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Loopholes in contracts for Plaintiff to avoid Arbitration.


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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 this week 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.

Please review the 3 BofA contracts that I have posted in the

"Agreements, Links to Find" section of the arbitation sticky on Debtor

Boards dot com and let me know what you think.

Thanks!

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See: Revised Uniform Arbitration Act (RUAA), New Mexico. The first state to adopt the RUAA was New Mexico. Its version of the act, signed into law on April 3, 2001, by then-Governor Gary E. Johnson, contains a provision added by state legislators barring language in an arbitration clause that denies parties' procedural rights. This amendment was added because of concerns that adhesion-contract language in arbitration clauses used in consumer contracts forces parties with lesser bargaining power to give up their rights.

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Note: For others who wish to review your state:

RUAA was approved, the following states have either adopted the act or introduced legislation to adopt it.

State Adoptions

•Alaska. Governor Frank Murkowski signed legislation adopting the RUAA on July 28, 2004, making Alaska the tenth state to adopt the act. Alaska's version differs from the model statute in three ways--it invalidates arbitration agreements incorporated into contracts that were entered into based on fraud; it exempts arbitration agreements in collective bargaining agreements; and it exempts arbitration agreements contained in labor-management contracts.

•Colorado. Colorado repealed its old Uniform Arbitration Act and enacted the RUAA with amendments on June 4, 2004. This state's version prohibits parties to an arbitration agreement from waiving certain provisions or agreeing to an unreasonable restriction of certain rights, and it specifies the procedures governing application for judicial relief. Colorado is the ninth state to pass the RUAA.

•Hawaii. On June 22, 2001, then-Governor Benjamin J. Cayetano signed into law a bill implementing the RUAA with no changes, making Hawaii the third state to pass the act. Francis J. Pavetti, chair of the RUAA drafting committee, praised Hawaii's decision to adopt the act in its entirety, saying it would greatly help the law's overall effectiveness.

•Nevada. The second state to adopt the RUAA was Nevada. Its version, signed into law by Governor Kenny Guinn on May 31, 2001, excludes the model statute's provision empowering arbitrators to award punitive damages. The insurance industry in the state had opposed the provision, arguing that it gave arbitrators too much power. Despite this change, a member of the RUAA drafting committee commended Nevada's adoption of the act, saying that removal of the provision on punitive damages did not hurt the uniformity of the law.

•New Jersey. This state's version of the RUAA specifically exempts arbitrations arising out of collective bargaining relationships. The amendment was added after former Governor James E. McGreevey conditionally vetoed the legislation because of concerns over provisions pertaining to discovery, punitive damages, and attorneys' fees that he believed might have the unintended effect of being applied in labor arbitration. McGreevey signed the amended bill into law on June 23, 2003, making New Jersey the sixth state to do so.

•New Mexico. The first state to adopt the RUAA was New Mexico. Its version of the act, signed into law on April 3, 2001, by then-Governor Gary E. Johnson, contains a provision added by state legislators barring language in an arbitration clause that denies parties' procedural rights. This amendment was added because of concerns that adhesion-contract language in arbitration clauses used in consumer contracts forces parties with lesser bargaining power to give up their rights.

•North Carolina. Governor Michael Easley signed a bill adopting the RUAA on July 27, 2003. North Carolina was the eighth state to do so.

•North Dakota. The fifth state to adopt the act, North Dakota passed a bill substantially similar to the model statute on April 8, 2003.

•Oklahoma. The most recent state to adopt the RUAA is Oklahoma. The state's governor, Brad Henry, on June 6 signed into law a bill that is largely similar to the model act but includes a "consumer-friendly" amendment designed to satisfy those concerned with the fairness of arbitration agreements in standard contracts that provides a way out for parties with unequal bargaining power.

•Oregon. Governor Theodore R. Kulongoski made Oregon the seventh state to pass the RUAA by signing into law a modified version on July 21, 2003. Oregon's law authorizes the courts to rule on all issues presented in a petition to compel arbitration unless there is a constitutional right to a jury trial on the issue. Kulongoski had raised concerns that this provision could be misinterpreted to allow a party to demand a jury trial on the merits of a dispute and avoid arbitration. Nevertheless, he signed the bill and expressed confidence that the courts are "likely to interpret the act in a way that is consistent with its purpose."

•Utah. Utah, the fourth state to adopt the RUAA, did so on March 26, 2002. The law took effect on May 15, 2003.

•Washington. Washington became the eleventh state to adopt the RUAA when its governor, Christine Gregoire, signed it into law this past May 13. Although it closely tracks the model statute, the Washington legislation specifically exempts labor contracts and cases governed by the state's mandatory arbitration law--civil cases involving monetary claims up to $35,000--from its provisions.

2005 Introductions - check with state for changes.

•Arizona. The state Senate Judiciary Committee unanimously approved SB 1343 in February 05. The proposed bill includes language meant to prevent arbitrators from awarding punitive damages, a change favored by the state's insurance industry.

•Maryland. The proposed bill (HB 1393) to enact the RUAA was given an unfavorable report by the House Judiciary Committee in March, effectively eliminating any chance of the bill's passage that year 05-06. Business groups opposed the bill because of a provision authorizing arbitrators to consolidate arbitration claims, which might lead to class actions in arbitration. Consumer groups and the Attorney General's Consumer Division were concerned that the bill might expand mandatory arbitration clauses in consumer contracts.

•Vermont. Lawmakers introduced HB 32 in January 05 to adopt the RUAA. The proposed bill, currently in the House Judiciary Committee, closely resembles the model statute.

In addition, the following jurisdictions have proposed legislation adopting the RUAA: Connecticut, Indiana, Iowa, Massachusetts, West Virginia, and District of Columbia.

The National Conference of Commissioners on Uniform State Laws approved the Uniform Mediation Act in August 2001 to replace a patchwork of state laws on mediation.

The UMA establishes a privilege of confidentiality for mediators and mediation participants that prohibits communications made during mediation from being used in later legal proceedings. The act also promotes the integrity of mediation by requiring disclosure of known conflicts of interest as well as the mediator's qualifications.

The UMA does not apply to collective bargaining disputes, some judicial settlement conferences, or mediation involving minor parties. It was approved by the American Bar Association and endorsed by the AAA, JAMS, and the CPR Institute for Dispute Resolution.

UMA State Adoptions

•Illinois. Illinois enacted the UMA on July 31, 2003, as the second state to adopt the act. The Illinois version includes an optional provision, offered on an ad hoc basis that doesn't affect the act's uniformity, that requires a mediator to be impartial in conducting the mediation process unless the parties agree otherwise after a mediator makes required disclosures.

•Iowa. After unanimous approval in both chambers of the legislature earlier in 2005, Governor Tom Vilsack signed the UMA into law on April 28, making Iowa the sixth state to do so. Iowa's legislation gives mediators immunity from civil action and expands the state's confidentiality laws to encompass written as well as oral communications and includes non-party mediation participants in the privilege.

•Nebraska. Nebraska was the first state to adopt the UMA. On May 13, 2003, then-Governor Mike Johanns signed into law a slightly modified version of the act that broadens the original's provision authorizing a party to bring a lawyer or other representative during mediation. The Nebraska law also has an optional provision establishing that a mediator must be impartial.

•New Jersey. Acting Governor Richard J. Codey signed a bill enacting the UMA on November 22, 2004, making that state the third to do so. Michael Getty, chair of the UMA drafting committee, praised New Jersey's legislature for approving a bill that closely resembles the model statute.

•Ohio. Governor Robert Taft signed the UMA into law on January 28, 2005, with a provision delaying its implementation for six months to give time for training and education on the new law's requirements. Under Ohio's version, a non-party may pierce the confidentiality of a previous mediation if a court or arbitrator, after conducting an in- camera hearing, determines that the information is not otherwise available and the disclosure is necessary to prevent a manifest injustice. Ohio's version also addresses concerns regarding the right of parties to bring legal representatives to mediations established by the UMA by authorizing mediators to withdraw at any time if they become uncomfortable with the participation of legal representatives at a mediation. The Buckeye State is the fourth state to implement the UMA.

•Washington. When Governor Christine Gregoire signed the legislation on April 22, Washington became the fifth state to adopt the UMA. Although it closely tracks the model statute, Washington's version exempts from the confidentiality privilege mediation materials from state open records laws and certain divorce settlement modifications in order to conform the act to state law.

The following jurisdictions introduced legislation to adopt the UMA in 2005: Connecticut, District of Columbia, Indiana, Massachusetts, Minnesota, and Vermont. Connecticut, Minnesota, and the District of Columbia incorporated the U.N. Model Law on International Commercial Conciliation into their proposed bills.

Edited by FL4answer58
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