tjabq Posted October 1, 2010 Report Share Posted October 1, 2010 I had a motion hearing today concerning the excusal of the court arbitrator and a motion to withdraw the referral to the Court Annexed Arbitration. Today I filed my Motion to Dismiss for Lack of Subject Matter Jurisdiction, Or, in the alternative, Motion to Stay Pending Private Arbitration.Here is what happened...I was there on time and the scum JDB Lawyer showed up 5 minutes late and the Judge gave her a big smile!Plaintiff lawyer did not have any objections to the first 2 motions but of course did with the stay for arbitration motion. Of course I had just filed this motion and the judge reminded me that the plaintiff's counsel had to have time to respond in a brief. but the JDB Lawyer did say some things that I have read about on these boards in response to the claim of my right to private arbitration as noted in the arbitration agreement of the B of A contract with JAMS.The dumb lawyer tried to say that because they purchased the account from B of A, that they were not bound by the arbitration clause! (She did say she had a contract with an arbitration clause too but I don't know if it is the same one I submitted) And then she said that she did not know why I would want private arbitration because it would be so expensive for me! I retorted to the judge that lawyer's remarks were untrue as the contract states that all assigns and successors are bound by an agreement to which they claim to have purchased an account thereof. And that the arbitration fees if initiated by me would only be $250.00 and if initiated by the Plaintiff, they would bear the brunt of the cost!The Judge commented that because she saw the lawyer smiling as I was saying this that she did not disagree!Anyway, because the scum lawyer needs the opportunnity to respond to this motion in a brief before the judge can rule, the judge did offer this, that if she determines the validity of the arbitration clause she will order it to private arbitration and if not she will re-appoint a new court arbitrator for the Court Arbitration Program! And no further hearing on this matter is needed.This is my second court appearance ever concerning this type of case and I felt I fumbled a bit when I was explaining my point of view, I guess I didn't go into enough detail because as the judge was listening to me and I finished, she just stared at me! what the ?I hate the courts sometimes, It felt like the good ole boys court or good ole girls as the judge and the scum lawyer were both women! any comments? Link to comment Share on other sites More sharing options...
FL4answer58 Posted October 1, 2010 Report Share Posted October 1, 2010 Did you 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). Link to comment Share on other sites More sharing options...
FL4answer58 Posted October 1, 2010 Report Share Posted October 1, 2010 The dumb lawyer tried to say that because they purchased the account from B of A, that they were not bound by the arbitration clause! Make them prove the 'partial' assignment. MTS the assignment!And if true - and they admit - MTD they only have 'judicial' rights in assignment. You exercised Arb clause attached to their claim - Assignment claims they can not join in your preferred jurisdiction - MTD - established Law. Link to comment Share on other sites More sharing options...
RebelLady Posted October 1, 2010 Report Share Posted October 1, 2010 This is my second court appearance ever concerning this type of case and I felt I fumbled a bit when I was explaining my point of view, I guess I didn't go into enough detail because as the judge was listening to me and I finished, she just stared at me! what the ?I hate the courts sometimes, It felt like the good ole boys court or good ole girls as the judge and the scum lawyer were both women! any comments?It sounds like you held your own and you should be proud of yourself!! At least the judge is going to rule on whether or not an agreement exists!! That's a victory for you!! I think you did a really fine job and struck a blow for everybody preferring arbitration to court.I know about those good ole boy/girl courts, too. Where the judges and clerks address the attorneys by their first names and ask about their families. Been there, done that, too!!Listen...take time to pat yourself on the back...you did FINE!!!RL xdancex xdancex Link to comment Share on other sites More sharing options...
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