sheli1974usa

Capital One denied request to Arbitrate

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 I'm sure this subject has been beat to death on the board I see that they do this to everyone and I have searched and searched.. I know that every situation is different just wondering next steps

 

I have an alleged debt from Capital One.  I sent the attorney the normal DV letter, then elected arbitration.I sent it CMRRR, and also a notice to appear. A Fed Ex letter from Capital One came that said they are a litigation specialist with the Capital One legal department.

 They are in receipt of my elect to arbitrate, however the agreement (that they attached from 2010) does not include an arbitration provision. As a result, I can not arbitrate my dispute. 

 

Should I or my counsel wish to discuss and early resolution of the dispute please contact the attorney that I mailed the DV letter, elect to arb, notice to appear etc... 

 

I do not see that a suit has been filed. My account was opened in 2008, I have in my hands that agreement from 2008 that has the arbitration provision. 

 

Should I have filed with JAMS yesterday? Any comments appreciated. 
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Did you make any payments after 2010 on alleged account?  If not, your 2008 agreement should be good.  Or you can check your 2008 agreement, and see if it has a surviabilty clause, then elect it again, sending a copy of that agreement.

I don't know of other steps, but others may know. good luck.

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The exact same thing happened to me. I also opened my account in 2008.

 

The Arbitration Provision in the 2008 Cap One agreement has a survival Clause that states: "This Arbitration Provision shall survive: (1) suspension, termination, revocation, closure or changes of this Agreement, your Account and your relationship with us; ..."

 

However Cap One is claiming that the 2010 agreement is the only agreement that applies and filing documents with the court to that effect.

 

How dose one make sure that the Arbitration provision including the Survival Clause is enforced?

 

Thank you.

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Did you file an affidavit along with the MTC ? 

 

I once had this happen with another OC (Citi) their lawyer tried to introduce a more beneficial generic contract that did not have the arbitration forum I had chosen and filed in (JAMS). I had read the contract and it said " Any different agreement regarding arbitration must be agreed to in writing " . Ooooops for the opponent.

 

So I highlighted the section and had it ready for my oral argument. When it was my turn I simply asked : do you have my signature ? The attorney was dumb founded. What? I asked again do you have my consent in writing? I turned to the judge " your honor the highlighted area here which I supplied along with my affidavit states just that. Judge looked at the counsel in a way that it meant drop it , you lost this one.

 

Now, here is what I would argue " ambiguity".  In a contract of adhesion ambiguity must be resolved against the drafting party. Since the drafter C1 had the survivability clause then it must honor the fact that arbitration survives the changes .

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Did you file an affidavit along with the MTC ? 

 

Yes I did file an affidavit along with the MTC. 

 

 

My agreement does not mention that I need to agree in writing to any changes. Besides saying that the Arb Provision survives any changes to the agreement it also states that:

 

"In the event of a conflict or inconstancy between this Arbitration Provision and the other provisions of this Agreement or any prior agreement, this Arbitration Provision shall govern."

 

That may not be relevant here though since they are bringing out a newer rather than prior Agreement.

 

 

I agree with what you are saying, my biggest concern is that I will be dismissed out of hand by the court because I am Pro Se despite the fact that the Agreement clearly states that it survives changes.  Is there anything I can file with the court ahead of time stating my case?

 

Thank you

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The exact same thing happened to me. I also opened my account in 2008.

 

The Arbitration Provision in the 2008 Cap One agreement has a survival Clause that states: "This Arbitration Provision shall survive: (1) suspension, termination, revocation, closure or changes of this Agreement, your Account and your relationship with us; ..."

 

However Cap One is claiming that the 2010 agreement is the only agreement that applies and filing documents with the court to that effect.

 

How dose one make sure that the Arbitration provision including the Survival Clause is enforced?

 

Thank you.

 

The survivability clause 'should' stand on it's own.

Gonna depend on what 'documents' they file with the court that supports their claim.

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I agree that the survivability clause should stand on it's own. Cap One's own contract is clearly on my side in this.

 

The only document that they have included is a 2010 Cardholder Agreement. I noticed that they did not affidavit their Agreement.

 

Hopefully the Judge takes the time to read everything over. Its going to be me vs. a lawyer at the hearing.

 

I suppose I shouldn't be nervous about that since if the judge is pro-plaintiff there is probably nothing I can do anyway.

 

Fingers Crossed. 

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I have seen this argument bounced all over the place.  Sometimes the consumer wins and sometimes not.  It basically depends on the Judge ruling in the case.

 

I would send the litigation specialist a letter letting them know that your agreement states that you can elect to arbitrate.

 

I would file a MTC with the court if you haven't already and include the 2008 agreement with an affidavit.

 

When Capital One opposes your MTC, I would file an opposition and include your state's rule on arbitration, quote from the agreement regarding the survivability clause, quote AT&T v Concepcion and the FAA ruling regarding arbitration.

 

If Capital One opposes your MTC, post back and let us know what argument/arguments they used as those will need to be addressed.

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Same boat.

 

I filed a MTC as per your post on arbitration and they opposed. Details Here.

 

Their argument is weak, if I had even a couple days I would file a response. As it is I'm going to have to try and argue in person against their Lawyer

 

I'll post back to let you know how it goes.

 

Wish me luck!

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Off to a rocky start.

 

I was not aware of "Tentative Rulings". Apparently the day before the hearing the Judge makes a ruling and those rulings are posted on a website a 3:00PM. If don't like the ruling and want to make oral arguments at the hearing I needed to go to the court and schedule oral arguments before 4:00PM.

 

The Judge's Tentative Ruling was: 

 

 

"The motion is DENIED.  Defendant fails to show the existence of a written agreement to arbitrate.  (See Cal. Code Civ. Proc., § 1281.2)"
 
It was disheartening since it seems to indicate that the Judge didn't look at my motion which had the Agreement with Arb attached along with an Affidavit. I'm not sure how I can better show the existence of a written agreement than filing it with the court.
 
At first the Judge said there was nothing more I could do. However when I said that the opposition to my motion had only been served on me the day before and that I have had not chance to respond to the inaccuracies in their opposition the Judge said that I could have 14 days to file a response. She did not indicate if it would have any bearing on the ruling though...
 
Time for me to get to work!
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