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MTC filed, Initiating Jams, What happens if judge dismisses case, sends to JAMS and OC doesn't pay fee's


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I sent my Election, MTC, and I am ready to send JAMS initiation, even before hearing Judges decision. If Judge dismisses case and sends to JAMS, what happens if OC doesn't pay JAMS fees?

If it were me, I'd slow down a bit.  I would wait for the Judge's decision on your MTC. 

 

If it is granted, you will probably be contacted by a litigation specialist from Capital One who will be interested in settling "before" you initiate.  This can save both parties time and expense.

 

If you initiate with JAMS, you will need to send in your portion of the filing fees which will be $250.  If you settle before you initiate, you can save that $250 and possibly use it to settle the account with Capital One.

 

Instead of a dismissal, the Judge will probably "stay" the case pending the outcome of arbitration.  For the small amount they are trying to collect "and" your violations, Capital One will be more interested in a settlement instead of pursuing this into arbitration. 

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You definitely want the MTC Arb Order and a Stay.  I my case, the stay caused the court, on its own, to issue a "Status Hearing."

 

Your concern is what actually happened to me.

 

My Motion below resulted in the Plaintiff filing a Dismissal W/O Prejudice.  The aledged debt was just under $12k.

The Motion is pretty self explanatory and should be used only after your MTC Arb has been granted.

NOTE 1: The Court, on its own, set a "Status Conference"  4 months after the MTC Arb Hearing, so I came up with this Motion and decided to run with it.

NOTE 2: I also received a letter from JAMS in early April that the Plaintiff  has not paid their fees, which I did not receive until after I filed my motion.

Plaintiff filed a MTD w/o Prejudice 11 days before the Conference Hearing.

Plaintiff's Atty informed me that they no longer represent FIA (yeah, right).

I informed JAMS and they closed the case and refunded my fee..

 

I haven't heard a peep until I received a 1099C this year.  The SOL passed late last year

Hope this will help if your circumstances fit.
_____________________
DEFENDANT’S MOTION FOR SANCTIONS OR, IN THE ALTERNATIVE MOTION TO DISMISS WITH PREJUDICE

     Comes now, Defendant, XXXXX XXXXX, and respectfully requests the Court to Grant this Motion for Sanctions or, in the Alternative, Motion to Dismiss With Prejudice and submits the following:

   1 -  On January 10, 2011, the Defendant and Plaintiff were ordered into Consumer Private / Contractual Arbitration with JAMS.
   2 -  Defendant Initiated Arbitration with JAMS on January 21, 2011, including Defendants $127 fee per the Cardholder Agreement.  JAMS received Defendants paperwork on January 24, 2011 at their Las Vegas office (Exhibit A).
   3 -  On January 31, 2011, the Defendant and Plaintiff were sent letters from JAMS requesting the Plaintiff to pay their $550 fee (Exhibit c) .
   4 -  On February 10, 2011, the Defendant and Plaintiff were sent letters from JAMS with a corrected fee amount to be paid by the Plaintiff of $673.  This amount includes the $123 portion of the Defendants fee to be paid by the Plaintiff, per the Cardholder Agreement (Exhibit C).
   5 -  On March 10, 2011, the Defendant and Plaintiff were sent letters from JAMS stating that the Plaintiff has not yet paid their required $673 fee (Exhibit D).
   6 - As of January 24, 2011, Defendant has complied with the Order of January 10, 2011 as Consumer Private / Contractual Arbitration with JAMS is Initiated.
   7 -  Commencement is the next step after initiation of Arbitration.  This is being stalled for the past 2 months by the Plaintiff as the $673 fee has not been paid.
   8 -  The Plaintiff and their attorney regularly file many complaints every month at a cost of thousands of dollars per month.  Delay of payment of JAMS fee’s is unreasonable and shows no good faith.
   9 -  LR3-104. Disciplinary action for failure to comply.       
      "Any willful violation of these rules shall, in addition to other appropriate remedies, subject the attorney or non-complying party to such disciplinary or other action as the judges of the third judicial district court shall deem appropriate, including civil contempt".       

   Wherefore, Defendant respectfully asks this Court to Sanction the Plaintiff and/or their Attorney for willfully violating the Order of January 10, 2011 by not, in good faith, pursuing Arbitration  or, as an Alternative remedy, dismiss Plaintiff’s complaint with prejudice.

I state under penalty of perjury that the foregoing is true and correct.

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You definitely want the MTC Arb Order and a Stay.  I my case, the stay caused the court, on its own, to issue a "Status Hearing."

 

Your concern is what actually happened to me.

 

My Motion below resulted in the Plaintiff filing a Dismissal W/O Prejudice.  The aledged debt was just under $12k.

The Motion is pretty self explanatory and should be used only after your MTC Arb has been granted.

NOTE 1: The Court, on its own, set a "Status Conference"  4 months after the MTC Arb Hearing, so I came up with this Motion and decided to run with it.

NOTE 2: I also received a letter from JAMS in early April that the Plaintiff  has not paid their fees, which I did not receive until after I filed my motion.

Plaintiff filed a MTD w/o Prejudice 11 days before the Conference Hearing.

Plaintiff's Atty informed me that they no longer represent FIA (yeah, right).

I informed JAMS and they closed the case and refunded my fee..

 

I haven't heard a peep until I received a 1099C this year.  The SOL passed late last year

Hope this will help if your circumstances fit.

_____________________

DEFENDANT’S MOTION FOR SANCTIONS OR, IN THE ALTERNATIVE MOTION TO DISMISS WITH PREJUDICE

     Comes now, Defendant, XXXXX XXXXX, and respectfully requests the Court to Grant this Motion for Sanctions or, in the Alternative, Motion to Dismiss With Prejudice and submits the following:

   1 -  On January 10, 2011, the Defendant and Plaintiff were ordered into Consumer Private / Contractual Arbitration with JAMS.

   2 -  Defendant Initiated Arbitration with JAMS on January 21, 2011, including Defendants $127 fee per the Cardholder Agreement.  JAMS received Defendants paperwork on January 24, 2011 at their Las Vegas office (Exhibit A).

   3 -  On January 31, 2011, the Defendant and Plaintiff were sent letters from JAMS requesting the Plaintiff to pay their $550 fee (Exhibit c) .

   4 -  On February 10, 2011, the Defendant and Plaintiff were sent letters from JAMS with a corrected fee amount to be paid by the Plaintiff of $673.  This amount includes the $123 portion of the Defendants fee to be paid by the Plaintiff, per the Cardholder Agreement (Exhibit C).

   5 -  On March 10, 2011, the Defendant and Plaintiff were sent letters from JAMS stating that the Plaintiff has not yet paid their required $673 fee (Exhibit D).

   6 - As of January 24, 2011, Defendant has complied with the Order of January 10, 2011 as Consumer Private / Contractual Arbitration with JAMS is Initiated.

   7 -  Commencement is the next step after initiation of Arbitration.  This is being stalled for the past 2 months by the Plaintiff as the $673 fee has not been paid.

   8 -  The Plaintiff and their attorney regularly file many complaints every month at a cost of thousands of dollars per month.  Delay of payment of JAMS fee’s is unreasonable and shows no good faith.

   9 -  LR3-104. Disciplinary action for failure to comply.       

      "Any willful violation of these rules shall, in addition to other appropriate remedies, subject the attorney or non-complying party to such disciplinary or other action as the judges of the third judicial district court shall deem appropriate, including civil contempt".       

   Wherefore, Defendant respectfully asks this Court to Sanction the Plaintiff and/or their Attorney for willfully violating the Order of January 10, 2011 by not, in good faith, pursuing Arbitration  or, as an Alternative remedy, dismiss Plaintiff’s complaint with prejudice.

I state under penalty of perjury that the foregoing is true and correct.

The above is why I don't like to rush it.  If you slow down and "don't" initiate right out of the gate, there often can be an opportunity to get a dismissal "with" prejudice, deletion of the tradelines, no selling of the debt, etc.  Capital One can't do business with AAA these days even though it is in their agreements.  AAA won't accept initiation from them.  So, it's good to wait and let Capital One open the door to negotiations "after" the MTC is granted - but, "before" you actually initiate with JAMS. 

 

The only creditor that I would say to "rush" out the door and initiate in JAMS would be Citibank.  They are known for ignoring the consumer and proceeding with their own initiation in AAA.  The day you elect arbitration via JAMS with them, you need to also include the JAMS demand, "and" complete the initiation "that" day by sending everything on in to JAMS. 

 

If you're dealing with JDBuyers - again I would wait and get the MTC granted first and then I would send a good will letter to both the creditor and their attorney, quoting from the agreement things like each party will be responsible for their own attorney fees, etc. - or if you have one that says the consumer will only pay $50 and upon written request they will pay the remainder - of if you have one that says the consumer (if they lose) will not have to reimburse the creditor.  Any thing like that, I would respectfully point out and then open the door and offer them a way out.  I would offer to dismiss my claims if they would dismiss "with" prejudice the court action, delete the tradelines, no selling of the debt and no 1099.  Most JDBuyers will appeciate the opportunity to stay away from arbitration.

 

A dismissal "without" prejudice is good - but, a dismissal "with" prejudice is better.  A dismissal "without" prejudice leaves the door open for them to pursue you again, sell the debt and you have to start fighting another one all over again and all this stays on your credit report.

 

But, if you wait until the MTC arbitration is granted - the ground is fertile for some good settlement opportunities which include a dismissal "with" prejudice, cleaning them "off" your credit report and taking away their option of selling it.

 

Be sure and read those agreements!  If you feel that you do need to "begin" the initiation first - you can always send the JAMS demand to the creditor and their attorney - but, "not" complete by sending to JAMS.  That way you have your foot in the door first, but you have not sealed off that settlement opportunity that often comes right behind the granting of the MTC arbitration. 

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The above is why I don't like to rush it.  If you slow down and "don't" initiate right out of the gate,

Very True.  I should clairfy, in  my case, I was backed up against the wall.  I quite literally elected Arb, via fax to the OC's attorney, at 4:30 on the day before their MSJ hearing and did my MTC Arb in open court the next day during the MSJ Hearing.  Yes, a very gut-check move for sure.

 

 

Capital One can't do business with AAA these days even though it is in their agreements.  AAA won't accept initiation from them.

Linda, I have heard that AAA will accept Arb if initiated by the debtor and not Cap 1.  Is this still true?

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Very True.  I should clairfy, in  my case, I was backed up against the wall.  I quite literally elected Arb, via fax to the OC's attorney, at 4:30 on the day before their MSJ hearing and did my MTC Arb in open court the next day during the MSJ Hearing.  Yes, a very gut-check move for sure.

 

 

Linda, I have heard that AAA will accept Arb if initiated by the debtor and not Cap 1.  Is this still true?

I would have elected arbitration and filed the MTC arbitration in open court and even if you wanted, have the JAMS demand for the attorney and the creditor and a copy for the Judge - but, I would have waited on that order to accompany my information to JAMS.  That is when that little time period is that you could have saved the filing fee and opened the door for those negotiations to include the court case be dismissed "with" prejudice, etc.  A creditor can easily go back and change a dismissal "without" prejudice to "with" prejudice and that would be one of the stipulations you could specify in exchange for "not" moving forward with the completion of your initiation in JAMS.  I know it's late for you - but, I wanted to try and explain how this situation could work for the consumer.

 

If your account was covered at anytime by an agreement with JAMS - I'd use that one!

 

Here's some more reading about Capital One and AAA - http://www.debtorboards.com/index.php?topic=21610.msg177766#msg177766

 

It seems that AAA won't come right out and specify - they just say it goes case by case.

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Thanks so much for your replies.

My situation is a little different. The Plaintiffs attorneys already sent me a Stip of Dismissal, with predjudice. I didnt sign it, and instead I elected ARB, prior to my trial date. I want it out of the courts . I want to force the OC into ARB. If they don't follow the courts order, than at least I have leverage to bring them back into Superior or Fed court. If the Judge doesn't order ARB, or the OC doesn't pay, it is just another confirmation that they want to play by their own rules! Its time to make game changing moves!

Cj, how did yours end?

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Thanks Linda, I will be working on my Complaint. I don't want to miss anything! I will also be looking for any settlement advice out there. Account will fall off of tradeline next month and is SOL, so I really need help in making this settlement all about "their"" violations

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Thanks Linda, I will be working on my Complaint. I don't want to miss anything! I will also be looking for any settlement advice out there. Account will fall off of tradeline next month and is SOL, so I really need help in making this settlement all about "their"" violations

Just curious - what about their stipulated dismissal "with" prejudice did you not like?

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Cj, how did yours end?

As I stated above, when confronted with the Motion for Sanctions, they dismissed w/o preduice 11 days before the "status Conference".....CHECKMATE :-)

 

I never heard from them again, even if they refiled, they would have to start with where they left off....answering the Motion for Sanctions (at least that is how it was explained to me in NM.)

 

They had 2 choices

1) Answer to the court why they didn't Arbitrate per the court order, or

2) Dismiss the case so they would not have to answer my motion at all.

 

Remember, sanctions is kinda like a combination of Contempt of court and punishment for that comtempt in one pleading.

 

#9 in my motion was the courts local rule for sanctions.

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Just curious - what about their stipulated dismissal "with" prejudice did you not like?

Hi Linda. I did like that they wanted to dismiss with predjudice, as they should :). It was a tough call because if I sign the "Stip of Dismissal" , it could cause a challenge with any claims I have against them. Which is many! At this point, I would rather have this "entire controversy" in JAMs, rather than courts. If they don't want to pay JAMS fee's, than I will have my option to bring them back to court. I want to keep my options open :)

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Hi Linda. I did like that they wanted to dismiss with predjudice, as they should :-). It was a tough call because if I sign the "Stip of Dismissal" , it could cause a challenge with any claims I have against them. Which is many! At this point, I would rather have this "entire controversy" in JAMs, rather than courts. If they don't want to pay JAMS fee's, than I will have my option to bring them back to court. I want to keep my options open :-)

I get it now -  you are after more than just getting rid of the debt and the debt collector.  :)%

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Well, it almost happened exactly as I expected. My trial date was scheduled for tmro and my MTC hearing for next week. The law clerk called me today and told me the plaintiff dismissed the case.

I said " I didn't sign a Stip of Dismissal", and she said, its ok, they do it all the time. I said, well Rule 4:37 says after defendant files an answer, signatures from both parties are required, she said, "No they are not". I said " well, I filed a Motion to Compel Arbitration " , she said, well you don't need that now because the case is dismissed. And if you don't think they all work together, HA. The clerk said it was overnighted to her on the 12th and she had it in her hands by 9 am this morning. (?) She said I was cc'd , but I didn't get mine!

Lol. This is a joke! I elected and MTC Arb on the 8 th and the plaintiff sent the dismissal on the 12 th.

Oh well, I was looking forward to trying ARB,

I guess a win is a win. Federal Court, here we Come!

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  • 2 weeks later...

Hi everyone

I have another question. I got my MTC arb approved by the courts. I have about 3 weeks left to initiate JAMS. I sent settlement letters to both the OC and the attorney for the OC. The options were either to agree to a mutual walkaway or so fwd their information for the JAMS initiation. For 1 case, I also asked for a copy of the CC agreement which they still have not provided.

In this case, the judge allowed me to use a CC Agreement from another card for the MTC.

My question is, if they don't provide me with the info requested, say within 1 week from my initiation dateline, should I just use what I THINK may be the OC's info? Or do I need to file a MTC with the court to make them furnish this info if they don't comply? Or do I do both?

I'm in Colorado.

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Hi everyone

I have another question. I got my MTC arb approved by the courts.

 

. . .  Or do I need to file a MTC with the court to make them furnish this info if they don't comply?

 

Probably not much chance of that. Once a court acknowledges the existence of a valid arbitration agreement to which the parties are subject to, court will divest itself of jurisdiction at least until arbitration is completed. It is quite likely that since the case has been sent to arbitration, the court will not entertain any motions for ancillary relief. As the saying goes, you can't have your cake and eat it too.

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Hi everyone

I have another question. I got my MTC arb approved by the courts. I have about 3 weeks left to initiate JAMS. I sent settlement letters to both the OC and the attorney for the OC. The options were either to agree to a mutual walkaway or so fwd their information for the JAMS initiation. For 1 case, I also asked for a copy of the CC agreement which they still have not provided.

In this case, the judge allowed me to use a CC Agreement from another card for the MTC.

My question is, if they don't provide me with the info requested, say within 1 week from my initiation dateline, should I just use what I THINK may be the OC's info? Or do I need to file a MTC with the court to make them furnish this info if they don't comply? Or do I do both?

I'm in Colorado.

You actually don't have to have "all" the information - it's just a way to get them to see that you're filling out the form and moving forward with arbitration.  A lot of times this will speed up their decision to agree to settle before it proceeds any further.

 

If it were me, I'd go ahead and fill out "vague" JAMS demands and send to both the creditor and the attorney "now", but hold off sending to JAMS until closer to your deadline.  That will give the attorney and the creditor a little more time if they do want to settle.  I would send a cover letter along with the JAMS demands to the creditor and the attorney - "Attached please find the Demand for Arbitration Before JAMS.  I still need the information previously requested, phone number, fax number and email address for both _________________(creditor's name) and ___________________(law firm)."

 

Hopefully that will be a reminder to them that you are moving forward and if they want to settle without paying their portion of the filing fees, they need to act now.  It's what I call another good will attempt to give them that opportunity.

 

If you don't hear from them, don't miss your deadline to file with JAMS.  I'd hold off though as long as you can, but then I'd send everything to JAMS to complete your initiation of arbitration.  And remember, you can send it without the requested information.  If they don't provide it, you can look up a phone number to include on the JAMS form.  Or the day before you plan on sending it to JAMS, you could make a call to the attorney's office and tell them you're approaching the deadline for turning in the papers to JAMS and you need their fax number and email address and you'll need it for the creditor too. Sometimes an attorney at that point will want to check with their client and then at times they will call the consumer back and agree to settling.

 

Also, don't forget to include on any letter you send to them, your email address.  That way you might hear from them quicker or even get a settlement agreement in your email.

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Awesome. Thanks Linda. The first dateline I sent them has passed (my email was included). I'll work on my JAMs forms this weekend then send out them the JAMS forms on Monday. For 1 case, I don't have the CC agreement. I don't think the lawyer has it either since it was never included in the court docs. How should I proceed in this case, since I know I need the full CC agreement to initiate JAMs.

Will I need to MTC the lawyer so that the court knows that I'm not able to initiate and the OC is not complying?

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Awesome. Thanks Linda. The first dateline I sent them has passed (my email was included). I'll work on my JAMs forms this weekend then send out them the JAMS forms on Monday. For 1 case, I don't have the CC agreement. I don't think the lawyer has it either since it was never included in the court docs. How should I proceed in this case, since I know I need the full CC agreement to initiate JAMs.

Will I need to MTC the lawyer so that the court knows that I'm not able to initiate and the OC is not complying?

On the one that you don't have the agreement, tell me who the OC is and the year the account was opened and the year of the default.

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