PAULA

ARBITRATION INITIATION GRANTED BY JUDGE

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1. yes, I did everything Certified Return, will get my dates in order tonight.

2.yes

3. yes, it was an election letter to lawyer and amex, before my MTC. Dates- tonight

4. confused with this...

5. working on it, might need some guidance...

 

#4 is the dollar amount you intend to attach to your JAMS filing. Your damages, there needs to be a dollar figure. They are trying to collect $10K how much are your damages going to be...

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1. 17-December - Initiation papers were received by JAMS and lawyer 

 

2. yes, settlement offer: 60% of total amount with monthly pmts for 24 months

 

3. 18 - November  - Election letter was received by lawyer, amex. 20 - November my motion to compel arbitration was granted (within 30 days to initiate arb) 

 

4. $1000 damages

 

5. Do I get into detail now? FDCPA, need guidance ( I have never been in this situation before) ....any examples that I could find and match my situation (I just need to know how to start on this...) I actually am looking to get on debtor boards and for 2-3 days I am waiting for approval, I tried to get help (I am a computer literate person..) and I just don't know what else to do to get in there to post my case or email the similar to mine ( Linda passed me one example but couldn't find the finalization for it)

 

The lawyer filed a motion for mediation on 13 - Dec not allowing me enough time to initiate arb AS THE COURT ORDERED ( 27- DEC MY LIMIT). I am not sure if this one of the violations or not ( it is to me :-).

 

Skippy1960: " 2. If you are going to make a first offer of settlement, you need to understand that there will be a counter offer. If you determined that settling for $1K on a $10K debt (10%) is where your final position is, then you need to start with they owe you money. Realize most JDB when they think settling they are going to be at 70% of the debt or greater."

 

Yes, you are right, I would like to settle for 1K or 2K , so I need to get back to him telling them they owe me money?
 

Edited by PAULA
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I have one BIG question....I received the other day an invoice from JAMS of $250 , but I already placed a check with the Initiation package because it was one of the requested items on the list. The check did not show in my acc yet, which was worrying  me before...I tend to think its an automatic thing - the invoice and they are waiting to receive the other party's payment in order to process payments. either way I already emailed the case manager regarding that, just to make sure they have it.

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Be sure and look for state violations as the FDCPA does "not" apply to OC's.  Often times a state consumer law will mimic the FDCPA and at times will treble the damages.  State violations can apply to the OC.

 

Also remember, the attorney can be held to the FDCPA -

 

"Originally the FDCPA did not apply to attorneys. However, the FDCPA was amended in 1986 and the exclusion for attorneys was removed. Today an attorney is a Debt Collector subject to the FDCPA if the attorney regularly tries to obtain payments of consumer debts due to another, even if the method of collection is primarily through litigation." 
 
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Paula,

Lawyers response is normal and his first ask is exactly what it should be in trying to get what he wants. (as much as they can)

A few questions that need answers,prior to responding-

1. Have you been sending all information to the attorney, Certified Mail Return Reciept? Example when you file a claim with JAMS you must serve the otherside, inorder for JAMS to accept your claim and start the process? What date did you do this?

2. Do you have the offer from AMEX at 65% in writing?

3. Did you send your earlier letters electing arbitration, CMRR? How many did you send? What dates were the sent?

4. What is the amount of you claim agaist the otherside that you intend to file with JAMS, should you need to.

5. What is you cause of action for your JAMS claim, FDCPA,TCPA, FCRA etc. ?

In order to give some guidance need to have more specifics....

 

Regarding violations, I am researching now, but a few that I have in my mind ( need to get the call records) are:

1. I got served at my workplace....in my prior conversations with them I specifically told them not to call my work or have anything to do with my workplace (the lawyer).

2. They harassed my mother in law with calls, after I specifically told them that my cell is the only number they should call. ( the OC)

3. Kept calling me after I told them I would need a few months to figure out my financial situation (OC)

4. When Lawyer called at work one day, I answered and told me to call me that day after 5pm...they never called back that daY. Only days or weeks after, if not I got served - can't remember exactly

5. eVERY TIME I tried to reach to a resolution with them, they would not be able to accept it, but then in their statements they say I refused to pay...

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I will go with the arbitration and with you guys by my side! I will win (or at least make it less "painful" than it is right now :).

 

Bankruptcy is not in my plans, but never say never....

 

How much would the lawyer have to pay(in total) if he gets in arbitration until the end?

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A full blown arbitration with Hearing can run between $10K and $20K after you figure in arbitrators time and attorney time for the otherside. If this was to go all the way, I would assume they will try to claim costs if they win.

Frankly you should know that the strategy is based on it being so expensive they don't want to go and pay this. Consumer winning in arbitration is very unlikely, most statutes that your claim will be based on just don't have enough dollars to create a larger enough offset, meaning even if you prove they did something wrong it will not be enoungh to off set the underlying debt.

I know California Law won't allow for them to claim costs even if they win. I don't know if Florida has a similar statute or how the costs and attorney fees are listed in the AMEX cardagreement.

Before I offer what I think the next steps are in the negociation I wanted to make sure I explained as much as I can. Arbitration is like playing poker, you have two pair Aces and Eights and they have 3 Kings. You are bluffing them and saying I am going all the way and it is going to cost you between $10-$20K to win this case.

Many folks have BK as their final draw in there poker hand, which means if they go all the way and loose, they will file BK and they still don't pay. Even if the laws or cardagreement allows the costs to be added to the debt, BK is the drawing the final Ace for a full house. Aces and Eights are called a deadmans hand.

If you are stil interested then below is what I would email back to the attorney:

Mr Attorney,

Thanks for your recent settlement offer. Clearly you have not spoken to your client because on <enter date> I received an offer that was significantly less. Apparently you are not serious about wanting to settle this matter. Upon paying JAMS your $550 dollar case initiation fee and the first arbitrator retainer fee, you may want revisit a settlement discussion.

I have paid my portion of the case initiaiton fee and am preparing my complaint.

Regards

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I will go with the arbitration and with you guys by my side! I will win (or at least make it less "painful" than it is right now :-).

 

Bankruptcy is not in my plans, but never say never....

 

How much would the lawyer have to pay(in total) if he gets in arbitration until the end?

Winning an award in arbitration against an OC is not something I would expect to be able to do. Winning in court against an OC is doable but a large amount of hard work from my experience.

 

Arbitration is a different game than court. As the AAA Arbitration Glossary of Terms states "Arbitrators do not have to follow the Rules of Evidence used in court." And from the JAMS Comprehensive Arbitration Rules & Procedures

Rule 22. The Arbitration Hearing

(d) Strict conformity to the rules of evidence is not required, except that the Arbitrator shall apply applicable law relating to privileges and work product.

 

I previously posted a link to a 3400 page pdf of JAMS case statistics http://www.creditinfocenter.com/community/topic/322490-arbitration-initiation-granted-by-judge/#entry1276972 . Only 40 pages contain the words "American Express". Lacking a quick and agreeable settlement, I would want to review the results of all the AMEX cases to get an idea of what I am likely to experience.

I found pages 2496, 2931, 3047, and 3170 the most interesting since they actually went to a hearing.

 

Going through to a JAMS hearing with AMEX appears likely to result in an award in their favor, if one is to believe the published JAMS statistics.

 

Arbitration is just another tool in my toolbox. It is a tool I would use, when it makes sense, for creating favorable leverage to settle or perhaps derail the pursuit of the alleged debt due to high costs for the business.

 

AFAIK the most advantageous use of contractual arbitration comes when used against a small JDB alleged debt by a consumer with minimal or zero non-exempt income and assets. The usefulness of arbitration would appear to diminish significantly when used in a situation with a large OC alleged debt by a consumer that has significant assets recorded in the public record and and a sizable non-exempt income. I would estimate that the average poster is somewhere in between those extremes and they are left to "pick your poison" between court or arbitration (when/if arbitration is available in their contract).

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Ok, thank you all for your input!

 

I emailed the lawyer : " Thanks for your settlement offer. Clearly you have not spoken to your client as on xxxx I received an offer from them that is significantly less. Please let me know if you are really interested to settle this matter. I did pay my portion of the case initiation fee so you have to process your share and the first arbitrator retainer fee.

 

He answered me: " That offer was made x months ago by Ammex, our firm received the file in X 2013. We have not spoken with client in regards to an offer less then the full amount since to do so we would need a hardship letterfrom you explaining why you are unable to pay the full amount and an amount to offer for settlement."

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Interesting response from the otherside. You will need to soften them up a bit by getting them to start paying for the arbitration that they have been ordered to do by the courts. Generally, you don't want to offer your settlement number to early, eagerness can be a pitfall.

My response might look something like this:

I had numerous conversations with you client, AMEX. They are aware of my financial position and no further information will be supplied. Your offer was not acceptable, we can proceed with the arbitration. Thanks in advance for paying your portion of the case management fee promptly.

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after CHECKING DAILY the court fillings, I received today an ORDER REFERRING CASE TO MEDIATION (COUNTY COURT)

IT IS ORDERED:

1. Court Mediation and Arbitration Program shall coordinate the date, time and location for the mediation

7. The Plaintiff and Defendant shall share equally in the cost of mediation

and so on.

 

The automated service states that order was granted for Mediation....

WHAT DO I DO? I DON'T UNDERSTAND WHY? I GAVE MY ANSWER TO COURT WITH ALL THE PAPERS SHOWING INITIATION OF ARBITRATION. PLEASE ADVISE.

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Paula,

First you need to remember you are attempting to move the debt collection manchine in a different direction. The machine normally works as follows:

1. CA files lawsuit and debtor= a. Never answers and CA recieves Default Judgement. b. Files answer and CA wins via MSJ or wins at trial.

The machine is not only the CA's but the court itself. So when you start asking for things outside of the machines normal process it doesn't know what to do.

It is not really important how or why you are going to mediation. It matters what you do when you get there. Here are the steps I would take:

1. I would show up with your Order Granting Arbitration with JAMS and ask the mediator to award you the fee's that you paid to participate in the mediation and to order the CA to pay their JAMS fees and for any sanctions for wasting the mediators time.

2. They will say they can't, then ask to see a judge. Explain the situation and let the otherside explain why they aren't following the courts order?

I believe getting them in front of a Judge may force them to get out their checkbook and pay JAMS, better yet they may want to deal. Force them to make another offer. You have the court order and they are holding up the program.....

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Thats a bad idea Skippy. Going to the mediation would be recognizing the courts jurisdiction. This is Florida where if you sneeze you wave arbitration. File a Motion to Reconsider or a Motion of Clarification with the judge.

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Thats a bad idea Skippy. Going to the mediation would be recognizing the courts jurisdiction. This is Florida where if you sneeze you wave arbitration. File a Motion to Reconsider or a Motion of Clarification with the judge.

 

I agree that Florida is an issue as you state it. But she already has a standding order in hand, that Arb was ordered. She has performed all portions of the order, waiting on the otherside to fulfill its part of the performance to complete the courts order.

So at this point the court has relinquished its jurisdiction.

Either, by prompting from the CA or by the court itself. The court is exercising "jurisdiction", again via meditation.

Filing a Motion to Reconsider or Clarification, simply asks the court to exercise jursidiction, and rule to enforce the order.

The OP is going to have to deal with the jursidiction of the court, again if the otherside never pays.

So since the court by some prompting wants to move the case along, going to mediation, to me seems a much easier venue to rely on the current order that is in place.

Mediation is generally non-binding, and meant to find a resolution to the case. So as long as the OP stands on her preformance against the current MTC Arb order, the mediator will have to report back to the court that the otherside is NOT in compliance with the court's MTC order.....

Obviously, the OP needs to confirm that Flordia Mediation is non-binding, to be sure.

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Going to mediation requires both parties to share the cost. She would have to pay to go to the mediator to have the mediator tell her that she needs to go back to the court to enforce the previous order?

 

The court is attempting to regain jurisdiction by sending it to court mediation. There needs to be an objection of the OP's part to preserve the removal of jurisdiction. Otherwise it could be considered waived.

 

In most jurisdictions without the strict guidelines of Florida, if you start to have the court decide the merits of the case before you to arbitration, it is a waiver of the arbitration clause. It could easily be ruled that by submitting to the court mediation, the OP waives the rights to private arbitration, even if the ruling of mediation is non-binding.

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THANK YOU FOR ALL YOUR INPUT.

 

FL mediation and arbitration: " What is mediation? Med is a process which is voluntary or court ordered, utilizing a 'neutral person' mediator who assists the parties in reaching a mutually acceptable resolution to their dispute. Unlike the arbitrator, the mediator does not have the authority to make a binding decision - only the parties can make the agreement binding." is this what I needed to check?

 

 

On the other hand, This is what I was given as an example on debtor boards and I adjusted it for my needs ( hope it is correct, still need to quote from agreement, but wanted your input meanwhile).

 

Motion for Clarification and Motion to dismiss of mandatory Court/ Judicial Mediation/Arbitration

 

1. The plaintiff filed a complaint "Breach of Contract" damages against the defendant (See exhibit A)

 

2. Defendant in this matter filed a response, at the same time moved the court to compel contractual binding, arbitration pursuant to the terms and conditions of the American Express Card member Agreement and Federal Arbitration Act (9 .U.S.C....(my copy and paste don't work...) attached is the demand for arbitration (see exhibit B) B)

 

3. Defendant Motion to compel arbitration was "granted" (and was ordered to initiate within 30 days see attached doc and delivery proofs- not sure how to word it here) see exhibit C

4.Motion was for arb to be performed within the terms and cond of Amex Card Agreement. The Supreme Court has repeatedly emphasize that FAA embodies a congressional declaration of a liberal federal policy favoring arb agreement. According to the Supreme Court, the Act expresses the congress's intent 'to mandate enforcement of all covered arb agreements'. Since FAA extents to the full reach of the Commerce Clause, a 'covered arb agreement' effectively means the arbitration provision in the written agreement ( AT&T mobility versus Conception et al.....) The US Supreme Court held that arb agreement is a mateer of contract. Moses H Cone Memeorial Hospital versus Mercury Constr Corp (...) (How do I copy and paste this stuff...?....)Mandating Courts to place arbitration clauses on equal footing as any other contract (...) and to enforce it according to their terms. Amex arb provision states:

'quote from Amenx agreement'

4. Defendant paid consumer fees for arbitration to process (see exhibit G - it will be the copy of the confirm email I received from the case mgr from JAMSthat the check was enclosed in the papers received on Dec 17th)

Wherefore defendant respectfully requests this Honorable Court for:

A.  Clarification of the Order to stay the litigation pending the outcome of JAMS arbitration proceedings.

B. Dismiss of the Court's mandatory mediation scheduled in 60 days as it is an improper venue.

C. Any further relief this Court deems just and proper.

 

Respectfully submitted,

 

Lawyer

Address

xxx

 

Please advise

I would like to mention somehow that this motion for arb was filed before my 30 days, court deferred it, but then did not accept my proof (maybe that conf email regarding payment was missing, but the case mgr guy was away so that is why nothing was processed until he got back...) I will include the clarification emails in here

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I'm still having internet issues, so I can't type much as it will be going out.

 

Read this - http://www.floridabar.org/DIVCOM/JN/JNJournal01.nsf/c0d731e03de9828d852574580042ae7a/21f7da820f98c859852572330056638e!OpenDocument&Highlight=0,*

 

There should be some cites that you can use.

 

Also note that it states about showing a valid agreement, etc., and you have met that standard. 

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cHECK THIS ONE OUT.  I couldn't find anything for  #5 (except

 what I did not hhave on #4 (this one has AT&T also and Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. at 1.)

 

MOTION TO CLARIFY AND TO DISMISS
COURT MEDIATION/ JUDICIAL ARBITRATION

 

NOW COMES Defendant, YYYYY and requests clarification on the arbitration venue.
1. That on or about October 2, 2013, Plaintiff filed its Complaint against Defendant, Defendant being served on November 6, 2013.
2. Defendant in this matter filed a response, at the same time moved the court to compel contractual binding, arbitration pursuant to the terms and conditions of the American Express Premium Rewards Gold Card Agreement and Federal Arbitration Act,(9 U.S.C. §1-16(2006).
3. Defendant's Motion to compel binding contractual arbitration was "granted" by the Honorable Judge XXXXX on 20 November, 2013 with the stipulation that Defendant was to initiate within 30 days. Defendant followed the court order and initiated on 17 December, 2013 (see Exhibit "B", attached) which falls within the 30 days allowed by the court.
4. Motion was for arbitration to be performed within the terms and conditions of the American Express Premium Rewards Gold Card Agreement. The Supreme Court has repeatedly emphasized that the FAA embodies a congressional declaration of a liberal federal policy favoring arbitration agreements. According to the Supreme Court, the Act expresses Congress's intent "to mandate enforcement of all covered arbitration agreements”. Since the FAA extends to the full reach of the Commerce Clause, a "covered arbitration agreement" effectively means the arbitration provision in the written agreement (AT&T Mobility v. Concepcion, et al. (563 U.S.Ct. SCOTUS, 09–893, (June, 2, 2011); The U.S. Supreme Court held that arbitration agreement is a matter of contract. Moses H. Cone Memorial Hospital v. Mercury Constr. Corp.,(460 U.S. 1, 24(1983). (Rent-A-Center, West, Inc. v. Jackson 130 S. Ct. 2772, 561 US, 177 L. Ed. 2d 403 – [slip op 2010]), mandating Courts to place arbitration clauses on an equal footing to any other contract, (Buckeye Check Cashing, Inc. v. Cardegna, 546 U. S. 440, 443, 126 S. Ct. 2006), and to enforce it according to their terms.
American Express Premium Rewards Gold Card Agreement arbitration provision states:
          "Any claim shall be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration provision. Claims shall be referred to either JAMS or the American Arbitration Association (AAA), as selected by the party electing to use arbitration.
This Arbitration provision is made pursuant to transactions involving interstate commerce and shall be governed by the FAA. Arbitration hearings you attend shall take place in the federal judicial district of your residence."
5. “The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or any allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. at 1.
6. Defendant paid the JAMS consumer fee for arbitration to process. (see Exhibit "C", attached)
CONCLUSION
An agreement with an arbitration provision has been shown which binds both the Plaintiff and the Defendant. The Defendant compelled the Court for private/contractual arbitration pursuant to the rules of the governing agreement.
The Court granted the Defendant's motion to compel arbitration with the stipulation that the Defendant would initiate within thirty (30) days. Defendant initiated as ordered within the thirty (30) days and has paid their part of the initiation fees.
Plaintiff has still not paid their part of the initiation fees and is delaying the arbitration as ordered by the Court.
This case between the Plaintiff and the Defendant was bound over to private arbitration and is no longer within the jurisdiction of this Court. However, the Plaintiff continues to litigate in Court by filing a motion for mediation.

WHEREFORE, for the foregoing reasons, the Defendant respectfully requests this Court to dismiss the Court's mandatory mediation and to compel the Plaintiff to follow the Defendant into arbitration as previously ordered by this Court.

                                                                                            Respectfully submitted

 

And I request a hearing also? is the title of the motion correct? I am freaking out with details... :-)

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Some changes I would make if it were me -

 

The first part where it says you are asking for clarification on the arbitration venue - you "aren't" asking for that.  Your arbitration venue of JAMS is not the issue. 

 

MOTION TO CLARIFY AND TO DISMISS
COURT MEDIATION/ JUDICIAL ARBITRATION *I'm not sure about this title.  Maybe the clerk could be of some assistance.  If they won't help, I think I'd call it "Defendant's Motion to Clarify/Motion to Dismiss Court Mediation"

 

 

NOW COMES Defendant, YYYYY and requests this Honorable Court to uphold the court order of Judge so and so which was granted on such and such a date.

 

1. That on or about October 2, 2013, Plaintiff filed its Complaint against Defendant, Defendant being served on November 6, 2013.

 

2. Defendant in this matter filed a response, at the same time moved the court to compel private contractual binding, arbitration pursuant to the terms and conditions of the American Express Premium Rewards Gold Card Agreement and the Federal Arbitration Act,(9 U.S.C. §1-16(2006) which governs the arbitration provision.

 

3. Defendant's Motion to compel binding contractual arbitration was "granted" by the Honorable Judge XXXXX on 20 November, 2013 with the stipulation that Defendant was to initiate within thirty (30) days. Defendant followed the court order and initiated on 17 December, 2013 (see Exhibit "B", attached) which falls within the thirty (30) days allowed by the court.

 

4. Defendant initiated pursuant to the terms of the governing agreement and has paid their arbitration fees. (Exhibit)

 

5. Plaintiff, in total disregard of Judge so and so's order filed a motion for mediation with this court instead of following Defendant into arbitration.

 

 

CONCLUSION **Changed a little bit, read carefully

 

An agreement with an arbitration provision has been shown which binds both the Plaintiff and the Defendant.

 

The Defendant compelled the Court for private/contractual arbitration pursuant to the rules of the governing agreement.

 

The Court granted the Defendant's motion to compel arbitration with the stipulation that the Defendant would initiate within thirty (30) days.

 

Defendant initiated as ordered within the thirty (30) days and has paid their part of the initiation fees.

 

Plaintiff has still not paid their part of the arbitration initiation fees and is delaying the arbitration as ordered by the Court and instead has filed a motion for court mediation.

 

This case between the Plaintiff and the Defendant was bound over to private arbitration and is no longer within the jurisdiction of this Court. However, the Plaintiff continues to litigate in Court by filing a motion for mediation.

 

WHEREFORE, for the foregoing reasons, the Defendant respectfully requests this Court to dismiss the Plaintiff's court mediation and to compel the Plaintiff to follow the Defendant into arbitration as previously ordered by this Court.

 

                                                                                            Respectfully submitted

 

*I really don't think the part below is part of this argument.  You have already won the MTC arbitration.  You just need the judge to realize that he isn't following his own order and you need to clarify that you did follow the order. 

 

 

American Express Premium Rewards Gold Card Agreement arbitration provision states:
          "Any claim shall be resolved, upon the election by you or us, by arbitration pursuant to this Arbitration provision. Claims shall be referred to either JAMS or the American Arbitration Association (AAA), as selected by the party electing to use arbitration.
This Arbitration provision is made pursuant to transactions involving interstate commerce and shall be governed by the FAA. Arbitration hearings you attend shall take place in the federal judicial district of your residence."
5. “The Arbitration Act establishes that, as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or any allegation of waiver, delay, or a like defense to arbitrability.” Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. at 1.
6. Defendant paid the JAMS consumer fee for arbitration to process. (see Exhibit "C", attached)

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Linda,

Should I mention anything about the comment letter I filled to judge after he said I have 10 days to send proof that I initiated as it was not in the courts record if not lawyer can renew his motion. that is when I submitted proof again plus one letter from JAMS but did not get an answer from court. 

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