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Need Some Help Responding to JDB Motion, Please.


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Hello all:

I have an issue on the arb forum but know that there aren't as many folks that read that forum so I figured I'd post here too. See the full post HERE

Basically, I'm trying to have the case dismissed or stayed pending arb and the JDB says that the arb clause doesn't "require" me to arb when in cases of collecting debt. I figure (and some others) that that doesn't necessarily mean I can't choose arb over court, it just means I'm not "required". I'm trying to figure out a response to them but want to see if anyone can see something in the arb clause below that I can use:

"DISPUTE AND CLAIM RESOLUTION (INCLUDING ARBITRATION) PROVISION.

General/Requirement to Arbitrate. PLEASE READ THIS PROVISION CAREFULLY. UNLESS YOU SEND US THE REJECTION NOTICE DESCRIBED BELOW, THIS PROVISION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED. This Provision replaces any existing arbitration provision with us and will stay in force no matter what happens to your account, including termination.

Upon demand, and except as otherwise provided below, you and we must arbitrate individually any dispute or claim between you, any joint cardholder and/or any additional cardholder, on the one hand; and us, our affiliates, agents and/or dealers/merchants/retailers or participating professionals, on the other hand, if the dispute or claim arises from or relates to your account. However, we will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) any claim by us that only involves our effort to collect money you owe us. However, if you respond to a collection lawsuit by claiming that we engaged in any wrongdoing, we may require you to arbitrate.

YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY CARDHOLDER WHO IS NOT A JOINT OR ADDITIONAL CARDHOLDER WITH YOU ON YOUR ACCOUNT (AN “UNRELATED CARDHOLDER”), AND YOU AGREE THAT NO UNRELATED CARDHOLDER MAY BRING ANY CLAIMS AGAINST US ON YOUR BEHALF. CLAIMS BY YOU AND BY AN UNRELATED CARDHOLDER MAY NOT BE JOINED IN A SINGLE ARBITRATION. Only a court may decide whether any part of this paragraph is enforceable. If it is finally determined that this paragraph is not fully enforceable, only this sentence of the Provision will remain in force and the remainder of the Provision will be null and void, provided that the court’s determination concerning the enforceability of this paragraph shall be subject to appeal.

Starting an Arbitration. If you or we elect to arbitrate a claim, the electing party must notify the other party in writing. This notice can be given after the beginning of a lawsuit and can be given in papers filed in the lawsuit. Otherwise, your notice must be sent to GE Money Bank, Legal Operation, 950 Forrer Boulevard, Kettering, OH 45420, ATTN: ARBITRATION DEMAND and our notice must be sent to the most recent address for you in our files. The party seeking arbitration must select as the arbitration administrator either the American Arbitration Association (“AAA”), 1633 Broadway, 10th Floor, New York, NY 10019, AAA - Arbitration, Mediation and other forms of Alternative Dispute Resolution (ADR), (800) 778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, JAMS Arbitration, Mediation, and ADR Services, (800) 352-5267. If neither the AAA nor JAMS is able or willing to handle the dispute, then the parties will resolve their dispute in court.

The arbitration administrator will appoint the arbitrator and tell the parties what to do next. The arbitrator must be a lawyer with at least ten years legal experience. In making decisions or awarding remedies, the arbitrator must apply the same law and legal principles that would apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Provision, this Provision will control.

Arbitration Location and Fees. The arbitration will take place by phone or at a location reasonably convenient to you. Upon your request, we will normally pay all the fees the administrator or arbitrator charges, if we believe you are acting in good faith. We will always pay these arbitration costs, as well as your legal fees and costs, to the extent required under

applicable law or in order for this Provision to be enforced.

Governing Law. This Provision is governed by the Federal Arbitration Act (the “FAA”). Utah law shall apply to the extent state law is relevant under Section 2 of the FAA in determining the validity of this Provision. The arbitrator must follow: (1) the substantive law, consistent with the FAA, that would apply if the matter had been brought in court, (2) this Provision, and (3) the administrator’s rules. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award."

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I read your other post. Did you send a letter to Portfolio requesting arbitration?

Portfolio argued in the opposition that they didn't send a copy of the cardmember agreement, and that you have to prove their was an agreement between the parties to arbitrate, and that the agreement is applicable. LOL!

A JDB wanting proof of an agreement! I love it!

My argument would be this:

1. Portfolio is claiming to be the assignee of GE Money Bank.

2. By claiming to be the assignee and owner of the account, they are claiming that they've stepped into the shoes of the original creditor and are, therefore, bound by the applicable agreement.

3. You had to locate a copy of an agreement as Plaintiff didn't provide a copy.

4. In failing to provide a copy of an applicable agreement, Portfolio concealed your right to elect arbitration.

If arbitration is denied, I'd use their own argument against them. Request a copy of the applicable agreement in discovery.

1. If they provide a copy of the agreement that contains the same arbitration clause as in your copy, you can show they had a copy of the agreement all along and concealed your right to arbitration.

2. If they can't (or won't) provide a copy of what they consider an applicable agreement, they can't prove the agreement allowed for the account to be sold or assigned. Therefore, they can't prove a valid assignment giving them standing to sue.

Edited by BV80
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Without going back to your other thread, you should easily be able to download a credit card agreement from ANY lender on line. I've never failed to find one, just Google it. If you can't get one from the year you opened the account, take a new one. JDB lawyers aren't that smart. Throw the ball into their court. This isn't the agreement? How would you know? I asked you for it and you didn't have it.

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Ok:

Here is my response to the JDB's response above. Please let me know if this is ok. I'm not sure if I should add on the "alternative" requesting dismissal for lack of standing or if I've even properly done so:

On or about XX,XX, 2012, Plaintiff filed Response To Defendant’s Motion To Dismiss The Plaintiff’s Complaint, Or, Alternatively, Motion To Stay Pending Arbitration. See Docket for Case No. XXXXXX.

Plaintiff claims that Plaintiff was permitted to file its claim in the Municipal Courts and that the Court has jurisdiction over the claim by stating a portion of the agreement on the alleged account that does not “require” the Defendant to arbitrate (See Plaintiff’s Response To Defendant’s Motion To Dismiss The Plaintiff’s Complaint, Or, Alternatively, Motion To Stay Pending Arbitration). Defendant maintains that the provision cited in Plaintiff’s statement is inapplicable to the matter as Defendant elected arbitration and was not forced into arbitration out or “requirement”. The cardholder agreement states the right for either party to elect/demand arbitration:

“Starting an Arbitration. If you or we elect to arbitrate a claim, the electing party must notify the other party in writing.”

Defendant has properly enacted his right to arbitration by notifying Plaintiff in writing electing arbitration (See “” in Docket for Case No. XXXXXX). The provision of the agreement continues by stating that arbitration election may be given after a lawsuit has been filed:

“This notice can be given after the beginning of a lawsuit and can be given in papers filed in the lawsuit.”

Defendant has properly enacted his right to arbitration, which relinquishes Plaintiff’s right to claim in court:

“Upon demand... you and we must arbitrate individually any dispute or claim between you, any joint cardholder and/or any additional cardholder, on the one hand; and us, our affiliates, agents and/or dealers/merchants/retailers or participating professionals, on the other hand, if the dispute or claim arises from or relates to your account.”

As per the above, the court lacks jurisdiction on this claim.

In the alternative, Defendant motions a dismissal with prejudice of Plaintiff’s claim for Plaintiff’s lack of standing.

Plaintiff is claims to be the assignee of GE Money Bank. By claiming to be the assignee and owner of the account, Plaintiff is, therefore, bound by the applicable agreement (See “26. ASSIGNMENT.” of the “agreement’). Plaintiff failed to provide a copy of the applicable agreement in its complaint that was signed by Defendant. In failing to provide a copy of an applicable agreement, Defendant argues that Plaintiff lacks standing to pursue this claim.

WHEREFORE, Defendant respectfully requests that Defendant’s Motion to Dismiss the Plaintiff’s Complaint or, Alternatively, Motion to Stay Pending Arbitration be upheld. Or, in the alternative, Defendant motions a dismissal with prejudice of Plaintiff’s claim for Plaintiff’s lack of standing.

Respectfully Submitted,

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Not providing the agreement doesn't mean lack standing. That's an argument you could possibly use if you request a copy of the agreement in discovery, and they don't provide it. Then, you could claim they haven't proven the agreement allows for the account to be sold or transferred to another entity.

If you haven't reached the discovery phase yet, then they haven't been asked to provide that copy.

You might state:

By failing to provide a copy of an applicable cardmember agreement, Plaintiff failed to inform Defendant of his right to elect arbitration.

The Federal Arbitration Act ("FAA") provides that arbitration clauses "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract."

"Ohio and federal courts encourage arbitration to settle disputes." Kelm v. Kelm (1993), 68 Ohio St.3d 26, 27; Southland Corp. v. Keating (1984), 465 U.S. 1, 10.

"A party seeking to enforce an arbitration provision may choose to move for a stay under R.C. 2711.02, or to petition for an order for the parties to proceed to arbitration under R.C. 2711.03, or to seek orders under both statutes." Maestle v. Best Buy Co., 100 Ohio St.3d 330, 2003-Ohio-6465.

R.C. 2711.02 of the OH Revised Code states:

(A) The party aggrieved by the alleged failure of another to perform under a written agreement for arbitration may petition any court of common pleas having jurisdiction of the party so failing to perform for an order directing that the arbitration proceed in the manner provided for in the written agreement. Five days' notice in writing of that petition shall be served upon the party in default. Service of the notice shall be made in the manner provided for the service of a summons. The court shall hear the parties, and, upon being satisfied that the making of the agreement for arbitration or the failure to comply with the agreement is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the agreement.

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BV80 is correct. You should make a couple of changes in this.

As per the above, the court lacks jurisdiction on this claim.

I'd delete this, you are not arguing jurisdiction or venue. Sounds a little preachy for a pro se, especially since it is making a legal conclusion which sounds unsupportable.

In the alternative, Defendant motions a dismissal with prejudice of Plaintiff’s claim for Plaintiff’s lack of standing.

Remove this, lack of standing is not the subject of the motion, nor should it be

Plaintiff is claims to be the assignee of GE Money Bank. By claiming to be the assignee and owner of the account, Plaintiff is, therefore, bound by the applicable agreement (See “26. ASSIGNMENT.” of the “agreement’). Plaintiff failed to provide a copy of the applicable agreement in its complaint that was signed by Defendant. In failing to provide a copy of an applicable agreement, Defendant argues that Plaintiff lacks standing to pursue this claim.

delete for above reason

WHEREFORE, Defendant respectfully requests that Defendant’s Motion to Dismiss the Plaintiff’s Complaint or, Alternatively, Motion to Stay Pending Arbitration be upheld. Or, in the alternative, Defendant motions a dismissal with prejudice of Plaintiff’s claim for Plaintiff’s lack of standing.

Delete this last part and you'll be in good shape.

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