Motion to Compel and Motion to Dismiss same time-AMEX?

[Peachy]

I'm in Georgia and have two weeks to Answer the Complaint from Zwicker. I found the forum and have my original cardholder agreeement. If I file the Motion to Compel Arbitration, do I file a Motion to Dismiss separately? One document I have asks for the suit to be dismissed as part of the Motion to Compel. Thanks for any and all help! Operating Per Se.

[jkg3]

Does your agreement specify AAA or NAF or JAMS?

[Peachy]

Both NAF and AAA are listed. Below is how far I've gotten and requests a "stay" as opposed to a Motion to Dismiss. Thanks!

(“Defendant”), hereby answers the complaint of American Express Bank, (“Plaintiff”) for its self alone as follows and moves this court to bar, stay, or dismiss Plaintiff’s claim based on the following:

1. Plaintiff filed a complaint against the defendant(s) for a credit card balance due.

2. Defendant moves this court to compel binding arbitration based on the Credit Card Agreement (attached hereto as Exhibit A).

2a. The parties are bound by Credit Card Agreement to settle disputes by binding arbitration, not by litigation, upon the election of either party. This Motion constitutes notice of election by the undersigned to have this dispute resolved by binding arbitration, as provided for in the Credit Card Agreement.

3. Plaintiff has never sought to take the defendant to arbitration

4. The Federal Arbitration Act ("FAA"), 9 USC, Section 1-2, provides.

4a. "A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such a contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."

5. Defendant requests that pending the court's ruling on this Motion, this action be stayed.

6. "FAA", 9 USC, Section 1-3 provides:

6a. "If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration."

WHEREFORE, Defendant requests that:

1. This honorable court stay the Plaintiff's complaint and any and all action related to this case.

2. This honorable court compels the Plaintiff to seek binding arbitration per the terms and conditions of the Credit Card Agreement.

[oregonpilot]

This is what I am looking for can you post it here also it might get more traffic I dont know

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?p=1058155#post1058155

but why stay and not dismiss just asking

[Peachy]

Thanks OregonPilot, I had read somewhere that you have to ask for a "stay" as opposed to dismissal when doing arbitration, but I'm not sure either.

[oregonpilot]

Does any one have any thoughts on this (to ask for a stay or a dismiss)

I am trying to put one of these together also

[nobk4me]

Ask for both, but in the alternative. File a motion to dismiss (for lack of jurisdiction), or in the alternative, to stay pending arbitration. That's what I did, and the court denied the MTD but granted the Motion to Stay. And the JDB lawyer didn't even bother to respond, so I should have won the MTD by default.

Expect the court to bend over backward for the creditor and not dismiss, so give them an alternative. My state's arb law, which I cited in the motion, on stays pending arb is identical to the Federal law cited above, so if the court denies a motion to stay they are setting themselves up for reversal on appeal.

[oregonpilot]

So you would put all 3 in the pleading title or file 2 seperate motions one for MTC and Dismissal And one for the alterative

Dont laugh I dont have a clue the more I read the more confused I get

[nobk4me]

Just put 2 in the pleading title, Motion to Dismiss, or in the alternative, Motion to Stay pending Arbitration.

I haven't done a Motion to Compel. But I think if one were to do this, it would be a Motion to Compel Arbitration and to Stay the case pending arbitration.

The angle I took was to seek dismissal, as the agreement language was if either party elected arb, then neither party could litigate claims in court, hence, the court has no jurisdiction. Plus the way the arb law is written in my state, ar arb award can only be confirmed in a court of common pleas. The case was filed in a municipal court. So even if the JDB were to win an arbitration award, they couldn't come back to the muni court with it. So that is what propelled me to file the MTD/MTS.

[Peachy]

Thanks nobk4me for the responses. In addition to the Motion to Compel, I also plan to send a letter to Zwicker requesting Arbitration. Should I attach this to the Motion to Compel or send separately to Court? Also, is asking for a MTD a bad idea? Should it be: Motion to Compel Arbitration/Stay Pending Arbitration or Motion to Compel/Motion to Dismiss or Motion to Compel and a separate Motion to Dismiss?

[oregonpilot]

Duh that makes sense how can the court compel if they dismiss

but I quess my best bet would be seek dissmissal and if that doesnt fly then file to compel and stay the Discovers lawyers to arbitrate in hope of a settlement offer

(I dont know)

I am just not sure how to word it so the court will understand that their abitration forum is different that the card agreements forum

[nobk4me]

Peachy - attach the letter to Zwicker to the motion.

I think you need to do either MTD (or in alternative) MTS or MTC (and) MTS. I would try for dismissal/stay first, and if denied, then try MTC/MTS.

Oregonpilot - attach the agreement to the motion, explain that arbitration in the forums is different than the court's, in that the forums are specified in the contract. After all, the creditor is alleging that you breached the contract, right? So you can claim that if they don't comply with the arb clause they are breaching the contract. Plus, the forums are private, and you value your privacy and would rather not have this dispute aired in the public forum of the court.

Edited April 21, 2010 by nobk4me

[oregonpilot]

Thanks nobk4me I am on it