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Still struggling with this line -


Linda7
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I'm still sick and just can't think! Will have to go lay down in a few minutes, but wanted to ask this so maybe will have the answer when I check back.

In this statement in a DV letter - "If there is an arbitration clause in the cardmember agreement, I elect arbitration to resolve all disputes between you and me."

Does that not open the door for them to say "no, there is no arbitration clause and then proceed to file suit"? Or is it that it is okay for them to ignore it or try and change it and then when they file suit, you pull out your version of the agreement and demand arbitration?

Sorry for my fuzzy thinking at the moment but would appreciate your help! I don't like having to make decisions when I can't think . . . :rolleyes:

Or would it be better to just say "if this proves to be my debt, I elect arbitration."

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Hey Linda, it's me again.

You are WAY overanalyzing this.

Let's break it down anyway. We'll start with the second one:

"if this proves to be my debt, I elect arbitration" - This will not preserve any arbitration rights. The court case is the "proof" = proves that the debt is yours. They are not required to prove the debt before filing a lawsuit, so again this will not protect your arbitration rights.

Let's look at the first one:

f there is an arbitration clause in the cardmember agreement, I elect arbitration to resolve all disputes between you and me. - This is the cleanest way short of filing the arbitration claim preemptively. If you notice the pattern of anyone who has tried to use arbitration against the CC or CA, NONE of them have agreed willingly to go along. They fight every step of the way. (My personal experience also) So be electing there is still room later to waive the right to arbitration if you decide it is not for you. (I am sure the CC or CA will be glad to allow you to waive your right to private arbitration)

So including the line - f there is an arbitration clause in the cardmember agreement, I elect arbitration to resolve all disputes between you and me , you are making yourself a harder target with the option to later waive your right to elect.

Here is the final most important part of why it doesn't matter that you elect now, or waive later. If you withdraw your demand, the forums, JAMS and AAA will not accept the CC initiation without your acceptance to arbitrate because of the debacle with NAF. If you send a letter rescinding your election to arbitrate if you change your mind, neither of the forums are likely to allow them to file against you.

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Also remember that electing arbitration outside of the courts does nothing. So it's pretty useless in a DV letter. If you're being sued, the right way to invoke is to submit a motion to dismiss based on the fact you are electing arbitration.

I thought the point in electing arbitration "before" a suit is filed shows them that you choose arbitration over court and best of all . . . if they ignore your choice of arbitration before a suit is filed, yet go ahead and file anyway - then they are in violation. Is that not correct or have I missed something?

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While I inheritantly do believe in the necessity to get arbitration on the table as soon as possible if you even remotely think you may want to go this route

I struggle with the exact wording of how to do this without admitting the debt.

Yes, it is very true you have demanded for a debt to be validated, which should have the effect of saying you do not believe it is yours until they show you irrefutable proof , the following.. Copied from Linda's post......

"If there is an arbitration clause in the cardmember agreement, I elect arbitration to resolve all disputes between you and me."

,,,, just says to me that I expect we will be disputing this.

Not to mention they will be providing a current cardmember agreement

that takes the arbitration option out.

So I am wording it this way as my final paragraph in my DV.

This is not my debt.... You have 30 days to validate what you say is allegedly mine. If you proceed beyond that I will elect arbitration pursuant

to the agreement that was in force at the time the Original Creditor suggested I allegedly defaulted on this account that is not mine.

Edited by donqII
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I believe that, "There's no arbitration clause in the cc agreement" argument has been tried already and it didn't get far considering the fact that the Defendant was standing before the judge with a copy of the cc agreement with the arbitration clause and the copywrite date both highlighted in yellow...lol

The burden of proof would lie with the Plaintiff. They would have to prove there's no arb clause in the contract they are enforcing. Hopefully, the Defendant was smart enough to take a copy of the cc agreement to court. Should the Plaintiff be able to provide an agreement that doesn't contain an arb clause and was in effect at the time this account was in default, I guess the judge would have to decide which agreement to allow. The problem that might occur here is if the cc agreement contains a Small Claims Court exclusion and the Plaintiff filed the claim in that court.

RL

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