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Plaintiff is presenting outdated agreement to get out of compelled JAMS


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Arbitration has already been compelled in my case.  However, Plaintiff (JDB) is now arguing that the "real" governing document has suddenly appeared (after the motion has been granted), and that jams isn't possible (AAA is listed in this really old agreement.) The doc was not supported otherwise.

 

In reviewing his relic, it is clear that it still provides for "another national arbitration company" if AAA doesn't work out.  Jams would fit that bill.  Also, Jams has stated they will accept a demand if they have an order. So that doesn't seem to be a problem. (?)

 

In my arguments against the Plaintiff I have focused on the unlikelihood that such an old (8 yr old) agreement version is the governing one.  I have worked on discrediting it, and underscoring their underhanded intentions.  But I also pointed out that the terms' language still allows for Jams .

 

However, it occurred to me, that this agreement would date the account past the SOL.

 

Because, it is a JDB, who have second-hand knowledge about their accounts, should I accept the agreement..... and use it towards arguing that it's past the SOL?   

 

Or should I stay focused on pointing out the old agreement's flaws, and discrediting the evidence and the JDB on the whole?

 

 

 

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Your taking a chance either way. Read up on Linda7's threads about arb, may be something in there that might help. Or get ahold of her by PM. Others might have a better idea. Just for laughs, you might contact the plaintiff and point out that they are helping you out by placing the debt past SOL. See how far they and fast they back off that one.....just for laughs....lol.

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Could you move to exclude the evidence pursuant to initial disclosure rules?

 

ie "barred from providing any documents to further support their claim due to Plaintiffs failure to disclose any documents per Rule 26."

 

 

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how much is the debt for? I would be inclined to believe they may dismiss before they would pay for Jams fees unless it is really lucrative.  If you pay and initiate JAMS, then it will be JAMS.  You already have the motion, youcould say I have already initiated.Jams per court order. (If you do it now)  The person who initiates usally gets to pick the forum where it will be heard.

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Isn't SOL based on the date of the last payment on an account?

 

Generally, the SOL starts from the date of default, not the date of the last payment.  Example -

 

Your payment is due on the 10th of each month.  You have made regular payments on the 5th of each month.

You miss the February 10th payment.  You are in default as of the 11th of February.  The SOL and charge-off ticker starts now, not from your last  payment of January 5th.

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Or should I stay focused on pointing out the old agreement's flaws, and discrediting the evidence and the JDB on the whole?

 

Usually the whole concept of private arbitration is to cause the Plaintiff to front pay the somewhat high arbitration fee and dissuade him to continue drop the action. Most of the time they back off from the law suit altogether  JAMS is usually preferred as AAA has in the past been known to be creditor friendly. It's sounding like this plan in either forum is not working or in your best interests. If your order compelling JAMS is in effect, changing it with an outdated agreement will be fighting a uphill battle for the Plaintiff. Respond/Reply with a memorandum in opposition to any pleadings the Plaintiff files.  If this plaintiff is willing to pay the fees there must be enough money involved to make it worth their while. Either way you need to prepare to fight with the conventional defense. (i.e. Answer, discovery, motions, strikes/limine, counter affidavits, good arguments and dismissal). You will have to do that anyway. Push for JAMS and focus on your case defense.

 

Check your State Rules for Civil Procedure for the statute of Limitations commencement/toll dates. In most States the default date usually is the date of last payment and can be confirmed on your credit report from the three CRA's. 

 

HP

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Generally, the SOL starts from the date of default, not the date of the last payment.  Example -

 

Your payment is due on the 10th of each month.  You have made regular payments on the 5th of each month.

You miss the February 10th payment.  You are in default as of the 11th of February.  The SOL and charge-off ticker starts now, not from your last  payment of January 5th.

 

 

Sorry that's what I meant. I know you are ok till you miss payment.

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Thank you all.

 

Another question:  Since Plaintiff has had several opportunities to object to or oppose the agreement --and never has over the course of several months and proceedings-- hasn't the Plaintiff positioned himself to be deemed admitted, or at least Waived their rights?

 

I'm using that as an argument, but I can't find the exact Rules to use as support.  I'm in U*tah -- but it seems many states rules follow similar patterns.

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