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Fred Levin/Attorney for plaintiff

123344 Old Leeds RD

Mountain Brook Al 35223

IN THE LIMESTONE COUNTY DISTRICT COURT

Bank name

Plaintiff Case No.:Cv 90210

vs.

my name

Defendant Pro'Se

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION

COMES NOW the Defendant my name appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about September 19, 2012, Plaintiff filed its Complaint against Defendant.

2. Defendant moves this court to compel binding Private Arbitration with Jams based on the terms and conditions of the Credit Card Agreement (see Exhibit A, attached).

3. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(B) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY

© YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.

4. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

5. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

6. The Defendant elects arbitration with jams to settle this dispute.

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted this day 09/19/2012

my name Defendant, pro se

VERIFICATION BY AFFIDAVIT

Personally appeared before me, the undersigned, who on oath states that the facts set forth in this MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of my knowledge and belief.

my name Defendant Pro Se

Witness my hand and official seal this the 19th day of September, 2012.

(SEAL)

____________________________________

Notary Public

My Commission expires:

I my name CERTIFY that I mailed a copy of this Motion to:LIMESTONE COUNTY DISTRICT COURT and to Fred Levin Attorney at law on 09/19/2012

Date: September 19, 2012

http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf

http://www.jamsadr.com/files/Uploads/Documents/casesubmission.pdf

Print out 2 copies of each to the plaintiff

print out one copy of each for the court

Print out two copies of each for you

This site is not intended or offered as legal advice. These materials are for educational and information purposes only.

Edited by racecar
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If you have not already done so, do a "Google Advanced Scholar" search.

In the box "exact phrase" type "arbitration debt." Down below, check, "anywhere in the article." Down below that, for court, go to states, click on "Alabama." For dates, type 2009-2012, and quite a few will show up. Read them, and become familiar with the Ala. appellate court rulings on arbitration agreements.

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Be sure to read that case decided May 2012 by Ala. Crt of Appeals, which discusses the law on Motions to Compel Arbitration. Note too, that the court held that if a debtor has "substantially invoked the litigation process," he has waived his right to compel arbitration.

"In order to demonstrate that the right to arbitrate a dispute has been waived, the party opposing arbitration must demonstrate both (1) that the party seeking arbitration substantially invoked the litigation process, and (2) that the party opposing arbitration would be substantially prejudiced by an order requiring it to submit to arbitration. Curren, 779 So. 2d at 1174; Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d 897, 899 (Ala. 1995)."

They also said this "No rigid rule exists for determining what constitutes a waiver of the right to arbitrate; the determination as to whether there has been a waiver must, instead, be based on the particular facts of each case."

"`Companion Life Ins. Co. v. Whitesell Mfg., Inc., 670 So. 2d 897, 899 (Ala. 1995) (citations omitted). The courts will not lightly infer a waiver of the right to compel arbitration; thus, the burden on the party seeking to prove waiver is a heavy one.'

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They still have not decided on the MTC

"we must remand this case for the trial court to make specific factual findings. On remand, the trial court is to conduct further proceedings and to take evidence as may be necessary, including testimony from such witnesses, by deposition or otherwise, as the parties choose to present. The trial court shall file a return to this remand within 42 days of the date of this opinion. The return to remand shall include a transcript of any proceedings conducted by the trial court on remand, any evidence submitted by the parties, and the trial court's findings of fact and conclusions of law."

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You will need to print out your credit agreement for the court showing you have an arbitration clause.

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 arbitration organization to which the claim

is referred in effect at the time the claim is filed

(code), except to the extent the code conflicts

with this Agreement. Claims shall be referred to

either JAMS or the American Arbitration

Association (AAA), as selected by the party

electing to use arbitration.

If our selection of

either of these organizations is unacceptable to

you, you may select the other organization within

30 days after you receive notice of our selection.

For a copy of the code, to file a claim or for other

information, contact either JAMS (1920 Main St

#300, Irvine, CA 92614 or jamsadr.com) or AAA

(335 Madison Ave, New York, NY 10017 or

adr.org).

IF ARBITRATION IS CHOSEN BY ANY PARTY

WITH RESPECT TO A CLAIM, NEITHER YOU

NOR WE WILL HAVE THE RIGHT TO LITIGATE

THAT CLAIM IN COURT OR HAVE A JURY

TRIAL ON THAT CLAIM. FURTHER, YOU AND

WE WILL NOT HAVE THE RIGHT TO

PARTICIPATE IN A REPRESENTATIVE

CAPACITY OR AS A MEMBER OF ANY CLASS

OF CLAIMANTS PERTAINING TO ANY CLAIM

SUBJECT TO ARBITRATION. EXCEPT AS SET

FORTH BELOW, THE ARBITRATOR’S

DECISION WILL BE FINAL AND BINDING.

NOTE THAT OTHER RIGHTS THAT YOU OR

WE WOULD HAVE IF YOU WENT TO COURT

ALSO MAY NOT BE AVAILABLE IN

ARBITRATION.

This site is not intended or offered as legal advice. These materials are for educational and information purposes only.

Edited by racecar
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