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Plaintiff's Response to Arb Request


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Hello all, brief summary of progress with a couple of questions.

 

Helping judgement proof dad with summons - collections atty. representing FI_A aka BO_A

 

End of Jan - rec'd summons & complaint containing disputable affadavits from both OC and affiant and a copy of 1 statement.  Acct opened 2003, defaulted 2007, last pmt in 8/2007

 

With help from this forum and DB (Kudos to Linda7) was able to timely answer complaint and file MTC with JAMS with 2003 agreement.

 

No quick response from atty.

 

Towards the end of Feb. court ordered it's own motion to plaintiff to respond to MTC within 15 days.

 

Beginning of April plaintiff responds to courts motion.  (3 weeks late)

 

Plaintiff response basically included statements that states that the agreement does not make arb. mandatory and that they elected to choose court over arb.  But if defendant wanted to proceed with arb he asked the court to stay and set a 30 day deadline.  He also included an order for the judge to sign requesting a stay and a 30 day limit for defendant to initiate arb.

 

Atty. also included in his response what he stated as the relevant agreement (Exhibit A) and quoted verbage from an unidentified cardmember agreement and said again, See Exhibit A (emphasis added)  

 

Ex."A" was simply a couple of copies of something pulled off of a consumer debt collection forum 

 

1. an AAA statement that they will not accept filings for consumer debt unless filed by consumer. 

 

 2.Similar copy of a statement from NAF

 

I'm not real sure why he included those copies as an example of  the "relevant agreement".  It seemed to be pretty sloppy and or lazy on his part.  He didn't include a cardmember agreement either.

 

From what he sent I'm pretty sure the judge will go ahead and sign his order to stay pending arb. and to give us 30 days to initiate 

 

Finally - my question.  Should I respond to his response?  Or should I wait for the judge to sign the stay order and give me 30 days and then go ahead a initiate with JAMS.  The atty. is not really fighting the MTC arb

 

Also, I've made a couple of mistakes along the way and don't know if they'll cause me any problems later.  Any thoughts on these?

 

1st mistake - I didn't send arb election to OC (I only sent it to the atty) when filing the MTC.  I hope it is not too late or out of any order to do so when I initiate with JAMS.

 

2nd mistake - I didn't include an order with my MTC for judge to sign to make it easy for him to either dismiss or stay ( I wish I had done this)

 

3rd mistake - I should have asked the clerk when filing answer and MTC if I should schedule a hearing.

 

4th mistake - after the 15 days passed and the atty. didn't repond to courts order to respond I should have probably tried to schedule a MTD or filed for a default judgement but I let it go by.

 

 

A

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I would initiate right now before the party gets cold feet.

 

I would attach the entire JAMS filing/paperwork , (you must serve the parties you name in your demand) Green card signed for the service and file everything with court ASAP so that there won't be an issue of who files where.

 

Make sure to attach the card agreement again with an affidavit to the rest of the paperwork. If you're court does the ruling on paper then it's fine otherwise it's the responsibility of the filing party to schedule the hearing and notify the other side to attend.

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Be aware that 2003 was the last year that BofA had JAMS as an option for arbitration and doing a quick scan through the agreement I did not see a survivability clause.

Subsequent years specifies either AAA and / or NAF.

 

The 2006 agreement which specifies NAF does contains the language, “If NAF is unable or unwilling to act as arbitrator, we may substitute another nationally recognized, independent arbitration organization that uses a similar code of procedure.”

 

I have successfully scared BofA away by electing JAMS using this terminology.

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Credit opened in 2003 , default was 2007 ? Are you sure this is BOA ? I had an alleged account which was sold within six months to another entity.

 

Checked credit reports ? something doesn't look right here.

 

SOL in IN is 6 yrs right ? If so I would use the one with DE law (shorter SOL 3 years) but it's AAA and NAF.

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Be aware that 2003 was the last year that BofA had JAMS as an option for arbitration and doing a quick scan through the agreement I did not see a survivability clause.

Subsequent years specifies either AAA and / or NAF.

 

The 2006 agreement which specifies NAF does contains the language, “If NAF is unable or unwilling to act as arbitrator, we may substitute another nationally recognized, independent arbitration organization that uses a similar code of procedure.”

 

I have successfully scared BofA away by electing JAMS using this terminology.

 

This depends on the state you live in , there was IL state's Supreme Cout case which ruled out arbitration because NAF didn't exist " Carr vs Gateway 2011".

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SOL in IN is 6 yrs right ? If so I would use the one with DE law (shorter SOL 3 years) but it's AAA and NAF.

 

Agreed ......... in this instance the shorter SOL would be more beneficial than the cost factor. The JAMS agreement specifies AZ as governing law.

6 year SOL in AZ.

 

This depends on the state you live in , there was IL state's Supreme Court case which ruled out arbitration because NAF didn't exist " Carr vs Gateway 2011".

 

Going to read this case ...... can't see how they ruled that NAF didn't exist just because they don't conduct consumer arbitration anymore; maybe that's what you meant and just condensed the ruling.

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Credit opened in 2003 , default was 2007 ? Are you sure this is BOA ? I had an alleged account which was sold within six months to another entity.

 

Checked credit reports ? something doesn't look right here.

 

SOL in IN is 6 yrs right ? If so I would use the one with DE law (shorter SOL 3 years) but it's AAA and NAF.

I checked his credit reports, they still say BOA and charged off.  I'm really not sure why they never sold it.  I tried checking out the atty. and as far as I can see he is mainly a defaullt judgement guy for a lot of collection agencies.

 

The agreement I sent with MTC was 2003 with JAMS with Nevada, also 6 yr. SOL.  Would it be to my advantage to send a different one to JAMS that has DE.  Can I do that?

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Nope, there is no other besides AZ with JAMS.

 

How much is the alleged debt? just ball park don't give the exact amount.

 

Is BOA sending billing  statements at all ? This could get interesting.

 

Finally - my question.  Should I respond to his response? Always respond to the opponent's motions , check your rules for time allowed to respond. (I know in my state it's 14 days )

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Going to read this case ...... can't see how they ruled that NAF didn't exist just because they don't conduct consumer arbitration anymore; maybe that's what you meant and just condensed the ruling.

 NAF was barred from conducting arbitration in cases involving consumers (2009 , Lori Swanson MN AG)  , still does business arbitration.

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Nope, there is no other besides AZ with JAMS.

Could I use one with AAA or NAF with DE?  The court order doesn't say that I specifically have to file with Jams although that is what my MTC asked for.  

 

The judge however, responded to atty's order to for me to initiate arb within 30 days but doesn't say with whom.  Couldn't I file for arb with a different forum if I can find the right agreement with DE?   I would then be able to use the SOL defense

 

How much is the alleged debt? just ball park don't give the exact amount.  It is 6XXX.xx  ish

 

Is BOA sending billing  statements at all ? This could get interesting.  No, in the complaint there was a copy of one statement with an incorrect pasted in acct number that differed from what the affiant stated in her statement.  It looked fishy) The atty. also included an affidavit that stated he had reviewed documents kept in the normal course of the "Firm's" business and has personal knowledge of the information ... and also then listed an acct. number not matching provided statement

 

Finally - my question.  Should I respond to his response? Always respond to the opponent's motions , check your rules for time allowed to respond. (I know in my state it's 14 days )    Did you see my earlier post?  I checked the case online and judge granted stay for arb.  Do I still respond to that or just wait until I have my papers together to show that I initiated?

 

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BofA agreements

 

Just as a side note ....... and don't quote me on this ......... but I think I've heard that AAA will not arbitrate a consumer case without a court order.

Thanks for the link!

 

 I got the court order today.  I haven't seen it yet but checked online and saw that case has been stayed pending arb.

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Be aware that 2003 was the last year that BofA had JAMS as an option for arbitration and doing a quick scan through the agreement I did not see a survivability clause.

Subsequent years specifies either AAA and / or NAF.

 

The 2006 agreement which specifies NAF does contains the language, “If NAF is unable or unwilling to act as arbitrator, we may substitute another nationally recognized, independent arbitration organization that uses a similar code of procedure.”

 

I have successfully scared BofA away by electing JAMS using this terminology.

 

 

I am just wondering out loud what the best option might be.   The 2006 contract says they use DE law with NAF but may substitute.  Would I get to choose arbitration forum but still apply DE law?

 

Should I stick with JAMS and hope the high price steers them away?

 

How did you successfully scare them off?   

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NAF has been banned from consumer arbitration.

The language of the agreements after 2003 states that “If NAF is unable or unwilling to act as arbitrator, we may substitute another nationally recognized, independent arbitration organization that uses a similar code of procedure".

 

 

I used that stipulation to elect arbitration with JAMS figuring if they can substitute ......... so can I.

 

They dismissed. I really don't know if the attorneys were just unfamiliar with arbitration or whether the rumor that BofA does not arbitrate determined the outcome.

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IMHO, I don't think they will arbitrate because of the amount, two because of Ross vs BOA settlement they can not initiate arbitration themselves so your choice of forum is anywhere you want it to be.

 

DE is better but you may want to try filing it with JAMS along with the court's order to give it weight (Make sure to highlight the area that says if NAF is not available another arbitration forum similar to it should arbitrate the case ).

 

First of all where does it say AAA will not take the case ? That's a lie , BOA can't initiate anywhere in arbitration unti Oct 2013 by order of Ross vs BOA settlement agreement.

 

Two, That attorney can not testify to business records of his client because he doesn't work for them in their office , he is their debt collection attorney trying to collect a debt, so that affidavit is as good as toilet tissue as far as you should be concerned.

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Could I use one with AAA or NAF with DE?  The court order doesn't say that I specifically have to file with Jams although that is what my MTC asked for.  

 

The judge however, responded to atty's order to for me to initiate arb within 30 days but doesn't say with whom.  Couldn't I file for arb with a different forum if I can find the right agreement with DE?   I would then be able to use the SOL defense

 

 

No need to respond when court already responded for you ! proceed with filing arbitration you are good to go !

 

Just go get a copy of that order from court ASAP

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IMHO, I don't think they will arbitrate because of the amount, two because of Ross vs BOA settlement they can not initiate arbitration themselves so your choice of forum is anywhere you want it to be.  I'm hoping they won't arbitrate.  Now choosing forum seems like flipping a coin.

 

DE is better but you may want to try filing it with JAMS along with the court's order to give it weight (Make sure to highlight the area that says if NAF is not available another arbitration forum similar to it should arbitrate the case ).  So I should be able to use 2006 agreement with DE law, my unspecified court order to initiate arb within 30 days and pick JAMS too?  

 

First of all where does it say AAA will not take the case ? That's a lie , BOA can't initiate anywhere in arbitration unti Oct 2013 by order of Ross vs BOA settlement agreement.   I have the court ordered arb so I could AAA if I wanted them.  Why might I want them?

 

Two, That attorney can not testify to business records of his client because he doesn't work for them in their office , he is their debt collection attorney trying to collect a debt, so that affidavit is as good as toilet tissue as far as you should be concerned.  My thoughts exactly!  (Also stated an incorrect account number)

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NAF has been banned from consumer arbitration.

The language of the agreements after 2003 states that “If NAF is unable or unwilling to act as arbitrator, we may substitute another nationally recognized, independent arbitration organization that uses a similar code of procedure".

 

 

I used that stipulation to elect arbitration with JAMS figuring if they can substitute ......... so can I.  That's what I'm thinking too.

 

They dismissed. I really don't know if the attorneys were just unfamiliar with arbitration or whether the rumor that BofA does not arbitrate determined the outcome.  I was unaware of that rumor but I like hearing it.

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I'm still waiting for my dad to get the court Order in the mail.  Hopefully he'll get it today so I can find out exactly what it says.  In the meantime I was hoping to get a little advise beforehand so I can get things rolling quickly.    

 

When the attorney responded to my MTC he included an Order for the judge to sign.  I am assuming this to be what happened, but so far I only know that an order was granted last Thurs. because I checked the case online.

 

The order from the atty stated:  1.  Matter is stayed   2. Defendeant shall have 30 days from date order is signed to initiate arb   3. If defendant fails to initiate it will go back to court.

 

Other Details - In my MTC arb, I included an 2003 agreement with JAMS with an affidavit.  In the atty. response no other agreement in opposition was included, however he made a verbal reference to a different agreement and to AAA.

 

My question that still remains is . . .  Can I pick a different agreement to use when initiating arb than the one that I attached with my MTC arb to the court?  The reason I may want to do this is - to use the 2006 that has DE law with the 3 yr. SOL. even if it says NAF or substitute.

 

IF I can do this . . .  which do you think is better, 2003 with JAMS or 2006 with DE law?   

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Tough call ..........

On the one hand JAMS costs them a lot of money to pursue and it is the agreement that you proffered to the court. If you attached an affidavit to your MTC, I would stick with JAMS. Be nasty to get caught swearing to one thing and then doing another.

 

On the other hand, with AAA the claim is past the SOL if you argue DE law appropriately.

 

Your choice but, I think I'd stick with the forum that got the case stayed despite what the plaintiff intimated at.

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