titans1987

Electing Arbitration in Kansas

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I was served yesterday from a JDB and I intend to elect arbitration and was seeking some advice on how to properly request this.  What I received was:

 

The summons states:  my answer shall state the following (1) what the dispute is (2) any affirmative defenses you have to the claim (3) any claim you have against the plaintiff which arises out of the transaction or occurrence which is the subject of the plaintiff's claims; and (4) your (or your attorney's) current address, phone, and email

 

then the petition says:

 

A. Defendant owes $XXXX

B. Original creditor is XYZ company on account XXXX 1234 and original creditor assigned the unpaid balance of account to plaintiff.  

Plaintiff demands judgement against dependent for:  $XXXX and associated costs, etc

-----------------------------

 

Shall I deny or state I do not have sufficient information so I must deny items A & B

And then would election of arbitration be an affirmative defense or do I just state after denying A & B that I am electing arbitration as outlined in the alleged cardholder agreement - and I will include an affidavit that the cardholder agreement is accurate to the best of my knowledge.

 

Don't want to mess up any of the steps and this is my first time going through this so am a little nervous about doing it properly.

 

Thanks!

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http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/

"DISPUTE AND CLAIM RESOLUTION (INCLUDING ARBITRATION) PROVISION.

General/Requirement to Arbitrate.

PLEASE READ THIS PROVISION CAREFULLY. UNLESS YOU SEND US THE REJECTION NOTICE DESCRIBED BELOW, THIS PROVISION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT:

(1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE;

(2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING;

(3) LESS INFORMATION WILL BE AVAILABLE; AND

(4) APPEAL RIGHTS WILL BE LIMITED. This Provision replaces any existing arbitration provision with us and will stay in force no matter what happens to your account, including termination.

Upon demand, and except as otherwise provided below, you and we must arbitrate individually any dispute or claim between you, any joint cardholder and/or any additional cardholder, on the one hand; and us, our affiliates, agents and/or dealers/merchants/retailers or participating professionals, on the other hand, if the dispute or claim arises from or relates to your account. However, we will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) any claim by us that only involves our effort to collect money you owe us. However, if you respond to a collection lawsuit by claiming that we engaged in any wrongdoing, we may require you to arbitrate.

YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY CARDHOLDER WHO IS NOT A JOINT OR ADDITIONAL CARDHOLDER WITH YOU ON YOUR ACCOUNT (AN “UNRELATED CARDHOLDER”), AND YOU AGREE THAT NO UNRELATED CARDHOLDER MAY BRING ANY CLAIMS AGAINST US ON YOUR BEHALF. CLAIMS BY YOU AND BY AN UNRELATED CARDHOLDER MAY NOT BE JOINED IN A SINGLE ARBITRATION.

Only a court may decide whether any part of this paragraph is enforceable. If it is finally determined that this paragraph is not fully enforceable, only this sentence of the Provision will remain in force and the remainder of the Provision will be null and void, provided that the court’s determination concerning the enforceability of this paragraph shall be subject to appeal.

Starting an Arbitration. If you or we elect to arbitrate a claim, the electing party must notify the other party in writing.

This notice can be given after the beginning of a lawsuit and can be given in papers filed in the lawsuit. Otherwise, your notice must be sent to GE Money Bank, Legal Operation, 950 Forrer Boulevard, Kettering, OH 45420,

ATTN: ARBITRATION DEMAND and our notice must be sent to the most recent address for you in our files. The party seeking arbitration must select as the arbitration administrator either the American Arbitration Association (“AAA”), 1633 Broadway, 10th Floor, New York, NY 10019, AAA - Arbitration, Mediation and other forms of Alternative Dispute Resolution (ADR), (800) 778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, JAMS Arbitration, Mediation, and ADR Services, (800) 352-5267.

If neither the AAA nor JAMS is able or willing to handle the dispute, then the parties will resolve their dispute in court.

The arbitration administrator will appoint the arbitrator and tell the parties what to do next. The arbitrator must be a lawyer with at least ten years legal experience. In making decisions or awarding remedies, the arbitrator must apply the same law and legal principles that would apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Provision, this Provision will control.

Arbitration Location and Fees.

The arbitration will take place by phone or at a location reasonably convenient to you.

Upon your request, we will normally pay all the fees the administrator or arbitrator charges, if we believe you are acting in good faith. We will always pay these arbitration costs, as well as your legal fees and costs, to the extent required under applicable law or in order for this Provision to be enforced.

Governing Law. This Provision is governed by the Federal Arbitration Act (the “FAA”). Utah law shall apply to the extent state law is relevant under Section 2 of the FAA in determining the validity of this Provision.

The arbitrator must follow:

(1) the substantive law, consistent with the FAA, that would apply if the matter had been brought in court,

(2) this Provision, and

(3) the administrator’s rules. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award."

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

COMES NOW Defendant Titans1987 appearing Pro Se for his Motion to Compel Private Contractual Arbitration with GE Money Bank and as grounds thereto states the following:
 

1. That on or about December 03, 2013, Plaintiff filed its Complaint against Defendant.
 
2. Defendant moves this court to compel binding Private Contractual Arbitration with Jams based on the terms and conditions of the GE Capital Retail Bank Credit Card Agreement
 
(see Exhibit A, attached).
 
3. The parties are bound by the GE Capital Bank Credit Card Agreement. The Arbitration Agreement states among other things:
(a) If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and if it relates to your account,
 
( b ) DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION.
 
( c ) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE
 
(d) Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.
 
(e) THIS GE CAPITAL RETAIL BANK ARBITRATION AGREEMENT IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT (FAA). ARBITRATION MUST PROCEED ONLY WITH THE AMERICAN ARBITRATION (AAA) OR JAMS. THE RULES FOR THE ARBITRATION WILL BE THOSE IN THIS ARBITRATION AGREEMENT AND THE PROCEDURES OF THE CHOSEN ARBITRATION ORGANIZATION.
 
4. The Federal Arbitration Act (FAA) 9 USC Section 1-2 provides:A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration, a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract transaction, or refusal, shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
 
5. The Supreme Court Ruling, decided April 27, 2011, ATT MOBILITY LLC v. CONCEPCION 131 S. Ct. 1740 (2011), 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 ensure that private arbitration agreements are enforced according to their terms. Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. Animal Feeds international Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA text. Section 2 makes arbitration agreements valid, irrevocable, and enforceableas written (subject, of course, to the saving clause); requires courts to stay litigation of arbitral claims pending arbitration of those claims in accordance with the terms of the agreement; and requires courts to compel arbitration in accordance with the terms of the agreement upon the motion of either party to the agreement . "
 
6. The Defendant elects arbitration with Jams to settle this dispute.
(see Exhibit B, attached).
 
WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration with GE Money Bank pursuant to the GE Money Bank Cardmember Agreement and to dismiss Plaintiffs complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending private contractual arbitration with JAMS.
 
CERTIFICATE OF SERVICE
 
On December 03, 2013, I caused the foregoing instrument to be served by mailing a copy to all counsel of record in this case as indicated below:Attorneys name and address here
By Certified U.S. Mail, Return Receipt Requested.
 
My Name here
my address
my phone
 

 

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http://kansasstatute...org/Chapter_61/
http://kansasstatute...org/Chapter_60/
http://kansasstatute...r_50/Article_6/

IN THE DISTRICT COURT OF MY COUNTY KANSAS

Plaintiff Name
Plaintiff


Vs.

Your Name

Defendant
(Pursuant to K.S.A. Chapter 61)
case #

DEFENDANT’S ANSWER AND AFFIRMITIVE DEFENSES TO PLAINTIFFS COMPLAINT
COMES NOW the Defendant MY NAME, Pro se (hereinafter referred to as"defendant"), submits Defendant’s Answer and AFFIRMITIVE DEFENSES to Plaintiffs' Complaint as follows:

1. The defendant is indebted to the plaintiff in the amount of $4XXX.XX

 

Answering Paragraph No. 1: Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 1 of the Complaint, and therefore denies.

 

2. The original creditor on this debt is Ge capital retail bank,account #, XXXXXXXXXXXX 1234 and said original creditor assigned the unpaid balance of said account, as set forth in paragraph 1 above, to Plaintiff herein.

 

Answering Paragraph No. 2: Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 2 of the Complaint, and therefore denies.

 

Wherefore, plaintiff demands judgement against the defendant for: Principal amount: interest after judgement as allowed by law $4XXX.XX and applicable costs as allowed by KSA 61-4002 and KSA 60-2003, plus costs of executing on the judgement if necessary,

 

Response: This portion of the complaint the plaintiff describes the remedies that the plaintiff seeks from the court. To the extent this paragraph contains any factual allegations, they are DENIED.

 

As to any remaining allegations of fact in Plaintiff's complaint not specifically admitted, Defendant denies all such allegations. As to all remaining allegations which call for a legal conclusions, Defendant lacks sufficient knowledge or information to respond to such legal conclusions and, therefore, denies them and leaves plaintiff to its proofs.

 

AFFIRMATIVE DEFENSES
By and for his Affirmative Defenses, Defendant states:

 

First Affirmative Defense:

 

ARBITRATION DEMAND
This answering Defendant upon information and belief, believes there are Arbitration provisions in various documents which would require this case be arbitrated. This answering Defendant elects to compel Private Contractual Arbitration with Jams to settle this dispute with the plaintiff.

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration with GE Money Bank pursuant to the GE Money Bank Cardmember Agreement and to dismiss Plaintiffs complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending private contractual arbitration with JAMS.

 

Respectfully Submitted,

 

YOUR NAME
Defendant, pro'se


CERTIFICATE OF SERVICE
On December 03, 2013, I caused the foregoing instrument to be served by mailing a copy to all counsel of record in this case as indicated below:Attorneys name and address here
By Certified U.S. Mail, Return Receipt Requested.
MY Name here
my address
my phone

 

send a letter to the plaintiffs attorney 

Todays date

I elect private contractual arbitration via JAMS to resolve any disputes between us pursuant to the credit agreement.

Respectfully submitted,

your name
Defendant

case #

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Racecar - trying to follow your last part and I am not sure if you are cracking a joke or not about my summarization of the petition. Here is what the actual petition says if that makes things clearer. If you were not joking, I'm looking through the links and although you are guiding me there, I am not seeing anything about the plaintiff making definitive statements.

-----------------

IN THE DISTRICT COURT OF MY COUNTY KANSAS

Portfolio Recovery Associates

vs

Titans1987

(Pursuant to KSA Chapter 61)

Petition

The plaintiff states the following claim:

1. The defendant is indebted to the plaintiff int he amount of $4XXX.XX

2. The original creditor on this debt is Ge capital retail bank,

account #, XXXXXXXXXXXX 1234 and said original creditor assigned the unpaid balance of said account, as set forth in paragraph 1 above, to Plaintiff herein.

Wherefore, plaintiff demands judgement against the defendant for:

Principal amount: $4XXX.XX

interest after judgement as allowed by law

and applicable costs as allowed by KSA 61-4002 and KSA 60-2003, plus costs of executing on the judgement if necessary,

LAW FIRM

Attorney for Plaintiff

----------------

That is what I received, which was stapled to the Summons copy.

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@racecar great stuff, thanks! I am assuming I include the agreement I want to use with this letter as well as the affadavit that it is correct to the best of my knowledge. Also - are you saying to just send a normal letter to the law firm saying I want arbitration, then file & submit the answer letter with that information as well. Also - do I need to send the answer to the attorney office and verify it was delivered before filing with the court - or do I just put the date that I know I will send it CMRR?

Additionally - do I go ahead and request the payment for JAMS as per the agreement in the courts answer and have submitted the JAMS paperwork as well, ahead of time?

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Your Exhibit (A) is the credit agreement.

Your Exhibit ( b ) is your letter electing arbitration with jams.

 

send a Meet and Confer letter to the plaintiffs attorney

 

Meet And Confer 

Today's date

your name

your address

case number

their name

their address

I am contacting you to inform you of my election of arbitration with JAMS still stands.
I elect private contractual arbitration via JAMS to resolve any disputes between us pursuant to the GE credit agreement.
I am requesting that you pay the arbitration costs and my legal fees as the defendant is on limited income.
Per the credit agreement "Upon your request, we will normally pay all the fees the administrator or arbitrator charges, if we believe you are acting in good faith. We will always pay these arbitration costs, as well as your legal fees and costs, to the extent required under applicable law or in order for this Provision to be enforced".

 

Respectfully submitted,

your name
Defendant

CERTIFICATE OF SERVICE
On December 03, 2013, I caused the foregoing instrument a Meet and Confer letter to be served by mailing a copy to all counsel of record in this case as indicated below:Attorneys name and address here
By Certified U.S. Mail, Return Receipt Requested.
MY Name here
my address
my phone

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So the letters & order of events should be:

 

#1 - Send a Meet and Confer letter to the Plaintiff's Attorney (CMRR)  - does one go to the court as well?

 

#2 - Send my response to the Petition to the Attorney & a copy to the Court.  This will include a copy of my Meet and Confer letter electing arbitration (CMRR in both cases)

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credit agreement

letter electing arbitration with the attorney

meet and confer letter

your motion 

Your answer to the complaint

remember defendant uses letters for exhibits and plaintiff uses numbers for their exhibits.

Also label the exhibits and put them some cheap binders label A and B with plaintiffs name, your name & case number & judges name 

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Had the Pretrial Conference yesterday and things didn't go exactly as expected.  The judge was reviewing my motion to compel and told us that he was not sure about it and he ordered myself and the opposition to "research arbitration clause and how it applies to claims against cardholder or issuer"

 

I just wasn't prepared to argue at that point so we are appearing again in a month with our findings.

 

I am not not sure why he is questioning this - it seems clear to me from the language that essentially any dispute can be sent to arbitration if either the creditor or consumer elects it.

 

Any ideas of what I need to return with?  My initial thought is simply to refile the information from my motion to compel arbitration - or do I need to research and find some other cases where arbitration has been granted in these types of cases?

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If it were me, I'd drive home the following points.

The Kansas uniform arbitration act -

5-401.Validity of arbitration agreement.

(a) A written agreement to submit any existing controversy to arbitration is valid, enforceable and irrevocable except upon such grounds as exist at law or in equity for the revocation of any contract.

(B) Except as provided in subsection ©, a provision in a written contract to submit to arbitration any controversy thereafter arising between the parties is valid, enforceable and irrevocable except upon such grounds as exist at law or in equity for the revocation of any contract.

© The provisions of subsection (b shall not apply to: (1) Contracts of insurance, except for those contracts between insurance companies, including reinsurance contracts; (2) contracts between an employer and employees, or their respective representatives; or (3) any provision of a contract providing for arbitration of a claim in tort.

5-402.Proceedings to compel or stay arbitration.

(a) On application of a party showing an agreement described in K.S.A. 5-401, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration, but if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue so raised and shall order arbitration if found for the moving party, otherwise, the application shall be denied.

(B) On application, the court may stay an arbitration proceeding commenced or threatened on a showing that there is no agreement to arbitrate. Such an issue, when in substantial and bona fide dispute, shall be forthwith and summarily tried and the stay ordered if found for the moving party. If found for the opposing party, the court shall order the parties to proceed to arbitration.

© If an issue referable to arbitration under the alleged agreement is involved in an action or proceeding pending in a court having jurisdiction to hear applications under subsection (a) of this section, the application shall be made therein. Otherwise and subject to K.S.A. 5-418, the application may be made in any court of competent jurisdiction.

(d) Any action or proceeding involving an issue subject to arbitration shall be stayed if an order for arbitration or an application therefor has been made under this section or, if the issue is severable, the stay may be with respect thereto only. When the application is made in such action or proceeding, the order for arbitration shall include such stay.

(e) An order for arbitration shall not be refused on the ground that the claim in issue lacks merit or bona fides or because any fault or grounds for the claim sought to be arbitrated have not been shown.

The arbitration act can be found here - http://kslegislature.org/li/b2013_14/statute/005_000_0000_chapter/005_004_0000_article/

Then I would also use the AT&T vs Concepcion language from your MTC along with the FAA language.

*Also - did you send both the JDB and their attorney an election notice and if so, what exactly did you say?

What agreement did you file with your MTC and did you include an affidavit regarding the agreement?

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Linda - I only sent the Plaintiff's Attorney a Meet and Confer letter electing arbitration (and a copy of the MTC Arbitration filed with the court).  I can PM you those letters if needed.  I did not sent to the JDB as well.  The agreements filed with the MTC were a 2010 GE Money agreement and a 2006 HSBC agreement (two different matters have suits on them). 

 

Both of my agreements in the MTC included an affidavit stating those were the terms in effect for the alleged debts.

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Linda - I only sent the Plaintiff's Attorney a Meet and Confer letter electing arbitration (and a copy of the MTC Arbitration filed with the court).  I can PM you those letters if needed.  I did not sent to the JDB as well.  The agreements filed with the MTC were a 2010 GE Money agreement and a 2006 HSBC agreement (two different matters have suits on them). 

 

Both of my agreements in the MTC included an affidavit stating those were the terms in effect for the alleged debts.

My internet keeps going out, so excuse the times I'm not replying.

 

Also in my post above, the *c is displaying as a copyright symbol.  I've tried to correct it, but the editor will not let me.

 

In your MTC did you use the language of the FAA and the AT&T vs Concepcion case?

 

Also, I'm a little confused as it seems that you answered two claims by filing one MTC arbitration?  Are you being sued by the same plaintiff on both cases?

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No worries LInda, I'm grateful for your help period so won't be complaining about "timeliness"

 

Yes - I am being sued by the same plaintiff on two different cases.  I submitted a seperate MTC Arbitration on both of these cases.  

 

The motions both include the language from the agreement which states thing will be resolved by arbitration if elected.  I also included under it an excerpt from the FAA 9 USC Sections 1- 2 and a paragraph about ATT v Concepcion

 

GE Money paragraph:

 

3. The parties are bound by the GE Money Bank Credit Card Agreement. The Arbitration Agreement states among other things:

(a) Arbitration Provision. Please read this arbitration provision carefully. It provides that any past, present, or future legal dispute or claim of any kind, including statutory and common law claims and claims for equitable relief, that relates in any way to your account, card or your relationship with us ("claim") will be resolved by binding arbitration if either you or we elect to arbitrate.

( b ) Applicable Law: These terms involve interstate commerce and this arbitration provision is governed by the Federal Arbitration Act, 9 U.S.C §§ 1 et seq. (the "FAA").

 

-----

 

HSBC Paragraph:

 

3. The parties are bound by the HSBC Bank Nevada NA Credit Card Agreement. The Arbitration Agreement states among other things:

(a) The parties acknowledge that they have a right to litigate claims through a court before a judge or jury but will not have that right if either party elects arbitration.  The parties hereby knowingly and voluntarily waive their rights to litigate such claims in a court before a judge or jury upon election of arbitration by either party.

 (b)This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. Sections 1 – 16 (the "FAA").

 

----

 

Then both follow up with this language:

 

4. The Federal Arbitration Act (FAA) 9 USC Section 1-2 provides: A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration, a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract transaction, or refusal, shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

 

5. The Supreme Court Ruling, decided April 27, 2011, ATT MOBILITY LLC v. CONCEPCION 131 S. Ct. 1740 (2011), 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 purposeof the FAA is to ensure that private arbitration agreements are enforced according to their terms. Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. Animal Feeds international Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA text. Section 2 makes arbitration agreements valid, irrevocable, and enforceable as written (subject, of course, to the saving clause); requires courts to stay litigation of arbitral claims pending arbitration of those claims in accordance with the terms of the agreement; and requires courts to compel arbitration in accordance with the terms of the agreement upon the motion of either party to the agreement . "

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I will try and look up the agreements, but I'll make this post before the internet goes out again.

 

If it were me, I would have said "more" in regard to the agreements than you have listed above.  In particular since you are up against a JDB, I would have shown from the agreement "who" falls under the arbitration provision.  It is not only for the original creditor, but for their successors, etc.  The judge needs to see that.  And of course I would show from the agreement any part of "what" claims are covered, etc. 

 

The judge can then see (and highlight on the agreements that part where it will stand out) that the arbitration provision includes JDBuyers, any claim, etc.  Also again - drive home the FAA and the Concepcion case and very important - cite your Kansas uniform arbitration rules from my post above (5-401 a&B) and of course 5-402 says that the court "will" stay the case upon you showing an agreement to arbitrate.  The thing is, notice where it says their "refusal" to arbitrate?  When you gave them notice that you wanted arbitration, did they refuse or what was said? 

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Thanks Linda. They attorneys have given no response to me at all about my election of arbitration

I would take that as their refusal and would also point that out to the judge.

 

Still having internet problems.  So, can't stay here long to read much or research.

 

PM BV80 and ask if they know of any case law to cite.  I know for a fact that there should be several.

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