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How do I initiate Arbirtration?


Rimmer
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Who is the named plaintiff in the suit?

Rimmer

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Zwicker and Associates representing Discover

3. How much are you being sued for?

<5000

4. Who is the original creditor? (if not the Plaintiff)

Discover

5. How do you know you are being sued? (You were served, right?)

Served, yes

6. How were you served? (Mail, In person, Notice on door)

Mail in mailbox

7. Was the service legal as required by your state?

Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

There was correspondence, but not for 2 years.

9. What state and county do you live in?

MA

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

2007

11. What is the SOL on the debt? To find out:

6 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

In Discovery.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

NA

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Just summons with amount of alleged debt.

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HELP!

What should I do. I got my discovery request back recently. They did not provide me a signed credit card agreement or signed receipts because they said I needed to provide them?

In any case, they gave me two card agreements for the alleged debt. If I were to enter arbitration, would I use the first older one, before 2004 not 2006? The 2006 one does not have JAMS.

Also, any help drafting the Motion to Compel and Motion to Dismiss would be great. I want to do this tonight.

Thanks

Rimmer

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HELP!

What should I do. I got my discovery request back recently. They did not provide me a signed credit card agreement or signed receipts because they said I needed to provide them?

In any case, they gave me two card agreements for the alleged debt. If I were to enter arbitration, would I use the first older one, before 2004 not 2006? The 2006 one does not have JAMS.

Also, any help drafting the Motion to Compel and Motion to Dismiss would be great. I want to do this tonight.

Thanks

Rimmer

What was the date of last payment?

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2007.

I am thinking about just filing a motion to compel arbitration tomorrow referencing the credit card agreement that has JAMs.

Do I have to contact JAMs first? I want the Plaintiff Discover to pay.

If JAMS is not in the agreement, Discover could object. Read Linda7's posts about arbitration.

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The 1999 agreement does, that would cover the account opened after 1999 but before 2004

Here is my Motion, please help.

I, Matthew Lyons (Defendant) would like to make a

MOTION TO COMPEL ARBITRATION via JAMS (at 1920 Main Street, Suite 300, Los Angeles, CA 92614)

Furthermore, I would like the Plaintiff to advance any arbitration filing, administrative and hearing fees which the Defendant would be required to pay to pursue a claim.

______________________________________

Background:

The Plaintiffs, Discover Bank (Zwicker and Associates) provided a limited and incomplete response to Discovery received by the Defendant on 4/10/12.

Though, under the Discover Card (Platinum) card agreement from 9/1999 (located in 5. Index of Documents provided by the Plaintiff in Discovery -- see attached agreement) that governs the alleged debt, there is a clause for ARBITRATION of DISPUTES. I would therefore like to resolve the dispute via ARBITRATION as available under the contract.

____________________________

From the agreement page 8 and 9:

"ARBITRATION OF DISPUTES, In the event of any past, present or future claims or dispute (whether based upon contract, tort, statute, common law or equity) between you and us arising from or relating to your Account, any prior account you have had with us, your application, the relationships which result from your Account, or the enforceability or scope of this arbitration provision, of the Agreement or of any prior agreement, you or we may elect to resolve the claim or dispute by binding arbitration.

IF EITHER YOU OR WE ELECT ARBITRATION, NEITHER YOU NOR WE SHALL HAVE THE RIGHT TO LITIGATE THAT CLAIN IN COURT OR TO HAVE THE RIGHT TO A JURY TIRAL ON THAT CLAIN, PRE HEARING DISCOVERY RIGHTS AND POST-HEARING APPEAL RIGHTS WILL BE LIMITED. NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER CARDMEMBERS WITH RESPECT TO OTHER ACCOUNTS, OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPCITY. Even is all parties have opted to litigate a claim in court, your or we may elect arbitration with respect to any claims made by a new party or any new claims later asserted in that lawsuit, and nothing undertaken therein shall constitute a waiver of any rights under this arbitration provision.

____________________________

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...from page 10

This arbitration provision shall survive termination of your Account as well as voluntary payment in full by you, any legal proceedings by us to collect a debt owed by you, and bankruptcy by your and any sale by us of your Account

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I, Matthew Lawrence Lyons (Defendant) would like to make a

MOTION TO DIMISS

As I have acted upon the arbitration clause in the cardmember agreement supplied by the Plaintiff (attached). Legal action is now waived by the conditions set for therein.

______________________________________

Background:

The Plaintiffs, Discover Bank (Zwicker and Associates) provided a limited and incomplete (failure to answer third interrogatory request) response to the requested Discovery received by the Defendant on 4/10/12.

Though, under the Discover Card (Platinum) card agreement from 9/1999 (located in 5. Index of Documents provided by the Plaintiff in Discovery -- see attached agreement) that governs the alleged debt, there is a clause for ARBITRATION of DISPUTES.

I would therefore like to resolve the dispute via ARBITRATION as available under the contract.

____________________________

From the agreement page 8 and 9:

"ARBITRATION OF DISPUTES, In the event of any past, present or future claims or dispute (whether based upon contract, tort, statute, common law or equity) between you and us arising from or relating to your Account, any prior account you have had with us, your application, the relationships which result from your Account, or the enforceability or scope of this arbitration provision, of the Agreement or of any prior agreement, you or we may elect to resolve the claim or dispute by binding arbitration.

IF EITHER YOU OR WE ELECT ARBITRATION, NEITHER YOU NOR WE SHALL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE THE RIGHT TO A JURY TIRAL ON THAT CLAIN, PRE HEARING DISCOVERY RIGHTS AND POST-HEARING APPEAL RIGHTS WILL BE LIMITED. NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER CARDMEMBERS WITH RESPECT TO OTHER ACCOUNTS, OR ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPCITY. Even is all parties have opted to litigate a claim in court, your or we may elect arbitration with respect to any claims made by a new party or any new claims later asserted in that lawsuit, and nothing undertaken therein shall constitute a waiver of any rights under this arbitration provision.

...from page 10

This arbitration provision shall survive termination of your Account as well as voluntary payment in full by you, any legal proceedings by us to collect a debt owed by you, and bankruptcy by you and any sale by us of your Account

____________________________

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Why don't you slow down and google motion to compel arbitration. Then narrow those down to what is relevant to your specific case.

You're all over the place with your motion. You also need to clearly address the issue the other side will raise that you have gone too far into the litigation process and you're "in default" of the arbitration agreement.

You need to find out what the courts in your circuit/area have ruled on what is considered being "in default" of the arbitration clause. Then address those issues proactively and cut off that argument before they can ever make it.

You also need to cite the U.S. Supreme Court case with AT&T. You also need to clearly elect arbitration prior to filing a motion to compel arbitration. How can you ask the court to compel something you have not even elected. At best your motion is pre-mature.

How do you elect arbitration? By the strict language in the card memeber agreement. Yes, I am of the belief that you can elect and then turn right around and motion to compel arbitration. However, I am also of the belief (does not make me right) that you are pre-mature until you elect arbitration.

Also you can't force the court to order them to pay fees. When you choose arbitration you are saying the court no longer has jurisdiction over you or the case. In other words, you can't have it both ways. You can't ask the court to give up jurisdiction and in the next sentence ask the court to impose an order on the other side. You either want the court to have jurisdiction or you don't.

You need to slow down, study, and then do what you think is necessary. What was going on this whole time as far as strategy from the time you were served until now, that you are in complete panic mode.

Lack of preperation on your part does not constitute an emergency for others. Slow down and get this right before you start firing off motions. You're getting ready to get slaughtered on procedure alone, without anybody even addressing the merits of your arguments.

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I just got the cardmember agreement less than 90 days into the litigation, we are still in discovery.

This is too late to ask for arbitration? There is a survivability clause?

Ug.

Who has sent discovery requests and have either or both sides responded to the requests?

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I just got the cardmember agreement less than 90 days into the litigation, we are still in discovery.

This is too late to ask for arbitration? There is a survivability clause?

Ug.

Survivability clause will have nothing to do with it. As I said above, you will have to see how the courts in your area define being in "default" of the agreement.

Generally speaking, if you go too far into the litigation process you waive aribtration. However, you obviously have a very powerful case in your back pocket with the U.S. Supreme Court in the AT&T case.

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Have you elected arbitration?

If you have an agreement (and sounds like you do) with JAMS, I'd send a notice of electing arbitration "along" with your JAMS demand papers to both the attorney and Discover. Then I'd file a MTC arbitration with the court. Make sure to ask if you need to request a hearing on your motion. Also, be sure and file an affidavit that "this" agreement is the one governing the account.

Nothing ventured, nothing gained. All they can tell you negative is that it is too late. However, look over your agreement - does it say anything about "when" you can elect or initiate? That might be your answer.

I'd move fast and initiate with JAMS before they initiate with AAA! :)++

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Have you elected arbitration?

If you have an agreement (and sounds like you do) with JAMS, I'd send a notice of electing arbitration "along" with your JAMS demand papers to both the attorney and Discover. Then I'd file a MTC arbitration with the court. Make sure to ask if you need to request a hearing on your motion. Also, be sure and file an affidavit that "this" agreement is the one governing the account.

Nothing ventured, nothing gained. All they can tell you negative is that it is too late. However, look over your agreement - does it say anything about "when" you can elect or initiate? That might be your answer.

I'd move fast and initiate with JAMS before they initiate with AAA! :)++

Discover Bank agreements (at least as of 2008) don't include JAMS. :(

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I flied the motion to compel arbitration and a seperate motion to dimiss today and set up a motion hearing. I guess I can elect/initiate arbitration now? Though the JAMS sight says different things if you are in litigation? Like you need more documentation. I suppose I can call them.

I would like the OC to pay the fee. Do I call them or deal with the law firm?

Thanks

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I guess I can elect/initiate arbitration now?

Elect and Initiate arbitration are as different as night and day. You're getting ready to find that out real quick at your motion to compel arbitration hearing, when your motion is denied, your motion to dismiss is then denied, and the case moves on.

You have refused to cross your T'S and dot your I'S and the court is getting ready to do it for you at the motion hearing. Sorry, nothing personal at all, just giving it to you straight.

You don't file motions and other pleadings with the court, then figure out what you need to do next. You do everything required first, then you file your court documents after you have got your ducks in a row.

You had the resident expert on arbitration tell you exactly what to do, and you did nothing as she advised.

Unfortunately this is heading for a-

:trainwreck:

Edited by Coltfan1972
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I flied the motion to compel arbitration and a seperate motion to dimiss today and set up a motion hearing. I guess I can elect/initiate arbitration now? Though the JAMS sight says different things if you are in litigation? Like you need more documentation. I suppose I can call them.

I would like the OC to pay the fee. Do I call them or deal with the law firm?

Thanks

You've done this backward, but let's see if we can salvage anything. I'd "fax" now a letter electing arbitration to the attorney and follow up by sending the letter CRRR to the attorney and Discover tomorrow!

Did you include the AT&T vs Concepcion in your MTC or the FAA clause?

I have posted a sample of a MTC arbitration using a Capital One 2008 agreement on the forum in several places. You could have used that sample and in place of the Capital One language, put in the Discover language from your agreement.

You don't need to call JAMS. You need to send the JAMS demand papers to the attorney and Discover - then send everything to JAMS.

You'll need two copies of the agreement, two copies of the JAMS demand and proofs of service where you have already sent the JAMS demand to the attorney and to Discover when you are ready to send it in to JAMS.

Here is where you get your JAMS demand paper - http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf The consumer would submit $250 for their cost. Or in some contracts, it specifies that you may ask and they will advance or might advance your fees. What does your agreement say?

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In the motion, I stated clearly I electing to resolve this via arbitration. I will send that fax tomorrow though to the attorney.

I will state that I am electing to resolve this dispute via arbitration.

Thanks.

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In the motion, I stated clearly I electing to resolve this via arbitration. I will send that fax tomorrow though to the attorney.

I will state that I am electing to resolve this dispute via arbitration.

Thanks.

Please read what they are telling you, then ask if that is the right thing to do. If you are just going to tell us what you ARE doing, no one can help you.

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