treblclef20

Midland Funding suit in NYC

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17 minutes ago, Brotherskeeper said:

Under US and NY law, arbitration of a dispute/claim is a matter of contract. What does the contract's arbitration section state? That all disputes or claims must be arbitrated? That no party to the contract may go to court? Or, that a party may choose to arbitrate under certain circumstances described in the contract's arbitration clause? A  party can choose/demand to arbitrate certain/any claims/disputes not exempted by the contract's arbitration clause--even if the other party has already filed a lawsuit, but before a trial? 

A motion to compel arb is a motion to have a judge order the other party to arbitrate, when that party opposes arbitration and wants to remain in court. If you've answered the complaint without asserting arbitration as a affirmative defense, have sent requests for production of many documents, not just the cc agreement, have not sent a notice of intent or a demand to arbitrate the claims, how has Plaintiff opposed or refused to arbitrate? They haven't been given the opportunity to do so yet; they've only exercised their contractual right to choose to file a claim in court. Unless the Citibank cc agreement bars them from ever filing in court. You haven't taken any steps since they filed to assert your contractual right to arbitrate their claim or any counterclaim you may have.

Got it, thanks. Here's the agreement for reference.

I'll be sending a letter overnighted to them in advance of the date to ensure I have at least notified them of that intent, to your point.

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@treblclef20 This section is very interesting:

"Arbitration may be requested any time, 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 arbitraton, a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and the requisite filing fees to the AAA." 

It appears that you "choose arbitration" by filing the motion to compel arbitration in the "pending matter" and/or submit the AAA forms and filing fee. Nowhere does it state you must notify plaintiff in writing before filing a motion to compel. Filing an answer or discovery does not waive your right to choose arbitration. The big problem is the small claims exception. Did you find out if you are in small claims court? If you aren't in small claims court, you appear to be able to file a motion to compel. (Caveat: I am not a lawyer!)

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@Brotherskeeper thanks for being so responsive. From what I can tell, it seems to be civil court, not small claims. 

So, from what you are saying, not only do I not need to tell the plaintiff, but it seem like I don't even need to submit paperwork to the AAA yet. It seems like I could go to the pre-trial hearing with the defense that this is outside the court's jurisdiction and belongs in arbitration. If the judge agrees and dismisses, then could I just wait for the plaintiff to decide to move arbitration forward first? Or do I need to show the judge that I intend to move this to arbitration by showing him/her that I've filed the paperwork?

 

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3 hours ago, treblclef20 said:

From what I can tell, it seems to be civil court, not small claims. 

So, from what you are saying, not only do I not need to tell the plaintiff, but it seem like I don't even need to submit paperwork to the AAA yet.

I'm just quoting the terms straight from the cc agreement you posted. It is a 2019 agreement. If you defaulted in an earlier year, those terms may not be in there. If you aren't in small claims court, that exeception to arb doesn't appy to you. 

 

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I realize there are a lot of cases outlined here that can be researched for reference. I have read through all of them thoroughly, and still found it hard to determine which things applied in my case, particularly because I had to amend my answer. So, just in case it's useful for anyone, here is the latest update -- particularly as related to handling the amendment of the answer:

  • My husband appeared at the pre-trial hearing and simply told the judge verbally that he'd like to amend his answer and also that he will be pursuing arbitration.

 

  • The judge adjourned the case to allow him to file an amended answer and a motion for arbitration. (She adjourned the case until spring 2020.)  If the new answer and motion is accepted by the court, then it sounds like the case will be dismissed without him needing to show up to court again.

 

  • Some other observations and points (and I'm curious if any of you have reactions to this):
    • The plaintiff's lawyer tried to argue that because Midland is the owner now, the Citibank agreement doesn't apply. (That seems completely grasping at straws and inaccurate, but please let me know if you have any insights into this.)
    • When granting the adjournment, the judge said to take advantage of this time to file a discovery request. My husband said he already had and the plaintiff hadn't answered yet, which the judge reacted positively to (that he was taking proactive steps). (That said, why would the judge say this? Does this mean she thinks the arbitration motion probably won't get approved? Because discovery seems a moot point if arbitration motion is granted.)
    • The lawyer tried to contest that a discovery request had been made (we of course had proof) and handed my husband some paperwork to prove ownership of the account (however, it is not extensive and certainly doesn't address all the items requested in the discovery letter).
    • My husband said that the plaintiff's lawyer was working many other cases that day and that she was very aggressive about contesting when other cases were being adjourned, but was not nearly as aggressive in this case. (Do you think this is because she really didn't have an argument here? .... or something else?)

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On 8/18/2019 at 6:11 PM, treblclef20 said:
 

Got it, thanks. Here's the agreement for reference.

I'll be sending a letter overnighted to them in advance of the date to ensure I have at least notified them of that intent, to your point.

Did this letter comply with CPLR § 7503(c) as explained in this post in MIOMH's thread?

 

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1 hour ago, treblclef20 said:

The judge adjourned the case to allow him to file an amended answer and a motion for arbitration. (She adjourned the case until spring 2020.)  If the new answer and motion is accepted by the court, then it sounds like the case will be dismissed without him needing to show up to court again.

That's great! Be sure to look up the CPLR and any court-specific rules for preparing an amended answer. (In my state an amended answer takes the place of the previous answer as if the first never happened; it must be titled "First Amended Answer.") 

1 hour ago, treblclef20 said:

Some other observations and points (and I'm curious if any of you have reactions to this):

  • The plaintiff's lawyer tried to argue that because Midland is the owner now, the Citibank agreement doesn't apply. (That seems completely grasping at straws and inaccurate, but please let me know if you have any insights into this.)

 

The posted agreement, page 17: "Assignment. We may assign any or all of our rights and obligations under this Agreement to a third party."

Page 1: "Card Agreement. This Card Agreement is your contract with us. It governs the use of your card and account. The Supplemental Pricing Information ("Supplement") is a part of this Agreement."

Page 16: "Survival and Severability of Terms. This arbitration provision shall survive changes in this Agreement and termination of the account or the relationship between you and us, including any bankruptcy of any party and any sale of your account, or amounts owed on your account, to another person or entity.  If any part of the arbitration provision is deemed invalid or unenforceable, the other terms shall remain in force, except that there can be no arbitration of a class or representative Claim. This arbitration provision may not be amended, severed or waived except as provided  in this Agreement or in a written agreement between you and us."

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@ treblclef20, did you receive a court date and a judge assigned to your case as soon as you filed?  I'm just trying to find out how much different is NY County to Suffolk County, considering we're only two counties away from each other.

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On 9/1/2019 at 10:04 PM, MIOMH said:

@ treblclef20, did you receive a court date and a judge assigned to your case as soon as you filed?  I'm just trying to find out how much different is NY County to Suffolk County, considering we're only two counties away from each other.

 

As soon as I filed the original answer, I was given a hearing date. The judge was assigned days before the hearing date.

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