fisthardcheese

Arbitration Overview and Strategy (2018 - Most Up To Date Info)

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9 hours ago, Bulldoger said:

Thanks for the replies, 

I know in Virginia in district court they can't get attorney cost.  I can argue they should not get then in arbitration either if we get there.  If I can get it down to 30% I will settle. I countered with 25% offer.  I like the last line "However, if you decide to make the monthly payments, we ask that you withdraw your arbitration demand and allow a judgment in the full balance be entered." As if that will ever happen.  

 

This is what I meant by the opposing attorney misrepresenting the legal status.  

The idea being that neither AAA nor JAMS are permitted by their own rules to impose legal and arbitration fees for cases in jurisdictions for which those fees are not permitted.  

Therefore the attorney's statement MIGHT be an FDCPA violation, in that they are claiming you would be liable for fees when you would not be.  

 

If I am misinterpreting this, someone please let me know.  Sometimes I am wrong.  

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15 hours ago, BackFromTheDebt said:

It is extremely rare for the arbitrator to award costs.  I may be wrong, but at least one and possibly both of the two venues forbid it in consumer cases   
 

If that is the case, they may be committing an FDCPA violation by misrepresenting the legal status of the debt   
I am not sure. But that is something to look into  

 

Attorney must be suggesting my moving case to Arbitration is frivolous suit.  I am thinking of using OHIO case can motion they file the Arbitration suit since I have no Claims against them.

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1 hour ago, Bulldoger said:

Attorney must be suggesting my moving case to Arbitration is frivolous suit.  I am thinking of using OHIO case can motion they file the Arbitration suit since I have no Claims against them.

There are two ways to go about it.  Make sure you are very clear about the court rules. 

One way is to file a claim based on false information as a violation of the FDCPA.  That is dangerous, because it could be considered a frivolous claim, or it may not.  

The other way is for an MTC with a court order for arbitration.  In that case, you are simply moving their case against you into arbitration.  

Most of the time they will walk away from the case rather than pay the fees.  However, that is not certain.  This attorney might convince their clients that the arbitration costs can be recovered, and thus go all the way.  You need to have the RCP for your jurisdiction down cold, to show that the fee shift would be against the local court laws, and thus not permitted under JAMS or AAA.

 

If you have the choice, it is generally better to file in JAMS.  

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One way is to file a claim based on false information as a violation of the FDCPA.  That is dangerous, because it could be considered a frivolous claim, or it may not.  ( I have no claim for violation of the FDCPA)

The other way is for an MTC with a court order for arbitration.  In that case, you are simply moving their case against you into arbitration.  (that's what I done, the JDB said they will agree to go to arbitration)

This attorney Is in house an employee of JDB so he is his own client  

You need to have the RCP (Rules of Civil Procedure)for your jurisdiction down cold, to show that the fee shift would be against the local court laws, and thus not permitted under JAMS or AAA.  

There are no fees in Virginia other than filing fee. Virginia does address Attorney cost though. 

here is a white paper from VA BAR ASSOCIATION  

https://mccandlishlawyers.com/wp-content/uploads/2019/11/article_01_20_2001.pdf

 

Edited by Bulldoger
forgot to delete rest of sentence
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Hello!

I'm getting ready to submit my Demand for Arb with in Texas. My question is (sorry, so many pages to go through) will my MTC be denied because of the small claims clause with Citibank? We are being sued by Cavalry. I submitted our answer on May 4th generally denying all allegations made by plaintiff, with nothing more noted. I just received copies of the original credit card agreement this last week with the arb clause from JDB, so I am taking advantage of it. They also sent about 6 months worth of statements. I started a different thread but hoping to get an answer to this tonight so I can proceed tomorrow. TIA!

ETA: Also, on the Demand form, I have a question. Number 2 asks to briefly explain the dispute. Can I simply put "Consumer debt dispute"?

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ETA: Also, on the Demand form, I have a question. Number 2 asks to briefly explain the dispute. Can I simply put "Consumer debt dispute"?

your not filing your AAA or JAMS demand yet correct. Demand is just a term for "motion" . If that is the case used Improper Jurisdiction or Venue. 

 

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45 minutes ago, Bulldoger said:

ETA: Also, on the Demand form, I have a question. Number 2 asks to briefly explain the dispute. Can I simply put "Consumer debt dispute"?

your not filing your AAA or JAMS demand yet correct. Demand is just a term for "motion" . If that is the case used Improper Jurisdiction or Venue. 

 

I find this process so confusing! Pretty much I'm not sure where to start, I guess? We're being sued, answer filed but not quite sure how to start the arbitration process? 

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Ok, so I'm trying to figure this out. Please bear with me. My very first step is to file an MTC with the county clerk, correct? If so, I'm trying to find exactly how to do that. I'm in Texas and have filed an answer to a JDB lawsuit already. Is this for discovery? Have I missed my chance since the answer has already been filed (denied all)? I am so lost on WHAT to do first. I don't just automatically file for arbitration until a judge agrees to an MTC, yes? Can someone dumb this down for me? Thank you soooo much!

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Sorry your having a hard time with filing a MTC in Texas. earlier post has sample MTC

Sample MTC
(Note that is Sample is to show you an idea of what an MTC should look like. Never Copy/Paste this directly into your motion. Adding case law from your own state is a good idea)

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND 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 stay proceedings pending contractual arbitration.



Respectfully submitted this day ________________, 2014


(Your name), Defendant, pro se



Sample Proposed Order

Even if not required by your court rules (REMEMBER, you are ALWAYS to check your local court rules on requirements to file a motion before filing your MTC), it is probably wise to include a proposed order.  Making the Judge's job easier to grant your MTC can't be a bad thing, IMO.  Here is a sample Proposed Order you can include in a seperate page with your MTC:

 

ORDER TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY THE CASE PENDING ARBITRATION

Case No. xxxxxxx :  COURT OF XXXXXXX COUNTY


_____________ (name of plaintiff)               
VS.                                                                                Case No. XXXXXXX
_____________(your name)

The foregoing Motion having come before the Court and having been duly considered, it is hereby ORDERED:


_______ GRANTED      /    _______ DENIED

Further, this case shall be stayed pending the outcome of private arbitration.


This _____ day of _________________, 2018


By: ________________________

       Judge of the ____________ Court

 

I suggest you try to get help from some member that has gone through this already and will have case law from Texas. Search forum for MTC and Texas. See if you can find a member from Texas that filed a MTC and may have a template they can share with you. I am attaching a Texas pamphlet for Justice Court.  It's not the rules but gives you and overview justice court. 

You may have to file an amended Answer to include Arbitration as a defense, along with an affidavit certifying the credit card agreement you got from plaintiff is the correct agreement and a copy of agreement.  

Quite a bit of stuff hopefully you can find someone that can give you a TEXAS template where you just have to put in you particular information. 

 

 

Small Claim Defendant_202103241440077754 (1) (1).pdf

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On 5/6/2021 at 11:52 PM, Bulldoger said:

I am looking to settle as I don't have time  to litigate got medical issues in family. The offer presented seems to have come from the law offices of Ben Dover and C.  Howle Fields.   I countered with a reasonable low offer.  I expect we will settle before ruling in arbitration.  

this is how I countered.  

There are no guarantees that the Arbitrator will award your cost of Arbitration if I were to lose.  I have and equal chance if not better of winning in Arbitration than in district court. 

            I am open to working a reasonable mutual settlement.   

I am willing to make a single lump sum payment of 25% to settle this account in full provided you dismiss the case with prejudice and do not relist this back on my credit reports. 

FYI thought I post here also just to let everyone know that they accepted my offer and MTC arbitration puts you in better situation to find settlement if that's even all you are looking for.  Thank you  @fisthardcheese 

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OK, I think I have it! I attached a redacted MTC. Please advise. I want to turn this into the clerk tomorrow, as court is on the 30th.

Here's the arb clause from the cc agreement for reference:

ARBITRATION

PLEASE READ THIS PROVISION OF THE AGREEMENT CAREFULLY.

THIS SECTION PROVIDES THAT DISPUTES MAY BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, HAVE A JURY TRIAL OR INITIATE OR PARTICIPATE IN A CLASS ACTION. IN ARBITRATION, DISPUTES ARE RESOLVED BY AN ARBITRATOR, NOT A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN IN COURT. THIS ARBITRATION PROVISION IS GOVERNED BY THE FEDERAL ARBITRATION ACT (FAA), AND SHALL BE INTERPRETED IN THE BROADEST WAY THE LAW WILL ALLOW.

Covered claims

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”).

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.

Except as stated below, all Claims are subject to arbitration,
no matter what legal theory they’re based on or what remedy (damages, or injunctive or declaratory relief) they seek, including Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; Claims made regarding past, present, or future conduct; and Claims made independently or with other claims. This also includes Claims made by or against anyone connected with us
or you or claiming through us or you, or by someone making a claim through us or you, such as a co-applicant, authorized user, employee, agent, representative or an affiliated/parent/subsidiary company.

Arbitration limits

• Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court.

• We won’t initiate arbitration to collect a debt from you unless you choose to arbitrate or assert a Claim against us. If
you assert a Claim against us, we can choose to arbitrate, including actions to collect a debt from you. You may arbitrate on an individual basis Claims brought against you, including Claims to collect a debt.

• Claims brought as part of a class action, private attorney general or other representative action can be arbitrated only on an individual basis. The arbitrator has no authority to arbitrate any claim on a class or representative basis and may award relief only on an individual basis. If arbitration is chosen by any party, neither you nor we may pursue a Claim as part of a class action or other representative action. Claims of 2 or more persons may not be combined in the same arbitration. However, applicants, co-applicants, authorized users on a single account and/or related accounts, or corporate affiliates are here considered as one person.

How arbitration works

Arbitration shall be conducted by the American Arbitration Association (“AAA”) according to this arbitration provision and the applicable AAA arbitration rules in effect when the claim is filed (“AAA Rules”), except where those rules conflict with this arbitration provision. You can obtain copies of the AAA Rules at the AAA’s website (www.adr.org) or by calling 800- 778-7879. You or we may choose to have a hearing, appear at any hearing by phone or other electronic means, and/or be represented by counsel. Any in-person hearing will be held in the same city as the U.S. District Court closest to your billing address.

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 filing fees to the AAA.

The arbitration shall be conducted by a single arbitrator in accord with this arbitration provision and the AAA Rules, which may limit discovery. The arbitrator shall not apply any federal or state rules of civil procedure for discovery, but the arbitrator shall honor claims of privilege recognized at law and shall take reasonable steps to protect account information and other confidential information of either party if requested to do so. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statute of limitations, and may award damages or other relief under applicable law.

The arbitrator shall make any award in writing and, if requested by you or us, may provide a brief statement of
the reasons for the award. An arbitration award shall decide the rights and obligations only of the parties named in the arbitration, and shall not have any bearing on any other person or dispute.

Paying for arbitration fees

  • We will pay your share of the arbitration fee for an arbitration of Claims of $75,000 or less if they are unrelated to debt collection. Otherwise, arbitration fees will be allocated according to the applicable AAA Rules. If we prevail, we may not recover our arbitration fees, unless the arbitrator decides your Claim was frivolous. All parties are responsible for their own attorney’s fees, expert fees and any other expenses, unless the arbitrator awards such fees or expenses to you or us based on applicable law.

    The final award

  • Any award by an arbitrator is final unless a party appeals it
    in writing to the AAA within 30 days of notice of the award. The arbitration appeal shall be determined by a panel of 3 arbitrators. The panel will consider all facts and legal issues anew based on the same evidence presented in the prior arbitration, and will make decisions based on a majority vote. Arbitration fees for the arbitration appeal shall be allocated according to the applicable AAA Rules. An award by a panel on appeal is final. A final award is subject to judicial review as provided by applicable law.

    Survival and Severability of Terms

    This arbitration provision shall survive changes in this Agreement and termination of the account or the relationship between
    you and us, including the bankruptcy of any party and any
    sale of your account, or amounts owed on your account, to another person or entity. If any part of this arbitration provision

    is deemed invalid or unenforceable, the other terms shall remain in force, except that there can be no arbitration of a class or representative Claim. This arbitration provision may not be amended, severed or waived, except as provided in this Agreement or in a written agreement between you and us.

    Rules for rejecting this arbitration provision

    You may reject this arbitration provision by sending a written rejection notice to us at: P.O. Box 790340, St. Louis, MO 63179. Your rejection notice must be mailed within 45 days
    of account opening. Your rejection notice must state that you reject the arbitration provision and include your name, address,

account number and personal signature. No one else may sign the rejection notice. Your rejection notice will not apply to the arbitration provision(s) governing any other account(s) that you have or had with us. Rejection of this arbitration provision won’t affect your other rights or responsibilities under this Agreement, including use of the account.

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5 minutes ago, ktigs said:

OK, I think I have it! I attached a redacted MTC. Please advise. I want to turn this into the clerk tomorrow, as court is on the 30th.

Here's the arb clause from the cc agreement for reference:

ARBITRATION

PLEASE READ THIS PROVISION OF THE AGREEMENT CAREFULLY.

THIS SECTION PROVIDES THAT DISPUTES MAY BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, HAVE A JURY TRIAL OR INITIATE OR PARTICIPATE IN A CLASS ACTION. IN ARBITRATION, DISPUTES ARE RESOLVED BY AN ARBITRATOR, NOT A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN IN COURT. THIS ARBITRATION PROVISION IS GOVERNED BY THE FEDERAL ARBITRATION ACT (FAA), AND SHALL BE INTERPRETED IN THE BROADEST WAY THE LAW WILL ALLOW.

Covered claims

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”).

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.

Except as stated below, all Claims are subject to arbitration,
no matter what legal theory they’re based on or what remedy (damages, or injunctive or declaratory relief) they seek, including Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; Claims made regarding past, present, or future conduct; and Claims made independently or with other claims. This also includes Claims made by or against anyone connected with us
or you or claiming through us or you, or by someone making a claim through us or you, such as a co-applicant, authorized user, employee, agent, representative or an affiliated/parent/subsidiary company.

Arbitration limits

• Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court.

• We won’t initiate arbitration to collect a debt from you unless you choose to arbitrate or assert a Claim against us. If
you assert a Claim against us, we can choose to arbitrate, including actions to collect a debt from you. You may arbitrate on an individual basis Claims brought against you, including Claims to collect a debt.

• Claims brought as part of a class action, private attorney general or other representative action can be arbitrated only on an individual basis. The arbitrator has no authority to arbitrate any claim on a class or representative basis and may award relief only on an individual basis. If arbitration is chosen by any party, neither you nor we may pursue a Claim as part of a class action or other representative action. Claims of 2 or more persons may not be combined in the same arbitration. However, applicants, co-applicants, authorized users on a single account and/or related accounts, or corporate affiliates are here considered as one person.

How arbitration works

Arbitration shall be conducted by the American Arbitration Association (“AAA”) according to this arbitration provision and the applicable AAA arbitration rules in effect when the claim is filed (“AAA Rules”), except where those rules conflict with this arbitration provision. You can obtain copies of the AAA Rules at the AAA’s website (www.adr.org) or by calling 800- 778-7879. You or we may choose to have a hearing, appear at any hearing by phone or other electronic means, and/or be represented by counsel. Any in-person hearing will be held in the same city as the U.S. District Court closest to your billing address.

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 filing fees to the AAA.

The arbitration shall be conducted by a single arbitrator in accord with this arbitration provision and the AAA Rules, which may limit discovery. The arbitrator shall not apply any federal or state rules of civil procedure for discovery, but the arbitrator shall honor claims of privilege recognized at law and shall take reasonable steps to protect account information and other confidential information of either party if requested to do so. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statute of limitations, and may award damages or other relief under applicable law.

The arbitrator shall make any award in writing and, if requested by you or us, may provide a brief statement of
the reasons for the award. An arbitration award shall decide the rights and obligations only of the parties named in the arbitration, and shall not have any bearing on any other person or dispute.

Paying for arbitration fees

  • We will pay your share of the arbitration fee for an arbitration of Claims of $75,000 or less if they are unrelated to debt collection. Otherwise, arbitration fees will be allocated according to the applicable AAA Rules. If we prevail, we may not recover our arbitration fees, unless the arbitrator decides your Claim was frivolous. All parties are responsible for their own attorney’s fees, expert fees and any other expenses, unless the arbitrator awards such fees or expenses to you or us based on applicable law.

    The final award

  • Any award by an arbitrator is final unless a party appeals it
    in writing to the AAA within 30 days of notice of the award. The arbitration appeal shall be determined by a panel of 3 arbitrators. The panel will consider all facts and legal issues anew based on the same evidence presented in the prior arbitration, and will make decisions based on a majority vote. Arbitration fees for the arbitration appeal shall be allocated according to the applicable AAA Rules. An award by a panel on appeal is final. A final award is subject to judicial review as provided by applicable law.

    Survival and Severability of Terms

    This arbitration provision shall survive changes in this Agreement and termination of the account or the relationship between
    you and us, including the bankruptcy of any party and any
    sale of your account, or amounts owed on your account, to another person or entity. If any part of this arbitration provision

    is deemed invalid or unenforceable, the other terms shall remain in force, except that there can be no arbitration of a class or representative Claim. This arbitration provision may not be amended, severed or waived, except as provided in this Agreement or in a written agreement between you and us.

    Rules for rejecting this arbitration provision

    You may reject this arbitration provision by sending a written rejection notice to us at: P.O. Box 790340, St. Louis, MO 63179. Your rejection notice must be mailed within 45 days
    of account opening. Your rejection notice must state that you reject the arbitration provision and include your name, address,

account number and personal signature. No one else may sign the rejection notice. Your rejection notice will not apply to the arbitration provision(s) governing any other account(s) that you have or had with us. Rejection of this arbitration provision won’t affect your other rights or responsibilities under this Agreement, including use of the account.

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47 minutes ago, Bulldoger said:

Since the plaintiff filed the credit card agreement does he need to provide and affidavit for agreement?

 

That I wasn’t sure of? Theirs is a very bad quality and small copy.

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42 minutes ago, ktigs said:

That I wasn’t sure of? Theirs is a very bad quality and small copy.

If you can find a clearer copy online you can submit both one as original filed copy and one as legible copy. 

 your Arbitration contract states: 

"Arbitration limits

• Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court."

If you read the rules section (a) refers to small claim cases and (b) refers to Debt claim case.  

RULE 500.3. APPLICATION OF RULES IN JUSTICE COURT CASES

(a) Small Claims Case. A small claims case is a lawsuit brought for the recovery of money damages, civil penalties, personal property, or other relief allowed by law. The claim can be for no more than $20,000, excluding statutory interest and court costs but including Page 209 attorney fees, if any. Small claims cases are governed by Rules 500-507 of Part V of the Rules of Civil Procedure.

(b) Debt Claim Case. A debt claim case is a lawsuit brought to recover a debt by an assignee of a claim, a debt collector or collection agency, a financial institution, or a person or entity primarily engaged in the business of lending money at interest. The claim can be for no more than $20,000, excluding statutory interest and court costs but including attorney fees, if any. Debt claim cases in justice court are governed by Rules 500-507 and 508 of Part V of the Rules of Civil Procedure. To the extent of any conflict between Rule 508 and the rest of Part V, Rule 508 applies. 

I would in your MEMORANDUM OF POINTS AND AUTHORTIES SUPPORTING
DEFENDANT'S MOTION TO COMPEL PRIVATE/CONTRACTUAL
ARBITRATION  argue to fact that if the (party that drafts rules find out who does and insert) intended debt claims to be grouped with small claim case they would not have created separate sections.  Rule drafters chose to have two separate sections one applying to small claims case and one applying to debt claims case.  If they wish debt claims to be considered as a small claim case they would have included debt claim case in same section or a subsection of small claim case. The fact that debt claim case has it's own section makes a prima facie case that a debt case cannot be considered a small claim case regardless of the judgment amount sought. 

 

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1 hour ago, Bulldoger said:

If you can find a clearer copy online you can submit both one as original filed copy and one as legible copy. 

 your Arbitration contract states: 

"Arbitration limits

• Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court."

If you read the rules section (a) refers to small claim cases and (b) refers to Debt claim case.  

RULE 500.3. APPLICATION OF RULES IN JUSTICE COURT CASES

(a) Small Claims Case. A small claims case is a lawsuit brought for the recovery of money damages, civil penalties, personal property, or other relief allowed by law. The claim can be for no more than $20,000, excluding statutory interest and court costs but including Page 209 attorney fees, if any. Small claims cases are governed by Rules 500-507 of Part V of the Rules of Civil Procedure.

(b) Debt Claim Case. A debt claim case is a lawsuit brought to recover a debt by an assignee of a claim, a debt collector or collection agency, a financial institution, or a person or entity primarily engaged in the business of lending money at interest. The claim can be for no more than $20,000, excluding statutory interest and court costs but including attorney fees, if any. Debt claim cases in justice court are governed by Rules 500-507 and 508 of Part V of the Rules of Civil Procedure. To the extent of any conflict between Rule 508 and the rest of Part V, Rule 508 applies. 

I would in your MEMORANDUM OF POINTS AND AUTHORTIES SUPPORTING
DEFENDANT'S MOTION TO COMPEL PRIVATE/CONTRACTUAL
ARBITRATION  argue to fact that if the (party that drafts rules find out who does and insert) intended debt claims to be grouped with small claim case they would not have created separate sections.  Rule drafters chose to have two separate sections one applying to small claims case and one applying to debt claims case.  If they wish debt claims to be considered as a small claim case they would have included debt claim case in same section or a subsection of small claim case. The fact that debt claim case has it's own section makes a prima facie case that a debt case cannot be considered a small claim case regardless of the judgment amount sought. 

 

I found the archives of the original cc agreement. I had already printed one out to submit with the motion. 

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1 hour ago, ktigs said:

I found the archives of the original cc agreement. I had already printed one out to submit with the motion. 

how are u handling the small claims arbitration issue? 

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7 hours ago, Bulldoger said:

how are u handling the small claims arbitration issue? 

From my understanding, Texas has small claims court and debt court. Anything that debt collectors sue for falls under debt court. It’s ultimately up to the judge to grant once the MTC is filled - to my knowledge.

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UPDATE:

 

I called the local law library just now and they did confirm that I can submit the motion, but it’s ultimately up to the judge if he’ll grant the motion. Wish me luck! Turning this in today!

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7 hours ago, ktigs said:

From my understanding, Texas has small claims court and debt court. Anything that debt collectors sue for falls under debt court. It’s ultimately up to the judge to grant once the MTC is filled - to my knowledge.

Yes that is true

7 hours ago, ktigs said:

UPDATE:

 

I called the local law library just now and they did confirm that I can submit the motion, but it’s ultimately up to the judge if he’ll grant the motion. Wish me luck! Turning this in today!

why flip a coin. all you need is a ponderous (one that is more likely then not) argument.  

JudgeA always says anything less than 10K is small claims  and deny MTCs.  

JudgeB says there are two different courts and small claims clause does not apply and grants MTC all the time. 

That's a toss of the coin. 50/50 chance you get JudgeB.  What if you end up with JudgeA.

You want an argument that JudgeB is correct inorder to change JudgeA mine.  So in your MTC you want to point out that  the (drafting party of rules google to find out) expressly intended to have two claim courts. If they intended debt claims to be included with small claim cases they would not have created separate sections in the rules.  (Rule drafters insert who they are Texas Supreme Court rule committee some thing like that I don't know but some party does)  chose to have two separate sections one applying to solely to small claims case and one applying expressly to debt claims case.  If they wish debt claims to be considered as a small claim case they would have included debt claim case rules into same section or a subsection of small claim case rules. The fact that debt claim case has it's own section equal to small claims makes a prima facie case that a debt case cannot be considered a small claim case regardless of the dollar amount of suit.  Therefore, the small claims exception of the Citibank credit card agreement Exhibit A does not apply as this case was filed in Debt court not small claims court.  

This argument may not even fly if JudgeA is set in his ways, he may not even read it but you then will have a reason to file an appeal JudgeA's decision and have another shot at your MTC.  

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13 hours ago, ktigs said:

From my understanding, Texas has small claims court and debt court. Anything that debt collectors sue for falls under debt court. It’s ultimately up to the judge to grant once the MTC is filled - to my knowledge.

There is no such thing as a "debt court" in Texas.  Small claims cases and debt claim cases are both governed by Rules 500-507 of Part V of the Rules of Civil Procedure.  Either could be in the same court under the same judge on any given day.

5 hours ago, Bulldoger said:

Yes that is true

why flip a coin. all you need is a ponderous (one that is more likely then not) argument.  

JudgeA always says anything less than 10K is small claims  and deny MTCs.  

JudgeB says there are two different courts and small claims clause does not apply and grants MTC all the time. 

That's a toss of the coin. 50/50 chance you get JudgeB.  What if you end up with JudgeA...

 

Wrong again.  It is nowhere near 50-50. Look through the archives here and count how many times your "JudgeB" episode has occurred.  As I said after your last fumble in @Ktigs' thread, nearly every time I tell someone that small claims courts were abolished in Texas there is one person here with obviously little skills in arguing a case who keeps repeatedly bringing up the fact that the judge in their case made such a ruling. 

The key word in the agreement that @Ktigs quoted is "court" It says Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims courtThe wording in the TRCP is "Small Claims CaseA small claims case is a lawsuit brought for the recovery of money damages, civil penalties, personal property, or other relief allowed by law. The claim can be for no more than $20,000...

Since small claims courts were abolished in 2013 it is therefore impossible to file any case in a small claims court as they no longer exist.  If the card member agreement said something like  Individual Claims filed as a small claims case are not subject to arbitration... then the opposing attorney may have a leg to stand on. 

 

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2 minutes ago, texasrocker said:

There is no such thing as a "debt court" in Texas.  Small claims cases and debt claim cases are both governed by Rules 500-507 of Part V of the Rules of Civil Procedure.  Either could be in the same court under the same judge on any given day.

Wrong again.  It is nowhere near 50-50. Look through the archives here and count how many times a "JudgeB" episode has happened.  As I said after your last fumble in @Ktigs' thread, nearly every time I tell someone that small claims courts were abolished in Texas there is one person here with obviously little skills in arguing a case who keeps repeatedly bringing up the fact that the judge in their case made such a ruling. 

The key word in the agreement that @Ktigs quoted is "court" It says Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims courtThe wording in the TRCP is "Small Claims CaseA small claims case is a lawsuit brought for the recovery of money damages, civil penalties, personal property, or other relief allowed by law. The claim can be for no more than $20,000...

Since small claims courts were abolished in 2013 it is therefore impossible to file any case in a small claims court as they no longer exist.  If the card member agreement said something like  Individual Claims filed as a small claims case are not subject to arbitration... then the opposing attorney may have a leg to stand on. 

 

Since small claims courts were abolished in 2013 it is therefore impossible to file any case in a small claims court as they no longer exist.  So there is no argument needed.  And if he gets a Judge that believes a debt claim filed in his court is small claims court is there an appeal process. 

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13 minutes ago, Bulldoger said:

Since small claims courts were abolished in 2013 it is therefore impossible to file any case in a small claims court as they no longer exist.  So there is no argument needed.  And if he gets a Judge that believes a debt claim filed in his court is small claims court is there an appeal process. 

There certainly is an argument needed if the plaintiff's attorney tries to convince the judge that it is a small claims court.  That is what I meant when I said the person that keeps bringing it up didn't know how to argue their case.  He/she apparently just sat there like a whipped pup.

Of course there is an appeal process but  pro se's don't have the skills or time to learn the process or the money to hire a good attorney.

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19 minutes ago, texasrocker said:

There certainly is an argument needed if the plaintiff's attorney tries to convince the judge that it is a small claims court.  That is what I meant when I said the person that keeps bringing it up didn't know how to argue their case.  He/she apparently just sat there like whipped pup.

Of course there is an appeal process but  pro se's don't have the skills or time to learn the process or the money to hire a good attorney.

If the best argument is small claims courts were abolished in 2013 it is therefore impossible to file any case in a small claims court as they no longer exist. Should he put that in his MTC. 

https://texaslawhelp.org/article/how-sue-justice-court-small-claims-court

 

This guide, written by the Texas Young Lawyers Association, has detailed information on how to file a lawsuit in justice court, also known as small claims court.

 

The information and forms available on this website are free. They are not for sale. By using this website, you agree not to sell or make a profit in any way from any information or forms that you obtained through this website. 

Funding: This website is supported by the Texas Access to Justice Foundation. The Texas Bar Foundation provided funding for website design.

For more useful information go to TexasCourtHelp, a website of the Texas Office of Court Administration's website.

© 2001–2021. TexasLawHelp.org All Rights Reserved.

 

This Young Lawyer Association site equates Justice court as small claims court.  What if attorney argues that the lowest court in state is obviously small claims court. 

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looking at Texas Court Structure Justice court would equate to District court here in VA.  In VA we have small claim courts where Attorneys are not allowed and rules of court are relaxed they do occur in the same physical courtrooms as district courts but are handled differently.  Texas doesn't have a court where the rules are relaxed. Prior to 2013 did Texas have a court which ran only wth less strict rules ? If so can that be a defense if plaintiff argues they filed in small claims court.  

Trying to help ktigs out. I know if I was plantiff console I would argue that case was filed in lowest court and therefore in small claims court. 

 

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