Arbitration Case Law

[hikid]

To my fellow Hawaii people have no fear do not let these scum bags take advantage of you!

I had my first court date today I was served 2 weeks ago. Basically it was just an answer to the complaint filed by the JDB's lawyer. The options were "admit or deny" Always DENY!!!!

When you are served show up and fight the pukes!! Dont take it laying down DO NOT TAKE A SJ!!!! I heard name after name after name read out, about 17 out of 20 people no showed and got a SJ against them!! The other 2 people chose "admit" and gave up!! NEVER NEVER lay down for these sum! FIGHT BACK!!!!

I was reviewing my paper work and found that the JDB's lawyer violated FDCPA!!! From what I figure they totaled up about 6 violations so far Im going to ask the group what they think............ be strong FIGHT BACK!!!!!!

[FL4answer58]

Any news - ?

[admin]

I'll start here:

http://debt-consolidation-credit-repair-service.com/forums/showthread.php?t=259618

[FL4answer58]

FLORIDA Arbitration Law

When ruling on a motion to compel arbitration, under both the Federal Arbitration Act and Florida’s Arbitration Code, Raymond James Fin. Servs., Inc. v. Saldukas, 896 So. 2d 707, 711 (Fla. 2005). The trial court must decide three things:

(1) whether a valid written agreement to arbitrate exists;

(2) whether an arbitrable issue exists; and

(3) whether the right to arbitration was waived.

A party waived the right to seek arbitration. Hardin Int’l., Inc. v. Firepak, Inc., 567 So. 2d 1019, 1020-21 (Fla. 3d DCA 1990).

A party who actively participates in a lawsuit waives the right to arbitration. Doctors Assocs., Inc. v. Thomas, 898 So. 2d 159, 162 (Fla. 4th DCA 2005).

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).

A party may also be considered to have waived its right to arbitrate when it filed its Counterclaim in the underlying action. Owens & Minor Med., Inc. v. Innovative Marketing and Dist. Servcs., Inc., 711 So. 2d 176, 177 (Fla. 4th DCA 1998); Coral 97 Assocs., Ltd. v. Chino Elec., Co., 501 So. 2d 69, 70-71 (Fla. 3d DCA 1987).

If a party proceeds with discovery in the underlying action, which also constitutes a waiver of its right to arbitrate. Winter v. Arvida Corp., 404 So. 2d 829, 830 (Fla. 3d DCA 1981) (the court held that a party waived its right to arbitrate by filing an answer and proceeding with discovery before moving to dismiss for failure to arbitrate). , 408 So. 2d 229, 238 (Fla. 3d DCA 1981). See also Rolls v. Bliss & Nyitray, Inc.

FL-Carrollwoood Care Center, LLC, et al. v. Loly Jaramillo

FL-Carrollwood Care Center, LLC; Senior Health Management, LLC; Senior Health Management-Gold Coast, LLC; Dan Davis; Rick Knight; and Carla Russo (collectively appellants) appeal a nonfinal order denying their motion to compel arbitration in a civil action. Reversed on appeal.

Adrienne Curcio v. Sovereign Healthcare of Boynton Beach L.L.C. d/b/a Boynton Beach Nursing and Rehab Center . Plaintiff, Curcio, appeals the trial court’s order granting the defendant’s motion to compel arbitration a n d dismiss her lawsuit. Because the trial court failed to conduct an evidentiary hearing pursuant to section 682.03(1), Florida Statutes (2005), on plaintiff’s unconscionability challenge to the enforceability of the arbitration provision, we reverse.

Florida CHAPTER 682 ARBITRATION CODE

Section 682.04 Appointment of arbitrators by court.--If an agreement or provision for arbitration subject to this law provides a method for the appointment of arbitrators or an umpire, this method shall be followed. In the absence thereof, or if the agreed method fails or for any reason cannot be followed, or if an arbitrator or umpire who has been appointed fails to act and his or her successor has not been duly appointed, the court, on application of a party to such agreement or provision shall appoint one or more arbitrators or an umpire. An arbitrator or umpire so appointed shall have like powers as if named or provided for in the agreement or provision. *In FL the judge will usually grant MTC Arb with stay (6 months) and if not resolved (failed to act and/or AAA/JAMs refused) , remand back to court and decide in hearing. The court usually sends both sides out (into the hall) to settle Differences one last time and come to a 'meeting of the minds' - if not the judge will appoint a mediator of choice for both partys.

Section 682.03(1) states:

A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for a n order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue a n d , according to its determination, shall grant or deny the application.

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FLORIDA STATE LAWS [from 'sisflomi']

http://www.flsenate.gov/Statutes/ind...1&Tab=statutes

SOL

95.11 Limitations other than for the recovery of real property

http://www.flsenate.gov/Statutes/ind...095/Ch0095.HTM

Cause of Action

95.031 Computation of time

http://www.flsenate.gov/Statutes/ind...095/Sec031.HTM

State UCC

TITLE XXXIX COMMERCIAL RELATIONS Ch.668-688

http://www.flsenate.gov/Statutes/ind...XIX#TitleXXXIX

Paying won't automatically restart SOL

95.04 Promise to pay barred debt.--An acknowledgment of, or promise to pay, a debt barred by a statute of limitations must be in writing and signed by the person sought to be charged.

Credit Contracts

687.0304 Credit agreements

http://www.flsenate.gov/Statutes/ind...87/Sec0304.HTM

Florida FDCPA & FCRA

www.dbf.state.fl.us/licensing/ch559.html

Your Rights as a Debtor

http://www.flabar.org/tfbtemplates.n...d?OpenDocument

CA Liscense

www.dbf.state.fl.us/licensing/download.html

Liens

http://www.hidayricke.com/news/Artic...%2055%20FS.htm

Public Records

http://www.ccfcorp.dos.state.fl.us/c...jlinquiry.html

Court Process

www.phonl.com/fl_law/rules/frcp/frcp1.htm

__________________

Edited September 28, 2010 by FL4answer58

[FL4answer58]

Re: If Their attempting SJ or fighting MTC Arb

Options: Argument and Opinions for consideration: [Part 1]

(1) Uniform Arbitration Act Remove to Federal Court.

The Uniform Arbitration Act provides that a contractual agreement to arbitration is valid, enforceable, and irrevocable.

(2) Validity of Arbitration Clause

While Arbitration clause interpretation and validity in the US is not a settled legal matter. However, if the arbitration clause includes a provision which states that the arbitrator "shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability", the arbitrator decides the validity of the clause. See, SCOTUS case [Rent-A-Center, West, Inc. v. Jackson]. Interpretation of evidentiary provision in arbitration agreement should have been left to arbitrator. See, Scovill v. WSYX/ABC (6th Cir 10/06/2005). http://www.lawarbitration.net/

(3) No Summary Judgment with 'Controversy'

A motion for summary judgment is generally filed with supporting evidence without controversy. If that evidence includes a contract agreement, and the validity or interpretation of the agreement becomes part of summary judgment evidence then ‘material facts exist with substantial controversy’. When a contract agreement includes an Arbitration Clause that has not been established – thus controversy, no SJ. Review your RCP [summary Judgment]. See, Case Not Fully Adjudicated on Motion - the court on a hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall ascertain, if practicable, what material facts exist without substantial controversy. Also note, once it becomes a controversy of Jurisdiction, you have a stronger case for appeal.

(4) Inconsistencies Exist in the Language of the Contract

Once controversy exists, argue to the judge inconsistencies exist between an allegation in a pleading and an attached exhibit, such that the latter negates the former, the plain language of the attached document will control, and can be a basis for a substantive motion to dismiss. The language in attached contract agreement, permitting either party to exercise Arbitration, negates allegation in SJ complaint that one party (defendant) failed to invoke arbitration clause (or forfeited rights to Arbitration), warranting dismissal of the action. Striton Props., Inc. v. Jacksonville Beach, 533 So.2d 1174 (Fla. App. 1 Dist. 1988).

(5) Use The ‘Plain Language’ of the Arbitration Clause

The plain language of the Arbitration Clause in the contract agreement reads;

“Starting An Arbitration: You or we can give written notice of a intention to begin arbitration of a Claim or Claims or to require arbitration of the other party’s Claim or Claims. This notice can be given by one party even if the other party has begun a lawsuit.”

The plain language of the Arbitration Clause requires an SJ motion state with particularity how ‘the defendant failed to invoke arbitration clause’ and the grounds upon which it is based and the substantial matters of law. ‘The key is in the definition or interpretation of ‘language’ in the arbitration clause. The language may differ from agreement to agreement but are comparable and many times identical.

(6) MTC Is Not Time Bared

All that has been established is that ‘one party has begun a law suit’ and notice has been given to require Arbitration of the other partys Claim. The fact that a party participated in defensive pleadings, has no legal grounds upon which to claim defendant ‘failed to invoke Arbitration’ when no contractual SOL exists in the language of the Arb Clause. The failure to execute RCP [rules] may or may not exist for example: if the defendant does not file an answer before pretrial. The validity of the Arbitration Clause itself may be grounds to challenge (file), but the MTC is not time bared in its self. The language and definition ‘begun’ [a lawsuit], is vague and NOT a quantifiable definition as it was used in the context of the agreement. The contractual agreement did not define a SOL on ‘begin’ or ‘begun’. Pretrial conferences may be remanded to hearings when genuine issues of material fact exists, as to the terms or agreements of a contract. See, Mora v. Abraham Chevrolet (Florida Ct App 09/21/2005).

(7) Pretrial Discovery Not Undisputed Material Fact or Burdensome

The argument of unnecessary delay and expense is not supported by statute or an ‘undisputed material fact’. Pre-trial discovery is necessary and not a ‘burden’ or delay. Pre-trial identifies the cause of action. See, First City Developments of Florida, Inc. v. The Hallmark of Hollywood Condo. a$$'n, 545 So. 2d 502 (Fla. 4th DCA 1989). And , First Health Care Corp. v. Hamilton, 740 So. 2d 1189, 193 (Fla. 4th DCA 1999).

Edited October 13, 2010 by FL4answer58

[FL4answer58]

Re: If Their attempting SJ or fighting MTC Arb

Options: Argument and Opinions for consideration: [Part 2]

(8) Appeal - Summary Judgment Verdict

In an alternative, a party may file an appeal. Look at ‘Conley’ Pro Se filing as an example for effective process and argument(s) for an appeal: On appeal, Conley asserts that the trial court erred in granting summary judgment. See, Retail Recovery Service of NJ, Plaintiff-Appellee, v. Teresa A. Conley, Defendant-Appellant. No. 10-09-15. Court of Appeals of Ohio, Third District, Mercer County. Date of Decision: March 29, 2010.

The moving party may add additional assignment of error on appeals: The ‘Conley’ appeal did not deal with Arbitration controversies.

ARBITRATION; THE LOWER COURT ERRED IN DISREGARDING THE CARDHOLDER AGREEMENT OR TERMS AND CONDITIONS GOVERNING THE ALLEGED ACCOUNT. *Note: Review case law in your State or Circuit to reverse or remand argument(s) for appeal.

Appeals based on filing of motions are important. IF THE MOTION IS UNTIMELY. EVEN IF GRANTED, THE ORDER WILL BE REVERSED. IF DENIED MORE THAN 20 DAYS FROM NOW, THERE WILL BE NO WAY TO APPEAL BECAUSE THAT MOTION DID NOT EXTEND YOUR TIME TO APPEAL! Pay attention to the difference between deadlines for "service" and "filing" of pleadings.

Note ‘abuse of discretion’: misunderstanding the deference accorded trial court rulings and the dual standard derived from “gross abuse of descretion’. See: In Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980).

(9) Motion to Disqualify Judge on Bias or Prejudice

Motions to Disqualify Judges for Bias or Prejudice. Unless the judge is related to the Plaintiff, or is listed as a witness, the only real grounds for seeking disqualification are bias or prejudice. Before trying to disqualify any judge, read and re-read your Rules of Judicial Administration, entitled DISQUALIFICATION OF TRIAL JUDGES. Keep in mind the ’10 day rule. See, Pinnacle Ins. Co. v. Freeman, 687 So. 2d 989 (Fla. 5th DCA 1997).

Note: Some judges sometimes get so annoyed with Pro Se litigants (and lawyers) that they threaten them or demean them to the point of demonstrating prejudice. See, e.g., Olszewska v. Ferro, 590 So. 2d 11 (Fla. 3d DCA 1991). If your MTC was denied, you may feel compelled to delicately conduct a sort of mini voir dire of the judge in such a case to ask if the judge has some axe to grind. First, stay clam and understand that the judge may not assess the truth of the allegations in your motion. See Nathanson v. Nathanson, 693 So. 2d 1061 (Fla. 4th DCA. 1997) A Judge must rule on the legal sufficiency of a motion to disqualify without passing on its truth or falsity, and without permitting a third party to offer testimony or explanations of the judge's conduct. If the judge takes issue with the content of the motion, that alone is grounds for disqualification. Leveritt & Assocs., P.A. v. Williamson, 698 So. 2d 1316 (Fla. 2d DCA 1997) Where the trial court improperly reviewed and attempted to rebut the factual allegations contained in petitioner's motion to disqualify, this established sufficient grounds for the trial's court disqualification. Kielbania v. Jasberg, 744 So. 2d 1027 (Fla. 4th DCA 1997) Judge, who interjected comments that verged on argument with counsel during a hearing. The judge, did not follow the directives of Fla. R. Jud. Admin. 2.160(f),

(9) (A) “The Judge has a boss.” Review Canons of Judicial Conduct

I will repost here for clarification.

OP: “Judge was on the way to MSJ and deny our MTC Arb. Would not even give us a hearing. We prepared to file a complaint against judge, but opted to call the Chief Judge (designated chief administrator of County judges) and talked to his clerk. I was asked to send a Email or letter [case number] and details. The residing judge was called on the case.....a hearing was set.......MTC Arb granted in hearing but with stay”. In this case the judge 'turned' very consumer friendly after reported Canon violations of judicial conduct but pointed the finger to 'clerical' errors by staff in her office and promised an investigation. Take the emotions out of the complaint - just state the facts. You’re not suing a judge - you’re asking for a clarification and correction. Give the judge room for maneuvering - address your issues to purpose the opposition - the plaintiffs! The judge will find the necessary means. As for a grudge - from my perspective that judge may well end up our best advocate.

The Law on Recusal of a Judge

Federal law requires the automatic disqualification of a Federal judge under certain circumstances. In 1994, the U.S. Supreme Court held that "Disqualification is required if an objective observer would entertain reasonable questions about the judge's impartiality. If a judge's attitude or state of mind leads a detached observer to conclude that a fair and impartial hearing is unlikely, the judge must be disqualified." [Emphasis added]. Liteky v. U.S. , 114 S.Ct. 1147, 1162 (1994). Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S.Ct. 2194 (1988) United States v. Balistrieri, 779 F.2d 1191 (7th Cir. 1985). Taylor v. O'Grady, 888 F.2d 1189 (7th Cir. 1989). Pfizer Inc. v. Lord, 456 F.2d 532 (8th Cir. 1972).

(10) Amendments to Pleadings to Defeat Summary Judgment–Never Too Late!

It is never too late to amend your complaint or another pleading in order to defeat a motion for summary judgment. No case cites; I only cited FRCP Rule 1.190. [Your state may be the same). The judge may not grant it on the day of SJ hearing, but you set the motion for reverse on appeal by including; Leave to amend should be freely given when justice so requires, Fla. R. Civ. P. 1.190(a), the more so when a party seeks such a privilege at or before a hearing on a motion for summary judgment." Old Republic Ins. Co. v. Wilson, 449 So. 2d 421, 422 (Fla. 3d DCA 1984)(emphasis added in language of your amendment).

Check your complaint before the hearing on a Plaintiffs motion for summary judgment (even a day before), to see if there is affirmative defense you could have pled to the cause of action but did not. Did the JDB lawyer, for example, move for SJ on a Breach of Contract you could avoid by pleading ‘Failure to Pursue Alternative Dispute Resolution’ or “Failure of Condition Precedent’, in your Reply?

(11) Motion for Reconsideration

While the rules of civil procedure themselves do not authorize motions for rehearing directed to nonfinal orders, a trial court does have the inherent authority to reconsider and alter or retract such orders prior to the entry of final judgment. Review your states RCP’s. A motion directed to a nonfinal order is actually a "motion for reconsideration" based upon this inherent and discretionary authority of the trial court; (emphasis added) on differences between reconsideration and rehearing. Be aware of the basis for reconsideration--as well as its effect on any subsequent appeal--from the case law. See, http://findarticles.com/p/articles/mi_hb6367/is_6_83/ai_n31945803/

(12) Motion to Vacate Summary Judgment

A motion to vacate judgment refers to a request that is filed before the court that entered the judgment to dismiss the judgment. Law prescribes specific time line and grounds for filing such motions. There are state specific laws on the subject which vary from state to state.

(12) (a)Initiate Arbitration (then Claim Damages).

If you have a claim against them, i.e. FDCPA violation, then initiate only on your claim and let them bring their claim as the RESPONDENTS. That way you are not suing yourself. Send Plaintiff CMRR letter that you have initiated. No further explanation. Request they pay as per the Arb clause - if so in language of the clause. Pay your small fee as required. Copy and 'notice' the court as required.

[Opinion8]

I look at it this way, if these "Lawyers" want to go to court, I'm gonna make them do the work to get there!!!! DENY DENY DENY!!! WAY TO GO GUYS, KEEP UP THE GOOD WORK!

[caribbean73]

Has anyone had a situation where you served the oc or ca and they didn't appear? Or how about the credit bureaus?

[Unique1991]

Ok so should I initste arbitration if I wasn’t served?