marquez

Sued by Discover in Ky: summons contains no evidence

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**I called the attorney to ask if there was a court date set. She said she is a legal agent who works on behalf of the Lawyer's office, this is an attempt to collect a debt, etc. She offered to settle the debt and take court fees off, and offered a payment plan. I did not acknowledge that the debt was mine or take her offers. I said I would be in touch, but did not affirm anything or that I had ever had an account with Discover. I plan to file a Chapter 7 soon, but I'm trying to research as much as possible to be sure I'm prepared. I have very little property and very little income (my income has changed drastically since last year; hence, my unpaid bills). I'm thinking the best option is to file a motion to dismiss because the plaintiff provided no evidence in the complaint? I have no clue where to start, so if anyone has any thoughts, or a template or link to something similar to my situation, it would be very helpful. Thanks so much.

1. Who is the named plaintiff in the suit?

Discover Bank

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

Lloyd & McDaniel, PLC

3. How much are you being sued for?

$1,645.54

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

Discover Bank

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

Served by Sheriff's Dept

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

In Person

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

yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None (I may have called before becoming delinquent, to request payment assistance or arrangement. I do not recall which companies I contacted, but I believe I contacted Discover and was told there was no way to arrange for any relief from my monthly payments, in spite of my financial hardship). No correspondence once account became delinquent, except to call and request that they not contact me at work.

9. What state and county do you live in?

Kentucky, Jefferson County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
May 2014

11. What is the SOL on the debt? To find out:

5 Years, 3 in Plaintiff's state


12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).
Suit filed in district court, case number provided on summons

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
no

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.
no

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

20 days (currently at day 4 or 5)


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
no evidence. No account number. Name and address and last four digits of my ssn, but no other evidence that I have any account. One piece of paper that states complaint: Plaintiff, by counsel, for its cause of action against Defendant states as follows: 1. The Defendant is indebted to Plaintiff in the amount of $1,645.54

2. Venue is proper with this court based on the Defendant residing in Jefferson County. Wherefore, Plaintiff respectfully requests the following relief: 1. Judgment against the Defendant in the sum of $1,645.54; 2. For Plaintiff's costs herein expended; 3. For any and all other relief to which the plaintiff may be entitled pursuant to contract, statute, or common law.

 

That's all it contains. Just the Civil Summons cover page notifying me of the legal action, and the above copied Complaint.

 

 

 

 

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@

 

See if you can locate a Discover Card agreement that was in effect during the life of the account or at the time of default.  If I'm not mistaken, Discover has an option to arbitrate dispute with JAMS.    Check out agreements provided on the Consumer Financial Protection Bureau's website.  If the applicable agreement allows for JAMS, read the following thread:

 

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

 

Hopefully, @lheart or @fisthardcheese will chime in.

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@ikmerc02

 

As @BV80 said, arbitration is the way to go. Going up against an original creditor is difficult

 

If your credit card agreement allows for JAMS arbitration, Discover would most likely drop their lawsuit because it would cost them too much to arbitrate.

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Arbitratoin is a good way to go with a Discover Card and for that low of an amount.

 

Here is the 2014 Discover Card agreement:  http://files.consumerfinance.gov/a/assets/credit-card-agreements/pdf/creditcardagreement_11049.pdf

 

The arbitration section is on page 6.  It gives the option of chosing AAA or JAMS to arbitrate any claim.  I would choose JAMS because it will cost them more than AAA.  It also says they will pay your arbitration fee if you ask them.  I would ask them.  JAMS caps the consumer fee at $250 anyway, but in your case it will be free because their agreement says they will pay.  The JAMS website is: http://www.jamsadr.com/ They have the consumer rules on the site.  Make sure you are looking at the CONSUMER arbitration rules.  They will list what is required to file a claim.  You will need to send a "demand for arbitration letter" to Discover.  I would send this letter, the filing paperwork and other required forms to the Discover attorney AND the address listed on the Discover agreement.  Make sure you CMRRR the letter to the attorney for proof you sent it.

 

You will also need to file a motion to compel private arbitrtaion with the court.  This will essentially ask the court to stay or dismiss your case and order the partys to arbitrate per the card agreement.  Here is a sample of a motion to compel.  Be sure to change #4 to fit exactly the wording of the Discover agreement.  The second part below is an order to submit with the MTC for the judge to sign.

 

 

IN THE COURT OF xxxxxxxx COUNTY
STATE OF xxxxxxxxxx


Discover Bank (“Plaintiff”) vs. xxxx (“Defendant”)   CASE NO. xxxxxxxx

DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS, OR IN THE ALTERNATIVE, TO STAY THE PROCEEDINGS PENDING ARBITRATION


NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about xxxxx xx, 2015, Plaintiff filed its Complaint against Defendant. Defendant denied Complaint.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on or about xxxxxxxx xx, 2015, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) ANY CLAIM OR DISPUTE SHALL UPON ELECTION BY EITHER YOU OR US, BE RESOLVED BY BINDING ARBITRATION. 

( B) THE ARBITRATOR SHALL RESOLVE ANY CLAIMS, INCLUDING THE APPLICABILITY OF THIS ARBITRATION AND LITIGATION SECTION OF THE VALIDITY OF THE AGREEMENT OR ANY PRIOR AGREEMENT.

5. 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”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, 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 “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute.

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted this day xxxxxxx xx, 2015


_______________________________
xxxxxxxxxxxx


ORDER TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION

Case No. xxxxxxx :  COURT OF XXXXXXX COUNTY
Discover Bank                 
VS.                     
xxxxxxxxxx

The foregoing Motion having come before the Court and having been duly considered, it is hereby ORDERED:


      GRANTED      /                DENIED



This _____ day of _________________, 2015




By: ________________________

       Judge of the xxxxxxx County Court

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Arbitratoin is a good way to go with a Discover Card and for that low of an amount.

 

Here is the 2014 Discover Card agreement:  http://files.consumerfinance.gov/a/assets/credit-card-agreements/pdf/creditcardagreement_11049.pdf

 

The arbitration section is on page 6.  It gives the option of chosing AAA or JAMS to arbitrate any claim.  I would choose JAMS because it will cost them more than AAA.  It also says they will pay your arbitration fee if you ask them.  I would ask them.  JAMS caps the consumer fee at $250 anyway, but in your case it will be free because their agreement says they will pay.  The JAMS website is: http://www.jamsadr.com/ They have the consumer rules on the site.  Make sure you are looking at the CONSUMER arbitration rules.  They will list what is required to file a claim.  You will need to send a "demand for arbitration letter" to Discover.  I would send this letter, the filing paperwork and other required forms to the Discover attorney AND the address listed on the Discover agreement.  Make sure you CMRRR the letter to the attorney for proof you sent it.

 

You will also need to file a motion to compel private arbitrtaion with the court.  This will essentially ask the court to stay or dismiss your case and order the partys to arbitrate per the card agreement.  Here is a sample of a motion to compel.  Be sure to change #4 to fit exactly the wording of the Discover agreement.  The second part below is an order to submit with the MTC for the judge to sign.

 

 

IN THE COURT OF xxxxxxxx COUNTY

STATE OF xxxxxxxxxx

Discover Bank (“Plaintiff”) vs. xxxx (“Defendant”)   CASE NO. xxxxxxxx

DEFENDANT’S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS, OR IN THE ALTERNATIVE, TO STAY THE PROCEEDINGS PENDING ARBITRATION

NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about xxxxx xx, 2015, Plaintiff filed its Complaint against Defendant. Defendant denied Complaint.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on or about xxxxxxxx xx, 2015, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

 

THANK YOU soooooooo much for all of your help, all of you, and especially @fisthardcheese! I just have a couple of follow-up questions, if you have time to reply. I'm sorry I don't have more savvy about this, as I hate to waste your time if I'm asking things you've already answered in other threads. The lingo is a bit foreign to me, so I'm not always sure if I'm looking where I need to look.

1) You said to look at the JAMS consumer arbitration rules, but I've located a few items, like "consumer minimum standards," which seems to be standards for the non-consumers, and I've also found a pdf of consumer cases, but that's just a log of past arbitrations, and the arbitration forms seem to be oriented toward non-consumers, as well. So, I'm not sure where to find the rules for filing a claim as a consumer would be. Sorry!

2) The above-mentioned rules are not necessarily what I need to know when I send the demand for arbitration to Discover, right? That should be in a template somewhere else on these boards, I'm guessing? In addition to the demand for arbitration, you're saying I also need to include the paperwork from when I file for arbitration with JAMS, along with the paperwork I'm filing with the court?

3) last question! On item 1, you put "Defendant denied Complaint." So, does that mean I need to include an answer to the suit, in addition to the arbitration request? I read that filing an answer before filing for arbitration could null the arbitration demand, so I'm not sure where the denial part comes in. Is the arbitration automatically considered a denial, or should I file some kind of Answer either with the arbitration or after?

 

Thanks again, and if you don't have time to get to these questions, I understand. I'll keep trying to locate the items I need. This is such a lengthy process! But, it's so helpful to have these boards and to feel I'm able to have at least a bit of control. I have always felt it's a gross injustice that people are unable to effectively assert their rights because of legal loopholes and obscure clauses that these big corporations employ in a language most laypeople can't really wade through in an efficient way. That's why it's so great that you guys are providing your experience, and it means a lot to me!

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THANK YOU soooooooo much for all of your help, all of you, and especially @fisthardcheese! I just have a couple of follow-up questions, if you have time to reply. I'm sorry I don't have more savvy about this, as I hate to waste your time if I'm asking things you've already answered in other threads. The lingo is a bit foreign to me, so I'm not always sure if I'm looking where I need to look.

1) You said to look at the JAMS consumer arbitration rules, but I've located a few items, like "consumer minimum standards," which seems to be standards for the non-consumers, and I've also found a pdf of consumer cases, but that's just a log of past arbitrations, and the arbitration forms seem to be oriented toward non-consumers, as well. So, I'm not sure where to find the rules for filing a claim as a consumer would be. Sorry!

2) The above-mentioned rules are not necessarily what I need to know when I send the demand for arbitration to Discover, right? That should be in a template somewhere else on these boards, I'm guessing? In addition to the demand for arbitration, you're saying I also need to include the paperwork from when I file for arbitration with JAMS, along with the paperwork I'm filing with the court?

3) last question! On item 1, you put "Defendant denied Complaint." So, does that mean I need to include an answer to the suit, in addition to the arbitration request? I read that filing an answer before filing for arbitration could null the arbitration demand, so I'm not sure where the denial part comes in. Is the arbitration automatically considered a denial, or should I file some kind of Answer either with the arbitration or after?

 

Thanks again, and if you don't have time to get to these questions, I understand. I'll keep trying to locate the items I need. This is such a lengthy process! But, it's so helpful to have these boards and to feel I'm able to have at least a bit of control. I have always felt it's a gross injustice that people are unable to effectively assert their rights because of legal loopholes and obscure clauses that these big corporations employ in a language most laypeople can't really wade through in an efficient way. That's why it's so great that you guys are providing your experience, and it means a lot to me!

 

 

The full rules of JAMS is called the Comprehensive Arbitration rules.  There is also a Streamlined Arbitration rules, but when you send your demand to JAMS, you will want to specify that you want the Comprehensive Arbitration rules using the Consumer Minimum Standards.  The Consumer Min Standards is a suppliment to the full rules that only apply to consumer cases.

 

http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf This is the JAMS demand form - a.k.a. the filing forms.  You must fill this out and send 2 copies to JAMS.  This is also the demand you send to Discover and send JAMS the CMRRR green card for proof you served it to them.  The first page of this demand form give all the instruction.

 

As far as the motion goes, the only state I know of that you should not file an answer for is Florida.  All other states should allow you to file an answer denying the complaint, then file the motion to compel arbitraion.  You may want to get other opinions, but I believe you do have the option of only filing the motion in place of an answer.  You should adjust the sample motion to fit however you choose to do.  If I only file the motion, I might change it to read something like "Defendant denies all allegations in Plantiff's complaint".

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Late to the party.

 

File the demand with JAMS.  The OC's have started filing with AAA if the consumer compels arbitration, but has not initiated it yet. Include that in your Motion to Compel letting Discover and the court know that JAMS is the venue of choice.

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@lheart

 

That is a good point. I recently read a case like that, but I forgot where!  I do remember the appeals court ruled the JDM had to arb with JAMS per the defendant's motion and instructed the trial court accordingly.

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I filed a MTC for arbitration, along with an Answer, and included a letter electing arbitration, all of which I submitted to the attorney as well as Discover. The woman at the Clerk's office told me I was filing too many things. I had one stamped for the attorney, one for Discover, and one for the courts (included in the court filing was the judge's order). I will paste what I filed below. She took the paperwork for the attorney and put it into a separate file crate (for local attorneys, I guess) and said they send them over automatically. I told her I had listed that I sent it through certified mail but she said it didn't matter and that it would be delivered to them by the court. I don't know what to make of that, especially since she told me I don't need to send the copies to Discover if I sent them to the attorney. I didn't ask her for any of this info, she just seemed exasperated and told me this stuff, and seemed to think I was over-doing it. I told her I don't know because I've never done this before and I'm trying to be on the safe side.

So, I'm pasting what I submitted. Do I still need to initiate arbitration with JAMS? I specified JAMS in my MTC and in my letter to Discover. I tried filling out the JAMS demand for arbitration, but I don't really have any Complaints, so I have no clue what to list in the sections where I want relief, etc. And if I initiate with JAMS, will that obligate me to continue? I'm hoping Discover will just drop everything. If anyone has time to give me some feedback, I would appreciate it!

 

COMMONWEALTH OF KENTUCKY

COURT OF JUSTICE

JEFFERSON DISTRICT COURT

DIVISON 2

CASE NUMBER: XXXXX

 

 

DISCOVER BANK                                                                                                               PLAINTIFF(S)

 

v.

 

XXXXXX                                                                                                                                DEFENDANT(S)

 

           

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION

 

            I, XXX, the defendant, appearing pro se, in the above-named proceeding, respectfully move this Court to issue an order to compel private/contractual arbitration and dismiss, or in the alternative, to stay the proceedings pending arbitration.

 

The reasons that I am entitled to the relief I seek are the following:

 

1. That on or about May 19, 2015, Plaintiff filed its Complaint against Defendant. Defendant was served Complaint on or about June 10, 2015. Defendant denied Complaint.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on or about June 19, 2015, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

 

  1. "If either you or we choose arbitration, neither party shall have the right to litigate such claim in court or to have a jury trial."

 

  1. “Any claim (except for a claim challenging the validity or enforceability of this arbitration agreement, including the Class Action Waiver) may be resolved by binding arbitration if either side requests it.”

 

5. 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”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, 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 “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute.

WHEREFORE, Defendant moves this Honorable Court to compel private/contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

 

            I, the undersigned, declare under penalty of perjury that the information contained in this document is true and correct.

 

            This 19th day of June, 2015.

 

                                                                                Signed:  ________________________________________

                                                                                                XXXXX

 

 

CERTIFICATE OF SERVICE

            I hereby certify that a copy of the above MOTION TO COMPEL PRIVATE/CONTRACTUAL

ARBITRATION was served upon DISCOVER BANK by certified mail at P.O. Box 30943 Salt Lake City, UT

84130-0943 on the 19th day of June, 2015.

Signed: _______________________________________________

                                                                                     

 

EXHIBIT A

XXX

XXX

XXX

v.

 

DISCOVER

PO BOX 30421

SALT LAKE CITY, UT 84130-0421

 
JUNE 19, 2015

CASE # XXXXX

JEFFERSON DISTRICT COURT DIVISION 2

NOTICE OF ARBITRATION ELECTION
 

Pursuant to Discover cardholder agreement, I elect arbitration via JAMS to resolve all of our disputes.

As per the agreement, "If either you or we choose arbitration, neither party shall have the right to litigate such claim in court or to have a jury trial."

The agreement further states, “Even if all parties have opted to litigate a claim in court, you or we may elect arbitration with respect to any claim made by a new party or any new claims later asserted in that lawsuit.”

The agreement further states, “If you wish to begin an arbitration against us but you cannot afford to pay the organization’s or arbitrator’s costs, we will advance those costs if you ask us in writing.”

Per the Cardholder Agreement, I am requesting that Discover remit advance fee of $250.00 to JAMS on my behalf as the Defendant, to begin arbitration for this case.

As of this notice you must dismiss or stay any and all actions in regards to the alleged debt pending the result of the Arbitration.

A copy of this letter was filed with Jefferson District Court on June 19, 2015.

A copy of this letter was sent by certified mail to Lloyd & McDaniel, PLC P.O. BOX 23200 LOUISVILLE, KY 40223 on June 19, 2015


                                                                                    ___________________________________________

Certified Return Receipt #_________________________

 

 

 

 

 

COMMONWEALTH OF KENTUCKY

COURT OF JUSTICE

DIVISON 2

CASE NUMBER: XXXXX

 

ORDER TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION

DISCOVER BANK                                                                                                               PLAINTIFF(S)

 

v.

 

XXXXXXXXXXXXX                                                                                                 DEFENDANT(S)

The foregoing Motion having come before the Court and having been duly considered, it is hereby ORDERED:


      GRANTED      /           DENIED



This ________ day of _________________, 2015




By: _____________________________________________________________

       Judge of the Jefferson County Court

 

 

****EXHIBIT B WAS THE CARDHOLDER AGREEMENT, WHICH I COPIED AND INCLUDED****

 

AND THIS WAS THE LAST ITEM I SUBMITTED IN MY MOTION:

COMMONWEALTH OF KENTUCKY

COURT OF JUSTICE

JEFFERSON DISTRICT COURT

DIVISON 2

CASE NUMBER: XXXXXX

 

DISCOVER BANK                                                                                                               PLAINTIFF(S)

 

v.

 

XXXXXXXX                                                                                                                           DEFENDANT(S)

 

DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT

Comes now the Defendant, pro se, and submits the following answer to Plaintiff's complaint:

1) Defendant ADMITS she is a resident of Jefferson county, but has elected private contractual arbitration pursuant to the terms of the governing Cardholder Agreement, which takes away both sides litigation rights in court.

2) Defendant is without information or knowledge sufficient to form an opinion as to the truth of Plaintiff's claims and must respectfully DENY Plaintiff's remaining allegations. Defendant holds the Plaintiff to provide the strictest proof thereof.

 

AFFIRMATIVE DEFENSES

1) Defendant states there is an arbitration clause in the cardholder agreement that takes away both parties litigation rights if elected by either party. Defendant has already notified Plaintiff's attorney of her election to arbitrate pursuant to the terms of said agreement and has filed a motion to compel arbitration with the Court. This Court lacks jurisdiction and proper venue to decide this matter as Defendant has exercised the binding arbitration agreement.

2) Plaintiff failed to state a claim upon which relief can be granted. Plaintiff has not provided the contract or any other valid and sufficient proof of agreement on behalf of the Defendant with the Plaintiff, whether expressed or implied.

3) Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

WHEREFORE, Defendant respectfully asks the Court to dismiss this case, or stay this case pending arbitration pursuant to Discover Bank agreement.

Respectfully submitted this 19th day of June, 2015.
                                                                                                ___________________________________
                                                                                                XXXXX, DEFENDANT PRO SE

 

CERTIFICATE OF SERVICE

            I hereby certify that a copy of the above ANSWER/AFFIRMATIVE DEFENSES was served upon

DISCOVER BANK by certified mail at PO BOX 30943 SALT LAKE CITY, UT 84130-0943 on the 19th day of

June, 2015.

 

Signed: _______________________________________________

*****Anyone have any thoughts???

 

Thanks so much for all your help!!!

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Weather you initiate with JAMS is up to you, personally I would not take the chance. The contract says the initiator picks the forum, doesn't matter if you elected JAMS or not, the could choose AAA. It will cost you tops 250.00 to do this, and you can request your fees back from discover if it says they will pay your costs. If you don't, it's a gamble.

Also you are banking on them not going to arbitrate, just know that. Since it is an OC, they may abide by their agreement. It's just lucky they gave a clue they didn't want to go there. It would be expensive for them, but if they did go, you would probably lose. But your chances going to trial have about the same odds.

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The clerks are always confused and annoyed at having to work, I find. 

 

I would initiate with JAMS especially since it would cost nothing to file.  It's a good safety net.  If the court denies arb (very unlikely) or if Discover decideds to drop the case, you can simply email JAMS and withdraw your case.

 

In the request for relief, you may leave the dollar amount blank or put TBD or something similar.  I would put in the space for my complaint or whatever it is called on the form that it is for Consumer credit dispute and violations of state and federal statutes.  You do not have to be specific on this form and can submit a formal complaint when the case is accepted by JAMS and the court orders arbitration.  In your formal complaint you can amend the violations of law if you don't find any violations made by Discover.

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File the claim with JAMS.  The nature of the dispute as stated by firsthardcheese can be: "Consumer Credit Dispute".  Do not send in the initial payment. I think Discover has a provision that if you ask, they will consider paying.  They likely will not, but give them a chance to consider and that will buy you time. 

 

Clerks are not legally trained.  They only know what they see each day.  Most attorneys would not file the way you did, so they do not know that it is ok.  You have to insist that they do what you ask.

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Thanks so much again for your help! I am not in the country as of right now, but do you think if I file with JAMS on July 1, it will be soon enough??? I filed the MTC and sent the election for arbitration on 6/19. The 20 day response deadline would put me at 6/30, but my response was filed, so I'm hoping initiating with JAMS on July 1 will be early enough!

And it's funny because my stepmother was a Court Clerk. You would have thought she was Perry Mason, to hear her tell it ;-/. Not to speak ill of all clerks, but I do see what you mean about needing to take them with a grain of salt. This particular clerk, the other day, was fairly patronizing, and I really didn't want to piss her off, because (as she probably knew), she did have some power to make things difficult for me, if she'd wanted to. It's a little maddening.

I SO appreciate your guidance with all of this. I can't believe how patient you guys are with all of my elementary questions and anxieties. I hope I can pick up some good practices in any future disputes from your examples :)

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Those of us who are honest will admit that we all started with silly questions and not enough time to have them answered before we needed to do something.

 

I went to my court to pull previous cases to see how other people answered credit card lawsuits.  These were still hard copy records.  The clerk told me if I was not an attorney, I was not allowed to see them.  I told her they are public record and I had every right to them and insisted that she get her supervisor.  She came back upset and wanted to know why I needed so many files, but she did pull them.

 

Clerks are like every other profession, some do it to the best of their ability and learn everything they can, and others just show up for a paycheck.  But by law they are not allowed to offer legal advise, including what you can or should file.

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Those of us who are honest will admit that we all started with silly questions and not enough time to have them answered before we needed to do something.

 

I went to my court to pull previous cases to see how other people answered credit card lawsuits.  These were still hard copy records.  The clerk told me if I was not an attorney, I was not allowed to see them.  I told her they are public record and I had every right to them and insisted that she get her supervisor.  She came back upset and wanted to know why I needed so many files, but she did pull them.

 

Clerks are like every other profession, some do it to the best of their ability and learn everything they can, and others just show up for a paycheck.  But by law they are not allowed to offer legal advise, including what you can or should file.

 

Many states have cut back on spending for the courts, and  clerks are often overworked and understaffed.  That's no excuse for someone not doing their job, but states are trying so hard to penny-pinch they don't realize (or don't care) that they are hurting their citizens

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I just went online to the records for Kentucky courts and saw that a motion hour is set. I filed everything and requested arbitration, and did not initiate JAMS (is it too late???), and I saw today that a "motion hour" is set for 7/31 at 11am. Can someone tell me what this means and what I should do? I don't know why I would have to do more in order to get the motion to compel arbitration ordered, seeing as I provided the cardholder agreement. I would think it would be pretty cut and dried. Any help would be greatly appreciated!

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Some states require you set a date for the motion to be heard, if yours does that, and you didn't get one set, they may have done it.  Most courts just ignore the motion unless you ask for a hearing on it if that is what your court does.  (mine likes to get the motion and rule on it with no appearances)  Call the court clerk and ask.

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You can expect Discover to try to object with your motion and ask the judge to deny arbitration.  All you need to do is show the judge the agreement that says arbitration is your right, and cite the Supreme Court case quoted in your motion.  Then try to let Discover argue against the Supreme Court to the judge.

 

Again, as stated many times above, I would send off the JAMS paperwork immediately.  I would keep copies of everything I send to JAMS and bring that evidence to court with me.  This will not only show the judge you are serious about wanting arbitraotin and have already started the process, but also will prevent Discover from asking the judge to order arbitration with AAA instead of JAMS where it would be much cheaper for them.

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Okay, thanks so much! I just filled out and printed the JAMS forms. I should have done it weeks ago. I am planning to mail them tomorrow and will keep my fingers crossed that the motion is granted.

I will update you. Once again, I really appreciate all your help!

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The motion arrived in the mail yesterday. It's very brief. It says: NOTICE: "Please take notice that the undersigned will on July 31, 2015 at 11am in the Courtroom of the above Court make the Motion and tender the Order set out below."

MOTION: "Pursuant to CR 41.01, the Plaintiff, by counsel, respectfully requests that the within action, and all claims contained therein, be dismissed with prejudice."

It's signed by the lawyers representing Discover.

Soooo, my question is whether this motion is seeking to dismiss the entire case or to dismiss MY motion to compel arbitration? I'm hoping it's the former. Can anyone tell me? I am hoping this means they're dropping the suit, but I want to be prepared if they're actually trying to get my MTC dropped.

 

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I'd say they are letting this one go. Congrats! I'd still show up to make sure.

Baldwin's Kentucky Revised Statutes Annotated

Rules of Civil Procedure

VI Trials

CR 41. Dismissal of Actions

Kentucky Rules of Civil Procedure (CR) Rule 41.01

CR 41.01 Voluntary dismissal; effect thereof

Currentness

(1) By plaintiff; by stipulation.

Subject to the provisions of Rule 23.05, of Rule 66, and of any statute, an action, or any claim therein, may be dismissed by the plaintiff without order of court, by filing a notice of dismissal at any time before service by the adverse party of an answer or of a motion for summary judgment, whichever first occurs, or by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal or stipulation, the dismissal is without prejudice, except that a notice of dismissal operates as an adjudication upon the merits when filed by a plaintiff who has once dismissed in any court of this state, of the United States or of any state an action based on or including the same claim.

(2) By order of court.

Except as provided in paragraph (1) of this rule, an action, or any claim therein, shall not be dismissed at the plaintiff's instance save upon order of the court and upon such terms and conditions as the court deems proper. If a counterclaim has been pleaded by a defendant prior to the service upon him of the plaintiff's motion to dismiss, the action shall not be dismissed against the defendant's objection unless the counterclaim can remain pending for independent adjudication by the court. Unless otherwise specified in the order, a dismissal under this section is without prejudice.

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I hope you're right! It seemed to be what the motion was indicating, but I'm afraid to assume anything. I will definitely be there on the court date with copies of everything! Do you think I should still initiate arbitration? I have everything printed and was planning to mail it out today.

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no.  it says dismissed with prejudice, so they could not come back on you later, if they sell it, that person cant sue you and win either :)

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