Arbitration

[lisser]

Ok guys,

I keep reading on here about arbitration...is arbitration where you try and settle with the credit card and make payments to them? Also, I have tried to research this JAMS thing. I've got a civil suit against me from Capital One and the attornies are Weltman, Reinberg, and Reis. I called them today and asked them to settle for 40% of the debt. They said no, they want 75%. At this point do I file with JAMS? As far as I can tell the closest JAMS to me is Chicago. I'm near Cincinnati, OH.

I'm lost. Any advice?

[chuckygee]

Start with this post. http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=299152&highlight=Initiating+Arbitration

Chime back in if you still have questions.

[lisser]

Thank you for that post I do not have a copy of Cap1's arbitration agreement. The lawyers that are suing me sent me a photo copy of it but I can't read a word of it. What exactly is arbitration with a credit card company? Is it agreeing to make payment arrangements? I've googled it and what I've seen of it, it sounds like it's a bad decision?

I called WWR today to offer then 40% of what they are asking and they said no, they wanted 75% and said they would never accept anything lower than 75% and my only other option would be to make payments over a 2 year period to them. I can't believe they wouldn't accept 40% today instead of getting money over 2 years.

If I go in to arbitration, what exactly am I agreeing to do with them?

[chuckygee]

Ok, I am replying to both of your thread here and in the other forum.

To answer your question about arbitration, I would not even consider moving to binding arbitration unless you know what it is. Arbitration is an alternative to going to court. You agree to have a company hear the case and decide the outcome vs. a court of law.

The advantage of arbitration right now, is it is expensive for the CA, OC or JDB. They may decide to settle instead of going to arbitration. I use the word "may", because there are cases where they participate in the arbitration. If they do, you would need to represent yourself in arbitration the same way you would in court.

So please keep reading about what it means so you can make an informed decision about if it is right for you.

In the mean time, I already replied to your other post.

[lisser]

I'm so confused as to what to do. I really want to settle and get this over with but I can't help that I've read all over the place that most places will accept 40% to 50% of the debt. They say they will only accept 75% and nothing else. Is this fair? If 75% is fair to settle on, I will take that, if not I want to do another option whether that be arbitration, bankruptcy, etc. I tried to talk to an NACA lawyer today and he hung up on me. The list of lawyers an Admin posted, the closest one to me is Louisville. There isn't one in Ohio. I can't believe in the big city I live in that no attorney wouldn't be able to help me nail Capt1!!!!

[skippy1960]

Listen to Chuck, on this one and do some research and learning. Folks that are in a hurry don't get what they are looking for, if you are in hurry pay the 75% and move on.

If you want to get to 40% or 20% then spend some time to educate yourself on how to get there. Frankly, if this debt is less than $7K, you aren't going to find an attorney that will represent you that will be cost effective. Meaning you will pay close to the settlement amount you are offering, with no gaurentee of winning.

So slow down and get some information to get a strategy for how to deal with this, the reason you are getting 75% is that is all they are likely able to offer, based on their retainer agreement. They aren't shaking in their shorts about court, as they will file for MSJ and you won't know what to do and they will get it all.

You can do this but you need to devote the time to do so...

[lisser]

Thanks guys,

I have been reading and reading and reading the past 2 days and I do feel more informed now definitely!

Yesterday I sent a certified letter to WWR telling them this:

Dear so and so,

Upon reviewing your complaint, and specifically the Capitol One card member agreement attached thereto, it is apparent that said agreement contains an arbitration clause which bars litigation in court. Thus, this dispute should be resolved by arbitration rather than litigation, and I hereby elect arbitration to resolve all disputes between your client and me.

I expect that you will honor the card member agreement which you claim to be binding on the parties by initiating arbitration in accordance with the arbitration clause in the agreement and dismissing this case.

Sincerely,

me

What do you all think about that? Also, many thanks to nobk4me for helping me draft this!

The plan is to wait 1-2 days after they receive the letter and call them to see if they plan on initiating arbitration. The principle on the debt is only $1000. With fees and interested, they want upwards of $2600. I just don't see how it will be beneficial for them to do arbitration. If they tell me they will not do arbitration then I plan to file a motion to compel arbitration. Hopefully the judge will see I've made them a settlement offer and they refused, now I'm asking for arb..maybe he will force them to do arbitration and then they won't want to spend the $ for it and they will go away!

Wishful thinking!!! Any thoughts? Suggestions? I'm in KY btw.

[lisser]

Also Skippy, they have already filed a MSJ, the court date is set for Sept. 27th so I'm running short on time, very worried I've waited too long to ask for arb......

[skippy1960]

Now that is what I was talking about, great informend letter, now begins the process. While you are waiting for them to recieve, don't be afraid that you have waited to long, FIND OUT.

Find your civil procedures related to arbitration, and see what they say, you will need them because they aren't going to say "OH geez, Mr. Lisser we are so sorry, let us dismiss your case...."

You need to know 3 things-

1. Civil Procedures related to arbitration

2. How to file a Motion to Compel and Stay Proceedings.

3. What are timelines for filing motion...

Sometimes you have to give them 30 days, buy you will need to check your jurisdiction. You should prepare the papers no matter what and bring to court on the 27th, so you are prepared to move the court to compel.

If you can get to Arbitration you have a good shot at getting your settlement number from earlier....

Stay with it, worth the fight!!!

[lisser]

Now that is what I was talking about, great informend letter, now begins the process. While you are waiting for them to recieve, don't be afraid that you have waited to long, FIND OUT.

Find your civil procedures related to arbitration, and see what they say, you will need them because they aren't going to say "OH geez, Mr. Lisser we are so sorry, let us dismiss your case...."

You need to know 3 things-

1. Civil Procedures related to arbitration

2. How to file a Motion to Compel and Stay Proceedings.

3. What are timelines for filing motion...

Sometimes you have to give them 30 days, buy you will need to check your jurisdiction. You should prepare the papers no matter what and bring to court on the 27th, so you are prepared to move the court to compel.

If you can get to Arbitration you have a good shot at getting your settlement number from earlier....

Stay with it, worth the fight!!!

Thank you but I can't take all the credit, nobk4me helped me immensely!!! I have also been pointed in the direction of KRS 471.060 which seem to be KY's statutes on arbitration. I don't see any reason why this shouldn't be an option for me unless WWR pitch a fit and fight me beyond my means.

I'm still searching for the time lines to file a motion in this specific type of case....for example the plan is to wait 1-2 days after I know WWR has received my letter (they should get it today) and call them. I need to record the phone call though. I need to find out what the time line for filing a motion to compel arbitration is...should I file immediately after my phone call to them if they refuse arbitration?

Here is a question...how and when do I go about introducing my letter asking for arbitration in to evidence and my soon to be recorded phone call? I've also called WWR on 8/23 and spoke to the attorney's legal assistant. I offered them 40%, she refused it. I have no proof of that phone call other than my notes. What are your thoughts on this? I'm trying to prove that I've tried to work on this and that maybe the JDC are being unreasonable?

Thanks for all the suggestions and moral support! I wish I could give all you guys a big hug! hahahaa!

Melissa

[chuckygee]

I would file the Motion to Compel sooner rather than later. After you get off the phone, file the motion.

As far as any settlement offers, they are usually not admissible evidence in court. The court encourages settlement offers, so it will not reward or penalize either side for offering or rejecting offers. But it does make you look reasonable that you have participated in settlement talks.

[lisser]

Ok, then I'm going to go ahead and draft my motion to compel arbitration. Anyone want to throw in any suggestions on how it should look or point me in the right direction just so I don't make any mistakes?

nobk4me has helped me a ton, he's in OH and I'm in KY so if anyone with knowledge of KY motion to compels or citing KY cases, rules, laws, etc. feel free to chime in!

[lisser]

Here is a KY rule I've found with regard to motion for judgment and timelines:

CR 12.01 WHEN PRESENTED

A defendant shall serve his/her answer within 20 days after service of the summons upon him/her. A party served with a pleading stating a cross claim against him/her shall serve an answer thereto within 20 days after the service upon him/her. The plaintiff shall serve his/her reply to a counterclaim in the answer within 20 days after service of the answer or, if a reply is ordered by the court, within 20 days after service of the order, unless the order otherwise directs. The service of a motion permitted under Rule 12 alters these periods of time as follows unless a different time is fixed by order of the court: (1) if the court denies the motion or postpones its disposition until the trial on the merits, the responsive pleading shall be served within ten (10) days after entry of the court's order; (2) if the court grants a motion for a more definite statement, the responsive pleading shall be served within 10 days after the service of the more definite statement.

Am I in the right ballpark here with learning my state's timelines for serving, responding, etc?

[lisser]

Ok guys, my certified letter was delivered to WWR this morning at 7:52am. W()()T! I'm drafting my MOTION TO DISMISS THE PLAINTIFF'S COMPLAINT,

OR, ALTERNATIVELY, MOTION TO STAY PENDING ARBITRATION right now.

Any tips or advice would be gladly accepted. I'm in KY. I want to make sure I get this right. Thanks!

[skippy1960]

I believe you said that Planintiff had file for MSJ. If so then follow their format, example in my state you would file the following doc's. They are motioning the court to ring you up, so use their format of documents filed.

In my state below are the items I would file-

Motion to Compel and Stay Proceeding-Breif outline of how and why you are motioning the court.

Memorandum of Points and Authorities-This one insert the civil procedure and Federal Arb Act, that you are asking the court to consider in your motion.

Lodgement of Exhibts-Attach the Agreement and Letters Electing sent to Plaintiff

Proposed Order Granting MTC/SP

Order Granting MTC/SP

The proposed Order and Order should be indentical other than the word proposed in the title. These should be written as if you won your motion and the court is directing what you wanted done.

[skippy1960]

Based on the rule you copied, if you can pull the docs fairly quickly, you might be able to file with clerk and set hearing for same time as MSJ, hearing this way you have your pleadings in place, further the Plaintiff would have a chance to answer/oppose your motion and you could see how and what they might argue...

[lisser]

What does this mean, "They are motioning the court to ring you up, so use their format of documents filed."

[skippy1960]

Also Skippy, they have already filed a MSJ, the court date is set for Sept. 27th so I'm running short on time, very worried I've waited too long to ask for arb......

What does this mean, "They are motioning the court to ring you up, so use their format of documents filed."

Motions or moving the court is a fancy way of "asking the court to rule, make decision and order an action.

In the first quote you say they have filed for MSJ, Motion for Summary Judgement. You should have a stack of papers from the Plaintiff, if this is accurate that they filed with the court and sent you a copy. I was simply stating that use or follow a similar filing format and structure for you Motion to Compel Arbitration and Stay Proceeding.

Second one " ring you up" means winning their MSJ and winning a judgement, that will allow them to collect the money via means available in your jurisdiction.

Question is what documents did they send you regarding the MSJ, they would have to have supplied you with a copy of the Motion itself, Statement of Facts, Memo of Points and Authorities (document dealing with the law) and Evidence (exhibits) proving the MSJ. Should be a healthy stack of paper.

[lisser]

Yes, I have a healthy stack of papers in the MSJ. The motion says "comes now the plaintiff by and through counsel, and hereby moves this Court for Summary Judge for the relief sought in its complaint, as the Plaintiff is entitled to Judgement as a matter of law pursuant to Rule 56 of the Kentucky Rules of Civil Procedure. A memorandum in support of this is located below."

They go on to ask for $1962.10 plus acrued interest through August 11th in the amount of $449.52 plus interest at the rate of 23.100% per annum plus court costs, and for reasonable attorney fees in the amount of $295.

The brief cites a ton of ky court cases such as "Steelvest, Inc. vs Scansteel Service Center, inc (1991), Paintsville Hospital Co. v Rose (1986) something about the moving party must show that the adverse party cannot prevail under any circumstances and must convince the court by evidence of record. Citing another case, Bonded Elevator v first national bank of Louisville, on and on citing KY cases.

Then they go on to say that rule 36.01 provides request for admissions and I was served on June 23rd with them and I didn't answer and since I didn't answer they are deemed admitted. I sent them my own list of admissions and they never answered mine, still haven't.

Then there is the "argument" that says the Plaintiff has shown that I've breached their contract and therefore is entitled to judgment against me. There is also a "certificate of service."

There is also an affidavit in support of attorney fees which I guess proves WWR is the attorney for the plaintiff.

I do not see anything labeled "Statement of Facts, Memo of Points and Authorities (document dealing with the law) and Evidence (exhibits) proving the MSJ."

I think I can draft the motion to dismiss or alternative stay but I need help citing other KY court cases in my memo of support. I'm not comfortable with this part. I don't know how to find cases to use to support my argument that my case should be dismissed and compeled in to arbitration.

[nobk4me]

Google can help you find case law. The following is the result of the search "motion to compel arbitration kentucky"

http://www.google.com/search?hl=en&q=motion+to+compel+arbitration+kentucky&aq=f&aqi=&aql=&oq=&gs_rfai=

You will have to read thru the cases, as not all of them may be applicable to your situation.

[lisser]

Thanks nobk!

I'm gonna pm you what I've typed up so far as far as my motion and my brief in support. I've been working on it all day but I feel like I haven't gotten very far.

I also called WWR today with recorder in hand and the secretary pulled up my case, asked to put me on hold, came back on the line and said everyone was at lunch and could I please leave a message for the attorney's legal assistant. I said sure, she put me through and I left a detailed message with my phone number asking them to call me back. I have it all recorded. Let's see if they call me back today, either way I'm filing my motion on Monday if I can get it completed.

[skippy1960]

Yes, I have a healthy stack of papers in the MSJ. The motion says "comes now the plaintiff by and through counsel, and hereby moves this Court for Summary Judge for the relief sought in its complaint, as the Plaintiff is entitled to Judgement as a matter of law pursuant to Rule 56 of the Kentucky Rules of Civil Procedure. A memorandum in support of this is located below."

This is what I was talking about follow their form on how to start and finish a motion in your state. " Comes now the Defendant and hereby moves this court to Compel Arbitration and Stay Proceedings, as Defendant is entitled as a matter of law pursuant to Rule XX of the KRCP. Further the Cardmember Agreement between the Plaintiff and Defendendant is clear........

The brief cites a ton of ky court cases such as "Steelvest, Inc. vs Scansteel Service Center, inc (1991), Paintsville Hospital Co. v Rose (1986) something about the moving party must show that the adverse party cannot prevail under any circumstances and must convince the court by evidence of record. Citing another case, Bonded Elevator v first national bank of Louisville, on and on citing KY cases.

This information is considered Points and Authorities where I am from and is sometimes included in a seperate filing, appears not be neccesary in your state which is good. Use the link to search for some case law, bearing in mind that most of the time folks are trying to get out of arbitration not into arbitration. So should find case law, but remember you will be taking the Banks side of the argument. Finally, case law is nice to have but if your RCP are clear, and the Cardmember agreement is strong, you can get away with out in my state.

Then they go on to say that rule 36.01 provides request for admissions and I was served on June 23rd with them and I didn't answer and since I didn't answer they are deemed admitted. I sent them my own list of admissions and they never answered mine, still haven't.

Earlier I stated at first chance to speak at hearing you bring up your motion still holds true, this is the first thing that comes from your mouth in court! "Your honor I have a motion that needs to be dealt with prior to MSJ, due to it questions the jurisdiction of this court...."

Then there is the "argument" that says the Plaintiff has shown that I've breached their contract and therefore is entitled to judgment against me. There is also a "certificate of service."

You should make this same argument, sent letter requesting arbitration, no response from plaintiff they are in breach of the contract they are suing under

I do not see anything labeled "Statement of Facts, Memo of Points and Authorities (document dealing with the law) and Evidence (exhibits) proving the MSJ."

I am suprised they didn't attach any monthly statements showing charges

I think I can draft the motion to dismiss or alternative stay but I need help citing other KY court cases in my memo of support. I'm not comfortable with this part. I don't know how to find cases to use to support my argument that my case should be dismissed and compeled in to arbitration.

My personal opinion everyone wants to ask for dissmisal, check the KCRP that you are basing your argument on if it says dismissal then use it, otherwise it is real long shot. Better to look like you know what you are doing than asking for something the law doesn't offer. Or put it as an option at the end of your motion, 1. stay, 2. dissmisal, 3. any other relief court deems appropriate.

Worst case scenario you loose this motion, immediately ask for continuence to respond to MSJ. Ask for 60 days so if they only give 30 you have time to respond. Responding to MSJ is alot of work and you will want some time...

You are doing great stay with it!!!

[lisser]

Thank you so much for all your support!

Even though I called WWR today and left a detailed message with my phone number no one ever called me back! I find that a little odd that they are trying to collect on a debt, I call them at 1pm today and no one ever calls me back? Hmmm.....scared maybe? Don't want to deal with me maybe??? Hmmmmm

Skippy, would you might if I PM'd you or I could put in this thread what I've typed up so far? I won't be able to do it until Monday though bc it's on my work pc, not on my home laptop.

[RebelLady]

lisser,

Please put it in this thread so we can all read it and learn from it...please, please, pretty please!! lol

RL

[skippy1960]

Yes, I have a healthy stack of papers in the MSJ. The motion says "comes now the plaintiff by and through counsel, and hereby moves this Court for Summary Judge for the relief sought in its complaint, as the Plaintiff is entitled to Judgement as a matter of law pursuant to Rule 56 of the Kentucky Rules of Civil Procedure. A memorandum in support of this is located below."

They go on to ask for $1962.10 plus acrued interest through August 11th in the amount of $449.52 plus interest at the rate of 23.100% per annum plus court costs, and for reasonable attorney fees in the amount of $295.

The brief cites a ton of ky court cases such as "Steelvest, Inc. vs Scansteel Service Center, inc (1991), Paintsville Hospital Co. v Rose (1986) something about the moving party must show that the adverse party cannot prevail under any circumstances and must convince the court by evidence of record. Citing another case, Bonded Elevator v first national bank of Louisville, on and on citing KY cases.

Then they go on to say that rule 36.01 provides request for admissions and I was served on June 23rd with them and I didn't answer and since I didn't answer they are deemed admitted. I sent them my own list of admissions and they never answered mine, still haven't.

Then there is the "argument" that says the Plaintiff has shown that I've breached their contract and therefore is entitled to judgment against me. There is also a "certificate of service."

There is also an affidavit in support of attorney fees which I guess proves WWR is the attorney for the plaintiff.

I do not see anything labeled "Statement of Facts, Memo of Points and Authorities (document dealing with the law) and Evidence (exhibits) proving the MSJ."

I think I can draft the motion to dismiss or alternative stay but I need help citing other KY court cases in my memo of support. I'm not comfortable with this part. I don't know how to find cases to use to support my argument that my case should be dismissed and compeled in to arbitration.

Thank you so much for all your support!

Even though I called WWR today and left a detailed message with my phone number no one ever called me back! I find that a little odd that they are trying to collect on a debt, I call them at 1pm today and no one ever calls me back? Hmmm.....scared maybe? Don't want to deal with me maybe??? Hmmmmm

Skippy, would you might if I PM'd you or I could put in this thread what I've typed up so far? I won't be able to do it until Monday though bc it's on my work pc, not on my home laptop.

Sent you PM with information relevant to your request.