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1. Who is the named plaintiff in the suit?

 

Cortez Investment Co, LLC

 

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

 

Hameroff Law Group, P.C.

3443 E Ft. Lowell Rd, Suite 101

Tucson, AZ 85716

 

3. How much are you being sued for?

 

$9,680

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

 

Wells Fargo Bank

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

 

Served

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?

 

One collection letter back in May (I ignored and chose to try and keep my head down, as I was nearing the SOL- obviously a bad choice, in retrospect)

9. What state and county do you live in?

 

Maricopa County, AZ

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

 

November 2009

11. What is the SOL on the debt?

 

This was something I wanted help on- as my last payment was before the SOL change from 3 to 6 years, which applies to my case?

12. What is the status of your case? Suit served? Motions filed?

 

Suit served, still have a few days to file a response

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?

 

No

15. How long do you have to respond to the suit?

 

 

3 days (spent most of my 20 days playing phone tag with various attorneys, all of which ended up being an exercise in futility)

 

 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

Nothing. Zero. Zip. Nada.

 

We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 

 

1. Plaintiff is a corporation, Defendants are residents, debt was an event caused by the Defendants, this court is the proper venue for this case.

 

2. This court has jurisdiction over the matter, and that the Defendants, if married, were acting for community purposed and benefit (I wasn't married at the time, am now).

 

3. Wells Fargo Bank extended credit to the Defendants.

 

4. Defendants failed, refused, and/or neglected to make the payments owed.

 

5. Plaintiff has acquired or been assigned the debt.

 

6. Defendants owe the plaintiff $9,680

 

7. Plaintiff is entitled to interest on the balance (4.25%, starting from date of judgement)

 

8. Plaintiff has performed all acts required which entitles the Plaintiff the amounts contained in this complaint.

 

9. The above sums are justly and truly due and unpaid.

 

10. The Plaintiff or attorney has made demand, the Defendants have failed, refused, or neglected to pay.

 

11. Plaintiff is entitled to recover court costs and attorney's fees.

 

12. Defendant is notified that this communication is from a debt collector.

 

 

 

WHEREFORE, Plaintiff prays and demands judgement against the Defendants, and each of them, as follows-

 

A. the amount of $9,680

 

B. accrued interest in the amount of $0.00

 

C. accrued interest on the remaining balance of $9,680 at the rate of 4.25% from date of judgement

 

D. reasonable attorney's fees

 

E. Plaintiff's court costs

 

F. interest at the legal rate on attorney fees and costs

 

G. such other and further relief that the court deems just and proper.

 

 

 

 

Alright, so basically discovering these forums last night has resulted in an information overload. I now understand why consumer debt lawyers here in AZ seem to prefer to settle rather than fight- it seems that I realistically should expect to lose my case (should I choose to fight it) in Justice Court, then once I appeal to the Superior Court it won't be an automatic loss, but will still largely depend on a great deal of luck. Besides the SOL clarification I mentioned above, I have some other questions-

 

1. I am financially in an OK place, not great enough that this won't hurt (a lot- but hey now that it's cooling off I can afford to wait on getting the car A/C fixed, etc.), but if we scrape and scrounge and borrow from family we can probably pay whatever ends up being negotiated in settlement (they called and left a voicemail a day or two after I was served, so they at least are minimally interested in avoiding the courtroom). I would almost prefer just to cut bait for my own sanity's sake (and also for the fact that I don't want to risk ruining my wife's stellar credit or put another dent in my own mostly-recovered score), but I worry that with only a few days left on my deadline they will agree to a settlement then hit me with the default judgement anyways. Is this something I should be on the lookout for, and how can I cover myself in this respect?

 

2. I no longer have my cardmember agreement (and haven't, since about the same time I stopped paying), anyone know where to find one? My credit report says the account was opened in January of 2006.

 

3. The main reason for my interest in the agreement is I am trying to figure out if arbitration would be a possible avenue to explore-

     Would they follow me into arbitration for ~10k?

     Does my cardmember agreement specify JAMS? If not, can I elect JAMS anyways, and if so, how?

     If I choose to go the arbitration route, should I mention it in my answer? Should I file an answer at all, or here in AZ does that waive my right to arbitration? If I elect arbitration, does that waive other rights I        may have?

     In lieu of an answer, should I file a MTD instead? When do I file MTC arbitration?

 

Whew, that was a lot! I know there are a ton of questions in here, but any help would be greatly appreciated. 

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http://www.cardmemberagreements.org/wp-content/uploads/2012/09/2007-Wells-Fargo-Agreement-with-AAA.pdf

 

this is super hard to read.

 

If you still had the card and used it in 2010 this one would work here

http://www.cardmemberagreements.org/wp-content/uploads/2012/08/2010-Wells-Fargo-Agreement-with-AAA.pdf

 

All of wells fargo is arb with AAA.

For 10K do I think they will go to arb? depends on their evidence.  But I think it is a better option than keeping it in AZ courts.

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Comments on your questions:

 

1.  If you settle now the amount will be significant, as you don't have any leverage.  Meaning it will be somewhere around 70% of what the balance is (YMMV).  If you decide to settle, then you can file a notice of settlement with the court, this should at least slow down the rubber stamp machine.  Also note, that they will most likely require you to sign a stipulated judgment, where if you fail to make the payments as agreed, then you automatically have a judgment against you in the full amount (regardless if you already paid 99% of the agreed amount).

 

2.  Here is a WF card agreement with AAA Arbitration:  http://www.cardmemberagreements.org/wp-content/uploads/2012/09/2007-Wells-Fargo-Agreement-with-AAA.pdf

 

3.  They *may* follow you into arb, but most do not.  The CC agreement above specifies AAA (not as expensive as JAMS, but still expensive).  Electing Arb by simply following the consumer rules on adr.org.

      a.  If you choose to file an answer, then yes you must use the affirmative defense of private contractual arbitration, and the court does not have subject matter jurisdiction.

      b.  The only right you waive is the right to resolve this dispute in a court room.  All other rights are typically available (i.e. FDCPA etc...)

      c.  If you choose to scrap the answer and file a MTD, then you would want to do it soon (before your time to file an answer is up, read your court rules).  The MTD and MTC should be combined in the same motion or pleading.

 

On another note, you're $320 dollars short of having this case kicked up to Superior Court.  If you wanted to keep this in court (not recommended), a counterclaim for FDCPA violations (i.e. $1000) would exceed the justice court limit of 10k.

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Thanks to both of you for the input! Those are the forms I found as well, wasn't sure if I should be looking for a previous iteration (couldn't find anything pre-2007) but it appears that they're essentially the same anyways. 

 

 

      a.  If you choose to file an answer, then yes you must use the affirmative defense of private contractual arbitration, and the court does not have subject matter jurisdiction.

 

 

I'm assuming that this isn't the only affirmative defense I should list? Or does it matter, as I'm (hopefully) not going to have to deal with the court anymore?

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@Blackbeard's Delight

 

If you choose to file an answer, then there are several affirmative defenses you could use.  If you choose to file a Motion to Dismiss and Compel Private Contractual Arbitration in lieu of an Answer, then the affirmative defenses are moot, unless your motion is denied.  You'll then need to file an answer within 20 days of your MTD denial; unless, you choose to appeal the MTD/MTC denial.

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Comes now the Defendant XXXX XXXXXXXX Pro Se with his answer to the Plaintiffs complaint.

 

ANSWER TO GENERAL ALLEGATIONS

1.      In response to paragraph one (1), the Defendant resides in the State of Arizona in Maricopa County, however the Defendant disputes the alleged debt, as solicited in paragraph #1 of the complaint. Defendant also denies that this Court is the proper venue for this case. The Defendant holds the Plaintiff to provide the strictest proof thereof.

 

2.      In response to paragraph two (2), Defendant denies this court has Jurisdiction over this matter, as the Defendant has elected private contractual Arbitration in this matter and under this contract has waived litigation rights for both parties. Additionally, Defendant denies any debt incurred for the purposes and benefit of marital community. The Defendant holds the Plaintiff to provide the strictest proof thereof.

 

3.      The Defendant denies the allegations in paragraph three (3), the Defendant holds the Plaintiff to provide the strictest proof thereof.

 

4.      The Defendant denies the allegations in paragraph four (4), the Defendant holds the Plaintiff to provide the strictest proof thereof.

 

5.      In response to paragraph five (5), the Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof.

6.      The Defendant denies the allegations in paragraph six (6), the Defendant holds the Plaintiff to provide the strictest proof thereof.

 

7.      In response to paragraph seven (7), the Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof.

 

8.      In response to paragraph eight (8), the Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof.

 

9.      The Defendant denies the allegations in paragraph nine (9), the Defendant holds the Plaintiff to provide the strictest proof thereof.

 

10.    The Defendant denies the allegations in paragraph ten (10), the Defendant holds the Plaintiff to provide the strictest proof thereof.

 

11.    In response to paragraph eight (8), the Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof.

 

12.    In response to paragraph #2, the Complaint states legal conclusions to which no response is necessary. However, to the extent that the Court may deem a response to be necessary, defendant denies the allegation and demands strict proof thereof.

    AFFIRMATIVE DEFENSES

13.      As and for a First Defense

The defendant has elected to enter into private contractual arbitration pursuant to the Wells Fargo cardmember agreement, and as such the court does not have subject matter jurisdiction.

 

 

 

 

14.      As and for a Second Defense

Plaintiff failed to pursue Alternative Debt Resolution as laid out in the Wells Fargo cardmember agreement. Plaintiff’s Complaint was therefore not filed in the proper venue for this case.

 

15.      As and for a Third Defense

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted. 

 

16.    As and for a Fourth Defense

Defendant alleges that this action is time-barred under § A.R.S. 12-505 of the laws of Arizona.

 

17.    As and for a Fifth Defense 

Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person. 

 

18.    As and for a Sixth Defense 

Defendant claims a Failure of Consideration as there has never been any exchange of any money or item of value between the plaintiff and the Defendant. 

 

19.    As and for a Seventh Defense 

Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff. 

 

20.    As and for an Eighth Defense 

Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parol Evidence Rule. 

 

21.    As and for a Ninth Defense

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

COUNTER CLAIMS

22.    The Defendant reserves all current counter claims for private contractual arbitration pursuant to the alleged written contract.

 

23.    The Defendant reserves the right to add additional counterclaims if proceedings go further in this action.

 

 

WHEREFORE, Defendant respectfully asks the Court to Dismiss this case, or Stay this case pending arbitration pursuant to Wells Fargo cardmember agreement.

 

If Plaintiff attempts to stipulate or imply in any pleading, Motion or other legal document to this Court changes or restrictions to the arbitration provision that is contrary to the Contractual Agreement provided by Plaintiff in Plaintiff’s Complaint For Damages, then Defendant prays for this Court to dismiss this action immediately and have Plaintiff change venue for this action to the Federal Court having jurisdiction in this matter as provided in the Federal Arbitration Act. 9 U.S.C. § 1-16.

 

 

 

Respectfully submitted this          _ day of October, 2015.

 

 

Alright, so this is what I've got so far, planning to submit tomorrow but figure a little feedback won't hurt. Anything glaringly wrong with it or will it be adequate?

 

Working on MTC next, almost done (will be submitted simultaneously with my answer).

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NOTICE OF LITIGATION WAIVER

Pursuant to "Credit Card Account Agreement,” (see attached), I elect private contractual arbitration via AAA to resolve all of our disputes.

As per this agreement,

“You and Wells Fargo Bank, N.A. (the “BANK”) agree that if a Dispute arises between you and the Bank, upon demand by either you or the Bank, the Dispute shall be resolved by the following arbitration process. A “Dispute” is any unresolved disagreement between you and the Bank. It includes any disagreement relating in any way to the Card or related services, accounts or matters; to your use of any of the Bank’s banking locations or facilities; or to any means you may use to access the Bank. It includes claims based on broken promises or contracts, torts, or other wrongful actions. It also includes statutory, common law and equitable claims. A Dispute also includes any disagreements about the meaning or application of this Arbitration Agreement. This Arbitration Agreement shall survive the payment or closure of your account…”

 

 

I expect dismissal of case XXXXXXXX no later than 10 days from the receipt of this notice.

 

 

  

 

 

_________________________________________________

 

And here is my letter electing arbitration, forgot to post it earlier.

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I would remove the Counterclaims section in your answer.  Sometimes, when you invoke a Counterclaim it waives your right to Arbitration.  

 

If you indeed have counterclaims, they can be filed with JAMS, but you don't want to give the court jurisdiction over the matter.  This is another example of why, in my opinion, filing in answer may be a potentially negative thing.  The rules allow for a Motion to Dismiss in lieu of an answer, in which you would include your Motion to Compel Arbitration.  If the motion is denied, you then have 20 days to file an answer from the date of the denial.  Make sure you are VERY familiar with your courts rules of civil procedure.

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Must be a new player in the JBD game - his original articles indicate real estate investment...

 

The guy is also stupid enough to post his home address online... today would even be the perfect day to serve him a counter...

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@Coffee_before_tea

 

 

 


On another note, you're $320 dollars short of having this case kicked up to Superior Court.  If you wanted to keep this in court (not recommended), a counterclaim for FDCPA violations (i.e. $1000) would exceed the justice court limit of 10k.

 

For future reference, unfortunately, that's not the case.  The amount in the plaintiff's claim and the amount the defendant's counterclaim are not added together.   As long as each amount in the complaint and counterclaim is less than $10,000, it stays in Justice Court.

 

ARS 22-201(G)

 

G. If in any action before a justice of the peace a party files a verified pleading that states as a counterclaim a claim in which the amount involved, exclusive of interest and costs, is more than ten thousand dollars, the justice of the peace shall certify this in the court record, at once stop further proceedings in the action and forward all papers, together with a certified copy of the court record in the action, to the superior court, where the action shall be docketed and determined as though originally brought in the superior court.

 

 

From the Pinal County Website:

 

If the counterclaim exceeds $10,000.00 the case will be immediately transferred to the Superior Court and appropriate fees will be paid before the case can continue. Also, the party causing the transfer shall pay a transmittal fee to the court.

 

http://www.pinalcountyaz.gov/Departments/JudicialBranch/JusticeCourts/Documents/Civil/CV11-105%20Civil%20Packet%20FORM%2009152008.pdf

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A counter including FDCPA or FCRA claims will most likely be moved up to Federal...

 

No.  A counter claim is heard in the court it is filed in because it is in direct response to a current case.  If a consumer files an independent FDCPA or FCRA case that has nothing to do with an existing suit THEN the Defendant can file to have it remanded to the Federal level.  If neither party motions to have it moved to the Federal level it can be heard in the state court.

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So quick update, as I haven't really posted anything since the initial response (after a week of basically work->research->sleep, real life finally caught up with me)-

 

Long and short of it is a settlement conference was scheduled (for this upcoming Monday) while my MTC was apparently working its way through the system. The plaintiff went about their normal business (disclosure statement, request for admissions, etc.) and also responded to my MTC, essentially saying that if the judge were to uphold my MTC then instead of dismissing he should stay for 30 days so that I could initiate the arbitration through AAA (which I hadn't done yet- just been swamped and it would always slip my mind whenever I was actually around a computer and actually able to do it). Not initiating may not have been such a bad thing after all, as I may have just been dumping money down the drain- I just recently received the response that my MTC had been denied by a judge pro tempore,  because it was "Moot- A settlement conference has been set for a later date."

 

So yeah, not sure what to do now. If the settlement conference doesn't resolve things, can/should I refile the MTC? Is it something else like some sort of motion to reconsider? Or what? That is probably my only leverage, as (at least to my limited knowledge) the plaintiff seems to have an adequate paper trail on me (or at least adequate enough for AZ)-

 

1. Disclosure statement included an affidavit of indebtedness from a guy that is the counsel for Absolute Resolutions Corp, which is an outfit that I guess acts as the middleman between OCs and JDBs.

2. Two bills of sale, one between the OC and an initial JDB, then another between that and the current JDB.

3. A long list of accounts purchased by said bill of sale, with everything redacted besides my info.

4. Copies of what my last two billing statements.

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Vthat should have nothing to do with it. When is the settlement conference conference? When was their opposition to your MTC filled?

I would initiate AAA Arb tomorrow. Print off the proof you initiated. Take that to the conference, refuse to negotiate. Then go back to the court and file a reconsideration motion. You initiated, include the FAA citing sources that states your right to Arb, the credit agreement, see where it goes. Worse case senerios the judge will rule against you, you will have to appeal, and win on appeal. Ya it costs money, but if you can front it, you will get it back.

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Settlement conference is tomorrow (or I guess technically later today). Their opposition was filed November 24th, while the MTC was denied on the 13th (looks like they didn't find out any sooner than I did, I received the ruling in the mail within the past week). I've since initiated the Arb, and printed out the proof. We'll see what happens this afternoon.

 

On a side note, I found this on another site:

 

 

 

BTW, Cortez Investment is a JDB owned by Hameroff. He has nothing to substantiate that you owe anything. His companies buy debts then hire him as attorney and he charges huge "attorney fees" to all who are foolish enough to fall for his business plan. I personally have beaten him and I know others who have.

 

Which would explain why when I searched for cases in the justice court that I am currently being sued in, they all seemed to have exorbitant fees tacked on (if I remember correctly, many were around 10k)

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They offered to settle for $7500, I countered for much lower. Told them that they weren't going to get much out of me (everything is in the wifey's name and this whole debt situation transpired before we married), we set a new settlement conference for a month from now, during which time he suggested I send copies of our tax returns, stuff like that which might convince his client that they really can garnish me all they want but it probably won't be worth their time.

 

I'm still planning on filing a motion to reconsider the MTC arb, but not really sure what that should look like. Do I just change the title on my MTC arb, maybe add a bit at the end about how "there is no legal precedent for a settlement conference being a suitable replacement for contractually obligated arbitration," something along those lines?

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Well since the judge ignored your compel motion, you could just go straight to an interlocuary appeal. Get some case law to help support your appeal, there is a ton of it in google scholar. Search terms are motion to compel arbitration denied, FAA motion to compel arbitration. I can't seem to copy and paste it with my iPad today, but it is there in Google scholar.

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A motion to reconsider does not stop the appeal clock and is itself not appealable until after final judgment. If you do this your window of opportunity will close on your right to appeal the motion to compel.

I would not bother with a motion to reconsider or anything else except direct appeal of the denied motion to compel.

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It may not matter, but the person who denied the MTC isn't my actual judge in the case, but rather a pro tempore (who I guess just lends a hand on misc. paperwork? I'm not really sure), so I'm hoping that I get someone else this time around. 

 

What's the difference between an appeal and a motion to reconsider? Besides the form title, wouldn't they both contain the same or similar excerpts of case law?

 

Btw I realized I had never posted my original MTC, so I guess I'll do that now:

 

 

Now comes the Defendant XXXX XXXXX Pro Se for its Motion to Compel Private Contractual Arbitration hereby respectfully requests the court to compel arbitration and stay these proceedings pursuant to the Federal Arbitration Act, 9 U.S.C. 1.

 

Points and Authorities submitted herewith, and state as follows:

1.  That on or about October 2, 2015, Plaintiff filed its Complaint against Defendant.

2.  Defendant sent a letter via certified mail to Plaintiff's attorney October 29, 2015, electing arbitration with AAA and requesting dismissal of this case, attached as exhibit (A).

3.  The Defendant and Wells Fargo Bank entered into a written agreement wherein they agreed to arbitrate all disputes arising between them and Defendant (see page 7 of attached exhibit B). The Parties agreed that no courts, including this Court, would have jurisdiction to hear their disputes. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the attached Credit Card Agreement.

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

     a) You and Wells Fargo Bank, N.A. (the “BANK”) agree that if a Dispute arises

     between you and the Bank, upon demand by either you or the Bank, the

     Dispute shall be resolved by the following arbitration process.

 

     B) YOU UNDERSTAND AND AGREE THAT YOU AND THE BANK ARE WAIVING THE RIGHT

     TO A JURY TRIAL OR TRIAL BEFORE A JUDGE IN A PUBLIC COURT.

     c) Either you or the Bank may submit a Dispute to binding arbitration at any

     time notwithstanding that a lawsuit or other proceeding has been

     previously commenced.

 

     d) A “Dispute” is any unresolved disagreement between you and the Bank. It

     includes any disagreement relating in any way to the Card or related

     services, accounts or matters; to your use of any of the Bank’s banking

     locations or facilities; or to any means you may use to access the Bank. It

     includes claims based on broken promises or contracts, torts, or other

     wrongful actions. It also includes statutory, common law and equitable

     claims. A Dispute also includes any disagreements about the meaning or

     application of this Arbitration Agreement.

     e) The provisions of this Arbitration Agreement shall survive termination,

     amendment or expiration of the Card or any other relationship between

     you and the Bank.
 

     f) Each arbitration, including the selection of the arbitrator(s) shall be

     administered by the American Arbitration Association (AAA)

 

     g) This Arbitration Agreement and any resulting arbitration are governed

     by the provisions of the Federal Arbitration Act (Title 9 of the United

     States Code)

5.  The Federal Arbitration Act (FAA) 9 USC, Section 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”.

 

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).

 

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…"

 

Congress enacted the FAA to reverse the long standing judicial hostility toward arbitration agreements “and to place arbitration agreements upon the same footing as other contracts.” Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20,24 (1991).

 

6.  Pursuant to the parties’ contract, this Court cannot be a forum for any disputes between the parties. Under both Federal and Arizona Law, an action should be dismissed where a party contractually agrees exclusively to arbitration. See, e.g., Simula, Inc. v. Autoliv, Inc 175 F. 3d 716, 716, 726 (9th Cir. 1999) (affirming district courts order compelling arbitration and dismissing complaint); Sparling v. Hoffman Constr. Co., Inc 864 F2d 635, 638 (9th Cir. 1988) (affirming dismissal of claims were all claims were subject to arbitration).

 

See also Martin Marietta Aluminum, Inc, v. General Electric Co., 586 F. 2d 143 (9th Cir. 1978) (affirming grant of summary judgment where all claims to court were barred by arbitration clause); Payne v. Pennzoil Corp., 138 Ariz. 52, 53-54, 56 672 P.2d 1322, 1323-24, 1326 (Ariz. Ct. App. 1983) (affirming trial court’s grant of motion to dismiss “ based on lack of subject matter jurisdiction and failure to state a claim” where arbitration provided for exclusive remedy).

 

7.  A Court should not strike down an arbitration agreement except in those very limited circumstances where the arbitration agreement at issue is unenforceable on a ground that exists at law or equity for any contract, such as fraud, duress, or unconscionability. Doctor’s Assocs. Inc., v. Casarotto,517 U.S. 681, 687 cert. denied, 534 U.S. 1133 (2002).

 

Courts should give deference to these Congressional findings and directives when determining the enforceability of the parties’ arbitration agreements. See Simula, 175 F. 3d at 719 (holding that the FAA “reflects Congress intent to provide for the enforcement of arbitration agreements within the full reach of the Commerce Clause”).
 

 

8. 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). 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)…"

 

10.  The Arbitration Provision does not violate public policy. As previously discussed, both federal and Arizona courts have expressed a public policy favoring arbitration. Volt, 489 U.S. at 475-76; City of Cottonwood, 179 Ariz. at 189. The Randolph court agreed that the Arbitration Provision does not violate public policy: Arbitration clauses are construed liberally and any doubts about whether a matter is subject to arbitration are resolved in favor of arbitration.” City of Cottonwood v. James L. Fann Contracting, Inc., 179 Ariz. 185, 189, 877 P. 2d 284, 288 (App. 1994).
 

11. 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 ______ of October, 2015


 
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