Chills22

Sued By Capital One in California

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2 minutes ago, CCRP626 said:

@Coffee_before_tea there was mention of a $750 AAA bill earlier. I'm not sure how one that cheap came about although they do discount if parties settle within a certain amount of time.

I think that's a common price in CA and also I don't think you can find the fee schedule for CA, or statistics on arb (from what I have heard) Granted I don't research arb or care too. As, I stated I will be happy to assist if you end up in trial, but won't be of much use if someone wants arb.

I honestly believe Calawyer would strongly recommend arb in CA instead of the opposite if it were as stated here in CA.

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Omg.  This is one of the few disadvantages to this site:  People starting unrelated, or quasi-related conversations in peoples' threads.  Almost nothing in this thread is actionable advice and it's just going to confuse the OP more.

To the OP:

You might want to watch this fellow's videos:  https://consumerlawcoach.com/defending-collection-lawsuit-california/introduction/course-overview/

I haven't watched them but I saw someone else say they were a good overview of the general lawsuit process, but most of it would be relevant if you go the court, as opposed to the arbitration, route.

If you want arbitration, your contract has to have an arbitration provision with AAA or JAMS in it, and the contract you need is the most recent contract prior to your date of default, not the original contract from when you opened the account.  My understanding is there can be an exception to this if there's a survivability clause.  This might be relevant because my understanding is that Cap1 no longer has an arbitration clause in their current contracts.  But this little caveat is outside my experience.  You may want to consult with your local legal aid office to get an opinion if you can.

The 'master resource' for arbitration is this thread: 

Linda has samples of everything you need, but the important things to keep in mind are the following:

1)  Send an 'arbitration election letter' (see the sample in Linda's thread) to the opposing attorney prior to filing your motion to compel, or indeed before doing much of anything.  Send it CMRRR.

2)  You must submit an answer before the deadline.  Use the ready-made form from the court's website and go with a general denial if you can (that is, if the complaint isn't verified).  You can use as an active defense 'Lack of jusidication as Defendant has elected contractual arbitration pursuant to Plaintiff and Defendant's binding contract, which precludes either party from litigating in Court', or something to that effect.  Attach a copy of your letter of arb election and return receipt.

3)  Now you've elected arbitration and you've got your answer ready, so now you can prepare your motion to compel arb.  You can more or less use the sample from Linda's thread, but it is not formatted in a way that conforms to California's requirements.  Anon Amos mentioned earlier that motions in California have to have a Notice of Motion, Memorandum of Points and Authorities and a Conclusion.  This isn't complicated, it basically just means typing in those section headings in the appropriate places in Linda's sample.  If this is something you want to do, pm me and I'll send you the version I used.  Don't worry about all the Verification by Affidavit stuff in Linda's thread; you don't need that in California, just Declarations that you sign and don't have to be notarized.

Filing it can be a little more complicated depending on where you live.  Either consult a legal aid office, read your court's local rules, or see if someone here is familiar with your jurisdiction.  If you live in Alameda County, which is its own special snowflake, say so and I can tell you how to reserve a motion date here.

This should be enough to keep you busy for a while.  Also, don't forget about the fee waiver application if you qualify for it.

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4 hours ago, Chills22 said:

Did Cap One take you to arbitration or did they dismiss?

Their "Litigation Specialist" kept sending me letters asking me to initiate or to continue in court. Since my judge said either party MAY initiate, I just didn't get around to it. After six months the court dismissed the case due to lack of action. 

 

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2 hours ago, Anon Amos said:

I think they end up with discounted filing fees from what's posted. I really don't think the arb pans out for people here in Cali like it may in other states.

To answer some of the questions:

I was sued by CACH and after a long battle they dismissed.

In our courts you will receive a lengthy list of arbitrators and mediators and the judge and lawyers are happy to take any one, you choose (I got a lot of pressure to choose one, then the judge was trying for the mandatory court arb or mediation,  I had to constantly object and fight the judge for a jury trial (which I wanted) the lawyer then made a a bunch of arguments for AAA arb (stating they shouldn't have to go to trial and fly witness etc) the judge agreed and they both fought me on that for a while, then in lieu of the arb I had to go to 2 mandatory settlement hearings, and then pay jury fees to get the jury (shortly after they dismissed with prejudice).

 

If the court provided them, I think that is different than private contractual arbitration mentioned in the Card agreement. 

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Hello everyone,

The court finally scheduled a Civil Case Management Conference  which is at the beginning July. I am nervous about this one since it is an original creditor and need some advice on how I should proceed. 

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37 minutes ago, Cliff2009 said:

I would still push for Private Arbitration per the contract. 

I think I agree. At this point what steps should I take? 

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I sent the letter to the attorney stating that I am electing arbitration through JAMS. I have not yet been able to file my motion with the court. We are supposed to have a Case Management Conference on Friday. Can anyone tell me how I can ask for a continuance of that conference so that I have more time to file that motion?  

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Sorry I didn't see the shout out earlier.

Do you have the cardmember agreement for the year that you allegedly breached?  The arbitration provision in that agreement will tell you where and how you may arbitrate the claim.

As to whether you should arbitrate, I don't have a strong opinion either way.  In my mind, it depends on the County you would be litigating in and the Judge to which the case is assigned.   If the hope is that it will be too expensive, however, there is no hard and fast rule.  It will depend on the amount at issue and the person at Cap One that is overseeing the case. 

If you google "California motion to compel arbitration" you will find a bunch of exemplars.  You may even be able to find one with Cap One.  Here is something I found that was prepared by an expensive law firm.  Way over the top for what you need but it will give you an idea.  http://amlawdaily.typepad.com/Motion %26 Ps%26As.pdf

 

It is probably too late to try to reschedule the CMC.  You will have to just go there and say that you will have to file a motion to compel arbitration (if that is what you decide) if plaintiff won't do so voluntarily.

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Hello Everyone,

I wanted to provide an update and get some advice. I secured a motion date of 9/8 and filed all of my documents for a motion to compel arbitration (huge thank you to this board for giving me samples and helping me get through that!)

I was checking online today and the plaintiff just responded. They filed a Notice of Non-Opposition To Motion and Notice of Non-Appearance. Here is where it gets a little weird. Everything at the top of the filing is correct and all of the information there is correct. However, within the filing it says:

Notice is hereby given that the plaintiff Capital One does not oppose Defendant SHOULD BE MY NAME BUT IS THE NAME OF SOMEONE COMPLETELY DIFFERENT  Motion to Quash Service of Summons (Not the motion I filed. I filed a motion to compel arbitration). 

It then goes on to say that they will not appear on 9/8.   And finishes with: Plaintiff  hereby submits on the decision of the Defendant's motion, without oral argument.

Then there is a proof of service with all of my correct information. 

Any thoughts??

 

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You might want to prepare a proposed order compelling arbitration.  Submit it to Plaintiff for approval as to form and walk it to the hearing to give to the judge.  If you want to post something here or by PM, I will take a look at it.

 

Simple order:

 

You filed the motion on ___

Plaintiff didn't oppose

Court orders that this case be stayed and the matter submitted for arbitration at _______.

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If I do that should I prepare it to say dismissed instead of just stay? That would the ideal for me. I am hoping this doesn't actually go to arbitration. Also if I mail it to the Plaintiff and they do not respond do I still submit it to the judge? 

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As to dismissed or stayed, I think staying it is contemplated by CCP § 1281.4.

If Plaintiff doesn't respond by the time of the hearing, tell the court that you sent it to plaintiff on ____ for approval as to form and have not heard back.  The Judge will probably ask you to do it again.

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5 hours ago, Kevin Foreman said:

Since, I haven't changed my position. And the law in AZ is known to be the law. It seems like court here isn't bound to follow it as it doea not being challenged, so I go along with what works. 

I think you meant to post this in another thread.

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Here is the update and I need more help! My Motion to Compel Arbitration was granted. At that point I thought that the case would be stayed or dismissed. However, it wasn't and there was a Case Status Conference on 10/6 that I missed. Now I have another court date this Friday 11/3 for 1. Status Conference, 2. OSC- Non-Sanction. The judge wants to know why my answer shouldn't be stricken due to my failure to appear.

Is there any paperwork I need to complete? Or do I just go before the judge and say it was a misunderstanding because I thought the case would be stayed or dismissed?

Also, what is the purpose of the status conference? Doesn't Capital One just need to open a case in arbitration against me now that my motion has been granted? Does the court typically continue to track a case to make sure that this happens?

Thank you! 

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2 hours ago, Chills22 said:

Doesn't Capital One just need to open a case in arbitration against me now that my motion has been granted?

No.  YOU motioned for arbitration so you should have opened it when the MTC was granted.  I am very surprised Cap1 didn't oppose the motion because they removed arbitration from their card agreements in 2010.  If I were you I would open that case before they catch on.

2 hours ago, Chills22 said:

Does the court typically continue to track a case to make sure that this happens?

Yes.  Many defendants have motioned like you did simply to get the Plaintiff to fold.  Most do but many original creditors like Cap1 follow into arbitration.  If you don't open the case and force Cap1 to dismiss all together then the court can still hold a trial.

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23 hours ago, Clydesmom said:

No.  YOU motioned for arbitration so you should have opened it when the MTC was granted.  I am very surprised Cap1 didn't oppose the motion because they removed arbitration from their card agreements in 2010.  If I were you I would open that case before they catch on.

My agreement was from before this time when the arbitration language was still included. They actually filed a response saying that they didn't oppose the motion. It seems confusing to me that I would open an arbitration case. Isn't that like suing myself?  

23 hours ago, Clydesmom said:

Yes.  Many defendants have motioned like you did simply to get the Plaintiff to fold.  Most do but many original creditors like Cap1 follow into arbitration.  If you don't open the case and force Cap1 to dismiss all together then the court can still hold a trial.

Ok, so I don't think I have time to open an arbitration case before Friday do I just go and tell them that I am in the process?

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3 hours ago, Chills22 said:

It seems confusing to me that I would open an arbitration case. Isn't that like suing myself? 

No.  YOU requested arbitration so you need to start the case.  Search for threads on here about arbitration and how to do it.

3 hours ago, Chills22 said:

Ok, so I don't think I have time to open an arbitration case before Friday do I just go and tell them that I am in the process?

You can and pray that the court accepts it.

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3 hours ago, Chills22 said:

It seems confusing to me that I would open an arbitration case. Isn't that like suing myself?

Apples and oranges.  Opening an arbitration case is not necessarily the same thing as filing a lawsuit.  It can be if you are the one making claims, but in your case, you've demanded that the plaintiff's claims against you be heard in arbitration.  Since you made the election, it's on you to get the case open.

3 hours ago, Chills22 said:

I don't think I have time to open an arbitration case before Friday

??? Make a phone call to JAMS or AAA (whoever you're using) and tell them you want to open the case.  They will probably even do it without you having to pay anything.

I'm not sure what you thought you were getting in to, but several people here tried to steer you away from arbitration BECAUSE it was Capital One suing you.  You can expect them to follow you right in to arbitration and get the same judgment they would get if you never bothered to answer the lawsuit.

As I think about it, you might be better off abandoning your arbitration demand and moving ahead in court where CPP 96 & 98 can be used in your favor.  I would wait and see what California posters have to say because I don't know if there's a time limit to trigger those codes that you may have lost at this point.

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On 11/1/2017 at 8:11 PM, Harry Seaward said:

Apples and oranges.  Opening an arbitration case is not necessarily the same thing as filing a lawsuit.  It can be if you are the one making claims, but in your case, you've demanded that the plaintiff's claims against you be heard in arbitration.  Since you made the election, it's on you to get the case open.

??? Make a phone call to JAMS or AAA (whoever you're using) and tell them you want to open the case.  They will probably even do it without you having to pay anything.

I'm not sure what you thought you were getting in to, but several people here tried to steer you away from arbitration BECAUSE it was Capital One suing you.  You can expect them to follow you right in to arbitration and get the same judgment they would get if you never bothered to answer the lawsuit.

As I think about it, you might be better off abandoning your arbitration demand and moving ahead in court where CPP 96 & 98 can be used in your favor.  I would wait and see what California posters have to say because I don't know if there's a time limit to trigger those codes that you may have lost at this point.

For $2,500? I doubt they will. 

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59 minutes ago, Cliff2009 said:

For $2,500? I doubt they will. 

I know they will. 7 years ago they wouldn't but they've got plenty of time on their hands these days. Also, because there's no arbitration agreement here, OP can get slapped with Cap1's fees. 

Edit: I just saw where OP said he opened the account in 2002. It would be a crap shoot on the fees depending on how the arbitrator views the arb agreement survivability. 

In any case, I'm still sure they will follow him into arbitration. Why else would they file a "non-opposition" to his MTC?

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