Plaintiff's Response to my Motion to Stay!

[tjabq]

just got the plaintiff's response to my motion to stay pending private arbitration.

I think they have a weak argument as they only used one case to assert their argument but that is not supported by any statute on the books.

I will provide the link to their case law citation in order for someone to comment whether or not that my case qualifies for waiver of my right to compel arbitration.

Let it also be noted that I had motioned to remove referral from court arbitration and motioned to stay pending private arbitration and I would have elected arbitration sooner if I had the Bof A agreement with arbitration clause but was not able to obtain until recently. I had asked the JDB in my answer for a copy of the agreement and they did not comply. Can I claim that I was not aware of my right to elect arbitration until recently as I did not posses an agreement by which to base that action on?

Also, the plaintiff response has some false statements in it, there has never been any motions filed for the court arbitrator to consider as there has not been a hearing. The motions filed were for the case judge to hear only. The Motion to dismiss was joined with the motion to stay the case!

Plus I believe that the New Mexico Uniform Arbitration Act and the Federal Arbitration Act will support my position in that there is a written arbitration clause in the alleged agreement and the Plaintiff has acknowledged the existence thereof.

Please give me some educated opinions on this .

STATE OF NEW MEXICO

COUNTY OF BERNALILLO SECOND JUDICIAL DISTRICT

No. xxxxxxxxx

CACH, LLC

Plaintiff,

v.

Defendant.

PLAINTIFF'S RESPONSE TO DEFENDANT'S

MOTION TO DISMISS PLAINTIFF'S COMPLAINT, OR

ALTERNATIVELY. MOTION TO STAY PENDING PRIVATE ARBITRATION

COMES NOW Plaintiff, by and through counsel and respectfully asks the Court to deny Defendant's Motion. As grounds, Plaintiff states:

1. Plaintiff filed its Complaint for Debt and Money due on October 1, 2009.

2. Defendant filed his Answer on November 10, 2009.

3. The case was referred to court-ordered arbitration pursuant to local rule on

November 23,2009.

4. The Court appointed XXXX XXXXX as arbitrator in the above-captioned cause.

5. The arbitrator set arbitration for June 10, 2010 at 10 am. Plaintiff requested and received a continuance for that date.

6. Arbitration was rescheduled for July 15, 2010 at 10 am. While I do not have

documentation regarding that date, the arbitrator contended that Plaintiff asked for and received a continuance of that date as well.

7. Arbitration was reset for July 27, 2010 at 10 am.

8. Defendant filed a Motion to Excuse Arbitrator on July 21, 2010, alleging

ex-parte communication between the arbitrator and Defendant.

9. On August 27, 2010, Defendant filed a Motion to Withdraw Referral from (sic)

Court Annexed Arbitration, alleging among other reasons, a mandatory arbitration

clause in the contract between Defendant and original creditor.

10. On September 3 0, 2010, Defendant filed the instant Motion.

ARGUMENT

Defendant contends that the above-captioned case is not properly before the Court because the contract between the original creditor, Bank of America, and him contained a binding, mandatory arbitration clause. However, in order for the arbitration clause to preclude litigation in this Court, Defendant was required to invoke his right to arbitration prior to invoking the jurisdiction of this Court. Having failed to do so, Defendant's belated election to arbitrate should be denied.

In Wood v. Millers Nat'1 Insurance Co., 96N.M. 525, 527-28 (N.M. 1981), the Court faced this very question. In that case, the court recognized that merely filing a complaint in court would not act as a waiver of arbitration. "The point of no return is reached when the party seeking to compel arbitration invokes the court's discretionary power, prior to demanding arbitration, on a question other than its demand for arbitration... To hold otherwise would permit a party to resort to court action until an unfavorable result is reached and then switch to arbitration."

For eleven months, Defendant chose to invoke the Court's jurisdiction by filing an

answer to the Complaint, filing motions for the arbitrator to consider, filing motions to dismiss. As a result of Defendant's actions, Plaintiff believed that Defendant did not intend to make a demand for arbitration and prepared for trial accordingly. Defendant's actions preclude his belated request for arbitration.

WHEREFORE Plaintiff respectfully requests that the Court deny Defendant's Motion to Dismiss, appoint an arbitrator and for such other relief the Court deems appropriate.

Respectfully submitted

Scumbag JDB Lawyer

http://www.loislaw.com/livepublish8923/doclink.htp?alias=NMCASE&cite=96+N.M.+525

Edited October 14, 2010 by tjabq
corrections

[tjabq]

I would like to note, before questions may be asked, that there has been no hearing yet with the court appointed arbitrator and I have not submitted any motions for the arbitrator to consider!

There has been no discovery and there has not yet been any unfavorable result against myself as to escape from through election of PRIVATE arbitration!

So what if I waited to elect arbitration, I have not yet seen anything in the New Mexico Uniform Arbitration Act stating conditions of waiver of arbitration!

Furthermore, in the motion hearing, the plaintiff's lawyer argued that because they purchased the alleged debt from BofA that the arbitration clause did not apply to them! FDCPA violation, Deceptive Trade Practice, Breach of Contract, Fraud upon the Court?

P.S. I have motioned to be removed from court arbitration and motioned for stay pending Private Arbitration!

Edited October 14, 2010 by tjabq

[tjabq]

bump