forcing discovery

[REDRACER75]

Recap:
 I filed an answer to MOSJ and MTC arb/stay pending arb with JAMS in January 2013 on a 1400 dollar suit from a lawyer of CA that bought debt from Citibank. They have sent many motions to compel discovery. I put chose arbitration for all their questions. I also stated that I chose arbitration in my answer to the lawsuit. My state is Arizona. I did not file with JAMS yet as I was awaiting answer from judge to send with application.

 I have heard nothing in 7 months then today in the mail is a letter from the judge stating that I  need to submit "more acceptable responses" to opposing counsels discovery. What do I respond with now?? I have 30 days to respond if fail to do so Plaintiff's requested admissions shall be deemed admitted pursuant to JCRCP 126. What does this mean? Should I just initiate JAMS without judges order?

Worse scenerio if I lose we can file BK (we have  alot more debt) as we plan to anyway but to another legal matter (family court) had come up and had to pay 5K so I cannot get the funds to do BK for a couple more months. I hope I can win without going BK though

 

[racecar]

Try a different argument with the court.

" You may seek arbitration on an individual basis of any Claim asserted against you, including in a proceeding to collect a debt."

 

Did your pleading answer look like this?

MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION AND DISMISS PLAINTIFF'S CLAIM OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION

 

For discovery answers I would answer arbitration has been elected with jams and discovery will take place during arbitration.

 

Did you send proper notice to the other side electing arbitration with jams?.

 

Did you submit a credit agreement to the court?

 

Also send a message to Linda7 she is our resident genius with arbitration.

 

   

 

 

 

 

 

[Seadragon]

Recap:

 I filed an answer to MOSJ and MTC arb/stay pending arb with JAMS in January 2013 on a 1400 dollar suit from a lawyer of CA that bought debt from Citibank. They have sent many motions to compel discovery. I put chose arbitration for all their questions. I also stated that I chose arbitration in my answer to the lawsuit. My state is Arizona. I did not file with JAMS yet as I was awaiting answer from judge to send with application.

 I have heard nothing in 7 months then today in the mail is a letter from the judge stating that I  need to submit "more acceptable responses" to opposing counsels discovery. What do I respond with now?? I have 30 days to respond if fail to do so Plaintiff's requested admissions shall be deemed admitted pursuant to JCRCP 126. What does this mean? Should I just initiate JAMS without judges order?

Worse scenerio if I lose we can file BK (we have  alot more debt) as we plan to anyway but to another legal matter (family court) had come up and had to pay 5K so I cannot get the funds to do BK for a couple more months. I hope I can win without going BK though

Deny the admissions and put the ARB language in them and cite the cases for contractual forum selection. to avoid deemed admissions respectfully object on the grounds that the court cannot force waiver of arbitration and thus to avoid deemed admissions defendant without waiving the right of arbitration reluctantly responds as follows: Denied.

[Linda7]

Defendant OBJECTS to Plaintiff's (whatever they called it) as the arbitration clause has been exercised.  A mutual agreement on the scope and extent of discovery per the arbitration clause and per the arbitration forum rules has not been reached.

 

Defendant will not be answering until such an agreement is reached between the parties under the contract in arbitration.

 

Defendant further states there is a dispositive motion before the court that will moot discovery. 

 

Defendant reserves the right to respond after hearing on Defendant's Motion to Compel Arbitration.

 

Then you could add in the section where they left blank under each statement for you to fill out, put this under each statement:

 

OJECTION.  Arbitration clause has been exercised.

 

 

*Also - Arizona Revised Statute 12-3007 ( states: “If the court finds that there is an
enforceable agreement to arbitrate, it shall order the parties to arbitrate."

The Supreme Court has guaranteed the right to arbitration if specified in the
contract per AT&T Mobility, LLC v. Vincent Concepcion.  

 

Make sure to always specify private contractual arbitration to keep out of mandatory arbitration in your state.

 

Also, did you request a hearing for your MTC arbitration?

 

And did you file the agreement with the court - highlighting the important parts of the arbitration agreement?

 

Also how does your agreement say to initiate, who pays, how much, etc.?

 

And did you file an affidavit regarding that the agreement you submitted is the "one" that governs?

[REDRACER75]

Hi Linda7. You are the best. I did follow your steps on how to arbitrate. Maybe I made some mistakes?:
 
1. Filed answer Nov 2012.
 
2. Didn't know to file a MTC at same time. Before I could submit one Plaintiff sent a motion for default judgement. I responded with a motion of opposition to summary judgement and filed my MTC arbitration at same time.
 
3. Court clerk did not like my title on MTC as I asked in the title to compel arb and dismiss or in the alternative to stay proceedings pending arb. They  did accept motion warning it might be rejected for being to broad. In my MTC I also included the 2010 citibank credit card agreement and notice for arbitration election and notice of arbitration election. I also mailed Plaintiff one CCRR.
 
4. Plaintiff objected to my motions stating it was for default not summary judgement. And objected to the 2010 citibank credit card agreement with 2011 copyright. They sent discovery again which I responded with answer of " OBJECTION: arbitration clause has been exercised. A mutual agreement on the scope and extent of discovery per the arbitration clause and per the arbitration forum rules has not been reached. Defendant will not be answering until such an agreement is reached between the parties under the contract in arbitration." for all my questions.
 
Make sure to always specify private contractual arbitration to keep out of mandatory arbitration in your state. 
how do I know if I did this? I thought my electing JAMS I did this.
 
Also, did you request a hearing for your MTC arbitration?
I did not do this. Do I need to? If so do I file another motion to do so? I thought I was suppose to keep the case out of the courtroom.
 
And did you file the agreement with the court - highlighting the important parts of the arbitration agreement?
Yes I did do this and I highlighted it.
Also how does your agreement say to initiate, who pays, how much, etc.?
The party filing arbitration must choose between JAMS and AAA and follow its rules and procedures, Whoever files the arbitration pays the initial filing fee, If you pay the initial filing fee and prevail will be reimbursed filling fee. I am assuming this is the 250 dollar filing fee??
And did you file an affidavit regarding that the agreement you submitted is the "one" that governs?
Not sure about this. I don't think I attached any affidavit to the credit card agreement. Would I submit this with my revised MTC with shorter title, correct contract with same copyright date of 2010 or something different?
 
Here is my MTC:

Defendant

NOW COMES Defendant, X appearing Pro Se and hereby respectfully requests the Court for Motion to Compel Private/ Contractual Arbitration as to the Citibank agreement.

FACTUAL BACKGROUND

 On or around November 9, 2012 Plaintiff filed a complaint on the Defendant and served him a copy of the summons and complaint on November 16, 2012. In the Complaint was for an alleged breach of contract – Deficiency. The Defendant feels his rights were violated by state and federal laws by the Plaintiff and Plaintiffs council. The Defendant wishes to resolve this matter privately in Private/Contractual arbitration.

Because Citibank’s agreement with the Defendant clearly state that all disputes, must be resolved through arbitration and cannot be brought in court, this Court should dismiss Plaintiffs Complaint and allow parties to arbitrate their disputes in accordance with their agreement.

Defendant hereby moves to Dismiss Unifund CCR LLC ( Plaintiff) Complaint pursuant to Arizona Rule of Civil Procedure 12 ((1) or in the alternative to compel arbitration and stay these proceedings pursuant to the Federal Arbitration Act, 9 U.S.C. 1 Points and Authorities submitted herewith, and state as follows:

1. The Defendant and Citibank entered into a written agreement wherein they agreed to arbitrate all disputes arising between them and us attached as exhibit (a). The Parties agreed that courts, including this Court, would not have jurisdiction to hear their disputes. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

( IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

©YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d)CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e)THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.

Accordingly, the court should dismiss Plaintiff’s Complaint pursuant to Rule 12 ((1) of Az Rules of Civil  Procedure.

2.       In the alternative, the Court should compel arbitration and stay these proceedings pursuant to the FAA. The parties’ agreement states that the FAA governs their disputes. Where a party refuses to arbitrate pursuant to the terms of an arbitration agreement, the FAA provides that the Court should compel arbitration and stay court proceedings.

 

Congress enacted the Federal arbitration act (F.A.A.) to reverse the long standing judicial hostility toward arbitration agreements “and to place arbitration agreements upon the same footing as other contracts.”Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,24 (1991).

 

The FAA establishes a liberal policy favoring arbitration agreements and requires courts to enforce rigorously private arbitration agreements according to their terms.

 

Volt Info Scis., Inc. v. Board of Trustees, 489 U.S. 468, 479 (1989). A Court should not strike down an arbitration agreement except in those very limited circumstances where the arbitration agreement at issue is unenforceable on a ground that exists at law or equity for any contract, such as fraud, duress, or unconscionability. Doctor’s Assocs.,Inc., v. Casarotto,517 U.S. 681, 687 cert. denied, 534 U.S. 1133 (2002). Courts should give deference to these

Congressional findings and directives when determining the enforceability of the parties’ arbitration agreements. See Simula, 175 F. 3d at 719 (holding that the FAA “reflects Congress intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause”)

 

The FAA governs whether the parties’ Arbitration Provision is enforceable. On Page 11 of exhibit (A) of the Parties’ Agreement provides: “This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by the FAA.” The FAA governs arbitration agreements in contracts involving transactions in interstate commerce.

 

9 U.S.C 1; Moses H. Cone Mem’l Hosp. v. Mecury Constr. Corp., 460 U.S. 1, 25 n. 32 (1983). Not only does the contract containing the Arbitration Provision at issue specifically provide that the arbitration provision is made pursuant to a transaction involving interstate commerce, but also Congress intended courts to construe “commerce” as broadly as possible. Simula , 175 F. 3d at 719

 Only state law contract defenses-defenses relevant to any contact can be used to challenge the enforceability of an arbitration agreement. The Supreme Court has unequivocally stated that the FAA precludes specialized scrutiny of arbitration agreements:

 A court may not . . . in assessing the rights of litigants to enforce an arbitration agreement, construe that agreement in a manner different from that in which it otherwise construes non-arbitration agreements under state law. Nor may a court rely on the uniqueness of an agreement to arbitrate as a basis for a state-law holding that enforcement would be unconscionable, for this would enable the court to effect what we hold today the state legislature cannot.

Perry v. Thomas, 482 U.S. 483, 493 n.9 (1987). See also Doctor’s Assocs., 517 U.S. at 687 (“courts may not . . . invalidate arbitration agreements under state laws applicable only to arbitration provisions”); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24 (1991) (purpose of FAA is to “reverse the longstanding judicial hostility to arbitration agreements . . . and to place arbitration agreements upon the same footing as other contracts”); Bank One Acceptance Corp. v. Hill, 367 F.3d 426, 432 (5th Cir. 2004)(explaining that “state courts may properly strike down arbitration clauses, but they may not treat arbitration clauses differently than other contract terms”) (emphasis in original).

 

Claiming that the enforcement of a contractual provision will have adverse effects on society, i.e., allow businesses and industry to grant themselves “virtual immunity,” is precisely the type of specialized, and non-contract based, argument prohibited under the FAA. The only public policy at issue in this case is the FAA and Arizona’s presumption in favor of arbitration. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

 

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

 

3.       The Defendant has already started the Process of private arbitration and enclosed as Exhibit ( is the Demand for JAMS arbitration (one of the forums available in the contract).  Pursuant to the parties’ contract, this Court cannot be a forum for any disputes between the parties. Under both Federal and Arizona Law, an action should be dismissed where a party contractually agrees exclusively to arbitration. 

 

See, e.g., Simula, Inc. v. Autoliv, Inc 175 F. 3d 716, 716, 726 (9th Cir. 1999) (affirming district courts order compelling arbitration And dismissing complaint); Sparling v. Hoffman Constr. Co., Inc 864 F2d 635, 638 (9th Cir. 1988) (affirming dismissal of claims were all claims were subject to arbitration); see also

Martin Marietta Aluminum, Inc, v. General Electric Co.., 586 F. 2d 143 (9th Cir. 1978) (affirming grant of summary judgment where all claims to court were barred by arbitration clause); Payne v. Pennzoil Corp., 138 Ariz. 52, 53-54, 56 672 P.2d 1322, 1323-24, 1326 (Ariz. Ct. App. 1983) (affirming trial court’s grant of motion to dismiss “ based on lack of subject matter jurisdiction and failure to state a claim” under Ariz. R. Civ. P. 12 () where arbitration provided for exclusive remedy.

Conclusion

 The Court should DISMISS PLAINTIFF’S complaint because arbitration is the is the exclusive remedy for these claims. The Defendant elects arbitration to settle this dispute

 WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of

 Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted December 26, 2012

X, Defendant, pro se

VERIFICATION BY AFFIDAVIT

Personally appeared before me, the undersigned, who on oath states that the facts set forth in this MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of (his/her) knowledge and belief.

 

 

 
Thanks so much for the help. @ racecar and seadragon thanks for you help too. If I change my discovery answers to " to avoid deemed admissions respectfully object on the grounds that the court cannot force waiver of arbitration and thus to avoid deemed admissions defendant without waiving the right of arbitration reluctantly responds as follows: Denied" it would be a more acceptable answer?.

[Linda7]

Judges generally like a smaller scale motion.  When you get too lengthy, the issue can get cloudy.

 

From your post:

 

Make sure to always specify private contractual arbitration to keep out of mandatory arbitration in your state. 
how do I know if I did this? I thought my electing JAMS I did this. From this point, always say private contractual arbitration in any motions, etc.
 
Also, did you request a hearing for your MTC arbitration?
I did not do this. Do I need to? If so do I file another motion to do so? I thought I was suppose to keep the case out of the courtroom.  I would call the clerk of your court and tell them that you have a motion before the court which has not been heard and ask if you need to schedule a hearing on your motion.
 
And did you file the agreement with the court - highlighting the important parts of the arbitration agreement?
Yes I did do this and I highlighted it.
Also how does your agreement say to initiate, who pays, how much, etc.?
The party filing arbitration must choose between JAMS and AAA and follow its rules and procedures, Whoever files the arbitration pays the initial filing fee, If you pay the initial filing fee and prevail will be reimbursed filling fee. I am assuming this is the 250 dollar filing fee??  Have you initiated by sending the attorney and the creditor their JAMS demands and sending in everything including your $250 to JAMS?  Or you could send the JAMS demands to the attorney and the creditor, but wait for the court order to arbitrate and then you could send a settlement offer to them "before" you proceed on into JAMS.  Sometimes, when the creditor sees that the Judge is allowing JAMS and they get an opportunity to get out of it without spending thousands, they can be on the same mindset of wanting this all to go away.  Read the thread - Strategy and steps of arbitration and you'll see more about this kind of letter to send "after" you get a court order to arbitrate.
And did you file an affidavit regarding that the agreement you submitted is the "one" that governs?
Not sure about this. I don't think I attached any affidavit to the credit card agreement. Would I submit this with my revised MTC with shorter title, correct contract with same copyright date of 2010 or something different? I would definitely attach an affidavit in support of the agreement.  What date was the alleged account opened and what year was the default?  Also, are they going to let you file a revised MTC or are you just waiting to hear if they accept the other one?  If you do file a revised one, I'd not only make the title shorter to whatever they want - I'd make the body of the MTC a lot shorter.  Again, read the thread I pointed out and you'll see what I mean.