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Sued by Capital One...MTC (Arbitration) or MTD...I'm confused


algae
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First, thanks so much to all of the contributors to this forum...what a wealth of knowledge!

Now, on to my dilemma. My wife has been sued by Capital One, and here are the facts so far:

- Initial letter received from OC's attorney (Hanna and Associates in Georgia) Aug 2010

- DV letter sent promptly thereafter...no election of arbitration made at that time (didn't discover that option until this week...on this forum)

- Acknowledgement of DV letter received from attorney later in same month (Aug 2010).

- Served Nov 2011 with Statement of Claim indicating Capital One Bank as Plaintiff (using Hanna & Associates' address). Capital One 2010 Customer Agreement attached...the one without arbitration.

- Alleged debt appears on all three credit reports: Date Opened - Mar '09, Last Payment - Aug '10, and Charge Off - Apr '11

While reading this forum to prepare a Motion to Dismiss, I discovered the Arbitration option. But, I'm now confused as to whether I should file a MTC Arbitration (JAMS) based on the 2008 Cardholder Agreement (that included JAMS option) or file a MTD. Some say that since the account was not charged off until Apr '11 that the new agreement is in effect, and arbitration is off the table. Others state that since the card was issued in Mar '09, the old agreement applies and has some sort of "survivability clause". I have to answer by this Friday. I've been reading (this forum) for two days straight now, and am still not sure which way to go.

What if I file MTC for Arbitration and am later denied by the court? Won't it then be too late to file a MTD? And I've also read that I shouldn't file both, because filing a MTD will negate the request for arbitration (by indicating that I "want to" litigate the dispute).

So much to learn...so little time! Thanks in advance for your help.

Algae

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If you do file for arbitration file it right away. First, you have to ask Cap One in a letter or tell them you want arbitration. Then you have to file with JAMS and pay whatever the fee is. If you don't, cap one use it as an excuse not to allow arbitration. They did that with me even tho Jams ordered them to pay fees. The judge ruled against me and I believe wrongly. So to avoid that, read the arb clause carefully and do what it says and then when you answer the lawsuit tell them right in the answer that you deny everything said and that you want arbitration with jams. Jams is very costly for them to participate in and they may bow out. They will fight to stop you from arbitration. Wish I had it!

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Thanks chiquita55...I'll continue reading the forum tonight and tomorrow, but I'm thinking the best option may be to file a combined "Pre-Answer Motion to Dismiss and Compel Binding Private Arbitration" with the older Capital One Cardholder Agreement's survival clause, the FAA, AT&T vs Concepcion, and my JAMS application (which I guess I'll make tomorrow) as attachments. Does that sound like a reasonable plan?

Edited by algae
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Yes Algae it sounds like a good plan. I would ask for a dismissal and to take it into arbitration and attach all that you mention. Don't forget to write Cap One and ask for arbitration. If you are low income etc ask Jams that cap one pays the fee to start the process altho cap one may deny since you didn't pay.

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A motion to dismiss has specific requirements in each state and addresses different things. Here, it only takes place when the court has no jurisdiction over the parties or the matter at hand. In other states, it is closer to a motion for summary judgment. You should read your rules to find out. It may be premature, considering you haven't answered yet.

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