Jump to content

I was ordered to initiate with AAA and not JAMS by the Judge!


myachips
 Share

Recommended Posts

Hello Forum...


First, I received and read my summons and sent a cease all communications letter to OC.

I then typed a MTC Private/Contractual Arbitration And Dismiss Or In The Alternative, To Stay Proceedings Pending Arbitration.

I filed this MTC first with the Clerk even though he told me I didn't need to before my Answer was filed.

 

I think in Florida you must MTC first, and then answer.

Next, I filed my Answer stating that I elect private arbitration according to the card holder agreement in American Express Blue Cash.

I then filed an Order Granting Defendant's MTC Private/Contractual Arbitration using JAMS.

I sent my intent to elect arbitration to both OC and credit card company with returned receipts with in the 20 days.

I received a call from the Judges office to set up a hearing on my MTC with the OC.



Hearing was yesterday with OC on the phone.

Judge asked me what my motion was and I said that I wanted to MTC for arbitration and that I elected to use JAMS.

Judge asked OC if this was OK with them...OC said yes it is OK for Defendant to use arbitration but that they wanted to use AAA and that I am not able to use JAMS per my card agreement that they sent me.

I told the Judge that I have another card agreement that includes JAMS and AAA.  Where older agreement uses NAF and AAA. Judge said no I can't use it.

OC made some statement that I could not really hear very well; all I heard is that my demand was unreasonable and would not pay for any arbitration fees and that I must use AAA.

I had asked in writing for the Credit Card Company to advance fees for arbitration as stated in the agreement.

I asked the judge if using one arbitration company is common practice. Well, that didn't set well. I was lectured that the court or the judge was not concerned about fairness because any one of the arbitration are fair to use and that is how the process works.

The judge signed my MTC Private/Contractual Arbitration saying and writing on the Order that I must initiate in AAA within 45 days. The end.



Question and Help...

 

Can someone please explain or help with the clause that American Express uses with electing arbitration and its survivability clause.

 

My card agreement was from December of 2004, and my last transaction with American Express was mid 2012.

I have both agreements, and 2012 states that I can use JAMS or AAA.  The 2009 statement sent in the summons by OC states that I must use NAF and AAA. I do not know what the 2004 agreement states. AAA website states that they do not do consumer debt collection effective late 2009. Is there a clause to this statement.

 

OC sent me a copy of a 2009 agreement in my summons that has NAF and AAA.

I thought I could use the card agreement from 2012 which was the last time I made a payment.

 

 

 

Here is the document that AAA provides on its website:

 

"Notice on Consumer Debt Collection Arbitrations

On October 19, 2010, the National Task Force on the Arbitration of Consumer Debt Collection Disputes released the Consumer Debt Collection Due Process Protocol Statement of Principles. That Protocol sets forth a number of important principles that need to be addressed and incorporated into consumer debt collection arbitration programs to help ensure that a fair and adequate arbitration process is made available to the parties.

 

However, the AAA's previously announced moratorium on debt collection arbitrations remains in effect. That moratorium was instituted based on public discourse and an evaluation of the AAA's own experiences. Matters included in this moratorium are: consumer debt collection programs or bulk filings and individual case filings in which the company is the filing party and the consumer has not agreed to arbitrate at the time of the dispute, and the case involves a credit card bill, a telecom bill or a consumer finance matter.

 

The AAA will continue to administer all demands for arbitration filed by consumers against businesses as well as all other types of consumer arbitrations."

 

 

 

 

 

I was thinking of filing a MTReconsider to elect JAMS arbitration and dispute new findings that AAA does not do consumer debt collection and that currently there is a moratorium.

 


Thankyou

 

Link to comment
Share on other sites

Did you file an affidavit stating that the 2012 was the governing agreement?

 

I believe I would have let the judge know that the agreement they were showing was "not" the correct agreement.  I would also have stated that the agreement had been amended to include JAMS and I would have shown the agreement with the arbitration provision.

 

I don't know your state's rules, but I'm wondering if you might file a "Motion to Clarify" or "Motion to Reconsider"?

 

Also, I would post in the arbitration forum at debtorboards and ask about this.  I think I've seen some other Florida members there.

 

Another thing - can you post the agreement that the creditor wants to use?  If not, read it thoroughly and see if there is any mention of you being able to choose another forum if you don't agree with the one they choose. 

 

Check out the 2009 "with" JAMS here - http://www.cardmemberagreements.org/american-express/

 

 

Notice this part and the part I bolded - "Claims shall be referred to either JAMS or the American Arbitration Association (AAA), as selected by the party electing to use arbitration. If our selection of either of these organizations is unacceptable to you, you may select the other organization within 30 days after you receive notice of our selection."

 

I would definitely want the judge to know this.  They are only choosing the agreement they have shown because it does "not" include JAMS.  There are older agreement with JAMS and there are newer agreements with JAMS which show an amended agreement that you could also claim.

 

On the other hand - if this is the original creditor, they "know" they amended those 2009 agreements to include JAMS since NAF was not an option anymore.  And they sent out those notices of the amendments to their consumers.

 

"Changes to the agreement dated 2009
 
Arbitration Forum
Since the National Arbitration Forum no longer does consumer arbitrations, we are replacing them with another organization.  We are also adding a procedure for you to select an arbitration organization not listed in the Agreement.  Effective immediately, we are deleting the Initiation of Arbitration Proceeding/Selection of Administrator subsection of the Arbitration section of your Agreement and replacing it with the following:
 
*Initiation of Arbitration Proceeding/Selection of Administrator:  Any Claim shall be resolved, upon the election by ou or us, by arbitration pursuant to this Arbitration Provision and the code of procedures of the national arbitration organization to which the Claim is referred in effect at the time the Claim is filed (the "Code"), except to the extent the Code conflicts with this Agreement.  Claims shall be referred to either JAMS or the American Arbitration Association ("AAA"), as selected by the party electing to use arbitration.  If a selection by us of either of these organizations is unacceptable to you, you shall have the right within 30 days after you receive notice of our election to select the other organization listed to serve as arbitration administrator.  For a copy of the procedures, to file a Claim or for other information about these organizations, contact them as follows:
 
*JAMS at 1920 Main Street, Suite 300, Irvine, CA  92614;website;www.jamsadr.com.
*AAAat 335 Madison Avenue, New York, NY 10017; website:www.adr.org."
 
They are being deceitful to the Court and are trying to deny you your consumer right to arbitrate in a forum allowed by the governing agreement!  Don't let them get away with it! 
  • Like 1
Link to comment
Share on other sites

Hello Linda7...thank you for the reply.

 

No I did not file an affidavit with the new card agreement that I had because I was going to show and tell the judge about it. Judge told me I was not allowed to use it.

 

During hearing Judge asked OC if they oppose my wanting arbitration, OC said no but that they wanted to use AAA. I objected to that and preceeded to show the judge a new card agreement that allows JAMS and Judge told me that I can not do that. I objected again stating that that leaves just one arbitration for defendant...I got a lecture after that about fairness. I was kind of shut down after that and not really able to explain anything else to the judge.

 

I am thinking about filing a motion to reconsider with facts that I was not able to explain and to add new facts.

 

I have been on the debtorboards and seems there was reasoning to file a motion to reconsider and to just go ahead and file with JAMS, and if Am Ex call me out on this, then state the facts that they are the ones that allowed the use of JAMS.  But would that be in violation of the order that the judge signed that I must initiate with AAA and not jams according to the card agreement. These are both great boards for help.

 

My user name on debtorsboard is same as here.

 

Thank you for finding this: Check out the 2009 "with" JAMS here - http://www.cardmembe...erican-express/

 

Yes the card agreement does state that I can select another arbitration with in 30 days but I am the one that has to initiate the arbitration...can I still switch arbitrations?

 

Yes I think OC is being deceptive to defendant and court...they are licensed attorneys and are officers of the court and should not be able to play " oh, I didn't know your honor that there was a different card agreement".

 

I'm trying to not let them do this...to me this is a form of "racketeering".

 

I have attached the 07/2009 Am Ex card agreement that OC used:   AmEx07_2009.pdf

 

 

 

Thank you for your insight...

 

 

 

 

 

 

 

 

 

 

 

Link to comment
Share on other sites

Here are my arguments - Even "if" you went with the 2009 agreement that they showed the judge, he needs to know that in 2009, American Express amended those agreements to include JAMS! Those notices I believe went out in November of 2009. As I showed above, the notices stated this:

"Changes to the agreement dated 2009

Arbitration Forum
Since the National Arbitration Forum no longer does consumer arbitrations, we are replacing them with another organization. We are also adding a procedure for you to select an arbitration organization not listed in the Agreement. Effective immediately, we are deleting the Initiation of Arbitration Proceeding/Selection of Administrator subsection of the Arbitration section of your Agreement and replacing it with the following:

*Initiation of Arbitration Proceeding/Selection of Administrator: Any Claim shall be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration Provision and the code of procedures of the national arbitration organization to which the Claim is referred in effect at the time the Claim is filed (the "Code"), except to the extent the Code conflicts with this Agreement. Claims shall be referred to either JAMS or the American Arbitration Association ("AAA"), as selected by the party electing to use arbitration. If a selection by us of either of these organizations is unacceptable to you, you shall have the right within 30 days after you receive notice of our election to select the other organization listed to serve as arbitration administrator. For a copy of the procedures, to file a Claim or for other information about these organizations, contact them as follows:

*JAMS at 1920 Main Street, Suite 300, Irvine, CA 92614;website;www.jamsadr.com.
*AAAat 335 Madison Avenue, New York, NY 10017; website:www.adr.org."


You could always argue a newer agreement that included JAMS, (I wouldn't though) but I think that he needs to know that American Express is trying to pull a fast one with "not" telling him that they amended the 2009 that they showed to include JAMS. That would be my argument, instead of trying to go for another agreement that includes JAMS.

My next argument would be that the agreement states that either JAMS or the American Arbitration Association may be used "as selected by the party electing to use arbitration" That of course would be you - not them! The judge allowed their input and choice of AAA - but, in further reading the agreement it says that if their selection is unacceptable (and it was), then you can choose the other organization within 30 days of receiving their notice.

These things need to be addressed by the judge. I would file a motion to reconsider (if that applies in your state) and tell him first about the amendment that the Plaintiff withheld from the court and then I'd quote from the agreement amendment that "they" provided that states that you can within 30 days choose the other forum.

I would also quote from the agreement where it says "as selected by the party electing to use arbitration" and remind him that the plaintiff chose court and it was "you" who elected to use arbitration. And according to the agreement, it states that "you" would be the one to select the forum.

I would include a copy of their agreement and highlight the relevant portions that are quoted.

I would then respectfully ask the court to let you proceed with your initiation in JAMS as allowed by the governing agreement.

Also, I would make a "new" post at debtorboards and ask if anyone there has that amendment that went out in 2009. If you could get a copy of it - that would ice the cake!  It should have been in the statements sent out in 2009 - probably November.

Also, I think we looked at this agreement - but, I want to address it again. (Then again it might have been the blue one) https://secure.cmax.americanexpress.com/Internet/UDAP/CardMemberAgreementsOnline/US_en/CMADetailsPage/PersonalCards/RewardsGreenCard/RwrdGreen.pdf

At the top right, it says "As of 12/31/09" and then at the bottom right, it has a 2010 stamp. Your default was "after" this date, right? Then that should prove that in 2009 - they had JAMS. But, I would still love to see you get your hands on the November 2009 amendment that was included in the statements sent out. Could you possibly still have the statements to check?

Also, do you remember if you had a green card, blue card, etc.? That might be helpful too.

Link to comment
Share on other sites

@Linda7 - what's the advantage of using JAMS over AAA?

 

JAMS stresses settlement rather than full blown adversarial legal processes.

AAA is not always professional and does not always follow the rules.

 

AAA has also been known to favor creditors.

 

The biggest thing - JAMS is more expensive for the creditor thereby giving the consumer a strategic advantage.

 

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.