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election of arbitration notice


xavi72
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I'm not sure if I can still elect arbitration....Cap1 decided to file a lawsuit after I requested a DV and Election of JAMS.  Now I have to respond to the summons by this coming Friday but I just realized I did not sen an election of arbitration notice to the attorneys.  I only have my letters that I sent to the OC's attorney.  If I file a petition to MTC, I'm afraid it may be rejected since the OC did not have an opportunity to deny my request.

 

Would my initial letters set to the OC's attorney be sufficient to warrant my MTC request?  Any suggestions?? If worst comes to worst, I would just file my Answer but I would probably lose my opportunity to arbitrate.  

 

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  • 2 weeks later...

It sounds as if you elected arbitration when you sent the DV letter. Is that correct? If yes, why would you have sent an election notice to the attorney if there was no lawsuit at the time?

 

I know this answer is a bit late, but what did you put in your answer to the suit? If you did indeed elect arbitration, you should have listed arbitration as an affirmative defense.

 

Depending upon when and if you made your last payments and/or charges, C! will trot out the 2010 agreement where there is no mention of arbitration in the agreement. If your account was opened prior to 2008, your only chance is to argue the survivability of the arbitration provision that was in the 2008 and prior agreements.

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It sounds as if you elected arbitration when you sent the DV letter. Is that correct? If yes, why would you have sent an election notice to the attorney if there was no lawsuit at the time?

 

I know this answer is a bit late, but what did you put in your answer to the suit? If you did indeed elect arbitration, you should have listed arbitration as an affirmative defense.

 

Depending upon when and if you made your last payments and/or charges, C! will trot out the 2010 agreement where there is no mention of arbitration in the agreement. If your account was opened prior to 2008, your only chance is to argue the survivability of the arbitration provision that was in the 2008 and prior agreements.

 

My last payment was made in late 2009 and I actually did list arbitration as one of my many affirmative defenses.  I also have a letter for CAP1's attorney verifying that recognized my request for arbitration but they wanted me to initiate it at that time even though they had not filed for a lawsuit yet. Instead, about a month later I received the Summons.  I have to figure what my next steps will be.

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  • 3 months later...

Just wanted to update that the whole DV and requesting of JAMS has helped in postponing any lawsuit.  While the OC contemplated suing me or taking me on through JAMS, the actual SOL on this specific account has been reached.  Even if they file a lawsuit now, this would be an easy case to defeat just by using the SOL affirmative defense.

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@Linda7

 

This is a confusing thread. Usually I can follow the convoluted intent of most posts but this had me wondering.

 

In the OP's first post, he/she intimates that Cap 1 has filed suit despite DV and election of Arb and that he/she now has to answer the suit.

In post #4, OP indicates that he/she filed affirmative defenses (supposedly with the answer to suit).

 Instead, about a month later I received the Summons.  I have to figure what my next steps will be.

 

 

In post #5, OP intimates that the OC hasn't filed suit yet ............ ?????????????

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@Linda7

 

This is a confusing thread. Usually I can follow the convoluted intent of most posts but this had me wondering.

 

In the OP's first post, he/she intimates that Cap 1 has filed suit despite DV and election of Arb and that he/she now has to answer the suit.

In post #4, OP indicates that he/she filed affirmative defenses (supposedly with the answer to suit).

 

 

In post #5, OP intimates that the OC hasn't filed suit yet ............ ?????????????

You are absolutely correct on this!  I only read the last post.  If the suit had already been filed with the court then tolling would have started.

 

OP, not knowing your court's rules - please repost and let us know.  If the suit was filed the SOL could not have been reached at this time.  This would mean that the SOL time clock stopped when the suit was filed. You would not have gained any time toward the SOL defense during this time.  Let's pretend your SOL is 4 years and it was 3 1/2 years when the suit was filed.  No matter that several months have passed, you're stuck at 3 1/2 years.  It would not move forward again unless the suit was dismissed.

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You are absolutely correct on this!  I only read the last post.  If the suit had already been filed with the court then tolling would have started.

 

OP, not knowing your court's rules - please repost and let us know.  If the suit was filed the SOL could not have been reached at this time.  This would mean that the SOL time clock stopped when the suit was filed. You would not have gained any time toward the SOL defense during this time.  Let's pretend your SOL is 4 years and it was 3 1/2 years when the suit was filed.  No matter that several months have passed, you're stuck at 3 1/2 years.  It would not move forward again unless the suit was dismissed.

 

 

I totally apologize for any confusion my posts have caused....I was actually posting about two different cases.  Right now, I am going through the motions of a lawsuit in which I opted NOT to go the arbitration route since it was a personal decision based on previous experience with this same account.  The second case I was referring to, was a case in which I responded to a collection letter with a request for DV and JAMS arbitration.  The whole process of electing arbitration and requesting DV, postponed the CA attorney's from filing a lawsuit before the 4 year SOL.  They can still file a lawsuit but it will be an easy case if the case is ever brought to the courts because the SOL has been reached.  

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