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IMPORTANT quick question


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Have to respond today to an FIA complaint but I believe arb requirement is in the cc agreement. I don't have a copy of the original agreement and plaintiff did not supply one but everywhere I read that mbna/boa/fia has a mandatory arb statement. On the Answer to Complaint form it requires a signature regarding "no other action or arbitration proceeding is contemplated". I don't believe I can sign that based on the above so instead of filing an answer should I instead file a mtd or mts pending arb? Also on the complaint plaintiffs atty did sign that statement, is it likely that they made a mistake, or should I assume that they have the agreement and it doesn't require arb? Why else would they have filed suit if they new arb was manditory? Ideally I would like discovery to see what they have but must respond today. please advise, thanks.

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i am not familar with NJ forms, but never give up your arb option.

is boa the oc? my boa agreement states you can elect arb anytime before a judgent is entered.

deny everything in your answer, except your addy, then file a mtc arb.

when you initaite arb, your first cause of action should be breach of contract for filing in court instead of arb, per the agreement.

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so it's ok for me to sign that "Pursuant to R. 4:5- 1, the undersigned certifies that to the best of his knowledge, the within matters in controversy are not the subject of any other action pending in any other court or of a pending arbitration proceeding nor is any action or arbitration contemplated nor are other parties required to be joined in this action." portion of the answer? Would'nt that mean both I and the plaintiff have stated we are not contemplating arbitration, essentially giving up my right to arb?

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Ok,

This is the plan

First I file an MTD based on not receiving from the plaintiff a copy of the CIS and TAN as is required by NJ Civil Part- Law Division Catalog Number 10553, page 4, Overview paragraph, sentence 4 "The complaint, CIS and Tan must be served with the summons on all parties." As well as page 5, Definitions, Track Assignment Notice (TAN) "The plaintiff is required to send a copy of the TAN to everyone being sued.”

I believe I would use motion package number 10555, forms a,b,c

And cite this statute as the reason-

RULE 4:37. DISMISSAL OF ACTIONS

4:37-2. Involuntary Dismissal; Effect Thereof

(a) For Failure to Comply With Rule or Order. For failure of the plaintiff to cause a summons to issue within 15 days from the date of the Track Assignment Notice or to comply with these rules or any order of court, the court in its discretion may on defendant's motion dismiss an action or any claim against the defendant. Such a dismissal shall be without prejudice unless otherwise specified in the order.

This would satisfy the requirement of responding to the complaint within 35 days? (tomorrow is 35)

Based on the outcome of the initial filing I would file a subsequent motion, if necessary to either dismiss or stay, pending arbitration or should I include that with my initial MTD as I believe the contract which they did not supply with the summons states mandatory arbitration?

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I'm concerned with this post on the board from one of the knowledgable members-

When you seek a dismissal in court, you are agreeing that the court has jurisdiction over the subject matter. (I assume by them being able to dismiss the complaint)

When you elect arbitration, you are denying that the court has jurisdiction over the subject matter. (taking it out of courts hands)

I'm afraid that if you seek a dismissal, it will be viewed as you agreeing that the court system, in effect, does have jurisdiction. Once you do that, you've waived your right to arbitration.

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  • 2 weeks later...

filed the mtd as described on 11/4. received my registered mail receipt from court on 11/5 and from Garber atty for FIA on 11/8. also received my 'filed' copy from the court clerk so I assume they accepted it? today I get a letter from Garbus dated 11/11 offering a "substantial discount off the current balance due". sounds like they want to avoid court despite filing suit. the date I requested for my mtd to be heard is 12/3 09:00 but I haven't received confirmation from the court yet. Is there a way to confirm I'm scheduled for that date and what is the recommended course of action? I would at least like to see the cis and tan that they were supposed to have included with the summons and complaint to make sure the suit was filed properly within the time limits stated in the rules of court. based on that information obtained I would like to compel discovery to see the records they have. once all the information has been gathered and an accurate amount allegedly owed discerned then I would entertain their offer or file an mts pending arb. Ideas?

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  • 2 weeks later...

On friday 11/26 I received the plaintiffs opposition to my MTD. It appears to support the fact that they didn't follow proper procedure as my MTD states by not supplying me with the required documentation. I spoke to the Judge that is assigned the case's clerk and he said I could follow the scheduling via the online docket search. When I entered my MTD I requested "oral argument if motion is contested" however the docket website incorrectly states "no oral argument, none requested". The oral arguments are heard on wednesdays and since I requested friday 12/3 for my MTD to be heard that would make it this wednesday 12/1. I believe at my MTD I would either file a Motion for entry of default due to the procedural error and/or a Motion to compel discovery as having now seen the TAN there'll be 300 days for discovery. Ideas?

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