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Capital One Case and Arbitration


dinodevil
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To bring you all up to date, I am currently being sued by Capital One.

I was served a Summon and Complaint to which I sent my Answer. They then filed a Motion for Summary Judgment stating that just because I denied the debt basically doesn't mean that I'm not liable for the debt.

I then filed a MTC Arbitration.

Today I got home and received an opposition to my MTC Arbitration.

In my motion I attached the card agreement from 2008. I referenced parts of the agreement pertaining to the arbitration, the FFA and the Surpreme Court Ruling in AT&T MOBILITY LLC v. CONCEPCION.

Their oppostion dated on Monday stated:

Defendant must establish the agreement between parties requires the parties to elect to resolve any dispute in a designated arbitration forum and has not commenced an Arbitration Proceeding.

Plaintiff contends the Terms and Conditions outlining the agreement between the parties have been properly filed with Plaintiff's request for entry of summary judgment. See Customer Agreement, previously filed. Please note, these Terms and Conditions are copyrighted for 2010 and do not mention or allow for an arbitration agreement between the parties. Thus, Defendant's motion must be denied.

Pursuant to the Terms and Conditions that Defendant references (which appear to be an older set of Terms that would no longer be applicable to the account in question), "You and we agree that either you or we may, at either's party's sole discretion, require that any claim be resolved by binding arbitration. IF YOU OR WE ELECT ARBITRATION ON ANY CLAIM..." See Cardmember Agreement, Exhibit B attached to Defendant's Motion (emphasis added). The Terms Defendant references state that the person electing to arbitrate must proper file the arbitration claim, pay the applicable filing fee and serve the appropriate notice. See Exhibit B of Defendant's pleadings. Thus, if the Defendant truly wishes this matter to be arbitrated according to these terms, it is her responsibility to establish an agreement exists by pursuing an arbitration case in the appropriate forum. Defendant has not done so. It is not sufficient for the Defendant to simply state she wants arbitration. A person must take an affirmative act of filing and opening an arbitration claim. Defendant has not established the contract between the parties ability to proceed through arbitration at such designated arbitration forum.

Alternatively, should the Court grant Defenant's request to proceed with arbitration, Plaintiff request the Court order the Defenant to properly commence the arbitration claim in the appropriate forum, along with paying the appropriate fee, within sixty days of the Order. If no arbitration claim is commenced within this period, Plaintiff will be able to proceed with it action in District Court.

Plaintiff would note, frequently cases that proceed through arbitration take longer and are more costly to the parties than District Court. In addition, in a collection case, the outcome of the case is unlikely to change given the documentation establishing the account in question. To Plaintiff's knowledge, no arbitration case was commenced; thus, Plaintiff is entitled to continue with its collection action in district court.

Wherefore, Plaintiff moves the Court to deny the Defendant's Motion to Compel Arbitration. Alternatively, if the Court grants Defendant's request to compel arbitration claim within the appropriate forum within sixty days of its order. If the arbitration claim is not filed within that time period, Plaintiff will be allowed to proceed with its District Court action.

I did initiate with JAMS on the 19th, serving all parties. I did not pay the $250 but I did request in the cover letter that per the card members agreement I am formally asking Capital One to reimburse me the $250.

Should I respond to this and point out the severability clause in it along with the fact that I did initiate and that per the card holders agreement I am requesting to be reimbursed?

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I. INTRODUCTION

In response to Defendant’s Motion to Compel Private Contractual Arbitration, Plaintiff has served Defendant with an Opposition to Defendant’s Motion to Compel Private Contractual Arbitration.

II. REPLY TO ARGUMENT

Please note in the Card Member Agreement Defendant filed with Motion to Compel Arbitration (Exhibit B), Section 18 states, “This Arbitration Provision shall SURVIVE: (i) suspension, termination, revocation, closure or CHANGES OF THIS AGREEMENT, your Account, and your relationship with us; (ii) the bankruptcy or insolvency of any party; and (iii) any transfer of your Account, or any amounts owed on your Account, to any other person or entity.” Therefore, Defendant’s Motion to Compel Arbitration should be granted.

Plaintiff maintains that Defendant should proceed with arbitration. Please note that Defendant has already initiated Arbitration with JAMS on November 19, 2011, see Exhibit D.

Defendant has also requested in the Cover Letter to JAMS that the Plaintiff forward the Administration Fees per the Card Holders Agreement.

Any thoughts?

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I. INTRODUCTION

In response to Defendant’s Motion to Compel Private Contractual Arbitration, Plaintiff has served Defendant with an Opposition to Defendant’s Motion to Compel Private Contractual Arbitration.

II. REPLY TO ARGUMENT

Please note in the Card Member Agreement Defendant filed with Motion to Compel Arbitration (Exhibit B), Section 18 states, “This Arbitration Provision shall SURVIVE: (i) suspension, termination, revocation, closure or CHANGES OF THIS AGREEMENT, your Account, and your relationship with us; (ii) the bankruptcy or insolvency of any party; and (iii) any transfer of your Account, or any amounts owed on your Account, to any other person or entity.” Therefore, Defendant’s Motion to Compel Arbitration should be granted as per Plaintiff’s own Agreement the Arbitration Clause shall survive any changes.

Plaintiff maintains that Defendant should proceed with the initiation with arbitration. Although Defendant should not be required to initiate Plaintiff’s claim against oneself, as Election and Initiation processes are two different processes, Defendant has already taken an affirmative act and initiated with JAMS. Please note that Defendant has initiated Arbitration with JAMS on November 19, 2011, see Exhibit D. Defendant has also requested in the Cover Letter to JAMS that the Plaintiff forward the Administration Fees as per the Card Holders Agreement. Thus, Plaintiff is NOT entitled to continue with collection action in district court.

III. CONCLUSION

WHEREFORE, Defendant moves the Court to grant the Defendant’s Motion to Compel Private Contractual Arbitration as the initiation process has been commenced.

How does this sound? Please any advise would be appreciated.

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In your MTC, did you cite AT&T vs Concepcion? And also, the FAA?

When you initiated with JAMS, did you first file your JAMS demand on the attorney and the creditor? If so, I'd also show proof where they received the initiation notice. If they received notice of your initiation prior to them filing their opposition, I would definitely point out that the plaintiff argues that the defendant has not initiated, but that plaintiff knew that defendant did initiate as they were served with their JAMS demand on such and such a date. (See Exhibit ___).

And I would throw in some of this -

The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(B) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

© YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

**Also, did they cite any case law in their opposition? It would be good if you could cite some case law from your state, backing up your right to arbitrate.

Edited by Linda7
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Also, I would be reminding them of Minnesota's state statute 572.08 -

572.08 VALIDITY OF ARBITRATION AGREEMENTS, APPLICATION TO SPECIFIC AGREEMENTS.

A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract. (The bold text emphasis is mine.)

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Linda7, Thank you for the additional ideas, I did cite AT&T vs Concepcion and also the FAA. I actually used one of your previous posts to another for my MTC as the base. Thank you for that.

I sent the election letter for arbitration to the attorney before I sent them them the MTC, then I followed up with the MTC with the letter, card agreement from 2008 and the AT&T vs Concepcion as exhibits. They received the letter on the 8th and the MTC on the 14th.

Since my initiation with JAMS was sent to them on the 19th, they received those the same day that the attorney drafted the opposition. So I'm not sure if they drafted that after they received them or not since it was sent the same day.

They did not cite any case law in their opposition. What I posted was word for word what they sent.

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Defendant must establish the agreement between parties requires the parties to elect to resolve any dispute in a designated arbitration forum and has not commenced an Arbitration Proceeding.

.

.

.

Pursuant to the Terms and Conditions that Defendant references (which appear to be an older set of Terms that would no longer be applicable to the account in question), "You and we agree that either you or we may, at either's party's sole discretion, require that any claim be resolved by binding arbitration. IF YOU OR WE ELECT ARBITRATION ON ANY CLAIM..." See Cardmember Agreement, Exhibit B attached to Defendant's Motion (emphasis added). The Terms Defendant references state that the person electing to arbitrate must proper file the arbitration claim, pay the applicable filing fee and serve the appropriate notice. See Exhibit B of Defendant's pleadings. Thus, if the Defendant truly wishes this matter to be arbitrated according to these terms, it is her responsibility to establish an agreement exists by pursuing an arbitration case in the appropriate forum. Defendant has not done so. It is not sufficient for the Defendant to simply state she wants arbitration. A person must take an affirmative act of filing and opening an arbitration claim. Defendant has not established the contract between the parties ability to proceed through arbitration at such designated arbitration forum.

Wait, wait, wait... Did they just state that you have to prove that the agreement applies to you in order to commence arbitration? Did they seriously just pull that crap? Their agreement only applies if it is beneficial to them. If they brought the suit and are unwilling to admit that the agreement applies or affirmatively prove that a different one applies, I would be looking at just how aggressive the law would allow me to be.

Alternatively, should the Court grant Defenant's request to proceed with arbitration, Plaintiff request the Court order the Defenant to properly commence the arbitration claim in the appropriate forum, along with paying the appropriate fee, within sixty days of the Order. If no arbitration claim is commenced within this period, Plaintiff will be able to proceed with it action in District Court.

I.e. We don't want to admit that this contract applies to our client when it comes to arbitration, but when it comes to you paying us, it applies and don't you forget it.

Plaintiff would note, frequently cases that proceed through arbitration take longer and are more costly to the parties than District Court. In addition, in a collection case, the outcome of the case is unlikely to change given the documentation establishing the account in question. To Plaintiff's knowledge, no arbitration case was commenced; thus, Plaintiff is entitled to continue with its collection action in district court.

Then maybe they shouldn't have put arbitration into their contract. They're the ones that wrote it.

Jackwagons.

Wherefore, Plaintiff moves the Court to deny the Defendant's Motion to Compel Arbitration. Alternatively, if the Court grants Defendant's request to compel arbitration claim within the appropriate forum within sixty days of its order. If the arbitration claim is not filed within that time period, Plaintiff will be allowed to proceed with its District Court action.

Wherefore, the courts should dismiss this crap because they just implicitly admitted that either the contract does not apply to you, or they only want to selectively want to enforce only the terms that they like, making the contract unconscionable if applied how they want it to be applied.

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Wait, wait, wait... Did they just state that you have to prove that the agreement applies to you in order to commence arbitration? Did they seriously just pull that crap? Their agreement only applies if it is beneficial to them. If they brought the suit and are unwilling to admit that the agreement applies or affirmatively prove that a different one applies, I would be looking at just how aggressive the law would allow me to be.

I.e. We don't want to admit that this contract applies to our client when it comes to arbitration, but when it comes to you paying us, it applies and don't you forget it.

Then maybe they shouldn't have put arbitration into their contract. They're the ones that wrote it.

Jackwagons.

Wherefore, the courts should dismiss this crap because they just implicitly admitted that either the contract does not apply to you, or they only want to selectively want to enforce only the terms that they like, making the contract unconscionable if applied how they want it to be applied.

The OP is claiming the 2008 agreement that contains the arbitration clause is the correct agreement, whereas Cap1 is claiming the 2010 agreement (when the account was charged off) that has no arbitration clause applies.

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Cap1 removed the arbitration clause in Jan. 2010. If you stopped paying before that time, you could possibly argue that according to Cap1, the account went into default in 2009. At that time, cardmember agreements still contained the arbitration clause.

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Here is my updated reply, any more thoughts?

I. INTRODUCTION

In response to Defendant’s Motion to Compel Private Contractual Arbitration, Plaintiff has served Defendant with an Opposition to Defendant’s Motion to Compel Private Contractual Arbitration.

II. REPLY TO ARGUMENT

Please note in the Card Member Agreement Defendant filed with Motion to Compel Arbitration (Exhibit B), Section 18 states, “This Arbitration Provision shall SURVIVE: (i) suspension, termination, revocation, closure or CHANGES OF THIS AGREEMENT, your Account, and your relationship with us; (ii) the bankruptcy or insolvency of any party; and (iii) any transfer of your Account, or any amounts owed on your Account, to any other person or entity.” Therefore, Defendant’s Motion to Compel Arbitration should be granted as per Plaintiff’s own Agreement the Arbitration Clause shall survive any changes.

The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) You and we agree that either you or we may, at either party’s sole election require that any claim be resolved by binding private arbitration.

(B) If you or we elect Private Arbitration of a claim, neither you nor we will have the right to pursue that claim in Court or before a Judge or Jury.

© You or we may elect Arbitration under this Arbitration Provision with respect to any claim, even if the claim is part of a lawsuit brought in court. You or we may make a motion or request in court to compel Private Arbitration of any claim brought as part of any lawsuit.

(d) Claim means any Claim, Controversy or Dispute of any kind or Nature between you and us.

Defendant would also like to state that Minnesota's state statute 572.08 states:

“572.08 VALIDITY OF ARBITRATION AGREEMENTS, APPLICATION TO SPECIFIC AGREEMENTS. A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract”.

Therefore, Defendant maintains that per Plaintiff’s Card Member Agreement, Minnesota Statutes 572.08, Supreme Court Ruling, At&T Mobility LLC v. Concepcion Et U and the Federal Arbitration Act all state that courts must enforce Arbitration.

Plaintiff maintains that Defendant should proceed with the initiation for arbitration. Although Defendant should not be required to initiate Plaintiff’s claim against oneself, as Election and Initiation processes are two different processes, Defendant has already taken an affirmative act and initiated with JAMS. Please note that Defendant has initiated Arbitration with JAMS on November 19, 2011, see Exhibit D. Defendant has also requested in the Cover Letter to JAMS that the Plaintiff forward the Administration Fees as per the Card Holders Agreement. Thus, Plaintiff is NOT entitled to continue with collection action in district court.

III. CONCLUSION

WHEREFORE, Defendant moves the Court to grant the Defendant’s Motion to Compel Private Contractual Arbitration as the initiation process has been commenced and the laws that have been stated in support of said motion.

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The OP is claiming the 2008 agreement that contains the arbitration clause is the correct agreement, whereas Cap1 is claiming the 2010 agreement (when the account was charged off) that has no arbitration clause applies.

Right, but they would now need to show that the 2010 agreement applies and they would also need to show why this particular part of the agreement is null and void:

Provision shall SURVIVE: (i) suspension, termination, revocation, closure or CHANGES OF THIS AGREEMENT, your Account, and your relationship with us;

The OP made the call on arbitration, presented what was available, and they are now claiming that it isn't so. The burden of proof has shifted to them here.

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Did you file a sworn affidavit with the court that the 2008 agreement was the correct agreement and send a copy of the affidavit to the creditor? If you did not and need one, let me know.

Also, I would say something like this - (and again include the agreement with the sections quoted, highlighted on the agreement and put it as whatever Exhibit you want it listed. I have it as Exhibit X as I didn't know what you would call it.)

Plaintiff argues that the agreement referenced by the Defendant is an older agreement and does not apply. Defendant states that the agreement Defendant filed with the Motion to Compel Arbitration (Exhibit B), Section 18 clearly says, “This Arbitration Provision shall SURVIVE: (i) suspension, termination, revocation, closure or CHANGES OF THIS AGREEMENT, your Account, and your relationship with us; (ii) the bankruptcy or insolvency of any party; and (iii) any transfer of your Account, or any amounts owed on your Account, to any other person or entity.” Due to this survivability clause, the agreement filed by the Defendant containing the arbitration provision is the governing agreement.

Plaintiff has also misrepresented the terms of the agreement by stating that Defendant must initiate the arbitration.

Although Defendant has moved forward and chosen to initiate arbitration and has served such upon Plaintiff (see Exhibit X), Defendant wants to clarify there is a difference in election and initiating of arbitration.

Electing arbitration is a choice that can be made as a way to resolve a dispute.

The Capital One agreement has the option to resolve any claim by the election of arbitration.

The agreement states:

YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT. (See Exhibit X)

The arbitration provision in the agreement further states:

YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION, REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING ARBITRATION. (See Exhibit X)

The agreement gives the choice of electing arbitration to resolve the claim.

There also is no language in the agreement as Plaintiff argues,that Defendant has to initiate arbitration.

“Absent express language in the contract placing the initial burden on either party, (to initiate arbitration) that responsibility properly rests with the party seeking relief.” (Lane-Tahoe, Inc. v Kindred Constr. Co., 91 Nev. 385, 536 P. 2d 491, 494(1975).

Plaintiff continues to argue that arbitration takes longer and is more costly to the parties and is unlikely to change the outcome, clearly an attempt by the Plaintiff to deny Defendant her rights to arbitration.

As previously noted in the Motion to Compel Arbitration, the agreement states that it shall be governed and enforced under the FAA.

The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

"The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

And further, the Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____ , ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Defendant has elected arbitration via JAMS per the terms of the governing agreement and has moved forward by initiating arbitration and serving such upon Plaintiff.

Minnesota's state statute 572.08 states:

“572.08 VALIDITY OF ARBITRATION AGREEMENTS, APPLICATION TO SPECIFIC AGREEMENTS. A written agreement to submit any existing controversy to arbitration or a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable, and irrevocable, save upon such grounds as exist at law or in equity for the revocation of any contract”.

CONCLUSION

Wherefore, Defendant respectfully requests this Honorable Court grant her motion to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff's complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted this day, November ______, 2011

__________________________________(Your name typed), Defendant, pro se

Edited by Linda7
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Sorry I had just woken up when I answered that question on the Charge Off.

To answer the question to the alleged account: Date Open 4/06, Last payment 4/10, Charge Off 12/10.

I did not do a sworn affidavit on the 2008 agreement. I would very much like one if you have it. Thanks.

I did put a verification of affidavit on my MTC but not on this Reply, I will put one on this Reply also. Thanks.

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Okay, even though you defaulted in 2010 - the account was open through the time of the 2008 agreement with the arbitration provision. The fact that the 2008 has a survivability clause, means that you can use the 2008.

If the 2008 had no survivability clause or if you opened the account later than 2008 - then no, the 2008 then could not be used.

However, you say it was opened in 2006-2010 - meaning that the 2008 was an active, governing agreement. They can't deny the dates or say that it doesn't work because the default came later. It was active during a time that there was an arbitration provision with a survivability clause and you nailed them on that!

Here's a sworn affidavit - Put in your court header information, plaintiff vs defendant, case number, etc. Be sure to sign in front of a notary and then they will put their stamp/seal on it. Also, attach the 2008 agreement.

SWORN AFFIDAVIT

The attached agreement (see exhibit A) is a true, unaltered copy of the agreement that governs the alleged account.

Pursuant to 28 U.S.C. § 1746(2), I, XXXXXXXXXXXXXXXXXXXX, hereby declare under penalty of perjury, that the foregoing is true and correct, to the best of my knowledge, information and belief.

_______________________________________(Your signature)

XXXXXXXXXXXXXXXXXXXXXXXXXX (Your name typed)

Your address

City, State Zip Code

I, _________________________________, the undersigned Notary, hereby certify that XXXXXXXXXXXXXXXXXXXXXXXXXXX personally known to me to be the affiant in the foregoing affidavit, personally appeared before me this day and having been by me duly sworn, deposes and says that the facts set forth in the above affidavit are true and correct.

Witness my hand and official seal this the _________ day of __________, _________.

(SEAL)

____________________________________

Notary Public

My Commission expires:

____ / ____ / ________.

I CERTIFY that I mailed a copy of this SWORN AFFIDAVIT to:

XXXXXXXXX, Plaintiff's attorney

Their address

City, State and zip code

By: XXXXXXXXXX, Defendant

Date: __________________, 2011

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Okay, even though you defaulted in 2010 - the account was open through the time of the 2008 agreement with the arbitration provision. The fact that the 2008 has a survivability clause, means that you can use the 2008.

If the 2008 had no survivability clause or if you opened the account later than 2008 - then no, the 2008 then could not be used.

However, you say it was opened in 2006-2010 - meaning that the 2008 was an active, governing agreement. They can't deny the dates or say that it doesn't work because the default came later. It was active during a time that there was an arbitration provision with a survivability clause and you nailed them on that!

Cap1 Agreements are governed by the laws of Virginia. Do they have any state laws that allow unilateral changes to a cardmember agreement, such as removal of the arbitration agreement?

If so, Cap1 could, in fact, remove the arb agreement and the survival clause would be moot.

Is there any case law that says this isn't correct? I've looked and can't find any regarding cardmember agreements and the removal of an arb provision and survival of the clause.

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So I show up to court today and did not see my name on the screen, in my district the court does not post online calendars. So I go up to the clerk and hand them the summons that I had received with the date on it to find out what was going on. She tells me that the lawyer had scheduled the hearing in the default court and clearly I answered so they were not entitled to a Default Summary Judgment.

The clerk stated that she personally spoke with them and their response to her was "oh really?" She also told them they needed to contact me to let me know that the hearing had been moved. Which they did not. She also told them they would need to re-serve me with the corrected hearing date. Which they have not.

I'm so mad, my husband and I both took time off of work to be there today for nothing.

Now I guess I will just have to wait to see what their next move is.

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what happened with the arbitration you were asking for? I went thru this with them and had a dishonest judge who ruled against the arbitration using a mechanics lien rule. He is very pro debtor. I hope you don't have a judge like that. Otherwise you should be able to go into arbitration using Concepcion. My judge ignored all that and other case law too. If you can get your case into JAMS, Cap One might back off because it is very expensive which was my strategy and they would have to pay for mine as I am low income but the judge would not go for it. Cap One will fight as hard as they can to keep you from arbitration. good luck! Glad they didn't get their summary judgement.

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You should ask for arbitration right away again. Send Cap One a letter asking for it and quoting the rules under the correct agreement for your years with them and if they deny you again, you are going to have to ask for a hearing on the arbitration. But I do believe you have to file and pay for JAMS or request that the other side pay for JAMS. Cap One will use the excuse that you didn't pay your fees to not grant you arbitration so be sure to deal with that issue..

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