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songdog

Elected Arbitration - Sued Anyway..... now what?

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1. Who is the named plaintiff in the suit? Asset Acceptance

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) LBN representing Asset Acceptance.

3. How much are you being sued for? $2000

4. Who is the original creditor? (if not the Plaintiff) Withheld for Privacy

5. How do you know you are being sued? (You were served, right?) Served summons

6. How were you served? (Mail, In person, Notice on door) In person

7. Was the service legal as required by your state? Yes

 

 

So well over a year ago I received the letter from LBN.  I responded with my DV letter and as part of my response I elected arbitration via JAMS.  I received the validation from LBN and then nothing for 13 months until now when I have been served.  I was quite shocked by the summons thinking all this time my election of arbitration had chased them away.

 

So from what I have read here LBN/Asset are in violation.... yes?

 

Do I go ahead and respond to the summons with the standard denials and also file a MTC arbitration?  Do I file a Motion to Dismiss citing that LBN/Asset are in violation (of course providing my proof that I previously requested Arb)?

 

Thanks in advance for your help

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File a motion to dismiss on the grounds that the court does not have jurisdiction because you elected arbitration and the card agreement states election of arbitration removes the parties right to litigation in court (assuming it does in fact say that).

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File a motion to dismiss on the grounds that the court does not have jurisdiction because you elected arbitration and the card agreement states election of arbitration removes the parties right to litigation in court (assuming it does in fact say that).

Hi Harry

 

Thanks for your reply.

 

As a matter of fact the card agreement does state that the election of arbitration by one party removes the right to litigation.

 

I'm still somewhat of a newbie here....  Is the MTD my response to the summons or is that separate from the standard response?

 

And I'm assuming if I file a motion to dismiss I have to request a court date to hear the motion?

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Song,

 

Harry is for the most part correct, but you may want to review your Rules of Civil Procedure also.  Here is a link to them

 

:

 

http://www.oscn.net/applications/oscn/Index.asp?ftdb=STOKST12&level=1

 

You should start with

Chapter 38B - Uniform Arbitration Act

Check sections 1855, 1856, 1857 and 1858, these all deal with how you state deals with arbitrtion.  I glance at them an your moiton should be title as follows:

 

Motion to Compel Arbitration and Stay Proceedings.  According to what I read in those sections getting a stay is likely the only option.  Further it is pretty standard.

 

The otherside will oppose and say if you wanted arbitration you should have initiated the arbitration.  So begin to prepare for this argument.

 

Finally be sure you understand what waives your right to arbitrate, and make sure that if you need to file an answer to the complaint first you do so.

 

I am not from Oaklahoma so not exactly sure on your Rules and Procedures...

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A MTD forces the judge to rule on the enforceability of the arbitration agreement before anything else happens.  If that gets denied then you can file your answer and a motion to compel and stay of proceedings.

 

Also, I always thought the court rules Re: arbitration were for the court sponsored arbitration, not private arbitration elected pursuant to an existing contract between the parties.

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In my area it has to go to court, a person must wait 15 days before electing arbitration, the case remains with the jurisdiction of the court until settled, or if a settlement cannot be reached, the court remands it back for a hearing. Check your state rules, mine are under alternative dispute resolution.

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In my area it has to go to court, a person must wait 15 days before electing arbitration, the case remains with the jurisdiction of the court until settled, or if a settlement cannot be reached, the court remands it back for a hearing. Check your state rules, mine are under alternative dispute resolution.

@BTO429 is this for private arbitration contracts?

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@Harry Seaward

 

I agree.  But if I'm not mistaken, electing and initiating are 2 different things.   Perhaps it depends upon what the court requires to get the arbitration ball rolling?

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@skippy1960

 

@Harry Seaward

 

Doesn't one have to do more than elect arbitration?   Is it first necessary to initiate the process with the arbitration forum?

BV brings up a reasonable question, which the answer lies in each state and jurisdiction. Typically the way the Arbitration Provsions are worded they usually use the word "Elect" and then go further to discuss the initiation process.

In most states except Florida, you can usually get to arbitration via electing in correspondence to the otherside a couple of times, if it is pre-law suit. If the law suit has been filed best to move to compel and initiate at the sametime for certain results. There are numerous examples of courts granting motions to compel and giving the defendant time to initiate by a date certain, so risk is low.

Hope this answers your question.

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@Harry Seaward

Perhaps it depends upon what the court requires to get the arbitration ball rolling?

@BV80

Absolutely agree 100%. My point is, absent rules specific to private arbitration, the fastest route to a ruling on arbitration (IMO) is a MTD. If the court agrees that it doesn't have jurisdiction, the plaintiff will have to initiate arbitration to have their claims heard.

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It stays in the courts jurisdiction here, mainly because if one party is stubborn the other party can file for sanction because the party will not participate by the rules. The court stays in the process to make sure the arbitrator and the other parties follow the rules. Even the arbitrator can get in hot water with the court if he is unwilling to help the parties compromise. The arb goes just like court, the parties have discovery, its limited, and they submit evidence. If the arbitrator finds any deceit or fraud he is supposed to refer it back to the court.

There are a lot of rules for arb here. The arbitrator has to be sanctioned as a arbitrator and has to have certain education.

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@BTO42

Lucky you. This is no doubt a result of the arbitration fiasco that went on up there a few years ago.

AZ has no such oversight, that I know of. The parties elect arbitration, the arbitrator's ruling is final and then it goes back to the court to enforce any judgments.

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@Harry Seaward

 

Arbitration that is mandated by court rules is not necessarily the same as the arbitration provided for in a cardmember agreement.   My state has mandatory ADR (alternative dispute resolution).  The proceedings are nothing like the proceedings with AAA or JAMS.

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I think you should still file an answer to the suit and then get it all sorted out.  Don't do anything else like initiating any discovery though.

As everyone else has stated learn your rules- study them like you were cramming for an exam.

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@Harry Seaward

 

Arbitration that is mandated by court rules is not necessarily the same as the arbitration provided for in a cardmember agreement.   My state has mandatory ADR (alternative dispute resolution).  The proceedings are nothing like the proceedings with AAA or JAMS.

I was making this distinction earlier in this topic. I guess I was assuming BTO was talking about the private arbitration. AZ has a version of court sponsored arbitration/mediation but it's not mandatory for most cases. I believe either party can request it and I know a judge can order it.

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I think you should still file an answer to the suit and then get it all sorted out.  Don't do anything else like initiating any discovery though.

As everyone else has stated learn your rules- study them like you were cramming for an exam.

 

Thanks for everyone's replies and thoughts.  Sorry for my late reply, I have been away for a few days.

I filed a MTD, or in the alternative, stay proceedings and compel arbitration.  I'm filing my answer to the complaint tomorrow.

Any thoughts on the answer?  Should it be a basic deny, deny, deny or should I also include an affirmative defense that mentions the arbitration?

 

Thanks

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I sent Asset's attorney a letter reminding them that I had much earlier elected arbitration and hinted that they could therefore be in violation of FDCPA rules.  I asked them to voluntarily dismiss the case..... worth a shot :p

 

I also sent them a copy of the JAMS Demand for Arbitration form and asked them to complete their info and return to me so I will have the correct information when I file for arb.

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In Indina I think even if you elect JAMS or AAA a suit still needs to be filed, the courts want to oversee arb I think this took affect in 2012

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I did some digging but didn't fund much wording in the way of "court forced oversight".  So it could be that since the case has already been filed the Oklahoma court will assume oversight as opposed to dismissing.

 

 This is the Civil Procedure section on Arb Intialization:
 

A. A person initiates an arbitration proceeding by giving notice in a record to all the other parties to the agreement to arbitrate in the agreed manner between the parties or, in the absence of agreement, by certified or registered mail, return receipt requested and obtained, or by service as authorized for the commencement of a civil action. The notice must describe:

1. The general nature of the controversy; and

2. The remedy and alleged damages sought.

B. Unless a person objects for lack or insufficiency of notice under subsection C of Section 16 of this act not later than the beginning of the arbitration hearing, the person by appearing at the hearing waives any objection to lack of or insufficiency of notice.

 

 

and this on refusing to arbitrate

 

A. On application and motion of a person showing an "agreement" to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement:

1. If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate; and

2. If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate. 

 

Several case laws were noted where a judge's refusal to Compel Arbitration were later overturned.

 

 

 

 

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I did some digging but didn't fund much wording in the way of "court forced oversight".  So it could be that since the case has already been filed the Oklahoma court will assume oversight as opposed to dismissing.

 

 This is the Civil Procedure section on Arb Intialization:

 

A. A person initiates an arbitration proceeding by giving notice in a record to all the other parties to the agreement to arbitrate in the agreed manner between the parties or, in the absence of agreement, by certified or registered mail, return receipt requested and obtained, or by service as authorized for the commencement of a civil action. The notice must describe:

1. The general nature of the controversy; and

2. The remedy and alleged damages sought.

B. Unless a person objects for lack or insufficiency of notice under subsection C of Section 16 of this act not later than the beginning of the arbitration hearing, the person by appearing at the hearing waives any objection to lack of or insufficiency of notice.

 

 

and this on refusing to arbitrate

 

A. On application and motion of a person showing an "agreement" to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement:

1. If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate; and

2. If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate. 

 

Several case laws were noted where a judge's refusal to Compel Arbitration were later overturned.

Now that you are in a civi action make a motion for court ordered arb,,,,,,what this amounts to is they are trying to avoid having to pay for the arb, the debtor does not pay for arb ,,,,,usually.

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Thanks for everyone's replies and thoughts.  Sorry for my late reply, I have been away for a few days.

I filed a MTD, or in the alternative, stay proceedings and compel arbitration.  I'm filing my answer to the complaint tomorrow.

Any thoughts on the answer?  Should it be a basic deny, deny, deny or should I also include an affirmative defense that mentions the arbitration?

 

Thanks

I am not familiar with OK civil rules of procedure (nor experienced in pre-answer motion practice) but it would seem to me that if I filed an MTD that was basically a motion to dismiss in lieu of answer I would think that a denial of the MTD would be the event that triggers the start of the clock relative to a deadline to file an answer. A grant of the MTD would seem to preclude the necessity to answer.

 

AFAIK the filing of an answer prior to a determination on an MTD doesn't make sense and would seem to undermine the validity of the MTD's argument. If the OK rules don't clarify this perhaps a consult with an attorney might.

 

I have been through court-connected, nonconsensual, nonbinding arbitration as well as private contractual binding arbitration but I have never heard of a court overseeing a private contractual arbitration process being carried out through an arbitration forum like AAA or JAMS. Such court involvement with seem to fly in the face of my understanding of the FAA and the state RUAA statutes I have read.

 

Any links to statutes or court rules that show court oversight of private contractual arbitration that can be posted would honestly be appreciated. I am not suggesting it does not happen, I am just fascinated to see how they would do it. Maybe it would require every private contractual arbitration (subject to court oversight) to begin with litigation so the court can start oversight IDK.

 

Of course the court can grant a motion to compel arbitration by one of the parties and keep the case inactive or some other status until one of the parties presumably comes back to confirm/vacate any arbitration award with the court upon completion of the arbitration process. This is the kind of court involvement in private contractual arbitration that I have read about.

 

Here is an article on ORUAA: http://www.gablelaw.com/news_resources/2012/OklahomaRevisedArbitrationAct.pdf

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I am not familiar with OK civil rules of procedure (nor experienced in pre-answer motion practice) but it would seem to me that if I filed an MTD that was basically a motion to dismiss in lieu of answer I would think that a denial of the MTD would be the event that triggers the start of the clock relative to a deadline to file an answer. A grant of the MTD would seem to preclude the necessity to answer.

 

AFAIK the filing of an answer prior to a determination on an MTD doesn't make sense and would seem to undermine the validity of the MTD's argument. If the OK rules don't clarify this perhaps a consult with an attorney might.

 

I have been through court-connected, nonconsensual, nonbinding arbitration as well as private contractual binding arbitration but I have never heard of a court overseeing a private contractual arbitration process being carried out through an arbitration forum like AAA or JAMS. Such court involvement with seem to fly in the face of my understanding of the FAA and the state RUAA statutes I have read.

 

Any links to statutes or court rules that show court oversight of private contractual arbitration that can be posted would honestly be appreciated. I am not suggesting it does not happen, I am just fascinated to see how they would do it. Maybe it would require every private contractual arbitration (subject to court oversight) to begin with litigation so the court can start oversight IDK.

 

Of course the court can grant a motion to compel arbitration by one of the parties and keep the case inactive or some other status until one of the parties presumably comes back to confirm/vacate any arbitration award with the court upon completion of the arbitration process. This is the kind of court involvement in private contractual arbitration that I have read about.

 

Here is an article on ORUAA: http://www.gablelaw.com/news_resources/2012/OklahomaRevisedArbitrationAct.pdf

 

When I said "court oversight" basically what I meant was the court compel the arbitration and then provide some form of follow up upon completion of the process.  This as opposed to dismissing the case altogether.   Did a little more research and it does appear that I don't have to file an answer now so I will hang tight and wait for my motion hearing.

 

Thanks for the Arbitration link!!!

 

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So I filed a MOTION TO DISMISS FOR LACK OF SUBJECT MATTER JURISDICTION,

OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS AND COMPEL ARBITRATION

Court date was set for next week so I was planning to fine tune my arguments this coming weekend.... when today I received a letter from LBN stating the plaintiff was dismissing the case! HOOT :) Happy Dance!!

I guess now I will wait and see if they bother with arbitration though I kind of doubt it!

Feel free to pm me if you are interested in a copy of the motion I filed.

Thanks again for everyone's input!!

Songdog

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