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What Constitutes "Initiating Arb"?


db1928
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I am looking for any thoughts on what constitutes "initiating arb"?

I have come across a situation where the argument and court decision of "initiating arb" has come up. There is no clear definitive answer in either JAMS, FAA or any state statute nor from any attorney I have spoken with regarding a consumer arbitration claim and what a "perfected" initiation is. My take on it was file a demand for arb, ask the OC to pay fee per their contract, if and when denied then pay the fee. However, because I was following what I thought was appropriate protocol based on the card contract, to me that was initiating an arbitration procedure. However, the OC/attorney didn't see it that way.

Argument was that fees had to be paid at time of initiation and initiated their own claim in AAA. I successfully had that claim dropped in AAA. However, OC/Attorney motioned the court for relief with the argument that I didn't pay my fee when I initiated and that I was using the wrong contract (they never gave one to the court at all during this time until their motion for relief - this was after my MTC arb was granted). I gave the court an affidavit, timeline showing the process I followed and that when I did pay my JAMS fee, this was still before OC/Attorney paid all of the AAA fees (proof given) since they were the initiator. New judge comes in and refers to commercial arbitration and that OC/Attorney paid their fees before mine and now the previous dismissal is reversed and arbitration is ordered for AAA.

I plan on filing a Motion For Reconsideration and wanted your feedback on my thoughts. I want this to be concise and to the point. My plan of action is to respectfully ask the judge to re-look at his decision about who pays what and when. I plan on giving the JAMS consumer rules showing that maximum is $250 (new judge stated that initiator had to pay all fees) and remaining fees are born by OC. I also want to touch on following card agreement wording requesting fee payment, then restate the date I paid my fee, restate the date OC paid "all" of their fees and refer to card agreement contract.

Anything else I should or shouldn't touch on? The other issue is what card agreement is applicable, but I guess that would be another battle. Right now I want the judge to reverse his decision on forcing me into AAA. What is unfortunate is that he is reversing the previous judges ruling.

Any help is appreciated - and yes I have posted this on the other forum, but for whatever reason (maybe no one has come across or know of anything else to do) I have received no responses.

Thanks.

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What does the card agreement say about arbitration? My OC was Cap One and their agreement specifically gives the consumer the right to change forums if the bank initiates, or to choose the forum if they initiate. As to which agreement applies, you go in with the agreement that benefits you the most and be prepared to argue why it applies.

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The card agreement does not allow to object to the forum. As for the paying part it states "we will advance or reimburse your fees if the arbitration firm or arbitrator determines there is good reason for requiring us to do so, or IF YOU ASK US and we determine there is good reason for doing so.

It seems to be kind of a catch 22 because an arbitrator is not assigned until all fees are paid, but the firm could ask/request the OC pay, but then it also states that we can ask as the consumer. It doesn't say they will automatically pay, but will look at it. So how can a judge decree that I did not initiate when the OC's contract allows for asking the forum and OC for payment?

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Judges are all over the place on their rulings for arbitration. You need to do some case law searches in your jurisdiction to control the judge. Your argument should be, the contract determines the filing requirements, not the court. Again, you will need case law to support this. (start with Google Scholar).

The judge cannot change the terms of the contract. That contract include the forum rules as being an accepted part of the contract for both parties.

Hope this helps.

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Pay your JAMS fee and push forward on your claims against them. File a complaint in Federal Court to get an order to compel them to JAMS for your complaint against them.

If you fail in your appeal or reconsideration, then arbitrate their claims against you in AAA.

They'll be paying for both arbitrations at that point.

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JAMS fee was paid after OC refused. My JAMS fee was actually paid before OC paid all of the AAA fees required to "perfect" their filing which included my filing fee for AAA since they initiated.

I like the thought about filing a complaint in Federal court to compel them to JAMS.

Unfortunately the state I live in, small state, no one chooses arbitration. All the research I have done shows that either the OC gets a default judgement or the defendant files BK. No one fights back against any OC/JDB.

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any suggestions as to what to search?

I have tried various variations of "state consumer arbitration cases" with compelled, decision, without consumer, etc intermingled in.

I came across one site describing all forms of arbitration that stated initiating arb is "a request by one party for a dispute to be referred to arbitration". Too bad I can't din a statute with that in it as there is no mention requiring to pay fees then.

I also like the part in the FAA where it states an arbitration agreement is "valid, irrevocable, and enforceable." I would think this would help me with my reconsdieration since the arbitration portion of the credit card contract does talk about being able to request fee.

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Does anyone know where I can find out what Chapter 45 and Appendix A6 of Thomas Oehmke's commercial arbitration 3rd edition say? I have been trying to find without any luck. This was the basis of the judges granting the OC's order to force me into arbitrating with AAA since I did not pay all fees up front. The judge erroneously cites commercial arbitration. This is what I want to focus on, but can't seem to find out what it says.

Thanks for any help.

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