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@LunarMom you motion looks pretty good, but I didn't see the agreement you were using.  Make sure in the motion where you quoted the agreement, it is exactly what the agreement you have says word for word.  Also I read up there that they agree to pay JAMS fees in that agreement?  If so add that to your motion, quote it and ask that portfolio initiate JAMS proceedings or pays you the 250.00 in up front fees so you can.  

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Make clear in your MTC and order that the Plaintiff is to initiate with JAMS which under their consumer rules also has them stuck paying the $250 whether it's in the cardmember agreement or not. Cite Texas caselaw for that covered earlier in the thread-

http://www.creditinfocenter.com/community/topic/328024-portfolio-recovery-assoc/?do=findComment&comment=1346820

That will make one less burden for you to meet since some of these creative JDBs convince the Judge you never initiated so you waived your right to arb. No basis for it but if a Judge believes it and a defendant is caught unprepared, they may be back here wondering what happened.

 

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4 minutes ago, CCRP626 said:

Make clear in your MTC and order that the Plaintiff is to initiate with JAMS which under their consumer rules also has them stuck paying the $250 whether it's in the cardmember agreement or not. Cite Texas caselaw for that covered earlier in the thread-

http://www.creditinfocenter.com/community/topic/328024-portfolio-recovery-assoc/?do=findComment&comment=1346820

That will make one less burden for you to meet since some of these creative JDBs convince the Judge you never initiated so you waived your right to arb. No basis for it but if a Judge believes it and a defendant is caught unprepared, they may be back here wondering what happened.

 


Here is what she has, would you change the case law? 

 

MOTIONTOCOMPELPRIVATE1.pdf

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@Cliff2009 I noticed in Linda's MTC under paragraph 6 it has all the odd website formatting with hyperlink code to Cornell that needs edited. Some of those cases like the Supreme Court ones are also now cited differently if checked in Google Scholar.

I would add a line 7 making clear the burden is on Plaintiff to initiate with JAMS and add that Texas Supreme Court caselaw. The JAMS Consumer Rules have the payment provision.

There is no order attached there. Will the Judge draft that? Any Texas requirements for motions, maybe in the local rules to have points and authorities and such? If so, everything is there, just need to format differently.

 

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5 hours ago, CCRP626 said:

@Cliff2009 I noticed in Linda's MTC under paragraph 6 it has all the odd website formatting with hyperlink code to Cornell that needs edited. Some of those cases like the Supreme Court ones are also now cited differently if checked in Google Scholar.

I would add a line 7 making clear the burden is on Plaintiff to initiate with JAMS and add that Texas Supreme Court caselaw. The JAMS Consumer Rules have the payment provision.

There is no order attached there. Will the Judge draft that? Any Texas requirements for motions, maybe in the local rules to have points and authorities and such? If so, everything is there, just need to format differently.

 

By cited differently do you mean different links? 

I tried to help her find samples but it looks like that is how they format court docs.  http://www.formsworkflow.com/d70860.aspx?partnercode=Justia 

Don't know about an order. Also, would you not file an answer also?
 

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@Cliff2009 No links. This is how it currently appears-

6. 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) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , http://www.law.cornell.edu/supct-cgi/get-us-cite?546+440"] 546 U. S. 440'>"http://www.law.cornell.edu/supct-cgi/get-us-cite?489+468"] 489 U. S. 468'>"http://www.law.cornell.edu/supct-cgi/get-us-cite?489+468"] 489 U. S. 468, 478 (1989) ."

 

I think this is how it should-

6. The Supreme Court Ruling, decided April 27, 2011, AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011). , 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. 63 (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 (2006),  Volt Info. Sciences, Inc. v. Bd. of Trustees of Leland Stanford Jr. U., 489 U.S. 468, at 478 (1989).

 

Rules 500-508 covers debt claim cases in JP court. http://www.txcourts.gov/media/1084233/Texas-Rules-of-Civil-Procedure.pdf

they say answer or otherwise appear to avoid default judgment. A general denial answer is fine (502.5) denying all plaintiff's allegations without specifying the reasons. I would think a MTC Arb would count as otherwise appearing so that on its own sounds like enough. I wouldn't have a problem filing both if the cost is the same. Can't find that info so I'd probably just call the clerk.

http://www.collincountytx.gov/justices_peace/Documents/defendants_answer.pdf

"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. "

then add as an affirmative defense, defendant claims private contractual arbitration.

Local Rule 2.7 puts a three day before trial cutoff for motions, so if you only filed an answer and the Plaintiff is still around it's time to use your MTC Arb if you haven't yet.-

http://www.collincountytx.gov/justices_peace/Documents/JP LOCAL RULES -2014.pdf

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@LunarMom you can bring up they shouldn't have a mediation session since you're going to arbitration under the FAA. Let them know within 10 days.

http://www.statutes.legis.state.tx.us/Docs/CP/htm/CP.154.htm

Any party may, within 10 days after receiving the notice under Subsection (a), file a written objection to the referral.

Except as provided by agreement of the parties, a court may not order mediation in an action that is subject to the Federal Arbitration Act (9 U.S.C. Sections 1-16).

"Court" includes an appellate court, district court, constitutional county court, statutory county court, family law court, probate court, municipal court, or justice of the peace court.

 

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@LunarMom unless the clerk has a form, do something like a Motion for Withdrawal from Mediation. Case isn't appropriate for mediation pursuant to Tex. Civ. Prac. & Rem. Code Ann., Section 154.001, et seq.  Pursuant to Sec. 154.022 (b), Defendant has filed her written objection in a timely manner. Point out you have filed or will be filing your Motion to Compel Private Contractual Arbitration under an agreement governed by the Federal Arbitration Act. Under Sec. 154.021 (c) Except as provided by agreement of the parties, a court may not order mediation in an action that is subject to the Federal Arbitration Act (9 U.S.C. Sections 1-16).

 

At the bottom of their form it says "Encl: Dismissal". What was included?

 

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15 minutes ago, LunarMom said:

 spoke the person that sent the last correspodance.  She said I could file something stating that I don't agree with pre-mediation but it won't change anything and  if I don't show up I'll lose.  I am past frustrated. 

I would do as @CCRP626 said and fight it based on your MTC but be prepared to still go to mediation and fight. 

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@LunarMom you spoke with a clerk, they don't make that decision. A Judge would review your Motion. If you check the statute out, about the only thing that gets you out of mediation is FAA governed arbitration. I'm sure a lot of people call them trying to get out of mediation but don't have the qualifying exclusion you do.

 

 

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I spoke with a family friend, that is an attorney, yesterday. She advised me to send a letter to Portfolio saying "I dispute any amounts you allege I owe you and demand strict proof thereof.  If I do not hear back from you within 30 days, I will take that as your acknowledgment that I owe you nothing." Is this correct? Will this anger the JP since he is pushing the pre-court mediation?

 

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2 hours ago, LunarMom said:

I spoke with a family friend, that is an attorney, yesterday. She advised me to send a letter to Portfolio saying "I dispute any amounts you allege I owe you and demand strict proof thereof.  If I do not hear back from you within 30 days, I will take that as your acknowledgment that I owe you nothing." Is this correct? Will this anger the JP since he is pushing the pre-court mediation?

 

 

That only works when you get a letter from them before a suit, once sued Debt Validation no longer applies. You are already on the right track, you just need to deal with a few of the hurdles they will use to try and scare you.  If you follow @CCRP626s advice, you have a good chance of getting it into arb. Even if the judge denies it, I imagine there is an appeals process. 

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2 hours ago, LunarMom said:

I spoke with a family friend, that is an attorney, yesterday. She advised me to send a letter to Portfolio saying "I dispute any amounts you allege I owe you and demand strict proof thereof.  If I do not hear back from you within 30 days, I will take that as your acknowledgment that I owe you nothing." Is this correct? Will this anger the JP since he is pushing the pre-court mediation?

 

 

I hope your friend never gets sued.   If she did and sent that letter instead of responding to the lawsuit, she'd be on her way to a default judgment.

As @Cliff2009pointed out, such a letter is not valid once you've been sued.  In fact, it's only valid if you send it within 30-days of receiving a collection letter that contains the 30-day validation notice.   In addition, a debt collector does not have to respond within 30 days of receiving a validation request.  He can take as long as he wants to validate but cannot attempt to collect again until he validates the debt.

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@LunarMom that mediation date isn't until mid-November. It sounds like you've filed your answer and/or MTC Arb. Is a hearing date set on the MTC or any other date set? When you drop off your no mediation motion before the 10 day period is up, that would be something to inquire about.

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7 hours ago, CCRP626 said:

Is a hearing date set on the MTC or any other date set?

Justice Court doesn't work that way in Texas.  Once the Defendant answers a pre-trial hearing date is set.  Any motions already filed are heard at that time.  If the matter cannot be settled at pre-trial then a trial date is set and at that time both sides can ask the court to order discovery to be done before the trial.  

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