Objection to MTC Arbitration by Amex lawyer

[olvrtw]

So the Amex lawyer decided to object to my motion for arbitration. Here is his objection:

"The plaintiff, Amex, hereby objects to the defendant's Motion to compel Private/Contractual Arbitration and to Stay proceedings pending arbitration filed on ... The Plaintiff objects for the reasons following:

The Arbitration provision of the Amex cardmember agreement (attached hereto) provides that either party may elect to resolve the dispute by binding arbitration. The arbitration provision sets forth the circumstances and procedures under which claims may be arbitrated instead of litigated in court. However, neither party to this action has formally elected arbitration and, accordingly, this Court's jurisdiction is proper.

Defendant's motion to compel private/contractual arbitration and to stay proceedings pending arbitration fails to provide proof that defendant has initiated the arbitration as is required by the rules that the parties agreed upon (exhibit a page blah blah blah). By failing to do so, defendant's request for this court to dismiss the action for lack of subject matter jurisdiction is not ripe.

The plaintiff does not desire to invoke the Arbitration clause. As such, it is the defendant's obligation, and not the plaintiff's, to follow the parameters of page blah blah of the cardmember agreement for invoking the aforesaid arbitration clause.

This controversy, therefore, clearly must remain within the jurisdiction of the Connecticut Superior Court.

Wherefore, for the foregoing reasons, the plaintiff respectfully requests that the Defendent's Motion to compel be denied."

 

Below I copied my arbitration agreement. It simply states that you or we may elect to resolve any claim by individual arbitration. If arbitration is chosen by any party, neither you nor we will have the right to litigate that claim in court. 

So obviously I elected arbitration, as I have stated so in my Answer as a Special defense, and I have also stated so in my Motion to Compel. I dont know how much more "FORMAL" I could have possibly elected so other than to file it in a court pleading...

Also, since I have elected arbitration, it clearly says we cannot litigate in court... Period.

It does not state anywhere that I must initiate the arbitration. It does state: Before beginning arbitration, you OR  we must first send a claim notice... to either JAMS or AAA....

Here is Connecticut General Statute 52-409 (which i did not mention in my Motion to compel, but its obviously a law):

If any action for legal or equitable relief or other proceeding is brought by any party to a written agreement to arbitrate, the court in which the action or proceeding is pending, upon being satisfied that any issue involved in the action or proceeding is referable to arbitration under the agreement, shall, on motion of any party to the arbitration agreement, stay the action or proceeding until an arbitration has been had in compliance with the agreement, provided the person making application for the stay shall be ready and willing to proceed with the arbitration.

I am ready and willing to proceed with the arbitration, but once again the statute nor the arbitration agreement does not state anything about who MUST be the person INITIATING arbitration. In fact. Citi, whose lawyer filed a motion to stay after I filed my motion to compel, did refer to that Statute and requested the stay so the PLAINTIFF could initiate arbitration.

I also requested the JAMS $250 filing fee in my Motion to Compel, as it does state in the Arbitration clause that they would consider advancing my arbitration fees if I request it. However I have not received a response regarding that...

 

SO, how do I object to their objection, or what do I do exactly? What if the judge grants it? Can you object to an objection? If not, could I file a motion to dismiss with prejudice as I have elected arbitration and the contract clearly states that once either party elects arbitration it may not be litigated in court but it does not state who must initiate the arbitration it states you OR we must...? It also does not specifically state that once elected, that arbitration has to be initiated at all...
 

 

Arbitration You or we may elect to resolve any claim by individual arbitration. Claims are decided by a neutral arbitrator.
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. Further, you and we will not have the right to participate in a representative capacity or as a member of any class pertaining to any claim subject to arbitration. Arbitration procedures are generally simpler than the rules that apply in court, and discovery is more limited. The arbitrator's decisions are as enforceable as any court order and are subject to very limited review by a court. Except as set forth below, the arbitrator's decision will be final and binding. Other rights you or we would have in court may also not be available in arbitration.
Initiating Arbitration Before beginning arbitration, you or we must first send a claim notice. Claims will be referred to either JAMS or AAA, as selected by the party electing arbitration. Claims will be resolved pursuant to this Arbitration provision and the selected organization's rules in effect when the claim is filed, except where those rules conflict with this Agreement. If we choose the organization, you may select the other within 30 days after receiving notice of our selection. Contact JAMS or AAA to begin an arbitration or for other information. Claims also may be referred to another arbitration organization if you and we agree in writing or to an arbitrator appointed pursuant to section 5 of the Federal Arbitration Act, 9 U.S.C. sec. 1-16 (FAA).
We will not elect arbitration for any claim you file in small claims court, so long as the claim is individual and pending only in that court. You or we may otherwise elect to arbitrate any claim at any time unless it has been filed in court and trial has begun or final judgment has been entered. Either you or we may delay enforcing or not exercise rights under this Arbitration provision, including the right to arbitrate a claim, without waiving the right to exercise or enforce those rights.
Limitations on Arbitration If either party elects to resolve a claim by arbitration, that claim will be arbitrated on an individual basis. There will be no right or authority for any claims to be arbitrated on a class action basis or on bases involving claims brought in a purported representative capacity on behalf of the general public, other cardmembers or other persons similarly situated.
The arbitrator's authority is limited to claims between you and us alone. Claims may not be joined or consolidated unless you and we agree in writing. An arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award.
Notwithstanding any other provision and without waiving the right to appeal such decision, if any portion of these Limitations on Arbitration is deemed invalid or unenforceable, then the entire Arbitration provision (other than this sentence) will not apply.
Arbitration Procedures This Arbitration provision is governed by the FAA. The arbitrator will apply applicable substantive law, statutes of limitations and privileges. The arbitrator will not apply any federal or state rules of civil procedure or evidence in matters relating to evidence or discovery. Subject to the Limitations on Arbitration, the arbitrator may otherwise award any relief available in court. The arbitration will be confidential, but you may notify any government authority of your claim.
If your claim is for $10,000 or less, you may choose whether the arbitration will be conducted solely on the basis of documents, through a telephonic hearing, or by an inperson hearing. At any party's request, the arbitrator will provide a brief written explanation of the award. The arbitrator's award will be final and binding, except for any right of appeal provided by the FAA; however, any party will have 30 days to appeal the award by notifying the arbitration organization and all parties in writing. The organization will appoint a threearbitrator panel to decide anew, by majority vote based on written submissions, any aspect of the decision objected to. Judgment upon any award may be entered in any court having jurisdiction. At your election, arbitration hearings will take place in the federal judicial district of your residence.
Arbitration Fees and Costs You will be responsible for paying your share of any arbitration fees (including filing, administrative, hearing or other fees), but only up to the amount of the filing fees you would have incurred if you had brought a claim in court. We will be responsible for any additional arbitration fees. At your written request, we will consider in good faith making a temporary advance of your share of any arbitration fees, or paying for the reasonable fees of an expert appointed by the arbitrator for good cause.
Additional Arbitration Awards If the arbitrator rules in your favor for an amount greater than any final offer we made before arbitration, the arbitrator's award will include: (1) any money to which you are entitled, but in no case less than $5,000; and (2) any reasonable attorneys' fees, costs and expert and other witness fees.
Your Right to Reject Arbitration You may reject this Arbitration provision by sending a written rejection notice to us at: American Express, P.O. Box 981556, El Paso, TX 79998. Go to americanexpress.com/reject for a sample rejection notice. Your rejection notice must be mailed within 45 days after your first card purchase. Your rejection notice must state that you reject the Arbitration provision and include your name, address, Account number and personal signature. No one else may sign the rejection notice. If your rejection notice complies with these requirements, this Arbitration provision and any other arbitration provisions in the cardmember agreements for
CMAENCMAR000129 Page 8 of 10
any other currently open American Express accounts you have will not apply to you, except for Corporate Card accounts and any claims subject to pending litigation or arbitration at the time you send your rejection notice. Rejection of this Arbitration provision will not affect your other rights or responsibilities under this Claims Resolution section or the Agreement. Rejecting this Arbitration provision will not affect your
ability to use your card or any other benefit, product or service you may have with your Account.
Continuation This section will survive termination of your Account, voluntary payment of your Account balance, any legal proceeding to collect a debt, any bankruptcy and any sale of your Account
(in the case of a sale, its terms will apply to the buyer of your Account). If any portion of this Claims Resolution section, except as otherwise provided in the Limitations on Arbitration subsection, is deemed invalid or unenforceable, it will not invalidate the remaining portions of this Claims Resolution section.

[olvrtw]

Also, there is this section in the practice book titled "Untrue Allegations of Denials" Sec. 10-5

Sec. 10-5. Untrue Allegations or Denials Any allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the judicial authority, as may have been necessarily incurred by the other party by reason of such untrue pleading; provided that no expenses for counsel fees shall be taxed exceeding $500 for any one offense. Such expenses shall be taxed against the offending party whether that party prevails in the action or not. (See General Statutes § 52-99 and annotations.) (P.B. 1978-1997, Sec. 111.)

https://www.jud.ct.gov/Publications/PracticeBook/PB.pdf

 

As I see it, the lawyer made 3 untrue allegations.

1. neither party to this action has formally elected arbitration.

2. fails to provide proof that defendant has initiated the arbitration as is required by the rules that the parties agreed upon.

3. it is the defendant's obligation, and not the plaintiff's, to follow the parameters of page blah blah of the cardmember agreement for invoking the aforesaid arbitration clause.

 

I'm guessing that since I am pro se that there are no expenses? Or are there?

[fisthardcheese]

2 hours ago, olvrtw said:

Defendant's motion to compel private/contractual arbitration and to stay proceedings pending arbitration fails to provide proof that defendant has initiated the arbitration as is required by the rules that the parties agreed upon (exhibit a page blah blah blah)

This "blah blah blah" part is what is needed to properly respond.

2 hours ago, olvrtw said:

As such, it is the defendant's obligation, and not the plaintiff's, to follow the parameters of page blah blah of the cardmember agreement for invoking the aforesaid arbitration clause.

Again, no on here can refute this claim if we don't know what page of "blah blah" they are referring to.

Essentially this is the same generic arguments attorneys always use to attempt to get rid of consumers who exercise their right to arbitration.  They are hoping you give up or can't counter argue their points.  You need to look up case law from your state to help reinforce your position too.  Did your MTC include the Supreme Court case law?

 

2 hours ago, olvrtw said:

SO, how do I object to their objection, or what do I do exactly?

This would be covered in your court rules on filing motions.  Hopefully you read it before filing the MTC. You likely have a very limited time to respond to their opposition, so I would not delay.

[BV80]

11 minutes ago, olvrtw said:

Also, there is this section in the practice book titled "Untrue Allegations of Denials" Sec. 10-5

Sec. 10-5. Untrue Allegations or Denials Any allegation or denial made without reasonable cause and found untrue shall subject the party pleading the same to the payment of such reasonable expenses, to be taxed by the judicial authority, as may have been necessarily incurred by the other party by reason of such untrue pleading; provided that no expenses for counsel fees shall be taxed exceeding $500 for any one offense. Such expenses shall be taxed against the offending party whether that party prevails in the action or not. (See General Statutes § 52-99 and annotations.) (P.B. 1978-1997, Sec. 111.)

https://www.jud.ct.gov/Publications/PracticeBook/PB.pdf

 

As I see it, the lawyer made 3 untrue allegations.

1. neither party to this action has formally elected arbitration.

2. fails to provide proof that defendant has initiated the arbitration as is required by the rules that the parties agreed upon.

3. it is the defendant's obligation, and not the plaintiff's, to follow the parameters of page blah blah of the cardmember agreement for invoking the aforesaid arbitration clause.

 

I'm guessing that since I am pro se that there are no expenses? Or are there?

The section you cited is based on “pleadings”.  His objection to your motion is not a “pleading”.

 

[olvrtw]

2 hours ago, fisthardcheese said:

This "blah blah blah" part is what is needed to properly respond.

Again, no on here can refute this claim if we don't know what page of "blah blah" they are referring to.

Essentially this is the same generic arguments attorneys always use to attempt to get rid of consumers who exercise their right to arbitration.  They are hoping you give up or can't counter argue their points.  You need to look up case law from your state to help reinforce your position too.  Did your MTC include the Supreme Court case law?

 

This would be covered in your court rules on filing motions.  Hopefully you read it before filing the MTC. You likely have a very limited time to respond to their opposition, so I would not delay.

Page 7 of 10. Which is the arbitration agreement page. As I have posted the entire arbitration agreement here, its all on that one page, 7 of 10...

Not much info in the Practice book on filing motions. They show you the format, and the order of pleadings. And a lot of other stuff not relevant to my case... Could not find anything about objections...

I posted a link to the CT Practice book, cant find anything about objections to motions and objections to objections... or objections period...

https://www.jud.ct.gov/Publications/PracticeBook/PB.pdf

[Brotherskeeper]

@olvrtw  I am not a lawyer. As I understand this you filed a motion to compel arb. Amex filed a "responsive memoradum" in opposition to your motion. You may file a "reply memorandum" within 14 days, confined to matters as described in Sec. 11-10 b--if these are the correct rules for the court division you're in. 

Page 203

Sec. 11-10. Requirement That Memorandum of Law Be Filed with Certain Motions

     (a) A memorandum of law briefly outlining the claims of law and authority pertinent thereto shall be filed and served by the movant with the following motions and requests: (1) motions regarding parties filed pursuant to Sections 9-18 through 9- 22 and motions to implead a third party defendant filed pursuant to Section 10-11; (2) motions to dismiss except those filed pursuant to Section 14- 3; (3) motions to strike; (4) motions to set aside judgment filed pursuant to Section 17-4; and (5) motions for summary judgment. Memoranda of law may be filed by other parties on or before the time the matter appears on the short calendar.

     (b) A reply memorandum is not required and the absence of such memoranda will not prejudice any party. A reply memorandum shall be strictly confined to a discussion of matters raised by the responsive memorandum and shall be filed within fourteen days of the filing of the responsive memorandum to which such reply memoranda is being made.

     (c) Surreply memoranda cannot be filed without the permission of the judicial authority.

(P.B. 1978-1997, Sec. 204.)(Amended June 12, 2015, to take effect Jan. 1, 2016.)

[olvrtw]

Ok great. I would have filed it tomorrow.

So do I just title it Reply Memorandum, or Objection to Plaintiff's Objection?  Do I basically just point out what i pointed out here on these forums. That it does not state in the contract that I must initiate the arbitration, and that plaintiff is free to do so themselves?

[Brotherskeeper]

2 hours ago, olvrtw said:

So do I just title it Reply Memorandum, or Objection to Plaintiff's Objection?

What did Amex title its response to your motion? IANAL. "Defendant's Reply to Plaintiff's Response in Opposition to Defendant's Motion to Compel Private Contractual Arbitration and Stay Proceedings"

2 hours ago, olvrtw said:

Do I basically just point out what i pointed out here on these forums

The rules of civil procedure state:

2 hours ago, Brotherskeeper said:

A reply memorandum shall be strictly confined to a discussion of matters raised by the responsive memorandum

IANAL. As I read this, you would rebut or refute only the assertions made in Amex's response to your MTC. Citing the specific contract language to rebut Amex's (mis)reading would aid the persuasiveness of your reply. You're asking the court to compel Amex to arbitrate its claim.

Trial has not begun, nor has a final judgment been entered:

8 hours ago, olvrtw said:

We will not elect arbitration for any claim you file in small claims court, so long as the claim is individual and pending only in that court. You or we may otherwise elect to arbitrate any claim at any time unless it has been filed in court and trial has begun or final judgment has been entered. Either you or we may delay enforcing or not exercise rights under this Arbitration provision, including the right to arbitrate a claim, without waiving the right to exercise or enforce those rights.

Fisthardcheese has recommended that a pre-filled out (but not yet filed) JAMS or AAA demand/claim form be brought to the hearing to demonstrate to the judge a readiness to file as soon as the MTC is granted. 

[Thomas2]

Sending a claim notice to JAMS or AAA is the initiation of arbitration.  AMEX is saying that you have not formally initiated arbitration based on the CMA, therefore, the court should strike down your MTC.  They do not want to arbitrate so since you haven't or don't want to file it yourself, then they got you it appears on a technicality of the CMA.  

Why not just file it this evening online with either forum?  You can file a AAA arbitration demand online in about 30 minutes and will immediately receive a time and date stamped document with a new case number.  I have not filed a JAMS one online before but I think it is basically the same way.  You do not have to pay the filing fee to initiate it.  

Then pen up a quick response to their objection detailing that you wrote them demanding arbitration and you have officially initiated the process now according to the CMA.  Include a copy of the AAA or JAMS documentation with time & date plus case number.  You have thus fulfilled the requirements of the CMA arbitration provision, have formally initiated arbitration, and therefore the MTC arbitration should be granted and the suit stayed until such time as the arbitration process ends as the court now lacks jurisdiction.    

[fisthardcheese]

9 hours ago, thomasp said:

AMEX is saying that you have not formally initiated arbitration based on the CMA, therefore, the court should strike down your MTC.  They do not want to arbitrate so since you haven't or don't want to file it yourself, then they got you it appears on a technicality of the CMA. 

The card agreement does not say this at all.  There is no requirement to file the arbitration case prior to an MTC.  Amex certainly is trying to SAY this, but it is patently false and I would bet anything that there is plenty of state-specific case law to back that up.

12 hours ago, Brotherskeeper said:

As I read this, you would rebut or refute only the assertions made in Amex's response to your MTC. Citing the specific contract language to rebut Amex's (mis)reading would aid the persuasiveness of your reply.

In other words, do NOT bring up any new issues or arguments. You can ONLY refute what they said in their response.   I would include case law cites form your state to back up the fact that t is well established that an MTC may be granted after the start of a lawsuit (in addition to quoting the language in the contract).

14 hours ago, olvrtw said:

So do I just title it Reply Memorandum

You title it "Reply Memorandum to Plaintif's *whatever they titled their response*"

[olvrtw]

Great. I will try to get it done. Another question, I have a feeling I may be getting another pulmonary embolism, pains are very similar to what I experienced 9 years ago, if I do get admitted to the hospital do I get to stay my cases somehow?

[fisthardcheese]

2 hours ago, olvrtw said:

 

Great. I will try to get it done. Another question, I have a feeling I may be getting another pulmonary embolism, pains are very similar to what I experienced 9 years ago, if I do get admitted to the hospital do I get to stay my cases somehow?

A medical issue would probably be considered "good cause" to show that a continuance is needed.   I would file a motion for continuance and start it with "comes now, Defendant, YOUR NAME, and shows good cause that this case be continued for a period of 90 days (*or whatever length) due to medical treatment."  If you can provide a doctor's note or something as evidence of your need for hospitalization, then it probably should be easily granted, I would think.

[Goody_Ouchless]

5 hours ago, olvrtw said:

Another question, I have a feeling I may be getting another pulmonary embolism, pains are very similar to what I experienced 9 years ago, if I do get admitted to the hospital do I get to stay my cases somehow?

Just for the sake of completeness, AMEX follows everyone to arbitration, so you won't "win." It will just prolong the agony and cost them a few extra bucks - money they can certainly afford to lose.

It's worth it for some people just to "stick it" to 'em, but this isn't going end up the way it does with debt buyers.

[Brotherskeeper]

6 hours ago, olvrtw said:

I have a feeling I may be getting another pulmonary embolism, pains are very similar to what I experienced 9 years ago,

I hope not. Take care of yourself. 

[WhoCares1000]

1 hour ago, Goody_Ouchless said:

Just for the sake of completeness, AMEX follows everyone to arbitration, so you won't "win." It will just prolong the agony and cost them a few extra bucks - money they can certainly afford to lose.

It's worth it for some people just to "stick it" to 'em, but this isn't going end up the way it does with debt buyers.

I was waiting for someone to bring up this elephant in the room.

[fisthardcheese]

On 11/14/2018 at 3:41 PM, Goody_Ouchless said:

Just for the sake of completeness, AMEX follows everyone to arbitration, so you won't "win." It will just prolong the agony and cost them a few extra bucks - money they can certainly afford to lose.

It's worth it for some people just to "stick it" to 'em, but this isn't going end up the way it does with debt buyers.

Correct.  With AMEX, I would expect to end up paying most of the debt (75% +).  Arbitration will delay and buy time to save up money to offer a settlement they will accept, and it also could avoid paying court costs and extra fees on top of it (plus a judgement on record) IF you can agree on a settlement with them.  But otherwise, you will end up going all the way through the end of arbitration with them.  You can appeal the first arbitration (due to the appeal language in the AMEX agreement) and try to settle with them during the appeal, but that would be your last shot because otherwise they will just pay crazy amounts of money to see it through to the end knowing they are losing money on the deal.

[olvrtw]

Luckily x-rays and cat scans did not find a clot, but I was misdiagnosed the first time I had it, so it is still a little worrisome.

Anyways, I did not get a chance to write up the reply until today. I also got a letter yesterday and have a short calendar date for my motion to compel and their objection. Is it too late to have the judge see my reply to their objection? I would put it in anyway, and if they do by some idiotic miracle grant amex their objection I guess I would have to ask the judge to reconsider, since the amex lawyer was just making stuff up....

Also, I don't really know where or how to find any state specific case law for this, so I was just going to point out what the contract actually says, and maybe point out that on the jams demand for arbitration form it states that you can submit a motion to compel and the application is only for a claimant, in which amex would be the claimant since they are suing me...