OC objected to my MTC Arb (Colorado) - How to respond?

[sillymonkey]

OK! So I found this site a little late. I MTC arb after responding to the complaint and after I sent my disclosure statement (required by CO court rules).

The Plaintiff for the OC (Amex) objected to my MTC claiming that I was too far into the suit to file MTC.

I have 3 cases. In 1 of the cases, the OC never provided the CC agreement. I used a possible agreement with JAMS arb in it to file my MTC. OC objected.

In other other 2 cases, a pre-trial hearing is scheduled in May. Again both sides filed the disclosure. Again, they claimed I'm too far into the suit to MTC arb.

They cited Cordillera Corp. v Heard, 41 Colo. App. 537, 592 P.2d 12 as their argument against my MTC.

I BELIEVE the case is this one:

 

http://www.leagle.com/xmlResult.aspx?xmldoc=1978604592P2d12_1599.xml&docbase=CSLWAR1-1950-1985

 

Honestly, it doesn't seem that the case is relevant since that case sounds like the suit went much further.

Are there any cases I can cite to dispute? I'm not sure how to respond. Any advice appreciated and understood that it's not legal advice.

[howucan2]

Opponent always opposes MTC, they will literally lose the case if you get it out of court. How dare you take food out of their mouth ?

 

What you have do is go line by line and cite your reason as to why abritration is appropriate, state ambiguity should be construed against the drafter of the contract (AMEX) and since you didn't draft the contract this matter should be resolved against them after all they were the one who put arbitration clause in the contract.

 

Use ATT vs Concepcion and COMPUCREDIT CORP. ET AL. v. GREENWOOD ET AL.CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITNo. 10–948. Argued October 11, 2011—Decided January 10, 2012 (SCOUTUS).

 

Quote from AMEX Agreement to Arbitrate:

Initiation of Arbitration
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 the
organizations as follows:
• JAMS, 1920 Main St #300, Irvine, CA 92614
website: www.jamsadr.com
• AAA, 335 Madison Ave, New York, NY 10017
website: www.adr.org
In addition to the organizations listed above,
claims may be referred to any other arbitration
organization that is mutually agreed upon in
writing by you and us, or to an arbitration organization
or arbitrator(s) appointed pursuant to
section 5 of the Federal Arbitration Act, 9 U.S.C.
§§ 1-16, as it may be amended (FAA), provided
that any such organization and arbitrator(s)
will enforce the terms of the Restrictions on
Arbitration subsection set forth below.
Significance of Arbitration
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.
Restrictions on Arbitration
IF EITHER PARTY ELECTS TO RESOLVE A
CLAIM BY ARBITRATION, THAT CLAIM SHALL
BE ARBITRATED ON AN INDIVIDUAL BASIS.

THERE SHALL BE NO RIGHT OR AUTHORITY
FOR ANY CLAIMS TO BE ARBITRATED ON
A CLASS ACTION BASIS OR ON BASES
INVOLVING CLAIMS BROUGHT IN A
PURPORTED REPRESENTATIVE CAPACITY
ON BEHALF OF THE GENERAL PUBLIC,
OTHER CARDMEMBERS OR OTHER
PERSONS SIMILARLY SITUATED.

 

Also make sure to cite to FAA (Federal Arbitration act ) section 1,2,3,and 4

(Moses H. Cone Memorial

         Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983)), provides, in

         relevant part, as follows: “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 . . . shall be valid, irrevocable, and enforceable, save upon

          such grounds as exist at law or in equity for the revocation of any

          contract.” The FAA was designed "to overrule the judiciary's longstanding

          refusal to enforce agreements to arbitrate, (Dean Witter Reynolds Inc. v.

           Byrd, 470 U.S., at 219-220 S. Ct.1238, 84 L. Ed.2d, 158,(1985)), and to

 place such agreements upon the same footing as other contracts”.

 

 

(9 U.S.C.§ 3) Stay of proceedings; If any suit or proceeding be brought in

        aany of the courts of the United States upon any issue referable to

          arbitration under an agreement in writing for such arbitration, the court

  in which such suit is pending, upon being satisfied that the issue

  involved in such suit or proceeding is referable to arbitration under such

  an agreement, shall on application of one of the parties stay the trial of

  the action until such arbitration has been had in accordance with the

  terms of the agreement, providing the applicant for the stay is not in

  default in proceeding with such arbitration.

[racecar]

 Is this CACV of Colorado-Scott Lowery Law Office, LLC,phone 303-218-7550 ,4500 Cherry Creek Drive South, Suite 700,or 5680 Greenwood Plaza Blvd, Suite 500,Greenwood Village, CO 80111

OC objected to my MTC Arb, how can they object to their own credit agreement,That has to be a junk debt buyer.

If you elect arbitration you have to commence arbitration.I would get your jams paperwork sent in asap.

Send the attorney a request making a temporary advance of all the fees.

keep a copy of the letter you send,send in your jams paperwork,you dont have to pay anything yet just fill it out and send it in to jams.

Motion to compel arbitration or a motion to reconsider.they are going to object to the motion,they dont want to pay for it.Dont let the junk debt buyer intimidate you,thats your court use it to your advantage.

At your written request, we will consider in good faith making a temporary advance of all or part of your share of any arbitration fees. You will not be assessed any arbitration fees in excess of your share if you do not

prevail in any arbitration with us.

 

 

Send junk debt buyer this letter

date

your name

your address

their name

their address

case#

Dear Mr Attorney

Regarding the account XX-XXXXX referenced above, the agreement states, "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 parties hereby knowingly and voluntarily waive their rights to litigate such claims in a court before a judge or jury upon election of arbitration by either party."

Pursuant to the American Express cardholder agreement page 6 of 6, I ELECT arbitration via JAMS to resolve our disputes.

In filling out the JAMS forms, I will need some information. Please forward an email address and fax number and contact person's name who will be handling the JAMS claim for your office and for American Express Centurion Bank to my address listed above.

Pursuant to the terms of the agreement We will be responsible for any additional arbitration fees. At your written request, we will consider in good faith making a temporary advance of all or part of your share of any arbitration fees.

sillymonkey is requesting the temporary advance of of all the arbitration fees.

Please advance the $750 to my address listed above or you can send the funds directly to JAMS on my behalf.

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

Sincerely,

sillymonkey

 

 

 

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

 

 

 

 

 

 

 

 

 

The case they cited

We look to the federal precedent for the rationale of requiring a trial court to make a factual determination that inconsistent actions of the parties when they pursue litigation manifest the intent of the parties to waive an arbitration clause. An arbitration clause may be waived by actions taken in litigation which are not consistent with an arbitration clause.3 Here, actions of the petitioner and the respondent were sufficient to waive the mandatory arbitration clause.

http://leagle.keystride.com/decision-result/?xmldoc/1980704612P2d92_1696.xml/docbase/CSLWAR1-1950-1985

Supreme Court of Colorado, En Banc. June 9, 1980.    

DUBOFSKY, Justice.

We granted certiorari to review a decision of the Court of Appeals [Cordillera Corporation v. Heard, 41 Colo.App. 537, 592 P.2d 12 (1978)] holding that by commencing litigation a landlord and tenant waived the mandatory arbitration provision in their lease agreement. We affirm.

The landlord, petitioner Cordillera Corporation, filed a complaint in Denver District Court on November 24, 1976 for damages from breach of a lease agreement between Cordillera and the tenant, respondent John W. Heard. The lease agreement was incorporated into the complaint. On December 15, 1976, the respondent entered a general denial which included affirmative defenses.1

During the course of the litigation, the petitioner filed a motion for summary judgment. Both parties filed extensive briefs, and following a hearing, the trial court denied the motion. Both parties then amended their pleadings, and the respondent requested a jury trial. On March 13, 1978, more than one year after commencement of the litigation, the petitioner retained new counsel and filed a Motion for Determination of Jurisdiction and Availability of Arbitration. The motion was based on the lease's arbitration clause which the petitioner claimed only then to have discovered. The trial court held that the lease's mandatory arbitration provisions controlled, and therefore, the court lacked jurisdiction to hear the case.

On appeal, the Court of Appeals held that an arbitration clause could be waived:

"A valid and unwaived arbitration clause deprives the court of jurisdiction until the dispute has been submitted to arbitration. See Guthrie v. Barda, 188 Colo. 124, 533 P.2d 487 (1975); Zahn v. District Court, 169 Colo. 405, 457 P.2d 387 (1969). Here, however, the issue is whether, as contended by defendant, the arbitration clause has been waived. See Thomas Wells & Associates v. Cardinal Properties, Inc., 192 Colo. 197, 557 P.2d 396 (1976)."Although the public policy of this state favors arbitration and, conversely, waivers of arbitration are disfavored, Dominion Insurance Co. v. Hart, 178 Colo. 451, 498 P.2d 1138 (1972), the right to arbitrate `may be waived like any other contractual right.' School District No. Six v. Alfred Watts Grant & Associates, 156 Colo. 328, 399 P.2d 101 (1965). To be valid, the waiver must be a voluntary relinquishment of a known right. People ex rel. Metzger v. Watrous,121 Colo. 282, 215 P.2d 344 (1950); French v. Patriotic Insurance Co., 107 Colo. 275, 111 P.2d 893 (1941)."

Cordillera Corporation v. Heard, 41 Colo. App. at 539, 592 P.2d at 13.

In order to hold that the facts here establish waiver, the Court of Appeals reasoned that the petitioner's complaint was an offer to modify the contract, which the respondent accepted by filing an answer. Thus, the arbitration provision of the contract was waived, and the district court could assert jurisdiction.

One of the cases relied upon by the Court of Appeals, Titan Enterprises, Inc. v. Armo Construction, Inc.,32 Cal.App.3d 828, 108 Cal.Rptr. 456 (1973), has been overruled recently by the California Supreme Court [Doers v. Golden Gate Bridge, Highway and Transportation District,23 Cal.3d 180, 588 P.2d 1261, 151 Cal.Rptr. 837 (1979)]. In Titan, the California Court of Appeals said that by filing suit on a contract without first seeking arbitration, the plaintiff waived his right to arbitration under the contract. In Doers, the California Supreme Court found that more than filing a lawsuit is necessary if a party is to be deemed to have waived an arbitration right. Relying on a series of federal cases, the court in Doers held that a waiver is implied when litigation of the dispute prejudices the other party.

The federal cases cited in Doers suggest that the federal courts follow a slightly different analysis to determine when an arbitration clause has been waived by the parties. See, Merrill Lynch, Pierce, Fenner & Smith v. Lecopulos,553 F.2d 842 (2d Cir. 1977); Demsey & Associates v. S.S. Sea Star,461 F.2d 1009 (2d Cir. 1972); Carcich v. Rederi A/B Nordie,389 F.2d 692 (2d Cir. 1968); and Chatham Shipping Co. v. Fertex Steamship Corp.,352 F.2d 291 (2d Cir. 1965). Under federal law, a clear expression of waiver is necessary before a court may find the original agreement to arbitrate abandoned. However, instead of relying on a contract analysis such as that used by the Colorado Court of Appeals to find a waiver of the arbitration clause, the federal courts look for actions inconsistent with the arbitration clause. Inconsistent action manifests the intent to waive the arbitration clause. See United Nuclear Corp. v. General Atomic Co.,93 N.M. 105, 597 P.2d 290 (1979).

The federal cases have developed two tests for determining waiver of an arbitration clause. The difference between them depends on the party raising the issue and the stage of the litigation. When the plaintiff in a lawsuit requests invocation of an arbitration clause, such as here, there is no waiver if the only litigious act is the filing of a complaint. Merrill Lynch, supra; Doers, supra. But once an answer has been filed on the merits, both parties have acted in a manner not consistent with the arbitration clause and may have waived it. Merrill Lynch, supra; Chatham, supra.2

The second test is used to determine if there has been a waiver of an arbitration clause by a defendant who originally asserted the right to arbitration as an affirmative defense in his answer. Because the defendant does not have the choice of forum, his exercise of the arbitration right may be delayed somewhat so long as his delay and the proceeding on the merits do not prejudice other parties. Demsey & Associates, supra, and Carcich, supra.

We look to the federal precedent for the rationale of requiring a trial court to make a factual determination that inconsistent actions of the parties when they pursue litigation manifest the intent of the parties to waive an arbitration clause. An arbitration clause may be waived by actions taken in litigation which are not consistent with an arbitration clause.3 Here, actions of the petitioner and the respondent were sufficient to waive the mandatory arbitration clause.

Judgment affirmed.

LEE, J., does not participate.

[sillymonkey]

Unfortunately, the plaintiff is the OC, Amex, not a JDB. I did send my arb election to the Amex's lawyers CMRR. I also went ahead to MTC arb because I knew they would not just go into arb willingly.
The CC agreement states that will only be responsible for arb fees up to what it would have cost me to file in court, regardless of whomever prevails. Since the local courts waive filing fees for indignant filers (ie moi), I should incur no fees. However, if they want to make it difficult I'll pay me $75 (county filing fee) and/or $120 (district filing fee). It's still quite a bit less than $250 per JAM election (for me)

Is it premature to file an election with JAMs without a court order?

[howucan2]

Go ahead and file JAMS "DEMAND" (not election, you're past electing )  pay your fees, Copy AMEX on everything.

 

Look to see if AMEX's address is this : (usually in settlement offers some guy with a name I believe is Jamal or something similar signs them)

 

American Express Travel Related services

OA Special Research

P.O. Box 981540, El Paso, TX, 79998-1540

 

Heads up you maybe dealing with NCO and not AMEX at all. Search for previous communications , did statements come from ? NJ? PA?

[sillymonkey]

Cool Thanks. I'm not sure where the statements came from. I'm only seeing a PO Box in TX where CC payments were to be sent to. But yes, the settlement offers are coming from TX.

I'll go ahead and file my DEMAND with my response to the Plaintiffs.

 

Go ahead and file JAMS "DEMAND" (not election, you're past electing )  pay your fees, Copy AMEX on everything.

 

Look to see if AMEX's address is this : (usually in settlement offers some guy with a name I believe is Jamal or something similar signs them)

 

American Express Travel Related services

OA Special Research

P.O. Box 981540, El Paso, TX, 79998-1540

 

Heads up you maybe dealing with NCO and not AMEX at all. Search for previous communications , did statements come from ? NJ? PA?

[Linda7]

This involves construction litigation, but covers Colorado court views on waiving rights to arbitration - http://www.coloradoconstructionlitigation.com/2010/08/scope-of-arbitration-clauses-and-waiver.html

 

Also, here is some good reading - http://www.legalres.com/articles-introductiontoarbitration.pdf

[sillymonkey]

Linda, Thanks so much for your help. Your post guides have been so helpful!!

[Linda7]

You're very welcome! 

[Seadragon]

I always wondered this, if you are going to compel arbitration shouldn't you attack jurisdiction and venue also. The jurisdiction should be attacked early before the answer and MTC should be during pleading? Is the reason so many are denied is because they are in the wrong time frame?

 

I would think that jurisdiction and venue should be attacked in pleading stage and rightly so the MTC arb should also because of the waiver when responding to discovery requests might act as waiver of arbitration.

 

If you MTC arb and quash jurisdiction and venue in pleading stage then the FAA is controlling and the judge will have to dismiss because of abundant caselaw.

 

Where people have gone wrong in the past is where they do not know about arb and get to far into it and the court jumping on the grenade for their friends denies the motion for waiver of those points that no objection to venue during pleading, and waiver by participation.

[howucan2]

It is absolutely correct to infuse arbitration and jurisdiction (venue) in the answer, but sometimes (I refer to my own case ); opponent files based on everything and attaches NOTHING. In that case one does not know if the arbitration exists without a contract.

 

In my neck of the woods if one found there was a contract and it had an arbitration clause but for some ODD reason was not attcahed  then,dismissal and citation to consumer fraud act would turn the case on its head because material fact was concealed. BUT that is a last resort thingy if discovery was conducted between the parties.

 

So, there still remains an option to remove to arbitration but it gets harder with every step if court has been utilized and discovery had proceeded.

[sillymonkey]

Yes, I agree with this. I basically used another Amex CC agreement with the arb clause in it and told the court that this is MIGHT be the agreement that binds us. We'll see if the court accepts it or not. I also stated a few times in my response to the Objection to MTC that we still do not have the agreement from the OC and therefore I wish to preserve my arb rights before going too far.

The OC's objection to my MTC states that we are already too far into litigation and to go into arb will be prejudicial to them. I stated in my response that they were unwilling or unable to produce the agreement possibly because they want to conceal the arb. clause

 

It is absolutely correct to infuse arbitration and jurisdiction (venue) in the answer, but sometimes (I refer to my own case ); opponent files based on everything and attaches NOTHING. In that case one does not know if the arbitration exists without a contract.

 

In my neck of the woods if one found there was a contract and it had an arbitration clause but for some ODD reason was not attcahed  then,dismissal and citation to consumer fraud act would turn the case on its head because material fact was concealed. BUT that is a last resort thingy if discovery was conducted between the parties.

 

So, there still remains an option to remove to arbitration but it gets harder with every step if court has been utilized and discovery had proceeded.

[howucan2]

Then in your argument don't forget " Concealment of material fact " that is the agreement they never produced.

[sillymonkey]

OH! Thanks! I didn't add that!

[Linda7]

Here's a sample below - different state and I'm sure, different arguments - but, it might give you some ideas.

 

DEFENDANT'S OPPOSITION TO PLAINTIFF'S RESPONSE

TO DEFENDANT'S MTC ARBITRATION

 

Now comes the Defendant, Pro Se, and states his opposition to Plaintiff's Response to Defendant's Motion to Compel Arbitration.

This Motion is supported by the attached Memorandum of Points and Authorities and all other pleadings and exhibits previously submitted to the court.

 

Respectfully Submitted this day, January ____, 2013

 

Your Name Typed, Defendant

 

MEMORANDUM OF POINTS AND AUTHORITIES

 

Arizona Revised Statute 12-3007 ( states: “If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate." Defendant has shown that there is an enforceable agreement to arbitrate. (Exhibit X)

 

The Supreme Court has guaranteed the right to arbitration if specified in the contract per AT&T Mobility, LLC v. Concepcion.

 

Plaintiff's argument that they did not choose to elect arbitration has no bearing on the consumer's right to arbitrate. The agreement clearly gives either party the right to elect arbitration to resolve a claim.  The agreement states, ""IF EITHER PARTY CHOOSES TO ARBITRATE A CLAIM, NEITHER PARTY WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR TO HAVE A JURY TRIAL ON THAT CLAIM, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO SUCH CLAIM.”

 

Plaintiff further argues that the agreement states, "We agree not to invoke our right to arbitrate any individual claim you bring in small claims court.”  This is true according to the agreement, "the" Plaintiff will not invoke their right to arbitrate an individual claim that "the" Defendant has brought in small claims court.  However, the Defendant did "not" bring a claim in small claims court.  The agreement states, "any claim, dispute or controversy (whether based upon contract,  tort,  intentional or otherwise,  constitution,  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  decided,  upon  the  election  of  you  or  us,  by  binding arbitration . . . "

 

Plaintiff continues by saying the Defendant has failed to formally "elect" arbitration and goes on to quote from the agreement, “if you initiate arbitration, you must pay the lesser of one-half of any required arb fees or $125…”. (emphasis mine).  Plaintiff fails to discern the difference between "electing" arbitration and "initiating" arbitration. Electing arbitration is a choice that can be made as a way to resolve a dispute.  As the agreement states, either party may "elect" arbitration to resolve any claim, dispute or controvery.  Defendant formally elected arbitration pursuant to the terms of the agreement when he sent an arbitration notice which was received by Plaintiff on ______________, 2012. (Exhibit) 

 

Plaintiff further states that Defendant has failed to allege that he has contacted JAMS or obtained the Arbitration rules and procedures, fee schedules, or claim forms pursuant to the contract.  This is not so.  Defendant has followed the terms of the agreement by sending notice of his election of arbitration and notifying them of his choice of JAMS as arbitrator administrator.  Defendant has also initiated by sending the JAMS paperwork to the Plaintiff and their attorney, which was received on _______________, 2012 showing that Plaintiff is fully aware that Defendant has obtained the JAMS paperwork as Defendant has already sent it to the Plaintiff.  Defendant intends to complete his initiation of arbitration upon the decision of the court regarding Defendant's motion to compel arbitration. In Citibank (South Dakota), NA v. Seligmann, Ariz: Court of Appeals, 1st Div., Dept. B 2011, the court granted Seligmann's motion to compel arbitration and gave the parties a certain amount of time to initiate the process. The court did not indicate that Seligmann had to initiate arbitration before filing the Motion to Compel.

 

Plaintiff states, "An Arbitrator may only resolve issues the parties to a dispute have agreed to submit to Arbitration". The agreement states that "any claim, dispute or controversy . . .  shall be decided, upon the election of you or us, by binding arbitration . . . "

 

Plaintiff is trying to take away the Defendant's consumer rights to arbitration as provided by the agreement. The agreement states, "The  laws  of  the  United  States  of  America,  including  the  Federal Arbitration Act, 9 U.S.C. Sections 1-16 (the “FAA”), and the laws of the State of Utah apply to and govern this Agreement and your use of your Account."

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". (emphasis mine).

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. (emphasis mine).

 

Further, "[A]rbitration clauses are construed liberally and any doubts about whether a matter is subject to arbitration are resolved in favor of arbitration.” City of Cottonwood v. James L. Fann Contracting, Inc., 179 Ariz. 185, 189, 877 P. 2d 284, 288 (App. 1994).

And further, "This is clear from the very wording of our arbitration statute. It requires arbitration when there is a 'written agreement to submit any existing controversy to arbitration' or when there is a 'provision in a written contract to submit to arbitration any controversy thereafter arising . . . .'" Schoneberger v. Oelze, Ariz: Court of Appeals, 1st Div., Dept. E 2004.

 

CONCLUSION

Wherefore, Defendant respectfully requests this Honorable Court grant his motion 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, January ______, 2013

 

__________________________________(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 the Defendant's Opposition to Plaintiff's Response and in Defendant's Brief in Support are true and correct to the best of his knowledge and belief.

 

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 DEFENDANT'S OPPOSITION TO PLAINTIFF'S RESPONSE TO DEFENDANT'S MOTION TO COMPEL ARBITRATION AND SUPPORTING BRIEF to:

XXXXXXXXXXXXXXXXX., Plaintiff's attorney
Their address
City, State and zip code

By: Your name typed, Defendant

Date: __________________, 2013


 

[sillymonkey]

YAY! Thanks for all your help!! The County Court has approved my MTC (No news from the district case yet)

Now for the mutual walk away settlement or round 2 (arb) if they refuse. Final bullet is still BK7

[BTKCAs]

sillymonkey - any update on this? I'm in CO too and curious to know how it's coming along.

[sillymonkey]

All cases have been pushed into JAMS. The courts (both County & District) decided in favor of allowing it to go into arb.

The cases the judges cited can be found here:

 

http://www.creditinfocenter.com/community/topic/319662-colorado-case-laws-for-mtc-arb/

 

Looks like for CO, as long as you have not participated in Discovery, you can compel arb. Filing of the mandatory Disclosure Statments on either or both sides does not count. If you've done Discovery then it's probably too late to compel arb.