Jump to content

Motion to Compel Arbitration Why No Answer from Court?


yescats
 Share

Recommended Posts

I put in a Motion to Dismiss and Compel Arbitration 15 days ago and have heard nothing from the court. I have to answer in 20 days. Since it's Florida I didn't want to put in an answer till I heard of the Motion to Dismiss was decided. Do I have to ask for a hearing for something like this? Should I put in a Motion for Extension of Time before the 20 days runs out?

Thank you,

CM

Link to comment
Share on other sites

@yescats you need to contact the courthouse to see what needs to be done to have your motion heard, possibly putting courtesy copies in the Judge's clerk's hands for review prior to the hearing date. This has come up before for Florida defendants with each county having its own procedure. Find out when your appearance is supposed to be and take MTC copies (preferably court time stamped from when you filed) with you to show the Judge.

If you do answer, put in your arbitration as an affirmative defense and reference the MTC as well.

Link to comment
Share on other sites

5 hours ago, CCRP626 said:

@yescats you need to contact the courthouse to see what needs to be done to have your motion heard, possibly putting courtesy copies in the Judge's clerk's hands for review prior to the hearing date. This has come up before for Florida defendants with each county having its own procedure. Find out when your appearance is supposed to be and take MTC copies (preferably court time stamped from when you filed) with you to show the Judge.

If you do answer, put in your arbitration as an affirmative defense and reference the MTC as well.

There are no hearings scheduled. How would you get a copy into the judge's clerk's hand? BTW, I eFiled my Motion for Extension of Time today.

Link to comment
Share on other sites

@yescats read through this thread by mizzmarymack starting on page 3. This is what I mean for FL courts making a hearing a headache to get scheduled. You'll have to call the court to see their local scheduling procedure.

Which county is the case in and the name of the court on the complaint? If you talk with court personnel on the phone mention about your efile so they can look at that and maybe see if anything there needs changed to get a hearing on track. An extension of time should only be needed if you were not able to file something in time not if you filed long ago and aren't hearing any word back.

 

  • Like 1
Link to comment
Share on other sites

On 8/12/2016 at 9:04 PM, yescats said:

I put in a Motion to Dismiss and Compel Arbitration 15 days ago and have heard nothing from the court. I have to answer in 20 days. Since it's Florida I didn't want to put in an answer till I heard of the Motion to Dismiss was decided. Do I have to ask for a hearing for something like this? Should I put in a Motion for Extension of Time before the 20 days runs out?

Thank you,

CM

Actually, FL courts have held that an Answer alone will not waive your right to arbitrate.  Get your Answer in

  • Like 2
Link to comment
Share on other sites

The plaintiff put in for a hearing on my Motion to Compel Arbitration. Could you direct me to a good thread that would help me handle this. I assume they're going to object and keep it in court. 

If I put in some motions to dismiss is it possible to get the judge to hear those as well? Maybe I can get her to dismiss the case instead.

Link to comment
Share on other sites

That's good if you didn't have a hearing previously scheduled which could be considered waiving your right to arb. There is not much they can argue to deny your arb- not a valid agreement, you've waived your right to arb by litigating.
With an approved MTC Arb they can't appeal that until arb is complete, on the other hand with a denied MTC Arb you can appeal right away.

There's a difference between them scheduling a motion hearing and opposing your motion. If you don't get a written opposition within the allowed time prior to the hearing, point that out to the Judge if they start arguing on the hearing date. You knowing your arb agreement and court rules so you can point out valid areas will be the best homework.

Don't settle in the hallway prior to your hearing either when they try to tell you your motion isn't valid and so-on and you can save time by just signing the handy agreement they brought along.

Just so you don't get caught not following some rule of civil procedure, maybe post which court (small claims, etc.) and county, no personal detail.

What were you planning on including in these other Motions to Dismiss?

  • Like 1
Link to comment
Share on other sites

@yescats  I would go to the court house and get your motion set for a hearing.   Keep in mind that the mere filing of the Motion to Compel has no legal effect. The matter must be set for hearing and a ruling obtained and an order entered to give force and effect to the ruling.

It is advisable to bring an order with you to the hearing so the order may be entered immediately after the hearing. Orders that are not entered on the day of the hearing will invariably result in disagreements as to the rulings, arguments as to the form of the order and even further delays. Reasonable notice of the hearing must be given and the hearing must be coordinated with opposing council.   

So if you go to the court ask for a hearing, if they have one you can request your motion be heard at the same time.  Or call the plaintiff and ask when a convenient time for a hearing for them would be within the next 2 weeks.  At any rate, you need to notice a hearing in Florida.

  • Like 1
Link to comment
Share on other sites

On 8/21/2016 at 5:32 PM, CCRP626 said:

That's good if you didn't have a hearing previously scheduled which could be considered waiving your right to arb. There is not much they can argue to deny your arb- not a valid agreement, you've waived your right to arb by litigating.
With an approved MTC Arb they can't appeal that until arb is complete, on the other hand with a denied MTC Arb you can appeal right away.

There's a difference between them scheduling a motion hearing and opposing your motion. If you don't get a written opposition within the allowed time prior to the hearing, point that out to the Judge if they start arguing on the hearing date. You knowing your arb agreement and court rules so you can point out valid areas will be the best homework.

Don't settle in the hallway prior to your hearing either when they try to tell you your motion isn't valid and so-on and you can save time by just signing the handy agreement they brought along.

Just so you don't get caught not following some rule of civil procedure, maybe post which court (small claims, etc.) and county, no personal detail.

What were you planning on including in these other Motions to Dismiss?

 

Since I requested arbitration in my DV and they sued anyway could I motion for dismissal due to breach of contract? Any other ideas? They did validate but only sent a few bills and the contract. Nothing with a signature even though I asked for receipts because I was trying to verify identity theft. I also did a credit freeze, and had my driver's license flagged by the Attorney General's office reporting suspected ID theft. BTW it's in Broward County Court, Florida.

Link to comment
Share on other sites

27 minutes ago, yescats said:

 

Since I requested arbitration in my DV and they sued anyway could I motion for dismissal due to breach of contract? Any other ideas? They did validate but only sent a few bills and the contract. Nothing with a signature even though I asked for receipts because I was trying to verify identity theft. I also did a credit freeze, and had my driver's license flagged by the Attorney General's office reporting suspected ID theft. BTW it's in Broward County Court, Florida.

I doubt you can claim a breach of contract because, if the account is yours, the contract was breached when you stopped paying. 

Have you looked into setting a date for a hearing on your motion?

Link to comment
Share on other sites

1 hour ago, CCRP626 said:

The FAA and FL arbitration code (682.02 and .03)already has you covered. If it's in the agreement, they'll be going to arb unless you waive your right to arb.

 

Where in these sections does it say I'm entitled to arbitration? Do I have the correct sections? Are these the ones I should have with me in court?

 

682.02 Arbitration agreements made valid, irrevocable, and enforceable; scope.

(1) An agreement contained in a record to submit to arbitration any existing or subsequent controversy arising between the parties to the agreement is valid, enforceable, and irrevocable except upon a ground that exists at law or in equity for the revocation of a contract.
(2) The court shall decide whether an agreement to arbitrate exists or a controversy is subject to an agreement to arbitrate.
(3) An arbitrator shall decide whether a condition precedent to arbitrability has been fulfilled and whether a contract containing a valid agreement to arbitrate is enforceable.
(4) If a party to a judicial proceeding challenges the existence of, or claims that a controversy is not subject to, an agreement to arbitrate, the arbitration proceeding may continue pending final resolution of the issue by the court, unless the court otherwise orders.
(5) This section also applies to written interlocal agreements under ss. 163.01 and 373.713 in which two or more parties agree to submit to arbitration any controversy between them concerning water use permit applications and other matters, regardless of whether or not the water management district with jurisdiction over the subject application is a party to the interlocal agreement or a participant in the arbitration.
History.s. 1, ch. 57-402; s. 12, ch. 67-254; s. 3, ch. 98-402; s. 26, ch. 2010-205; s. 7, ch. 2013-232.
Note.Former s. 57.11.
 
 

9 U.S. Code § 3 - Stay of proceedings where issue therein referable to arbitration

Current through Pub. L. 114-38. (See Public Laws for the current Congress.)

prev | next

If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.

(July 30, 1947, ch. 392, 61 Stat. 670.)
Link to comment
Share on other sites

682.02 sets up having a valid agreement to arbitrate. When you have that you proceed to 682.03 Proceedings to compel and to stay arbitration.

682.03 Proceedings to compel and to stay arbitration.

(1) On motion of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement:
(a) If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate.
(b) If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.
(2) On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.
(3) If the court finds that there is no enforceable agreement to arbitrate, it may not order the parties to arbitrate pursuant to subsection (1) or subsection (2).
(4) The court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.
(5) If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, a motion under this section must be made in that court. Otherwise, a motion under this section may be made in any court as provided in s. 682.19.
(6) If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.
(7) If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim.
The FAA governs your agreement. The Florida code can also be referenced if it basically mirrors the federal one which it does.
 

FAA section 4

A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.

 

Link to comment
Share on other sites

2 hours ago, CCRP626 said:

682.02 sets up having a valid agreement to arbitrate. When you have that you proceed to 682.03 Proceedings to compel and to stay arbitration.

682.03 Proceedings to compel and to stay arbitration.

(1) On motion of a person showing an agreement to arbitrate and alleging another person’s refusal to arbitrate pursuant to the agreement:
(a) If the refusing party does not appear or does not oppose the motion, the court shall order the parties to arbitrate.
(b) If the refusing party opposes the motion, the court shall proceed summarily to decide the issue and order the parties to arbitrate unless it finds that there is no enforceable agreement to arbitrate.
(2) On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate.
(3) If the court finds that there is no enforceable agreement to arbitrate, it may not order the parties to arbitrate pursuant to subsection (1) or subsection (2).
(4) The court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.
(5) If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, a motion under this section must be made in that court. Otherwise, a motion under this section may be made in any court as provided in s. 682.19.
(6) If a party makes a motion to the court to order arbitration, the court on just terms shall stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.
(7) If the court orders arbitration, the court on just terms shall stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may limit the stay to that claim.
The FAA governs your agreement. The Florida code can also be referenced if it basically mirrors the federal one which it does.
 

FAA section 4

A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.

 

Thanks SO much. Looks pretty cut and dried. Is there any law that says they must initiate the arbitration? Or am I forced to since I'm the one choosing it?

 

Link to comment
Share on other sites

4 hours ago, CCRP626 said:

The FAA and FL arbitration code (682.02 and .03)already has you covered. If it's in the agreement, they'll be going to arb unless you waive your right to arb.

 

Before I do this, is it really better to go through arbitration? I have more knowledge of how court works than arbitration. From what I've read the idea of arbitration is to get them to drop the case by making it difficult for them.  Is that correct?

Link to comment
Share on other sites

33 minutes ago, yescats said:

Is there any law that says they must initiate the arbitration? Or am I forced to since I'm the one choosing it?

When your MTC Arb is approved and you get an order to arbitrate, file your demand with JAMS or AAA following their procedure and Plaintiff gets copies. Some states consider the burden is on the Plaintiff since they brought the claim into court to begin with but Florida is not one as far as I know. You should initiate.

The idea is it will be so expensive they won't follow you into arbitration and you'll be able to come back to court asking for a dismissal due to this. If you feel more comfortable trying your case in court and want to drop the MTC Arb and the upcoming hearing date that will pretty much waive your right to arbitrate. Once waived, to get back into arb after that would probably require permission from the Plaintiff.

Link to comment
Share on other sites

37 minutes ago, yescats said:

I have more knowledge of how court works than arbitration.

The consumer rules for AAA and JAMS are at their sites. You should know them. It will come in handy if the Plaintiff contacts you trying to get detail to talk you out of this when you're able to tell them you aren't able to share information without the arbitrator's approval except for a settlement offer. Requesting in person hearings also raises the bill for them. If you don't read the rules you won't know these things, so if you're going to arb read them.

Know your card agreement back and forth as well.

  • Like 1
Link to comment
Share on other sites

@yescats

If you had come here earlier asking about how to d.efend your case in court, I would have tried to hook you up with @LawKitty  She is a member here and a FL attorney  who has won many cases for defendants who have hired her.

However, you have come this far with arbitration and now you need to see it though.    Arbitration does work, and if you are going to be pro se, it's probably simpler and easier to arbitrate your case.   Did you read MizzMaryMacks thread posted above?  She filed her MTC arb and got her case dismissed.  This is what you need to remember for your court hearing that I posted on her thread:

Read this case

https://scholar.google.com/scholar_case?case=3280804692144954285&q=motion+to+compel+arbitration+stay+proceedings&hl=en&as_sdt=4,10&as_ylo=2014

From the case:

"`A court must compel arbitration where an arbitration agreement and an arbitrable issue exists, and the right to arbitrate has not been waived.'" Miller & Solomon Gen. Contractors, Inc. v. Brennan's Glass Co., 824 So.2d 288, 290 (Fla. 4th DCA 2002)(quoting Gale Grp. v. Westinghouse Elec. Corp., 683 So.2d 661, 663 (Fla. 5th DCA 1996)); see also Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1017*1017 1999) ("[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.").

If those three elements exist, and I think they do, the court MUST grant your MTC.

 

 

 

 

Link to comment
Share on other sites

6 hours ago, debtzapper said:

("[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.").

I think #2 can be removed as a requirement since the arb code posted above 682.03 (4) states the court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.

Link to comment
Share on other sites

12 hours ago, CCRP626 said:

The consumer rules for AAA and JAMS are at their sites. You should know them. It will come in handy if the Plaintiff contacts you trying to get detail to talk you out of this when you're able to tell them you aren't able to share information without the arbitrator's approval except for a settlement offer. Requesting in person hearings also raises the bill for them. If you don't read the rules you won't know these things, so if you're going to arb read them.

Know your card agreement back and forth as well.

Isn't raising bills for them a double-edged sword? The more money they invest the less likely they will be able to settle the case for a small amount. Is the main goal to jack up the costs to the point they will bow out? With the secondary goal to try to get them to settle for a small amount?

Link to comment
Share on other sites

12 hours ago, CCRP626 said:

When your MTC Arb is approved and you get an order to arbitrate, file your demand with JAMS or AAA following their procedure and Plaintiff gets copies. Some states consider the burden is on the Plaintiff since they brought the claim into court to begin with but Florida is not one as far as I know. You should initiate.

The idea is it will be so expensive they won't follow you into arbitration and you'll be able to come back to court asking for a dismissal due to this. If you feel more comfortable trying your case in court and want to drop the MTC Arb and the upcoming hearing date that will pretty much waive your right to arbitrate. Once waived, to get back into arb after that would probably require permission from the Plaintiff.

From reading this site the attorney, Zwicker (for Discover) has followed many people into arbitration. It  seems like they will do arbitration if necessary. BTW the debt is around $6,000.

  • Like 1
Link to comment
Share on other sites

9 hours ago, debtzapper said:

@yescats

If you had come here earlier asking about how to d.efend your case in court, I would have tried to hook you up with @LawKitty  She is a member here and a FL attorney  who has won many cases for defendants who have hired her.

However, you have come this far with arbitration and now you need to see it though.    Arbitration does work, and if you are going to be pro se, it's probably simpler and easier to arbitrate your case.   Did you read MizzMaryMacks thread posted above?  She filed her MTC arb and got her case dismissed.  This is what you need to remember for your court hearing that I posted on her thread:

Read this case

https://scholar.google.com/scholar_case?case=3280804692144954285&q=motion+to+compel+arbitration+stay+proceedings&hl=en&as_sdt=4,10&as_ylo=2014

From the case:

"`A court must compel arbitration where an arbitration agreement and an arbitrable issue exists, and the right to arbitrate has not been waived.'" Miller & Solomon Gen. Contractors, Inc. v. Brennan's Glass Co., 824 So.2d 288, 290 (Fla. 4th DCA 2002)(quoting Gale Grp. v. Westinghouse Elec. Corp., 683 So.2d 661, 663 (Fla. 5th DCA 1996)); see also Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla. 1017*1017 1999) ("[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.").

If those three elements exist, and I think they do, the court MUST grant your MTC.

 

 

 

 

I can't find that  MizzMaryMacks thread you are talking about. Could you provide a link please.

Link to comment
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.