roardebt

Help from Tru or Somebody Knowledable?

Recommended Posts

So, I was reading true various threads as to how to start arbitration before/after the trial phase etc. I read where some states will allow you to elect for it after the initial pretrial phase and others will not. Is there any particular way I can find out what VA's policy is on this?

Oh and let me note this is from an JDB and not from the OC.

Share this post


Link to post
Share on other sites

and read the annotated case law.

Wisconsin's looks like this:

http://www.legis.state.wi.us/statutes/Stat0788.pdf

WI's "waiver" provisions are in the case law listed in section 788.02 (Meyer vs. Classified Ins. Corp)

However even that ruling is not clear. There is no "bright line" test when the waiver actually occurs.

A Court of appeals in WI last week (I'm fairly sure defendant was reading my stuff hear) ruled waiver of arbitration occured after defendant did not initiate arbitration under 60 stay order...here's the unpublished case...

http://www.wisbar.org/res/capp/2010/2009ap001340.htm

So hear the Defendant ignored the court order to initiate and attempted to say that did not waive. Court of appeals said he did, but as you read the Appeals court was not "bent" on saying any activity to defend was waiver.

Still no bright line test, but gives you insight to the issue.

Share this post


Link to post
Share on other sites

If the court makes a stay instead of dismissal, and I want the OC to give me money to file the arb, how do I get that?

Share this post


Link to post
Share on other sites

making the demand. Copy the court.

Silence could be deemed as acceptence of your request for OC to pay.

Make them come out and say "No I'm not paying". You could then argue they have no interest in proceeding with arbitration and demand dismissal.

Share this post


Link to post
Share on other sites

I was sued by swicker and I elected arb the judge gave me a dismissal w o prejudice .I followed up but zwicker never paid the $550 filing fee with jams .I never paid the $250 fee either so now they are trying to vacate the dismissal saying the case was dismissed .I contacted jams and they said they can reopen the claim.I have to now file a response should I now pay the $250 or should I file my opposition first

Thanks anyone who can help

Share this post


Link to post
Share on other sites
I was sued by swicker and I elected arb the judge gave me a dismissal w o prejudice .I followed up but zwicker never paid the $550 filing fee with jams .I never paid the $250 fee either so now they are trying to vacate the dismissal saying the case was dismissed .I contacted jams and they said they can reopen the claim.I have to now file a response should I now pay the $250 or should I file my opposition first

Thanks anyone who can help

There are a couple of things you need to consider, and only you can make the decision based on previous experience with the judge you were before.

1. You can argue that you elected and initiated claim, but you decided since the Respondent was responsible for the bulk of the fee's that you decided to see if they were going to participate. Use the JAMS rules to frame the arguement that the consumer fee is non-refundable, further that you were going to request Respondent/Plaintiff pay your fee per card agreement (assumes this is in the agreement, many OC's have this in agreement) but make sure.

2. You can pay the fee and show up in court and use the same arguement for why you waited to pay the fee. Also file a MTC them to arbitration, asking the judge to order them to pay their fee and get on with it and quit wasting the courts time and valuable resoures.

Finally, did you have some decent claims for the arb claim? Further you should do a cost benifit analysis, meaning if the debt is greater than 2500 you are investing 10% or less if the debt is greater to move them out of court once and for all by paying.

Share this post


Link to post
Share on other sites

Ok thanks.I basically have to file an oppsition ..then a motion at the same time.I am probably going to file a mtd but I have to respond to their motion first

Share this post


Link to post
Share on other sites

also the court case was already dismissed w/o prejudice.They filed to re instate and I have to file an opposition motion.should I file a motion to dismiss the case w/prejudice or a motion to compel arbitration and make them pay the feeS..Thanks

Share this post


Link to post
Share on other sites

Not from your jurisdiction, but if you file opposition to their motion to vacate dismissal and judge see's it your way and you win, then the case is still dismissed w/o prejudice so no need to file for dismissal. Right.

Filing a Motion to Compel the other side to participate would be better so that when you are done they are paying to go to arbitration which they don't want to do based on their actions already. Judge may not hear the motion because at present the case is dismissed, meaning no jurisdiction for the court to rule on.

Good Luck

Share this post


Link to post
Share on other sites

The only thing is obviously with prejudice means it cannot be opened again

Share this post


Link to post
Share on other sites
Guest
This topic is now closed to further replies.