Kittyring

Cap One Arbitration Pre-trial hearing

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In my suit with Crap One being handled by Weltman, Weinberg, Reis, I have invoked the arbitration clause. I notified the attorneys three times demanding arbitration. At the time I received the summons and complaint I filed my answers, and also filed an application to JAMS. I received a response from JAMS indicating that they accepted the request, and notified me of the $250 application fee for me, and $800 for Crap One.

At the pre-trial today, Weltman et al had a local hired lowyer represent them. He knew nothing about the JAMS response that I had received. The rent a lowyer argued that the case should move forward since I had not paid the $250 application fee. He stated that was required as stated in the Cap One agreement. The judge carefully reviewed the agreement language and the JAMS notification. He concurred that I need to pay the $250 first to initiate the arbitration. He set a court date, but agreed that it was contingent on the application fee being paid.

I will make the effort for a hardship waiver, but with the judges view that the Crap One agreement states that the initiator of the arbitration will pay the first fee. I filed JAMS in Chicago and I understand that they aren't likely to recognize the hardship waiver.

If that is the case, I will pay the $250 to get this on to Weltman and Crap One paying. I had attempted two settlement attempts and these were rejected by Weltman so arbitration looks like the way to go.

I plan to drag this out some, and will file a motion to compel arbitration if I pay and Crap One doesn't.

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Send it to Weltman and the court.

The language in the Cap1 clause says if you fail to get a hardship waiver, they will consider your request for Cap1 to pay the fee.

Until Weltman "rejects" your request to pay your $250, in writing,...the onus is on them to pay your $250.

It becomes Cap1's bill until they actually reject. If they want to forward their claim, they should be the one to pay it!

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As usual TrueQ provides very helpful and useful advice. I have crafted correspondance to Weltman. I would like comments on it if anyone has suggestions. This is the letter I plan to send.

Following the pre-trial conference held on May 5, 2010, I have learned the Chicago JAMS office will only provide a hardship waiver for residents of Illinois. As my financial situation is dire, I am respectfully requesting that in accordance with Capital Ones’ agreement that states:

“If you seek, but do not qualify for a waiver, we will consider any written request by you for us to pay or reimburse you for all or part of the Administrator’s fee.”

Since I can not get a waiver from JAMS, I request that Capitol One either pay or forward to me the $250 consumer fee.

Please respond to this request no later than 14 days from this date.

Although I am Pro Se the same contract that you’re bringing suit against me on for damages allows me to waive your and my rights to traditional litigation as I have elected arbitration. Capital One will be hard pressed to negate any damages for violating my rights to contractual due process being they authored the contract containing the arbitration provision. I am again stating my position that I have elected and filed arbitration application to resolve this matter and Capital On is clearly and legally aware that all litigation must be stayed in court once I or they elect arbitration.

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Kittyring,

Definitely do what Trueq says and right a letter to Capital One demanding that they pay the initial case management fee as per the customer agreement. Also send in a waiver form, (even though Chicago office may not accept it) along with the letter you sent to Capital One) to JAMS.

this should suffice as that is how the contract is written in that if you can't afford the fee, Capital One will pay.

Then send a copy of all of that to the court.

If push comes to shove, you may have to pay, but you can still ask for a reimbursement from Capital One.

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If you really want to play nasty file a motion for court intervention and in the motion ask the judge to make the plaintiff’s counsel provide documentation that they have conferred with their client over the fee waiver and whether they will provide wavier as stipulated in the agreement/contract. Write a paragraph that the bar certified counsel is not acting fairly or in good faith with the Pro Se litigant and you need the courts assistance to assure you can arbitrate as ordered and under the correctness of the contract. I assure you opposing counsel doesn’t want to go in front of the judge …. This is additional ammo for your amended claim in arbitration! Your Pro Se so you have some wiggle room with your motions!

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Just want to mention that I called and was told Jams will consider a fee waiver from a consumer after they determine that it is a consumer claim. They have no form available but would consider a letter of hardship referring to poverty level income. Yes, you can send in the claim with a request for consumer fee waiver once it is determined by them to be a consumer claim.

So again what Trueq says is on target!

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As usual very good and useful ideas from the forum. I have a new wrinkle in this case. Weltman informs JAMS that this is not a consumer case. They note that this is a business platinum account and that the standards for Arbitration do not apply to disputes arising from commercial transactions.

The fact is that this was a issued as a business but the "business" was a hobby craft not some established business, no incorp, or partnership, etc.

Have they just knock the arbitration option out? The law suit is against me personally, not as a business.

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Sue the attorney under Michigan law. File the case in small claims court.

Here is the Michigan law:

http://www.legislature.mi.gov/(S(dqzwmu55ok0dem3oj3h41z55))/mileg.aspx?page=getobject&objectname=mcl-act-70-of-1981

445.251 Definitions.

Sec. 1.

As used in this act:

(g) “Regulated person” means a person whose collection activities are confined and are directly related to the operation of a business other than that of a collection agency including the following:

(xi) An attorney handling claims and collections on behalf of a client and in the attorney's own name.

d) “Consumer” or “debtor” means a natural person obligated or allegedly obligated to pay a debt.

445.252 Prohibited acts.

Sec. 2.

A regulated person shall not commit 1 or more of the following acts:

(f) Misrepresenting in a communication with a debtor 1 or more of the following:

(i) The legal status of a legal action being taken or threatened.

(ii) The legal rights of the creditor or debtor.

445.257 Action for damages or equitable relief; amount of recovery; civil fine; attorney's fees and court costs.

Sec. 7.

(1) A person who suffers injury, loss, or damage, or from whom money was collected by the use of a method, act, or practice in violation of this act may bring an action for damages or other equitable relief.

(2) In an action brought pursuant to subsection (1), if the court finds for the petitioner, recovery shall be in the amount of actual damages or $50.00, whichever is greater. If the court finds that the method, act, or practice was a wilful violation, the court may assess a civil fine of not less than 3 times the actual damages, or $150.00, whichever is greater, and shall award reasonable attorney's fees and court costs incurred in connection with the action.

If the attorney tries to claim you cannot sue them because you do not meet the definition of a consumer or debtor, ask them how they can claim you are obligated to pay them.

At the same time, file a complaint with the Office of the Comptroller of the Currency at: http://www.helpwithmybank.gov/ Use the online complaint form to speed things up. Cap1 will get the complaint in a day or two, and will promptly act on it.

Explain the situation in the complaint and ask the OCC to investigate why Capital One put an arbitration agreement in their contract if they never intended it to be used by a customer. Ask the OCC to compel Cap1 to enter arbitration with you.

Edited by jkg3

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Weltman represented to you the claim was a consumer claim.

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I have discovered that early attempts to get a settlement before Weltman filed suit that offers that I had made through the attorney were never sent to the OC. This firm Weltmen, Weinberg & Reis are really unscrupules and looking only to pad their accounts. The comments on this thread is really helpful and instructive.

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I have discovered that early attempts to get a settlement before Weltman filed suit that offers that I had made through the attorney were never sent to the OC. This firm Weltmen, Weinberg & Reis are really unscrupules and looking only to pad their accounts. The comments on this thread is really helpful and instructive.

Capital One isn't even in the picture. Weltman, Weinberg & Reis are just using their name to scam you. Happens all day every day. Capital One certified to the IRS that the debt was worthless when they took a profit and loss writeoff and also an insurance claim on the alleged account. Make the law firm PROVE Capital One is even involved.

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You could have pointed out to the judge that their argument is bogus because in order to be fully initiated, Captial One must pay their $800 as well.

This is always what the attorney tries to do, insist that election and initiation are one and the same. You only have to elect in order to stop the case, not initiate.

You went above and beyond what the contract required.

But it doesn't even matter if you pay, until Cap One pays, it won't be "initiated" anyway.

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