Linda7

The strategy and steps of arbitration

Recommended Posts

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?

I believe I would also have added the portion where it mentions "assignees", etc., from the agreement to tie them into the provision.

Share this post


Link to post
Share on other sites

I want to elect Jams with jdb in Oregon as we have been assigned mandatory local arbitration. I am planing on using this agreement:

Can't post link yet so it is 2010 citibank with JAMS.

In this agreement I am not sure if it says I am paying or if I can ask for them to pay?

In addition can I just file a MTC or do I need to file this Motion to Remove from Arbitration first?

EDIT: It looks as though since this acct allegedly opened in 2002 that I Could use the 2003 agreement but I not sure if that is more advantageous or not?

Edited by WhiteMamba

Share this post


Link to post
Share on other sites

Hi Linda,

I'm being sued by Capital 1 thru Legal Recovery Law offices in CA. I send them Form Interrogatories. LRLO sent me statements from 2008 to 2011 and a agreement from 2010. I was able to find 2008 agreement with JAMS, thanks to Bruno directing me to your post. However I'm not sure what i have to do next.

Thank you for your help.

Share this post


Link to post
Share on other sites
Hi Linda,

I'm being sued by Capital 1 thru Legal Recovery Law offices in CA. I send them Form Interrogatories. LRLO sent me statements from 2008 to 2011 and a agreement from 2010. I was able to find 2008 agreement with JAMS, thanks to Bruno directing me to your post. However I'm not sure what i have to do next.

Thank you for your help.

What was the year date of the last payment or use of the card?

Share this post


Link to post
Share on other sites
The last payment was 11/2009, the last payment was 12/2011.

You're showing the last payment as two dates - 11/09 and 12/11. Which one was the last payment?

Share this post


Link to post
Share on other sites

JAMS form

Proof of service of the Demand on the appropriate party E.g., copy of certified mail receipt signed by recipient or sworn statement of service by a non-party over 18 years of age.

What is this?

Is this just a signed Certified Letter Return Receipt of my previous election for ARB

or I need to send them the JAMS form copy first and wait till they receive it before actually submitting it to JAMS?

Confused.

Share this post


Link to post
Share on other sites
I'm sorry last use was 11/2009, last payment was 12/2011

Unfortunately, you are going to fall into the Ross v BOA class action suit. Capital One took out their arbitration agreements in early 2010. If a payment was made after they sent their notices early in 2010 - they say you have no right to arbitration.

You might want to post in the other forum - "Is there a Lawyer in the House". Check into a BOP, Rosenthal Act, etc. Others with more California knowledge will be better able to help you.

Share this post


Link to post
Share on other sites
JAMS form

Proof of service of the Demand on the appropriate party E.g., copy of certified mail receipt signed by recipient or sworn statement of service by a non-party over 18 years of age.

What is this?

Is this just a signed Certified Letter Return Receipt of my previous election for ARB

or I need to send them the JAMS form copy first and wait till they receive it before actually submitting it to JAMS?

Confused.

I answered in your pm. :)++

Share this post


Link to post
Share on other sites

I read through this post and I'm not quite clear when to send to the OC that I elect arbitration.

I have sent out DV letters that said please contact me through mail as all phone calls are prohibited. I said that I elect arb per my agreement. Do I need to send that to the OC at this time or after they sue me and I have to file MTC Arb.

Also, one of them validated and they are now calling :) I think they are a JDB disguised as an attorney. How do I find that out and does it really matter at this point?

Thank you,

Edited by hockeymom
left a word out in title

Share this post


Link to post
Share on other sites

hockeymom

Your Address

Their Name

Their Address

Account number they list on their collection letter ________________________

Date

Dear _________________________,

This letter is in response to your letter dated ______________________, 2012 (copy enclosed).

I dispute this alleged account in its entirety.

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.

Best Regards,

My Name typed

Edited by racecar

Share this post


Link to post
Share on other sites

I have a few "alleged" accounts out there. I have sent this exact letter CMRRR-

On one of my agreements it states that If I elect arb I need to send a letter requesting it to the actual OC. Do I do that now or wait?

I also said do not call and they are calling already.

Share this post


Link to post
Share on other sites

I have copies of the CC Agreements. I'm just confused in Linda's post it says to send DV letter electing Arbitration when validating. I've done that.

I'm wondering if I also send my election to the actual OC like it says in the agreement, or is there a different time for that?

Share this post


Link to post
Share on other sites

You can send it to the oc,myself i would wait and see what the collection agency says first.The collection agency will usually deny your request,and send it back with the oc.

Share this post


Link to post
Share on other sites

Need to file an Answer to Complaint and would like to make sure I do everything properly and in the correct order. I have already sent certified letter to JDB and representing Attorny stating I elect arb through JAMS.

I only have a few days left to Answer the Complaint (by the 21st). Went by the court today and asked the clerk if I need to list arbitration as an Affirmative Defense or if I just file a MTC, or do I need to do both. She wouldn't tell me anything as I guess that is giving legal advice. On the court forms to file an answer, they have it drawn out so it's just fill in the blanks, but there is nothing on the form where you would state Affirmative Defenses.

Is it necessary to have it as an AD, or can I just file the MTC Arb? Also, should I file MTC before I file the answer or do it at the same time?

Thanks in advance for any helpful advice!

Share this post


Link to post
Share on other sites

You would file for arbitration in lieu of answer to plaintiffs complaint.You dont want to participate in litigation.

YOUR COURT HEADER HERE

Plaintiff

v.

defendant

case#

MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION AND DISMISS PLAINTIFF'S CLAIM OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION

COMES NOW Defendant YOUR NAME appearing Pro Se for his Motion to Compel Private Contractual Arbitration with Bank's Name and as grounds thereto states the following:

ARBITRATION STUFF HERE

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration with Bank's Name pursuant to the Bank's Name Cardmember Agreement and to dismiss Plaintiffs complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending private contractual arbitration with JAMS or AAA.

www.adr.org/aaa/faces/rules

JAMS Arbitration, Mediation, and ADR Services | Arbitration Agreement | Arbitration Clauses | Arbitration Rules

The War Against Arbitration in Montana by Scott Burnham :: SSRN

Edited by racecar

Share this post


Link to post
Share on other sites

Court header

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 and as grounds thereto states the following:

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

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 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).

4. 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.

5. 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”.

6. 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 . . . "

7. The Defendant elects arbitration 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 ________________, 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 DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of (his/her) knowledge and belief.

_______________________________________

XXXXXXXXXX, 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 attorney

Their address

By: Your name typed, Defendant

Date: __________________, 2012

Edited by racecar

Share this post


Link to post
Share on other sites
I have copies of the CC Agreements. I'm just confused in Linda's post it says to send DV letter electing Arbitration when validating. I've done that.

I'm wondering if I also send my election to the actual OC like it says in the agreement, or is there a different time for that?

Are you dealing with an original creditor or a junk debt buyer? To know for sure, check your credit reports and see "who" owns the debt.

If you're dealing with an original creditor - yes, you send the letter to the original creditor as specified in the agreement.

However, if you are dealing with a junk debt buyer - even though it says to send the notice to the original creditor - you do "not". When a junk debt buyer buys the account, they step into the shoes of the original creditor. Any notice at that point only goes to the supposed "owner" of the account who would then be the junk debt buyer.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.