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Hello,  A citation was sticking out of my apartment door on 3/28/2017.  I'm being sued for a credit card debt.  I'm in over my head and I don't know how to respond.  Can someone please help me?

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Please provide more detail. @texasrocker's advice no longer works and has cost many Texans's judgments. You are better off settling than wasting time and making things worse for yourself. Learn all you can about contractual arbitration if you want a chance at beating this.

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Here are the last 3 threads where texasrocker's advice was followed.  I agree with goody and would find a different strategy, but you can review the outcomes from these and decide for yourself.

 

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@TYP123

This Texan got a dismissal  of her case using private contractual arbitration as was suggested above.  She hasn't posted here in a while, but if you want to pursue her strategy, I am sure members here will advise you.  Follow her threads in chronological order

http://www.creditinfocenter.com/community/profile/170441-pagrn/

 

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@debtzapper  Wow!  I just hit send to someone about how to submit an arbitration and at the same time I got a ping that you had posted me.  That's uncanny.  I'm going to read this article.  I will need help. I have to turn my response into the courts this Monday.

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6 minutes ago, TYP123 said:

@debtzapper  Wow!  I just hit send to someone about how to submit an arbitration and at the same time I got a ping that you had posted me.  That's uncanny.  I'm going to read this article.  I will need help. I have to turn my response into the courts this Monday.

Well, that's really rushing it.  Wish you had  come here sooner.  You are going to have to be a quick learner.

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6 minutes ago, TYP123 said:

@debtzapper  *tears* I hope I'm not too late. 

  Pretend you are back in high school or college and that term paper that you put off is due Monday or you will fail the class.   Just do it.

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Good point and that's exactly what I did in college!  I'm going to read through some requests for arbitration and see what I can find to prepare.  I'm reading through @pagrn  article "Help, Upcoming Arbitration" right now but it starts with her already having submitted the request for arbitration so I'm not quite sure how to write one.  I'll keep searching though.  Thanks @debtzapper!

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7 minutes ago, TYP123 said:

Good point and that's exactly what I did in college!  I'm going to read through some requests for arbitration and see what I can find to prepare.  I'm reading through @pagrn  article "Help, Upcoming Arbitration" right now but it starts with her already having submitted the request for arbitration so I'm not quite sure how to write one.  I'll keep searching though.  Thanks @debtzapper!

See my PM to you

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Only your answer is due monday.  Submit a simple denial of all allegations in the complaint, then take a couple days to learn about arbitration and file your MTC.  Although I would not wait much longer than a week to file the MTC.

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2 hours ago, fisthardcheese said:

Only your answer is due monday.  Submit a simple denial of all allegations in the complaint, then take a couple days to learn about arbitration and file your MTC. 

BAD answer for Texas.  Some of the Justice Courts have ruled that filing an answer waives the right to arbitration in the contract.  The OP needs to tell us what Justice Court this is in first AND who the original creditor is.  Arbitration may not even be an option in the card agreement. You are assuming it is.

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2 hours ago, Clydesmom said:

BAD answer for Texas.  Some of the Justice Courts have ruled that filing an answer waives the right to arbitration in the contract.  The OP needs to tell us what Justice Court this is in first AND who the original creditor is. 

Where did you get this information?  It is totally absurd to think one could not file an answer therefore setting themself up for a default judgment but it would not surprise me after the judge last week refusing to hear a motion to compel discovery answers because "the TRCP do not apply to this court" even after granting his approval for the defendant to conduct discovery. 

The only mention of an answer in the new JP court rules is in Rule 501.1(c) CITATION where it governs that the wording of the citation must include "You or your attorney must file and answer with the court.  Your answer is due by the end of the 14th day after the day you were served with these papers."  It goes on to say that a default judgment may be  taken against you if no answer is received by the deadline.  There is absolutely no mention of arbitration being voided if an answer is filed.    We are in dire need of someone appealing a JP court's decision to give us something solid to refer to.   

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Since 1846, Texas law has provided that parties to a dispute may choose to arbitrate rather than litigate.  But that choice cannot be abused; a party cannot substantially invoke the litigation process and then switch to arbitration on the eve of trial.  Perry Homes v. Cull, 258 S.W.3d 580, 584 (Tex. 2008).

It would appear that one can file an answer without waiving the right to arbitrate.   However, it would be wise to include contractual arbitration as a defense.

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18 minutes ago, BV80 said:

Since 1846, Texas law has provided that parties to a dispute may choose to arbitrate rather than litigate.  But that choice cannot be abused; a party cannot substantially invoke the litigation process and then switch to arbitration on the eve of trial.  Perry Homes v. Cull, 258 S.W.3d 580, 584 (Tex. 2008).

It would appear that one can file an answer without waiving the right to arbitrate.   However, it would be wise to include contractual arbitration as a defense.

Yes but according to clydesmom's post some JP courts have been abusing it and it is implied that a list of these courts exists somewhere.

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59 minutes ago, texasrocker said:

Where did you get this information?

Experience and watching three different Justice Courts rule against a MTC arbitration because the Defendant had already engaged in the litigation process.

Try hanging out in the courts a few times and seeing how it is going these days instead of relying on what worked for you years ago.

1 hour ago, texasrocker said:

It is totally absurd to think one could not file an answer therefore setting themself up for a default judgment

What is absurd is your refusal to acknowledge that your bad dated advice has cost 3 different posters here judgments.

The tactics that worked years ago do not work anymore in many courts.

2 minutes ago, texasrocker said:

Yes but according to clydesmom's post some JP courts have been abusing it and it is implied that a list of these courts exists somewhere.

I implied no such thing.  I stated that there have been rulings that engaging in the litigation process negated the right to seek arbitration.  NO WHERE did I say there was a list of these courts.  I said that the OP needs to tell us who the OC is and what court this is in.  The Judge in Dallas County Part 4 is VERY objective and does not operate as part of the good ole boy network.  The one in Denton County has his head up his butt.  There are a couple in Harris County that are objective as well.  Same with Ft. Worth.  The more rural the more likely the Judge is likely to have rogue rulings and run his court by wild west anything goes rules.

NONE of which matters with regards to arbitration if the original account is one several creditors who have removed arbitration outright or disallowed its use for small claims cases.

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4 hours ago, Clydesmom said:

Experience and watching three different Justice Courts rule against a MTC arbitration because the Defendant had already engaged in the litigation process...

Quote

I implied no such thing.  I stated that there have been rulings that engaging in the litigation process negated the right to seek arbitration.. . The more rural the more likely the Judge is likely to have rogue rulings and run his court by wild west anything goes rules.

Well,  excu-u-u-u-u-se me!   @firsthardcheese advised to file a mere general denial as their answer, nothing else.   Since when does properly filing an answer which is required by both the old and new rules constitute engaging in the litigation process?   I seriously doubt that any judge threw out anyone's motion for arbitration simply because they answered their summons but again it will not surprise me if you could show that a JP judge in a recent case indeed did.   If they had embedded discovery in the answer or sent discovery to the plaintiff's attormey along with their required copy of the answer then it would make sense to call it engaging in the litigation process.

It certainly was implied but thank you for the explanation which is technically a list, albeit yours.  You should add to your list Travis County where both civil court judges hate JDB's as much as we do. 

Lastly I definitely noticed the recent rash of losses were the more rural rogue judges with "wild west anything goes rules" but I would think that even in the wild west the rulings probably made more sense than what transpired on mangosmash's trial day.   

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2 hours ago, BV80 said:

Since 1846, Texas law has provided that parties to a dispute may choose to arbitrate rather than litigate.  But that choice cannot be abused; a party cannot substantially invoke the litigation process and then switch to arbitration on the eve of trial.  Perry Homes v. Cull, 258 S.W.3d 580, 584 (Tex. 2008).

It would appear that one can file an answer without waiving the right to arbitrate.   However, it would be wise to include contractual arbitration as a defense.

To elaborate on what the court said in that particular case:

Since 1846, Texas law has provided that parties to a dispute may choose to arbitrate rather than litigate.[1] But that choice cannot be abused; a party cannot substantially invoke the litigation process and then switch to arbitration on the eve of trial.[2]There is a strong presumption against waiver of arbitration,[3] but it is not irrebuttable and was plainly rebutted here. The Plaintiffs vigorously opposed (indeed spurned) arbitration in their pleadings and in open court; then they requested hundreds of items of merits-based information and conducted months of discovery under the rules of court; finally only four days before the trial setting they changed their minds and decided they would prefer to arbitrate after all. Having gotten what they wanted from the litigation process, they could not switch to arbitration at the last minute like this

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1 hour ago, texasrocker said:

Well,  excu-u-u-u-u-se me!   @firsthardcheese advised to file a mere general denial as their answer, nothing else.   Since when does properly filing an answer which is required by both the old and new rules constitute engaging in the litigation process?

Agreed.

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1 hour ago, DSH61 said:

Seeking information at this point I have filed an answer to the JP Court within the 14 days.  Now I am wondering if you can help arbitration?

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Even in FL, filing a general denial answer and nothing more does not equate to a waiver of arbitration.  Obviously rouge judges may make bad rulings, but I haven't seen anyone denied arb as long as they don't go into extra affirmative defenses or asking discovery questions in their answer.

@TYP123 below is a sample MTC.  Don't just copy/paste it.  You will need to change it to fit your case info.  Especially #4, it should be changed to show what your actual card agreement says.

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION



NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about ___________, 2011, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.


5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

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 , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.



Respectfully submitted this day ________________, 2014


(Your name typed), Defendant, pro se

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