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Motion to Compel Arbitration Why No Answer from Court?


yescats
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18 minutes ago, yescats said:

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

It's the one I pointed out earlier linked above.

25 minutes ago, yescats said:

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?

The idea is the costs to even get in the door are prohibitive so they'll want to just dismiss the court case if you'll drop arb. Weeks after starting this thread you now mention it's Discover, the original creditor suing. They are more likely to follow you in than a JDB.  If you have the cardmember agreement you're using for your MTC Arb, it might help if you post it here.

If you want to request assistance with your filing fee for AAA or JAMS you should contact Discover at the address in the agreement now, send a copy to their atty as well.

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16 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.

 

Also, Don't forget the ultimate trump card is that the Supreme Court of the United States has TWICE said that when arbitration is present in a contract, then not only MUST arbitration be honored, but it is the PREFERRED method of resolution over court.   AT&T Mobility LLC v. Concepcion  and  CompuCredit Corp. v. Greenwood.

 

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11 minutes ago, fisthardcheese said:

Also, Don't forget the ultimate trump card is that the Supreme Court of the United States has TWICE said that when arbitration is present in a contract, then not only MUST arbitration be honored, but it is the PREFERRED method of resolution over court.   AT&T Mobility LLC v. Concepcion  and  CompuCredit Corp. v. Greenwood.

If the OP used the Linda7 thread MTC Arb template it does have Concepcion in there but not Greenwood. It would be a good idea for them to re-read the MTC they filed with the court prior to the hearing along with their card agreement.

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39 minutes ago, CCRP626 said:

It's the one I pointed out earlier linked above.

The idea is the costs to even get in the door are prohibitive so they'll want to just dismiss the court case if you'll drop arb. Weeks after starting this thread you now mention it's Discover, the original creditor suing. They are more likely to follow you in than a JDB.  If you have the cardmember agreement you're using for your MTC Arb, it might help if you post it here.

If you want to request assistance with your filing fee for AAA or JAMS you should contact Discover at the address in the agreement now, send a copy to their atty as well.

Discover has backed down in arb previously.  If it were me, I would rather take my chances in arb over court, where it's a sure loss against an OC.  Does the contract mention an appeal option in arbitration?  If so, that helps a lot, because an appeal gets up to possible 6-digit costs for them.  Just use the same concepts as a JDB, it just may take a little longer before they get to their breaking point, whereas a JDB usually doesn't even start arbitration.

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11 minutes ago, CCRP626 said:

If the OP used the Linda7 thread MTC Arb template it does have Concepcion in there but not Greenwood. It would be a good idea for them to re-read the MTC they filed with the court prior to the hearing along with their card agreement.

Greenwood is more recent (2012), and mostly echos Concepcion except that it goes even further to say that arb and the FAA trumps not only state law but federal law as well, so no matter what the FL or any federal statutes on arb says, the SCOTUS says that arb in a contract overrides anything to the contrary.

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5 hours ago, fisthardcheese said:

Discover has backed down in arb previously.  If it were me, I would rather take my chances in arb over court, where it's a sure loss against an OC.  Does the contract mention an appeal option in arbitration?  If so, that helps a lot, because an appeal gets up to possible 6-digit costs for them.  Just use the same concepts as a JDB, it just may take a little longer before they get to their breaking point, whereas a JDB usually doesn't even start arbitration.

Yes. It says an appeal must be filed no later than 30 day after award and appealing party pays all appellate costs unless appellate panel determines otherwise. BTW it also mentions "arbitration provision" survives bankruptcy. So if I ever file bankruptcy I will still have these guys on my back? 

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6 hours ago, fisthardcheese said:

Also, Don't forget the ultimate trump card is that the Supreme Court of the United States has TWICE said that when arbitration is present in a contract, then not only MUST arbitration be honored, but it is the PREFERRED method of resolution over court.   AT&T Mobility LLC v. Concepcion  and  CompuCredit Corp. v. Greenwood.

 

I already have that cite in my file and marked as an exhibit. In my county I can eFile. Should I upload these cases as exhibits or evidence or just bring them to the hearing?

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6 hours ago, fisthardcheese said:

Also, Don't forget the ultimate trump card is that the Supreme Court of the United States has TWICE said that when arbitration is present in a contract, then not only MUST arbitration be honored, but it is the PREFERRED method of resolution over court.   AT&T Mobility LLC v. Concepcion  and  CompuCredit Corp. v. Greenwood.

 

I already have that cite in my file and marked as an exhibit. In my county I can eFile. Should I upload these cases as exhibits or evidence or just bring them to the hearing?

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7 hours ago, CCRP626 said:

It's the one I pointed out earlier linked above.

The idea is the costs to even get in the door are prohibitive so they'll want to just dismiss the court case if you'll drop arb. Weeks after starting this thread you now mention it's Discover, the original creditor suing. They are more likely to follow you in than a JDB.  If you have the cardmember agreement you're using for your MTC Arb, it might help if you post it here.

If you want to request assistance with your filing fee for AAA or JAMS you should contact Discover at the address in the agreement now, send a copy to their atty as well.

Here is the Discover arbitration section of the agreement.

 

Agreement to arbitrate. In the event of a dispute between you
and us arising under or relating to this Account, either may choose
to resolve the dispute by binding arbitration, as described below,
instead of in cowt. Any daim (except for a claim challenging the
validity or enforceability of this arbitration agreement, including
the Class Action Waiver) may be resolved by binding arbitration if
either side requests it. THlS MEANS IF EITHER YOU OR WE CHOOSE
ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO
LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL ALSO
MSCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION.
CLASS ACTION WAIVER. ARBITRATION MUST BE ON AN
INDIVIDUAL BASIS. THlS MEANS NEITHER YOU NOR WE MAY
JOIN OR CONSOUDATE CLAIMS IN ARBITRATION BY OR
AGAINST OTHER CAROMEMBERS, OR LITIGATE IN COURT OR
ARBITRATE ANY CLAIMS AS A REPRESENTATIVE OR MEMBER
OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
Only a court, and not an arbitrator, shall determine the
validity and effect of the Class Action Waiver. Even if all
parties have opted to litigate a claim in court, you or we
may elect arbitration with respect to any daim made by a
new party or any new claims later asserted in that lawsuit.
- - -- - - -
Your Right to Go To Small Claims Court. We will not choose
to arbitrate any claim you bring in small daim court. However,
if such a claim is transfened, removed or appealed to a different
court, we may then choose to arbitrate.
Governing Law and Rules. This arbitration agreement is governed
by the Federal Arbitration Act (FAA). Arbitration must proceed only
with the American Arbitration Association (AM) or JAMS. The
rules for the arbitration will be those in this arbitration agreement
and the procedures of the chosen arbitration organization, but
the rules in this arbitration agreement will be f d h e d if there
is disagreement between the agreement and the organization's
procedures. If the organization's procedures change after the daim
is filed, the procedures in effect when the claim was filed will apply.
For a copy of each organization's procedures, to file a claim or for
other information, please contact:
M A at 1101 Laurel Oak Rd., Voorhees, NJ 08043,
www.adr.org (phone 1-877-495-4185) or
JAMS at 620 Eighth Ave., Floor 34, New York, NY 10018,
www.jamsadr.com (phone 1-800-352-5267),
If both AAA and JAMS are completely unavailable, and if you and
we cannot agree on a substitute, then either you or we may request
that a court appoint a substitute.
Fees and Costs. If you wish to begin arbitration against us but
you cannot afford to pay the organization's or arbitrator's costs, we
will advance those costs if you ask us in writing. Any request like
this should be sent to Discover, PO Box 30421, Salt Lake City, UT
84130-0421. If you lose the arbitration, the ahitrator will decide
whether you must reimburse us for money we advanced for you
for the arbitration. If you win the arbitration, we will not ask for
reimbursement of money we advanced. Additionally, if you win the
arbitration, the arbitrator may decide that you are entided to be
reimbursed your reasonable attorneys' fees and costs (if actually
paid by you).

Hearings and Decisions. Arbitration hearings will take place in
the federal judicial district where you live. A single arbitrator will
be appointed.
The arbitrator must:
* Follow all applicable substantive law, except when
contradicted by the FAA;
Follow applicable statutes of limitations;
Honor valid claims of privilege;
Issue a written decision including the reasons for the award.
The arbitrator's decision win be final and binding except for any
review allowed by the FAA. However, if more than $100,000
was genuinely in dispute, then either you or we may choose to
appeal to a new panel of three arbitrators. The appellate panel
is completely free to accept or reject the entire original award
or any part of it. The appeal must be filed with the arbitration
- -- - - -
organization not later than 30 days after the original award issues.
The appealing party pays all appellate costs unless the appellate
panel determines otherwise as part of its award,
Any arbitration award may be enforced (such as through a
judgment) in any court with jurisdiction.
Other Beneficiaries of this Provision. In addition to you and
us, the rights and duties described in this arbitration agreement
apply to: our Affiliates and our and their officers, directors and
employees; any third party co-defendant of a daim subject to this
arbitration provision; and all joint Accounthdders and Authorized
Users of your Account(s).
Survival of this Provision. This arbitration provision shall survive:
* closing of your Accwnt;
voluntary payment of your Account or any part of it;
* any legal proceedings to collect money you owe;
any bankruptcy by you; and
any sale by us of your Account.
You Have the Right to Reject Arbitration for this Account.
You may reject the arbitration agreement but only if we
receive from you a written notice of rejection within 30 days
of your receipt of the Card after your Account is opened.
You must send the notice of rejection to: Discover, PO Box
30938, Salt Lake City, UT 84130.0938, Your rejection notice
rnust indude your name, address, phone number, Accwnt number
and personal signature. No one else may sign the rejection notice
for you. Your rejection notice also must not be sent with any
other correspondence. Rejection of arbitration will not affect your
other rights or responsibilities under this Agreemm. If you reject
arbitration, neither you nor we will be subject to the arbitration
provisions for this Account.

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11 hours ago, CCRP626 said:

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.

Cox v. Village of Tequesta, 185 So.3d. 601 (2016)

https://scholar.google.com/scholar_case?case=11703662773669449666&q=682.03++lacks+merit+arbitration&hl=en&as_sdt=4,10&as_ylo=2015

Specifically, under section 682.03, a trial court may consider only three issues: "(1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived." Gren v. Gren, 133 So.3d 1066, 1068 (Fla. 4th DCA 2014) (quoting Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)).

@yescats  You can quote from that decision in your court hearing.

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@debtzapper When they say "whether an arbitrable issue exists" (can a wrongful death case be sent to arbitration) is different than what I mentioned from 682.03 (4). Using the three issue test I think a plain old sued for debt case is easily going to meet #2 standards, yes an arbitrable issue exists. The case you posted is along the lines of one I ran across where a payday loan company locked the doors on a debtor who dropped by their offices for a payment extension- you aren't leaving until you pay- false imprisonment. Payday loan company of course thought this should be decided in arbitration by the agreement.

I would think "whether an arbitrable issue exists" would encompass "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" but for some reason it's got its own line in the statute.

 

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@fisthardcheese would you go with AAA or JAMS for this one? It looks like Discover is registered at AAA, so no additional costs can be ran up for that and JAMS fees run higher. Does it seem like JAMS is the way to go?

@yescats was the MTC Arb you used the one found as a template on this site? Did you request JAMS or AAA? Are you planning on asking Discover to pay your fees?

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12 minutes ago, CCRP626 said:

@debtzapper When they say "whether an arbitrable issue exists" (can a wrongful death case be sent to arbitration) is different than what I mentioned from 682.03 (4). Using the three issue test I think a plain old sued for debt case is easily going to meet #2 standards, yes an arbitrable issue exists. The case you posted is along the lines of one I ran across where a payday loan company locked the doors on a debtor who dropped by their offices for a payment extension- you aren't leaving until you pay- false imprisonment. Payday loan company of course thought this should be decided in arbitration by the agreement.

I would think "whether an arbitrable issue exists" would encompass "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" but for some reason it's got its own line in the statute.

 

I just wanted to give him a recent  appellate court decision that he can show the judge, who may not be used to having debt collection defendants arbitrate their case,

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5 minutes ago, CCRP626 said:

@fisthardcheese would you go with AAA or JAMS for this one? It looks like Discover is registered at AAA, so no additional costs can be ran up for that and JAMS fees run higher. Does it seem like JAMS is the way to go?

If Discover wants to arbitrate, I'm not sure the cost makes a difference to the company because it can afford it.

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@debtzapper I understand and it should make the OP getting approved a quick three step checklist. Just reading the cases and statutes got me to wondering why they put that "merits" section 4 in there. Was it due to past scenarios such as a defendant in a debt case showing the Judge his counterclaim he wants to take to arbitration and the Judge saying that's a weak case, I'm not going to waste the time sending this to arbitration when I can just deny it now?

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12 hours ago, CCRP626 said:

@fisthardcheese would you go with AAA or JAMS for this one? It looks like Discover is registered at AAA, so no additional costs can be ran up for that and JAMS fees run higher. Does it seem like JAMS is the way to go?

 

11 hours ago, BV80 said:

If Discover wants to arbitrate, I'm not sure the cost makes a difference to the company because it can afford it.

I think it does make a difference.  In AAA it is harder to get over a $10k amount for a complete hearing.  However, in JAMS the cost will much easier and quickly rise into the 5-digit amount, and the optional JAMS appeal is much more costly. 

I would much rather use JAMS against Discover in this type of case.

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3 hours ago, fisthardcheese said:

I would much rather use JAMS against Discover in this type of case.

 OP can take a look at consumer cases in JAMS where Discover was a participant.

https://www.jamsadr.com/consumercases/

If they're still set on waiving arb and fighting this in court, might be a good idea to check past cases at the county courthouse/clerk website with Discover and this lawfirm to see how they turn out and any weaknesses.  A consult with @LawKitty would be a good idea as well.

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Unfortunately with Discover being an original creditor, beating them in court is a long shot, at best.  I would suggest going the arbitration route.  Otherwise you might need to try settling with them or if you have other debts, file bankruptcy. An attorney might be able to negotiate a better settlement than you can get on your own but whether you want to pay an attorney for that or not is up to you.

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On 8/27/2016 at 10:08 PM, CCRP626 said:

@fisthardcheese would you go with AAA or JAMS for this one? It looks like Discover is registered at AAA, so no additional costs can be ran up for that and JAMS fees run higher. Does it seem like JAMS is the way to go?

@yescats was the MTC Arb you used the one found as a template on this site? Did you request JAMS or AAA? Are you planning on asking Discover to pay your fees?

Yes I'm going to ask Discover to pay my fees. 

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19 hours ago, LawKitty said:
 

Unfortunately with Discover being an original creditor, beating them in court is a long shot, at best.  I would suggest going the arbitration route.  Otherwise you might need to try settling with them or if you have other debts, file bankruptcy. An attorney might be able to negotiate a better settlement than you can get on your own but whether you want to pay an attorney for that or not is up to you.

The Discover agreement says a arbitration award survives bankruptsy. Could this Be true?!

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On 8/28/2016 at 10:19 AM, fisthardcheese said:

 

I think it does make a difference.  In AAA it is harder to get over a $10k amount for a complete hearing.  However, in JAMS the cost will much easier and quickly rise into the 5-digit amount, and the optional JAMS appeal is much more costly. 

I would much rather use JAMS against Discover in this type of case.

Yes but if I lose then my judgement is going to be in the 5 digit amonut too. Right?

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On 8/27/2016 at 10:16 PM, CCRP626 said:

@debtzapper I understand and it should make the OP getting approved a quick three step checklist. Just reading the cases and statutes got me to wondering why they put that "merits" section 4 in there. Was it due to past scenarios such as a defendant in a debt case showing the Judge his counterclaim he wants to take to arbitration and the Judge saying that's a weak case, I'm not going to waste the time sending this to arbitration when I can just deny it now?

Even though I sent Discover a DV letter asking them not to call me they still call me at least once a day. Today they called me four times! Is that a violation? Can that be made into a counterclaim?

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On 8/27/2016 at 10:08 PM, CCRP626 said:

@fisthardcheese would you go with AAA or JAMS for this one? It looks like Discover is registered at AAA, so no additional costs can be ran up for that and JAMS fees run higher. Does it seem like JAMS is the way to go?

@yescats was the MTC Arb you used the one found as a template on this site? Did you request JAMS or AAA? Are you planning on asking Discover to pay your fees?

I didn't use the template found on this site. Mine had no legal citations and did not mention JAMS or AA.

Mine said,

MOTION TO DISMISS AND COMPEL ARBITRATION

1.    Defendant requested arbitration on May 13, 2016 with Plaintiff via Certified mail. See Exhibit 2 and 3

 

2.    Under Discover Cardmember Agreement Defendant is entitled to arbitration. Defendant’s choice for arbitration was ignored. See Exhibit 1

 

Defendant hereby respectfully motions lawsuit be dismissed and motions court to compel Plaintiff to initiate arbitration if they so chose to continue.

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32 minutes ago, yescats said:

Even though I sent Discover a DV letter asking them not to call me they still call me at least once a day. Today they called me four times! Is that a violation? Can that be made into a counterclaim?

No.  Discover is an original creditor, so the FDCPA does not apply to them. 

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