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JAMS case closed for failure to pay retainer..file a MTD?


bonedaddy77
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Here is my situation in a nutshell. 

Took OC and CA to JAMS following a suit filed at end of 2013. I filed my MTC for arb immediately after the suit but don't believe it was ever ruled on and the OC willingly followed me into arb. Had the arbitration hearing in 2/2015 and they were given an award which I promptly appealed.  They took very long time to pay the initial case management fees for the appeal but finally did 10/2015 and then a bill for retainer was sent out. After a number of notices and then a final notice they have until end of March to pay or case will be closed.

I'm trying to see if I can still file a motion to dismiss or if I should just let it go since they can no longer pursue any legal action against me since arb was elected. I'm in FL

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14 hours ago, bonedaddy77 said:

Here is my situation in a nutshell. 

Took OC and CA to JAMS following a suit filed at end of 2013. I filed my MTC for arb immediately after the suit but don't believe it was ever ruled on and the OC willingly followed me into arb. Had the arbitration hearing in 2/2015 and they were given an award which I promptly appealed.  They took very long time to pay the initial case management fees for the appeal but finally did 10/2015 and then a bill for retainer was sent out. After a number of notices and then a final notice they have until end of March to pay or case will be closed.

I'm trying to see if I can still file a motion to dismiss or if I should just let it go since they can no longer pursue any legal action against me since arb was elected. I'm in FL

Please keep this board advised of the disposition of your case.  It may have happened, but I don't recall any OP posting that they had appealed an arbitrator's award.  Sounds like your decision to appeal the award, therefore upping the plaintiff's costs, is working for you.  You're doing very well for yourself.   Please keep us informed.

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10 hours ago, debtzapper said:

Please keep this board advised of the disposition of your case.  It may have happened, but I don't recall any OP posting that they had appealed an arbitrator's award.  Sounds like your decision to appeal the award, therefore upping the plaintiff's costs, is working for you.  You're doing very well for yourself.   Please keep us informed.

I'll keep the board updated on how it goes. I always planned on doing the appeal should the initial arbitration go all the way. The initial arb cost them close to $20K so you can imagine the cost to do the appeal with 3 arbitrators. 

I was mainly posting the question to see what procedure would be should case be closed in JAMS from the non payment. Looks like using that with a motion to dismiss should hopefully do the trick.  

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I think you have a problem if the court never ruled on your MTC.  Without a granted MTC the court case is still just pending, correct?  So they don't HAVE to pay JAMS.  They will just go back to court and file a summary judgement.  You need to get a hearing on the MTC right away and make sure it is granted by the court.  That is the only way to protect yourself and force them to pay the Tripple JAMS fee for the appeal or settle with you.

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On March 26, 2016 at 10:19 PM, fisthardcheese said:

I think you have a problem if the court never ruled on your MTC.  Without a granted MTC the court case is still just pending, correct?  So they don't HAVE to pay JAMS.  They will just go back to court and file a summary judgement.  You need to get a hearing on the MTC right away and make sure it is granted by the court.  That is the only way to protect yourself and force them to pay the Tripple JAMS fee for the appeal or settle with you.

From my understanding once in arbitration no further litigation can occur on the lawsuit. The MTC arb is to force them into complying with arb clause of the contract. In my case they willfully followed me into arb and paid the initial case management fee for the appeal. Also they never filed an objection to that MTC.

if they don't pay the retainer then JAMS case will close.  They would of had there chance to continue arb but decided not too

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  • 1 month later...

My case has officially been closed by JAMS for lack of payment. I'm thinking I'll just let the court case sit for a while and keep an eye on it. In the meantime will try and draft up some kind of motion to dismiss based on them delaying the contractual arbitration and case being closed.

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This does not seem like a good time to "wait and see".  If you do not act, and they act first, everything you can do will be reactionary to their moves.  You do not want that.  You want to get out in front of this so that any hope of them trying to bypass contractural obligations will fail.

Keep in mind, if you can show that the credit agreement has an arb clause, then no matter what happens, the OC and CA are obligated as a matter of law to take the dispute to arbitration.  This includes going through the appeals process that arbitration allows, which you tried to do.  Since they have refused to comply by not paying the fee, you can point that out to the court and motion for dismissal with prejudice.  If they intend to fight it out, they would have to do it in arbitration.  They walked away from that.  So, they should not be permitted to go back into court and try to fight it out there.  Put the nails in the coffin on this one, don't sit back and wait for them to do something that could cause a bigger mess. 

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@bonedaddy77 what does the cardmember agreement say about arbitration appeals? If it didn't say anything and the Plaintiff was stupid enough to agree to go into JAMS optional appeals, the award was no longer valid the minute you filed (Section C). If they would have just taken their arb award back to court and followed the FAA, they would have had it, too late now for them.

 

 

 

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2 hours ago, CCRP626 said:

@bonedaddy77 what does the cardmember agreement say about arbitration appeals? If it didn't say anything and the Plaintiff was stupid enough to agree to go into JAMS optional appeals, the award was no longer valid the minute you filed (Section C). If they would have just taken their arb award back to court and followed the FAA, they would have had it, too late now for them.

 

 

 

Below is from card member agreement. I rejected the JAMS optional appeal process for anew arb with the 3 arbitrator panel. They paid the case management fee and then received retainer bill for $25K. They balked that it was too high and JAMS lowered to $15K. They still did not pay it. The original arbitration hearing was back in February 2015.

The arbitrator’s award
shall be final and binding, except for any right
of appeal provided by the FAA; however, either
party shall have 30 days to appeal that decision
by notifying the arbitration organization and
any other parties in writing. The organization
will then appoint a three-arbitrator panel which
shall consider anew any aspect of the decision
objected to by the appealing party.
The panel
shall issue its decision, by majority vote, within
120 days of the appealing party’s written notice

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I would be filing a motion for sanctions and dismissal with prejudice.  I would inform the court that Plaintiff has failed to complete the arbitration case as ordered by the court.  I would include the JAMS letter of closing the case due to Plaintiff's failure to pay as my exhibit.  I would ask the court to sanction Plaintiff and ask as part of the sanctions the case be dismissed with prejudice and to award defendant all costs including any fees paid to JAMS for the arbitration.

Sitting back and doing nothing is the very last thing I would ever do.

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The one catch with my case is the MTC was never actually ruled on and they willingly followed me into arbitration. Wouldn't be able to go for the sanctions for violating court order. Have been searching for good example of a motion to dismiss that I could use as a base but not finding any that involved arbitration.

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1 hour ago, bonedaddy77 said:

The one catch with my case is the MTC was never actually ruled on and they willingly followed me into arbitration. Wouldn't be able to go for the sanctions for violating court order. Have been searching for good example of a motion to dismiss that I could use as a base but not finding any that involved arbitration.

I am pressed for time.  See if these links help:

https://www.google.com/?gws_rd=ssl#q=florida+motion+to+dismiss+for+failure+to+arbitration

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14 hours ago, bonedaddy77 said:

The one catch with my case is the MTC was never actually ruled on and they willingly followed me into arbitration. Wouldn't be able to go for the sanctions for violating court order. Have been searching for good example of a motion to dismiss that I could use as a base but not finding any that involved arbitration.

Oh right.  Now I remember.  That is the corner you paint yourself into when you don't follow through.

I suppose you need to ask for a hearing to rule on your MTC, then.

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I assume your cardholder agreement has wording to the effect that neither side can litigate in the courts once either side elects arbitration?  Even if the court doesn't grant your MTC at this point (or continues to ignore it), if the plaintiff tries to do anything other than dismiss the case, you should be able to oppose whatever they try on the grounds that you've elected arbitration and that precludes further litigation in the court.  Your arbitration election didn't have to be sanctioned by the court.

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On 5/21/2016 at 8:24 PM, hades01 said:

I assume your cardholder agreement has wording to the effect that neither side can litigate in the courts once either side elects arbitration?  Even if the court doesn't grant your MTC at this point (or continues to ignore it), if the plaintiff tries to do anything other than dismiss the case, you should be able to oppose whatever they try on the grounds that you've elected arbitration and that precludes further litigation in the court.  Your arbitration election didn't have to be sanctioned by the court.

Yep my agreement has that. It is my understanding that they are pretty much out of luck and this case would eventually be dismissed because of lack of prosecution if they don't file anything. I'd like to be preemptive and get it dismissed before then. May find a local NACA attorney that could help me form at solid MTD.

Significance of Arbitration
IF ARBITRATION IS CHOSEN BY ANY PARTY
WITH RESPECT TO A CLAIM, NEITHER
YOU NOR WE WILL HAVE THE RIGHT TO
LITIGATE THAT CLAIM IN COURT OR HAVE
A JURY TRIAL ON THAT CLAIM. FURTHER,
YOU AND WE WILL NOT HAVE THE RIGHT
TO PARTICIPATE IN A REPRESENTATIVE
CAPACITY OR AS A MEMBER OF ANY CLASS
OF CLAIMANTS PERTAINING TO ANY CLAIM
SUBJECT TO ARBITRATION.

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  • 2 weeks later...

Wondering if I should go the route of MTD for lack of prosecution. There have been no active filings in over a year and the case wasn't officially stayed since my MTC arb was never ordered on. I would also include that the plaintiff failed to follow through with the arbitration which was closed for lack of payment including the JAMS notice as an exhibit. Then also include the card member agreement citing the clause that once arbitration elected the claims can no longer be litigated on. This case has been open since 11/2013

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@bonedaddy77

Based upon Rule 1.420(e), the court could send a notice to the plaintiff that the lawsuit is going to be dismissed unless the plaintiff responds.  

Read the following ruling.  It appears that you have to be careful if you're the one to motion to dismiss.

https://scholar.google.com/scholar_case?case=7435949370893453608&q=%22DRD+Marine+Corp.+v.+BYRD+TECHNOLOGIES%22&hl=en&scisbd=2&as_sdt=4,10

Perhaps @LawKitty will pop in.

 

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