What am I missing?

[dimon]

hey guys, was in court today. Attorney say no problem with arbitration...so now new court date set in 2 month...is it possible to finish arbitration within this time frame, or am I missing somehting? what this date is set for?

Thanks in advance

[Guest usctrojanalum]

most likely a status conference.

[nobk4me]

My understanding is arb conducted by AAA or JAMS (and, that is what you asked for, right?) will take much longer than 2 months. Perhaps the court date is to see if arb has been initiated?

[FL4answer58]

hey guys, was in court today. Attorney say no problem with arbitration...so now new court date set in 2 month...is it possible to finish arbitration within this time frame, or am I missing somehting? what this date is set for?

Thanks in advance

In 2 months - remind him he said no problem.

[skippy1960]

To really answer your question you need to offer a bit more detail to the conversation. NoBK is correct, if you just said " I request arbitration" you may end up in court ADR. If you said " I request arbitration based on the card agreement for one of the private forums listed" no way that will be done in 2 months.

I would fire off a letter today CMRR, that memoralizes the conversation in court. Might look something like this-

I am please you have aggreed to resolve our differences using one of the arbitration forums listed in the card agreement, my preference would be XXXXXX, but since you will be initiating the claim you may not agree. As the initiator it is your choice.

Good Luck

[dimon]

thanks guys, yes I asked for JAMS, and it is in the motion...on the court website, it is stating "continuence open"...I thought that the case should be stoped when arb. is electing? Also, the lawer told me that I will be hearing from her office.

[dimon]

To really answer your question you need to offer a bit more detail to the conversation. NoBK is correct, if you just said " I request arbitration" you may end up in court ADR. If you said " I request arbitration based on the card agreement for one of the private forums listed" no way that will be done in 2 months.

I would fire off a letter today CMRR, that memoralizes the conversation in court. Might look something like this-

I am please you have aggreed to resolve our differences using one of the arbitration forums listed in the card agreement, my preference would be XXXXXX, but since you will be initiating the claim you may not agree. As the initiator it is your choice.

Good Luck

Ok, I will try...I am sued by the local bank with really good track of papers, and plus account is brnad new...for about 10K or so...after few thoughts I decided to go through the arb route...it was a trial setting yesterday, and after agree about the account belongs to me, decided to arbitrate...so based on the card agreement we are now arb...after all, they set the date in 2 months and that what I am trying to understand what for.

[FL4answer58]

...it was a trial setting yesterday, and after agree about the account belongs to me, decided to arbitrate...

If you admitted on account, what was your basis for Arbitration?

What are your affirmative defenses and/or strategy for settlement?

[Guest usctrojanalum]

If you admitted on account, what was your basis for Arbitration?

You have to admit the account is yours or you are not entitled to arbitration. A smart attorney/judge will say well if the account is not yours you never signed the contract or agreed to its terms therefore you do not have standing to arbitrate this claim. Then if the account truly is not yours this should be easily defeatable in that trial court infront of that judge at that time where no fact issues remain. Only the issue of whether the account belongs to you or not.

[FL4answer58]

You have to admit the account is yours or you are not entitled to arbitration. A smart attorney/judge will say well if the account is not yours you never signed the contract or agreed to its terms therefore you do not have standing to arbitrate this claim. Then if the account truly is not yours this should be easily defeatable in that trial court infront of that judge at that time where no fact issues remain. Only the issue of whether the account belongs to you or not.

Negative, you do not have to admit to account for Arbitration.

The courts are not interested in the argument of the case once you move to dismiss and elect Arbitration - no further litigation is required.

What you and 'dimon' are missing is THE point - You have not admitted or denied - and are NOT requried to do so.

Review Arbitration. You have removed from the court based on the introduced exhibit in the plaintiffs complaint.

For example: See the post titled: MT DAYS AT COURT.

http://www.debt-consolidation-credit-repair-service.com/forums/archive/index.php/t-302289.html

"My attorney felt that there should not have been a Pre-Trial. He was expecting that since he filed a motion to dismiss that the pre-trial would be skipped and the hearing for the motion would be scheduled.

Well, it appears that didn't go accordingly. Everything on my case file seemed last minute with the clerk. Just yesterday a hearing date was posted for our motion, the day before my pre-trial.

At any rate, I showed up for my pre-trial early, it took a while before we were allowed to enter the court room, there were a large group of "first appearances" for criminal cases before us.

Finally, about an hour after the actual scheduled court time, we entered.

We waited for the judge for around twenty minutes, were told to rise, etc.

Now, it was my turn. I was the only one with an attorney so the judge heard my case first. She dialed Zakheim & Associates via the conference machine-thing. The judge informed the attorney that I was present with my attorney. There was a pause. I don't think they are used to litigants bringing attorneys, well surprise.

The judge then asked my counsel if I admitted or denied to the debt. He interjected and said, " you honor, before we go further, I have filed a motion to dismiss and spoke to your assistant yesterday, which she said we had a new date scheduled for july, to hear the motion. "

To my surprise, the judge was well-aware of the hearing date and responded. " I understand the hearing is now scheduled, I was hoping that the plaintiff would save us all some time and handle this today. " She then asked the Zakheim attorney, " Did you receive the motion. " , the Plaintiff responded " Yes, we just received it a day or so ago and haven't had time to review it. "

The judge stated strongly " This seems pretty simple to me. The agreement does appear to have an arbitration clause in it. There really isn't much point in wasting the courts time. ".

Zakheim & Associates said they needed time to review the motion. The judge said to us " Well, it looks like there's nothing we can do today, hopefully you can handle it with Zakheim sooner and save us the hearing ".

The Zakheim attorney seemed angry in her tone and very surprised.

Without admitting or denying to the debt we now left the court room."

-------------------------------------------------

I have employed these same RCPs in court AND requested [not initiated] Arbitration with this same exact success (as many others have here) in court ALMOST word for word.

I'd like to add one other point - I do not recommend Arbitration as the end all beat all situation for consumer litigation in the Pro Se arena - on the contrary - I favor the courts in strategy and appeals. I merely use Arbitration as a tool to provide justice against judicial prejudices and abusive debt collectors like JDBs.

Edited September 18, 2010 by FL4answer58
sp

[RebelLady]

You have to admit the account is yours or you are not entitled to arbitration. A smart attorney/judge will say well if the account is not yours you never signed the contract or agreed to its terms therefore you do not have standing to arbitrate this claim. Then if the account truly is not yours this should be easily defeatable in that trial court infront of that judge at that time where no fact issues remain. Only the issue of whether the account belongs to you or not.

That still doesn't change the fact that, whether this account is mine or not, an arbitration clause exists. And that's what we're arbitrating. They still have to prove this account is mine...whether they prove that in court or whether they have to prove that through arbitration. The fact is...if I claim the account, the attorney and I are in complete agreement and there IS no dispute to be settled...in court or in arbitration.

The fact is, no matter who this account belongs to, the contract I am being sued over includes an arbitration clause and I choose to exercise it. That IS the dispute that I want settled...whether or not this account is mine. There is no other dispute on the table. They say it is...I say it isn't. That's a dispute and ALL disputes must be settled through binding arbitration (according to the contract the attorney is trying to enforce)...no matter who the account belongs to.

I can read and stand on the abitration clause contained in the contract the attorney is trying to enforce in court whether or not I claim the account. It is still the attorney's responsibility to prove his claim whether in arbitration or in court.

RL

Edited September 18, 2010 by RebelLady

[FL4answer58]

Delete - oops!

Edited September 19, 2010 by FL4answer58

[FL4answer58]

I decided to go through the arb route...we are now arb...set the date in 2 months and that ... I am trying to understand [is] what for.

??

Agree with skippy1960 - fire off that letter and find out.

Edited September 18, 2010 by FL4answer58

[dimon]

That's lots of information...so now, we are all agree on arbitration...BUT what is going to happen in 2 days, I still can take jugement and apeal in curcuit court...but they say no problem with arbitration and therefore now I am trying to find out what is going to take place in 2 months?

thanks

[FL4answer58]

That's lots of information...so now, we are all agree on arbitration...BUT what is going to happen in 2 days, I still can take jugement and apeal in curcuit court...but they say no problem with arbitration and therefore now I am trying to find out what is going to take place in 2 months?

thanks

Have you given consideration to skippy1960 idea of sending a letter ASAP CMRR, that memoralizes the conversation in court, to find out what happens in 2 months?.

[dimon]

no I did not...however I stated who I choose in the motion...it was JAMS...can they just change it on me, and what is court ADR? I plan to use arbitration as a tool to drag it as long as possible and make sure it is not easy for them

[FL4answer58]

what is court ADR? I plan to use arbitration as a tool

FIRST --> "Alternative dispute resolution, or ADR, is an umbrella term used to describe a variety of methods for resolving disputes outside of traditional methods such as litigation." What state did you say you are in?

you may end up in court ADR.

SKIP WAS RIGHT from the get go! - your most likely in the wrong forum. Tricky Atty!

IMPORTANT: Call the court and ask if this is courts mediation - as I expect it is - and not your choice or alternate Arbitration resolution with JAMS.

I know you said you selected JAMs....I would just confirm with the clerk of the court or anyone else that will advise in the courts 'resource' center.

Edited September 19, 2010 by FL4answer58

[RebelLady]

"What does all that mean – we agree? You lost me…"

FL4answer58,

Sorry...I was trying to explain to usctrojanalum in simple terms why one doesn't have to, and, in fact, would be stupid to, claim a debt in order to exercise arbitration.

You and I do seem to agree. My response was to someone else but it was still nice that you responded

The fact is...if a person DID have to acknowledge a debt in order to exercise arbitration, a smart lawyer/judge would probably say something along the lines of, "Okay...he says you owe the debt and you say you owe the debt. So why are we here?" lol

Thanks for responding and sorry for the misunderstanding...

RL

[Guest usctrojanalum]

That still doesn't change the fact that, whether this account is mine or not, an arbitration clause exists. And that's what we're arbitrating. They still have to prove this account is mine...whether they prove that in court or whether they have to prove that through arbitration. The fact is...if I claim the account, the attorney and I are in complete agreement and there IS no dispute to be settled...in court or in arbitration.

The fact is, no matter who this account belongs to, the contract I am being sued over includes an arbitration clause and I choose to exercise it. That IS the dispute that I want settled...whether or not this account is mine. There is no other dispute on the table. They say it is...I say it isn't. That's a dispute and ALL disputes must be settled through binding arbitration (according to the contract the attorney is trying to enforce)...no matter who the account belongs to.

I can read and stand on the abitration clause contained in the contract the attorney is trying to enforce in court whether or not I claim the account. It is still the attorney's responsibility to prove his claim whether in arbitration or in court.

RL

If you are claiming not to be a party to the contract, you are not entitled to any of the rights under the contract, period. We have had this discussion literally a million times on this board and people have shared their experiences of an adversary attorney using this argument against them in Court and the judge buying this argument.

Nascar was the first to bring this up about 8 months or so'ish ago and all of the resident lawyers itf agreed with him.

[FL4answer58]

If you are claiming not to be a party to the contract, you are not entitled to any of the rights under the contract, period. We have had this discussion literally a million times on this board and people have shared their experiences of an adversary attorney using this argument against them in Court and the judge buying this argument.

Nascar was the first to bring this up about 8 months or so'ish ago and all of the resident lawyers itf agreed with him.

Not to speak for another - NASCAR or res lawyers - but I think you may have misunderstood the milieu of their message.

And I believe your original statement was:

You have to admit the account is yours or you are not entitled to arbitration.

Not the statement you just posted under change:

If you are claiming not to be a party to the contract, you are not entitled to any of the rights under the contract,

Could you cite these posts for my own reading and clarification? I don't want to direct further discussion that could be detrimental to those who may read additional posts if made [sic] in error or predisposition on this matter. Please PM me for courtesy and I will post any warranted corrections. And if not would you grant me the same courtesy?

.

.

.

Edited September 19, 2010 by FL4answer58

[skippy1960]

If you are claiming not to be a party to the contract, you are not entitled to any of the rights under the contract, period. We have had this discussion literally a million times on this board and people have shared their experiences of an adversary attorney using this argument against them in Court and the judge buying this argument.

Nascar was the first to bring this up about 8 months or so'ish ago and all of the resident lawyers itf agreed with him.

I have no law degree but here is what is happening in the reality of folks electing arbitration and MTC or MTS, based on being sued in courts across the country.

1. Suit is filed.

2. Some answering the suit with denials and affirmative defenses. (as in my case personally), then filing MTC or MTS for arbitration.

3. Some are not answering and MTC or MTS for arbitration.

4. Courts are granting these MTC and MTS for arbitration across the country in different states, some with plaintiff needing to initiate claim and some with consumer needing to initiate claim.

So this means that Judges in different counties across the country, aren't buying your assertion that I have to admit to the debt or underlying contract of which the plaintiff has to prove at some point in the process.

If this is such a bad deal why is that all the plaintiffs fight tooth and nail to stay out of arbitration? You would think if this was a bad deal for consumers plaintiff's all over the country would be falling all overthemselves to get to arbitration and take the easy win!

I would say that it would be more useful and helpful for the attornys on this board, to layout in detail what the issues are with this strategy in a lengthy post. Or on the flip side spend a bit of brain power and try to help us with additional ideas to support the strategy, now that would be novel approach.

[RebelLady]

If you are claiming not to be a party to the contract, you are not entitled to any of the rights under the contract, period.

Arbitration is not a right. Arbitration is an obligation imposed on the person seeking to enforce the terms and conditions of the contract. One of the terms and conditions of the contract is that ALL disputes (not agreements but disputes) [may, can, shall, or will] be decided by arbitration.

I would not be claiming a right. I would be asking the one attempting to enforce a contract to abide by the terms and conditions stated in the contract he/she is attempting to enforce.

RL

Edited September 19, 2010 by RebelLady

[FL4answer58]

In a MTC Arbitration method you are not admitting or denying the contractual agreement, you are not arguing material facts of the contract.

You’re simply applying Rules of Civil Procedure and basic 101 pleading to remove to jurisdiction of your choice.

Yes its a slight of hand or ‘misdirection’ but it's all a part of - the art of litigation.

With your indulgence I will break it down...the arguments.

Or in the alternative: additional ideas to support the strategy, a novel approach. Thanks Skip

While, I am not an Attorney ...... these are conventional and commonly used legal methods

based on Rules of Civil Procedure, Federal Regulations and Cases with published opinions (some SCOTUS).

Keep in mind, the great part of all this - is - these options may be exercised with or without Arbitration,

with or without Summary Judgment…a trial court abstract if you will, for Pro Se debate.

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -

Titled 'Their Fighting MTC Arb with SJ - Your Options'

Options: Argument and Opinions for consideration:

**The text that I have entered is too long for this post here(12117 characters). Requested I shorten to 10000 characters but I can not, it is unfortunately to long to post in its entirety.

So for the benefit of those that may wish to review you'll have to go ....

HERE --> http://www.debtorboards.com/index.php/topic,12215.0.html

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My oplogies to Admin and with her understanding and permission.

Edited September 19, 2010 by FL4answer58
sp

[dimon]

so no matter what, I should stay on the fact that I choose the JAMS and will arbitrate through them only? also, I am still trying to figure out what the deal with 2 month court date is...is it the thing that they try to do ADR thing...the rules says I can elect between JAMS and the other one? so if they say they take me to ADR, I still can say that JAMS is my choice? I am in TN and here is another question I have...after the small claims granted a judgement I can simply apeal to circuit court with no problem, and it is entirely new case...so I want to know if they push through the process here and get the judgement in general sessions, can I still apeal to circuit court or that will not be possible for me to do?

[willingtocope]

I suspect the new court appearance in two months implies that the judge and / or lawyer does not know about the CC clause for arb...or know that for some reason. it may not apply in this case. I tend tp think yhe new date may be for an ADR hearing. You should probably call the clerk and ask for calrification....