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Difference in Electing vs Initiating Arbitration?

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Is there a difference between ELECTING Arbitration and INITIATING it?

I thought I had run through the appropriate steps in ELECTING ARBITRATION, then submitting an MTC to the court.

The Plaintiff's Atty Opposed my MTC citing failure to Intiate. Can someone help me clarify the difference, and how Electing didn't suffice?

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.

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....... and not knowing what you have done to ELECT arbitration (other than filing a Motion to Compel) I'd say you haven't missed anything.

ELECTING arbitration is putting Plaintiff on notice that you'd rather settle your disputes in an informal venue (where you might waive some of your rights) rather than in Civil Court (where you retain full right of appeal).

INITIATING arbitration is the act of filing a formal complaint to the arbitration forum of choice.

Depending on the language of the contract, the rules of the arbitration forum and any state or local rules ...... I'd say that the Plainiff is just blowing smoke to see if it gets in your eyes.

Per the language of the section of the agreement changes that you posted ...... all they've done is to remove NAF from the choice of arbitration forums you can use. In fact, they've given you a bonus by including JAMS.

I'd oppose their opposition and stick to your guns ..... cite your local rules regarding arbitration, any mention of the FAA governing the arbitration provision, AT&T MOBILITY LLC v. CONCEPCION & your states laws governing arbitration.

Don't let them buffalo you

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Don't see any issues either. You elected, and you elected JAMS. Now they need to initiate since they are the ones bringing the claim.

What do they expect you to do, arbitrate against yourself. They sued you, you elected arbitration, it's their claim to initate in the venue you selected. Keep in mind this is their unilaterally written contract of adhesion.

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I don't see it that clear cut. You have to lay a definite foundation that you have elected and not that your intentions are to also initiate.

I explained more in my post #11 here in OP's other thread - http://www.creditinfocenter.com/forums/there-lawyer-house/312962-plaintiffs-wacky-opposition-my-mtc-arb-convoluted-improper-help-please.html

In other words, less said is better.

"Per the terms of the governing agreement, I ELECT arbitration to resolve this dispute."

Anybody who is wanting to get into arbitration, whether to elect and initiate or just to elect and hope to get the plaintiff to initiate - read your agreements carefully!!

In this instance, in the OP's letter electing arbitration, they also mentioned initiating their claims. That opened up the other door. Then in the agreement it states that they will consider forwarding the fees if the consumer initiates and within the election letter, the OP mentioned they wanted them to forward the fees - again this is setting the stage that the consumer is going for initiation as well as election.

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...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

This is what baffles me with the sample letter's I have found. I'm wondering if this should be left out for those who are simply electing arbitration? Then if the attorney continues to litigate, you can then file/initiate a claim with JAMS for FDCPA violations along with some state violations (if any) as well. I'm in the same boat as you, although I still haven't sent my letter yet due to this one piece of the puzzle.

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This is what baffles me with the sample letter's I have found. I'm wondering if this should be left out for those who are simply electing arbitration? Then if the attorney continues to litigate, you can then file/initiate a claim with JAMS for FDCPA violations along with some state violations (if any) as well. I'm in the same boat as you, although I still haven't sent my letter yet due to this one piece of the puzzle.

This is exactly what I stated above. Less is better!

However, depending on the contracts language and depending on each person's circumstances, you have to decide what is the best action.

For some, it would be to only "elect".

Others with a contract that definitely states that the creditor will advance the funds to initiate - should ask in the election letter for the funds to initiate. If they don't advance, you have them on another violation.

Some people want to argue that their agreements say they can elect to resolve the dispute, but it doesn't say they have to initiate. In that case, only use the word "Elect". But, realize some Judges won't see it that way and will say that you have to also initiate - while other Judges will understand the difference and won't make the consumer initiate.

Or you might not have any violations and you're hoping that if you elect, they will still continue to litigate, so you have them on that violation.

However, sometimes when you elect and you have no violations, realize that the creditor may decide to abide by your request and suddenly dismiss the case w/o prejudice so that you can initiate or they may even file a MTC the court with a stay pending arbitration and insist that you initiate. Or they may file a MTC with the court in order to get a court order to arbitrate and use the court order to get into AAA. Be watchful of this scenario!! You don't want AAA, so if push comes to shove - initiate first in JAMS to keep this from happening!

The possibilities are endless in each case.

However, realize too for those of you that seemingly have no violations - when you first initiate, you don't have to list the specific violations. However, if the creditor goes ahead and pays their portion of the fees, you will have to file your formal complaint listing your specific violations. But, a lot of times during this procedure, the creditor may do something that is considered a violation and then you have one before your formal complaint time. In any event, if you are thinking about electing and setting up a scenario where you might be caught with no violations, be looking "now". Scour old statements, look at collection letters, or how about any phone conversations and go back and look at your credit report. Is everything reported exactly right? A lot of times you can find a hidden jewel within your credit report that you can use for a violation too! :)++

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