AAA won't arbitrate with Cavalry- now what do I do?

[WonderingInWI]

Background:

Sued by Cavalry for alleged $2K CitiBank debt.  Filed Answer and MTC. Filed consumer action with AAA.

 

Today I received a letter from AAA. The take-away is that they won't work with Cavalry anymore because they suck. From the letter:

 

"According to R-1(d) of the Consumer Rules, should the AAA decline to administer an arbitration, either party may choose to submit its dispute to the appropriate court for resolution."

 

Seriously?!? Am I back where I started because Cavalry are slime balls?  I was already preparing to do battle because of the small claims cut out-- now it looks like there is nothing I can do.

 

Any ideas from the brain trust?

[Harry Seaward]

Use JAMS instead. 

[Goody_Ouchless]

@fisthardcheese should chime in, but I believe the approach is to argue that it's not your fault that their actions put them in this situation - the contract offers AAA as a forum for  dispute resolution, so they either get back in good standing, or they're out of luck.

[fisthardcheese]

Wait for your MTC to be granted and ask AAA to reopen your file by sending them a copy of the court's order to arbitrate.

[WonderingInWI]

Thanks, @Harry Seaward, @Goody_Ouchless and @fisthardcheese.

 

On 9/26/2019 at 5:41 PM, Harry Seaward said:

Use JAMS instead. 

The arb clause states:

"Arbitration shall be conducted by the AAA according to this arbitration provision and the applicable AAA arbitration rules in effect when the claim is filed, except where those rules conflict with this arbitration provision."

Could I file with JAMS, asserting that AAA is not available to me because of Cavalry's prior poor behavior?

 

On 9/26/2019 at 10:11 PM, fisthardcheese said:

Wait for your MTC to be granted and ask AAA to reopen your file by sending them a copy of the court's order to arbitrate.

Are you aware of AAA agreeing to arbitrate cases they previously declined based on court orders?

[fisthardcheese]

16 hours ago, WonderingInWI said:

Thanks, @Harry Seaward, @Goody_Ouchless and @fisthardcheese.

 

The arb clause states:

"Arbitration shall be conducted by the AAA according to this arbitration provision and the applicable AAA arbitration rules in effect when the claim is filed, except where those rules conflict with this arbitration provision."

Could I file with JAMS, asserting that AAA is not available to me because of Cavalry's prior poor behavior?

 

Are you aware of AAA agreeing to arbitrate cases they previously declined based on court orders?

No you can't use JAMS at this point, since AAA has not refused a court ordered arbitration case yet.

Yes, I am aware.  AAA will take the case when you send the court's order.

[WonderingInWI]

Thanks, @fisthardcheese

 

My hearing date is 11/4. It will be before a commissioner, not a judge--as a matter of fact, the same commissioner that denied my MTC in a previous case.  I appealed the decision, received a trial de novo, and the presiding judge granted the MTC.

My question is:

Is there any way to use the judge's ruling in the prior case to bolster my argument for the MTC in the current case?

 

When I previously appeared before the commissioner, I'm doubtful he even read the MTC. He dismissed me out of hand and basically stated he had no idea what I was talking about.  Could/should I mention that his decision was overruled (not sure that's the right terminology) by the judge?

 

[BackFromTheDebt]

18 hours ago, WonderingInWI said:

Thanks, @fisthardcheese

 

My hearing date is 11/4. It will be before a commissioner, not a judge--as a matter of fact, the same commissioner that denied my MTC in a previous case.  I appealed the decision, received a trial de novo, and the presiding judge granted the MTC.

My question is:

Is there any way to use the judge's ruling in the prior case to bolster my argument for the MTC in the current case?

 

When I previously appeared before the commissioner, I'm doubtful he even read the MTC. He dismissed me out of hand and basically stated he had no idea what I was talking about.  Could/should I mention that his decision was overruled (not sure that's the right terminology) by the judge?

 

Depends on the commissioner's personality, among other things.  

If you think he is the type of guy who really wants to learn the law, and would appreciate knowing how the judge ruled in the earlier case, then it could work.

If you think he would just get p*ssed off and rule against you, maybe it isn't wise.

OTOH, this may be the equivalent of a Hail Mary pass in football.  The play rarely works, but when you don't try you lose anyway.  If the magistrate seems not to know what you are talking about, take some time to explain the situation, and you can mention the last time you were in the situation the circuit court judge granted your motion.  If it p*sses him off, you were going to lose anyway.  

I would see how things develop during the hearing.  

[WonderingInWI]

2 hours ago, BackFromTheDebt said:

Depends on the commissioner's personality, among other things.  

If you think he would just get p*ssed off and rule against you, maybe it isn't wise.

 

My best guess is:  this one. 

 

And, either way, I fully expect the commissioner will rule against me. I'll appeal and request a trial de novo.

 

However, because you are familiar with the venue, I am wondering what your take is on "small claims" vs. "circuit court."

Because the arb clause I am working with is one with Citi's cut out for small claims court, I am preparing for the plaintiff to argue that against my MTC. My plan is to argue that the case is no longer in small claims and is now in circuit court. I am at a loss to find anything that specifically bolsters this line of reasoning.  

Thoughts?

[Brotherskeeper]

@WonderingInWI I don't know if this would work or not. You might research judicial notice rules and how to formally request it. 

https://docs.legis.wisconsin.gov/statutes/statutes/902.pdf

You may be able to request the magistrate take judicial notice of the fact that arbitration has been granted in your court, without him using the ruling as the fact. See if you can request a certified copy of the judge's decision in your appealed case from your court. While the court may not technically be able to take notice of the ruling itself under these rules, once the magistrate reads it, it's hard to unring the bell. He'll see that he was overruled without you having to say so in open court. Just my thoughts to explore the possibility. (IANAL)

[WonderingInWI]

Thanks @Brotherskeeper

On 10/17/2019 at 12:45 PM, Brotherskeeper said:

Something like this?

 

 

You may be able to request the magistrate take judicial notice of the fact that arbitration has been granted in your court, without him using the ruling as the fact. See if you can request a certified copy of the judge's decision in your appealed case from your court. While the court may not technically be able to take notice of the ruling itself under these rules, once the magistrate reads it, it's hard to unring the bell. He'll see that he was overruled without you having to say so in open court. Just my thoughts to explore the possibility. (IANAL)

 

Motion.pdf

[Brotherskeeper]

@WonderingInWI Why do you include "IN THE ALTERNATIVE, TO SUPPLEMENT THE RECORD" in this motion? This ruling is from a totally different case, correct? As I understand your situation, you aren't trying to supplement this current case record with a previous case. Fact #1-#4 are not relevant to the current matter.

You described your previous decision with the same commissioner:

On 10/16/2019 at 4:07 PM, WonderingInWI said:

When I previously appeared before the commissioner, I'm doubtful he even read the MTC. He dismissed me out of hand and basically stated he had no idea what I was talking about. 

Are you certain the italicized above is why he denied your motion to compel? Did you follow all of the court rules? If he truly had no idea what a motion to compel arbitration (under the FAA) was, or that it was even permitted, then a request for judicial notice of the fact that such a MTC is not only permitted, but was granted on appeal in your court, is an important fact. This is the "fact" that you want this commissioner to recognize. He may rule against this request, but he has to read it first. As I understand judicial notice here, he can't use the facts from the previous case, the reasoning in it or the ruling decision itself, but may be able to take notice of the ruling. (I am not a lawyer!)

 

[WonderingInWI]

 

20 hours ago, Brotherskeeper said:

@WonderingInWI Why do you include "IN THE ALTERNATIVE, TO SUPPLEMENT THE RECORD" in this motion?

I did a brief (very) research of judicial notice. I saw "in the alternative..." used quite a few times. My understanding was that its purpose was to ensure that even if the presiding jurist rejected the notice (denying its applicability to the issue at hand, etc.),  it would become part of the record and available for the next judge to consider.  However, reading further, I see that issues of judicial notice can be raised at any point in any proceeding-- which means that, once again, I have absolutely no idea what the h@#$ I am doing. 

 

I am struggling with how to actually present this information I want the commissioner to have. Do I just file the Motion for Judicial Notice as a separate document? Should I mention it in my MTC?

Sorry if these questions are simplistic or annoying- 

2 hours ago, Brotherskeeper said:

 

Are you certain the italicized above is why he denied your motion to compel? Did you follow all of the court rules? 

 Definitely followed all the court rules. Not certain as to commissioner's specific rationale for denying  MTC- mostly because he never stated one.  I did note  the fact that he was extremely solicitous of Plaintiff's attorney (called him by his first name and asked if he'd attended a recent sporting event), all the while treating various Defendants as somewhat morally defective dotards. The Commissioner's exact words to me, "I have no idea what this is or why it matters," referring to MTC. My attempts to explain were rebuffed. The hearing lasted less than 3 minutes.

 

 

[Brotherskeeper]

How did the judge who overturned this commissioner's denial describe it? 

[Brotherskeeper]

45 minutes ago, WonderingInWI said:

I am struggling with how to actually present this information I want the commissioner to have. Do I just file the Motion for Judicial Notice as a separate document? Should I mention it in my MTC?

Sorry if these questions are simplistic or annoying- 

I don't know the answers to these questions, so your questions are not "annoying" at all. In my opinion (IANAL) you aren't presenting a "fact" to supplement the record of "facts" of your case. However, as I understand this, if you file a request for judicial notice, this would become a part of your case file. If your MTC in this case again is denied by this commissioner, it would be in your file on appeal. I think that it wouldn't hurt to include a reference to the fact that motions to compel arbitration have been heard and granted in your court. You might also mention that judicial notice of this fact has been requested. Let me do a little more digging. Do you have a deadline here?

[WonderingInWI]

7 minutes ago, Brotherskeeper said:

How did the judge who overturned this commissioner's denial describe it? 

After I appealed the Commissioner’s ruling and was granted a trial de novo in Circuit Court, the Plaintiff filed a Brief in Opposition to my MTC. I was surprised that the document was so sloppy and poorly reasoned.

I responded with my Brief in Opp to Plaintiff’s, countering each argument. I used many things I learned in this Forum but also added as much state case law as I could find.

At the hearing, the Judge questioned us. He then granted my MTC, stating that  my rationale was well founded and that Plaintiff has offered nothing to refute that.

[WonderingInWI]

#Brotherskeeper

My hearing is 11/04.  And thank you so much for your help!

[Brotherskeeper]

16 minutes ago, WonderingInWI said:

At the hearing, the Judge questioned us. He then granted my MTC, stating that  my rationale was well founded and that Plaintiff has offered nothing to refute that.

That's great! Did the judge put anything in writing? 

[Brotherskeeper]

Wis. Stat. § 902.01(2)(a)(b)

902.01  Judicial notice of adjudicative facts.
(2) Kinds of facts. A judicially noticed fact must be one not subject to reasonable dispute in that it is any of the following:
(a) A fact generally known within the territorial jurisdiction of the trial court.
(b) A fact capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

I haven't located a Wisconsin example yet. I've seen examples of these titled as a "Request" and as a "Motion." A few examples that used "or in the alternative, supplement the record" language were for an appeal.   I saw one example titled "Defendant's Request for Judicial Notice in Support of Defendant's Motion to..." I'll keep looking when I've got some free time. Were you able to get a certified copy of the court ruling? 

[WonderingInWI]

20 hours ago, Brotherskeeper said:

Were you able to get a certified copy of the court ruling? 

Working on that today. I won't have any idea of what the judge actually said until I see it. Thank you again!

[Brotherskeeper]

@WonderingInWI  I haven't found whether it's customary in your court to title this as a "motion" or a "request."  I wasn't able to find a Wisconsin example. I did find some Wisconsin case cites that are helpful. Based on examples from other states, here's a compilation as a starting point for you. (IANAL)

 

REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT'S MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATON AND STAY PROCEEDINGS PENDING ARBITRATION

 

TO THE HONORABLE <<judge's name, or Court>>  AND ALL PARTIES IN INTEREST:

     WonderingInWI, Defendant appearing pro se, respectfully requests that this Court take judicial notice of the documents listed below in support of her/his pending Motion to Compel Private/Contractual Arbitration...[your actual MTCA title], pursuant to Wis. Stat. § 902.01.

     1. The XXXX XX, 20XX Memorandum Opinion and Order entered by the Hon. <<judge's name and XX Circuit Court>>  Attached and designated as Exhibit “A” is a true and correct copy of the Order, certified October XX, 2019, of JDB v WonderingInWI, XX Wisconsin Circuit Court, Case No. XXXXX.

     Defendant requests that this Court take judicial notice of the attached certified court records filed in <<name of court>> reflecting the proceedings wherein a motion to compel arbitration and stay was granted on appeal after a trial de novo. This Court may do so not for the truth of the facts recited therein, but for the existence of the opinion, the fact of which is not subject to reasonable dispute over its authenticity and accuracy. 

     Our Court of Appeals stated in State v. Sarnowski, 280 Wis. 2d 243, 250, 694 N.W.2d 498 (2005):

¶ 13. Trial courts may take judicial notice in limited areas—"fact generally known within the territorial jurisdiction of the trial court," or "fact capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." WIS. STAT. RULE 902.01(2). Significantly, a court may not take judicial notice unless the parties have at some point "an opportunity to be heard." RULE 902.01(5).[1] Further, a judge may not take "judicial notice" of things that he or she knows unless that knowledge also falls within the rule. State v. Peterson, 222 Wis. 2d 449, 457-458, 588 N.W.2d 84, 87-88 (Ct. App. 1998) ("A trial court sitting as fact-finder may derive inferences from the testimony and take judicial notice of a fact that is not subject to reasonable dispute, but it may not establish as an adjudicative fact that which is known to the judge as an individual.") (footnotes omitted). 

"Further, a court must take judicial notice when, as material here: (1) the fact for which judicial notice is requested is "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned"; and (2) a party asks the court to take judicial notice and gives the court "the necessary information." RULE 902.01(2)(b) & (4)." Sisson v. Hansen Storage Company, 313 Wis.2d 411, 756 N.W.2d 667, 674 (Wis. Ct. App. 2008).

     For the foregoing reasons, Defendant respectfully requests that this Honorable Court take judicial notice of the court records attached as Exhibit A accompanying this Request for Judicial Notice. 

[fisthardcheese]

@Brotherskeeper always going above and beyond.  ?

[WonderingInWI]

@Brotherskeeper

Wow, I can't begin to thank you for your input!  I am heading down to the courthouse today to pick up a copy of the signed MTC. The clerk I spoke with wasn't sure about how to "certify" the document but I will get that sorted when I get there.

 

I will keep you posted ☺️