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@BrotherskeeperThey attached the Bill of Sale,A Spreadsheet of my account, 2 Statements, and the Card agreement that is identical to the one above in the thread.

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55 minutes ago, MikeB35 said:
 

@BrotherskeeperThey attached the Bill of Sale,A Spreadsheet of my account, 2 Statements, and the Card agreement that is identical to the one above in the thread.

IANAL. If plaintiff attached and referred to the card agreement in the Complaint, I don't believe it's necessary for you file an affidavit attesting to this fact. You can just refer to Plaintiff's Exhibit D (or whatever they used) or the Dell Cardmember Agreement attached to Plaintiff's Complaint that Plaintiff asserts governs the subject account. 

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Oversight on my part, good point, thank you!

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@MikeB35 IANAL. See my suggestions below.

AFFIRMATIVE DEFENSES

 

 Lack of Subject Matter Jurisdiction – Defendant states that the Plaintiff has provided the Defendant with a copy of the Credit Card Agreement in question (See Plaintiff’s Exhibit C). The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. This agreement clearly states the arbitration clause binding both parties, and also takes away both parties litigation rights if elected by either party. Therefore, This Court does not have jurisdiction to hear this matter. Defendant has notified Plaintiff's attorney of his election to arbitrate pursuant to the terms of said agreement and has filed a motion to compel arbitration with the court. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

 

Lack of Subject Matter Jurisdiction – Attached to Plaintiff's Complaint as Exhibit C is a copy of a "DELL PREFERRED ACCOUNT CREDIT AGREEMENT" (the "Agreement") that Plaintiff asserts governs the subject account. This Agreement contains a private arbitration clause to resolve any account claim or dispute, which Defendant has elected to exercise. (Pl.'s Ex. C, page x.) The Agreement clearly states the arbitration clause is binding on both parties, and takes away both parties litigation rights if elected by either party. Therefore, this Court does not have jurisdiction to hear this matter. Defendant has notified Plaintiff's attorney of his election to arbitrate pursuant to the terms of the Agreement, a true and correct copy of Defendant's notice of election of arbitration is attached as Defendant's Exhibit A. Defendant has filed a motion to compel arbitration with this Court. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

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Your changes to the opening sounds a lot more professional and outlines the agreement better then I had worded it. Thank you for the suggestions, this is exactly the reason why I'm taking my time and posting for proofreading. Your amazing!

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@MikeB35 You found out about your right to arbitrate any dispute when they attached the cardmember agreement as an exhibit to their complaint. Prior to their filing suit, you had no dispute to arbitrate. 

"In any arbitration, we will pay the entire amount of the arbitration fees, including any required deposit. Each party shall be initially responsible for payment of their own attorney fees, witness fees and similar expenses."

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@MikeB35 Here are some inconvenient (for PRA) terms from the Dell agreement:

"The arbitrator shall have the sole and exclusive authority to resolve
any dispute relating to the enforceability of this arbitration provision including any
unconscionability challenge
or any other challenge that the Agreement or the arbitration
provision is void, voidable, or otherwise invalid. The arbitrator shall be empowered to
grant whatever relief would be available in court under law or in equity.
At the conclusion
of the arbitration, the arbitrator may allocate arbitration fees in accordance with applicable
law, provided that such fees do not exceed the filing fees that would have been incurred
if the Claim had been brought in a state or federal court with jurisdiction over the Claim.

Where authorized by applicable law, the arbitrator’s award may also include attorney fees,
witness fees and similar expenses."

 

"Final Agreement. This Agreement is a final expression of the agreement between you and
us and may not be contradicted by evidence of any alleged oral agreement.


Amendments to This Agreement. We may change or terminate the terms in this
Agreement or the services or features of your Account (including increasing your Interest
Charges) at any time as permitted by law. We may also add new terms to this Agreement
or services and features to your Account. Any change in terms or any new terms may apply
to any outstanding balance as well as on subsequent transactions and balances. To the
extent required by law, we will notify you in advance of any changes in terms or any new
terms and any right to reject such changes by mailing a notice to you at your address as
shown on our records. However, no amendment will eliminate our obligations relating to
arbitration. Any dispute that arose before an amendment shall be governed by this
Agreement (including the binding individual arbitration clause) that was in place when the
Dispute arose.

Assignment of Account. We may sell or transfer your Account or any amounts owed on
your Account to another party at any time without prior notice to you. If we assign your
Account, this Agreement will still be in effect and any successor will have our rights in this
Agreement to the extent assigned. Following an assignment, the words “we”, “us”, and “our” 
in this Agreement shall refer to any assignee.
You shall not have any right to transfer your
Account or assign this Agreement to anyone." 

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There is so much I feel is backwards with the response they gave. I agree I "didn't know about arbitration until I received the agreement from the plaintiff". That also puts me into a position where I cant move ahead on my own to file with arbitration. I need to have the courts grant my MTC before I can move forward. I can use arbitration as my defense for the time being, but that's it, am I correct with that assumption?

In light of me filing my MTC they are scrambling to keep it in court, that's the gist of what I got out of it. Many pages later anyway..

 

 

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Notice where they say "To be clear, Discover does not oppose..." Discover? They copy/pasted this from another case!!!!

 

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So now it's worth checking everything they quote from the contract to see if that matches.

So what's their main point - that if you are forced to "demand" (and initiate) arbitration that they won't get stuck with a big bill? It makes no difference, under Consumer Rules, does it?

EDIT: HAAAA - they quote that fee schedule as if the Consumer and Business lines are the costs, depending on who initiates. Idiots either don't realize that those are the costs to each party, regardless, or they are blatantly trying to mislead the court.

 

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I see two options here (after skimming their response):  1. reply citing Capital One v. Rotman (https://www.courtlistener.com/pdf/2012/02/09/capital_one_bank_usa_n.a._v._rotman.pdf)

The responsibility for initiating arb is on the plaintiff, not the defendant.

2.  They have agreed to a 60 day stay.  So you promptly initiate arb and pay the fee.   The court should stay the case pending arb after that.  Case should be over when they get the big arb bill.

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Ive only skimmed through it a little bit as of right now. It has not been a good day for me, so before I go off the deep end Ill keep it to the side for today.

The points I did read seemed to do alot of pointing their fingers at me. From my understanding everything I have submitted was good to go.

At this time I dont know my coarse of action and where to go just yet.

 

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26 minutes ago, nobk4me said:

I see two options here (after skimming their response):  1. reply citing Capital One v. Rotman (https://www.courtlistener.com/pdf/2012/02/09/capital_one_bank_usa_n.a._v._rotman.pdf)

The responsibility for initiating arb is on the plaintiff, not the defendant.

This is a great case file to keep on hand for this. I appreciate the link my friend!

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It's like their whole argument is that to be contractually compliant, you need to initiate. If they've been down this road before (which is seems like they have, the way they talk about costs,) then it's like they somehow feel like their only hope of recouping is if it's "your" arbitration. Also funny with the Discover reference, since they will arbitrate - it's like they found an old boilerplate Discover motion and just decided to toss that at the wall. PRA will just fold, so it's pointless for them to argue some long shot aimed at recouping costs PRA will never pay.

 

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Im skimming over it again and I have questions.

1.) Subject matter jurisdiction - I think he took way out of context. I agree there was not any case law cited to follow through with this

2.) Is objecting to their request for 60 days something to think about?

3.) The fact that hes saying I have to initiate arbitration prior to my case being stayed has me perplexed. Not only that but it appears as tho he has already placed me in AAA rules. I havent even picked one yet... lol

4.) They are demanding that I pay my portion to show "the court proof of his payment of the applicable filing fee." , however my arb agreement clearly states " In any arbitration, we will pay the entire amount of the arbitration fees, including any required deposits..."

These are just a few questions that popped in my head right now.. Does anyone else see all of these things and more? Or am I just over thinking everything right now?

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8 minutes ago, MikeB35 said:

These are just a few questions that popped in my head right now.. Does anyone else see all of these things and more? Or am I just over thinking everything right now?

Before you get too far into thinking about this, find out if your court rules allow for a reply to a motion response. Then check to see if there are any restrictions like page length or only to issues not raised in your original motion are permitted in your reply. 

Remember, plaintiff was alerted to your invoking your right to elect arbitration as soon as they received your answer with that affirmative defense. They could have stipulated to arbitration and a stay right then or as soon as they received your motion to compel it. 

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1 hour ago, nobk4me said:

So you promptly initiate arb and pay the fee.

Should he if the contract states they will pay in any arbitration?

3 hours ago, Brotherskeeper said:

"In any arbitration, we will pay the entire amount of the arbitration fees, including any required deposit. Each party shall be initially responsible for payment of their own attorney fees, witness fees and similar expenses."

 

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