SkyStillSunny

Not Sued Yet, but should I respond to this letter?

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7 hours ago, SkyStillSunny said:

What would I say if L&J argue that the letter AAA states that they are allowed to pursue this in small claims? Just stick to what the contract states that I have a right to arbitration? Because in the Citibank agreement, there is a note that says:

If L&J don't agree to private arbitration, then we go to trial, and if the judge denies my MTC because of the statement above, what would you do?

I believe I previously mentioned that AAA has no authority in your court case.  Who cares what AAA said in their letter.  They are free to pursue the claim in small claims, which they already are.  But you are free to ask the judge to order arbitration.  AAA's letter does not remove your contractual right, the Supreme Court case law and well established GA law.  So, it is irrelevant. \

If the judge denies arbitration, then you file an appeal.

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UPDATE:

So L&J was not in attendance at my court hearing, and they sent a representative for Unifund in their place. I did sit for mediation, and told them that I was going to file a MTC arbitration, but that I would be willing to sign a consent order to settle for $200 (same as the filing fee for AAA). The rep made a phone call, and they said to go ahead and arbitrate.

I gave my MTC and order to the judge, which she signed because all parties agreed, and then walked out of there in 10 minutes. 

I find it so bizarre that they just quickly agreed to this after they sent me all this paperwork about pursing in small claims (bc of the Citibank small claims verbiage), and send it to me CMRR mail, but then when we get to court I was all prepared to argue for arbitration, and they just agree to it and have no mention of small claims exception at all. They didn't even have the letter from AAA giving them an option of small claims (that I was worried about).

AAA closed my case, but I will be sending them the order from the court to reopen, then I will send it my filing fee and give L&J time to pay their filing fee, which they probably won't. Then I'll wait to request a dismissal hopefully.

Thanks everyone for all your help! I am getting less and less nervous going to court now!

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9 minutes ago, SkyStillSunny said:

I find it so bizarre that they just quickly agreed to this after they sent me all this paperwork about pursing in small claims (bc of the Citibank small claims verbiage), and send it to me CMRR mail, but then when we get to court I was all prepared to argue for arbitration, and they just agree to it and have no mention of small claims exception at all. They didn't even have the letter from AAA giving them an option of small claims (that I was worried about).

Because the left hand has no clue what the right hand is doing.  This is one of the advantages of just showing up and asserting arbitration.  They are not prepared for it and it really throws a wrench into their automated system of default judgements. 

Having a copy of that MTC signed by the judge is perfect.  Some magistrate judges won't sign them and only set a new hearing date.  Did you get a new date for this yet?

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The judge just signed the order, and did not set a new hearing date. I did notice that, but decided not to mention anything about a new hearing date bc I wasn't sure if it would be better if I did or didn't so just kept my mouth shut. I figure I'll go through the process, and just file through the court for my dismissal when L&J doesn't pay their filing fee. Not sure if they have 30 or 60 days for this, but I'll look it up and see, and hopefully the court will find in my favor and dismiss this case in a few months.

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2 minutes ago, SkyStillSunny said:

The judge just signed the order, and did not set a new hearing date. I did notice that, but decided not to mention anything about a new hearing date bc I wasn't sure if it would be better if I did or didn't so just kept my mouth shut. I figure I'll go through the process, and just file through the court for my dismissal when L&J doesn't pay their filing fee. Not sure if they have 30 or 60 days for this, but I'll look it up and see, and hopefully the court will find in my favor and dismiss this case in a few months.

The MTC that the judge signed, did you ask for a stay in the case only or what is a "dismissal or stay" wording?

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The order states this: "Order to compel private/contractual arbitration and to stay the case pending arbitration"

The MTC states this: "Defendant requests the court to sign the proposed order granting motion to arbitrate and requests to stay this case until arbitration has concluded." And (uses the template from here), but also says this "WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Card Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or, in the alternative, to stay proceedings pending contractual arbitration."

Is that the correct verbiage?

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28 minutes ago, SkyStillSunny said:

The order states this: "Order to compel private/contractual arbitration and to stay the case pending arbitration"

The MTC states this: "Defendant requests the court to sign the proposed order granting motion to arbitrate and requests to stay this case until arbitration has concluded." And (uses the template from here), but also says this "WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Card Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or, in the alternative, to stay proceedings pending contractual arbitration."

Is that the correct verbiage?

Yes, this is perfect.  After you go through the steps of starting arbitration PRA should agree to dismiss.  Just remember that with your signed order, you are now in a position of leverage over them.  If this were me, once they want to give up, I would give them the offer of paying me $200 (my costs to AAA) and to dismiss the court case with prejudice in exchange for dismissing my AAA case against them with prejudice.

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What happens is that the JDB uses either an national law office or a regional one to file the suit and if someone answers and there is a hearing date, they hire a local attorney for the day to represent their client. If the hired attorney is not given specific instructions (such as settle or dismiss), then they have reviewed your file maybe 5 minutes before entering the courthouse so most of the time, you have a better idea of what is going on than the opposing attorney. I am sure an attorney that understood the contract better would have had a better chance at fighting your MTC Arb than the rental attorney.

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Great! We'll see what happens after all is said and done, and then I'll hopefully update with a final dismissal and let everyone know my final steps. 👍 Everything I got from this forum has been instrumental in helping me. Hoping someone else finds my experience useful as well. Thank you so much!

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Sorry to revive this topic, but I wanted to ask what I should do now. This is where I am.

AAA received my court order compelling Unifund (represented by L&J) to arbitrate. They re-opened the case. They sent both parties, me the claimant, and Unifund the respondent. In their first letter they informed the respondent that they had to submit its current consumer arbitration clause for inclusion in the Registry which is a $500 fee. They were also requested to submit filing fees of $500, an expedited consumer clause review fee, and arbitrator compensation... all totally to $3250. Well 2 weeks go by and AAA sends another letter stating that the respondent has yet to remit payment, and they had until April 23, 2019 to remit otherwise it would close the case, and that AAA would remove their business from administering any more consumer disputes and then this: "Should the AAA decline to administer an arbitration, either party may choose to submit its dispute to the appropriate court for resolution"

I think they want the case closed so that that can bring it back to court. Can they do that? 

Can I send a letter to the court requesting this case be dismissed because Unifund refuses to pay their fees to commence arbitration?

The weird thing is that I have yet to receive any letters that this case is closed by AAA. I sent them an email to see if I can get some correspondence that way to find out.

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Once AAA closes the case and they try to bring it back to court, file a motion for sanctions against the plaintiff stating that they did not pay the fees as per the contact and as such, you would like a dismissal with prejudice since they are not abiding by the contract and using the private arbitration forum of their own choosing.

If the roles were reversed, do you think their lawyers would let you return to court by refusing to pay the arbitration fees? Not a chance and you should not allow them to get away with it either.

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16 hours ago, SkyStillSunny said:

Well 2 weeks go by and AAA sends another letter stating that the respondent has yet to remit payment, and they had until April 23, 2019 to remit otherwise it would close the case, and that AAA would remove their business from administering any more consumer disputes and then this: "Should the AAA decline to administer an arbitration, either party may choose to submit its dispute to the appropriate court for resolution"

Several people seem to get tripped up by this lately.  This is just standard verbiage.  It doesn't mean anything to your case because they already DID bring the dispute to court and that court has ordered them to arbitrate.  This mean that the SECOND I get the final letter from AAA stating that they have closed the case due to Unifund's failure to follow the rules and instructions of the forum, I am filing a Motion for Sanctions with the court where I detail the timeline and include the AAA letter and tell the judge that the Plaintif has refused to follow this court's order to arbitrate and therefore you ask for the court to Sanction the Plaintiff and to dismiss this case with prejudice and for Plaintiff to pay Defendant's costs off $200.

In fact, you can work on that Motion now and have it ready to file the same day you get the final AAA letter. That's what I would do.

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Ok got it. I've followed up with AAA waiting for the case closed letter, so I will prepare the motion now and send it once I receive confirmation that the case is closed. Thank you!

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Great update! I lucked out. The attorney that showed up for Unifund was completely clueless. The judge forced us to mediate, so I told him I had a signed court order to arbitrate, and I also had a letter from AAA indicating that because I had a signed order, they could not pursue in small claims and it said that they had to pay $3250 immediately or the case would be closed. It specifically said that the claimant had fulfilled their obligations and was waiting on the respondent. The attorney looked it over for 10 minutes. He reviewed his paperwork, and then looked at his phone, then finally made a phone call, and then asked me that I could sign a consent agreement and go ahead and settle because he was planning on trying to get the court order vacated because of that one sentence in the citibank agreement about "small claims court". I told him that it was too late, that I had a signed court order and that we can go to trial. Well the judge then forced us to go through mediation with a mediator. I explained my situation, and the attorney said the same thing he said earlier. Then I was asked to leave so the mediator could talk to the attorney. When she called for me to come back and speak privately, she tried to tell me to settle!!! That they would be willing to settle for $700 and I could pay $50/month, and that it would clear my credit and that she was just giving her advice on what she would do. But I said that I had a court order!! And she told me she said the judge could decide to vacate because of that stupid citibank small claims section of the agreement. I told her I'd take my chances and wanted to go to trial.

WELL I gave the judge my order and a copy of the letter from AAA, and she asked the plaintiff why they had not started arbitration! She said that if they didn't start it, then they would be held in contempt for violating a court order, and she said that she definitely would NOT vacate the order because the last time we were in court the Plaintiff agreed and signed off on it! We go back in 30 days, and if the plaintiff does not either 1) dismiss or 2) fulfill arbitration duties and begin proceedings, then they will be in contempt. She told me that if I had any motions to file, then I should do that prior to the next court date. But I'm not really sure what she meant by that for me? I don't have any motions to file, I think?

So yes, finally I had a judge kind of see my side for once. THANKS for ALL THE HELP everyone! I hope to get a dismissal in the mail soon!!

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Good job on sticking to your guns. I am sure it was not easy.

What I suggest you do is look at the court rules for when you need to file motions for the judge to consider. I would be preparing a motion for sanctions (including requesting the contempt of court charge that the judge hinted at as well as other things). @fisthardcheese can advise you on what to request. If the dismissal does not reach your hands before the last day to file motions, I would file the motion for sanctions and send a copy to the opposing attorney. At that point, they will either file for dismissal, pay to arbitrate, or face an angry judge with a motion for sanctions on her bench.

More likely than not, you will see a motion to dismiss or they will call you and ask what your grounds are for a dismissal (at a minimum, you must request dismissal with prejudice, you can ask that the debt not be sold and be removed from your credit report but those are nice to haves). They are not going to pay $3000+ for a $1000 debt unless they want to make an example out of you and if they were going to do that, they already would have rather than angered the judge who they have to appear in front of again and again.

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They will want to settle very soon.  In fact, now may be a good time to send an email to the attorney and offer a mutual dismissal with prejudice.

You handled court very well!!  The only thing I would say (for the benefit of others looking for advice in their similar cases) is that I would have had a motion for sanctions filed or brought with me to court.  If you have a court hearing after the other side has not followed the directions from AAA or JAMS, then I would want a motion in front of the judge explaining that they have not followed the court's previous order and ask for the other side to be sanctioned and the case dismissed witih prejudice plus my costs.  This should eliminate the other hoops that OP had to go through here with the mediator.

Also, as a side note, I find it amusing how the mediator is just going through the regular motion of trying to strong arm a settlement out of a consumer even though they had a court signed order to arbitrate that the Plaintiff was in violation of.  It never ceases to amaze me.

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13 minutes ago, fisthardcheese said:

Also, as a side note, I find it amusing how the mediator is just going through the regular motion of trying to strong arm a settlement out of a consumer even though they had a court signed order to arbitrate that the Plaintiff was in violation of.  It never ceases to amaze me.

The court mediators are tasked with ending these cases and getting them off of the judges calendar by any legal means. In fact, if they are hired by the court, then I am sure their performance is based on how many cases are settled. They are also used to dealing with clueless pro se defendants who are in doubt as to whether what they are doing is working or not. It not a case of Fisthardcheese doing this for the 15th time and thus knows what is going on but a scared person doing this for the 1st time and having no clue other than they were told on the internet. The mediator pounced on that fear in hopes of a settlement.

They probably had no clue that the plaintiff was in violation of a court order. In fact, I am sure the attorney told the mediator a sob story on how they were duped by a pro se defendant into agreeing to a MTC arb without a fight. I am sure no one at their office read the contact until they got the bill for $3200.

 

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6 hours ago, WhoCares1000 said:

The court mediators are tasked with ending these cases and getting them off of the judges calendar by any legal means. In fact, if they are hired by the court, then I am sure their performance is based on how many cases are settled. They are also used to dealing with clueless pro se defendants who are in doubt as to whether what they are doing is working or not. It not a case of Fisthardcheese doing this for the 15th time and thus knows what is going on but a scared person doing this for the 1st time and having no clue other than they were told on the internet. The mediator pounced on that fear in hopes of a settlement.

They probably had no clue that the plaintiff was in violation of a court order. In fact, I am sure the attorney told the mediator a sob story on how they were duped by a pro se defendant into agreeing to a MTC arb without a fight. I am sure no one at their office read the contact until they got the bill for $3200.

 

If OP hadn't already told the mediator up front that they had a signed order to arbitrate that the Plaintiff was refusing to follow, then this would hold true.  But completely ignoring that and going through the motions to force a settlement anyway is pretty shady.

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