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I need caselaw on DENYING election of arbitration


usagi555
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This is quite the reversal.  I sued the bank, the the bank has already filed another motion with the court, I won that motion, and now they pulled the arbitration card on me.  I'm pretty sure I can beat this for several other reasons, but I want to have all bases covered.  First they agreed to have it removed to federal, then they already forced me to respond to a different motion with a lengthy response and got smacked down pretty hard, so they've already litigated the case.

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They sued me, dismissed with prejudice, sent me back to collections, so I sued them and the law firm that sued me, they removed to federal, filed a MTD, I won, and now they're invoking the arbitration clause.  The motion has not yet been filed, but I just stated that I will oppose it, so that should hit the court on Monday.  They're invoking the FAA and bringing plenty of case law to back it up.  I'll be providing positive evidence that they cannot prove that the cardholder agreement applies to me and be arguing that their previous dismissal with prejudice is more than enough to infer that any contract between the bank and I is null and void and they waived their right to compel arbitration. 

 

(And yes, it is a CC)

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@usagi555

 

One more question.  You said they moved to federal.  Is this in federal court?

 

There's case law that states that states that arbitration can be waived if you get too far into litigation.  If all they did was file a motion to dismiss, I don't know if that would be considered engaging in litigation.

 

I'll see what I can find.

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This is quite the reversal.  I sued the bank, the the bank has already filed another motion with the court, I won that motion, and now they pulled the arbitration card on me.  I'm pretty sure I can beat this for several other reasons, but I want to have all bases covered.  First they agreed to have it removed to federal, then they already forced me to respond to a different motion with a lengthy response and got smacked down pretty hard, so they've already litigated the case.

Did they do any discovery? If they did they may have gone too far. you can find the threads where the court denied arbitration. also if you are suing for violations of statutes then that is outside the scope of the agreement. arbitration is for contractual things. Violations of civil rights and such is outside the contract. If it is outside the four corners of the contract not arbitrable.

 

look up D'oence dhume doctrine and that will get you in the zone.

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Did they do any discovery? If they did they may have gone too far. you can find the threads where the court denied arbitration. also if you are suing for violations of statutes then that is outside the scope of the agreement. arbitration is for contractual things. Violations of civil rights and such is outside the contract. If it is outside the four corners of the contract not arbitrable.

 

look up D'oence dhume doctrine and that will get you in the zone.

 

 

(Yes BV80, we're in federal.)

 

Nope.  No discovery.  When strictly ignoring what happened previously, I do not think that they have advanced far enough to have waived arbitration.  I haven't been through the case law included in the brief yet, but they included quite a bit from my circuit stating as much, at least from what I've seen thus far.  Now then, not ignoring what happened previously, I think that they waived the right to arbitration when they dismissed the case against me with prejudice.  When they did that, the alleged contract became unenforceable.  Sort of a Res Judicata for arbitration clauses.  At least, that's my thought.  I also have some evidence, which they have not yet seen, that I am going to use to cast doubts on their claims that the agreement that they're supplying applies to me.  It's going to cast doubt on their entire host of record keeping practises, in fact. 

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Is it jams or AAA.

 

 

I don't know yet.  I have a copy of the motion as we have to ask if it is being opposed before filing it, and that's how they asked was by sending me a copy asking if I opposed it.  The motion and brief reference a card holder agreement from 2003.  I should get it tomorrow or the next day.  Given the date, it might be NAF.  But don't worry, should I lose, I'm going to make sure (if applicable) that my preference is JAMS looong before any judge makes any ruling. 

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I don't know if this will be helpful or not but I will throw it out there, In Citi's contract arb clause it states they can invoke arb unless a judgment has been made, then it it is off the table.

 

I would think that a dismissal with prejudice would qualify .

 

I think you are definitely on the right track.Good luck!

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This is quite the reversal.  I sued the bank, the the bank has already filed another motion with the court, I won that motion, and now they pulled the arbitration card on me.  I'm pretty sure I can beat this for several other reasons, but I want to have all bases covered.  First they agreed to have it removed to federal, then they already forced me to respond to a different motion with a lengthy response and got smacked down pretty hard, so they've already litigated the case.

Motion and removal to federal does not constitute as litigation. 

if they proceeded with discovery that would be a different story,  but anything else pretty much in all jurisdictions does not waive arbitration rights. Even the eleventh circuit which uses the lowest thresh hold (two prong test in deciding waiver of arbitration) would not rule your opponent  waived its arbitration rights. I have a case law for that but you are not in 11th circuit so wouldn't do you any good.

 

But, I would think Rooker-Feldman bars their claim forever on any jurisdiction, be it arbitration or court.

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Motion and removal to federal does not constitute as litigation. 

if they proceeded with discovery that would be a different story,  but anything else pretty much in all jurisdictions does not waive arbitration rights. Even the eleventh circuit which uses the lowest thresh hold (two prong test in deciding waiver of arbitration)does not think your opponent had waived arbitration rights.

 

But, I would think Rooker-Feldman bars their claim forever on any jurisdiction, be it arbitration or court.

 

LOLOL, I'm sorry for laughing, but one of the defendants is using rooker-feldman as an affirmative defense.  The irony of that working would be delicious! 

 

(But I don't think it would work.)

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Rooker Feldman bars them not you , they dismissed their claims against you ! unless you agreed to mutual dismissal it does not bar your claims.

 

It bars the US District Courts from directly reviewing state court decisions.  I've already argued against, and won, when they tried to claim that my claims were compulsory counter-claims, i.e. they wanted to make it about the validity of the underlying alleged debt from the previous case and, well, technically, and legally, they're wrong about that.  In my state, you don't get to dismiss your case with prejudice unless you ask the opposing party if the motion is opposed first, so in that sense, it was mutual, but because my RCP mandate it.  Going back to the compulsory counter-claims issue, this doctrine will not hold for them. 

 

I just got caught a bit off guard by the whole arbitration thing.

 

However, I think you're right about the idea that under normal circumstances, they would be allowed to compel arbitration.  This isn't under normal circumstances though.  I may lose, but I don't do frivolous. 

 

I'm dealing with a debt collection law firm and the bank that hired them.

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LOLOL, I'm sorry for laughing, but one of the defendants is using rooker-feldman as an affirmative defense.  The irony of that working would be delicious! 

 

(But I don't think it would work.)

 

Check this articles out. I'm not sure if any of it will help you, but it discusses affirmative defenses and various cases with opinions. From my personal experience most of the answers I have received included about 20 affirmative defenses including rooker-feldman. Most are now including arbitration, although I have yet to see it used.

 

http://www.circuitsplits.com/2012/06/growing-division-over-iqbaltwomblys-applicability-to-the-pleading-of-affirmative-defenses.html

 

http://www.circuitsplits.com/2012/02/39-district-courts-divided-over-the-proper-standard-for-pleading-affirmative-defenses.html

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Well, then........ let's see........ I am just trying to figure out what on earth binds you to arbitration.

 

Since, you technically agreed to dismissal, the old claims are considered adjudicated, but was the account closed afterwards ? I mean was your relationship over with the OC or did you continue your love affair with the creditor ?

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Well, then........ let's see........ I am just trying to figure out what on earth binds you to arbitration.

 

Since, you technically agreed to dismissal, the old claims are considered adjudicated, but was the account closed afterwards ? I mean was your relationship over with the OC or did you continue your love affair with the creditor ?

 

No, but they dismissed, then they tried to continue the love affair with me when they sent me back to a brand spankin' new collection agency.  I managed to talk the CA into never contacting me again on the phone.  No C&Ds, no validations, just plain bullying the debt collectors in such a way that they were actually scared of me.  I'm debt free and would not ever do business with any such entity after seeing how they treat people. 

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But you don't have a business relationship with them anymore,  what constitute binding is a written agreement that was signed by a consumer. You don't have one when the first was severed and the case was technically adjudicated.

 

It's like trying some one after a mistrial and dismissal.

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But you don't have a business relationship with them anymore,  what constitute binding is a written agreement that was signed by a consumer. You don't have one when the first was severed and the case was technically adjudicated.

 

It's like trying some one after a mistrial and dismissal.

 

And that's basically my story - that any alleged agreement between us evaporated the moment they dismissed with prejudice.  The agreement is flat out not enforceable and does not apply to me, and if they don't believe me, I'll sign a waiver agreeing not to use SOL as an affirmative defense and only use Res Judicata whilest they sue me again in state court. 

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I recall a FCRA case " pulliam vs Amex et.al. ND IL 2009" the judge ruled : just because a consumer ONCE had an account with a bank, and that business relationship was severed bank can not go back and access the consumer's credit on a closed account.

 

Basically the same thing, once it's done UNLESS the relationship is renewed in some way it's over.

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USA,

 

I am rooting for you but I think, you better revise your plan towards arbitration.  You know the arb strategy so you also know once you try to say " contract is disolved" or what ever spin langauge you are going to use, they will bring the survivability clause into the mix.

 

Also remember, this is a consumer arbitration and depending on the underlying OC/agreement, they will bare the burden of the costs.  Which in most instances may not be recoverable.

 

Long story short, not sure what you are going to gain by being in Federal Court.  If you really have a case that can win in Federal Court, it can win in arbitration, and they have to pay to see you win.  You are going Pro Se, so there are no attorney fees in Federal Court for you to gain, so whatever the claim you are likely on a strict liability for damages.

 

Throw up some type of opposition to the motion, but in the end get the thing to JAMS, so they can pay the full montey, for the case to be heard.

 

Best of Luck

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USA,

 

I am rooting for you but I think, you better revise your plan towards arbitration.  You know the arb strategy so you also know once you try to say " contract is disolved" or what ever spin langauge you are going to use, they will bring the survivability clause into the mix.

 

Also remember, this is a consumer arbitration and depending on the underlying OC/agreement, they will bare the burden of the costs.  Which in most instances may not be recoverable.

 

Long story short, not sure what you are going to gain by being in Federal Court.  If you really have a case that can win in Federal Court, it can win in arbitration, and they have to pay to see you win.  You are going Pro Se, so there are no attorney fees in Federal Court for you to gain, so whatever the claim you are likely on a strict liability for damages.

 

Throw up some type of opposition to the motion, but in the end get the thing to JAMS, so they can pay the full montey, for the case to be heard.

 

Best of Luck

 

I have more than just an alleged contract being dissolved to throw at them.  I'm speculating that the bank does not want this case to be public, because should I be successful, it will open them up to consumer lawsuits for every single CC suit that they file against consumers.  And I have a case where I can get a lot more than strict liability damages.  I have 2 torts that the judge let stand in what was a rather scathing (at them, not me) opinion.  I've gone beyond consumer protection law on this. 

 

(P.S. The arbitration clause they are using has no survivability clause in it.)

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