Recommended Posts

14 hours ago, fisthardcheese said:

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.

 "Filing an answer without claiming the action should be referred to arbitration" is inconsistent with asserting an arbitration right and "waives the right to arbitrate." Bland v. Green Acres Grp., 12 So.3d 822, 824 (Fla. 4th DCA 2009).

Courts have held that the filing of an answer on the merits without demanding arbitration operates to waive the right to arbitration. Gen. Elec. Capital Corp. v. Bio-Mass Tech, Inc., 136 So.3d 698, 703 (Fla.Dist.Ct.App. 2014)(See Bared & Co. v. Spec. Maint. & Constr. Inc., 610 So.2d 1, 3 (Fla. 2d DCA 1992)).

Share this post


Link to post
Share on other sites
8 hours ago, BV80 said:

 "Filing an answer without claiming the action should be referred to arbitration" is inconsistent with asserting an arbitration right and "waives the right to arbitrate." Bland v. Green Acres Grp., 12 So.3d 822, 824 (Fla. 4th DCA 2009).

Courts have held that the filing of an answer on the merits without demanding arbitration operates to waive the right to arbitration. Gen. Elec. Capital Corp. v. Bio-Mass Tech, Inc., 136 So.3d 698, 703 (Fla.Dist.Ct.App. 2014)(See Bared & Co. v. Spec. Maint. & Constr. Inc., 610 So.2d 1, 3 (Fla. 2d DCA 1992)).

I haven't see those cases before.  I guess the folks I have seen successfully granted an MTC arb after filing a general denial answer just got lucky.  Good to note for future reference.

So, given this information, and since I dont know about TX case law on the matter, at the bottom of a general denial, I would list an affirmative defense of "lack of subject matter jurisdiction" and explain that the underlying agreement contains an arbitration clause and that the Defendant has elected to have the dispute heard in arbitration, therefore this court lacks subject matter jurisdiction.

That at least buys time to file the MTC arb a few days later if it can't be filed at the same time or in place of the answer.

  • Like 3

Share this post


Link to post
Share on other sites
6 hours ago, fisthardcheese said:

I haven't see those cases before.  I guess the folks I have seen successfully granted an MTC arb after filing a general denial answer just got lucky.  Good to note for future reference.

So, given this information, and since I dont know about TX case law on the matter, at the bottom of a general denial, I would list an affirmative defense of "lack of subject matter jurisdiction" and explain that the underlying agreement contains an arbitration clause and that the Defendant has elected to have the dispute heard in arbitration, therefore this court lacks subject matter jurisdiction.

That at least buys time to file the MTC arb a few days later if it can't be filed at the same time or in place of the answer.

Classic example of a JDB attorney not being aware of such precedents either and failing to object therefore allowing the defendant's motion through. 

Excellent idea.  I have always said that subject matter jurisdiction should be questioned in any JDB case because if they cannot prove they own the alleged debt then the court does not have the jurisdiction to try the case.  It will most likely be denied but as you stated it will serve the purpose of temporarily delaying everything.

 

 

  • Like 1

Share this post


Link to post
Share on other sites
6 hours ago, fisthardcheese said:

I haven't see those cases before.  I guess the folks I have seen successfully granted an MTC arb after filing a general denial answer just got lucky.  Good to note for future reference.

So, given this information, and since I dont know about TX case law on the matter, at the bottom of a general denial, I would list an affirmative defense of "lack of subject matter jurisdiction" and explain that the underlying agreement contains an arbitration clause and that the Defendant has elected to have the dispute heard in arbitration, therefore this court lacks subject matter jurisdiction.

That at least buys time to file the MTC arb a few days later if it can't be filed at the same time or in place of the answer.

I don't know if all courts in FL are as strict as the 2 courts I cited, but I think they show it's best to go ahead and raise arbitration as an affirmative defense in that state.

Share this post


Link to post
Share on other sites
8 hours ago, TYP123 said:

Thank you @fisthardcheese!  I turned in my paperwork before I saw this.  I requested arb in my orig answer. Wish me luck.  I'll start researching next steps to prep.

 

Mentioning arb in your answer is a good thing, but if you didn't file a formal Motion, I would file the MTC as soon as possible.

Share this post


Link to post
Share on other sites

@fisthardcheese@texasrocker@debtzapper@BV80@PAGRN

Can you let me know if my MTC is okay to send?

 

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



NOW COMES Defendant TYP123, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about XXXX, 2017, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on XXXX, 2017, electing arbitration with AAA 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 or we may arbitrate any claim, dispute or controversy between you and us arising out of or related to your account, a previous related account or our relationship (called “Claims”).

(b) If arbitration is chosen by any party, neither you nor we will have the right to litigate that Claim in court or have a jury trial on that Claim.

(c) Arbitration may be requested any time, even where there is a pending lawsuit, unless a trial has begun or a final judgment entered. Neither you nor we waive the right to arbitrate by filing or serving a complaint, answer, counterclaim, motion, or discovery in a court lawsuit. To choose arbitration, a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite ling fees to the AAA.



(d) THIS ARBITRATION PROVISION IS GOVERNED BY THE FEDERAL ARBITRATION ACT (FAA), AND SHALL BE INTERPRETED IN THE BROADEST WAY THE LAW WILL ALLOW.




5. The Federal Arbitration Act (FAA) 9 USC, Section 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 XXX, 2017


TYP123, Defendant, pro se

 

 

Share this post


Link to post
Share on other sites

Your motion seems all right.  I hope @fisthardcheese can take a look at it.

Read this thread by TX OP PAGRN (she hasn't posted here in a long while). You want to notify the attorney as she did.  Also, schedule a hearing for your motion with the court and the attorney.

 

  • Like 1

Share this post


Link to post
Share on other sites

I see nothing wrong with the MTC.  In section 4 you don't HAVE to have 4 subsections.  If the quotes from your card agreement all come from the same paragraph, you can combine the subsections into a single paragraph.  Also, only put them in all caps if that is how it appears in your card agreement.

Other than that, I see no reason not to file it as is.

  • Like 2

Share this post


Link to post
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.