Jump to content

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


fisthardcheese

Recommended Posts

Ok, so I filed this motion yesterday with the clerk. We will see what happens? We’ve dealt with this judge on two PRA cases already. They sued twice for the same debt. Both have been dismissed because PRA didn’t show up to court, but we did. When a rent-a-lawyer spoke up and offered to take the case, the judge shut him down immediately. This judge seems to be pretty fair, so far.

If the attorney does bring up the fact that it is small claims, do I have an argument at this point?

Link to comment
Share on other sites

2 hours ago, ktigs said:

Ok, so I filed this motion yesterday with the clerk. We will see what happens? We’ve dealt with this judge on two PRA cases already. They sued twice for the same debt. Both have been dismissed because PRA didn’t show up to court, but we did. When a rent-a-lawyer spoke up and offered to take the case, the judge shut him down immediately. This judge seems to be pretty fair, so far.

If the attorney does bring up the fact that it is small claims, do I have an argument at this point?

 

1 hour ago, BackFromTheDebt said:

I think @texasrocker already answered that question 

 @ktigs 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.

Link to comment
Share on other sites

21 minutes ago, Bulldoger said:

 

 @ktigs 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.

Thank you! That’s what I pulled from that conversation to. Sorry I was just waking up! I only had one eye open this morning 🤪

Link to comment
Share on other sites

On 6/11/2021 at 8:59 PM, Bulldoger said:

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. 

Absolutely not!  Never open up a can of worms that could ultimately turn the tables against you and help out the opposition. 

Nowhere in the TRCP does it state that JP courts are also known as small claims courts.  It only says that small claims cases are now governed by Rules 500-507.  JP courts and small claims courts co-existed before the changes were made in 2013.  Once again, small claims courts were abolished.  Small claims cases that were previously heard in small claims courts are now handled in JP courts.  

Anyone can design and publish a website containing anything on it that they so desire; that does not mean it  is necessarily factual or that their opinions are derived from any official source. 

This is not the only dilemma that has risen from the "new rules" enacted in 2013.  There have been major problems a few times with judges denying the defendant's right to begin discovery.  Now if you are sued in a JP court you must first obtain the court's approval to begin discovery and a few arrogant judges have decided to refuse the request. 

  • Like 1
Link to comment
Share on other sites

21 hours ago, Bulldoger said:

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. 

 

You really are a piece of work- first you want Texans to believe that a Texas JP court is also known as a small claims court and to top that off since JP courts are the lowest court it automatically makes them a small claims court.  If you would simply take heed of the applicable TRCP and the links that I provided in @Ktig's thread you could see for yourself before running amok with more conjecture and assumptions that will sooner than later lead someone astray.

In Texas district courts are at about the middle in the hierarchy. JP and municipal courts are the bottom level, then County, then District, then Court of Appeals, and finally state Supreme Court and Court of Criminal Appeals equally share the top level.

Stop obsessing over the small claims clause.  As I told you earlier it is so rarely even brought up in court there is very little chance that it will even matter.   

  • Like 1
  • Thanks 1
Link to comment
Share on other sites

  • 3 weeks later...

Thanks to everyone for wonderful information and guidance in this thread. I am following all the steps, and have drafted a motion to compel, an affidavit, and an order. Following fisthardcheese's post, I would like to also file an answer, not just the MTC, but I have no clue how to draft an answer, and haven't been able to find an example. I know that I will include the following: 

image.png.12286f8d81d1bea801abe041b9deb97d.png

 

Can anyone provide me with some guidance on what the Answer should say, or perhaps paste in a good example? 

Thanks!

 

Link to comment
Share on other sites

16 hours ago, Mistymouse4590 said:

Thanks to everyone for wonderful information and guidance in this thread. I am following all the steps, and have drafted a motion to compel, an affidavit, and an order. Following fisthardcheese's post, I would like to also file an answer, not just the MTC, but I have no clue how to draft an answer, and haven't been able to find an example. I know that I will include the following: 

image.png.12286f8d81d1bea801abe041b9deb97d.png

 

Can anyone provide me with some guidance on what the Answer should say, or perhaps paste in a good example? 

Thanks!

 

Essentially you deny all their allegations, except your name and address, and include that affirmative defense.

Link to comment
Share on other sites

9 hours ago, Mistymouse4590 said:

Thanks nobk4me, I don't even have any clue how I would phrase all that so that it sounds professional.

@Mistymouse4590 It would be best for you to start your own thread and include your specific information, redacted for privacy. This is the best way for other members to offer any help they can. 

Does your court have a website with court approved fill-in forms? Have you looked for a legal resource link for pro se defendants that explains how you prepare and file an answer? Do you know the deadline for filing your answer? 

@Goody_Ouchless are you able to offer any suggestions for Arizona pro se help? 

Link to comment
Share on other sites

Thanks for the advice Brotherskeeper. I'll start a new thread - good idea. And yes, I have researched my court, and have downloaded the court-approved fill-in form for the answer, but I had hoped to prepare a more professional looking document. My deadline for filing is 18 July. 

Thanks again!

Link to comment
Share on other sites

  • 2 weeks later...
On 7/1/2021 at 11:33 AM, nobk4me said:

Essentially you deny all their allegations, except your name and address, and include that affirmative defense.

Their allegations include that a promissory note was executed by the defendant (and the date it was executed), that an agreement was made to pay the loan, that payments weren't made and that the money is owed. Do we deny all four of those allegations? 

Link to comment
Share on other sites

19 hours ago, Mistymouse4590 said:

Their allegations include that a promissory note was executed by the defendant (and the date it was executed), that an agreement was made to pay the loan, that payments weren't made and that the money is owed. Do we deny all four of those allegations? 

Yes.

Link to comment
Share on other sites

On 7/15/2021 at 3:09 PM, Mistymouse4590 said:

on what grounds should we deny those (or do i not have to specify in the answer)? I assume I'll be asked about these denials at a later date.

 

I don't know your state's rules of practice, but typically you just deny at the answer stage and don't have to specify the grounds at this time.  Your answer, with denials, is basically saying "Prove it."

Link to comment
Share on other sites

20 hours ago, Mistymouse4590 said:

Awesome. Thank you so much! I will update here with results. Appreciate the help and guidance very much.

Follow up:  if you don't deny, but rather admit their allegations, they don't have to prove it.  They win, game over.

Link to comment
Share on other sites

Hello I'm new here, great threat.  I was just served with a lawsuit from LVNV via a local Attorney for a charged off Creditone account.  I'm preparing my answer to respond to the lawsuit and was going to include the motion to compel Arbitration with the answer, since the original CreditOne agreement has a arbitration clause.  The case is in the Justice Court in Harrison County Mississippi (small claims) and I cannot seem to find previous cases to include in the motion, can anyone guide me in the right direction? Thanks for all the great info.

Link to comment
Share on other sites

16 minutes ago, tunatrader said:

The case is in the Justice Court in Harrison County Mississippi (small claims) and I cannot seem to find previous cases to include in the motion,

Unfortunately while Credit1 does have an arbitration clause they also have a carve out for debt cases in small claims court.  Please re-read your arbitration clause in full.  If that clause is there you cannot use arbitration as an option.

  • Like 1
Link to comment
Share on other sites

  • 3 weeks later...
On 6/10/2021 at 7:16 PM, 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.

REDACTED Screen Shot 2021-06-10 at 7.05.23 PM.jpg

REDACTED Screen Shot 2021-06-10 at 7.00.55 PM.jpg

ktigs, thank you for sharing your experience. I am new here. I am looking for a MTC Arbitration in Texas.  Did you end up using this example? Are the citations in this example from Texas cases? Was your MTC accepted as shown here, or did you run into any issues with it that needed to be addressed?

After some of the warnings mentioned early on in this thread, I would just like to be sure we follow the requirements of the Texas County courts.  I am having a difficult time finding a MTC example that is specific to Texas.

If anyone can point me in the right direction I would greatly appreciate it.

Link to comment
Share on other sites

28 minutes ago, guzoontite said:

ktigs, thank you for sharing your experience. I am new here. I am looking for a MTC Arbitration in Texas.  Did you end up using this example? Are the citations in this example from Texas cases? Was your MTC accepted as shown here, or did you run into any issues with it that needed to be addressed?

After some of the warnings mentioned early on in this thread, I would just like to be sure we follow the requirements of the Texas County courts.  I am having a difficult time finding a MTC example that is specific to Texas.

If anyone can point me in the right direction I would greatly appreciate it.

The citations are from the U.S. Supreme Court.

Link to comment
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.

×
×
  • Create New...