Being sued by Cavalry in small claims

[Robear]

I have spent several hours on these forums trying to familiarize myself with how this all works, I am a newbie.  I will probably post two threads as I currently have two lawsuits pending.  Here are the specifics of this particular case:

Plaintiff: Cavalry SPV LLC as assignee of Comenity Bank

Attorney:  James A Nadler

Amount: 1750.00

OC: Comenity bank/torrid

Served legally by sheriff, have 13 days left to respond as of today

Before being sued I responded to the initial JDB letter with my own validation of debt letter, which was certified and return receipted (I have it). I received  a statement in reply at that time.

opened: july/2010  last payment may/2017

SOL not expired

Statement of Claim:

SUIT ON OPEN ACCOUNT/BREACH OF CONTRACT

Attached to summons: front and back of a statement

I understand the reasoning to get this moved to arbitration, I need to know the mechanicals of doing it.

Looking at the current (2017) agreement https://files.consumerfinance.gov/a/assets/credit-card-agreements/pdf/Comenity_Bank/Torrid.pdf   I don't see a exemption for small claims, correct me if I'm wrong.  I know that there are archives for the older agreements, anybody have a system to checking them?  I downloaded 2011 and they seem to be randomly placed?

My summons came with an answer sheet, and I have not replied yet.  I understand there are a myriad of mistakes that can disqualify arb. so how do I proceed to move this into arb?  I looked online for the rules of court, couldn't find anything other than fee schedule.  Court house is not far, I can go and ask for the local court rules I guess.  Thanks in advance for your help!

 

 

[LaneBlane]

I reviewed the Torrid agreement available here:  https://d.comenity.net/torrid/pub/requestCca/requestCca.xhtml

My understanding of the agreement is that Comenity will not force a consumer to arbitrate if a consumer files a claim in Small Claims Court.  I didn't see anything that gives Comenity the ability to file in Small Claims themselves.

 

 

[Robear]

So if I understand, there should be no problem with requesting arb.  How?

[LaneBlane]

18 minutes ago, Robear said:

So if I understand, there should be no problem with requesting arb.  How?

I'm not familiar with the rules in Alabama, so I'm not able to give you an answer.  I also haven't read anything on these boards about someone filing a Motion to Compel Arbitration (MTC) in small claims.

The JDB may attempt to argue the case should be heard in small claims because the cost of arbitration is exorbitant.  They could also claim they are not a party to the arbitration agreement because they are not the original creditor.

The Arbitration Provision defines the terms "we," "us" and "our" to mean (a) Comenity Bank, any parent, subsidiary or affiliate of the Bank and the employees, officers and directors of such companies (the "Bank Parties"); and (b) any other person or company that provides any services in connection with this Agreement if you assert a Claim against such other person or company at the same time you assert a Claim against any Bank Party.  Because the JDB is an assign/assignee of the agreement, a role that isn't defined as a party to the Arbitration Provision, they may have a successful argument.

 

[Robear]

I really appreciate those folks who came here looking for help and we can see what their final outcome was.  So even though I'm a year late I did want to update this post as to the outcome.  My first case went to trial vs. a rent-a-lawyer for Midland, happy to say I very simply defeated that case.  My judge has certain "requirements" and learning those ahead of time by going as an observer a week before greatly helped.  I went fully prepared to argue about the affidavits, bill of sale, ect, but it didn't even get that far.  Mean time, in the second suit (referenced above) I scrutinized everything and was able to locate a couple of FDCPA violations.  I answered the complaint and used the violations to file a countersuit.  The very next day after defeating midland, I got a call from the 2nd attorney asking for mutual dismissal.  2-0 in two days!