Filed a MTC - Arbitration....Now What?

[dogz1189]

Battling a JDB regarding a charged off card account. The complaint of course contained the typical affidavit and 1 month card statement.

Had a status call recently in cook county of Illinois in which my motion to dismiss based on lack of written instrument was denied. Judge agreed with the plaintiff that because it was a credit card account, the written instrument was not needed, blah, blah, blah.

This was surprising to hear as I had a card account dispute with a different creditor 2 years ago, and that judge agreed with my MTD based on lack of written instrument at that tomd. Anything I can do about this denial now?

When my MTD was denied, I then filed my MTC-Arbitration with the card agreement attached. Judge decided to just set a motion hearing and gave the plaintiff 3 weeks to respond to my motion and then 2 weeks for me to respond to their response.

At this point, I guess I need to just wait to see if they respond. Is there any defense I should prepare for? The card agreement I filed is attached.

 

Thanks for any and all help!!

Citi_AAdvantage_Platinum_Select_World_Elite_Mastercard_Card_Agreement.pdf

[Harry Seaward]

Did you introduce the agreement with an affidavit? If not, they typically claim the agreement is a random agreement download from the internet. 

[dogz1189]

4 minutes ago, Harry Seaward said:

Did you introduce the agreement with an affidavit? If not, they typically claim the agreement is a random agreement download from the internet. 

No affidavit, just the motion and card agreement. So they may claim the specific agreement doesn’t apply?

[Harry Seaward]

That's their usual tack. Not  big deal. Just include an affidavit with your reply to their response. 

[dogz1189]

3 hours ago, Harry Seaward said:

That's their usual tack. Not  big deal. Just include an affidavit with your reply to their response. 

Okay thanks for the heads up!! Does the following statement mean that if I was to pursue a trial in small claims, then arbitration would no longer be an option?

"Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court."

[Harry Seaward]

Were you sued in a court with "small claims" in the name? And is there a court named "small claims" there? 

[dogz1189]

3 hours ago, Harry Seaward said:

Were you sued in a court with "small claims" in the name? And is there a court named "small claims" there? 

Doesn’t say small claims on my paperwork, but the amount is less than $2200. Always thought it was considered small claims court in Illinois.

 

[Harry Seaward]

Never assume.  Citi doesn't defines "small claims" in their agreements. If your court isn't called "small claims", it's not a small claims court under the literal interpretation of the agreement.

[Clydesmom]

1 hour ago, dogz1189 said:

Doesn’t say small claims on my paperwork, but the amount is less than $2200. Always thought it was considered small claims court in Illinois.

And there have been rulings by Judges in courts in several states for consumers here who were MTC arbitration that back that up.  

44 minutes ago, Harry Seaward said:

If your court isn't called "small claims", it's not a small claims court under the literal interpretation of the agreement.

I patently disagree with Harry's strict literal interpretation of the CITI clause and we have had a few consumers here who had Judges who disagreed with Harry as well.  Claiming that it isn't small claims court simply because those words do not actually specifically appear over the court room door does not automatically make is not a small claims case in my opinion.  In the past the lowest court that heard the simple claims often brought by average citizens and by businesses such as creditors for debts owed were called Small Claims Court.  Over the years the name has changed to options such as Magistrate Court or Justice Court.  It still does not change that they hear cases below a certain monetary threshold that makes them a "small claim" based on that threshold not requiring the case to be in State/Civil court.  Over time that clause will be clarified IF CITI loses enough cases on it but until then there is NO guarantee that the court is going to use a literal interpretation of that clause.

Keep in mind that the Judge in YOUR court in YOUR case is going to interpret that agreement and that clause based on how he views HIS court room in Illinois NOT how Harry or I interpret that clause.  You need to be fully loaded with a counter argument and a plan should the Plaintiff take the stance that the carve out in the arbitration clause applies.  

[Harry Seaward]

10 hours ago, Clydesmom said:

I patently disagree with Harry's strict literal interpretation of the CITI clause

There's nothing to disagree with.  The fact is the agreement doesn't define "small claims court".  Clyde wants to scare everyone away from trying the only thing that works to defeat JDBs every time there is a "small claims" exemption.  She also says there are lots of courts that disagree with me, although trial courts are often wrong and I've yet to see a single appellate court find that a "small claims" exemption in the absence of a "small claims court" definition applies to a court that isn't literally called a "small claims court".  There have been a few cases where the agreement in question says "small claims court or your jurisdiction's equivalent court". But in those cases, "small claims court" is essentially defined as "your jurisdiction's equivalent court", and that's not what we're talking about here.

For example, here in Arizona, we have a Small Claims division of our justice court, however attorneys are not allowed there, so it's impossible to be sued by a JDB in that court.  The next court is a Justice Court.  This court handles all civil cases up to $10,000.  In many jurisdictions, this would be 'considered' a small claims court, but you could not call it a "small claims court" here because we literally have one of those, and there would be pandemonium in the streets if the people were confused about which is which.  (<---that last bit is called humor, for those that have no sense of it).  Clyde is right that the lowest courts have traditionally been referred to "small claims" courts, but this arrangement we have here is not at all unique, and in several states, the lowest court available to hear civil actions do not allow attorneys.  It's not at all unreasonable then to argue that the lowest court and the next court up cannot both be 'small claims' courts, and only the lowest court is in fact a "small claims court" where you were NOT sued. Of course there's no guarantee it will work - lawyers don't even guarantee an outcome. Then again I never said there was a guarantee. 

The bottom line is arbitration is pretty much your only shot here, and you lose nothing by trying it.  If the court says it finds your court is a "small claims court" per the agreement, you've lost nothing, and in fact you can appeal this finding if you find yourself in the likely situation of subsequently having judgment entered against you.

[dogz1189]

11 hours ago, Clydesmom said:

And there have been rulings by Judges in courts in several states for consumers here who were MTC arbitration that back that up.  

I patently disagree with Harry's strict literal interpretation of the CITI clause and we have had a few consumers here who had Judges who disagreed with Harry as well.  Claiming that it isn't small claims court simply because those words do not actually specifically appear over the court room door does not automatically make is not a small claims case in my opinion.  In the past the lowest court that heard the simple claims often brought by average citizens and by businesses such as creditors for debts owed were called Small Claims Court.  Over the years the name has changed to options such as Magistrate Court or Justice Court.  It still does not change that they hear cases below a certain monetary threshold that makes them a "small claim" based on that threshold not requiring the case to be in State/Civil court.  Over time that clause will be clarified IF CITI loses enough cases on it but until then there is NO guarantee that the court is going to use a literal interpretation of that clause.

Keep in mind that the Judge in YOUR court in YOUR case is going to interpret that agreement and that clause based on how he views HIS court room in Illinois NOT how Harry or I interpret that clause.  You need to be fully loaded with a counter argument and a plan should the Plaintiff take the stance that the carve out in the arbitration clause applies.  

 

58 minutes ago, Harry Seaward said:

There's nothing to disagree with.  The fact is the agreement doesn't define "small claims court".  Clyde wants to scare everyone away from trying the only thing that works to defeat JDBs every time there is a "small claims" exemption.  She also says there are lots of courts that disagree with me, although trial courts are often wrong and I've yet to see a single appellate court find that a "small claims" exemption in the absence of a "small claims court" definition applies to a court that isn't literally called a "small claims court".  There have been a few cases where the agreement in question says "small claims court or your jurisdiction's equivalent court". But in those cases, "small claims court" is essentially defined as "your jurisdiction's equivalent court", and that's not what we're talking about here.

For example, here in Arizona, we have a Small Claims division of our justice court, however attorneys are not allowed there, so it's impossible to be sued by a JDB in that court.  The next court is a Justice Court.  This court handles all civil cases up to $10,000.  In many jurisdictions, this would be 'considered' a small claims court, but you could not call it a "small claims court" here because we literally have one of those, and there would be pandemonium in the streets if the people were confused about which is which.  (<---that last bit is called humor, for those that have no sense of it).  Clyde is right that the lowest courts have traditionally been referred to "small claims" courts, but this arrangement we have here is not at all unique, and in several states, the lowest court available to hear civil actions do not allow attorneys.  It's not at all unreasonable then to argue that the lowest court and the next court up cannot both be 'small claims' courts, and only the lowest court is in fact a "small claims court" where you were NOT sued. Of course there's no guarantee it will work - lawyers don't even guarantee an outcome. Then again I never said there was a guarantee. 

The bottom line is arbitration is pretty much your only shot here, and you lose nothing by trying it.  If the court says it finds your court is a "small claims court" per the agreement, you've lost nothing, and in fact you can appeal this finding if you find yourself in the likely situation of subsequently having judgment entered against you.

Thank you guys for the great perspectives and insight. I guess since the Judge gave him 3 weeks to respond to my motion, I will have to play the waiting game and see what his argument against it is, “IF” he evens brings up that small claims statement. 

I would then have to construct a counter-argument based on his claims.

Is that the appropriate “next-steps” action plan for myself at this point?

[Clydesmom]

3 hours ago, Harry Seaward said:

Clyde wants to scare everyone away from trying the only thing that works to defeat JDBs every time there is a "small claims" exemption.

I have NEVER said that or not to MTC arbitration.  Read my last statement AGAIN:

"You need to be fully loaded with a counter argument and a plan should the Plaintiff take the stance that the carve out in the arbitration clause applies."

I said to be PREPARED for the argument from the other side.  NO WHERE does it say not to even try it.  

[Harry Seaward]

1 hour ago, Clydesmom said:

 I have NEVER said that or not to MTC arbitration. 

You don't need to say it.  Following me around to tell everyone you don't agree with my advice accomplishes the same thing. 

[Clydesmom]

1 minute ago, Harry Seaward said:

Following me around to tell everyone you don't agree with my advice accomplishes the same thing. 

The problem with your advice it it assumes that your way is the ONLY way the court will interpret the agreement.  There is never a plan should the Plaintiff have a counter argument.  Your answer is always "this is what I say that agreement says and how the court has to and will rule" yet time and again someone comes back here saying the MTC was denied and they were not prepared for the Plaintiff to argue the small claims exemption or other reasons why arbitration should not apply.  Even accomplished attorneys do not give a guarantee of an outcome yet your statements are made as if there couldn't possibly be any other outcome than a MTC being approved.  You still have blinders on regarding how the courts work in other states assuming they all run like Arizona and seem perplexed when the courts don't rule the way you proclaims they WILL.  If the motion is denied your response is to howl and screech that the court erred and should have listened to and followed your opinion.  Your back up plan is an appeal not being prepared for the fight to start with.  You seem to think it is simple to just appeal but most people don't have the comfort level, time or funds for appellate court.  I can recall at least 3 threads where the Plaintiff challenged that card agreement and the poster here settled because they couldn't deal with it anymore or were faced with going to trial unprepared.  

Why is preparing for possible challenges to the process a problem for you?  You don't represent these people, it isn't your money at risk and you don't have to pay the judgment if they lose.

 

[Goody_Ouchless]

Would there be any point in bringing in arbitration clauses from other cards and making the argument that they are all, in essence based on the same Supreme Court guidelines, and that any differences between them are intentional. For example, some cards have no carve out, others specifically define "small claims" as the Delaware equivalent (which pretty much means anything under 15K.) Could something like that be presented to the judge along with the argument that the creditor was not limited in their choice of language regarding any carve out. They could have had none, or they could have defined "small claims" by using "equivalent" language. In this case it can only be assumed that they chose the specific words "small claims" (without their own definition) for a reason.

Total long shot, but who knows - a judge who's never seen an MTC may go "Heh - the kid's got something, counselor!"

 

 

[Harry Seaward]

3 hours ago, Clydesmom said:

There is never a plan should the Plaintiff have a counter argument.

There is no workable plan. That's because, as we both know, the case is doomed if the court denies the MTC.

3 hours ago, Clydesmom said:

Your answer is always "this is what I say that agreement says and how the court has to and will rule"

This is a bald face lie. I have never said this even once.

3 hours ago, Clydesmom said:

time and again someone comes back here saying the MTC was denied and they were not prepared for the Plaintiff to argue the small claims exemption

Examples, please. Only those where the consumer is blindsided by a small claims exemption argument where *I* told them "this is what I say that agreement says and how the court has to and will rule".

3 hours ago, Clydesmom said:

your statements are made as if there couldn't possibly be any other outcome than a MTC being approved.

Again, untrue. I merely pointed out that the agreement doesn't define "small claims". I never even got a chance to predict how the court would interpret that fact. 

3 hours ago, Clydesmom said:

seem perplexed when the courts don't rule the way you proclaims they WILL

??? I'm one of the few people around here that isn't constantly perplexed by rulings in the plaintiff's favor. Also, Arizona is one of the worst court systems to get sued by a debt collector. 

 

3 hours ago, Clydesmom said:

If the motion is denied your response is to howl and screech that the court erred and should have listened to and followed your opinion.

Seriously. You have me confused with someone else.

3 hours ago, Clydesmom said:

You seem to think it is simple to just appeal but most people don't have the comfort level, time or funds for appellate court.

Not simple, no. But it's that or nothing. 

3 hours ago, Clydesmom said:

I can recall at least 3 threads where the Plaintiff challenged that card agreement and the poster here settled because they couldn't deal with it anymore or were faced with going to trial unprepared.  

Go ahead and post a link to those. I'm really interested to see if they are in fact "small claims" challenges,  and whether I was instrumental in the defendant's decision to go to court unprepared. 

Since I already know you won't be able to find them for suddenly being too busy and important (a.k.a. they don't exist), go ahead and take a look around. There's hundreds of threads here where consumers lost despite being fully prepared. I could understand your vitriol if I was sending victims of fraud off the proverbial cliff, but you're seriously trying to convince us that you're upset about 3 people paying less than the full amount of their 100% legitimate debt? What about the dozens that have used arbitration on my advice to pay zero % of their legitimate debt? I don't get credit for those? 

3 hours ago, Clydesmom said:

Why is preparing for possible challenges to the process a problem for you?

It's completely irresponsible to send people in to court thinking they have any chance of beating these cases outside of arbitration. You want to talk about "time and again", it's been a long time since we've seen anyone prevail on the merits. 

[dogz1189]

As an update, it has now been over 3 weeks since filing my MTD. The judge ordered the plaintiff 21 days to respond, and then I would be given 14 days from then to respond myself.

To this day, I have not received any notice of a response from the plaintiff.

As the motion hearing is a few weeks away,  would he be able to just dispute it at the hearing? Or was it “mandatory” for him to respond? Anything I should expect now?

Again, thanks in advance for any and all help!!!

[WhoCares1000]

I would check the Illinois Rules of Civil Procedure on motions. Barring that, if the judge ordered that the other side responds within 21 days and they did not do so, you could argue that they cannot respond in court as that was against the order of the judge. I would still have the affidavit in hand in case the judge asks for it and I would have an arb application all ready to go and just waiting for the MTC to be granted.

[fisthardcheese]

On 11/14/2018 at 9:01 PM, dogz1189 said:

As an update, it has now been over 3 weeks since filing my MTD. The judge ordered the plaintiff 21 days to respond, and then I would be given 14 days from then to respond myself.

To this day, I have not received any notice of a response from the plaintiff.

As the motion hearing is a few weeks away,  would he be able to just dispute it at the hearing? Or was it “mandatory” for him to respond? Anything I should expect now?

Again, thanks in advance for any and all help!!!

The first thing I would do is prepare an affidavit stating that the card agreement you filed is a true and correct copy of the agreement that governed your Citi card account.  I would have it notarized and bring 3 copies to court with you.  I would also prepare an argument against this potential "small claims" issue.  Find out if your court is, in fact, called small claims by the court and not just the average joe on the street.  Last, I would bring a list of case laws to cite that show arbitration is your right when a valid arbitration clause exists in a contract.  The Supreme Court has said this twice, and I know there is plenty of IL case law on this too.

When you go to the hearing, assuming no late response was filed prior, the first thing I would say is that I respectfully request the court to grant my UNOPPOSED Motion.  If the attorney attempts to oppose the motion verbally, I would object to his opposition and remind the judge that the Plaintiff failed to oppose this motion within the 21 days given by the court and that you now object to any opposition being brought up at this time.  HOWEVER, I would keep an eye on the court docket.  I would watch for their opposition to be filed on the last day or even a couple days late and for their copy to you to get "somehow" delayed in the mail.  I would not rely on waiting to get a copy. I would watch the docket if it is posted online, or call the clerk to ask if they filed anything.

On 10/24/2018 at 7:08 PM, Goody_Ouchless said:

Would there be any point in bringing in arbitration clauses from other cards and making the argument that they are all, in essence based on the same Supreme Court guidelines, and that any differences between them are intentional. For example, some cards have no carve out, others specifically define "small claims" as the Delaware equivalent (which pretty much means anything under 15K.) Could something like that be presented to the judge along with the argument that the creditor was not limited in their choice of language regarding any carve out. They could have had none, or they could have defined "small claims" by using "equivalent" language. In this case it can only be assumed that they chose the specific words "small claims" (without their own definition) for a reason.

Total long shot, but who knows - a judge who's never seen an MTC may go "Heh - the kid's got something, counselor!"

 

 

If I had to go to court with one of these "small claim exception" clauses, I would make as many arguments against it as I could.  I would point out that the Conception SCOTUS case does not make any type of exception. That if arbitration is listed in a contract, the SCOTUS says it is an absolute right and that a court may ONLY decide whether the clause is valid or not.  An undisputed card agreement should be deemed valid, and therefore, any argument over "small claims", should be heard by an arbitrator only.   I would also make arguments that show that this "small claims exception" is a twisted interpretation of the JAMS and AAA rules, which state that the consumer must be allowed the OPTION of small claims in order for a consumer clause to list their firms as the arbiters of disputes.  There are probably other ways to poke holes in those small claims clauses that I would try to find and make an argument on.  There is nothing to lose by fighting what I believe to be bad language and misinterpretation of the JAMS requirements in these agreements.  Besides, if you lose and have to appeal, you are then no longer in small claims and can have your MTC granted anyway.

[dogz1189]

On 11/15/2018 at 11:18 AM, WhoCares1000 said:

I would check the Illinois Rules of Civil Procedure on motions. Barring that, if the judge ordered that the other side responds within 21 days and they did not do so, you could argue that they cannot respond in court as that was against the order of the judge. I would still have the affidavit in hand in case the judge asks for it and I would have an arb application all ready to go and just waiting for the MTC to be granted.

 

4 hours ago, fisthardcheese said:

The first thing I would do is prepare an affidavit stating that the card agreement you filed is a true and correct copy of the agreement that governed your Citi card account.  I would have it notarized and bring 3 copies to court with you.  I would also prepare an argument against this potential "small claims" issue.  Find out if your court is, in fact, called small claims by the court and not just the average joe on the street.  Last, I would bring a list of case laws to cite that show arbitration is your right when a valid arbitration clause exists in a contract.  The Supreme Court has said this twice, and I know there is plenty of IL case law on this too.

When you go to the hearing, assuming no late response was filed prior, the first thing I would say is that I respectfully request the court to grant my UNOPPOSED Motion.  If the attorney attempts to oppose the motion verbally, I would object to his opposition and remind the judge that the Plaintiff failed to oppose this motion within the 21 days given by the court and that you now object to any opposition being brought up at this time.  HOWEVER, I would keep an eye on the court docket.  I would watch for their opposition to be filed on the last day or even a couple days late and for their copy to you to get "somehow" delayed in the mail.  I would not rely on waiting to get a copy. I would watch the docket if it is posted online, or call the clerk to ask if they filed anything.

If I had to go to court with one of these "small claim exception" clauses, I would make as many arguments against it as I could.  I would point out that the Conception SCOTUS case does not make any type of exception. That if arbitration is listed in a contract, the SCOTUS says it is an absolute right and that a court may ONLY decide whether the clause is valid or not.  An undisputed card agreement should be deemed valid, and therefore, any argument over "small claims", should be heard by an arbitrator only.   I would also make arguments that show that this "small claims exception" is a twisted interpretation of the JAMS and AAA rules, which state that the consumer must be allowed the OPTION of small claims in order for a consumer clause to list their firms as the arbiters of disputes.  There are probably other ways to poke holes in those small claims clauses that I would try to find and make an argument on.  There is nothing to lose by fighting what I believe to be bad language and misinterpretation of the JAMS requirements in these agreements.  Besides, if you lose and have to appeal, you are then no longer in small claims and can have your MTC granted anyway.

Thanks for the detailed information! I just checked the court docket and see that exhibits/motions were filed by the plaintiff the end of last week. So turns out they were just very last minute with it unfortunately. 

I don't know what they actually filed yet but the docket does say a notice was filed, so i'm assuming i'll receive something in the mail over the next day or 2.

[fisthardcheese]

21 hours ago, dogz1189 said:

 

Thanks for the detailed information! I just checked the court docket and see that exhibits/motions were filed by the plaintiff the end of last week. So turns out they were just very last minute with it unfortunately. 

I don't know what they actually filed yet but the docket does say a notice was filed, so i'm assuming i'll receive something in the mail over the next day or 2.

Given the short time frame you have to respond, I would potentially get to the court and ask for copies of whatever they filed if possible.

[dogz1189]

4 hours ago, fisthardcheese said:

Given the short time frame you have to respond, I would potentially get to the court and ask for copies of whatever they filed if possible.

 

On 11/15/2018 at 11:18 AM, WhoCares1000 said:

I would check the Illinois Rules of Civil Procedure on motions. Barring that, if the judge ordered that the other side responds within 21 days and they did not do so, you could argue that they cannot respond in court as that was against the order of the judge. I would still have the affidavit in hand in case the judge asks for it and I would have an arb application all ready to go and just waiting for the MTC to be granted.

So I took your advice and went to the courthouse today to grab a copy of what was filed....

They filed a "motion to allow late filing"....

1. On xxxx, 2018, this Court entered an order denying Defendant’s Motion to Dismiss and granting Plaintiff 21 days to respond to Defendant’s Motion to Compel Arbitration.

2. Plaintiff’s delay in filing its response was due to Plaintiff’s attorney’s inadvertent scheduling error. They filed their response on Day 24.

3. Plaintiff now seeks to file the attached response.

4. Plaintiff’s request for late filing is not intended to cause undue delay or to prejudice Defendant.

 

They then attached their response...

Preamble

Defendant seeks to compel arbitration by bringing this motion. However, Defendant has waived his right to compel arbitration by previously filing a Motion to Dismiss pursuant to 735 ILCS 5/2-615 instanter on xxxx, 2018.

Facts

1. On or about xxx, 2018, Plaintiff filed a complaint to collect monies due and owing from the delinquent charge account.
2. On xxxx, 2018, Defendant was served with alias summons and said complaint individually.

3. On xxx, 2018, Defendant filed his appearance, which set the case on the Court’s trial call on xxxx, 2018 at xxx AM in court room 1xxx.

4. On xxxx, 2018, Defendant failed to appear and the case was continued to xxx, 2018. I actually sent a representative as I was traveling out of town for work. A different judge was handling this trial call agreed to my representative's request to continue the case 60 days out.
5. On xxx, 2018, Defendant appeared and was given leave to file his Motion to Dismiss pursuant to 735 ILCS 5/2-615 instanter and his Motion to Compel Arbitration instanter.

6. Defendant’s Motion to Dismiss pursuant to 735 ILCS 5/2-615 was denied on xxx, 2018, and his Motion to Compel Arbitration was given a briefing schedule and set for hearing on xxxx, 2018.

Argument

7. It is well established that a party waives its right to compel private arbitration by submitting issues that are arbitral under the contract to a court for decision. State Farm Mutual Automobile Insurance Co. v. George Hyman Construction Co., 306 Ill.App.3d 874, 885, 715 N.E.2d 749 (1999). The “existence of a waiver is determined by the types of issues submitted, not by the number of papers filed with the court.” Kostakos v. KSN Joint Venture No. 1, 142 Ill.App.3d 533, 536-537, 491 N.E.2d 1322, 1325 (1986) citing Applicolor, Inc. v. Surface Combustion Corp., 77 Ill.App.2d 260, 222 N.E.2d 168 (1966). In Atkins v. Rustic Woods Partners, Defendants sought arbitration after previously filing motions to dismiss pursuant to section 2-615. 171 Ill. App.3d 373, 379, 525 N.E.2d 551, 555 (2nd Dist. 1988). The court concluded “defendants’ participation in the judicial forum was inconsistent with their contractual right to require arbitration and was an abandonment of that right” Id. at 556; See Feldheim v. Sims, 326 Ill.App.3d 302 (1st Dist. 2001) (holding defendants submitted substantive issues to the court by way of their 2-615 and 2-619 motions to dismiss, thus waiving their right to arbitrate the dispute).

8. Here, Defendant filed a 2-615 motion to dismiss for failure to state a claim instanter on xxx, 2018. This motion raised substantive issues of law regarding Plaintiff’s pleading requirements that would otherwise be arbitral. In doing so, Defendant has necessarily waived his right to arbitrate, and his motion to compel arbitration must be denied.

WHEREFORE, Plaintiff respectfully requests this Honorable Court to deny Defendant’sMotion to Compel Arbitration and for such further relief as this court deems just and reasonable.

 

As mentioned before, the first time I appeared before the judge, I requested leave of court as required. I filed a MTD (lack of written instrument) which was denied, and then filed a MTC-Arb....all during the same hearing.

Has anyone seen this argument before against arb? I was expecting a different argument for that one clause. The agreement I filed is attached.

 

Here is what I argued in my MTC filing....

Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit A, attached).

3. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU OR WE MAY ARBITRATE ANY CLAIM, DISPUTE OR CONTROVERSY BETWEEN YOU AND US ARISING OUT OF OR RELATED TO YOUR ACCOUNT, A PREVIOUS RELATED ACCOUNT OR OUR RELATIONSHIP.

(b) IF ARBITRATION IS CHOSEN BY ANY PARTY, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM.

(c) ALL CLAIMS ARE SUBJECT TO ARBITRATION, NO MATTER WHAT LEGALTHEORY THEY’RE BASED ON OR WHAT REMEDY (DAMAGES, OR INJUNCTIVE OR DECLARATORY RELIEF) THEY SEEK, INCLUDING CLAIMS BASED ON CONTRACT, TORT (INCLUDING INTENTIONAL TORT), FRAUD, AGENCY, YOUR OR OUR NEGLIGENCE, STATUTORY OR REGULATORY PROVISIONS, OR ANY OTHER SOURCES OF LAW.

(d) TO CHOOSE ARBITRATION, A PARTY MAY FILE A MOTION TO COMPEL ARBITRATION IN A PENDING MATTER AND/OR COMMENCE ARBITRATION BY SUBMITTING THE REQUIRED AAA FORMS AND REQUISITE FILING FEES TO THE AAA.

(e) THIS ARBITRATION SECTION OF YOUR AGREEMENT IS GOVERNED BY THE FEDERAL ARBITRATION ACT (FAA).

4. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity forthe revocation of any contract”.

5. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoringarbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. , (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. , (2010) (slip op., at 17). This purpose isreadily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

6. The Defendant elects arbitration to settle this dispute.

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration in AAA 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 the outcome of the arbitration.

 

 

 

What are you guy's thoughts? I appreciate all insight!

CMA_PID056.pdf

[dogz1189]

When re-reading the arbitration clause, the following statement sticks out to me....

Arbitration may be requested at anytime, even where there is a pending lawsuit, unless a trial has begun or a final judgment entered. Neither you nor we waive the right to arbitrate by filing or serving a complaint, answer, counterclaim, motion or discovery in a court lawsuit. To choose arbitration, a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to the AAA.

Can't I literally interpret that as I do not waive my right to arbitrate by filing a motion in a court lawsuit?

[dogz1189]

UPDATE!! I feel like i'm now in a screwed position.

Long story short....

• After I filed my MTC-Arb, judge ordered the plaintiff to respond within 21 days, and for me to reply to their response within 14 days of that
• Plaintiff responded 3 days late on Day 24 and filed a motion to allow the late filing
• I responded within 14 days of their late filing - stating their late filing should be denied
• Within the platintiff's response, they argued that I waived my right to arbitrate because I filed a motion to dismiss the same day I filed my MTC-ARB
• In my reply, I stated their late filing should not be allowed and that I did not waive my right to arbitration as stated in the clause, neither party waives they right by filing a motion, etc.

After appearing in court for my motion hearing, the court couldn't find courtesy copies of the filings and instead continued the case for another date for the hearing

I then had my rescheduled hearing this week....

• Their team of attorneys kept telling me prior to being called up before the judge that Arbitration would be too expensive for me and that i would have to pay over $2.5k in costs just for arbitration alone and that my case "isn't even worth the cost of arbitration." blah blah blah. And asked if I wanted to just settle instead.
• I said no to the settlement and said I want to move forward with Arb.
• There was an apparent shortage of judges and clerks on this day and so we had to wait about 40 minutes after the scheduled hearing time for a judge to finally walk in. Right before the judge starts calling up cases, I noticed the platiniffs were finally reading my filings and arbitration agreements (because obviously there was nothing else to do but sit and wait in the room for the judge).
• Specifically, I see one attorney point out to his partner the "small claims" clause in the agreement. At that point, I almost gasped, because they did not even read the agreement before-hand or knew about the small claims part until they finally read it literally seconds before our case is called up.

We're called up to the judge....

• Judge didn't even want to hear about the late filing at that moment and instead just wanted to quickly determine if I did indeed waive my right to arbitration or that the arbitration agreement had a valid standing
• Plaintiff argued that I did waive my right
• I then said I didn't because of what's stated in the arb clause, judge was surprised to hear this
• That's when the plaintiff finally mentioned the small claims piece he literally found out about seconds before being called up
• I tell the judge this was not mentioned in their written response to my motion
• Judge then decides to just continue the hearing for a date next month and suggested that we "work it out" before then. 
• The plaintiff then says he wants to state for the record how arbitration is too expensive for both parties blah blah blah. Judge agreed with how expensive it is and scoffed at how low my dispute amount is ($2000+) and repeated we should just "work it out" before the next hearing date and that arbitration is very expensive for both parties as she knows first-hand.

I now have my motion hearing re-scheduled again for next month. At this point, they are now aware of the small claims statement. Although each time I show up to court, it's a different judge and different plaintiff attorney. I have seen 4 different judges and 5 different attorneys for this same case.

At one point I felt I was in a good position because they filed late, and didn't argue the small claims statement in their response. I was definitely expecting my MTC-Arb to be granted based on those facts alone. Now that at least the attorneys from today are aware (who knows if they communicate this detail to the other 3 attorneys i've met before the next hearing), I feel like I have no good options at this point.

I'm seeking help because I'm at a standstill. I know citi arb agreements are the worst......do I really have any options at this point?

[Harry Seaward]

I don't see that you ever answered my question about this case being filed in Small Claims.  If you're in Cook County, there is a Pro Se Small Claims court.  Lawyers aren't allowed in this court, so you couldn't have been sued there.  I don't see any other courts called "small claims".  I think you have a pretty strong argument that Cook County has a Small Claims court and you weren't sued there, so therefore the small claims exemption from the agreement doesn't apply.  If the judge in your case doesn't agree, and denies your MTC, the only way you can have this corrected is to appeal to a higher court.  It's not a walk in the park, but if you can read and interpret court rules, it's not impossible to do on your own.

Of course, if you're in some other county that does have a Small Claims court, that's a different matter.

The issue of 'expense' is irrelevant in terms of the court enforcing the agreement as written.  Here again, if the court goes rogue and decides it doesn't want to enforce the agreement, you'll have to appeal to get it corrected by a higher court.  Incidentally, the only party that will face any significant expense is the plaintiff, but I don't think I would rub that in their face in court.

If you're not up for the challenge that goes along with an appeal, you may be better off working it out, as the judge said.