Chills22

Sued By Capital One in California

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1. Who is the named plaintiff in the suit? Capital One

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

3. How much are you being sued for? $2,5XX

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

5. How do you know you are being sued? (You were served, right?) Papers left at my front door. 

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

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None that I recall recently. 

9. What state and county do you live in? California

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 2013

11. What is the SOL on the debt? To find out: 4 years

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

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes

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? 30 Days to Respond. The attorney just completed forms where they checked off boxes and xeroxed signatures. 

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Nothing at all. 

So it looks like I am being sued by a very aggressive OC and a very aggressive law firm. I was a good credit card customer for 11 years and when I hit a rough patch they refused to work with me and actually lied to me and screwed me over. My last payment is within the statute of limitations but I opened the account in 2002. I have a copy of the credit card agreement for that year and it does have an arbitration clause with survivability. Is my best bet to try to force this to arbitration? Will that make it more expensive for them than it is worth?   

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You may be able to use arbitration, that is how I beat Cap One. I have not read this thread but they talk about survivability. 

 

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1 hour ago, Cliff2009 said:

It would depend upon when the account was opened.

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Yes, the account was opened in 2002. The contract for that year is available online and it does have an arbitration agreement. 

Do I just respond without filing an answer and instead filing a motion to move to arbitration?

Would this require Capital One to pay more than the amount they are suing me for? 

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5 hours ago, Chills22 said:

Yes, the account was opened in 2002. The contract for that year is available online and it does have an arbitration agreement. 

Do I just respond without filing an answer and instead filing a motion to move to arbitration?

Would this require Capital One to pay more than the amount they are suing me for? 

Yes, for them to get started it will cost them more than you owe. Some will pay it but it is rare. Here is the order I did with Cap One. 

Send the attorney an "Arbitration Election" letter before fling an answer.  (see example here use wording form your agreement.) 

Then you want to file a Motion to Compel arbitration with the court at the same time you file your answer. 

This same thread has more, you may want to read the whole thread. 

http://www.creditinfocenter.com/community/topic/327447-johnson-mark-llc-vs-legal-resident-ut-civil-case/?do=findComment&comment=1340452

Now they will fight the agreement, etc, so you will need to be willing to do a little battle regarding the survival clause but you do have a chance of winning. 

Here was my case. 

 

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On 7/27/2016 at 6:02 PM, Chills22 said:

when I hit a rough patch they refused to work with me and actually lied to me and screwed me over.

Consider reporting that in a CFPB complaint.

On 7/27/2016 at 6:02 PM, Chills22 said:

Is my best bet to try to force this to arbitration? Will that make it more expensive for them than it is worth?   

The California posters on the board work wonders but if they don't chime in and give you court strategies consider arb which may get Cap One to dismiss. If Cap One wants to spend more than the debt to do arbitration, make sure their decision gets as expensive as possible for them. No documents only proceedings, request hearings. If they win, force them into the mandatory three member appeal which will run up the bill more and they'll have to pay all the preceding costs before that happens or their award goes away. JAMS mentions as soon as you file an appeal, the award is not final. AAA mentions at least a $6,000 administrative fee for an appeal then the three arbitrators are on top of that. JAMS should be even more, into the five figures. At any time if the arb bill isn't paid, there is no award to take to court to enforce.

Cap One doesn't have arb in their agreements currently. Would they want to spend all this money to do a one time arb case of low value? It's not like they'd want to make sure the bill is paid so they can stay in the arbitration firms good graces to come back and arbitrate on a regular basis. Even if they start they may just drop it after the bills pile up.

Make sure to get your MTC Arb approved with a court order. You don't want Cap One agreeing to go to arb so the MTC never happens then when they bail a court case is still open and everything's in limbo.

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I would think they should refuse to arbitrate before you motion the court to force them to, If they haven't told you they won't arbitrate yet, there's really no need to get the court involved in motions to compel. Also, in CA it is  a lot of work to file a motion. You have to pick a date that is on a motion day and also give them notice of the motion ( usually 15 days).  The motion must contain the notice, Memorandum of points and authorities, and a separate declaration.

I personally would make sure you respond to the complaint on time.

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So I should just send the attorney a letter saying that I am selecting arbitration?

If I file a general denial that doesn't prevent me from using arbitration because I have given the court jurisdiction?

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1 hour ago, Chills22 said:

So I should just send the attorney a letter saying that I am selecting arbitration?

At the very least. Then if they say "no" you would at least have more reason to ask the court to force them. You might contact the arb and see about initiating it, and also finding an arb clause in the terms.

Quote

If I file a general denial that doesn't prevent me from using arbitration because I have given the court jurisdiction?

The court could claim jurisdiction whether you like it or not. It is very important to answer or at least respond to the complaint on time whether you want to go to trial or arb. By not responding to it you are far more likely to get a default judgment against you are to land in arbitration.

If you did something to initiate arb, then if it would make you feel better you could add as an affirmative defense in the general denial that the court lacks jurisdiction because you are electing your right to initiate arb (assuming you do have one).

The court is not interested in hearing your case anyway, so if you can offer an alternative, such as you have initiated arb or at least requested it, the judge will probably be very helpful. I doubt it's that hard to get arb if you want it.

 

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15 hours ago, Chills22 said:

So I should just send the attorney a letter saying that I am selecting arbitration?

If I file a general denial that doesn't prevent me from using arbitration because I have given the court jurisdiction?

I would use the sample I posted below. You want to use the exact language from your agreement. You are "electing" arbitration.  I would also file a general denial but also a MTC arb. Hopefully more CA specific info is forthcoming. 

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18 hours ago, Anon Amos said:

I would think they should refuse to arbitrate before you motion the court to force them to, If they haven't told you they won't arbitrate yet,

The fact they filed a lawsuit is their refusal to arbitrate.

Quote

Hyundai AMCO America, Inc. v. S3H, INC., 232 Cal. App. 4th 572 - Cal: Court of Appeal
Arbitration can be refused without a formal demand ever having been made. Hyundai Amco's filing of a lawsuit rather than commencing arbitration proceedings as required by the agreement affirmatively establishes Hyundai Amco's refusal to arbitrate the controversy.

 

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1 hour ago, Coffee_before_tea said:

The fact they filed a lawsuit is their refusal to arbitrate.

 

Not necessarily. The fact they filed a lawsuit is their inability to collect on an alleged debt.  They never said they refused to arbitrate, in fact they were not even asked to arbitrate (as far as I know). Not filing in arbitration to start with isn't a refusal to arbitrate, and everyone has a right to the court if they feel they have  legitimate complaint.

They might file in court, then be asked to arbitrate and be happy to do so.

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3 hours ago, Cliff2009 said:

I would use the sample I posted below. You want to use the exact language from your agreement. You are "electing" arbitration.

I didn't read the sample (I'm sure it's good) but I would definitely do this

3 hours ago, Cliff2009 said:

 I would also file a general denial

Agreed 100%

3 hours ago, Cliff2009 said:

but also a MTC arb. Hopefully more CA specific info is forthcoming. 

I would definitely not do this at this time. I think it is premature at this point, and could be very irritating to the judge. You are answering the complaint and asking for arb. The judge could just award the arb without adding to his already busy motion hearing calendar. You never file a motion to compel anything in CA without sending meet and confer letters to plaintiff and trying to work  it out first.

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1281.7.  A petition pursuant to Section 1281.2 may be filed in lieu
of filing an answer to a complaint. The petitioning defendant shall
have 15 days after any denial of the petition to plead to the
complaint.
1281.2.  On petition of a party to an arbitration agreement alleging
the existence of a written agreement to arbitrate a controversy and
that a party thereto refuses to arbitrate such controversy, the court
shall order the petitioner and the respondent to arbitrate the
controversy if it determines that an agreement to arbitrate the
controversy exists, unless it determines that:
   (a) The right to compel arbitration has been waived by the
petitioner
1294.  An aggrieved party may appeal from:
   (a) An order dismissing or denying a petition to compel
arbitration.
   (b) An order dismissing a petition to confirm, correct or vacate
an award.
   (c) An order vacating an award unless a rehearing in arbitration
is ordered.
   (d) A judgment entered pursuant to this title.
   (e) A special order after final judgment.

In California, the arbitration provision may not require the consumer to pay the fees and costs incurred by the opposing party if the consumer does not prevail.

 

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34 minutes ago, Anon Amos said:

Not necessarily. The fact they filed a lawsuit is their inability to collect on an alleged debt.  They never said they refused to arbitrate, in fact they were not even asked to arbitrate (as far as I know). Not filing in arbitration to start with isn't a refusal to arbitrate, and everyone has a right to the court if they feel they have  legitimate complaint.

They might file in court, then be asked to arbitrate and be happy to do so.

It really begins with reading the contract language (do we have a contract to read?).  

In regards to the "refusal", this is the same thing ole Harry was incorrectly arguing about awhile back.  The act of filing a lawsuit, is in effect a refusal to Arbitrate.  The case I posted above specifically addresses this exact scenario.

The problem with waiting for a refusal, is they (cap1) doesn't have to respond to the Arb demand, nor do they have to explicitly refuse, at the same time the court case moves along with possible detrimental outcomes, including waiver of your right to Arbitrate, and summary judgment.

If Cap1 never filed the lawsuit, then I'd agree; otherwise, the FAA & the CA statute & case law should apply.  

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@Coffee_before_tea

The Hyundai decision is from the CA 4th Appellate district.  It's not binding on other districts within the state.  Hopefully, the OP is within that district, but if he's not, the decision would merely be persuasive.

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9 minutes ago, BV80 said:

@Coffee_before_tea

The Hyundai decision is from the CA 4th Appellate district.  It's not binding on other districts within the state.  Hopefully, the OP is within that district, but if he's not, the decision would merely be persuasive.

Well here's another case nearly identical in the 1st district.  There are other federal circuits that have determined the same.

 

Quote

GEORGE DON PEDRO'S GENERAL CONST. CO. v. Leong, Cal: Court of Appeal, 1st Appellate Dist., 2nd Div. 2016
A party can refuse to arbitrate impliedly—for example, by denying the existence of an arbitrable controversy. (See Loscalzo v. Federal Mut. Ins. Co. (1964) 228 Cal.App.2d 391, 395-396.) Another way is by filing a lawsuit, which "invoke (s) the protections and procedures of the court system" rather than an arbitral forum, and constitutes a refusal to arbitrate within the meaning of section 1281.2. (See Hyundai at pp. 574, 577-578.) Put simply, a defendant named in a civil lawsuit is not required to engage in the idle act of requesting the plaintiff to arbitrate before seeking an order compelling arbitration of a dispute already pending in court. Hyundai is directly on point.

 

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54 minutes ago, Coffee_before_tea said:

It really begins with reading the contract language (do we have a contract to read?).  

In regards to the "refusal", this is the same thing ole Harry was incorrectly arguing about awhile back.  The act of filing a lawsuit, is in effect a refusal to Arbitrate.  The case I posted above specifically addresses this exact scenario.

The problem with waiting for a refusal, is they (cap1) doesn't have to respond to the Arb demand, nor do they have to explicitly refuse, at the same time the court case moves along with possible detrimental outcomes, including waiver of your right to Arbitrate, and summary judgment.

If Cap1 never filed the lawsuit, then I'd agree; otherwise, the FAA & the CA statute & case law should apply.  

In my case with Cap 1 the Judge ordered that EITHER party may initiate arbitration. Cap 1 asked me several times to initiate because they said they do not initiate arbitration. Being that arbitration was granted via the judge, six months later the case was dropped due to inactivity. 

Here is the agreement in question. http://www.cardmemberagreements.org/wp-content/uploads/2012/08/2002-Capital-One-Cardmember-Agreement-with-JAMS.pdf It states that you can elect arbitration at any time, including "even if a claim is part of a lawsuit brought in court."

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@Coffee_before_tea

I did some research to find out if appellate court rulings were binding upon each other and found out it's not the case.  In my research, I found the Leong  ruling and noted that it was unpublished.   As a result, it would not even be persuasive.

That being said, perhaps @calawyer will weigh in and offer his opinion as to whether or not the OP should attempt to arbitrate.   CA posters have had great results in regard to dismissals with both OCs and JDBs. 

In regard to "ole Harry", no he was not incorrect.  Some courts have ruled that filing a lawsuit does not result in a waiver of the plaintiff's right to arbitrate.   His opinion about AZ courts nothing to do with CA courts.

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6 minutes ago, BV80 said:

@Coffee_before_tea

I did some research to find out if appellate court rulings were binding upon each other and found out it's not the case.  In my research, I found the Leong  ruling and noted that it was unpublished.   As a result, it would not even be persuasive.

That being said, perhaps @calawyer will weigh in and offer his opinion as to whether or not the OP should attempt to arbitrate.   CA posters have had great results in regard to dismissals with both OCs and JDBs. 

In regard to "ole Harry", no he was not incorrect.  Some courts have ruled that filing a lawsuit does not result in a waiver of the plaintiff's right to arbitrate.   That has nothing to do with CA courts.

It appears the appellate court opinions are binding on all trial courts, so Hyundai is binding.  Decisions of every division of every district of the CA Courts of Appeal are binding on all Superior Courts in California. (Auto Equity Sales, Inc., 57 Cal. 2d 450, 455)

You're correct that the OP needs to consider his options regarding fighting this out in court, or going for Arbitration.  This is an OC, so the odds of them having live witnesses & documentation are increased.  It's not the typical JDB scenario.

In regards to Harry being incorrect, If you can show me a case wherein a filed lawsuit, the Defendant needs to wait for an explicit "Refusal" (written or otherwise), before they can compel arbitration in court, then I'll retract my statement.  This was the crux of his argument (old news really, because he's changed his position on "waiting for refusal").

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1 hour ago, Coffee_before_tea said:

It appears the appellate court opinions are binding on all trial courts, so Hyundai is binding.  Decisions of every division of every district of the CA Courts of Appeal are binding on all Superior Courts in California. (Auto Equity Sales, Inc., 57 Cal. 2d 450, 455)

Good case law for superior courts.  However, if a lower court's ruling were to be appealed, it appears that the decision of one appellate district is not binding on another appellate district.

Additionally, because there is no "horizontal stare decisis" within the Court of Appeal, intermediate appellate court precedent that might otherwise be binding on a trial court (see Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937) is not absolutely binding on a different panel of the appellate court. In re Marriage of Shaban (2001) 88 Cal.App.4th 398, 409 [105 Cal.Rptr.2d 863].

In any case, think it's a good idea for calawyer to offer his opinion on whether or not the OP should MTC arbitration.

 

 

1 hour ago, Coffee_before_tea said:

In regards to Harry being incorrect, If you can show me a case wherein a filed lawsuit, the Defendant needs to wait for an explicit "Refusal" (written or otherwise), before they can compel arbitration in court, then I'll retract my statement.  This was the crux of his argument (old news really, because he's changed his position on "waiting for refusal").

You referenced Harry  in a CA lawsuit when his arguments were made in regard to AZ.   Whether or not he's "changed his position" is not applicable in this thread.

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1 hour ago, Coffee_before_tea said:

the Defendant needs to wait for an explicit "Refusal"

...

This was the crux of his argument

Incorrect. I always said an ignored arbitration demand is refusal. In case you're wondering,  that's the opposite of "explicit".

And I haven't changed my position. The law in AZ is the law. It seems courts here aren't bound to follow it and it hasn't been challenged, so I go with what works. I'm flexible like that. 

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