Is it "ok" to request arbitration from Cap One for multiple cards?

[MissingtheRain]

Hello again ,

With the help of several amazing people and this board, I successfully filed a MTC and got a lawsuit from Cap One thrown out of court. However, between my spouse and I, we have several Cap One cards, and with Cap One being HSBC, even more.

My husband's Cap One card just served him, and he's preparing the Answer, MTC, etc...

My question is...between his and mine, can Cap One "lump" our cards together (or even just one of our cards) to make pushing through arbitration worth their while? I will, of course, tweak my letter's (and my husband will tweak his) for each particular case....but is this going to be a problem that we send out Notice to Elect Arbitration to the other Cap One CAs?

[MissingtheRain]

Sorry, thought of another question! For his MTC...the account was opened in 11/2008...does the 2008 cardholder clause (with arbitration agreement) "stand" throughout 2008, or would he have to worry about a 2009 agreement (if I recall correctly, it was 2010 that arbitration was taken out?)

Thank you so much in advance!

[MissingtheRain]

I'm sorry, last one until there is an answer

As we are looking over the summons from Cap One, it is entirely different that the one I received earlier this year (from a different account). It has a court header, and then notes Service: persona/Residential/Tacking by (my county) Sheriff. It then goes on to notify my husband that a lawsuit was commenced against him, with the docket time and date. It notes that an answer needs to be set in (this I've seen before)...but there is nothing to "answer" It states that the answer shall state what the dispute is and such...but there's no real statement/charge etc.

It is simply two pieces of paper...one has the court header/summons/and then half of it is the "Return of Service of Summons," the second page is a petition that states only that the plantiff states such and such $$$ is indebted from the defendent and that the plaitiff prays for judgement.

I've seen the general answer templates...and I have one from my own case...but it doesn't fit quite right?

[nobk4me]

I believe Cap One has a non-joinder clause - so they can't lump all the debts into one arbitration.

Which is good for you, as it becomes more expensive for them.

[racecar]

Credit card agreement database search result - Consumer Financial Protection Bureau

[racecar]

Does it have a survival clause in it.

[Linda7]

Sorry, thought of another question! For his MTC...the account was opened in 11/2008...does the 2008 cardholder clause (with arbitration agreement) "stand" throughout 2008, or would he have to worry about a 2009 agreement (if I recall correctly, it was 2010 that arbitration was taken out?)

Thank you so much in advance!

When was the year of the last payment?

[Linda7]

I'm sorry, last one until there is an answer

As we are looking over the summons from Cap One, it is entirely different that the one I received earlier this year (from a different account). It has a court header, and then notes Service: persona/Residential/Tacking by (my county) Sheriff. It then goes on to notify my husband that a lawsuit was commenced against him, with the docket time and date. It notes that an answer needs to be set in (this I've seen before)...but there is nothing to "answer" It states that the answer shall state what the dispute is and such...but there's no real statement/charge etc.

It is simply two pieces of paper...one has the court header/summons/and then half of it is the "Return of Service of Summons," the second page is a petition that states only that the plantiff states such and such $$$ is indebted from the defendent and that the plaitiff prays for judgement.

I've seen the general answer templates...and I have one from my own case...but it doesn't fit quite right?

I would elect arbitration via JAMS and send to Capital One's address in the arbitration provision section of the agreement. I would also send a copy to their attorney. All CRRR.

I would then file my answer with the court and my affirmative defenses.

Maybe something along these lines - *Sample/template below. Dates, etc., need to be changed.

DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT

Comes now the Defendant, pro se, and submits the following answer to Plaintiff's complaint.

Defendant has elected private contractual arbitration pursuant to the terms of the governing cardholder agreement, which takes away both sides litigation rights in court.

Defendant is without information or knowledge sufficient to form an opinion as to the truth of Plaintiff's allegations and must respectfully DENY. Defendant holds the Plaintiff to provide the strictest proof thereof.

AFFIRMATIVE DEFENSES

1) Defendant states there is an arbitration clause in the cardholder agreement that takes away both parties litigation rights if elected by either party. Defendant has already notified Plaintiff and Plaintiff's attorney of his election to arbitrate pursuant to the terms of said agreement and has filed a motion to compel arbitration with the court. This court lacks jurisdiction and proper venue to decide this matter as Defendant has exercised the binding arbitration agreement.

2) Plaintiff has failed to provide evidence sufficient for which relief can be granted. The Plaintiff has not proven the debt is valid or the amount of the debt is accurate. Plaintiff's failure to provide credit card statements evidencing purchases and payments allegedly made by Defendant and how any alleged purchases, payments, interest and fees were calculated is insufficient to prove the accuracy of the amount claimed in the Complaint. *This is not really an affirmative defense, but some people put things along this line in. And this would only be if they did "not" include proof, statements, etc.

3) Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

WHEREFORE, Defendant respectfully asks the Court to dismiss this case, or stay this case pending arbitration pursuant to Capital One Bank agreement.

Respectfully submitted this day, September 17, 2012

Your Name Typed, Defendant

Your Address

VERIFICATION BY AFFIDAVIT

Personally appeared before me the undersigned who on oath states that the facts set forth in this ANSWER/AFFIRMATIVE DEFENSES are true and correct to the best of his knowledge and belief.

_______________________________________

Your Name Typed Here and sign 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 ANSWER/AFFIRMATIVE DEFENSES to:

Attorney's Name Plaintiff's attorney

Attorney's Address

By: Your Name Typed, Defendant Date: September 17, 2012

[MissingtheRain]

Thank you everyone! Linda, you always save the day! That looks more appropriate than the letter I had for my suit...I was dealing with a crummy attorney group...but they did provide (and killed several trees in the process) a HUGE amount of "proof"...statements, paragraphs as to the "complaint" etc...this is so short and (not sweet) to the point, I would have had a hard time telling what it was if I hadn't just fought this a few months ago!

[MissingtheRain]

Oh, I'm sorry, the year of the last payment on that card was 2011.

[Linda7]

Oh, I'm sorry, the year of the last payment on that card was 2011.

If you're dealing with Capital One and had a last payment in 2010 or beyond - you probably won't be able to use arbitration as they took out arbitration in 2010 due to the settlement of Ross vs BOA.

[MissingtheRain]

Uh-oh....I had thought, provided we had credit cards opened during anytime a survivability clause was in it, (ie 2008), that arbitration was an acceptable route?

I am confused . I just finished getting a case dismissed that was very similar to this (was opened in 2008, but had a last payment in 2011) because the survivability clause was in it?

[racecar]

What does the survivability clause say.

[MissingtheRain]

It says that it will survive any change to the agreement (among other things)...it's not letting me paste...one moment...

[MissingtheRain]

"This arbitration provision shall survive....suspension, termination, revocation, closure or changes of this agreement"

[racecar]

"it will survive any change to the agreement"

If it has that use it again,Print that out and highlight it for the court and the plaintiff.

[MissingtheRain]

Okey Dokey...printing out...will turn it in along with a MTC and the answer/affirmative defense tomorrow.

[racecar]

Waiting for another win.good luck.

[MissingtheRain]

Thank you I truly appreciate it!

I am looking through the boards as we speak to figure this out...but just in case you happen back by this post...since you both mentioned that arbitration might not be an option if a payment was made past 2010...what is the best route for several (under $2K, though with fees they may be over $2K now) HSBC cards that were bought by Cap One. They have an arbitration agreement (though it's with AAA), but I'm not seeing a survival clause so far.....

[racecar]

American Arbitration Association

Its expensive for the junk debt buyer and the OC the average breach of contract suit with AAA runs $7300.00 Then if you file discovery, witness for live testimony,counter claims ect it can be 3X that number.

[howucan2]

Last I heard AAA will not accept arbitration cases with Cap 1, (Check with AAA before hand), but if AAA doesn't take the case then I'd assume it's safe to file with either forum.

[Linda7]

Thank you I truly appreciate it!

I am looking through the boards as we speak to figure this out...but just in case you happen back by this post...since you both mentioned that arbitration might not be an option if a payment was made past 2010...what is the best route for several (under $2K, though with fees they may be over $2K now) HSBC cards that were bought by Cap One. They have an arbitration agreement (though it's with AAA), but I'm not seeing a survival clause so far.....

Hold everything! I thought you were talking about Capital One and their agreement with payments made after they took out arbitration in 2010 which would fall into that class of Ross v BOA.

But, if Capital One bought an account that had been another original creditor like HSBC - then you would be using the HSBC agreement not Capital One. And I know that in 2005 and 2006 HSBC agreements had JAMS. If it was an HSBC account - then you won't fall under that Ross v BOA!

[MissingtheRain]

The case that my husband has going now (the original post) is for a Capital One card. It was opened in late 2008, last payment in 2011. It does have the arbitration survival clause.

The second one I was talking about, in hopes of preempting a court case and dealing with this whole mess...was for a pair of HSBC cards, both bought by Cap One. They mention AAA, but not an abitration survival clause and both had last payments in 2011. Can these still be put through arbitration?

Last question for now ...my husband filed his answer/affirmative defense and sent off the notice to elect and such...his "14 days" to file was up on Thursday, he filed this Wednesday. However, his court date is already the 5th. Should he go ahead and file his MTC (separate court date), or just bring it on the 5th? He was concerned that showing up on the 5th, the lawyers would ask for an extension and he'd just have to miss work to come again, especially with a separate MTC date...is there anyway to avoid having multiple times he has to come to court, or is that just how it's going to have to be?

[Linda7]

The case that my husband has going now (the original post) is for a Capital One card. It was opened in late 2008, last payment in 2011. It does have the arbitration survival clause. You can try - but, unless you have a very different judge - they are not going to let you have arbitration since Capital One took out arbitration in 2010 - even though your agreement has a survivability clause. But, you can certainly try!

The second one I was talking about, in hopes of preempting a court case and dealing with this whole mess...was for a pair of HSBC cards, both bought by Cap One. They mention AAA, but not an abitration survival clause and both had last payments in 2011. Can these still be put through arbitration? What dates were the accounts opened?

Last question for now ...my husband filed his answer/affirmative defense and sent off the notice to elect and such...his "14 days" to file was up on Thursday, he filed this Wednesday. However, his court date is already the 5th. Should he go ahead and file his MTC (separate court date), or just bring it on the 5th? He was concerned that showing up on the 5th, the lawyers would ask for an extension and he'd just have to miss work to come again, especially with a separate MTC date...is there anyway to avoid having multiple times he has to come to court, or is that just how it's going to have to be? Sorry, I have not a clue. You might want to check with other members from your state.

Check out the bolded text above.

[MissingtheRain]

Hi Linda,

I will check with RaceCar, I am fairly certain he is from KS.

About the Capital One case...I was confident on that one as it was identical to the one you helped me with for me a few months ago. I didn't know there was an issue with one the last payment was made...I thought everything was honkey dorey with the survival clause in there. .

Since all of our credit cards, Cap One, HSBC, etc. all had last payments made in 2010, though opened way before then....should I head over to another section of the board for settlements (have no $$$ now ), or what is the best route to go?