OregonWhoops

Being sued by Cach in Oregon - Arbitration?

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Hi all! I've been reading around and thought it would be a good idea to put myself out there and see if anyone has any advice. Here are the details - 

1. Who is the named plaintiff in the suit? CACH LLC

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

3. How much are you being sued for? $7xx

4. Who is the original creditor? (if not the Plaintiff) Genesis Credit (although the summons lists Mid America Bank & Trust Company as the original creditor) 

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

6. How were you served? (Mail, In person, Notice on door) In person on July 7th (30 days to respond, August 6th in this case) 

7. 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 saw the charge on my credit report and didn't recognize it, so I disputed it. I then received a letter from the debt collector saying that the amount was owed. I sent a request for debt validation but never heard back. 

9. What state and county do you live in? Oregon, Yamhill County 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Never, I was unaware the account was open. 

11. When did you open the account (looking to establish what card agreement may be applicable)? The account was opened through Aspen Dental in March of 2015

13. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Suit Served

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). Yes, I was never responded to. I'm not sure how I could prove that I sent it, though, as I didn't think to send it via certified mail. 

16. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? August 6th. The papers state Breach of Contract, judgement is asking for the account balance of $7xx, post judgement interest, court costs, and any other relief the cost deems just and equitable. 

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. In the summons they attached a Genesis Credit statement dated 11/11/15, a Bill of Sale from Genesis Bankcard Services to Cach LLC dated 12/23/15, and a Receivables Sale Agreement between Mid America Bank & Trust Company and Genesis Bankcard Services dated 12/7/10. 

Additional Info: 

To the best of my understanding, this is stemming from some dental work I was supposed to have done with Aspen Dental. I was under the impression that payment was not due until the procedures had been done, and when I decided to go with a different dentist the charges were canceled. I can see on the November 2015 statement where Aspen Dental credits the account, and it looks like the remaining balance is entirely fees and interest. I never received ANY statements from Genesis about my account, and honestly wasn't aware that I had an account with them until recently. Upon reviewing the agreement for the card, it looks like there is an arbitration agreement with AAA. I'm thinking that this is my best option, and am leaning towards filing my answer with a motion to move the case into arbitration, but would really appreciate any advice (ESPECIALLY if you're in Oregon, as it sounds like we have weird arbitration laws).  

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On 7/25/2018 at 10:54 PM, OregonWhoops said:

 1. Who is the named plaintiff in the suit? Me

You are not the plaintiff. You are the defendant. 

On 7/25/2018 at 10:54 PM, OregonWhoops said:

Genesis Credit (although the summons lists Mid America Bank & Trust Company as the original creditor) 

Can you post the text of the arbitration agreement please? 

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@Harry Seaward Thanks for pointing that out, my bad! As for the arbitration agreement, I've attached the verbiage below (minus the class action bits). 

Arbitration of Disputes
PLEASE READ THIS ARBITRATION OF DISPUTES PROVISION CAREFULLY. UNLESS YOU SEND US THE REJECTION NOTICE DESCRIBED BELOW, THIS PROVISION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED. This provision replaces any existing arbitration provision with us and will stay in force no matter what happens to your Account, including the closing of your Account.

Except as expressly provided below, you and we must arbitrate individually, by binding arbitration under the Federal Arbitration Act (“FAA”), any dispute or claim between you, any joint cardholder and/or Authorized User, on the one hand, and us , our af liates and agents, on the other hand, if the dispute or claim arises out of or is related to (a) this Agreement (including without limitation, any dispute over the validity of this Agreement to arbitrate disputes or of this entire Agreement), or (b) your Account, or (c) any relationship resulting from this Agreement, or (d) any insurance or other service related to your Account, or (e) any other agreement related to your Account (including prior agreements) or any such service, or (f) breach of this Agreement or any other such agreement, whether based on statute, contract, tort or any other legal theory (any “Claim”). However, we will not require you to arbitrate: (1) any individual Claims in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) any Claim by us that only involves our effort to collect money you owe us. However, if you respond to a collection lawsuit by claiming that we engaged in wrongdoing, we may require you to arbitrate.

Judgment on the arbitration award may be entered in any court having jurisdiction. Any dispute regarding whether a particular controversy is subject to arbitration will be decided by the arbitrator(s). If any part of the damages or other relief requested is not expressly stated as a dollar amount, the controversy will be a Claim that is subject to arbitration. You and we acknowledge and agree that the transactions contemplated by this Agreement, and any controversy that may arise under or relate to this Agreement, your Account, or the services or other agreements described above, involve “commerce” as that term is de ned and used in the FAA.

If you or we elect to arbitrate a claim, the electing party must notify the other party in writing. The notice can be given after the beginning of a lawsuit and can be given in papers led in the lawsuit. Otherwise, your notice must be sent to Bankcard Services, Attn: Arbitration Demand, P.O. Box 4477, Beaverton, Oregon 97076-4477, and our notice must be sent to the most recent address for you in our les. The arbitration will be administered by the American Arbitration Association (the “AAA”) under its rules in effect at the time arbitration is commenced that are applicable to the resolution of consumer disputes (the “Arbitration Rules”). We will tell you how to contact the AAA and how to get a copy of the Arbitration Rules without cost if you ask us in writing to do so. The Arbitration Rules permit you to request deferral or reduction of the administrative fees of arbitration if paying them would cause you a hardship. In addition, if you ask us in writing, we will consider your request to pay any or all of your costs of arbitration.

Each arbitrator shall be a licensed attorney who has been engaged in the private practice of law continuously during the ten years immediately preceding the arbitration or a retired judge of a court of general or appellate jurisdiction. The arbitration award shall award only such relief as a court of competent jurisdiction could properly award under applicable law, including attorneys’ fees if allowed by applicable law or agreement, and may award to the prevailing party all pre- and post- award expenses of arbitration. All statutes of limitation, defenses, and attorney-client and other privileges that would apply in a court proceeding will apply in the arbitration. The ling of a demand for arbitration in accordance with the Arbitration Rules will be deemed the commencement of an action for purposes of any applicable statute of limitations.

This Agreement does not limit the right of you or us whether before, during or after the pendency of any arbitration proceeding, to exercise self-help remedies such as set-off or repossession and sale of collateral, or to obtain provisional or ancillary remedies or injunctive or other traditionally equitable relief (other than a stay of arbitration) necessary to protect the rights or property of the party seeking relief pending the arbitrator’s determination of the merits of the Claim. The taking of any of the actions described in the preceding sentence by either party or the ling of a court action by a party shall not be deemed to be a waiver of the right to demand arbitration of any Claim asserted as a counterclaim or the like in response to any such action. This Agreement to arbitrate disputes will survive the closing of your Account and the termination of your Agreement with us.

If any provision of this Section regarding arbitration of disputes shall be deemed to be unenforceable, the remainder of this Section shall be given full force and effect. However, if the provision precluding class, representative or private attorney general Claims in arbitration is deemed unenforceable, then this entire Arbitration Agreement shall be void and of no force and effect.

 

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@Harry Seaward  Awesome! I do have one question, maybe you'll be able to help answer. In the agreement, it stipulates that  "If you or we elect to arbitrate a claim, the electing party must notify the other party in writing. The notice can be given after the beginning of a lawsuit and can be given in papers led in the lawsuit. Otherwise, your notice must be sent to Bankcard Services, Attn: Arbitration Demand, P.O. Box 4477, Beaverton, Oregon 97076-4477, and our notice must be sent to the most recent address for you in our les.  ". I'm not sure what they mean by giving notice in the papers led in the lawsuit. I would just mail it to the address in the agreement, however I don't know how it would get to the JBD since the address is for the OC. Any advice on that part? 

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The "filed in the lawsuit" part is what applies to you. Basically that's saying that your MTC is sufficient notice of your demand for them to arbitrate their claims against you. 

That language is not in all agreements, so in those cases it's recommended to send a separate letter to the plaintiff's attorney just to cover the base. 

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HELP! I attempted to file my MTC today, and the county court clerk was not a fan. She said that she had never seen a MTC to compel private arbitration before, since Oregon has it's own mandatory arbitration system. I tried explaining that the motion was to compel arbitration through AAA and to stay court proceedings pending that arbitration, but they wanted examples of when this has been done before in Oregon. I'm trying to find cases now, because I know that I've seen them before on here, but I'm having a hard time pulling up the actual cases. If anyone has a case (dismissed or otherwise) that was in Oregon and where a judge grated a motion to compel AAA or JAMS arbitration, I would seriously appreciate it!!! I'll be sending in additional papers on Monday (apparently I missed the Certificate of Readiness with the motion) and I'd love to include any Oregon specific examples that I can find. 

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@OregonWhoops

https://www.barran.com/assets/pdf/2017/Compelling and Staying Arbitration in Oregon.pdf

On 4/24/2018 at 10:57 AM, Brotherskeeper said:

"DETERMINE THE APPLICABLE LAW When evaluating a request for judicial assistance in arbitration proceedings, the court must determine whether the arbitration agreement is governed by the FAA or Oregon arbitration law.

The FAA  An arbitration agreement falls under the FAA if the agreement:

Is in writing. Relates to a commercial transaction or maritime matter. States the parties’ agreement to arbitrate a dispute. (9 U.S.C. § 2.)

The FAA applies to all arbitrations arising from maritime transactions or to any other contract involving “commerce,” a term the courts define broadly. Parties may, however, contemplate enforcement of their arbitration agreement under state law (see Hall St. Assocs., L.L.C. v. Mattel, Inc., 552 U.S. 576, 590 (2008)). If the agreement falls under federal law, state courts apply the FAA, which preempts conflicting state law only “to the extent that [state law] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress” (Volt Info. Scis., Inc. v. Bd. of Trs. of Leland Stanford Junior Univ., 489 U.S. 468, 476-77 (1989) (there is no federal policy favoring arbitration under a certain set of procedural rules; the federal policy behind the FAA is simply to ensure that arbitration agreements are enforceable)).

INTERSECTION OF THE FAA AND OREGON LAW If an agreement falls under the FAA, the Oregon state court applies the federal standard for arbitrability when determining whether to compel or stay arbitration, rather than evaluating these threshold questions under Oregon state law (see Southland v. Keating Corp., 465 U.S. 1, 12-13 (1984); see also Practice Note, Compelling and Enjoining Arbitration in US Federal Courts: Arbitrability (6-574-8707)). Even if an agreement falls under federal law, however, Oregon state courts follow Oregon procedural rules (see Marr v. Smith Barney, Harris Upham & Co., Inc., 842 P.2d 801, 803 (Or. Ct. App. 1992); Geris v. Burlington Northern, Inc., 561 P.2d 174, 176 (Or. 1977)). Because the FAA only preempts state law to the extent that state law contradicts federal law (see The FAA), the FAA does not prevent Oregon state courts from, among other things, applying state contract law to determine whether the parties entered into a valid arbitration agreement (see Martin, 146 P.3d at 384; First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (courts apply state contract law to determine whether parties agreed to arbitrate under the FAA); Hamrick v. Aqua Glass, Inc., 2008 WL 2853992, at *2 (D. Or. Feb. 20, 2008); Robert Briede & Vantage Point Fitness v. 24 Hour Fitness, USA, Inc., 2010 WL 4236929, at *2 (D. Or. Oct. 21, 2010))."

 

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