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@CCRP626

This is justice court.  I found the texas arb code, and read all of that.  I am not sure want it means by making application.  Does just mean electing it like @texasrocker stated.  He had stated to answer with a general denial, and state that I would like to elect arbitration in my answer. & to wait on the MTC, which is what I NOW plan to do.  I wish Texas gave you more time to answer.  I am overwhelmed trying to figure out how to answer. 

In a general denial, do I need to put an affirmative defense? In my case, what would you put as an affirmative defense?

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Look at those rules and the answer example link posted a bit earlier. General Denial and Affirmative Defenses are two different things. I think you're pretty much there. Just fine tune this and get it into court by the deadline. Basically what you posted but make sure #2 meets a general denial. You can always amend later if needed. The main thing is you want to leave court with an order for this to go to arbitration.

The reason I say also include Texas Arb Code is if only FAA is referenced, the appeal procedure is usually different.

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10 minutes ago, PAGRN said:

I am not sure want it means by making application.

Motion to Compel Arbitration if the answer you prepared isn't enough.

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Don't overthink.

Answer with Affirmative defense is probably less than  one page, especially if you do general denial.

Just as complaint is merely a general notice as to plaintiff's case, your answer with affirmative defense is just a general notice as to your side of the case. Unless a TX hand tells you different, for now, file something like the following, and concurrently, as a separate filing, your MTC. Serve plaintiff with copies of both filings.

 

IN THE CIRCUIT COURT OF THE STATE OF TEXAS IN AND FOR HOUND DOG COUNTY

PLAINTIFF NAME                                                                                                                                                               Case No. 123

v.

DEFENDANT NAME

 

ANSWER WITH AFFIRMATIVE DEFENSE

Defendant XXX answers the Complaint of Portfolio Recovery Associates LLC, and in response to each numbered paragraph states:

1.  Without knowledge.

2. Admit.

3. Deny

etc.

AFFIRMATIVE DEFENSE

9. Private contractual arbitration.

10. Defendant concurrently filing Motion to Compel Private Contractual Arbitration.

RESPECTFULLY SUBMITTED this xx March 2016

                                                                                                      __________________________________________ Name, Defendant

 

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Why are you making it so hard on yourself?

Type this in the same format as the Plaintiff's Original Petition of which you were served:

"Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and every, all and singular, of the
plaintiff's allegations.

Defendant has elected private contractual arbitration with JAMS pursuant to the terms of the governing credit card agreement."     

Enclose a copy of said credit card agreement.

File it with the court before the deadline and send a copy via certified mail to the attorney's office that filed the lawsuit.   Talk to someone in the arbitration section here and learn about everything you need to prepare for.

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@fisthardcheese

8 hours ago, fisthardcheese said:

  We have seen many people in FL be denied their MTC due to the fact that they simply filed an answer and submitted to the jurisdiction of the court.  That is one state where simply filing an answer can derail a MTC, so I have been advising FL folks to always MTC first if their choice is going to be arbitration.

Yes, people should go ahead and file a MTC, but in FL , the filing of an answer is acceptable IF arbitration is raised in the answer.

 "Filing an answer without claiming the action should be referred to arbitration" is inconsistent with asserting an arbitration right and "waives the right to arbitrate." Bland v. Green Acres Grp., 12 So.3d 822, 824 (Fla. 4th DCA 2009).

 

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1 hour ago, BV80 said:

"Filing an answer without claiming the action should be referred to arbitration" is inconsistent with asserting an arbitration right and "waives the right to arbitrate." Bland v. Green Acres Grp., 12 So.3d 822, 824 (Fla. 4th DCA 2009).

Looking into that case and the underlying cases it's based on, the flaw is not the defendant answering without indicating arbitration but the defendant decides to enter counterclaims in the answer for the court to decide. The other problem for that defendant was "Like any other contract provision, though, arbitration may be waived before suit is even filed if "under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right."

A defendant answering then entering discovery to be provided an agreement should also not waive arbitration if the defendant doesn't know arbitration is part of the agreement although a Plaintiff would probably like to use the phrase "filing an answer without claiming the action should be referred to arbitration is inconsistent with asserting an arbitration right and waives the right to arbitrate."

I noticed the cases also state it's apparent a Plaintiff waives their right to arb merely by bringing the case in court but they like to write their cardmember agreements with phrasing that they can move them to arbitration when it's in their benefit.

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@CCRP626

Where did it say that Bland filed counterclaims? 

My post was based upon the suggestion that in FL the filing of an answer can waive the right to arbitrate.  I cited precedent that shows that's not the case. 

 

 

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2 minutes ago, BV80 said:

Where did it say that Bland filed counterclaims? 

My post was based upon the suggestion that in FL the filing of an answer can waive the right to arbitrate.  I cited precedent that shows that's not the case. 

The underlying cases that piece of the Bland decision come from do. Bland had many things going against him though which the dissenting judge picked apart. They even tried to say years of settlement negotiations in the past without any mention of arb waived his rights. As long as the answer doesn't attack the merits of the case, answering without indicating arb in that answer doesn't give away your rights to arb in Florida. The dissenting Judge has an interesting read.

 

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@CCRP626

I understand all of that.   The case law I cited was merely to point out that, unlike previously suggested, filing an answer does not waive the right to arbitrate.

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@BV80 found this case which is pretty interesting since it's not only Pro Se but he got an appeal court to uphold his use of counterclaims as not waiving his rights to arbitration after the trial court tried to turn him down through every stage from Motion to Dismiss and Motion To Compel.

Price v. Fax Recovery Systems, Inc., 49 So. 3d 835 - Fla: Dist. Court of Appeals, 4th Dist. 2010

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@texasrocker

 As I've said to other TX OP's, no  one here knows TX collection law and procedure like you do.   I know your other jobs keep you busy.  Thank you for making time to post here.  

@PAGRN   Do whatever texasrocker tells you.  He has helped many OPs win their cases here without arbitration.  But it's up to you to decide whether to arbitrate or litigate your case .  And stay calm and focused.   You're  going to be all right.

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Took @texasrocker advice.  Answer is in & copy mailed to attorney.  Had to drive through a tornado warning to get there, but I can breathe and sleep tonight.  Then figure out the next step!! Thanks for all of your awesome support @texasrocker & others.  It is really appreciated. 

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@CCRP626

On 3/6/2016 at 6:44 PM, CCRP626 said:

@BV80 found this case which is pretty interesting since it's not only Pro Se but he got an appeal court to uphold his use of counterclaims as not waiving his rights to arbitration after the trial court tried to turn him down through every stage from Motion to Dismiss and Motion To Compel.

Price v. Fax Recovery Systems, Inc., 49 So. 3d 835 - Fla: Dist. Court of Appeals, 4th Dist. 2010

I just read the ruling (I should have read it before).   The reason the court ruled Price didn't waive the right to arbitrate is because, before answering the complaint and asserting counterclaims, he filed a motion to dismiss and compel arbitration and also included arbitration as a defense when he did file an answer.

"The only question in this case is whether Price has waived his arbitration right by filing his counterclaim.   We hold that he did not because Price properly asserted his right to arbitrate by filing both a motion to dismiss and a motion to compel arbitration prior to filing his responsive pleading and counterclaim, and again asserted his right to arbitrate in the form of an affirmative defense."

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