Linda7

The strategy and steps of arbitration

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

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

Here's the 2006 agreement - http://www.cardmemberagreements.org/wp-content/uploads/2012/08/2006-HSBC-Agreement-with-JAMS.pdf

If you want to use arbitration instead of court, I would immediately send a notice to both the JDB and the attorney. (CRRR) Something like this -

Your Name

Your Address

Their Name

Their Address

Date

Case or claim # ____________________

NOTICE OF ARBITRATION ELECTION

Pursuant to HSBC cardholder agreement, I ELECT arbitration via JAMS to resolve all of our disputes.

As per the agreement, "The parties acknowledge that they have a right to litigate claims through a court before a judge or jury, but will not have that right if either party elects arbitration."

The agreement further states, "On any Claim you file, you will pay the first $50 of the filing fee. At your request we will pay the remainder of the filing fee and any administrative or hearing fees charged by the arbitration administrator on any Claim submitted by you in arbitration up to a maximum of $1,500." This notice is my written request for you to pay the remainder of the filing fees.

As of this notice you must dismiss or stay any and all actions in regards to the alleged debt pending the result of the Arbitration.

___________________________(Your Name Typed)

Certified Return Receipt #_________________________

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Then I would file my answer with the court incorporating into your answer/affirmative defense - your election of arbitration.

A sample is in post#6 - http://www.creditinfocenter.com/forums/arbitration/314030-strategy-steps-arbitration.html

Your answer will not be exactly like that - but, you can see how the election of arbitration was used in the answer part and then also used as the #1 affirmative defense.

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Hello,

Since I am collection-proof due to SOL (I think), I have been reading Arbitration sections here and DB.

Strategy:

1) I want to get these accounts to be removed from my credit reports.

2) They have never sue me due to my "judgment-proof" for several years since I got laid off from my job.

3) Last of payment for C1 - 1/2008

So, here's the letter (first round) based on what I read here:

Battle-Hardened Warrior

New York City, California

C1

1680 C1 Drive

McMean, VA 22102-3491

Dispute Department

September 26, 2012

Acct: xxxx-xxxx-xxxx

Dear Dispute Department Manager,

This letter is in response to your letter dated June, 2010. Since then, I received the statements via letters and emails, even though you claimed this account as charge-off, which is considered as unethical and unacceptable.

At last, this account is already past SOL (3 years) per Portfolio Recovery v. King NY court ruling, as this account is governed by the state of Virginia per the Capital One card agreement.

Because of that, I dispute this alleged account.

As per the FDCPA, I have the right to request proper validation of the alleged debt.

I elect private contractual arbitration via JAMS to resolve any disputes between us.

All phone calls are inconvenient, so all communications need to be by mail.

Regards,

Battle-Hardened Warrior

CMRR will be used.

I understand that I need to file JAMS paperwork ( jamsadr com/files/Uploads/Documents/casesubmission.pdf) and pay $50 initial fee immediately after they received the green card in order for C1 to "lock-in" in dealing with JAMS instead of AAA.

Please correct me if I'm wrong.

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Hello,

Since I am collection-proof due to SOL (I think), I have been reading Arbitration sections here and DB.

Strategy:

1) I want to get these accounts to be removed from my credit reports.

2) They have never sue me due to my "judgment-proof" for several years since I got laid off from my job.

3) Last of payment for C1 - 1/2008

So, here's the letter (first round) based on what I read here:

CMRR will be used.

I understand that I need to file JAMS paperwork ( jamsadr com/files/Uploads/Documents/casesubmission.pdf) and pay $50 initial fee immediately after they received the green card in order for C1 to "lock-in" in dealing with JAMS instead of AAA.

Please correct me if I'm wrong.

If you're beyond SOL for your state, why even use arbitration? I'd post in the "Is there a Lawyer in the House" forum. Look for Calawyer, Seadragon, Bad98roadster, Skippy and others from California.

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When do you have to have your answer with the court?

I'm not sure if it's 21 business days or not but it's due Saturday if it's not... I know I'm pushing it!

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I'm not sure if it's 21 business days or not but it's due Saturday if it's not... I know I'm pushing it!

Sounds like you are. Everything should be explained in this thread. Post back if you have any questions.

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Im still reading, buyt head is spinning,

Can you point me to anything like compulsory mediation in here? Ive been search for the last couple of days. Apparently Houston and Dallas are required to do it ( only cities in Texas who do it) before court, but I cant find out if before or after my answers/discovery process which is 50 days after service here.

If it is after answering/discovery, should I tailor my answers with that concept of mediation in mind?

thanks... back to reading this goldmine... :)

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Im still reading, buyt head is spinning,

Can you point me to anything like compulsory mediation in here? Ive been search for the last couple of days. Apparently Houston and Dallas are required to do it ( only cities in Texas who do it) before court, but I cant find out if before or after my answers/discovery process which is 50 days after service here.

If it is after answering/discovery, should I tailor my answers with that concept of mediation in mind?

thanks... back to reading this goldmine... :)

This forum is dealing with private/contractual arbitration - not anything to do with court arbitration or mediation. You might try posting in the forum - "Is there a Lawyer in the House." :)++

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This forum is dealing with private/contractual arbitration - not anything to do with court arbitration or mediation. You might try posting in the forum - "Is there a Lawyer in the House." :)++

thanks! see that helps me already Linda! I did not know the difference. I been reading for a day on the wrong stuff. oopsy.

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Sounds like you are. Everything should be explained in this thread. Post back if you have any questions.

Thanks, Linda7... You've been a huge help! I did send a letter CMRR to the plaintiff and their attorney yesterday and I'm dropping off my answer today.

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Sending a pm. :)++

Hi :)++ Linda

Update, I filed the MTC today, no date was set to here the MTC. The clerk said I will receive something in the mail to let me know if there will be a hearing or his decision. Thanks again for all the help.

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Some people go ahead and fill out their JAMS demand form and send it with their election of arbitration letter as we discussed previously. Others fill it out later and then file a copy with the court or take it with you to show the Judge that you're serious about initiating arbitration.

When you get everything filled out, send the creditor a copy and then send the law firm a copy. Keep the original so that you will have it to send to JAMS plus another copy.

Keep checking the USPS site to see when they receive their letters. Make a print out of the USPS delivery information as your proof of service - if you don't have time to wait for your green cards.

When you have proof they have received their JAMS demand packets or you get your green cards back, you're ready to send in everything to JAMS.

You'll need to send in the original of the JAMS demand, plus one copy of the JAMS demand, two copies of the complete agreement (and I highlight the arbitration provision), proofs of service where you sent the JAMS demands to the creditor and the attorney and a cover letter.

Linda,

Am I to understand that I must send a copy of the JAMS application to the OC and their counsel? I sent a letter to OC and counsel electing JAMS but not the application itself. I can do that tomorrow and then I will just send a copy of the registered receipt from the PO.

I must have misread when I thought all I had to do was send the letter electing JAMS.

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Linda,

Am I to understand that I must send a copy of the JAMS application to the OC and their counsel? I sent a letter to OC and counsel electing JAMS but not the application itself. I can do that tomorrow and then I will just send a copy of the registered receipt from the PO.

I must have misread when I thought all I had to do was send the letter electing JAMS.

Usually, you elect and then wait and send the JAMS demands (initiating arbitration) after your MTC is granted. However, some do go ahead and initiate earlier. It just depends.

The one instance I would always say to initiate the day you elect is if you are against Citibank. Citibank will try to get into AAA from the get go! I think you are up against Citibank, but sounds like they agreed to your initiation which is a lucky break for you! But, I would still "immediately" initiate JAMS. Send the JAMS forms to both the creditor and the attorney and on the same day - send in everything to JAMS. You need to get your initiation started first, so they can't undermine you. :)++

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I received my letter from JAMS indicating they received my demand for arb, the amount of the initial case management fee I must pay as well as the amount the OC must pay (Citi). The last paragraph states, "Upon receipt of the balance of the initial case management fee from claimant and respondent, JAMS will formally commence this matter and proceed with the arbitrator selection process."

I'm making payments and I sent the JAMS packet last month and to date have paid $100 on the fees. Since my court order said I had 90-days to initiate, and I've done that, I am guessing I don't have to skip paying a bill to send in the remainder of my JAMS - I intend to pay the balance in November.

Now, I would like to begin thinking about my complaint for JAMS, in the event it goes that far. I would like to be prepared and not have to rush at the last minute.

Edited by ydontu

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A complaint sample is listed in posts #36 & #37 of this thread.

Sample violations are listed in post #38.

Also, sending you a pm!

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Hi Linda,

Thanks for all your hard work, we all really appreciate it.

Here is my situation, can you or anyone else lend a guiding hand?

I was sued by Discover Card (Discover is stated in the suit) in March 2012, I sent in my Answer and the Demand for the BOPs. They then sent me the signed application, along with statements from 2005-2009. the amount is about $11,500 and I live in California.

The trail date is six weeks out from today, and I need to file motion to compel arbitration asap.

I have taken a look at all the sample forms listed in the thread (mainly on the first page). What do you suggest is the best order that I should submit my documents in? What should go first, then second, and so on. I am just confused what to send, who to send to, and which timeline to follow.

In my agreement it does state both parties can go the route of arbrtation, but it does not state JAMS, just AAA and NAF.

Thanks in advance.

Edited by dev4080

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Hi Linda,

Thanks for all your hard work, we all really appreciate it.

Here is my situation, can you or anyone else lend a guiding hand?

I was sued by Discover Card (Discover is stated in the suit) in March 2012, I sent in my Answer and the Demand for the BOPs. They then sent me the signed application, along with statements from 2005-2009. the amount is about $11,500 and I live in California.

The trail date is six weeks out from today, and I need to file motion to compel arbitration asap.

I have taken a look at all the sample forms listed in the thread (mainly on the first page). What do you suggest is the best order that I should submit my documents in? What should go first, then second, and so on. I am just confused what to send, who to send to, and which timeline to follow.

In my agreement it does state both parties can go the route of arbrtation, but it does not state JAMS, just AAA and NAF.

Thanks in advance.

I would like to echo this statement above, Linda you been a huge help and I can not thank you enough. Linda has help me with my case, by Monday the case should be dismissed

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Hi Linda,

Thanks for all your hard work, we all really appreciate it.

Here is my situation, can you or anyone else lend a guiding hand?

I was sued by Discover Card (Discover is stated in the suit) in March 2012, I sent in my Answer and the Demand for the BOPs. They then sent me the signed application, along with statements from 2005-2009. the amount is about $11,500 and I live in California.

The trail date is six weeks out from today, and I need to file motion to compel arbitration asap.

I have taken a look at all the sample forms listed in the thread (mainly on the first page). What do you suggest is the best order that I should submit my documents in? What should go first, then second, and so on. I am just confused what to send, who to send to, and which timeline to follow.

In my agreement it does state both parties can go the route of arbrtation, but it does not state JAMS, just AAA and NAF.

Thanks in advance.

I would send a pm to Bad98roadster as they are familiar with your state and court rules.

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xdancex

I got call today saying they agreed with the settlement and will send out the paper work today. Settlement said I would be willing to drop my claims in exchange for the court case to be dismissed "with" prejudice, deletion of the negative tradelines, no selling of the debt and no 1099C.

:BigDance:

Thank you Linda

Edited by Sgrady
  • Like 1

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xdancex

I got call today saying they agreed with the settlement and will send out the paper work today. Settlement said I would be willing to drop my claims in exchange for the court case to be dismissed "with" prejudice, deletion of the negative tradelines, no selling of the debt and no 1099C.

:BigDance:

Thank you Linda

You're very welcome! And congratulations on hanging in there and seeing it through! Sometimes it takes nerves of steel - but, you did it!! Great job!! :)++

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Either I am reading the agreement wrong, or the lawfirm thinks I'm stupid.

They sent me and the court a letter, asking to strike my motion to compel arbitration.

They quote the cardmember agreement: "This arbitration provision, shall apply to any Claim against us, and to each of our parents, subsidiaries, affiliates, any company providing a rewards feature in conjunction with this Agreement, predecessors, successors, and assigns, and each of their officers, directions, agents, and employees."

They are claiming that the arbitration agreement only provides either party the right to arbitrate any claim brought against HSBC Bank or the related parties as listed, and not to them since the claim was brought by HSBC Bank's assignee (them) and so they want the court to deny my motion to compel.

If I'm reading this correctly, they are retarded because the sentence after the one they quoted says (left out some words): "You agree any claim, dispute, or controversy, including initial claims, counter-claims, cross-claims, and third-party claims, arising from or relating to this Agreement, including the validity or enforceability of this arbitration clause shall be resolved, upon the election of arbitration by you or us, by binding arbitration... blah blah blah."

Ummm... so doesn't that mean that they are saying that it doesn't apply to them because they were not a part of the parties listed, when the following sentence says that anything that deals with this agreement (including whether or not I can choose arbitration) is basically guaranteed?

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Either I am reading the agreement wrong, or the lawfirm thinks I'm stupid.

They sent me and the court a letter, asking to strike my motion to compel arbitration.

They quote the cardmember agreement: "This arbitration provision, shall apply to any Claim against us, and to each of our parents, subsidiaries, affiliates, any company providing a rewards feature in conjunction with this Agreement, predecessors, successors, and assigns, and each of their officers, directions, agents, and employees."

They are claiming that the arbitration agreement only provides either party the right to arbitrate any claim brought against HSBC Bank or the related parties as listed, and not to them since the claim was brought by HSBC Bank's assignee (them) and so they want the court to deny my motion to compel.

If I'm reading this correctly, they are retarded because the sentence after the one they quoted says (left out some words): "You agree any claim, dispute, or controversy, including initial claims, counter-claims, cross-claims, and third-party claims, arising from or relating to this Agreement, including the validity or enforceability of this arbitration clause shall be resolved, upon the election of arbitration by you or us, by binding arbitration... blah blah blah."

Ummm... so doesn't that mean that they are saying that it doesn't apply to them because they were not a part of the parties listed, when the following sentence says that anything that deals with this agreement (including whether or not I can choose arbitration) is basically guaranteed?

Check your agreement and see if you can find this -

You agree any claim, dispute, or controversy (whether based upon contract, tort, intentional or otherwise; statute; common law; or equity and whether pre-existing, present or future), including initial claims, counter-claims, cross-claims and third party claims, arising from or relating to this Agreement or the relationships which result from this Agreement, including the validity or enforceability of this arbitration clause, any part thereof or the entire Agreement ("Claim"), shall be resolved, upon the election of you or us, by binding arbitration pursuant to this arbitration provision and the applicable rules or procedures of the arbitration administrator selected at the time the Claim is filed.

The parties acknowledge that they have a right to litigate claims through a court before a judge or jury, but will not have that right if either party elects arbitration.

If so, I would immediately file a response to their letter and quote the above.

If their argument is that "the" Claim is theirs and not yours - the above should address that. I don't think they are saying it doesn't apply to them as assigns, because they quote that part.

I would however, quote it again to show that they are among the list of those that fall under the arbitration provision.

I think I would also add this to your response -

The agreement entered into by both the Plaintiff and the Defendant contained a "statutory" arbitration agreement according to the Michigan Arbitration Act, at MCL 600.5001 et seq., and as such, neither party has the power to revoke the agreement without the consent of the other party. Plaintiff's agreement specifically states, "Judgment upon the award may be entered in any court having jurisdiction." The parties’ arbitration agreement is controlled by the uniform arbitration act because the agreement provides that a judgment of any circuit court may be rendered on the arbitrator’s award. DAIIE v Gavin, 416 Mich 407, 417; 331 NW2d 418(1982). Therefore, the Plaintiff cannot take away the Defendant's rights of arbitration. And further, "The Michigan arbitration statute provides that an agreement to settle a controversy by arbitration under the statute is valid, enforceable, and irrevocable if the agreement provides that a circuit court can render judgment on the arbitration award. M.C.L. § 600.5001; M.S.A. § 27A.5001." Tellkamp v. WOLVERINE MUTUAL INS. CO., 556 NW 2d 504, 506, 507 - Mich: Court of Appeals 1996.

*Double check the case law I cited - just to be sure.

I would also again quote the FAA part from your MTC.

Edited by Linda7

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They said "the arbitration agreement only provides either party the right to arbitrate any claim brought again HSBC or the related parties as listed, and does not apply to the cause of action at issue as this claim was brought by HSBC's assignee against defendant."

Does this mean that their argument is that I can't elect arbitration because THEY are suing ME instead of ME suing THEM?

This is what I have as my response so far:

Plaintiff states in their letter Dated October xx, 2012, that the Arbitration agreement previously elected by the Defendant does not apply to the cause of action at issue as this claim was brought by HSBC Bank Nevada, NA’s assignee against said Defendant.

However, the Cardmember agreement attached to the Defendant’s Answer states:

“You agree any claim, dispute, or controversy (whether based upon contract, tort, intentional or otherwise; statute; common law; or equity and whether pre-existing, present or future), including initial claims, counter-claims, cross-claims and third party claims, arising from or relating to this Agreement or the relationships which result from this Agreement, including the validity or enforceability of this arbitration clause, any part thereof or the entire Agreement ("Claim"), shall be resolved, upon the election of you or us, by binding arbitration pursuant to this arbitration provision and the applicable rules or procedures of the arbitration administrator selected at the time the Claim is filed.”

The Plaintiff fails to recognize that they, as an assignee, must abide by the Arbitration Clause found in the Cardmember agreement as this Claim “aris[ed] from or relat[ed] to this Agreement or the relationships w hich result[ed] from this Agreement… shall be resolved, upon the election of [Defendant] or [Plaintiff], by binding arbitration.”

Additionally, the agreement entered into by both the Plaintiff and the Defendant contained a "statutory" arbitration agreement according to the Michigan Arbitration Act, at MCL 600.5001 et seq., and as such, neither party has the power to revoke the agreement without the consent of the other party. Plaintiff's agreement specifically states, "Judgment upon the award may be entered in any court having jurisdiction." The parties’ arbitration agreement is controlled by the uniform arbitration act because the agreement provides that a judgment of any circuit court may be rendered on the arbitrator’s award. DAIIE v Gavin, 416 Mich 407, 417; 331 NW2d 418(1982). Therefore, the Plaintiff cannot take away the Defendant's rights of arbitration. And further, "The Michigan arbitration statute provides that an agreement to settle a controversy by arbitration under the statute is valid, enforceable, and irrevocable if the agreement provides that a circuit court can render judgment on the arbitration award. M.C.L. § 600.5001; M.S.A. § 27A.5001." Tellkamp v. WOLVERINE MUTUAL INS. CO., 556 NW 2d 504, 506, 507 - Mich: Court of Appeals 1996.

Wherefore, for the foregoing reasons, Defendant respectfully upholds their Motion to Compel Arbitration.

Linda, what do you think?

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