Luvmybabas

Help with appeal MTC arb. DENIED!

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 @Brotherskeeper has been helping me tremendously with everything! So today was my trial and I asked for MTC arbittation. They sued me in Dec. 2019. But I didnt know anything about arb. until a few weeks ago. The judge basically sided with Midland. He said denied. The midland atty. tried to say there was no arb. in the agreement. And said  i jus pulled out that agreement from the internet. I told the judge the website and its governed by the FAA. The judge didnt give me a chance to show him the arb. part. He said if you are not satisfied with my decision you can appeal but you only have 10 days.

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It is unfortunately very common in small claims courts to get judges or magistrates who really don’t know or care about the law and just do what they feel like doing.  Yours is not the first or even the tenth time we have seen this happen. 
 

Appeal.  
 

I don’t know the proper appeal process in your court.  Some jurisdictions have an automatic appeal. Others require a cause. 
 

In either case, you have a cause.  The judge violated a US Supreme Court ruling.  You need to look up the Concepcion v. ATT case where the Supreme Court ruled that arbitration clauses must be followed. 
 

1. Find out the appeals process 

2. Appeal.  
 

Many of the people who post here have had exactly the same situation, and have gotten the MTC upon appeal. 
 

You also have a cause of action against Midland and the attorney for lying about the contract in court.  Clear violation of the FDCPA. 

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To be clear, @Luvmybabas filed a motion to compel arbitration using the basic template modified to include Virginia law. She downloaded a 2017 (year of default) version of the Comenity Victoria's Secret agreement from the CFPB archives. Here's the body of the motion:

1.   That on or about Dec. 20 2019, Plaintiff filed its Complaint.

2.  Plaintiff did not attach to the Complaint a copy of the applicable agreement its claim is based upon and did not provide a copy to Defendant in its Bill of Particulars response. Defendant obtained a copy of the applicable 2017 Comenity Bank Victoria's Secret Credit Card Agreement from the Consumer Financial Protection Bureau (CFPB) database archive at https:// www.consumerfinance.gov/credit-cards/agreements/. (Accessed on May 31, 2020.) Under the Credit CARD Act of 2009, Comenity Bank is required to provide copies of its written agreements to the CFPB so as to be easily accessible and retrievable by the public. A true and correct copy of the applicable Agreement is attached as Exhibit A.

3.  Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Comenity Bank Victoria's Secret Credt Card Agreement. (see a true and correct copy of the Agreement attached as Exhibit A.

4.    The parties are bound by the Credit Card Agreement. The Agreement's Arbitration Provision states among other things:

          a.) "Starting an Arbitration: Arbitration may be elected by any party with respect to any Claim, even if that party has already initiated a lawsuit with respect to a different Claim. Arbitration is started by giving a written demand for arbitration to the other party."

          b.) "Covered Claims: "Claim" means any claim, dispute or controversy between you and us that in any way arises from or relates to this Agreement, the Account, the issuance of any Card, any rewards program, any prior agreement or account. "Claim" includes disputes arising from actions or omissions prior to the date any Card was issued to you, including the advertising related to, application for or approval of the Account. "Claim" has the broadest possible meaning, and includes initial claims, counterclaims, cross-claims and third-party claims. It includes disputes based upon contract, tort, consumer rights, fraud and other intentional torts, constitution, statute, regulation, ordinance, common law and equity (including any claim for injunctive or declaratory relief)."

          c.) "Court and Jury Trials Prohibited; Other Limitations on Legal Rights: IF YOU OR WE ELECT TO ARBITRATE A CLAIM, YOU WILL NOT HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR HAVE A JURY DECIDE THE CLAIM."

         d.) "Governing Law: This Arbitration Provision involves interstate commerce and is governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16 ("FAA"), and not by any state arbitration law."

5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides "A written provision in any matitime transaction or a contract evidencing a transaction involving commerce  to  settle  by arbitration a  controversy  thereafter  arising  out  of such  contract  or transaction or the  refusal  to  perform  the  whole  or any part  thereof  or an agreement  in  writing  to  submit  to arbitration an existing controversy arising out  of such  contract,  transaction,  or  refusal,  shall  be  valid, irrevocable  and  enforceable  save  upon   such grounds  as  exist  at  law  or in equity for   the  revocation  of any  contract."

6. Code of Virginia, § 8.01-581.02. Proceedings to compel or stay arbitration, Section A provides“A written provision in any maritime transaction or a contract evidencing a transaction involving "A. On application of a party showing an agreement described in § 8.01-581.01, and the opposing party's refusal to arbitrate, the court shall order the parties to proceed with arbitration. However, if the opposing party denies the existence of the agreement to arbitrate, the court shall proceed summarily to the determination of the issue of the existence of an agreement and shall order arbitration only if found for the moving party."

7. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

8. The  Defendant  elects  arbitration  to  settle  this  dispute.

WHEREFORE,  Defendant  moves  this  Honorable  Court  to  compel  private  contractual  arbitration pursuant  to  the  Comenity Bank Victoria's Secret Credit Card Agreement and  to  stay  proceedings  pending  contractual  arbitration. 

I certify under penalty of perjury that the foregoing statements are true and correct. 

Respectfully  submitted  this  day  June 2,  2020, XXXXX, Defendant, pro se.

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37 minutes ago, Luvmybabas said:

Yes thats the one I found too. Should I go there tomorrow or today?

It's up to you. The sooner you get the answer, the sooner you can get started. If it's the wrong form, you need to find the right one. And you need to find out whether you have to post bond or not. 

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10 hours ago, BackFromTheDebt said:

It is unfortunately very common in small claims courts to get judges or magistrates who really don’t know or care about the law and just do what they feel like doing.  Yours is not the first or even the tenth time we have seen this happen. 
 

Appeal.  
 

I don’t know the proper appeal process in your court.  Some jurisdictions have an automatic appeal. Others require a cause. 
 

In either case, you have a cause.  The judge violated a US Supreme Court ruling.  You need to look up the Concepcion v. ATT case where the Supreme Court ruled that arbitration clauses must be followed. 
 

1. Find out the appeals process 

2. Appeal.  
 

Many of the people who post here have had exactly the same situation, and have gotten the MTC upon appeal. 
 

You also have a cause of action against Midland and the attorney for lying about the contract in court.  Clear violation of the FDCPA. 

Yes I did find out I can get an automatic appeal. It said I have to go to clerk and ask for some forms. But my question is , do you know anything about appeal bond? It said I would have to pay how ever much the judgment was just incase I lose the appeal. 

I dont know if I read it wrong but I still have my last trial this August. 

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OK, quick question, did the judge simply deny a motion to compel arbitration or did the judge find for the plaintiff on the debt and issue a judgement? If the later, you probably have to post a bond. If the former, you might not have to post a bond because no monetary judgement has been issued yet.

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13 hours ago, Luvmybabas said:

Yes I did find out I can get an automatic appeal. It said I have to go to clerk and ask for some forms. But my question is , do you know anything about appeal bond? It said I would have to pay how ever much the judgment was just incase I lose the appeal. 

I dont know if I read it wrong but I still have my last trial this August. 

Where does it say this? Did you get something written from the court? Can you please post a picture of it with your personal information masked? 

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20 minutes ago, Brotherskeeper said:

Where does it say this? Did you get something written from the court? Can you please post a picture of it with your personal information masked? 

https://law.lis.virginia.gov/vacode/title16.1/chapter6/section16.1-107/

§ 16.1-107. Requirements for appeal.

A. No appeal shall be allowed unless and until the party applying for the same or someone for him shall give bond, in an amount and with sufficient surety approved by the judge or by his clerk if there is one, or in an amount sufficient to satisfy the judgment of the court in which it was rendered. Either such amount shall include the award of attorney fees, if any. Such bond shall be posted within 30 days from the date of judgment, except for an appeal from the judgment of a general district court on an unlawful detainer pursuant to § 8.01-129. However, no appeal bond shall be required of a plaintiff in a civil case where the defendant has not asserted a counterclaim, the Commonwealth or when an appeal is proper to protect the estate of a decedent, an infant, a convict, or an insane person, or the interest of a county, city, town or transportation district created pursuant to the Transportation District Act of 1964 (§ 33.2-1900 et seq.) of Title 33.2. No appeal bond shall be required of a defendant with indemnity coverage through a policy of liability insurance sufficient to satisfy the judgment if the defendant's insurer provides a written irrevocable confirmation of coverage in the amount of the judgment. If defendant's insurer does not provide a written irrevocable confirmation of coverage in the amount of the judgment then an appeal bond will be required.

 

IM NOT SURE IF I UNDERSTOOD IT OR IF ITS RIGHT. WHAT DO YOU THINK?

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23 hours ago, Brotherskeeper said:
 

@Luvmybabas I found this form. You would need to ask the clerk if  "FORM DC-475 REVISED 10/08" is the correct form to use to appeal the denial of your motion.

https://www.vbgov.com/government/departments/courts/juvenile-domestic-relations-court/Documents/court-forms-old/dc475.pdf

The list of court case forms (http://www.courts.state.va.us/forms/district/dc_forms_list.pdf ) says DC-475 was last updated 7/19.  I'm trying to see if I can find this version.

 

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Here's a page from Fairfax County that may be extremely helpful.  It appears to outline the process, including the bond:

https://www.fairfaxcounty.gov/generaldistrict/civil/appeals

 

For Non-Residential Unlawful Detainer cases: A judge will determine the amount of bond, if any, needed to file an appeal.

It also says the DC-475, Notice of Appeal form, is available at the Clerk’s Office for noting an appeal.  I'm still trying to find the updated version online.

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@LaneBlane thank you very much for helping me out! The judge didnt read my motion at all. I felt embarassed in there. Thats why I still wanna fight but from what I dealt with in there. Im losing hope i feel like the judge will never side with me. I have my last trial this Aug. if I dont appeal.

But have you filed for an appeal before? Do you know if its a long process?

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1 minute ago, Luvmybabas said:

@LaneBlane thank you very much for helping me out! The judge didnt read my motion at all. I felt embarassed in there. Thats why I still wanna fight but from what I dealt with in there. Im losing hope i feel like the judge will never side with me. I have my last trial this Aug. if I dont appeal.

But have you filed for an appeal before? Do you know if its a long process?

I've never had to file an appeal.  My Motion to Compel Arbitration was granted when I filed it years ago.  I'm in a different state, though.

I wasn't able to find a DC-475 form from July 2019.  You can pick up a copy at the clerk's office.

How much is the alleged debt for?

 

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@LaneBlane wow good for you! My judge didnt wanna hear me at all! But my debt is for 1100$. They sued me for this account while I made a settlement with them for the other account.

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This page may be helpful with your appeal:  https://law.lis.virginia.gov/vacode/8.01-581.01/

 

http://www.courts.state.va.us/courts/gd/resources/manuals/gdman/chapter06.pdf

An appeal granting or denying a motion to compel arbitration must be noted in writing within ten days using district court form DC-475, NOTICE OF APPEAL –CIVIL.

Writ tax and costs are collected based on “General District Appeal – No Monetary Damages”. The writ tax and costs shall be posted within 30 days from the date of judgment. § 8.01-581.016. Appeals.

 

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Here's my other post from that abandoned thread: 

 

@Luvmybabas This has a lot of information about your court. 

DISTRICT COURT JUDGES’ BENCHBOOK

DISTRICT COURT JUDGES’ BENCHBOOK SECTION II(B) – CIVIL PROCEDURE
ASSOCIATION OF DISTRICT COURT JUDGES OF VIRGINIA 2019 EDITION
BENCHBOOK COMMITTEE

Chapter 6. Appeals
Virginia Code §§ 8.01-129, 16.1-106, -107.
A. Appealable Orders
Virginia Code § 16.1-106 speaks of any order being appealable, not just final judgments. However, the Supreme Court has held that only “final orders or judgments” may be appealed from a district court to circuit court under § 16.1-106. Ragan v. Woodcroft Village Apts., 255 Va. 322, 497 S.E.2d 740 (1998) (holding that the denial of a motion for a new trial is not appealable to circuit court), Architectural Stone, LLC v. Wolcott Ctr., LLC, 274 Va. 519, 649 S.E.2d 670 (2007) (a final order constitutes one that disposes of the whole subject of the case and gives all relief contemplated).


B. Time Periods
1. The appeal must be noted in writing within ten days of entry of the order or judgment being appealed. Va. Code §§ 8.01-129; 16.1-106; Supreme Court Rule 7A:13.
2. Note: See Va. Code § 16.1-106.1 in regards to requirements for withdrawing appeals.

D. Appeal Bond and Fees
Va. Code § 16.1-107 and § 16.1-112
1. The amount of the appeal bond shall be set by the judge or clerk or be in an amount sufficient to satisfy the judgment and must be posted within thirty days of the date of the order or judgment being appealed to the circuit court.

     a. No appeal bond is required of a plaintiff unless the defendant has asserted a counterclaim.

     d. No indigent person shall be required to post an appeal bond in a civil case except trespass, ejectment, unlawful detainer against a former owner based upon a foreclosure against that owner and actions involving the recovery of rent.


2. The appealing party shall pay the writ tax, costs and fees for service of process of the notice of appeal in circuit court within thirty days of the date of the order or judgment being appealed to circuit court.


3. Payment of the writ tax is jurisdictional. Hurst v. Ballard, 230 Va. 365, 337 S.E.2d 284 (1985).

Edited 19 hours ago by Brotherskeeper

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Im just scared because even the judge denied my MTC arbitration. I really thought I was gonna get it! NOw if I do the appeal, Im scared judges might not agree with me also,😢

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1 minute ago, Brotherskeeper said:

Here's my other post from that abandoned thread: 

 

@Luvmybabas This has a lot of information about your court. 

DISTRICT COURT JUDGES’ BENCHBOOK

DISTRICT COURT JUDGES’ BENCHBOOK SECTION II(B) – CIVIL PROCEDURE
ASSOCIATION OF DISTRICT COURT JUDGES OF VIRGINIA 2019 EDITION
BENCHBOOK COMMITTEE

Chapter 6. Appeals
Virginia Code §§ 8.01-129, 16.1-106, -107.
A. Appealable Orders
Virginia Code § 16.1-106 speaks of any order being appealable, not just final judgments. However, the Supreme Court has held that only “final orders or judgments” may be appealed from a district court to circuit court under § 16.1-106. Ragan v. Woodcroft Village Apts., 255 Va. 322, 497 S.E.2d 740 (1998) (holding that the denial of a motion for a new trial is not appealable to circuit court), Architectural Stone, LLC v. Wolcott Ctr., LLC, 274 Va. 519, 649 S.E.2d 670 (2007) (a final order constitutes one that disposes of the whole subject of the case and gives all relief contemplated).


B. Time Periods
1. The appeal must be noted in writing within ten days of entry of the order or judgment being appealed. Va. Code §§ 8.01-129; 16.1-106; Supreme Court Rule 7A:13.
2. Note: See Va. Code § 16.1-106.1 in regards to requirements for withdrawing appeals.

D. Appeal Bond and Fees
Va. Code § 16.1-107 and § 16.1-112
1. The amount of the appeal bond shall be set by the judge or clerk or be in an amount sufficient to satisfy the judgment and must be posted within thirty days of the date of the order or judgment being appealed to the circuit court.

     a. No appeal bond is required of a plaintiff unless the defendant has asserted a counterclaim.

     d. No indigent person shall be required to post an appeal bond in a civil case except trespass, ejectment, unlawful detainer against a former owner based upon a foreclosure against that owner and actions involving the recovery of rent.


2. The appealing party shall pay the writ tax, costs and fees for service of process of the notice of appeal in circuit court within thirty days of the date of the order or judgment being appealed to circuit court.


3. Payment of the writ tax is jurisdictional. Hurst v. Ballard, 230 Va. 365, 337 S.E.2d 284 (1985).

Edited 19 hours ago by Brotherskeeper

Thank you! yes I looked at this yesterday. But I am a little confuse it says 1.D no appeal bond but #2 says I do have to pay fees? I guess I'm gonna have to go to clerk to make sure but remember the last time I went there she didn't even know what I was talking about and gave me wrong form. Hopefully she knows this time.

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16 minutes ago, Luvmybabas said:

Thank you! yes I looked at this yesterday. But I am a little confuse it says 1.D no appeal bond but #2 says I do have to pay fees? I guess I'm gonna have to go to clerk to make sure but remember the last time I went there she didn't even know what I was talking about and gave me wrong form. Hopefully she knows this time.

I moved this into this thread to have it in one place. I believe the court clerk at circuit court where you would file your appeal form would be the person to ask about fees and for a form to fill out to see if you could qualify as indigent so those fees would be waived. 

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There might not be a bond on this appeal since no judgement has been made yet on the debt but there will be court fees (that is true in any state where you appeal a decision).

Why you are appealing is the decision to deny the Motion to Compel. You are appealing that because:
 

  1. The CFPB has made a rule requiring all credit card companies to submit to them all credit card contracts which they put on the their website for consumers to use. That is where you got this contract with the arbitration clause and is a valid copy of the contract,
  2. The plaintiff simply said that the contract did not have an arbitration clause but did not provide a copy of the contract.
  3. Under the US Supreme Court ruling, when a contract contains an arbitration clause, the state courts do not have jurisdiction over the case and the parties must arbitrate.

You will then have to prove the above facts. If the appeals court does not side with you, you go to trial. If they do side with you, they will probably remand to the lower court requesting that the judge reconsider the motion in light of the arguments made at the appeals level. The plaintiff still can get a copy of the contract without the arbitration clause in the meantime.

Looks like the filing fee is $50 in Virginia so that is not too bad. If you have a some money (say about $500), I would offer to settle the debt and see if they bite.

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20 minutes ago, Luvmybabas said:

Im just scared because even the judge denied my MTC arbitration. I really thought I was gonna get it! NOw if I do the appeal, Im scared judges might not agree with me also,😢

The judge you appeared before didn't even allow you to present your agreement to the court.  Don't allow the act of an A-hole judge to discourage you from moving forward on this.

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