PROOF of my dismissal using arbitration.

[JohnnyG]

This is public record, so I see no harm in posting this. I figured this will get rid of some doubt that this is a bad option:

My docket.

I'd like to note some things.

The judge said she wouldn't sign the motion for thirty days. However, she did today. Apparently, she called my attorney and spoke to him stating she further evaluated the FAA. She said she would dismiss it immediately based on those evaluations.

Further, my judge was very, very fair. So, arbitration users, do not take this as a "win all cases" card. It still depends on the judge by far. Most people get a magistrate which I think, in my opinion, is more methodical, if you will. I think they are less knowledgable about the law and not used to this tactic at all. They seem to just go for the typical result, summary judgment, or payment plans.

Finally, I would like to add that having an attorney when you do this is probably very, very crucial. It could determine whether or not your motions make it or break it. My attorney fees were not much more than the arbitration initiation costs, so keep that in mind, if you have some money or plan to pay the initiation costs - it may be best to get an attorney instead.

This is all my opinion. I am not a lawyer. Take this with a grain of salt. I will not be held liable for the results of your cases and this is by no means legal advice.

Edited July 20, 2010 by JohnnyG

[chuckygee]

You Rock!

[vballchick]

Johnny, congrats!

[goodguy2]

This is public record, so I see no harm in posting this. I figured this will get rid of some doubt that this is a bad option:

My docket.

I'd like to note some things.

The judge said she wouldn't sign the motion for thirty days. However, she did today. Apparently, she called my attorney and spoke to him stating she further evaluated the FAA. She said she would dismiss it immediately based on those evaluations.

Further, my judge was very, very fair. So, arbitration users, do not take this as a "win all cases" card. It still depends on the judge by far. Most people get a magistrate which I think, in my opinion, is more methodical, if you will. I think they are less knowledgable about the law and not used to this tactic at all. They seem to just go for the typical result, summary judgment, or payment plans.

Finally, I would like to add that having an attorney when you do this is probably very, very crucial. It could determine whether or not your motions make it or break it. My attorney fees were not much more than the arbitration initiation costs, so keep that in mind, if you have some money or plan to pay the initiation costs - it may be best to get an attorney instead.

This is all my opinion. I am not a lawyer. Take this with a grain of salt. I will not be held liable for the results of your cases and this is by no means legal advice.

can i get a copy of your : DEFENDANT'S MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION ?

and supporting docs. love to see it!

Congrats and...

Thanks you !!!!!!!!!

[Freddy01]

Congrats!!!!!

[willingtocope]

This is public record, so I see no harm in posting this. I figured this will get rid of some doubt that this is a bad option:

Okay, so I'm dense. What exactly did you win?

"...some doubt that this is a bad option..." can be taken either way.

I see nothing in the docket about arbitration. I could assume that crap 1 sued, you claimed aritration, crap 1 balked, and the judge dismissed their suite and said arbitrate...but, that's not real clear.

Even if that's the case, the debt hasn't gone away. They can still try to collect. Even if they decide not to pay the arbitration fees, the can still try to collect. If they do pay the fees, you'll probably lose the arbitration. And then, you'll be back in court to have the arbitration award turned into a judgement.

I will agree that using the arbitration tactic against a credit can be a wonderfull delaying tactic, and may even get them to drop their efforts to collect...but...this isn't over yet.

[JohnnyG]

Okay, so I'm dense. What exactly did you win?

"...some doubt that this is a bad option..." can be taken either way.

I see nothing in the docket about arbitration. I could assume that crap 1 sued, you claimed aritration, crap 1 balked, and the judge dismissed their suite and said arbitrate...but, that's not real clear.

Even if that's the case, the debt hasn't gone away. They can still try to collect. Even if they decide not to pay the arbitration fees, the can still try to collect. If they do pay the fees, you'll probably lose the arbitration. And then, you'll be back in court to have the arbitration award turned into a judgement.

I will agree that using the arbitration tactic against a credit can be a wonderfull delaying tactic, and may even get them to drop their efforts to collect...but...this isn't over yet.

What's not clear about it? What other lack of subject matter jurisdiction could there be? Lol.

No, it's dismissed with prejudice. They cannot collect in civil court. It was originally going to be without prejudice but the judge changed her mind.

Furthermore, I will scan a copy of the dismissal sheet when it arrives in the mail.

Lastly, I never said I won anything.

Edited July 20, 2010 by JohnnyG

[willingtocope]

Sorry, i'm just trying to understand this. Congradulations from the others implied you won something...my mistake.

But again, what does this have to do with arbitration?

Crap 1 sued, and the judge dismissed the case with prejudice for "lack of subject matter jurisdiction". That could mean they filed in the wrong county or regualr court when it should have been small claims.

And, even if it was arbitration that the jusge ruled on, they can still go through with the arnbitration, win, and file a new suit to get the arbitration turned into a judgement...(different subject matter).

[chuckygee]

He only provided proof that a court case can be dismissed for "lack of subject matter jurisdiction" because of arbitration. Nothing more nothing less.

We congratulate people when they achive what they have set to accomplish. I was congratulated for settling for 50% with payments. It does not have to be an all or nothing proposition.

If arbitration is what he wanted and he is able to show that the courts agrees that it is his right to demand it, why would we not congratulate him?

That is why these threads keep getting locked. The topics keep straying away from the thread topic. We already have other threads discussing the dangers of arbitration!

[nobk4me]

Sorry, i'm just trying to understand this. Congradulations from the others implied you won something...my mistake.

But again, what does this have to do with arbitration?

Crap 1 sued, and the judge dismissed the case with prejudice for "lack of subject matter jurisdiction". That could mean they filed in the wrong county or regualr court when it should have been small claims.

And, even if it was arbitration that the jusge ruled on, they can still go through with the arnbitration, win, and file a new suit to get the arbitration turned into a judgement...(different subject matter).

The case was dismissed, for lack of subject matter jurisdiction, because he elected arb, which, the way these arb clauses are typically worded, means that the matter cannot be litigated in court but must go to arbitration. Contractual arb, that is, in JAMS or AAA.

Yes, the plaintiff can try to go thru arb, but at great expense. Depending on the amount of the debt, the creditor is more likely to sell off the debt to the JDB.

Then it's a matter of rinse and repeat (and, yes, the way the arb clauses are worded, they usually apply to debt purchasers and assigns as well as the OC).

And all the while the clock is ticking, and eventually the SOL expires.

Delay is always good for the debtor.

[vballchick]

Woohoo8-)

[LUEser]

WTC, try to see it from this perspective now. OP can now take his sweet time moving this through the arbitration process. He can delay initiation if the other side is trying to get him to initiate. Or, if they initiate, he can drag out the fee process by objecting to paying, filing a waiver of fees, or requesting that the OC pays his fees. Then there's arbitrator selection, location selection, initial complaints to be filed, an answer to be filed, objections, motions, discovery, more objections, procedural issues. All the while the OC is getting billed for the arbitrator's time under the consumer fairness protocol. This is true for both AAA and JAMS, though JAMS sends more bills, that are bigger, more frequently.

[willingtocope]

So, IN THIS PARTICULAR INSTANCEE, the OP was sued by CRAP1. The OP initiaited arbitration. The jugde agree that the suit should be dismissed (WP) because arbitration was initiated. IF CRAP1 chooses not to pay the fees, the arbitration never takes place. And, all the OP has to do is wait and the SOL makes it impossible for CRAP1 to win in court (which they couldn't do anyway). Except that because the "sue me" SOL doesn't apply to the "arbitrate me" SOL (is there one?) the possibility that CRAP 1 will someday choose to arbitrate, once they inflated the interest and penalty enough to make the balance worth their while.

Okay, but, the FDCPA does not cover arbitration. There;s no law that says once arbitration is initiated, collection activity must stop. CRAP 1, and their CAs, and any JDBs and their CAs are free to continue calling 12 times a day. (Yes, I know. CRAP1 lost in court...but what they lost was the right to sue UNTIL after arbitration decides whether the OP owes the debt or not.)

Hmmmm....

[LUEser]

Yeah, the With Prejudice is kind a nice surprise here. If they go for the arbitration after the legal SOL comes, the arbitration forum is supposed to apply the same substantive and procedural protections of the forum state and applicable federal law. So the state's SOL should apply just the same, as well as any counterclaims under the FDCPA. Seeing as how the FDCPA doesn't apply to an OC, then no there would be no countercliams there, at least against Crap One. If the don't pay their fees though, one could validly claim breach of contract since the arbitration is supposed to be binding, same way NAF screwed consumers for so long with the binding provision.

However, it does raise an interesting question though...would bringing a time barred claim in arbitration equate to the same as being a time barred suit. If so, then there's the easy FDCPA claim against whatever lawyer Crap One decides to get to pursue the case.

More unexplored territory for sure.

[admin]

Docket doest prove anything, just that case was stayed for subject matter jurisdiction. Here is the legal def for subject matter jurisdiction:

Subject matter jurisdiction refers to the nature of the claim or controversy. The subject matter may be a criminal infringement, MEDICAL MALPRACTICE, or the probating of an estate. Subject matter jurisdiction is the power of a court to hear particular types of cases. In state court systems, statutes that create different courts generally set boundaries on their subject matter jurisdiction. One state court or another has subject matter jurisdiction of any controversy that can be heard in courts of that state. Some courts specialize in a particular area of the law, such as probate law, FAMILY LAW, or JUVENILE LAW. A person who seeks custody of a child, for example, must go to a court that has authority in guardianship matters. A DIVORCE can be granted only in a court designated to hear matrimonial cases. A person charged with a felony cannot be tried in a criminal court authorized to hear only misdemeanor cases.

In addition to the legal issue in dispute, the subject matter jurisdiction of a court may be determined by the monetary value of the dispute—the dollar amount in controversy. Small claims courts, also known as conciliation courts, are limited by state statutes to small amounts of money in controversy, ranging from $1,000 to $5,000 depending upon the state. Therefore, if a plaintiff sues a defendant in SMALL CLAIMS COURT for $50,000, the court will reject the lawsuit because it lacks subject matter jurisdiction based on the amount in controversy. The amount in controversy limitations are designed to regulate the flow of litigation in the various courts of the state, ensuring that complicated disputes over large sums of money will be heard in courts that have the time and resources to hear such cases.

Read more: Subject Matter Jurisdiction http://law.jrank.org/pages/10570/Subject-Matter-Jurisdiction.html#ixzz0uM0RgZlW

So I buy that a case could be stayed for arbitration.

In my opinion, if they dismissed the case with prejudice for any technicality, it's win. The question is if you can be sued outside of arbitration - can anyone enlighten me?

It would be nice to see the actual court paperwork.

[JohnnyG]

So, IN THIS PARTICULAR INSTANCEE, the OP was sued by CRAP1. The OP initiaited arbitration. The jugde agree that the suit should be dismissed (WP) because arbitration was initiated. IF CRAP1 chooses not to pay the fees, the arbitration never takes place. And, all the OP has to do is wait and the SOL makes it impossible for CRAP1 to win in court (which they couldn't do anyway). Except that because the "sue me" SOL doesn't apply to the "arbitrate me" SOL (is there one?) the possibility that CRAP 1 will someday choose to arbitrate, once they inflated the interest and penalty enough to make the balance worth their while.

Okay, but, the FDCPA does not cover arbitration. There;s no law that says once arbitration is initiated, collection activity must stop. CRAP 1, and their CAs, and any JDBs and their CAs are free to continue calling 12 times a day. (Yes, I know. CRAP1 lost in court...but what they lost was the right to sue UNTIL after arbitration decides whether the OP owes the debt or not.)

Hmmmm....

No one can call me at all. I have sent them a cease-and-desist long ago. They are forbidden from calling me or having a third party call me.

[JohnnyG]

Docket doest prove anything, just that case was stayed for subject matter jurisdiction. Here is the legal def for subject matter jurisdiction:

So I buy that a case could be stayed for arbitration.

In my opinion, if they dismissed the case with prejudice for any technicality, it's win. The question is if you can be sued outside of arbitration - can anyone enlighten me?

It would be nice to see the actual court paperwork.

Admin, I don't see anywhere on my docket where it says my case was "stayed" for subject matter jurisdiction. It says it was dismissed and disposed by the judge on the docket.

I will get all the court paper work together from my attorney, the motion, the dismissal sheet, etc.

I don't know where you see the word "stayed" anywhere on my docket. It says Order Granting Defendants motion to DISMISS for lack of subject matter jurisdiction.

Edited July 22, 2010 by JohnnyG

[willingtocope]

No one can call me at all. I have sent them a cease-and-desist long ago. They are forbidden from calling me or having a third party call me.

I'm really trying NOT to be argumentative, but I think its important we have all the facts. Who did you send the C&D to? If it was the OC, they're not bound by the FDCPA. If it was to a CA, then it only applies to them. The OC (or the next CA or JDB in line) can start over againl.

[admin]

Admin, I don't see anywhere on my docket where it says my case was "stayed" for subject matter jurisdiction. It says it was dismissed and disposed by the judge on the docket.

I don't know where you see the word "stayed" anywhere on my docket. It says Order Granting Defendants motion to DISMISS for lack of subject matter jurisdiction.

My bad. Still - would love to see the dismissal and I think it would be beneficial for everyone here.

[JohnnyG]

I'm really trying NOT to be argumentative, but I think its important we have all the facts. Who did you send the C&D to? If it was the OC, they're not bound by the FDCPA. If it was to a CA, then it only applies to them. The OC (or the next CA or JDB in line) can start over againl.

Well, I've since changed my phone number. In any case, I will just send them another letter haha. I've sent it to CapitalOne, though. Well - my attorney did. I personally only sent one to the attorney suing me.

When he sent the letter to CapitalOne, unless, and until they sell it or what have you, having someone else call me is considered a third party - which violates the cease and desist.

I don't understand why everyone is attacking me. It's really strange.

I'll get the motion and court documents together. That way no one can try to crucify me.

[willingtocope]

I'm sorry, we're not trying to attack you. We're only trying to get the actual, final results, of the arbitration process sorted out. We've had some members give the impression that all you had to do was initiate arbitration, and the debt went away. You happen to be the latest "victum" of that misconception, so we're asking you questions to help us clarify what actually happens.

And, again, sending a C&D to the OC has no legal justification. The OC is not bound by the applicable law (the FDCPA). In effect, what a C&D does to the OC is say "I'm not going to pay, so sue me"...but it doesn't legally require them to stop trying to collect, nor would it apply to any CA they might happen to sic on you. You have to C&D each CA individually.

[chuckygee]

I'm sorry, we're not trying to attack you. We're only trying to get the actual, final results, of the arbitration process sorted out. We've had some members give the impression that all you had to do was initiate arbitration, and the debt went away. You happen to be the latest "victum" of that misconception, so we're asking you questions to help us clarify what actually happens.

LOL, Sorry!!!

"we're not trying to attack you.... You happen to be the latest 'victum'".

Please forgive us for vitumizing you JohnnyG. I vitumized myself against Capital One and I don't think I can forgive myself for it. I stopped a summary judgement and was able to negotiate a settlement of the debt and a delete but I feel so "durty" for doing it!

Congratulations on your DISMISSAL WITH PREJUDICE!!!! Keep hold of the order forever for anyone else who tries to pursue this claim in court.

If they decide to pursue you through arbitration, you are no worse off then where you were before IMHO.

Who on this board has ever beat Capital One Pro Se in court? They come with plenty of documentation and affidavits that can stick. Anyone?

[willingtocope]

Okay, so my spell checker doesn't work, and I have MS which sometimes help me press the wrong keys. Point taken.

Now, your point is, Chucky, you stopped a summary judgement for the full amount, and "settled" for less than that...correct? Because Crap1 didn't want to pay for arbitration and therefore was more willing to settle.

Good. That's what playing the arbitration card MIGHT get you. And that's my point.

If you're sued, initiating arbitration with an OC can get you five different outcomes:

1. The judge ignores it, and gives the OC a summary judgement.

2. The judge agrees, the OC decides not to spend the money, and you get haunted forever by a never ending stream of CAs and JDBs, until the OC finally gives up and you get a 1099c.

3. The OC implies they might spend the money, but you offer to settle, they agree, and you wind up with a "pay it all now" bill and a 1099c for the forgiven part.

4. The OC spends the money, you get arbitration, and you lose. The OC takes the arbitration award back to court and gets a summary judgement.

5. The OC spends the money, you get arbitration, and you win. Does tha put an end to the debt? Does that make the debt unsellable? Do you get a 1099c for the entire amount?

Obviously, the best out come is #3

[JohnnyG]

I'm sorry, we're not trying to attack you. We're only trying to get the actual, final results, of the arbitration process sorted out. We've had some members give the impression that all you had to do was initiate arbitration, and the debt went away. You happen to be the latest "victum" of that misconception, so we're asking you questions to help us clarify what actually happens.

And, again, sending a C&D to the OC has no legal justification. The OC is not bound by the applicable law (the FDCPA). In effect, what a C&D does to the OC is say "I'm not going to pay, so sue me"...but it doesn't legally require them to stop trying to collect, nor would it apply to any CA they might happen to sic on you. You have to C&D each CA individually.

No sir, I am not saying they cannot "collect." I am saying they CANNOT call me or it is otherwise considered harassment. Any written request to stop someone from calling you and they continue to call you is harassment, regardless of whether or not it's a credit card debt, or whatever.

They cannot call me if I have requested in writing that they do not. Well, they can, and face consequences.

[JohnnyG]

Okay, so my spell checker doesn't work, and I have MS which sometimes help me press the wrong keys. Point taken.

Now, your point is, Chucky, you stopped a summary judgement for the full amount, and "settled" for less than that...correct? Because Crap1 didn't want to pay for arbitration and therefore was more willing to settle.

Good. That's what playing the arbitration card MIGHT get you. And that's my point.

If you're sued, initiating arbitration with an OC can get you five different outcomes:

1. The judge ignores it, and gives the OC a summary judgement.

2. The judge agrees, the OC decides not to spend the money, and you get haunted forever by a never ending stream of CAs and JDBs, until the OC finally gives up and you get a 1099c.

3. The OC implies they might spend the money, but you offer to settle, they agree, and you wind up with a "pay it all now" bill and a 1099c for the forgiven part.

4. The OC spends the money, you get arbitration, and you lose. The OC takes the arbitration award back to court and gets a summary judgement.

5. The OC spends the money, you get arbitration, and you win. Does tha put an end to the debt? Does that make the debt unsellable? Do you get a 1099c for the entire amount?

Obviously, the best out come is #3

I didn't initiate arbitration. I've just sent numerous letters electing it prior to my court case. At the time of my case, we motioned, at the hearing we showed that they were aware of my election for many, many months before the court case.

According to their contract, which is protected under the FAA, both parties rights to the court room are thereby waived upon election. Initiation doesn't have to occur.

It is worded like this: IF YOU OR WE ELECT ARBITRATION OF A CLAIM NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THIS CLAIM IN A COURT ROOM BEFORE A JUDGE OR JURY OR ANY COLLECTIVE REPRESENTATIVE CLASS ACTION HEARING.

It's plain english. So, plainly: they have no right to take me to court.

And for the sum of around four grand, arbitration is a ridiculous option for them.

Then, when and if they win in arbitration, according to my attorney, it is extremely hard to get the judgment accepted in the courts. Further, they stated at the hearing that they wanted to pursue me in civil court. The likelihood of them initiating arbitration is slim to none and if they do, that's fine.