SkyStillSunny Posted October 9, 2019 Report Share Posted October 9, 2019 Hello, it's me again. I was just served by Stenger and Stenger (representing Cach LLC) on an account that was dismissed without prejudice last year. The last time they sued me I appeared in court and during mediation I told the attorney that I planned on filing a MTC arbitration. She was confused, and when we went to trial she asked for a continuance. The judge granted it, and we were to appear back in court 30 days later. Well when I came back, no attorney was present so the judge signed a dismissal without prejudice. I did ask him to make it with prejudice, and he denied the request. Here we are again, and the same law firm representing the same JDB is suing me again. I haven't sent in my answer yet. I was planning on using the same arbitration defense, but after further review of the credit card agreement there is a note about "ordinary claims," and I just went through another case with that clause and was denied my MTC arbitration from the judge! Btw, this is in GA. The amount is around $1300. It's for First National Bank in Omaha that was defaulted around Feb 2016, maybe earlier. I'm really afraid that my MTC arbitration will get denied again because the judge is a JDB friendly judge. Do I have any other options to file my answer? I mean I am going to try to proceed as usual w/ my answer and then present my MTC at court, but because this has no mention of small claims court, even if I was denied, and appealed to a higher court it seems like that verbiage would still stand. Thoughts? Help? Below is the verbiage from a Q1 2016 agreement. And the bold is what I'm concerned about. So many of you have helped me dismiss so many cases over the past few years... I need some advice on this particular circumstance to see if anyone has any success with arguing this. THANK YOU! Quote ARBITRATION: THIS CONTRACT CONTAINS AN ARBITRATION PROVISION WHICH MAY BE ENFORCED BY THE PARTIES. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY: WITH LIMITED EXCEPTIONS, THIS ARBITRATION PROVISION ALLOWS EITHER PARTY TO REQUIRE THAT ANY “CLAIM” (AS DEFINED ABOVE) BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT AND TO HAVE A CLAIM DETERMINED BY A JURY. OTHER RIGHTS YOU MAY HAVE IN COURT, SUCH AS DISCOVERY OR APPEAL RIGHTS, MAY NOT BE AVAILABLE OR MAY BE MORE LIMITED IN ARBITRATION. EXCEPT AS PROVIDED BELOW, THOSE OTHER RIGHTS ARE WAIVED. YOU WILL NOT BE ABLE TO DO THESE TWO THINGS (IN COURT OR IN ARBITRATION): (1) BRING A CLAIM AS A CLASS ACTION OR IN A REPRESENTATIVE CAPACITY; OR (2) PARTICIPATE IN A CLAIM AS A CLASS MEMBER. Except as provided below: (1) you may unilaterally choose to have any Claim that we bring against you resolved through binding arbitration; and (2) we may unilaterally choose to have any Claim that you bring against us (or us and any of Our Related Parties) resolved through binding arbitration. If you assert a Claim against any of Our Related Parties, but you do not also assert that Claim against us, the Related Party (or whoever will be defending the Related Party) may unilaterally choose to have that Claim resolved through binding arbitration. If a court proceeding is commenced, the party that commenced that court proceeding may unilaterally choose to have any counterclaim, cross-claim, or third party claim brought in that proceeding resolved through binding arbitration. If a party chooses to have a Claim resolved by arbitration pursuant to this arbitration provision, neither you nor we will have the right to litigate that Claim in court, have a jury trial on that Claim, or engage in pre-arbitration discovery, except as provided for in the applicable Arbitration Rules of the selected Arbitrator(s) and as otherwise set forth in this arbitration provision. “Ordinary Claims” are not subject to this arbitration provision and may be resolved through litigation. A Claim will be considered an “Ordinary Claim” if all three of the following are true: (1) the only remedy being sought for the Claim is monetary damages; (2) the recovery being sought for the Claim is less than $25,000, excluding interest and costs; and (3) the only parties to litigation to resolve the Claim will be you, us and/or Related Parties. Quote Link to comment Share on other sites More sharing options...
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