Linda7

The strategy and steps of arbitration

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Please tell me you appealed that erroneous ruling !

Read your rules and see if Motion to reconsider tolls appeals process, if it does, I will file a MTR, if not I'd go right up to higher court.

30 days from the order to file an appeal .

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Please tell me you appealed that erroneous ruling !

Read your rules and see if Motion to reconsider tolls appeals process, if it does, I will file a MTR, if not I'd go right up to higher court.

30 days from the order to file an appeal .

I decided against appeal, Midland hit me with an MSD the day after my MTC was denied at pre-trial and their case is such a mess that I decided to go ahead and use the court system instead.

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Can anyone tell me how to "add up" violation amounts for statutory and actual damages for FDCPA, FCRA and State Consumer Protection Law when completing a formal complaint for JAMS?

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Can anyone tell me how to "add up" violation amounts for statutory and actual damages for FDCPA, FCRA and State Consumer Protection Law when completing a formal complaint for JAMS?

I'm sorry, I just saw your post.

This would be hard to say as I haven't seen your formal complaint and you wouldn't want to post it on the open board.

You need to study your state's laws to see what laws you might have that you can use. Consumer protection, deceptive trade practices act, etc. Use any violations that you can think of including breach of contract, etc.

I think a good place to try and pinpoint what you can use and the amounts you are allowed would be to see if you can find some court cases brought in your state where a creditor was sued for violations. You'll be amazed what you can glean from such cases.

Also, here are a couple more from some of our good friends at debtorboards that you might want to take a peek at - Out of time (nearly), please critique formal complaint and Feedback on MTC - WI

Edited by Linda7

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I have all of my violations in order,(the attorneys and the OC have been very generous in supplying those). I just am not sure what to ask for in terms of money damages for statutory vs. actual damages for my FDCPA violations, my FCRA violations and my MI Consumer Law violations.

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I saw your post at the other forum and I just want to make sure you understand what I am saying about the order of sending things.

The notice electing arbitration will go to the plaintiff and to the attorney. You do "not" send anything, but the notice electing arbitration. Do not, send the agreement or the affidavit with this letter.

The time you send the agreement with the affidavit attached to it, will be when you file your MTC with the court. Make sure that you do get your MTC arbitration filed with the court (and don't forget your answers/affirmative defenses and the timeline for doing so).

Also, after your answer/affirmative defenses and the MTC are filed and let's say you have a court hearing - I want you to get this court setting in your mind as to how this "might" work.

I'd go to court with two agreements. The NAF that you found and the JAMS one that you found. If the plaintiff starts protesting about the JAMS agreement or complaining that it is the wrong year - here would be my argument.

#1 - the plaintiff did not attach an agreement to the complaint.

#2 - there has been no indication or proof of when this alleged account was opened. *Remember, them showing a statement from 2008 or whenever, does not prove when the account was opened.

#3 - you researched various BOA agreements and found two. One has the NAF part, but says that if NAF is unable or unwilling to act as arbitrator, we may substitute another nationally recognized, independent arbitration organization that uses a similar code of procedure. As NAF does not participate anymore in credit card disputes, you looked for an equal forum. Then you discovered that BOA had used JAMS before, so you chose JAMS as the substitute.

#4 - the plaintiff has already been notified on such and such a date that you were using JAMS (and have a copy of your election letter to show the judge).

They will either agree and let you use JAMS - or they will let the creditor pick another forum per the terms of the NAF agreement - or they will say that because the NAF is no longer taking credit card disputes, that you don't get to choose arbitration.

So, what do you have to lose by trying with JAMS?

If everybody accepts the 2003 agreement with JAMS - you're all set.

If it is argued out using the NAF agreement as the agreement to govern, but JAMS is agreed upon as the substituted arbitration organization, then you need to tell the judge that all you need is his order stipulating that you are to initiate in JAMS. Without that, JAMS won't accept the case as they are not in the NAF agreement. Does that make sense?

Also, you could have "in hand" your JAMS demands to show the judge so that he will see you are serious. And again, tell him you're all set to go as soon as you can get his court order to go with your papers stipulating that you are to initiate in JAMS.

Yes, I understand...very helpful the way you put it. The election is already on its way. But again to trouble you, I have a couple questions regarding on the mtc form and notary.

For the mtc arb, the only part I really need to change is #4? Sorry, a bit newbie on here. And I'll still need a notary to sign and what not, yes? On the bottom where it says "I certify I mailed a copy to such and such" I dont' really have to worry about this part as I'll be bring it to hearing, yes?

Edited by toyfigure99

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Linda, I was served a complaint and I'm drafting my answer right now. It's from a JDB and the OC is HSBC, and there is an arbitration clause, which I plan on using. However, I'm confused on when I elect arbitration. Do I put it IN my answer? Do I have to send a different letter? I apologize if I overlooked the answer in this thread, it's a little overwhelming!

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I have all of my violations in order,(the attorneys and the OC have been very generous in supplying those). I just am not sure what to ask for in terms of money damages for statutory vs. actual damages for my FDCPA violations, my FCRA violations and my MI Consumer Law violations.

Look up court cases in your area (consumer filing against creditor) and you should be able to see violations used in your state and the monetary damages they seek.

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Yes, I understand...very helpful the way you put it. The election is already on its way. But again to trouble you, I have a couple questions regarding on the mtc form and notary.

For the mtc arb, the only part I really need to change is #4? Sorry, a bit newbie on here. And I'll still need a notary to sign and what not, yes? On the bottom where it says "I certify I mailed a copy to such and such" I dont' really have to worry about this part as I'll be bring it to hearing, yes?

If your agreement is something other than a 2008 Capital One - then yes, you need to replace all the quotes in #4 to reflect relevant, comparable statements from your agreement.

And no to the other question - if you are going to hand deliver the MTC, you can put a certification at the bottom along these lines -

I CERTIFY that I personally presented a copy of this MOTION to:

XXXXXXXXXXXXXXXXX., Plaintiff's attorney

By: Your name typed, Defendant

Date: __________________, 2011

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Linda, I was served a complaint and I'm drafting my answer right now. It's from a JDB and the OC is HSBC, and there is an arbitration clause, which I plan on using. However, I'm confused on when I elect arbitration. Do I put it IN my answer? Do I have to send a different letter? I apologize if I overlooked the answer in this thread, it's a little overwhelming!

What year was the alleged account opened and what year was the default?

HSBC agreements usually have good language for the consumer and I like to use it as part of the election letter.

Let me know the answer to the above and then I'll explain.

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Thank you Linda for all your help...makes me a stronger person that I was before. But to the matter at hand, it's been more than a week since my election letter. At this point with less than 7days before my initial appearance, it is very likely that they won't respond at all to my letter. I know I can still go with what we have been discussing in the past weeks but I was just wondering on scenario that they don't respond to arb letter, how do members here usually go about this?

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Thank you Linda for all your help...makes me a stronger person that I was before. But to the matter at hand, it's been more than a week since my election letter. At this point with less than 7days before my initial appearance, it is very likely that they won't respond at all to my letter. I know I can still go with what we have been discussing in the past weeks but I was just wondering on scenario that they don't respond to arb letter, how do members here usually go about this?

Have you filed your MTC arbitration with the court and asked if you needed to schedule a hearing on your motion?

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Doing that tomorrow and gonna ask the clerk a few questions regarding that. I'm such a fool, after a week I was hoping they'll have some decency to respond and uphold their agreement. Boy, they don't really have any morals.

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In post #8, I showed you a sample of a motion to compel arbitration. In some courts, you'll need to file a brief or memorandum in support of your motion. If this is required, below is a simple way to incorporate the motion to compel sample as your brief or memorandum in support.

Your court header information, plaintiff vs defendant, case number, etc., would go at the top.

 

*Also note the Arkansas mention contained within.  Google your own state and then put in - Uniform Arbitration Act and you'll find your own state's code to use.

The first thing below will be your motion for Page 1. Page 2 (below the asterisks) will be the brief in support.

 

*Please note - the titles for each section should be centered and underlined, however as it is typed below, it may not show that.

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION

AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS

PENDING ARBITRATION



NOW COMES Defendant, appearing Pro Se, and hereby moves this court to compel private/contractual arbitration based on the Customer Agreement governing this account. The parties are bound by the Customer Agreement to settle disputes by binding arbitration upon the election of either party. This Motion constitutes Defendant's notice of election to this Honorable Court to have this dispute resolved by private/contractual Arbitration. Attached is a brief in support of this Motion.

Respectfully submitted this date, September 4, 2012

Your Name Typed, Defendant, Pro Se
Your Address
Your Phone Number

******************************************************


Page two would be your brief in support. Your court header information, etc., again would go at the top.

This is a SAMPLE! Use your "own" agreement quotes. The quotes below (a-e) are from a 2008 Capital One agreement. The quotes should reflect "your" agreement, so be sure to check it carefully.

**Also note - the sample below is specific to the state of Arkansas. You'll note the Arkansas arbitration act is mentioned in the conclusion. If you do a google search for your state's arbitration act, you'll be able to find the relevant information to include for your situation.

Take it to a notary and sign the verification by affidavit in front of them and get them to put their seal on it and then you're ready to file with the court. Don't forget to send copies of everything you file to the plaintiff's attorney.

As you can see, the brief in support mentions 2 attached exhibits.

Exhibit A, is a copy of the election letter that is sent to the plaintiff's attorney.

Exhibit B, is a copy of the agreement. You need to highlight the portions in the agreement that have been cited in your brief. In this instance, it would be the things listed in paragraph 4, a-e.

 

 

**Also note - under the Arguments and Authorities, it shows (a), (B), etc., but the "c" is not showing the same. It is showing as a copyright symbol and I can't correct it with this editor.  Please change it to look like the other letters, (a), (B), etc.



DEFENDANT'S BRIEF IN SUPPORT OF ITS


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




NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration per the Capital One Arbitration agreement and as grounds thereto states the following:

FACTS



1. That on or about August 21, 2012, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on August 30, 2012, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

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


ARGUMENTS AND AUTHORITIES



1. 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.

2. The Federal Arbitration Act (FAA) 9 USC, Section 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”.

3. 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 . . . "

4. The Defendant elects arbitration to settle this dispute.


CONCLUSION



WHEREFORE, in accordance with Arkansas Uniform Arbitration Act §16-108-202, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to stay proceedings pending contractual arbitration.


Respectfully submitted this day, September 4, 2012

Your Name Typed, 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 TO STAY PROCEEDINGS PENDING ARBITRATION AND BRIEF IN SUPPORT are true and correct to the best of his/her (put your gender) knowledge and belief.



_______________________________________
Your Name Typed here and sign on the line above, Defendant Pro Se


Witness my hand and official seal this the _________ day of __________, _________.



(SEAL)





____________________________________
Notary Public

My Commission expires:

____ / ____ / ________.



I CERTIFY that I mailed a copy of this MOTION to:
XXXXXXXXXXXXXXXXX, Plaintiff's attorneys
Their Address

By: XXXXXXXXXXXX, Defendant
Date: September 4, 2012

Edited by Linda7
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Hi Linda7

Do you have an Motion to Compel Arbitration for the state of Alabama, or information on where I can find one. I need to file one in Limestone county. I have a copy of the card agreement that contains arbitration provisions. Any help is much appreciated.

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Sorry - I edited this post, so that the motion to compel and the brief would be together in my previous post.

Edited by Linda7

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Hi Linda7

Do you have an Motion to Compel Arbitration for the state of Alabama, or information on where I can find one. I need to file one in Limestone county. I have a copy of the card agreement that contains arbitration provisions. Any help is much appreciated.

I need a little more information. Who is the original creditor and what year was the alleged account opened and what year was the default?

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This is a credit card from sams club Open the account in 2007, Charge off in 2010. This is a small claims case.

Question: There was no information in the summon, but the complaint which said what they say I owe then $1009

1) Breach of Contract

2)Open account

3) Account Stated

I answered the summon, had the case sent to the county I live in

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This is a credit card from sams club Open the account in 2007, Charge off in 2010. This is a small claims case.

Question: There was no information in the summon, but the complaint which said what they say I owe then $1009

1) Breach of Contract

2)Open account

3) Account Stated

I answered the summon, had the case sent to the county I live in

Sending a pm. :)++

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*sniff* I just can't thank you enough, Linda!!!

Okay, went to a notary today and got his signature and file the motion with the clerk. I asked if I needed to schedule a hearing date, the clerk said no and only after my initial appearance will motion be heard (if no agreement reached). She also said they'll auto schedule me for the hearing. I also mailed (crrr) every copies along with agreement to plaintiff's lawyer.

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*update

Linda, finally got back a response today from my initial letter. Apparently, the plaintiff's filed a motion to the court to have my arb right waived if I don't initiate it in xx days and for me to provide the agreement that I've claimed in my letter. All I have to say is wow, should I wait on what they're gonna respond to my motion or can I go ahead?

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*update

Linda, finally got back a response today from my initial letter. Apparently, the plaintiff's filed a motion to the court to have my arb right waived if I don't initiate it in xx days and for me to provide the agreement that I've claimed in my letter. All I have to say is wow, should I wait on what they're gonna respond to my motion or can I go ahead?

Sending you a pm.

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What year was the alleged account opened and what year was the default?

HSBC agreements usually have good language for the consumer and I like to use it as part of the election letter.

Let me know the answer to the above and then I'll explain.

Sorry for the late response, I've been out of town.

The alleged account was opened in 2006, defaulted in 2007.

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