Cap One Opposing Motion to Compel Arbitration at the last minute!

[snax]

Capital One is Opposing my Motion to Compel Arbitration 2 days before the hearing for the motion.

 

They are claiming that the Agreement has changed and that I am now bound by the 2010 agreement which has no Arb Clause.  

 

I know it is BS because the agreement I signed has a survival clause for the Arb Provision. How do I fight it?

 

 

Background:

 

I was sued by Cap One for less than $10k in the state CA

 

The account in question was opened 2/1/2008

 

The 2008 Cap One agreement has an Arbitration Provision that includes JAMS.

 

The Arbitration Provision 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; ..."

 

 

Here is what has happened so far:

 

As per the terms of the agreement I elected Arbitration with JAMS.

 

JAMS accepted and served Cap One's Council.

 

I filed my answer including the affirmative defense that I have elected Arbitration. 

 

I also filed a Motion to Compel Arbitration as per this extremely helpful thread by Linda7. (@Linda7 Thank you Linda7!)

 

The Plaintiff has now filled an "Opposition to Defendant's Motion to Compel Arbitration" along with a Declaration in support by their own council. They supplied a 2010 agreement sans Arb Provision and are claiming it is the agreement that should be used.

 

 

I should be able to fight this as it is in violation of their own agreement. But with only 1 day to respond I am defiantly feeling the pressure.

 

Is this something I should address in person at the hearing for the motion or do I need to file a response?

 

Please Help!

 

 

 

 

[Linda7]

snax, on 21 May 2013 - 01:20 AM, said:

Capital One is Opposing my Motion to Compel Arbitration 2 days before the hearing for the motion.

They are claiming that the Agreement has changed and that I am now bound by the 2010 agreement which has no Arb Clause.

I know it is BS because the agreement I signed has a survival clause for the Arb Provision. How do I fight it?


Background:

I was sued by Cap One for less than $10k in the state CA

The account in question was opened 2/1/2008

The 2008 Cap One agreement has an Arbitration Provision that includes JAMS.

The Arbitration Provision 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; ..."


Here is what has happened so far:

As per the terms of the agreement I elected Arbitration with JAMS.

JAMS accepted and served Cap One's Council.

I filed my answer including the affirmative defense that I have elected Arbitration.

I also filed a Motion to Compel Arbitration as per this extremely helpful thread by Linda7. (@Linda7 Thank you Linda7!)

The Plaintiff has now filled an "Opposition to Defendant's Motion to Compel Arbitration" along with a Declaration in support by their own council. They supplied a 2010 agreement sans Arb Provision and are claiming it is the agreement that should be used.


I should be able to fight this as it is in violation of their own agreement. But with only 1 day to respond I am defiantly feeling the pressure.

Is this something I should address in person at the hearing for the motion or do I need to file a response?

Please Help!

I don't know your court's rules, but if it were me - I'd file "Defendant's Response to Plaintiff's Opposition to Defendant's Motion to Compel Arbitration".

Tell us exactly what their motion is titled and what is exactly their argument/arguments.

I'd be sure and quote your state's rule on arbitration.

I'd also use this - the Arbitration Provision within the Agreement is set aside from the terms of the Agreement. Even though the Plaintiff may change the terms of the Agreement, it specifically states that the Arbitration Provision will remain intact. The Arbitration Provision clearly states, "This Arbitration Provision shall survive: (i) suspension, termination, revocation, closure or changes of this Agreement, your Account and your relationship with us;" (emphasis mine).

It is quite clear the Arbitration Provision survives any changes to the Agreement. Capital One may change the terms of the Agreement but clearly cannot change in any way or revoke the Arbitration Provision.

And I would remind them of the Supreme Court case, AT&T v Concepcion "and" the FAA ruling.

[Linda7]

I deleted as this was a double post.

[snax]

Their Motion is titled:

 

Opposition to Defendant's Motion to Compel Arbitration. 

 

It also has a Declaration in support by their own Lawyer.

 

 

They are arguing to deny the motion because:

 

Defendant has not Sufficiently Established his Right to Arbitration

 

Their argument basically states that the 2010 agreement that they include is the correct agreement to govern the dispute. No Arb provision in 2010.

 

They argue that my 2008 agreement is invalid because:

 

"Defendant merely found a random Capital One customer agreement which displays an arbitration provision and attached it to his motion."

 

However this is patently false. I specifically chose the 2008 agreement because it was the agreement I agreed to when the account was opened on 02/01/2008. It is the only agreement I ever had the opportunity to review and it is the agreement that was signed.

 

I did include ATT vs Concepcion and FAA in my MTC. (Thanks to your posts on Arbitration!)

 

 

Unfortunately I was served the opposition only 36 hours before the hearing and I don't think I will have time to file anything else. I will need to make my case in person vs their lawyer at the hearing.  Hopefully I don't get "Railroaded".

 

Thank you so much for all of your help!

[Linda7]

Their Motion is titled:

 

Opposition to Defendant's Motion to Compel Arbitration. 

 

It also has a Declaration in support by their own Lawyer.

 

 

They are arguing to deny the motion because:

 

Defendant has not Sufficiently Established his Right to Arbitration

 

Their argument basically states that the 2010 agreement that they include is the correct agreement to govern the dispute. No Arb provision in 2010.

 

They argue that my 2008 agreement is invalid because:

 

"Defendant merely found a random Capital One customer agreement which displays an arbitration provision and attached it to his motion."

 

However this is patently false. I specifically chose the 2008 agreement because it was the agreement I agreed to when the account was opened on 02/01/2008. It is the only agreement I ever had the opportunity to review and it is the agreement that was signed.

 

I did include ATT vs Concepcion and FAA in my MTC. (Thanks to your posts on Arbitration!)

 

 

Unfortunately I was served the opposition only 36 hours before the hearing and I don't think I will have time to file anything else. I will need to make my case in person vs their lawyer at the hearing.  Hopefully I don't get "Railroaded".

 

Thank you so much for all of your help!

I would specifically ask what year the alleged account was opened.  Let them answer without you proving anything.  They might actually admit that it was opened in 2008.  You might even consider having something - maybe Capital One's listing on your credit report or maybe an "old" 2008 statement if you have to prove the point.  But, I would hold off on that unless it is not going your way.

 

If they won't admit it was opened in 2008, I would point out to the Judge that you filed an affidavit with the 2008 saying it "is" the correct agreement.

 

I would also ask the attorney if they have "your" signature attached to their 2010 agreement.  And I would ask the attorney where did he get his copy and I would again tell them all that the 2010 is "not" the agreement that was given to you.  The attorney's word is hearsay.  He did not give it to you when you opened the account.  "You" are the only real witness to this at this time and you have signed an affidavit saying the 2008 is the agreement.

 

If they try to argue that they took out arbitration in 2010, I would show the Judge on the agreement where it says they can amend the agreement, "but" the Arbitration Provision within the Agreement is set aside from the terms of the Agreement. Even though the Plaintiff may change the terms of the Agreement, it specifically states that the Arbitration Provision will remain intact. The Arbitration Provision clearly states, "This Arbitration Provision shall survive: (i) suspension, termination, revocation, closure or changes of this Agreement, your Account and your relationship with us;" (emphasis mine). 

[Linda7]

And don't forget your code -

California Code of Civil Procedure Section 1281.2

On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists...

[snax]

 

And don't forget your code -

California Code of Civil Procedure Section 1281.2

On petition of a party to an arbitration agreement alleging the existence of a written agreement to arbitrate a controversy and that a party thereto refuses to arbitrate such controversy, the court shall order the petitioner and the respondent to arbitrate the controversy if it determines that an agreement to arbitrate the controversy exists...

 

 

Thank you Linda7!

 

That describes my case perfectly.

 

 

One question: How and when would it be appropriate to bring it up if I feel that the court is not enforcing it?

 

I want to be respectful to the Judge, could bringing this up be interpreted as telling the Judge how to do his/her job?

[snax]

I was not able to make oral arguments at the hearing because I failed to follow the proper protocol.

 

However the Judge has allowed me to file a response to the Plaintiff's Opposition. 

 

I'm going to start working on that now. My response needs to establish conclusively that an agreement that includes Arbitration exists. I think this means that I need to prove that the 2008 agreement including the survival clause is the correct agreement.

 

It seems like it would be easy since it is the agreement that was actually signed to open the account.

 

It also seems like it is bad for Cap One's case that they are claiming that I never agreed to a 2008 Cardholder Agreement for an account opened 2/1/2008. Isn't that similar to saying they never had an agreement with me at all?

[SkippieB]

I was not able to make oral arguments at the hearing because I failed to follow the proper protocol.

 

However the Judge has allowed me to file a response to the Plaintiff's Opposition. 

 

I'm going to start working on that now. My response needs to establish conclusively that an agreement that includes Arbitration exists. I think this means that I need to prove that the 2008 agreement including the survival clause is the correct agreement.

 

It seems like it would be easy since it is the agreement that was actually signed to open the account.

 

It also seems like it is bad for Cap One's case that they are claiming that I never agreed to a 2008 Cardholder Agreement for an account opened 2/1/2008. Isn't that similar to saying they never had an agreement with me at all?

 

They can argue anything but winning that argument is a whole other story.   They'll trow everything in including the kitchen sink hoping that at least one will work.  Same as defendants do with all those affirmative defenses.  If you have a card agreement from 2008 with a survivability clause then the courts and a copy of your credit report stating when the account was opened then the court should rule in your favor.  

 

Carol-Lynn