Mlrs327

Small Claims and Credit Agreement

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Got letter from the court...Aug 19th have to be there for "MOTION HEARING on MOTION TO COMPEL ARBITRATION" It clearly identifies this as a motion hearing...but what bothers me it states at the bottom "Most pre-trial motions will be heard the day of trial. If the motion is denied please be prepared to move directly in trial." 

That last part unnerves me...is this a "pre-trial motion"? It would be disaster for him to deny it and then look at me and say "lets move to trial"

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17 hours ago, Mlrs327 said:

Got letter from the court...Aug 19th have to be there for "MOTION HEARING on MOTION TO COMPEL ARBITRATION" It clearly identifies this as a motion hearing...but what bothers me it states at the bottom "Most pre-trial motions will be heard the day of trial. If the motion is denied please be prepared to move directly in trial." 

That last part unnerves me...is this a "pre-trial motion"? It would be disaster for him to deny it and then look at me and say "lets move to trial"

That is usually how most small claims works.  If your MTC is denied, you are ripe for an appeal, so no matter what happens after that I would just plan to immediately walk to the clerk's office and file an appeal before even leaving the court house.

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Sad day....ok...thank you sir. I may have to go about this differently, I dont have the $ nedded to appeal 

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3 minutes ago, Mlrs327 said:

Sad day....ok...thank you sir. I may have to go about this differently, I dont have the $ nedded to appeal 

Don't defeat yourself before you even get to court.

The odds are in your favor of having your MTC granted, so don't change anything now to mess up that chance.

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Ok...thank you. I will continue to research what to expect and how to respond...on a side note, just now got served another by the same lawfirm for same debt collector for different debt

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Well Monday morning is hearing for the motion, actually an MTC for 2 different lawsuits from these same people. The lawyer called me today, asked 4 times if I would be opposed to a continuance(I said yes 4 times, I should have said no...then objected at the hearing)

Anyway....he pointed out that he will be stating the lawsuits are exempt from arbitration because are in small claims. How would y'all go about combatting that? My arguments are

1: This is not a small claims court and there is nothing in the contract about "small claims OR YOUR STATES EQUIVALENT)

2. Its not a small claims case its a debt claim case

3. Exempt means free from obligation, not...not permitted. The contract says "You or we may elect arbitration for any case" The way I understand the language is, if it is not in small claims the lawsuit MUST go to arbitration(even if neither party wants arbitration) if it is in small claims...a single party may still elect arbitration, but if neither party wants arbitration AND it is small claims, the lawsuit is not obligated to go to arbitration.

Thoughts?

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Hi Mlrs327,

I am dealing with Citi’s arb “limitation” clause in WI. Unfortunately, my case is in a court specifically named Small Claims Court.

I am very intrigued by your 3rd argument. I have been searching high and low for case law that specifically addresses this issue.

The Schein Supreme Court decision is interesting but does not speak directly to our issue.

I would be thrilled if anyone here has knowledge of case law that specifically addresses the validity of the arb limitation clause.

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@WonderingInWI You might find this interesting. In an Arizona case that a pro se brought against Citibank in small claims court, according to the pro se author of this article, Citi did the following to evade the small claims exemption:

https://medium.com/@dempsey/tyranny-of-the-arbitrators-5b5526489338

"In its motion, Citibank simultaneously:

  1. cited A.R.S. 22–504 to unilaterally and automatically have my small claim removed to Justice Court; and,
  2. cited the arbitration agreement’s Disputes Excluded from Arbitration clause — “…so long as the disputes remain in [small claims] court…” — to force this newfound Justice Court case into mandatory arbitration.

By unilaterally removing my small claim from small claims court, Citibank had exposed its agreement to contain a deceptive trap that does not grant a right to small claims court."

 

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Interesting....well no matter how our motions or trials play out in small claims, we will be able to appeal(therefore elevating it out of small claims) then do the same thing and immediately file another MTC with the higher court. It would just be nice if the MTC were granted in the first place...as filing an appeal is expensive unless you just through a bunch of hoops to show you cant afford the bonds

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14 hours ago, WonderingInWI said:
 

@Brotherskeeper

 I wonder just how many times they’ve argued “both sides” of their own agreement.

I suspect any time Citi is a defendant, if the state rules allow it, they get it out of small claims and then into arb--where there's no case ruling to be made public.

A critical first step for any defendant with Citi's small claims arb exemption is to research rules to see if your state allows a case to be transferred to a higher court. My state allows this, but my state does not allow attorney representation in small claims court, so JDBs don't sue in small claims. 

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Well, motion was denied... Though my argument #3 did throw off the lawyer, and the judge read the whole agreement before deciding...but to my surprise trial did not move forward today. They are reset for 45-60 days, so bought some time to evaluate and asjust

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26 minutes ago, Mlrs327 said:
 

Well, motion was denied... Though my argument #3 did throw off the lawyer, and the judge read the whole agreement before deciding...but to my surprise trial did not move forward today. They are reset for 45-60 days, so bought some time to evaluate and asjust

What reason did the judge give for the denial? 

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So moving forward....any suggestions? My thought is, if I lose when the trial comes up(which in all likelihood I will lose) I can appeal...which will elevate it out of small claims and I can just immediately do an MTC Arb with that court...which will be granted because there will be no other exemptions they will be able to argue to keep it out of arbitration. Does that sound like a plausible plan?

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22 hours ago, Mlrs327 said:

So moving forward....any suggestions? My thought is, if I lose when the trial comes up(which in all likelihood I will lose) I can appeal...which will elevate it out of small claims and I can just immediately do an MTC Arb with that court...which will be granted because there will be no other exemptions they will be able to argue to keep it out of arbitration. Does that sound like a plausible plan?

This is the plan I would use.

I would also file a counter claim in the small claims court if I can find any shred of a violation.  Often in small claims, the JDBs do not like to argue counter claims and will agree to a mutual dismissal.

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31 minutes ago, fisthardcheese said:

This is the plan I would use.

I would also file a counter claim in the small claims court if I can find any shred of a violation.  Often in small claims, the JDBs do not like to argue counter claims and will agree to a mutual dismissal.

I've wondered how counter claims work...could I not just file a counter claim for $10,001? Thereby making everything above small claims? Kind of a silly idea, but I wouldn't put it past JDBs or Citi for that matter if it got them where they wanted to be

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5 hours ago, Mlrs327 said:

I've wondered how counter claims work...could I not just file a counter claim for $10,001? Thereby making everything above small claims? Kind of a silly idea, but I wouldn't put it past JDBs or Citi for that matter if it got them where they wanted to be

You would have to check your court rules on removing a case to a higher court. Sometimes it requires paying the filing fees of the higher court.  Filing a counter claim higher than the small claims limit doesnt automatically move the case.

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