Plaintiff's Wacky Opposition to My MTC-Arb -- Convoluted & Improper? Help Please :)

[jdfkl]

Hi All! It’s me, Diligence, an Avid Fan and Late-Night Reader of this site.

I have followed and applied with care an MTC-Arb in my defense against Amex. I thought it was going to be a simple black-and-white motion; however, on day #10 after my filing --Plaintiff has 13 days to respond-- he did. [:!:With convoluted, blatant misrepresentations of the truth, mainly.]

I have never seen a response like this by a Plaintiff for an MTC, so I need some help, if you would be so kind. I need to respond to this Opposition. I am not sure how many days I have to respond --- will have to call the clerk in the am. But, it could be as few as 3 days?

Moving right along...

Rather than just arguing against my motion, he also used it as opportunity to restate all of the original Complaint’s allegations – only this time he itemized them as “Facts”. All allegations were denied, btw.

Here is his Opposition:

OPPOSITION TO MOTION TO COMPEL ARBITRATION AND DISMISS

OR IN THE ALTERNATIVE

TO STAY PROCEEDINGS PENDING ARBITRATION.

Now comes, Amex, by and through its attorney and replies to Defendant’s MTC-Arb and Dismiss or in the Alternative to Stay Proceedings Pending Arbitration.

INTRO:

The Defendant’s MTC-Arb should be denied as there in no proof an arbitration claim being filed pursuant to the terms of the agreement of the Defendant seeks to invoke.

Second, the Defendant’s Motion to Stay Proceeding Pending Arbitration should be denied as Defendant has failed to elect arbitration pursuant to the terms of the agreement the Defendant seeks to invoke, and therefore, there is no pending arbitration.

[me: as far as I/defendant can tell, this is based on a convoluted interpretation/presentation of the Amex Agreement. Nowhere do the terms state a Defendant must file with organization before electing arbitration. In addition, I sent a “Letter Electing Arb” via CMRR --the same day I sent a second CMRR to Plaintiff with a copy of the MTC-Arb. Both green cards made it back to me.]

PLAINTIFF’S STATEMENT OF FACTS

1) Plaintiff, Amex, a Corp is duly incorporated and existing under and by virtue of the laws of the STATE OF UT. Plaintiff Amex is located (Utah street address) Plaintiff is in the business extending credit on credit card accts and serving credit card accts, which is interstate in character. (See complaint para.1)

2) Defendant, XXXX, resides at (address). (see Complaint para. 2)

3) Defendant entered into an agreement with Amex, Account number assigned to the account was xxxxxx (see Complaint para. 3)

[me: aren’t these statements improper as I have denied them, and are unproven?]

4) The Exhibit A Cardmember Agreement contains all the terms on the account. A true and accurate copy of the Cardmember Agreement for the Defendant’s account is attached as Exhibit A. The Exhibit A agreement was sent to /defendant who subsequently acknowledged acceptance of the terms in the Exhibit A agreement by placing charges on the Amex account, with the account # XXXXX. Pursuant to the terms of Exhibit A agreement, Defendant agreed to repay the charges entered on the account.

6) [#5 was omitted by drafter of this document…. Likely a typo… in a hurry?]

Attached as Exhibit B are credit card statements sent to Defendant, on or about the time stated on the Exhibit B statements. Exhibit B statements show the charges placed on the account, the payments made on the account, and all other entries on the account during the monthly billing cycle as reflected on each of the Exhibit B Statements. The entries on the statements were made at or near the time as stated on the statement. The information on the Exhibit B statements were kept in the regular course of the Plaintiff’s business of issuing credit cards and extending credit on the issues cards. As shown on the Exhibit B statements, as of the date of xx/xx/xx, the balance of $XXXX was due and owing.

7) The Exhibit B statements, each of them, correctly, state the agreed upon interest rate owing on the account for the particular billing cycle. The final billing statement states the default interest rate owing on the account from the date the balance is due and continuing forward.

8) Plaintiff has made a demand on Defendant to pay the balance owing, and Defendant failed to pay the balance owing (see Plaintiffs Complaint, para. 4).

9) The principle balance of $xxxx for account number XXXXX is due and owing from the date of xx/xx/xx. (See Plaintiff Complaint para. 4).

10) Thus, Plaintiff is entitled to a judgment against Defendant in the amount of $xxxx, plus court costs (See Complaint, para. 6).

[me: what does any of the above have to do with arbitration???? It only serves as a venue to paint a picture of guilt. Isn’t this improper?]

ARGUMENT

I. THE COURT CANNOT COMPEL ARBITRATION AS THE DEFENDANT HAS NOT SUCCESSFULLY ELECTED ARBITRATION.

The Defendant has not successfully elected arbitration under the terms of the agreement that the Defendant now seeks to enforce. The agreement referred to by the Defendant in the Defendant’s Motion is not the agreement that was in effect at the time of default by the Defendant. The plain, written terms of the agreement that was in effect at the time of default by the Defendant provided that “to file a claim or for other information about these organizations, contact them as follows: NAF (address), AAA (address)….” (Emphasis added.)

Here, the Defendant has not asserted that he ever attempted to contact either organization referenced in the Exhibit A agreement in order to file a claim of arbitration. The Defendant sent a letter to Plaintiff’s attorney requesting to use JAMS for arbitration of the claim; however, Defendant never filed a claim as required under the terms of the Exhibit A agreement. Even if the agreement referenced by the Defendant were to apply to this case, the Defendant similarly failed contact JAMS as required under those terms. Defendant only made a demand on Plaintiff’s attorney.

[me: again, the nowhere in the agreement does it state a required sequence of events in order to elect arbitration, nor timeline. The beginning of the sentence they omitted in their quote reads “For a copy of the procedures, to file a Claim or for other information about these organizations, contact them as follows….” It was a friendly direction for obtaining information, not a requirement.]

Hence, because arbitration cannot be elected merely by issuing an “arbitration demand” to the Plaintiff’s attorney, the Motion to Compel Arbitration is without merit and should be denied.

[me: disputed. It appears that is exactly how a Defendant elects arbitration according to the agreement I cited in my MTC, the one in Exhibit A, and Exhibit B.]

Additionally, because the Defendant has failed elect arbitration pursuant to the terms of the agreement, the Defendant’s Motion to Stay Proceedings Pending Arbitration should be denied.

[me: what??!! CMRR, and admitted in their statement above.]

Furthermore, the Defendant has provided no supporting facts or argument for dismissing Plaintiff’s complaint and has failed to show a lack of Subject Matter Jurisdiction. Therefore, the Defendant’s Motion to Dismiss should be denied.

[me / copied from Plaintiff’s Exhibit A: Agreement states “ANY CLAIM shall be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration Provision and the code of procedures of the national arbitrations organization to which the Claim is referred in effect at eh the time the Claim is filed except to the extent the Code conflicts with this Agreement. Claims shall be referred to…., as selected by the party electing to use arbitration.”]

CONCLUSION

The Defendant’s MTC Arb should be denied as there is no proof of an arbitration claim being filed pursuant to the terms of the agreement the Defendant seeks to invoke.

Second, Defendant’s Motion to Stay Proceedings Pending Arbitration should be denied as no arbitration has been elected.

Finally, Defendant’s Motion to Dismiss should be denied as jurisdiction is proper and Defendant has failed to provide an support as to why Plaintiff’s Complaint should be dismissed.

Respectfully signed and submitted on xx/xx/xxx

Lawyer

Certificate of Mailing…..

Exhibit Inside Info to Follow in Next Post (Apparently mine is too long...)

[jdfkl]

Then he attached Exhibit A – which is stated to be the true and correct Agreement Terms at the time of default… [which time is expressly disputed by me].

The Agreement is printed with marks in the margins, which make it look like a copy that would be sent to a printer, rather than to a cardholder. The Agreement is dated 05/08 (emphasis added). This particular copy does, in fact, mention NAF and AAA as arbitration options. However, the agreement also leaves the caveat that if either of these is unacceptable, I would have 30 days after I received notice of Amex’s election to select the other organization listed.

THEN COMES Plaintiff’s self-defeating Exhibit B: A stack of statements labeled “Duplicate Copy” at the top, beginning date is 12/2008 (emphasis added) (and nowhere near a $0 balance, and not exactly a starting point of the statements).

Combing through the duplicates I found one that alerts the alleged cardholder of a change in terms:

“Notice of Changes to Your Account”:

“Arbitration Forum

Since the NAF no longer does consumer arbitration, we are replacing them with another organization. We are also adding a procedure for you to select an arbitration organization not listed in the Agreement.

Effective immediately, we are deleting the Initiation for Arbitration Proceeding/Selection of Administrator subsection of the Arbitration section of your Agreement and replacing it with the following:

“Initiation of Arbitration Proceeding/Selection of Administrator: Any Claim shall be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration Provision and the code of procedures of the national arbitration organization to which the Claim referred in effect at the time the Claim is filed (the “Code”), except to the extent the Code conflicts with this Agreement. Claims shall be referred to either JAMS or the AAA, as selected by the party electing to use arbitration. If a selection by us of either of these organizations is unacceptable to you, you shall have the right within 30 days after you received notice of our election to select the other organization listed to serve as arbitration administrator. For a copy of the procedures, to file a Claim or for other information about these organizations, contact them as follows: JAMS (Jams address); AAA (AAA address). In addition to the arbitration organizations listed above, Claims may be referred to any other arbitration organization that is mutually agreed upon in writing by you and us, or to an arbitration organization or arbitrator(s) appointed pursuant to section 5 of the FAA…”

So, basically, the Plaintiff gave me exactly the contract I needed within their own Exhibit

Also, worth pointing out, the agreement includes “At your written request, we will consider in good faith making a temporary advance of all or part of your share of the arbitration fees for any Claim you initiate as to which you or we seek arbitration.”

Sounds like they are opening the door for me to make a demand of the Plaintiff, no? And is that not an appropriate starting point for filing a claim, since one cannot file without paying fees? And the Plaintiff is volunteering to advance those fees?

If you need copies of the Letter Electing Arbitration, The MTC-Arb, or the Agreement I attached to the MTC-Arb, I will post them as requested below for your reference.

Excitedly awaiting your replies,

With thanks,

Diligence:shock:

[Flyingifr]

My Response would point out to the JUdge ahat Amex, being the Complaining party, is the one who, under both the Contract's Arb clause and the processes and procedures of AAA and all other Arb organizations, requires the Complaining Party to be the one initiating Abitration. They are trying to make a contractual provision that starts with the words "any dispute..... shall be decided by Arbitration" apply to the debtor only.

[Linda7]

You need to file a response to plaintiff's opposition.

It seems indeed they have furnished you with an agreement exactly with the terms you need.

I'll send you a pm in a few minutes.

[Guest usctrojanalum]

There is one thing they are right about though. You cannot elect arbitration by sending a demand to the attorney for the plaintiff. Almost every arbitration clause lists the ways that are acceptable to initiate arbitration, and none of them state by sending an election letter to an attorney.

[jdfkl]

Thank you for your feedback.

Is there a difference between ELECTING Arbitration and INITIATING it?

Below is the Letter I sent to the Atty to ELECT ARB:

To whom it may concern:

Pursuant to section titled “Arbitration” on page 6 of the enclosed Bank, FSB document I hereby ELECT arbitration to resolve all disputes between us.

The arbitration section contains language that waives your or my right to litigation in court upon ELECTION OF ARBITRATION. I expect you to honor these provisions, as will I. I hereby elect to refer all claims to JAMS; please find the JAMS Demand for Arbitration documents also enclosed.

In effect, I lawfully expect your dismissal of case #xxxxxxxx (xxxxx County, Utah) no later than 21 days from the receipt of this notice.

Per the document, I must also demand at this time that you forward any amounts required in the contract and amendments to initiate my claims against Bank, FSB in the contract.

If you would kindly forward the agreement and ALL AMENDMENTS so we can determine what amounts Bank FSB needs to forward to me for my claims in arbitration, per the document provisions, I would much appreciate it.

With thanks,

Defendant

Below are some of the Change Of Terms that the Plaintiff --Inadvertantly Included-- in a large Exhibit in Opposition of my Motion.

Are there terms listed below that I'm missing in respect to Electing? I read it as a general Provision, not as a set of step-by-step instructions. Please advise if I have overlooked something.

“Notice of Changes to Your Account”:

“Arbitration Forum

Since the NAF no longer does consumer arbitration, we are replacing them with another organization. We are also adding a procedure for you to select an arbitration organization not listed in the Agreement. Effective immediately, we are deleting the Initiation for Arbitration Proceeding/Selection of Administrator subsection of the Arbitration section of your Agreement and replacing it with the following:

“Initiation of Arbitration Proceeding/Selection of Administrator: Any Claim shall be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration Provision and the code of procedures of the national arbitration organization to which the Claim referred in effect at the time the Claim is filed (the “Code”), except to the extent the Code conflicts with this Agreement. Claims shall be referred to either JAMS or the AAA, as selected by the party electing to use arbitration. If a selection by us of either of these organizations is unacceptable to you, you shall have the right within 30 days after you received notice of our election to select the other organization listed to serve as arbitration administrator. For a copy of the procedures, to file a Claim or for other information about these organizations, contact them as follows: JAMS (Jams address); AAA (AAA address). In addition to the arbitration organizations listed above, Claims may be referred to any other arbitration organization that is mutually agreed upon in writing by you and us, or to an arbitration organization or arbitrator(s) appointed pursuant to section 5 of the FAA…”

Also, there is a clause in their Provision Regarding the Advancement of Fees in order to Initiate. My understanding was, an individual with a Claim against them (of any kind -- admitted or not) simply Elects Arbitration; and in order to Initiate the Arbitration Proceedings, Bank will Advance the Arbitration Fees.

Please let me know what I have missed

Payment of Fees

You will be responsible for paying your share, if

any, of the arbitration fees (including filing, administrative, hearing and/or other fees), but only

up to the amount of the filing fees you would

have incurred if you had brought a claim in the

state or federal court closest to your billing address that would have had jurisdiction. We will

be responsible for any additional arbitration fees.

At your written request, we will consider in good

faith making a temporary advance of all or part

of your share of any arbitration fees. You will not

be assessed any arbitration fees in excess of

your share if you do not prevail in any arbitration

with us.

[Linda7]

Email received and replied.

[racecar]

We turn first to the question of whether the federal courts have

subject-matter jurisdiction over Discover Bank’s § 4 petition for arbitration

under the FAA.

Under § 4 of the FAA, a district court may issue an order compelling

arbitration if the court would otherwise "have jurisdiction under

Title 28, in a civil action . . . of the subject matter of a suit arising

out of the controversy between the parties." 9 U.S.C. § 4 (2000)

(emphasis added). Section 4 does not require a party to actually file

suit regarding the underlying controversy; the FAA requires only that

a party be aggrieved by another party’s failure to arbitrate a controversy,

"the subject matter of which would fall within the jurisdiction

of this Court, were an actual suit to arise out of the controversy."

Reynolds & Reynolds Co. v. Image Software, Inc., 254 F. Supp. 2d

761, 765 (S.D. Ohio 2003); see Vaden I, 396 F.3d at 369 ("We thus

hold that a federal court possesses subject-matter jurisdiction over a

case when the controversy underlying the arbitration agreement presents

a federal question."); id. at 370 ("The text of § 4 requires us to

consider jurisdiction as it arises out of the whole controversy between

the parties."); Tamiami Partners, Ltd. v. Miccosukee Tribe, 177 F.3d

1212, 1223 n.11 (11th Cir. 1999) (suggesting that "it is appropriate to

look through the arbitration request to assess whether the underlying

dispute between the parties is grounded in federal law). Thus, a § 4

petition to compel arbitration is properly in federal court if the underlying

dispute presents a federal question.2 Moses H. Cone Mem’l

Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 n.32 (1983); Vaden

I, 396 F.3d at 367. A court must therefore look through the arbitration

claim and examine the underlying state-court action.

http://www.paulhastings.com/assets/publications/1312.pdf

http://pacer.ca4.uscourts.gov/opinion.pdf/061221.P.pdf

[Coltfan1972]

Is there a difference between ELECTING Arbitration and INITIATING it?

All the difference in the world !!!

I'm electing to run for president, does that mean I'm running for president. No, I'm just electing to run. When I actually run for president I have initaited running for president and made it offical by paying my filing fee.

[jdfkl]

Point taken, Coltfan. I'm glad to see you here, too! I'm feeling some strength here in this thread.

So then my question becomes do I have to INITIATE arbitration in order to have made a valid ELECTION?

They definitely seem like two different things.

According to the Agreement, it looks to me like all I need to do is ELECT or declare that Preference for Arbitration within the provision.

The Opposing Attorney looks like he is using INITIATION as the only means of Electing... it doesn't jive with what I think I'm reading in the Agreement, and it looks like a stalling tactic; or like the Plaintiff's Atty is taking the Agreement out of Context (for the purposes of supporting their fake argument?).... but then again, I'm not an expert here, and could have missed something.

Insights?

[Linda7]

You first have to lay the foundation properly to argue election vs initiation. And even with a proper foundation, some judges will agree, while others will not.

In this instance, I feel there is a problem with the foundation. In your election letter you state:

"Per the document, I must also demand at this time that you forward any amounts required in the contract and amendments to initiate my claims against Bank, FSB in the contract."

You are stating that you have claims against the creditor that you want to initiate.

Also in the payment of fees section in the "correct" agreement it states:

"At your written request, we will consider in good faith making a temporary advance of all or part of your share of the arbitration fees for any Claim you initiate as to which you or we seek arbitration."

And in your letter you state:

"Per the document, I must also demand at this time that you forward any amounts required in the contract . . . . . . "

That sentence along with the part in the agreement about advancing all or part of the fees, is referring to you initiating a claim.

I am afraid this would be an uphill battle to get any Judge to agree that you were "only" electing arbitration.

You also used the wrong year agreement to motion the court to compel arbitration.

You might try to amend the whole thing and start over by electing arbitration and using the specific quotes from the relevant agreement. I would not ask for an advance of fees as that is specified for a consumer that is wanting to "initiate" their claims against the creditor. I would only elect arbitration without any mention of funds.

Then you could file a MTC using the correct agreement, using quotes from the agreement, citing the FAA and AT&T vs Concepcion. You could even argue that the plaintiff should initiate and use some relevant case law if you want them to initiate.

Or you could file the MTC as stated above and go ahead and initiate with JAMS yourself to bypass the chance that you might lose the argument of who initiates - just to get your foot in the arbitration door.

In any event, I would call the clerk of your court and see if you can file the amended motion or if you have to get leave from your court or if they will even permit it.

Let me know what you find out and if you want to argue that they should initiate, I can give you some case law that is persuasive.

Edited March 27, 2012 by Linda7

[jdfkl]

Linda7,

I sent you a few emails this am, including response from clerk.

[Dr_Drama]

I am basically in this same situation wondering if I should just initiate to keep the attorney from this type of argument. The agreement only lists NAF and AAA so I would be using AAA.

I haven't sent the election letter, and would like to know if there are any updates on how this case has progressed for you (if any).