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Arbitration - Cavalry SPV in California


mrb0x
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Hi All,

Haven't been served yet, but did receive a intent to file lawsuit letter. I have filled out the JAMS Demand form and will be sending it out today. I'm in California and the amount is just less than $2,000 for Citi. I've gone over the CC agreement and see that it does state that if filed in small claims then claims are not subject to arbitration.

My question is, although filing before being served, would they still serve me and try to take to court? 

Another thing is, I am told that I need to pay the $250 by JAMS, but according to @fisthardcheese post regarding arbitration, it says to not pay initially and they will send a payment request afterwards.

 I've sent the forms to JAMS and the attorney, how likely will it be sent back due to non payment?

Now, do I just sit back and wait? Any other things I should read up on and be prepared for?

 

Thank you for all the help!

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Should they?  

No.

Will they?

Probably not, but they might.  That would be a mistake on their part which could cost them. 

Make sure to send the JAMS complaint copy to their attorney.

As for myself, I was once sued in small claims when I had already filed in JAMS.   The law firm had the case dismissed w/o prejudice immediately, and not long after agreed to dismiss it with prejudice.  

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15 minutes ago, BackFromTheDebt said:

Should they?  

No.

Will they?

Probably not, but they might.  That would be a mistake on their part which could cost them. 

Make sure to send the JAMS complaint copy to their attorney.

As for myself, I was once sued in small claims when I had already filed in JAMS.   The law firm had the case dismissed w/o prejudice immediately, and not long after agreed to dismiss it with prejudice.  

@BackFromTheDebt Thank you for the quick reply!

When sending the copy to the attorney do I just send them a copy of the demand for arbitration form? Should I include a cover letter of some sort stating that I am electing arbitration?

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55 minutes ago, mrb0x said:

@BackFromTheDebt Thank you for the quick reply!

When sending the copy to the attorney do I just send them a copy of the demand for arbitration form? Should I include a cover letter of some sort stating that I am electing arbitration?

Send them what you send to JAMS.

If you are trying to keep them from accidentally suing you, a cover letter might make it less confusing for them.  Couldn't hurt.  

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You say you were not served, but have they filed anything in court yet?  If not, you are good.  If they did, this strategy may not be as solid.

My cover letter is always this simple:  "Dear attorney, Please see the attached demand for JAMS arbitration per the card agreement regarding the ongoing disputed alleged debt (or violation claims you may have alleged). Regards".

If your card agreement was silent on who pays for JAMS, then JAMS will send you a confirmation letter that they received your case and ask for the $250 before proceeding.  If this were me, I would pay the $250 before they file suit in court to make your arbitration case official.

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@fisthardcheese I've checked my county's superior court and have looked for filed cases between March until now and do not see anything that has been filed against my name.

I have received a reply from JAMS stating they have received my request with a REF #. Is this the case number? Also, I have not paid the $250 fee and they did not mention it.

They are asking if I have a contact person for the respondent, but I do not, only info I have is the attorney contact. Will this be an issue?

*Edit / Update*

Been a few emails going back and forth asking for more information, but now have a case manager assigned and they will be contacting me next week.

Any advice on what to expect or should prepare? 

Thank you!

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@fisthardcheese Thank you. It is not Midland, rather Cavalry. Today I received a rejection letter of my settlement offer from the attorney and also a solicitation mail from another lawyer saying they could help me as there was a case filed under my name against said JDB. I was dumbfounded by it so I went back to check given that the solicitation mail had the case number and low and behold there was a case filed on May 7th. Suprisingly, its not listed as a small claims case, but rather a civil case. That's why I didn't find anything the first time....

So the site lists Case Summary (Case Type: RULE 3.740 COLLECTIONS), the Register of Actions and such, with a summons issued and etc. I have yet to receive the summons, but as you know, I've started the arbitration process with JAMS, in which they will be contacting me early next week, hopefully Monday.

I'm sort of freaking out now, trying to be calm... lol.. What are the next steps? Am I SOL? Do I wait to be summoned and then request MTC?

Happy Mother's Day to all you mothers, hope you all have a good one and thank you for the advice and will look forward to more advice in the future with this case!

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That is why they rejected your offer.  They knew they filed suit but you did not.  Now just wait to be served.  After you are served, I would file an answer denying all allegations with the affirmative defense of "lack of subject matter jurisdiction" and cite the arbitration clause in the card agreement as the reason the court has no jurisdiction over this matter.

I would file an MTC at the same time and attach your JAMS fling as proof that you already started the arbitration case.

As of now, I would do nothing with the JAMS case, except that if JAMS asks for payment from the JDB again and says they will close the case if payment is not received, I would respond (cc to the attorney) and let JAMS know that you are in the process of obtaining a motion to compel arbitration from XXX Court and that you ask that JAMS allow you 60 days (or best estimate according to the court rules on Motion time limits) to get that MTC granted by the court to move your case forward in JAMS.  Other than asking for this time, I would only concentrate on getting your MTC granted in court now.  It is nerve-racking to be sure, but I don't think you should have too much issue getting this case dismissed in your favor once these steps are taken.

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@fisthardcheese Thank you again. I'll post an update when I get served, how long does this usually take? Once case is filed with the court, is there any possible chance they drop it even before I get served? I was thinking this since they rejected my first settlement offer and I filed for arbitration right after I sent in the offer.

Also wondering if this would give me any leverage?

 In any way would they be able to use my first settlement offer against me? I did state in the settlement offer that the offer does not acknowledge the debt as mine and that they should not speak to any other 3rd party about the offer.

 

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1 hour ago, mrb0x said:

@fisthardcheese Thank you again. I'll post an update when I get served, how long does this usually take? Once case is filed with the court, is there any possible chance they drop it even before I get served? I was thinking this since they rejected my first settlement offer and I filed for arbitration right after I sent in the offer.

Also wondering if this would give me any leverage?

 In any way would they be able to use my first settlement offer against me? I did state in the settlement offer that the offer does not acknowledge the debt as mine and that they should not speak to any other 3rd party about the offer.

 

It is highly unlikely they will settle or drop this suit now that it is filed.  They don't care what you say or do, they are just banking on you being too scared to show up like 90% of everyone else and they can get a full judgement plus costs and interest.  You are going to have to show up and get your MTC granted.  There is no work around for that.

Settlements are not admissible in court. They can't use it against you or even bring it up. Wait until the court grants your MTC and then offer the same settlement again.

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Hi All,

I was finally served yesterday at 8am at home in person. Included in the summons, was the comlaint, Exhibit 1 - Bill of Sale, Asset Schedule, Affidavit of Sale of Account by OC, and Certificate of Conformity, Exhibit 2 - One CC statement, Declaration Regarding Statement of Venue, Civil Case Cover Sheet, and finally an ADR information package.

I don't think there is anything out of the order here so I wanted to write my answer as soon as possible, but am stuck. The complaint is a Limited Civil Case, Complaint for Common Counts. 1. Account Stated and 2. Open Book, which seems to be the norm from my research.

When filing an answer, do I file a general denial with just 1 affirmative defense of lack of jurisdiction?

It is to my understanding that since I've elected arbitration that I will also file a MTC with my answer, which I will do so accordingly using the templates provided here. 

As a reminder, I've already started filing with JAMS and have been assigned a case manager who has not contacted me yet. Should I contact them first?

Thank you!

 

 

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I would check with your court rules to see if a general denial is allowed. Otherwise, I would go point by point denying each line in their complaint. I would list the single affirmative defense as lack of subject matter jurisdiction.  I would also file the MTC at the same time as the answer if time allows, otherwise as soon as possible once the answer is timely filed.

Forget about JAMS for now. It is on the back burner until the MTC is granted by the court.  You only need to deal with JAMS if a response to an email from them is required.

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4 hours ago, fisthardcheese said:

I would check with your court rules to see if a general denial is allowed.

Thanks @fisthardcheese.

image.png.dd1558e8495ddeb7a9d2da5418f76449.png

This is what it states for a General Denial in California. So, based off what is written in the form itself, I am assuming that the complaint is not verified, therefore I can use this form. I know the complaint is not verified as it does not state anywhere that they have verified the complaint.

So next step is to check box #2, and state Lack of Subject Matter Jurisdiction per the Arbitration Clause located in pages 9 through 12 of the card agreement.

Would this one line really be sufficient? haha.

As far at the MTC goes, one question is this section "WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration."

So if the Judge grants the MTC, how likely is that they will dismiss the complaint?

I really do appreciate the advice and help!!

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12 hours ago, mrb0x said:

So next step is to check box #2, and state Lack of Subject Matter Jurisdiction per the Arbitration Clause located in pages 9 through 12 of the card agreement.

Would this one line really be sufficient? haha.

Yes

12 hours ago, mrb0x said:

So if the Judge grants the MTC, how likely is that they will dismiss the complaint?

Not very likely.  In fact, I personally don't bother asking for dismissal, I would only ask for the stay.  Sometimes it is necessary to go back to court and force a JDB's hand if they don't cooperate with arbitration when ordered.

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  • 2 weeks later...

So I'm still waiting to file my answer and MTC, and if I'm correct I have until June 19th to do so as I was served on the 20th of May. 

 I've received a copy of the Consumer Arbitration Notice today as shown below.

image.png.6613964d45dc19b711c387a54881f322.png

I still haven't made payment yet, but will do so when they ask (as it specifically states consumer needs to pay $250 since I initiated it) and after MTC is granted.

Should I notify JAMS that the case is still pending MTC or wait until they ask for payment?

I'm assuming this is good progress and I should file a copy of this notice with the MTC as well. Correct?

Thanks for all your help.

 

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@fisthardcheese I just wanted to thank you for all your help, you've been great and I really do appreciate it.

I will be finalizing my general denial and MTC and will post for review.

I did receive a letter over the weekend from the attorney trying to settle for a measly 20%. The offer is no where near what I'd like, do you think this is an attempt to get out of arb knowing they won't be able to pursue?

*Edit* I received a missed call from the attorney, should I discuss anything with them on the phone?

Thank you!

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It's up to you if you want to talk to them.  They are likely just calling to try to get you to accept the 20% offer.   Just don't admit to anything on the phone if you call them back.  When the court grants your MTC is when the leverage completely changes hands and you will get a much better offer from them IMO.

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Another update.

I just received an emails from attorney who contacted JAMS and has me CC'd.

Their email states that it their understanding that the matter has settled. They attached a settlement agreement which was sent in response to a settlement offer received from me (previously rejected). The agreement they sent me states a totally different amount (20%). They state that it will close with a signed agreement from me and payment as detailed.

It also states if it is not my understanding of the status of this matter that I should contact them.

Any advice or what to do now? 

Thanks

 

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7 hours ago, mrb0x said:

I did receive a letter over the weekend from the attorney trying to settle for a measly 20%. The offer is no where near what I'd like, ...

 

5 hours ago, mrb0x said:

I just received an emails from attorney who contacted JAMS and has me CC'd.

Their email states that it their understanding that the matter has settled. They attached a settlement agreement which was sent in response to a settlement offer received from me (previously rejected).

It also states if it is not my understanding of the status of this matter that I should contact them.

Well, is it your understanding of the status of the matter?

Did you have any communication with the attorney between the time you received the letter over the weekend and the time that you 'just received' the email CC?  From your description, it seems that there was no time in the last 72 hours in which you confirmed or rejected the offer contained in the letter that you received over the weekend.

If you want to accept the 20% offer, then do it.  If you want to make a counteroffer, then do that.

As far as responding to JAMS, if it were me, I'd respond that I had only just received the offer referenced in the CC email, and haven't had sufficient opportunity to confirm or reject it. And that the respondent's attorney is misrepresenting to JAMS any acceptance of that offer.  Then send a separate email to the attorney (not CC'd to JAMS) asking what gives with his representation that you accepted the offer (if you didn't accept it).  Then take the opportunity to make a counteroffer, should you so desire.

It seems that respondent's attorney is itching to close this one out.  Ending it now will save you any further trouble of finishing your court motions and making sure they are granted.

If the offer is in the few hundred range, then it shouldn't take much negotiation to get it to the zero range.  They could balk, and then you'd have to be sure to be diligent in court.  The risk and the decision are yours.  You're at least in the best state to continue a consumer arbitration in JAMS.

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14 minutes ago, Pericles said:

 

Well, is it your understanding of the status of the matter?

Did you have any communication with the attorney between the time you received the letter over the weekend and the time that you 'just received' the email CC?  From your description, it seems that there was no time in the last 72 hours in which you confirmed or rejected the offer contained in the letter that you received over the weekend.

If you want to accept the 20% offer, then do it.  If you want to make a counteroffer, then do that.

As far as responding to JAMS, if it were me, I'd respond that I had only just received the offer referenced in the CC email, and haven't had sufficient opportunity to confirm or reject it. And that the respondent's attorney is misrepresenting to JAMS any acceptance of that offer.  Then send a separate email to the attorney (not CC'd to JAMS) asking what gives with his representation that you accepted the offer (if you didn't accept it).  Then take the opportunity to make a counteroffer, should you so desire.

If seems that respondent's attorney is itching to close this one out.  Ending it now will save you any further trouble of finishing your court motions and making sure they are granted.

If the offer is in the few hundred range, then it shouldn't take much negotiation to get it to the zero range.  They could balk, and then you'd have to be sure to be diligent in court.  The risk and the decision is yours.  You're at least in the best state to continue a consumer arbitration in JAMS.

Thank you for the reply! You are correct, no contact was ever made between myself and the attorney, and I was baffled that they had stated that as well, so I wanted to confirm and have some assurance they weren't pulling a fast one on me.

The offer is not in the hundreds, so looks like I will need to push a little bit more. I will take your advice and reply back to JAMS and the attorney to send a counter offer again.

Really appreciate it! 

 

 

 

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