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Just received Opposition to my MTC Arb - Help! (MTC Hearing on 5/8!)


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Hi All,

I have a pre-trial conference/motion hearing scheduled for THIS WEDNESDAY morning (5/8), and just received opposition to my MTC Arb today (sent to me by email... with a paper copy to be served on me in court the day of. Not even sure this opposition should be accepted by the court according to section VI.D of this MA standing order, though I am pro se and not represented by counsel as noted in the order:http://www.lawlib.state.ma.us/source/mass/rules/district/orders/dist1-04.html).  Need some opinions on how one might counter this opposition in court.

-OC was Chase, charged off late 2009 at around $3.5k when I lived in CA.  I am now in MA.
-JDB now "owns" the alleged debt and served a summons end of Dec 2012
-I answered the complaint with affirmative defenses, we had a Case Management Conference in court on 2/20 which lasted only a few minutes since nothing had really happened.  Pre-Trial Conference set for THIS WEDNESDAY 5/8.
-Already initiated and paid my $250 for JAMS
-NO documentation/evidence of any kind has been provided by Plaintiff

Current Issue:

I have attached a copy of the Opposition to my MTC, with certain information cut out for the sake of sharing it here.  The attachment includes my Answer to Plaintiff's Complaint, the other attachment is as the contract I included in my MTC and to JAMS (2005 Chase contract with JAMS).

Their opposition hinges on these points, my thoughts/concerns/questions are in red:

1) When I filed my answer I was just learning about all of this process and had only reviewed a couple of online resources.  As such, I included as one of my affirmative defenses that "I have not entered into a contract with the Plaintiff."  Since then, I have filed my MTC with a contract (with affidavit) and objected to discovery/admissions requests on the grounds that I am electing ARB under a contract that I found after filing the answer.  Opposing counsel is now saying I never amended my answer to remove the statement that I have not entered into a contract with Plaintiff, so the court should disregard the agreement I attached because my original answer denying a contract exists must stand.

I wish now I hadn't included that defense about not having entered a contract with Plaintiff.  Does this shoot me in the foot?  Technically, I didn't enter a contract directly with the Plaintiff/JDB... I entered it with Chase, and after doing some digging on my own after filing my answer I found the 2005 contract that would oversee this alleged account.  Don't know if the judge will see it that way though.  How would one hypothetically argue out of this one?  Would it benefit me to bring a motion to amend my answer with me to the hearing, or is it too late?

2) The agreement I attached "is not dated nor does it state a nexus between the account subject of this lawsuit and the agreement. Defendant has not proved that this agreement was the one in effect at the time of Defendant's default or breach of contract."

My understanding is that if I filed this agreement with an affidavit stating I believe this is the correct agreement that would govern the alleged account, I don't need to prove anything - they are the ones who need to prove otherwise with records/statements and/or a witness.  I think the agreement is dated 02/05 at the bottom of last page in small print.  The nexus between the account and the agreement is that the agreement is with Chase for a card account and applies to its assigns as noted in contract.  Are there any holes I'm missing here? 

3) In the contract, under "Claims Covered" (starts at bottom of pg 1 of the contract and rolls over to the second page), it states "This arbitration agreement includes claims that arose in the past, or arise in the present or future.  Claims subject to arbitration include claims that are made as counterclaims, cross claims, third party claims, interpleaders or otherwise, and a party who initiates a proceeding in court may elect arbitration with respect to any such claims advanced in the lawsuit by any party or parties." They are saying that since I did not file a counterclaim or advance any claims in the lawsuit, I was barred from electing arbitration once the lawsuit was commenced.

I don't think I've seen anywhere that I would need to have filed counterclaims in the lawsuit in order to elect ARB.  Furthermore, first sentence of the agreement states "Either you or we may, without the other's consent, elect mandatory, binding arbitration of any claim, dispute, or controversy by either you or us against the other, or against the... assigns... of the other, arising from or relating to the Cardmember Agreement, any prior Cardmember Agreement, your credit card account or the advertising, application, or approval of your account." It seems to me that this means that even if I didn't file a counterclaim in this lawsuit, I am still disputing the validity of the Plaintiff and account and therefore this should be covered by ARB.  Is there an angle to this language I am not seeing or properly understanding?

4) They said I hadn't paid my costs, which is untrue and I can bring the email from JAMS confirming receipt of my payment.

I have paid JAMS and can bring a copy of the email I received from JAMS (also sent to opposing counsel) confirming my payment

5) They say Plaintiff would be prejudiced by arb at this point because of the expenses they have incurred to file suit, serve discovery, and attend the last case management conference.

I think I can argue against prejudice by saying they never presented a signed contract/agreement to me beforehand indicating that ARB was an option or else I would have elected ARB immediately (though if that argument does not seem sufficient, what else could one potentially argue?).

My main concerns are with the first three points, any opinions would be greatly appreciated. 




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