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JUDGE DENIED MOTION TO ARBITRATE WANT TO APPEAL


pockets66
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If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible):

1. Who is the named plaintiff in the suit?  BARCLAYS CARD

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)Scott & Associates

3. How much are you being sued for? 1800

4. Who is the original creditor? (if not the Plaintiff) BARCLAY

5. How do you know you are being sued? (You were served, right?)  YES 

6. How were you served? (Mail, In person, Notice on door) Not served yet

7. Was the service legal as required by your state?  Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  YES

9. What state and county do you live in?  Texas, Galveston County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 5/2015

11. What is the SOL on the debt? To find out: 4 years

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or  looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).  FILED MOTION TO ARBITRATE HAD HEARING - JUDGE DENIED 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes, with the CB on collection agency

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. Yes

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?  NO, JUST THAT I WAS BEING SUED.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  NOTHING WAS ATTACHED - JUST THAT WE WERE SUED.

 

I filed an answer with the court electing arbitration.  I notified Scott & Associates that I elected arbitration and then filed the Motion to Compel.  I scheduled a hearing on the motion which was today.  This was my husband's case so even though we went over everything he froze and Judge denied arbitration stating the cost of arbitration and that the agreement states it can either be settled in court or arbitration.  My husband didn’t speak up and allowed the lawyer and judge to decide that this will go to trial.  I would like to appeal (I have until Monday at 5pm) so this can be taken out of court and into arbitration.  I have never filed an appeal.  Can someone please direct me on how to do one?

Barclay agreement:

Arbitration.

At the election of either you or us, any claim, dispute or controversy (“Claim”) by either you or us against the other, arising from or relating in any way to this Agreement or your Account, or their establishment or any transaction or activity on your Account, including (without limitation) Claims based on contract, tort (including intentional torts), fraud, agency, negligence, statutory or regulatory provisions or any other source of law and (except as otherwise specifically provided in this Agreement) Claims regarding the applicability of this arbitration provision or the validity of the entire Agreement, shall be resolved exclusively by arbitration.  For purposes of this provision, “you” includes yourself, any authorized user on the Account, and any of your agents, beneficiaries or assigns, or anyone acting on behalf of the foregoing, and “we” or “us” includes our employees, parents, subsidiaries, affiliates, beneficiaries, agents and assigns, and to the extent included in a proceeding in which Barclays is a party, its service providers and marketing partners.  Any Claims sought to be made or remedies sought to be obtained as part of any class action, private attorney general or other representative action (hereafter all included in the term “class action”) shall be subject to arbitration, and arbitrated on an individual basis between you and us, not on a class or representative or other collective basis.  The arbitrator shall not have any authority to entertain a claim, or to award any relief, on behalf of or against anyone other than a named party to the arbitration proceeding.  If any Claim is advanced in a court, arbitration may be elected under this provision instead, and the right to elect arbitration shall not be deemed to have been waived if the election is made at any time before commencement of trial.

Alternatively, you and we may pursue a Claim within the jurisdiction of the Justice of the Peace in Delaware, or the equivalent court in your home jurisdiction, provided that the action remains in that court, is made on behalf or against you only and is not made part of a class action, private attorney general action or other representative or collective action.

The arbitration shall be administered by the American Arbitration Association, www.adr.org, 950 Warren Avenue, East Providence, Rhode Island, 02914, 1-866-293-4053 (the “Administrator”).  The Administrator provides information about arbitration, its arbitration rules and procedures, fee schedule and claims forms at its website or by mail as set forth above.  The Administrator will apply the rules and procedures in effect and applicable to the claim at the time the arbitration is filed.  The Claim will be heard before a single arbitrator.  The arbitration will not be consolidated with any other arbitration proceedings.  The Administrator shall resolve each dispute in accordance with applicable law.

If you commerce arbitration, you must provide us the notice required by the Administrator’s rules and procedures.  The notice may be sent to us at Barclays Bank Delaware, PO BOX 8801, Wilmington, DE 19899-8801.  If we commence arbitration, we will provide you notice at your last known address.  We agree to honor a request by you to remove the action to a Small Claims Court, provided that we receive the request within thirty days of the notice of commencement of Arbitration.  Any arbitration hearing at which you appear will take place at a location within the federal judicial district that includes your billing address at the time the Claim is filed.

The arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act, 9 U.S.C. 1-16.  No class actions, joinder or consolidation of any Claim with a Claim of any other person or entity shall be allowable in arbitration, with the written consent of both you and us.  In the event that there is a dispute about whether limiting arbitration of the parties’ dispute to non-class proceedings is enforceable under applicable law, then that question shall be resolved by litigation in a court rather than by the arbitrator; and to the extent it is determined that resolution of a Claim shall proceed on a class basis, it shall so proceed in a court of competent jurisdiction rather than in arbitration.

A party can file with the Administrator a written appeal of a single arbitrator’s award within 30 days of award issuance, requesting a new arbitration in front of three neutral arbitrators designated by the Administrator.  The panel will reconsider all factual and legal issues, following the same rules of procedure, and will make decisions based on majority vote.  Any final arbitration award will be binding on the named parties and enforceable by any court having jurisdiction.  Judgment upon any arbitration award may be entered in any court having jurisdiction.

We will pay, or reimburse you for, all fees or cost to the extent required by law or the rules of the Arbitration Administrator.  Whether or not required by law or such rules, if you prevail at arbitration on any Claim against us, we will reimburse you for any fees paid to the Administrator in connection with the arbitration proceedings.  Under no circumstances will we seek from you payment or reimbursement of any fees that we incur in connection with the arbitration.  In addition, in any arbitration that you elect to file that could be heard in Small Claims Court in your jurisdiction, we will pay the filing fees and other arbitration fees above the cost of filing in that Small Claims Court.  If you are required to advance any fees or costs to the Arbitration Administrator, but you ask us to do so in your stead, we will consider and respond to your request.

This arbitration agreement applies to all Claims now in existence or that may arise in the future, and it survives the termination of the Cardmember Agreement and the Account relationship, including your payment in full, and your filing of bankruptcy.  Nothing in this Agreement shall be construed to prevent any party’s use of (or advancement of any claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or property interests for contractual debts now or hereafter owed by either party to the other under the agreement.

ARBITRATION WITH THE RESPECT TO A CLAIM IS BINDING AND NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT.  IN ARBITRATION YOU AND WE WILL NOT HAVE THE RIGHTS THAT ARE PROVIDED IN COURT INCLUDING THE RIGHT TO A TRIAL BY JUDGE OR JURY AND THE RIGHT TO PARTICIPATE OR BE REPRESENTED TO DISCOVERY AND THE RIGHT TO APPEAL ARE ALSO LIMITED OR ELIMINATED BY ARBITRATION.  ALL OF THESE RIGHTS ARE WAIVED AND ALL CLAIMS MUST BE RESOLVED BY ARBITRATION.

 

 

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16 hours ago, pockets66 said:

At the election of either you or us, any claim, dispute or controversy (“Claim”) by either you or us against the other, arising from or relating in any way to this Agreement or your Account, or their establishment or any transaction or activity on your Account, including (without limitation) Claims based on contract, tort (including intentional torts), fraud, agency, negligence, statutory or regulatory provisions or any other source of law and (except as otherwise specifically provided in this Agreement) Claims regarding the applicability of this arbitration provision or the validity of the entire Agreement, shall be resolved exclusively by arbitration. 

 

16 hours ago, pockets66 said:

If any Claim is advanced in a court, arbitration may be elected under this provision instead, and the right to elect arbitration shall not be deemed to have been waived if the election is made at any time before commencement of trial.

 

16 hours ago, pockets66 said:

ARBITRATION WITH THE RESPECT TO A CLAIM IS BINDING AND NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT.

IANAL. I do not understand how the "If any Claim is advanced in a court, arbitration may be elected under this provision instead" clause trumps the agreement sections highlighted above.

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8 hours ago, Brotherskeeper said:

 

 

IANAL. I do not understand how the "If any Claim is advanced in a court, arbitration may be elected under this provision instead" clause trumps the agreement sections highlighted above.

Me neither.  Any direction on filing an appeal and what court I file one with?

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28 minutes ago, pockets66 said:

Any direction on filing an appeal and what court I file one with?

The plaintiff is the original creditor and not a junk debt buyer, right? Others familiar with Texas rules should weigh in here. I would research a motion for reconsideration as well as rules for an appeal. Usually, there isn't much time. 

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pockets66  In this earlier (yesterday) thread, did you say the court granted your MTC but denied that of your husband.?

 

The lawyer read the agreement again and told the lawyer that it looks like you won't win this one - it clearly states if she elects arbitration it will be arbitrated.  She told me we would meet in a  few months to make sure we are doing what we say.   I have filled out the paperwork for Jams - do I need to wait for anything from the court before I send the paperwork in?  

I want to thank everyone who helped me get this far!!

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