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Motion to compel arbitration in lieu of an answer


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I have until the end of the week to file my paperwork for a recent lawsuit I have to respond to.  My question is, do I pay the normal filing fee that I would when Answering a summons?  Since this would be a motion, would I instead pay for filing the motion or would I have to pay both?

 

 

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Common logic would dictate that you would only pay a motion fee.

Easy way to find out is to call the clerk of the court and ask ............ unless someone from CA answers your question before tomorrow morning.

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In California you must pay the fee as if you were answering the complaint. It's a "first paper" fee. Check your specific county.

 

Here's a fee schedule from Los Angeles County, CA: see http://www.lasuperiorcourt.org/feesnet/pdf/fee-schedule-2013.pdf

 

In California, you must allege that the Plaintiff refused to arbitrate the claim within your petition: see http://law.onecle.com/california/civil-procedure/1281.2.html

 

In light of that fact and if it were me, I would demand (in writing with a 3rd party proof of service and by fax and by phone call or voicemail) that the plaintiff dismiss the case or stipulate to an extension of time for answering the complaint or stay the matter until arbitration has been completed.. I would notify the plaintiff that if I incur any expenses in petitioning the court to compel arbitration because the plaintiff resists my request, then I will hold the law firm, the attorney and the plaintiff responsible for my expenses. 

 

You will to eventually need back up your allegation that the plaintiff refused to arbitrate. 

 

Good luck!

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Additionally, depending on your judge, you may be required to file an answer as well or you'll get a default against you. I filed a motion in lieu of an answer and was told by the judge get downstairs and file an answer immediately or I'll get a default judgment against me. Even though the CCP allows for a motion in lieu of an answer, my judge wouldn't accept it that way.

I'm still wondering if its because I didn't title it a petition, like the CCP states????

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In California you must pay the fee as if you were answering the complaint. It's a "first paper" fee. Check your specific county.

 

Here's a fee schedule from Los Angeles County, CA: see http://www.lasuperiorcourt.org/feesnet/pdf/fee-schedule-2013.pdf

 

In California, you must allege that the Plaintiff refused to arbitrate the claim within your petition: see http://law.onecle.com/california/civil-procedure/1281.2.html

 

In light of that fact and if it were me, I would demand (in writing with a 3rd party proof of service and by fax and by phone call or voicemail) that the plaintiff dismiss the case or stipulate to an extension of time for answering the complaint or stay the matter until arbitration has been completed.. I would notify the plaintiff that if I incur any expenses in petitioning the court to compel arbitration because the plaintiff resists my request, then I will hold the law firm, the attorney and the plaintiff responsible for my expenses. 

 

You will to eventually need back up your allegation that the plaintiff refused to arbitrate. 

 

Good luck!

 

I like this strategy.....Any suggestions/examples of letters I can send the them?  

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Regardless of what any rule says or whether or not you file for arbitration, if it were mine; I would only feel comfortable having first answered with a denial. I would want the record to reflect that all allegations have been denied.

 

In California, if you respond with an Answer, don't you lose your right to arbitrate because of this?

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In California, if you respond with an Answer, don't you lose your right to arbitrate because of this?

 

In contract law, the parties are both held to the terms of the contract.  That's why we're in court, right?  Filing an answer to dispute the claim filed does not inviolate contract law.  I would file an answer and then look at the cardmember agreement for the terms regarding arbitration.  Include a copy, with highlighted sections with your motion to compel contractual arbitration.  Then, after the court has granted to motion to compel. fill out the JAMS form and send it to the attorney and the plaintiff along with a letter offering to give up your right to arbitration in exchange for dismissal with prejudice, elimination of negative reporting, cancellation of the debt as disputed (no 1099) and agreement to never transfer the account.  If they don't respond within the time specified by the court to file, go ahead and file with JAMS, mail the certified copy to the court and attorney and keep moving forward. 

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In California, if you respond with an Answer, don't you lose your right to arbitrate because of this?

While in some states, Florida springs to mind, you lose your right to arbitrate if you participate in the case (even filing an answer), ou state doesn't do this from my research.

But, if you're really worried about it, you could file, with the motion, a proposed answer if they don't grant your motion to compel. It's a thought. I had filed my motion to compel and had the hearing early enough to allow me to file the answer in time, and I only filed the answer because the judge told me to.

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