Deluxe247

Being sued by Winn Law Group/ Wells Fargo (California)

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1.    Who is the named plaintiff in the suit?

Wells Fargo Bank NA

2.    What is the name of the law firm handling the suit?

Winn Law group

3. How much are you being sued for?

$6,500

3.    Who is the original creditor?

Wells Fargo

4.    How do you know you are being sued?

I was personally served

5.    How were you served?

I was personally served

6.    Was the service legal as required by your state?

yes

8. What was your correspondence (if any) with the people suing you

before you think you were being sued? 

I was sent letters, did not respond ever

9. What state and county do you live in? 

 CA, YOLO county

10. When is the last time you paid on this account?

Feb 2017

11. When did you open the account?

2010

12. What is the SOL on the debt? 4 years

 13. What is the status of your case? Suit served? Motions filed?

Suit Served, 3/18/2018

 

 14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  No.

 15. Did you request debt validation before the suit was filed? No.

 16. How long do you have to respond to the suit? 30 days

 17. What evidence did they send with the summons?

none, summons includes no evidence just states that I opened an account, did not pay, and now owe them, it mentions 3 causes of action: account stated, money lent, open book account. It does not detail anything besides the amount owed, my last payment, and a credit made to the account reducing the balance <$100 Im assuming for the payment i made

 

I believe since it is wells fargo that arbitration is an option, it is in their credit card agreement and i am in the process of getting the specific one i agreed to with this card mailed to me. Also the court I am being sued in has it's own arbitration but I am assuming this is not ideal since their may be no/low fees and thats the main reason they would drop the suit. 

I was planning on sending a general denial with my mtc arbitration with JAMS but wanted to get feedback.

 

 

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here is the arbitration section of wells fargo

Arbitration

(31) Dispute Resolution Program: Arbitration Agreement.

  1. Binding Arbitration. You and Wells Fargo Bank, N.A. (the "Bank") agree that if a Dispute arises between you and the Bank, upon demand by either you or the Bank, the Dispute shall be resolved by the following arbitration process. The foregoing notwithstanding, the Bank shall not initiate an arbitration to collect a consumer debt, but reserves the right to arbitrate all other disputes with its consumer customers. A "Dispute" is any unresolved disagreement between you and the Bank. It includes any disagreement relating in any way to the Card or related services, Accounts, or matters; to your use of any of the Bank's banking locations or facilities; or to any means you may use to access the Bank. It includes claims based on broken promises or contracts, torts, or other wrongful actions. It also includes statutory, common law, and equitable claims. A Dispute also includes any disagreements about the meaning or application of this Arbitration Agreement. This Arbitration Agreement shall survive the payment or closure of your Account. YOU UNDERSTAND AND AGREE THAT YOU AND THE BANK ARE WAIVING THE RIGHT TO A JURY TRIAL OR TRIAL BEFORE A JUDGE IN A PUBLIC COURT. As the sole exception to this Arbitration Agreement, you and the Bank retain the right to pursue in small claims court any Dispute that is within that court's jurisdiction. If either you or the Bank fails to submit to binding arbitration following lawful demand, the party so failing bears all costs and expenses incurred by the other in compelling arbitration.
     
  2. Arbitration Procedure; Severability. Either you or the Bank may submit a Dispute to binding arbitration at any time notwithstanding that a lawsuit or other proceeding has been previously commenced. NEITHER YOU NOR THE BANK SHALL BE ENTITLED TO JOIN OR CONSOLIDATE DISPUTES BY OR AGAINST OTHERS IN ANY ARBITRATION, OR TO INCLUDE IN ANY ARBITRATION ANY DISPUTE AS A REPRESENTATIVE OR MEMBER OF A CLASS, OR TO ACT IN ANY ARBITRATION IN THE INTEREST OF THE GENERAL PUBLIC OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. Each arbitration, including the selection of the arbitrator(s), shall be administered by the American Arbitration Association (AAA), or such other administrator as you and the Bank may mutually agree to (the AAA or such other mutually agreeable administrator to be referred to hereinafter as the "Arbitration Administrator"), according to the Commercial Arbitration Rules and the Supplemental Procedures for Consumer Related Disputes ("AAA Rules"). To the extent that there is any variance between the AAA Rules and this Arbitration Agreement, this Arbitration Agreement shall control. Arbitrator(s) must be members of the state bar where the arbitration is held, with expertise in the substantive laws applicable to the subject matter of the Dispute. No arbitrator or other party to an arbitration proceeding may disclose the existence, content, or results thereof, except for disclosures of information by a party required in the ordinary course of its business or by applicable law or regulation. You and the Bank (the "Parties") agree that in this relationship: (1) The Parties are participating in transactions involving interstate commerce; and (2) This Arbitration Agreement and any resulting arbitration are governed by the provisions of the Federal Arbitration Act (Title 9 of the United States Code), and, to the extent any provision of that Act is inapplicable, unenforceable or invalid, the laws of the state of South Dakota. If any of the provisions of this Arbitration Agreement dealing with class action, class arbitration, private attorney general action, other representative action, joinder, or consolidation is found to be illegal or unenforceable, that invalid provision shall not be severable and this entire Arbitration Agreement shall be unenforceable.
     
  3. Rights Preserved. This Arbitration Agreement does not prohibit the Parties from exercising any lawful rights or using other available remedies to preserve, foreclose, or obtain possession of real or personal property; exercise self-help remedies, including setoff and repossession rights; or obtain provisional or ancillary remedies such as injunctive relief, attachment, garnishment, or the appointment of a receiver by a court of competent jurisdiction. Any statute of limitations applicable to any Dispute applies to any arbitration between the Parties. The provisions of this Arbitration Agreement shall survive termination, amendment, or expiration of the Card or any other relationship between you and the Bank.
     
  4. Fees and Expenses of Arbitration. Arbitration fees shall be determined by the rules or procedures of the Arbitration Administrator, unless limited by applicable law. Please check with the Arbitration Administrator to determine the fees applicable to any arbitration you may file. If the applicable law of the state in which you opened your Account limits the amount of fees and expenses to be paid by you, then no allocation of fees and expenses to you shall exceed this limitation. Unless inconsistent with applicable law, each of us shall bear the expense of our own attorney, expert and witness fees, regardless of which of us prevails in the arbitration.

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On 3/21/2018 at 5:57 PM, BackFromTheDebt said:

In some states $6500 would be small claims.  In others it is not.  

Is this small claims?

If so, the arbitration agreement won't help you.  

it is not filed in small claims

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11 hours ago, Deluxe247 said:

it is not filed in small claims

If I were in your shoes, I would read up on this forum and outside the forum as much as I could about:

filing an MTC

filing a claim in AAA (look at their web site)

the civil rules of procedure in your jurisdiction.  Not just your state, sometimes one particular county has its own rules.  Mine does.  

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5 hours ago, BackFromTheDebt said:

If I were in your shoes, I would read up on this forum and outside the forum as much as I could about:

filing an MTC

filing a claim in AAA (look at their web site)

the civil rules of procedure in your jurisdiction.  Not just your state, sometimes one particular county has its own rules.  Mine does.  

Thanks for the advice, so my plan was to submit an answer to the summons along with the MTC arbitration with JAMS. Can I force them to use JAMS even though they have AAA in the credit card agreement and the court has it's own arbitration that can be used? (Yolo County Superior Court).  I have been trying to figure out the correct way to do and any advice people would have. I have heard arbitration with an original creditor can fail. Googling the correct procedure of when/how I do arbitration in CA hasn't been completely clear so I'm hoping someone can guide me so I don't do it wrong. Thanks in advance.

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On 3/20/2018 at 5:04 PM, Deluxe247 said:
2 hours ago, BackFromTheDebt said:

You do not want court arbitration.

If the card agreement ONLY lists AAA, then your only choice is AAA.  

"Each arbitration, including the selection of the arbitrator(s), shall be administered by the American Arbitration Association (AAA), or such other administrator as you and the Bank may mutually agree to" This means I can insist on JAMS right?

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NO.

You could suggest JAMS, and the bank could shoot it down.

A history lesson -- in the old days, many of the banks used NAF for arbitration.  NAF was based in Minnesota, and was essentially a rubber stamp for the debt collectors.  The MN AG decided this was fraud, and basically put NAF out of business.  

But, most of the card agreements had NAF on them.  

That put them in a bind.  There were times when the alleged debtor would elect arbitration.  They couldn't arbitrate in NAF, but they couldn't NOT arbitrate.  Some banks had to walk away from some debt that way.  

 

This way, the bank has a fallback.  Suppose AAA goes out of business.  With this clause, the Catch-22 has disappeared.  If the agreement says AAA or a mutually agreeable fallback, they could agree to JAMS --IF AAA goes out of business.  If AAA doesn't go out of business, they can veto JAMS because it isn't mutually agreeable.  

 

It is POSSIBLE that you could be dealing with an attorney who doesn't know what he is doing, and that this greenhorn attorney would agree to JAMS.  If the attorney knows what s/he is doing, you are stuck with AAA.

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7 hours ago, BackFromTheDebt said:

NO.

You could suggest JAMS, and the bank could shoot it down.

A history lesson -- in the old days, many of the banks used NAF for arbitration.  NAF was based in Minnesota, and was essentially a rubber stamp for the debt collectors.  The MN AG decided this was fraud, and basically put NAF out of business.  

But, most of the card agreements had NAF on them.  

That put them in a bind.  There were times when the alleged debtor would elect arbitration.  They couldn't arbitrate in NAF, but they couldn't NOT arbitrate.  Some banks had to walk away from some debt that way.  

 

This way, the bank has a fallback.  Suppose AAA goes out of business.  With this clause, the Catch-22 has disappeared.  If the agreement says AAA or a mutually agreeable fallback, they could agree to JAMS --IF AAA goes out of business.  If AAA doesn't go out of business, they can veto JAMS because it isn't mutually agreeable.  

 

It is POSSIBLE that you could be dealing with an attorney who doesn't know what he is doing, and that this greenhorn attorney would agree to JAMS.  If the attorney knows what s/he is doing, you are stuck with AAA.

Thank you, I'm not sure if you're familiar with California law or if someone else can chime in, but do I file the MTC arbitration with my answer to the summons, before, or after?

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I think I found the answer to my question;

(c) The failure of a defendant to file a petition pursuant to Section 1281.2 at or before the time the defendant answers the complaint filed pursuant to subdivision (a) is a waiver of the defendant's right to compel arbitration.

Now I am trying to figure out if it would be best to go with AAA like in the agreement or should I try and get them to accept JAMS. I am worried if I go with JAMS my mtc will be denied and then I would have to file a new mtc with AAA? would appreciate some advice, I did notice the closest JAMS location is very close to my home so maybe that could be used as a reason I would prefer to use them or in the grand scheme of arbitration the difference between JAMS and AAA is negligible. 

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On 3/26/2018 at 11:54 AM, BackFromTheDebt said:

NO.

You could suggest JAMS, and the bank could shoot it down.

A history lesson -- in the old days, many of the banks used NAF for arbitration.  NAF was based in Minnesota, and was essentially a rubber stamp for the debt collectors.  The MN AG decided this was fraud, and basically put NAF out of business.  

But, most of the card agreements had NAF on them.  

That put them in a bind.  There were times when the alleged debtor would elect arbitration.  They couldn't arbitrate in NAF, but they couldn't NOT arbitrate.  Some banks had to walk away from some debt that way.  

 

This way, the bank has a fallback.  Suppose AAA goes out of business.  With this clause, the Catch-22 has disappeared.  If the agreement says AAA or a mutually agreeable fallback, they could agree to JAMS --IF AAA goes out of business.  If AAA doesn't go out of business, they can veto JAMS because it isn't mutually agreeable.  

 

It is POSSIBLE that you could be dealing with an attorney who doesn't know what he is doing, and that this greenhorn attorney would agree to JAMS.  If the attorney knows what s/he is doing, you are stuck with AAA.

So I answered the complaint with a general denial, then submitted a MTC arbitration with AAA. The court clerk where I submitted the general denial, motion with supporting exhibits, and fee waiver for the motion said the next step is I then need to submit a notice of hearing  and proof of service I am assuming to court and the attorney for WELLS FARGO.  Can anyone help me figure out how to do this?

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19 minutes ago, BackFromTheDebt said:

I'm confused.  

Do you mean you filed with AAA and submitted a MTC to the court?

I have not filed anything with AAA yet as I assumed that'd be premature since my MTC hasnt been granted. I have submitted a MTC to the court stating I want arbitration with AAA. I now have to submit a notice of hearing and proof of service I am assuming the court and their lawyer which is what I need help with.

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