B of A agreements and Arbitration

[tjabq]

I have recently acquired three B of A agreements,

(2003 with JAMS, 2004 with AAA, 2006 with NAF) and I have some issues

with some of the language and my ability to be able to use them for electing arbitration for my case.

Here is my situation.

I was sued by CACH, LLC in Oct. 2009.

They allege a B of A account that was created in 2005 and charged off

in 2007 for around $9000.

The case has fortunately been delayed and was

referred to the Court Arbitration program

that thankfully has not taken place.

I did not include in my answer anything about

private contractual arbitration, but hope to if my two motions are

granted thus returning the case back to the docket and away from

the Court Arbitration Program.

I have two motions to be heard in less than 2 weeks that are,

motion to excuse the court arbitrator for judicial conduct violation ,

(the arbitrator had an improper ex-parte communication with me over the

phone discussing the issues of the case and indicated a bias in favor of the

plaintiff. the phone call was only to discuss scheduling issues),

and a motion to remove referral from court arbitration.

My goal is to be able to amend my answer to include lack of subject matter

jurisdiction and elect an arbitration clause from one of these agreements.

Here are the issues I have with the agreements

1. I don't think I can use the 2003 and 2004 agreements as the alleged

date of creation is 2005.

2. The contracts all have amendment provisions and there is no survivability

provisions for the arbitration clauses.

3. There is a sentence in the arbitration clause that says

" Arbitration may be selected at any time unless a judgement has

been rendered or the other party would suffer substantial prejudice

by the delay in demanding arbitration".

4. 2003 and 2004 Agreements state that all costs of the arbitration may be

recovered by the prevailing party unless the arbitrator decides other wise.

5. '03' and '04' agreements use choice of law provision for Arizona and

Federal Law, 2006 uses Delaware. Arizona SOL is 3 years for open

accounts and I am not sure what the Delaware is, I think 3 years also.

So SOL may be a good defense to add to amended answer

as in my state, NM, SOL is 4 years.

Can I use these choice of law provisions? looks like the

3 year time frame is almost here (end of NOV, 2010).

6. The 06 provision uses NAF but stipulates that if NAF not available, they

will choose an alternative forum.

So here are my concerns, It seems that there are many loopholes

for the plaintiff to avoid election of arbitration.

Please if someone could give an educated opinion and case law

or personal experience on this matter.

If I am able, I will attach all 3 agreements for review and if not,

PM me and I will email copies!

Thanks!

[cjb3]

i have a 1 page amendment dated CV05.

it states AAA or equivelant if AAA doesnt take it....i dont see anything about specific state laws.

also says they will advance fees if they initate.

pm me an email addy and i will scan it for ya.

[FL4answer58]

The case has fortunately been delayed and was referred to the Court Arbitration program that thankfully has not taken place.

So this is court appointed ADR not Arb. You have two motions (1) motion to excuse the court arbitrator for judicial conduct violation, (the arbitrator had an improper ex-parte communication with me over the phone discussing the issues of the case and indicated a bias in favor of the plaintiff. the phone call was only to discuss scheduling issues), and (2) motion to remove referral from court arbitration. “My goal is elect an arbitration clause from one of these agreements.”

" Arbitration may be selected at any time unless a judgment has been rendered or the other party would suffer substantial prejudice by the delay in demanding arbitration".

The statement would apply to ‘judgment’ - its seems, based on the language, Arbitration may be selected at any time unless a judgment. Expect the other party to argue against your MTC – they would suffer substantial prejudice by the delay in demanding arbitration. You have some defenses to counter this – more on that later.

On your motion 1 - I would think you could argue defendant may 'suffer substantial prejudice' from ADR and request for ARB change.

On motion (2) need more info

First -- > Before you determine what agreement; 2003 and 2004 Agreements – costs, choice of law provision v. the 06 provision. what state did you reside when alleged card issued, last used and jurisdiction suit filed in.

Q: What was the last date of use on alleged card.

What state did you reside in the time when alleged card issued

What state did you reside in at the time of lawsuit.

What does claim indicate on these dates, issued, last use CO,

..venue and/or jurisdiction.

Edited September 28, 2010 by FL4answer58

[tjabq]

Q: What was the last date of use on alleged card. -last alleged payment date 08/2007

What state did you reside in the time when alleged card issued-NM

What state did you reside in at the time of lawsuit.-NM

What does claim indicate on these dates, issued, last use CO, -allegedly issued 4/2005, alleged charge off 11/2007

..venue and/or jurisdiction. - NM.

Edited September 28, 2010 by tjabq

[tjabq]

Expect the other party to argue against your MTC – they would suffer substantial prejudice by the delay in demanding arbitration. You have some defenses to counter this – more on that later.

So, what defenses to that issue?

[FL4answer58]

Expect the other party to argue against your MTC – they would suffer substantial prejudice by the delay in demanding arbitration. You have some defenses to counter this – more on that later.

So, what defenses to that issue?

Review; http://www.nmcompcomm.us/nmcases/nmca/slips/CA28,314.pdf

DISCUSSION

“We apply a de novo standard of review [from a lower] court’s denial of a motion to compel arbitration.” Cordova v. World Fin. Corp. of N.M., 2009-NMSC-021, ¶ 11, 146 N.M. 256, 208 P.3d 901; Medina v. Holguin, 2008-NMCA-161, ¶ 7, 145 N.M. 303, 197 P.3d 1085. The question of whether a valid contract to arbitrate a dispute exists is a question of contract law. DeArmond v. Halliburton Energy Servs., Inc., 2003-NMCA-148, ¶ 9, 134 N.M. 630, 81 P.3d 573. The party attempting to compel arbitration carries the burden of demonstrating a valid arbitration agreement. See id.; Flores v. Evergreen at San Diego, LLC, 55 Cal. Rptr. 3d 823, 826 (Ct. App. 2007); Goliger v. AMS Props., Inc., 19 Cal. Rptr. 3d 819, 820 (Ct. App. 2004).

The Federal Arbitration Act

Admission agreement specifies that “the Agreement is subject to the Federal Arbitration Act [FAA] regarding dispute resolution[,]” and both parties agree that the FAA governs the arbitration agreement. On appeal, Defendants assert that the district court’s oral statements made while denying the motion to compel arbitration evidences reasoning that “implies that a contractual agreement to arbitrate is entitled to more careful scrutiny under the [Act].” Specifically, Defendants quote the district court’s statement: “And while our case law, like all states’ case law, includes a strong belief in enforcing agreements to arbitrate, I think it’s a completely different matter when we’re

talking about waiving the right to trial.” Defendants correctly note that the FAA does not allow for special scrutiny to be applied to arbitration agreements. See 9 U.S.C. § 2 (2006) (“A written provision . . . to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” (emphasis added)); Fiser v. Dell Computer Corp., 2008-NMSC-046, ¶ 23, 144 N.M. 464, 188 P.3d 1215 (stating that the FAA only requires that arbitration agreements be placed on “the same footing as other contracts” (internal quotation marks and citation omitted))..

See also a case Calawyer brought up.

New Mexico Court Honors Texas Choice-of-Law Provision in Upholding Arbitration Agreement. http://www.adrforum.com/adr_CaseDetails.aspx?caseid=1114

In Fiser v. Dell Computer Corp., No. 25,862, 2007 WL 2197515 (N.M. Ct. App. Apr. 30, 2007), Fiser bought a Dell computer over the Internet. Several months after delivery of the computer, Fiser filed a class action lawsuit against Dell, alleging that the computer contained less memory than advertised.

Dell moved to compel arbitration pursuant to the terms and conditions of the sale. In opposing the motion, Fiser argued that he never agreed to arbitrate and that even if he had, the arbitration agreement was unconscionable and therefore unenforceable. The trial court granted the motion to compel arbitration.

I would also read this case - on your JAMSs selection due to NAF demise.

Brief by Supreme Court of NM.

http://www.publicjusticeusa.org/Repository/Files/Rivera-Brief_082610.pdf

I think you may be stuck with the NM (your choice law provision) the 06 agreement.

Edited September 28, 2010 by FL4answer58

[tjabq]

If I use the 2006 agreement, NAF is named and if the Plaintiff is required to initiate, NAF will not accept and Plaintiff has to choose another forum, but if not listed in the arbitration agreement as a forum choice, JAMS and AAA will not accept the case so which forum would the Plaintiff be able to choose? What about if I have to initiate? NAF would probably take my case if I had violations against JDB right?

Edited September 28, 2010 by tjabq

[FL4answer58]

What about the issue of having to amend my answer to include the affirmative defense of Lack of Subject Matter Jurisdiction because of the existence of an arbitration clause?

I did not include this in my first answer and would I need to amend in order to motion to compel arbitration?

Yes - assuming your states RCPs are the same as Florida. If you do not include in answer, your state may consider a 'waiver is deemed to have occurred'.

"Where a party defends on the merits by answering the complaint without demanding arbitration, a waiver is deemed to have occurred. Marine Envtl. Partners, Inc. v. Johnson, 863 So. 2d 423, 427 (Fla. 4th DCA 2003)."

While many states allow amendments to affirmative defenses - some RCPs will not allow you to amend, to include - 'trial by jury' and 'Arbitration' - once you have participated in and asked the court for leave in discovery.

I believe this is discussed and NM law noted in one of the cases cited in previous post.

Edited September 28, 2010 by FL4answer58

[tjabq]

Here is NM Civil Procudure for this very issue!

http://www.conwaygreene.com/nmsu/lpext.dll/nmsa1978/25563/25587/25673/256b6?f=templates&fn=document-frame.htm&2.0

[FL4answer58]

B. How presented. Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:

(1) lack of jurisdiction over the subject matter;

No defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, he may assert at the trial any defense in law or fact to that claim for relief.

Waiver or preservation of certain defenses.

(1) A defense of lack of jurisdiction over the person, improper venue, insufficiency of process or insufficiency of service of process is waived:

(a) if omitted from a motion in the circumstances described in Paragraph G of this rule; or

( if it is neither made by motion under this rule nor included in a responsive pleading or an amendment thereof permitted by Rule 1-015 NMRA to be made as a matter of course.

(2) A defense of failure to state a claim upon which relief can be granted, a defense of failure to join a party indispensable under Rule 1-019 NMRA and an objection of failure to state a legal defense to a claim may be made in any pleading permitted or ordered under Rule 1-007 NMRA, or by motion for judgment on the pleadings, or at the trial on the merits.

(3) Whenever it appears by suggestions of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.

You have a means, ... on your choice law provision - it looks like NM will be your rule.

[tjabq]

So this means I don't have to neccesarily amend my answer but can in fact submit the motion,

and the court must dismiss the action for lack of subject matter jurisdiction!

I am still not clear about defending against the plaintiff using the claim that arbitrating would cause them prejudice by causing delay in arbitration?

[FL4answer58]

So this means I don't have to neccesarily amend my answer but can in fact submit the motion,

and the court must dismiss the action for lack of subject matter jurisdiction!

I am still not clear about defending against the plaintiff using the claim that arbitrating would cause them prejudice by causing delay in arbitration?

I would amend answer anyways -

DO NOT ELECT ARB - Just recognize the Arb Clause in alleged agreement.

I'm not sure why you feel you should MTC Arb?

Have you looked at this from a trial court perpsective?

Sued by CACV, LLC aka CACH, LLC ("Collect America") A known junk debt buyer. They allege account that was charged off in 2007.

In this type of case - without knowing your complete situation -

'hands down' prefer the court first - have it dismissed. They will in all probabilty have very little evidence to support, SOL, Assignment, Contract and Bill of Sale. How many assignments since then?

How did this get into ADR in the first place?

Edited September 28, 2010 by FL4answer58

[Massive]

So this means I don't have to neccesarily amend my answer but can in fact submit the motion,

and the court must dismiss the action for lack of subject matter jurisdiction!

I am still not clear about defending against the plaintiff using the claim that arbitrating would cause them prejudice by causing delay in arbitration?

I'm with FL4answer58, why not just beat them in court. They don't have any evidence of authenticated ownership of YOUR Bank of America Account. No need to mess with Arbitration.

[tjabq]

The reason why I do not want this to go forward in court is that if I proceed through court, the MO of this JDB is to start the discovery process! that would surely not give me the arbitration option later as I would waive my election of private arbitration right by acknowledging the Court's jurisdiction! Sure I could do the discovery properly but why waste all that time? And risk my Private arbitration option?

Did you win in court?

No way for you to know how the judge will rule in my case!

Plus I am not going to risk a summary judgement! I have no faith in the court being impartial and I don't want to gamble based on your presumtion that the JDB doesn't have a valid argument the judge would not listen to.

Private arbitration takes it out of the court and if the JDB does want to proceed with the private arbitration, the private forum is much more consumer friendly, especially after the NAF debaucle! And it is likely because of the enormous costs to JDB in private arbitration , they will dismiss and leave me alone!

Edited September 28, 2010 by tjabq

[admin]

The court system is way more impartial than arbitration. Arbiters can rule based on their "best judgment", don't have to take into account established laws or past case law.

[FL4answer58]

The court system is way more impartial than arbitration. Arbiters can rule based on their "best judgment", don't have to take into account established laws or past case law.

That's three for - go get em in court!

Did you win in court?

...YES! Edited September 30, 2010 by FL4answer58

[nobk4me]

Well, here's my take on this. I was sued by the JDB mentioned above. In their complaint, they attached a BofA cardmember agreement (with arb clause), a credit card statement, and an affidavit, allegedly from a BofA bank officer, laying out everything they would need to win the case. The affidavit was probably a forgery, but the burden would be on me to prove that. And given my experience in that pro-creditor court, I was willing to try the arb strategy.

The case is now stayed pending arb. And has been for almost 10 months now. A stay beats losing on SJ anyday.

[tjabq]

The court system is way more impartial than arbitration. Arbiters can rule based on their "best judgment", don't have to take into account established laws or past case law.

here are some posts from the "other site" that contradicts this statement and I believe this is more prevailant than the administrator would like to admit!

"The comment is true".

However, I would add...judges regularly do the same thing. Talk to any attorney with litigation experience".

"Happens all the time...I just had a Judge completely disregard the law and instead base her decision upon her "Feelings"....This, after I advised her on the record that she had made a mistake, and exceeded her authority....I briefly indicated to her what she was allowed to impose under the law...Now this Judge with 20+ years on the bench responds with: "Well, I've never heard of that". So I read her the law, handed her the law, and after she stated on the record: I would like to thank you for bringing this to the courts attention, and "you are in fact correct"...She says: "However, I FEEL"...I responded with: Judge, while I can certainly appreciate your "Feelings", I've instructed the court on the law...This made the Baliff chuckle, but guess what, I lost!! Now sure we can appeal and win 100% but who's gonna pay for that"?

"Regards"...

So, those of you that want to stick it out in court, good luck! I just had one case stayed and I was the only one that motioned for arbitration to this particular JDB, everyone else on the docket were all LOSING even when they showed up to court!

Edited September 28, 2010 by tjabq

[RebelLady]

Well, here's my take on this. I was sued by the JDB mentioned above. In their complaint, they attached a BofA cardmember agreement (with arb clause), a credit card statement, and an affidavit, allegedly from a BofA bank officer, laying out everything they would need to win the case. The affidavit was probably a forgery, but the burden would be on me to prove that. And given my experience in that pro-creditor court, I was willing to try the arb strategy.

The case is now stayed pending arb. And has been for almost 10 months now. A stay beats losing on SJ anyday.

I'd be willing to bet the affidavit, allegedly from a BoA bank officer looks just like the one CACH, LLC sent me...funny how that happens. We need a sticky on here giving names of affiants so we can all compare notes.

RL

[FL4answer58]

I'd be willing to bet the affidavit, allegedly from a BoA bank officer looks just like the one CACH, LLC sent me...funny how that happens. We need a sticky on here giving names of affiants so we can all compare notes.

RL

Now that's a good idea, ...

On comparison I've found some helpful stuff by researching names.

Affidavits sworn and signed on a Sunday, Affiant sworn signature, in person at office in local while their facebook has them on vacation, ... to be 3000 miles on same day etc.

or

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

Martha Kunkle is Dead

by Sam Glover on May 26, 2010

This is old-ish news, but I just got wind of it. Debt buyers and prolific lawsuit-filers CACV and Portfolio Recovery Associates, together with debt collection law firm Johnson, Rodenberg & Lauinger, were supporting their lawsuits with affidavits of Martha Kunkle. Apparently, an employee of Washington Mutual Bank (now bankrupt) told others to sign Martha Kunkle’s names to those affidavits.

The problem was that Martha Kunkle died fifteen years ago, in 1995.

The defendants settled for over one million dollars.

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

Its always good to research the signer on the affidavit, ...

you will find other cases with same name from same CA whereby the a defendant as filed motion to strike and/or CA appealed on affidavit after defendants SJ confirmed.

All helpful to see what they will argue in support after you strike on hearsay.

Note: Many (Defendant) SJs based on striking Affidavit are overturned on argument later in appeal by CA - If your SJ is not a strong brief, ...if you don't cross every 'T' and dot every 'I' , ...it may well open the door to be overturned.

"Evidence is "substantial" if it is of "such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved" West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989). This court must review the record in the light most favorable to the nonmovant and must resolve all reasonable doubt against the movant. Hanners v. Balfour Guthrie, Inc., 564 So. 2d 412 (Ala. 1990)."

Below are several legal precedents (legal decisions) that may cite as objections, and/or motions or briefs that you may help in the course of defending your arguement in court on affidavits.

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

"A witness cannot “testify” by regurgitating the content of business records that a witness has reviewed when the witness has not seen or heard the events in question. Such regurgitation is hearsay, plain and simple." Wahad v. Federal Bureau of Investigation, 179 F.R.D. 429, 438 (S.D.N.Y 1998); In re McLemore, 2004 Ohio 680, 2004 Ohio App. LEXIS 591, *P9 (Ohio App. 2004); Nebraska v. Ward, 510 N.W.2d 320, 324 (Neb. App. 1993)..

In Unifund CCR Partners v. Cavender, No. 2007-CC-3040, 14 Fla.L.

Weekly Supp. 975b (Orange Cty. July 20, 2007), the court held that a debt buyer “assignment” that does not refer to specific accounts does not establish ownership by the plaintiff, nor is testimony based on a computer screen sufficient.

National Check Bureau v. Ruth, No. 24241, 2009 Ohio 4171 (Ct. App., 9th Dist., Aug. 19, 2009) (document referring to transfer of accounts on Exhibit 1, without Exhibit 1, not sufficient to “prove the assignment”).

A good case (from the debtor’s perspective) involving debt buyer affidavits

is Luke v. Unifund CCR Partners, No. 2-06-444-CV, 2007 Tex.App. LEXIS 7096 (2nd Dist. Ft. Worth Aug. 31, 2007).

Edited September 29, 2010 by FL4answer58

[FL4answer58]

Expect the other party to argue against your MTC – they would suffer substantial prejudice by the delay in demanding arbitration. You have some defenses to counter this – more on that later.

So, what defenses to that issue?

Go here 

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?p=1077563#post1077563

[cjb3]

How did this get into ADR in the first place?

Attorney's always file "civil precedings/arbitration", for $132, here in NM