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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