when I informed the judge that we had already elected arbitration iaw the agreement a month ago. He then stated "well then you need to initiate it", my reply was "your honor the agreement doesn't state that the consumer is req'd to initiate, only elect". His follow up to that was, "This is how this works, you have like 30 days to initiate it thru arbitration, once you do then we will dispense with the trial in december". I tried to make some reiterations myself and he reiterated again about us having 30 days to get it started and by the tone in his voice he was basically saying...drop it I've made my decision... He followed up with, "also their atty's will do discovery that you need to make sure you answer on time or you'll be in default". I informed him that their discovery has already been recv'd and answered and he then said emphatically "good!". I then asked him, "now we aren't expected to file the plaintiff's claim for them are we?". His response, "no, they've already done that via this court". He then reiterated yet again, 30 days to start the arbitration and will do away with the dec trial date.

Took less than 5 minutes in front of the judge.

So, in essence I feel this is ok since now we definitely get to pick what forum to use.

Trueq, any suggestions?

Btw, plaintiff's attorneys were not there...

[lilq]

This was the same attitude I got too Baggins. Same 30 days as well, although the opposing attorney only wanted us to have 14, my husband asked for more and he gave 30.

We weren't informed that we didn't have to file claim for them however, we were made to think we had to.

I'd say it went pretty well for you.

I still am nervous about going back with our own claim and the judge faulting us for not advancing theirs.

but I guess our reply could be, your honor they've already filed their claim via this court. We've began the process in arbitration, now Capital One is free to counterclaim and pay their portion of the case management fee. The's ball in their court now.

And Baggins, they don't expect us to have confirmation from JAMS do they. Won't a simple green slip showing that I sent it to them be enough? I wanted to wait till closer till the time so as not to give the other side much notice.

[trueq]

He should have granted the MTD on the basis other side failed to show!

He's clearly advocating for the Plaintiff. Unless you hire a kick a$$ consumer lawyer, this judge is going to hand you your posterior in trial next month.

Time to hit "reset".

File a big claim in JAMS against these guys, then sit back and see what happens. Its interesting!

When you intiate and file your complaint with JAMS, send a copy of it to court...then court is required to enter stay order if they already have not.

Start taking the offense, sitting back on defense gets you these kind of judges!

Edited November 10, 2009 by trueq

[merrybucks]

Btw, plaintiff's attorneys were not there...

Why didn't you ask for a dismissal? Had you not shown they would have asked for a default judgment.

[willingtocope]

Folks, I'm certainly not up on the ramifications of all this, but I gotta ask:

Is it possible that your judges were talking about court ordered arbitration (as I understand it, set up to avoid using a judge's time) as opposed to the credit card arbitration forum scam? It sounds to me like the judges have said this is the way we do it in our courts. What you want is the kangaroo court the CCs tried to set up...

[Baggins]

lilq,

In our case the judge openly stated it is not expected of us to file their claim for them, that's suicide pure and simple. Whereas I don't agree with the 30 days (been more happy with at least 60), he was right to a degree in that iaw FAA 9 USC §3 for Stays pending arbitration, the court is basically only obligated to stay the proceedings only upon being satisfied that the issue involved in suit is infact referable to arbitration under the agreement, and shall on application of one of the parties (he ordered us to be that party) stay the trial of the action until such arbitration has been had iaw the terms of the agreement, providing the applicant (us) for the stay isn't in default in proceeding with such arbitration (ie. us not "applying" within the set 30 days dictated by the judge).

I really don't think any judge would fault anyone for NOT committing legal suicide by filing the plaintiff's claim against you in arbitration. That is the epitomy of assanine if a judge were to do that. You'd be incriminating yourself to a degree in my opinion. It's their complaint, they are the ones that need to prove it and don't need any help from us. Just my take on it.

[Baggins]

The judge did clearly state that once we initiate that the trial date will be cancelled.

I know I screwed up with not asking for a MTD based on attys not being there. I only assume they weren't there as he never addressed them and I didn't see anyone I didn't recognize (very small rural area and only atty's I saw in the courtroom are local defense attys and only 2 at that). However NCO was there, in and out of the courtroom pulling people out into the hall and watched him sucker some gal into admitting to a junk debt, an easy slam dunk for him. Felt sorry for that lady. Watched others openly submit, sickening. Why even show up if you're gonna cave like that?

But it was my first time in court dealing with the judge as a pro se and was a learning experience to say the least. Only other time dealt with him was in his office one on one.

[Baggins]

The judge obviously however didn't read one darn thing in the case file. He had no idea of our arbitration election or the fact discovery was already served and answered. Maybe he does assume we're referring to court type mediation, but then again I specifically mentioned arbitration iaw crap1 own agreement...

[trueq]

Push some JAMS initiation paper and file the big JAMS complaint, you escape the railroad trial next month.

At worst, it gives you leverage to negotiate.

but you may make them fold rather than incur the huge expense of defending against your JAMS complaint.

[admin]

Yep - because you were asking for arbitration, it doesn't matter whether the other side showed or not.

If you were hearing a MSJ (and you can't do arbitration once you do this), you would have already won.

Oh the perils of arbitration.....

[Baggins]

Yep - because you were asking for arbitration, it doesn't matter whether the other side showed or not.

If you were hearing a MSJ (and you can't do arbitration once you do this), you would have already won.

Oh the perils of arbitration.....

Good point however with neither the oc or their atty's willing to talk and the inability to afford a good consumer atty really couldn't see any other alternative. They did however in a sense breach their own contract by pursuing litigation once one of the parties elected the arbitration clause. Their own agreement in plain english states "IF YOU OR WE ELECT ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY OR TO PARTICIPATE IN A CLASS ACTION OR ANY OTHER COLLECTIVE OR REPRESENTATIVE PROCEEDING."

That pretty much spells it out to me. Based on their own contract, that they wrote, they are in breach of it.

Besides if we were there for a hearing on MSJ their renta-legals would've been there with bells on.

Edited November 10, 2009 by Baggins

[Guest usctrojanalum]

He should have granted the MTD on the basis other side failed to show!

If you do not know the rules of civ pro of this particular type of court in MO, making this statement is probably a bit irresponsible.

I know a bunch of courts in NY (and I'm sure it may be comprable in other states as well) where each side must be present at every appearance, there are other courts where you rarely have to appear and everything is just submitted through papers and motions and other courts that tell you when appearance is necessary and when it is not.

[Baggins]

I can see where the opposing counsel wasn't req'd to be there, we afterall "elected arbitration" which they can just fall back on the ole "litigation rights waived" argument for them not being there. However it didn't stop the judge from ignoring it.. I think trueq is right, gotta get this crap out of his court or we're gonna get railroaded.

[willingtocope]

Am I missing something?

First, the judge has a case before him that he must rule on. From what I see, he thinks that use have elected court arbitration...but, he needs to cross his t' and dot his i's to permit that.

Second, what you want is for him to dismiss the case before him...because...you have invoked the scam arbitration clause in the contract.

The arbtration environments are NOT the same thing...

[Baggins]

I made it quite clear with him that arbitration was elected iaw the oc's agreement. Never mentioned anything about court ordered mediation/arbitration or what ever and nor did he.

How is the oc's arbitration clause a scam?

[kadesdad07]

How is the oc's arbitration clause a scam?

Because there is a difference of opinion on arbitration. Not all members agree with trueq ( only use trueq because of his knowledge of arbitration and not that he is the only one who supports it). I’m sure you saw the sticky. I don’t know the specifics of your case so I don’t have an opinion.

Edited November 10, 2009 by kadesdad07

[kadesdad07]

I do see where willingtocope is going with this though. After reading your post, the interpretation of the arbitration order could be either.

[willingtocope]

How is the oc's arbitration clause a scam?

Because it was effectively set up by the CC companies to be a rubber stamp for each case they filed. They essentially setup the NAF, funded it, and dismissed any indvidual arbiators that ruled for the debtor. When, for whatever reason (was there a court case against them?), the NAF decided not to play along anymore, and AAA also backed out, the debtor now gets to pick who arbitrates. (Again, this IS NOT court ordered arbitration). Trueq is saying use JAMS, because it will be years until they get around to it.

[kadesdad07]

Sorry willingtocope I stand corrected. Didn’t mean to put words in your mouth. I misinterpreted what you were saying with all the recent discussion about arbitration.

[Baggins]

I do see where willingtocope is going with this though. After reading your post, the interpretation of the arbitration order could be either.

This is where it would've probably been a good idea for the judge to have read at least some of the case file. The election letter to plaintiff's atty is filed with the court electing and siting the OC's own arbitration clause, the MTD based on electing OC's arbitration clause is in there, objections to plaintiff's discovery based on electing OC's arbitration clause is in there...to of which they filed 2 weeks after they were in possession of election letter (few things on that to address with the FDCPA since they are actually a debt collector as so stated on every piece of paper they file with the court). I feel the atty's are basically bluffing us on whether or not we follow thru with it, bluff called.

Am I concerned about the whole arbitration thing? Darn right but until I go thru it myself I won't really know if it's a good thing or bad thing. I know at least in my mind it'll satisfy alot of curiosities I have on the subject.

[MG05]

Before NAF and AAA decided to take themselves out of the arbitration business you would be an absolute fool to proceed with arbitration. Look at the Capital One agreement in whole and then research Virginia State Law (Law of Choice). Capital One had the whole system rigged along with the other big time credit card lenders. If you own the store you can charge whatever you like was the mentality of these greedy a$$ lenders. You were taken for everything they could get once they elected arbitration. Why do you think the Government was and is trying to close down mandatory arbitration? Now they have to play on a field that is even or maybe slanted for the consumer and they do not like it. Read your Capital One agreement for arbitration closely … I as a consumer in arbitration would list the violations of law and damages but one better I would file claims for theories of law and damages based on theory of law. Yes indeed, Capital One has gone after consumers for years based on theories of law and theories of damage (it is included in the agreement).

Admin is right in the sense that if the NAF and AAA were involved you would be toast in arbitration. For some of us on this site who have a small (very small) window that they can exploit before Capital One and the other credit lenders get another stooge arbitration company to take over. My belief is Capital One will start very soon dismissing cases once the arbitration card is pulled. They like other lenders will start selling the arbitrated debt to JDB’s at pennies to the dollar instead of the money to defend a claim.

Here would be an example of my theory of law: My .02 Cents! LOL

To JAMS: Complaint: Capital One charged and claimed contractual interest rate of 25.90% interest on default. However, the credit card agreement does not list any specific default rate and is vague in terms and condition. A typical consumer, as myself, who is unaware and unqualified to discern these types of agreements would be a great disadvantage. Additionally, Capital One will not provide the Customer Agreement until you have the credit card issued and in your possession. If the arbitrator were to call Capital One today or go to their website you will not and cannot obtain the full customer agreement. These unethical practices are precisely why the Federal Government has enacted the Credit Card Reform Legislation. As in my case once you breech these hidden traps, as many Americans have done in the past few years in the midst of the recession, you are in well beyond your means and ability to pay. Capital One will then prey on the consumer by doubling interest rates, enacting over the limit fees and late fees and then point out you agreed to the customer agreement.

The Florida Courts have ruled in Gregorich vs. Capital One that the customer agreement fails to adequately list interest rates and failed to show on face a complete and concluded agreement between parties. The State of Florida in Gregorich vs. Capital One does not recognize the Capital One Customer Agreement as a written contract. In no place in the Capital One Customer Agreement does it state default interest rate and nothing will be produced by Capital One showing my signature.

I would then ask for $25,000.00 in damages to show Capital One that these type of unscrupulous and deceptive practices need to be corrected and only a substantial claim will make Capital One change policy. (Remember we are working on theories of damages).

Remember we are working on theories …

[willingtocope]

Remember...the problem with winning a JAMS arbitration is that you then have to take it to court to get an enforceable judgement.

IMO, if you're going to use the arbitration route to avoid a lawsuit, settle the arbitration by mutually agreeing to nullify the debt, remove the TL from your reports, and never sue over anything.

[MG05]

Remember your on your claim ... they never get heard!

[trueq]

and court may not confirm, but you have nulified their lawsuit at that point anyway.

"Mutual nullification" in arbitration is also a good outcome...meaning you agree to $0 award for both and dismiss everything with prejudice.

THAT IS A WIN!

I suspect I passed on this "mutual nullification" opportunity in one case to go for the big JAMS win because I got Cap1 on violating my state's consumer law by suing me!

Arbitration opens up the possibility of all this these days (Only JAMS though).

This always beats taking a judgment in court. Even if you take an arbitration award, its still gong to be a showdown at the court confirmation hearing.

[kadesdad07]

I think that if THIS case was with an OC, then yes arbitration is the way to go. The OC would be able to provide the evidence in their case and win. If this was a debt that had been charged off and sold several times to JDB then I think using discovery to see what evidence they Don’t have is a better option. At the end of the day it is up to you to decide what you think is best for you and your case. Arbitration has its place in your case strategy, but it is the best strategy to begin with, I think that is the argument. I certainly don’t discount it. I have read the many posts here regarding it and I have read the JAM’s rules. If I thought I had no chance of winning in court, then I would entertain the idea.