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Arbitration is Out, now what to do in Court?


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Elected Arb a month or so after I was served (March) and the opposing attorney agreed. But I never filed arb papers because of the news about JAMS declining waivers (I can't afford the fee at all).

Never heard anything from the plaintiff until a few weeks ago. Interogs, Admissions,etc. I thought about objecting to them because I had elected arbitration, but it won't get me anywhere because without the fee paid on my part, I'll never get into JAMS.

So, I'm wondering how exactly to proceed from here since I'm sure they'll go for summary judgement as soon as they get my responses to their discovery. I have to send the responses within the next couple of days...

Also, do I file my responses with the court?

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Elected Arb a month or so after I was served (March) and the opposing attorney agreed. But I never filed arb papers because of the news about JAMS declining waivers (I can't afford the fee at all).

Never heard anything from the plaintiff until a few weeks ago. Interogs, Admissions,etc. I thought about objecting to them because I had elected arbitration, but it won't get me anywhere because without the fee paid on my part, I'll never get into JAMS.

So, I'm wondering how exactly to proceed from here since I'm sure they'll go for summary judgement as soon as they get my responses to their discovery. I have to send the responses within the next couple of days...

Also, do I file my responses with the court?

What agreement do you have ?

Date of CO on crdit report?

Last payment or SOL on alleged debt?

Is this OC or JDB?

What does the order say from court after your Arb agreement with debt collector?

What is your case history indicate - did you have a hearing, did you appear before the court - what was discussed in court?

When heard from the plaintiff recently - what did it say - motion? notice? hearing? what is next?

Will talk fees after all this, ...

Edited by FL4answer58
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Thank you for the responses. I apologize for the minimal info. Result of little sleep I suppose.

I’m in Georgia.

This is the gist of my court case:

  • Served in March. (this is a JDB)
  • Answered about 2 weeks later.
  • Elected Arbitration.
  • Prepared JAMS paperwork and mailed copies to plaintiff and lawyer.
  • Received “acknowledgement” outside of court via letter from opposing counsel.
  • Began seeing news about JAMS refusing to accept waivers outside of California. (As a result, I never filed with JAMS)
  • Complete silence from June through Beginning of September.
  • Received discovery from Plaintiff second week of September.
  • At no time have I been in court, received notice of trial dates, pre-trial dates, motions, etc. I’ve received no court orders.
  • I’m still within the SOL according to GA. Charge-off was early 09 I believe.

Link to my original post:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=301035

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Thank you for the responses. I apologize for the minimal info. Result of little sleep I suppose.

I’m in Georgia.

This is the gist of my court case:

  • Served in March. (this is a JDB)
  • Answered about 2 weeks later.
  • Elected Arbitration.
  • Prepared JAMS paperwork and mailed copies to plaintiff and lawyer.
  • Received “acknowledgement” outside of court via letter from opposing counsel.
  • Began seeing news about JAMS refusing to accept waivers outside of California. (As a result, I never filed with JAMS)
  • Complete silence from June through Beginning of September.
  • Received discovery from Plaintiff second week of September.
  • At no time have I been in court, received notice of trial dates, pre-trial dates, motions, etc. I’ve received no court orders.
  • I’m still within the SOL according to GA. Charge-off was early 09 I believe.

Link to my original post:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=301035

I don't know much about arbitration but I thought the Plaintiff paid for it. But you have to have a copy of a contract infront of you. I doubt if JDB has one.

Sounds to me like they have a way to go before they get a judgement. sounds like you still time to file your own discovery. Ask for the at least the following.

1. Account #

2. Itemized transactions wish total amount being sued for

3. Proof they own the contract.

4. Contract/Agreement (at least ARB should be in thier).

You still have rights and can put up a defense, get your discovery going

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I don't know much about arbitration but I thought the Plaintiff paid for it. But you have to have a copy of a contract infront of you. I doubt if JDB has one.

Sounds to me like they have a way to go before they get a judgement. sounds like you still time to file your own discovery. Ask for the at least the following.

1. Account #

2. Itemized transactions wish total amount being sued for

3. Proof they own the contract.

4. Contract/Agreement (at least ARB should be in thier).

You still have rights and can put up a defense, get your discovery going

I do have a copy of that contract and I know I could demand the other side pay fees but Cap1 is the OC and they don't play ball well.

I'm trying to figure out how to respond to these "first" interrogatories, admissions and the notice to produce documents. As I said, I was all prepared to just object to each until I thought it through a bit more.

So, I'll put together my own discovery and send it to them. Do lawyers ever respond to these?

Thank you for your help!

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I'm trying to figure out how to respond to these "first" interrogatories, admissions and the notice to produce documents. As I said, I was all prepared to just object to each until I thought it through a bit more.

So, I'll put together my own discovery and send it to them. Do lawyers ever respond to these?

Thank you for your help!

Go to your courthouse law library and read up on the rules, as good as the advice is here you still need to make sure you understand the Georgia rules. You need to know things like Georgia limits interrogatories to 50. You will also be able to find out which responses are acceptable.

Look for a book called Davis and Shulman's GA practice and procedure to get you started.

Good luck,

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I do have a copy of that contract and I know I could demand the other side pay fees but Cap1 is the OC and they don't play ball well.

I'm trying to figure out how to respond to these "first" interrogatories, admissions and the notice to produce documents. As I said, I was all prepared to just object to each until I thought it through a bit more.

So, I'll put together my own discovery and send it to them. Do lawyers ever respond to these?

Thank you for your help!

They SHOULD have to respond, but like the poster above me said, YOU HAVE TO GET A BOOK ON GEORGIA LAW, or read the rules. NOLO "might" have a book for your state, they have one for my state "CALIFORNIA" and it served as a guide and filled the gaps on what this board couldn't address (the members here are beyond AWESOME, but they can't do EVERYTHING for me, I have to take some responsibility). I'm not try to be hard on you, sorry if my post came off that way, all I'm saying is to get some info on CIVIL PROCEDURE and defending yourself for your state: It sounds like you still have time.

Also post the questions that the plaintiff asked you, members will help you answer: If it was me:

Step 1) Post the questions proposed by Plaintiff in discovery

Step 2) Get a book from NOLO or ask members for a good book on defending yourself in Georgia

Step 3) Start putting together some discovery, post it on this board and ask memebers for help.

You have a chance to defend yourself. You don't want to be in a situation where you said, ".... I should have done ???? ", when they put a judgement on your Credit Report and you have to hide your bank accounts and job so they won't garnish wages, liens on home, car, etc.

You still have a good chance. Go for it.

Edited by ADSOFT
typo
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I don't see that arb is out. You could file a Motion to Compel arbitration. Insist that the plaintiff initiate. After all, they are the ones with the claim against you. Why should you have to initiate the arbitration?

If the court compels them to initiate arb, it won't matter that Cap One doesn't want to play nice. They will have to comply with a court order.

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Go ahead and file the arbitration and request the waiver. As soon as JAMS notifies you that they have received it, motion to compel arbitration, state that on information and belief that under the terms of the contract plaintiff must pay all costs associated with arbitration and ask for an order compeling them to pay up.

You can get a copy of the 2008 Cap1 contrct here:

http://rapidshare.com/files/416527146/CAP1-1_merged.pdf

It says if you are denied a waiver, they have to pay. Also when you file your claim with JAMS, hit them with FDCPA violations for continuing in court, as you waived their right to court when you elected. That puts them on the hook to have to pay you and will make them think a bit about going any further.

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I apologize in advance for typos and bad grammar. I'm in a state as I need to file these tomorrow.

Request for Admission of Facts

1. You applied for and received a cc card account no xxxxxxxxxxxxxxx from the Plaintiff

2. You made purchases or receive cash advances using the credit card, leaving a net unpaid balance on the account of blah blah blah

3. When you applied for the cc card, you agreed to make at least the min payment due every month of the indebtedness owing by you on the cc

4. You received the cc agreement attached to the Plaintiff’s complaint, you understood its terms and condition and you agreed to abide by the terms and conditions imposed thereby (I received nothing attached)

5. You made at least the minimum monthly payments owing on the cc account for a period of time

6. You ceased making the min monthly payments on the cc

7. You materially breached the terms and conditions of the cc agreement leaving you in material default on the cc agreement

8. You have refused to pay the principal balance due Plaintiff on the cc

9. You owe the Plaintiff the current past due principal balance of xxxx.xx

10. You owe to Plaintiff interest on the past due balance of xx.xx

11. You owe to Plaintiff contractual attorney’s fees on the unpaid principal balance in the amount of $.00. (I changed nothing here. That’s really the amount)

12. You are legally and financially responsible to the Plaintiff for the indebtedness owing on the cc

13. You have benefitted, either directly or indirectly from eh use of the cc

14. You have no been released from liability by the Plaintiff for this debt

15. You did not dispute any of the charges within 60 days of their appearance monthly statement as required by your agreement

16. There is no legal or factual basis to support any defense claim or contention asserted by you in your Answer

17. You do not have any documents that support your contention that the amount claimed due in the Complaint is incorrect

18. You do not have any legal or factual basis for your contention that a different amount is owned than that claimed by the Plaintiff

19. You have no defense to this lawsuit

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Request for Production of Documents

1. Produce copies of any and all correspondence which in any way pertain to this action sent to or received form Plaintiff

2. Produce copies of any and all documents signed by you and/or the Plaintiff pertaining to this action

3. Produce copies of any and all documents deemed by you to constitute a contract or agreement between the parties

4. Produce copies of any and all checks or other forms of payment used to make payments on the underlying contact either made by you or made by any other party on your behalf

5. produce copies of any and all documents that would support that you disputed the charges within 60 days of their appearance on your monthly statement as required by your cardholder agreement.

6. Produce copies of any and all documents that you assert would support a denial of any Request for Admission of Fact that you deny

7. Produce copies of any and all documents that would support any defense, claim or contention asserted by you in your Answer

8. Produce copies of any and all documents that support your contention that the amount claimed by Plaintiff is incorrect

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1st Interrogatories

1. state with factuality particularity the basis for your denial of each allegation in the complaint that you deny

2. Identify all documents that you assert constitute the contractual agreements between the parties

3. Identify the umber of payments and amount of every payment made toward the underlying contract by you or made by any other party on your behalf.

4. Identify all documents and/or correspondence either sent to or received from the Plaintiff or any of its agents or predecessors in interest relevant to this matter

5. Identify all person whom you content have knowledge of the facts which evidence or tend to support the denials, assertions and allegations as set forth in your Answer, stating for each such person his or her name, address, telephone number and provided a brief statement of facts as to which each such person has knowledge

6. Identify all documents by title and date which you contend evidence or tend to support the denials, assertions and allegation as set forth in your answer and provide the name, address and telephone number of the current custodian for each such document

7. State with factual particularity the basis for your denial of any request for admission of fact that you deny

8. State with factually particularity any charges you disputed within days of their appearance on your monthly statement the basis of any such dispute and identify all documents that support any such dispute

9. State the amount you contend you owe Plaintiff and describe how you calculated that amount

10. Identify all documents or other tangible things which you believe prove support or constitute evidence of any fact or circumstance supporting defendant’s answer

11. State each and every fact upon which you based you denial of the indebtedness claimed owed by Plaintiff

Edited by Bohem80
typos
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Go ahead and file the arbitration and request the waiver. As soon as JAMS notifies you that they have received it, motion to compel arbitration, state that on information and belief that under the terms of the contract plaintiff must pay all costs associated with arbitration and ask for an order compeling them to pay up.

You can get a copy of the 2008 Cap1 contrct here:

http://rapidshare.com/files/416527146/CAP1-1_merged.pdf

It says if you are denied a waiver, they have to pay. Also when you file your claim with JAMS, hit them with FDCPA violations for continuing in court, as you waived their right to court when you elected. That puts them on the hook to have to pay you and will make them think a bit about going any further.

Thank you KentWA. I never noticed that about the waiver. I'd been playing around with the idea of just sending the JAMS paperwork anyway!

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Elected Arb a month or so after I was served (March) and the opposing attorney agreed. But I never filed arb papers because of the news about JAMS declining waivers (I can't afford the fee at all).

Never heard anything from the plaintiff until a few weeks ago. Interogs, Admissions,etc. I thought about objecting to them because I had elected arbitration, but it won't get me anywhere because without the fee paid on my part, I'll never get into JAMS.

So, I'm wondering how exactly to proceed from here since I'm sure they'll go for summary judgement as soon as they get my responses to their discovery. I have to send the responses within the next couple of days...

Also, do I file my responses with the court?

I am in the camp with the others regarding arb, it is alive and well the the court says you are out of luck. I think you file MTC next week, only you know what the "other side agreed" means. My motion would cover a couple of points-

1. Other side agreed and I have been waiting for them to file.

2. They renig and send discovery trying to litigate after they agreed they lost the right to do so.

You still have life in arbitrtation a hell of lot more than you will have fighting SJ. The longer you wait to file MTC the bigger the danger in losing the right to arbitrate.

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I am in the camp with the others regarding arb, it is alive and well the the court says you are out of luck. I think you file MTC next week, only you know what the "other side agreed" means. My motion would cover a couple of points-

1. Other side agreed and I have been waiting for them to file.

2. They renig and send discovery trying to litigate after they agreed they lost the right to do so.

You still have life in arbitrtation a hell of lot more than you will have fighting SJ. The longer you wait to file MTC the bigger the danger in losing the right to arbitrate.

Agree - prep your argument [oral and formal] include RCP's and state case laws on Arbitration to support.

Argue [consideration of the issue] by pointing out that Congress enacted the Arbitration Act to ensure that the courts uphold privately made agreements to arbitrate. See Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 105 S.Ct. 1238, 1242, 84 L.Ed.2d 158 (1985); see also K.L. House Constr. Co. v. City of Albuquerque, 91 N.M. 492, 576 P.2d 752, 753-54 (1978); Greenfield, supra, at 73.

Contracts to arbitrate are not to be undermined by allowing one party to ignore the contract and resort to the courts. See Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 856, 79 L.Ed.2d 1 (1984).

Edited by FL4answer58
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