Vaness@

Absolute Resolutions Investment Lawsuit filed against me

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Hi, 

I'm so glad I found this forum.  I have read over many of the posts and think I have learned something.  I have been sued by a credit card collector Absolute Resolutions Investments.  The debt is about $12k was initially with Avant Credit Services which was a credit card I applied for online thru Credit Karma (the irony isnt lost on me here)... fell on hard times and here we are, the loan was defaulted in 2018.  I was negotiating with the previous collector and was going to settle the debt for $3k but the debt was sold to these people in February of this year 2020 and they pretty much immediately moved to lawsuit.  I have never been in a situation like this, so I have no idea where to start.  I have NOT been served with papers yet, I got a letter by mail from an attorney with the first page of the filing (that's how I found out I was being sued.) 

I don't have any of the initial papers because everything was done online... Any information of where I can start would be helpful! Thank you!

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You have to be careful in Florida.  It is easy to accidentally waive arbitration.

There is an arbitration agreement.  Read it carefully.  

You need to file an MTC -- Motion to Compel arbitration.  If you send in an answer without the MTC, you lose your right to arbitrate.  

I think, but I am not completely sure, that you can send in an answer with an affirmative defense of improper venue due to the arbitration clause.

You must send in a copy of the agreement with your MTC.  Send copies of everything to the opposing attorney.

You should search for threads on this forum dealing with arbitration in Florida.  A lot of people have won with arbitration.  Arbitration puts a LOT of pressure on the other side to settle the case in terms very favorable to you.  

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43 minutes ago, BackFromTheDebt said:

You have to be careful in Florida.  It is easy to accidentally waive arbitration.

There is an arbitration agreement.  Read it carefully.  

You need to file an MTC -- Motion to Compel arbitration.  If you send in an answer without the MTC, you lose your right to arbitrate.  

I think, but I am not completely sure, that you can send in an answer with an affirmative defense of improper venue due to the arbitration clause.

You must send in a copy of the agreement with your MTC.  Send copies of everything to the opposing attorney.

You should search for threads on this forum dealing with arbitration in Florida.  A lot of people have won with arbitration.  Arbitration puts a LOT of pressure on the other side to settle the case in terms very favorable to you.  

Thank you so much! This is all so overwhelming but I am going to learn all I can; I'm so thankful for this incredible resource! 

I haven't received the official summons yet, should I wait to file an MTC before I get the summons? or do it ASAP? and what answers are you referring to? when you say "If you send in an answer without the MTC, you lose your right to arbitrate"?

I have no paperwork  because like I said all was done online... I will search all I can find.

 

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By answer I mean the answer to the summons. 
 

You need to search the arbitration threads.  Read them and learn from them.  You have a certain amount of time after you are served to answer the summons.  Use the time especially before you get the summons to learn as much as you can about arbitration 

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Don't do anything until you are served the summons.  Use this time you have prior to being served to learn how to respond to that summons and how to file the Motion To Compel Arbitration.

In Florida, we often advise to not file an ANSWER, but instead to file the MOTION TO COMPEL ARBITRATION IN LIEU OF AN ANSWER.  This is because FL law says if you don't mention arbitration right at the outset, you waive your right to it. Arbitration works because it removes the case from Court and puts it into a private arbitration firm, either JAMS or AAA depending on what your Card Agreement says.  These arbitration firms charge a lot of money which the collector HAS to pay to move forward with the case.  In almost all cases, this cost is way above what they are willing to pay to collect and instead agree to just drop the case completely.  The link in my signature below has lots of details on using this method to beat collectors like Absolute.

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I was finally served today... and I am completely overwhelmed and honest my brain has a block.  am I able to hire you for a consultation and file this motion?  You have given me such wealth of information... Please let me know! thank you!

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This is what the credit agreement says:  

Arbitrations are conducted under this Clause and the rules of the arbitration company in effect
at the time the arbitration is commenced. But, arbitration rules that conflict with this Clause do
not apply. The arbitration company will be either:
● The American Arbitration Association (“AAA”), 1633 Broadway, 10
th Floor, New

York, NY 10019, www.adr.org.
● JAMS, 620 Eighth Avenue, 34

th Floor, New York, NY 10018, www.jamsadr.org.

● Any other company picked by agreement of the parties.
If all the above options are unavailable, a court will pick the arbitration company. But, no
arbitration may be administered without our consent by any arbitration company that
would permit class arbitration under this Clause.
The Arbiter will be selected under the arbitration company’s rules. But, the Arbiter must be a
lawyer with at least ten years of experience or a retired judge unless you and we or the
Related Parties to the Dispute otherwise agree.

 

You are entitled to an arbitration award of at least $7,500 if: (1) you give us notice of a Dispute
on your own behalf (and not on behalf of any other party) and comply with all of the
requirements of this Clause (including the requirements described in response to the question
reading “What must a party do before starting a lawsuit or arbitration?”); (2) we refuse to
provide you with the relief you request before an Arbiter is appointed; and (3) the Arbiter
awards you money damages greater than the last amount you requested at least ten days
before the arbitration commenced. This is in addition to the attorneys’ fees and expenses
(including expert witness fees and costs) to which you are otherwise entitled. This $7,500
minimum award is a single award that applies to all Disputes you have raised or could have
raised in the arbitration. Multiple awards of $7,500 are not contemplated by this Clause.
Settlement demands and offers are strictly confidential. They may not be used in any
proceeding by either party except to justify a minimum recovery of $7,500.

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You can do this. Every single one of us here started exactly where you are.  We simply read and read and read these forums until we learned how to fight back.  You will too.  Just take things ONE step at a time.  If you try to think about everything right now you will easily be overwhelmed.  This is a process and the process takes time.  This means you have time to learn each step as you go.

Right now, step one:  Did you read the Arbitration post in my signature link below?  In that post there is a sample "Motion To Compel Arbitration" (MTC).  This MTC has the basic information you need.  You just have to put your own case information in the header and then we can try to find some Florida specific case law to cite and stick in there.  Once you have this Motion typed up, you can post a copy here with your name and case info blocked out and we can help you refine it if needed.  Then you simply take the motion to the court and file it in the Clerk's office.  That is step one.  Just work on step one.  You got this.

@Brotherskeeper Do you recall any recent FL cases with MTC case law to include?

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9 hours ago, fisthardcheese said:

You can do this. Every single one of us here started exactly where you are.  We simply read and read and read these forums until we learned how to fight back.  You will too.  Just take things ONE step at a time.  If you try to think about everything right now you will easily be overwhelmed.  This is a process and the process takes time.  This means you have time to learn each step as you go.

Right now, step one:  Did you read the Arbitration post in my signature link below?  In that post there is a sample "Motion To Compel Arbitration" (MTC).  This MTC has the basic information you need.  You just have to put your own case information in the header and then we can try to find some Florida specific case law to cite and stick in there.  Once you have this Motion typed up, you can post a copy here with your name and case info blocked out and we can help you refine it if needed.  Then you simply take the motion to the court and file it in the Clerk's office.  That is step one.  Just work on step one.  You got this.

@Brotherskeeper Do you recall any recent FL cases with MTC case law to include?

You are too kind! Thank you so much for the encouraging words thru this time... I am reading all about the arbitration overview and trying to find out the specific way to file under Osceola county.  I also do not have a signed contract as this was all done online - I have been listening to some attorneys on youtube on how to file and ways to answer your questions and file the MTC together.  Aaahh, its all so confusing, but I hope to get thru it.  Thanks again for all your help.  I will be attempting to do my first draft and will post for suggestions/feedback.  I have 20 days (well, 19 now...)... 

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This 2006 Florida Bar Review article uses many FL case citations to explain the intersection of the FAA and FL arbitration law. 

https://www.floridabar.org/the-florida-bar-journal/compelling-arbitration-of-disputes-the-florida-v-federal-law-quagmire/

(I am not an attorney) The waiver issue in FL court appears a bit complicated. It seems like the safest bet is to file the motion in lieu of an answer--unless there is another critical issue that would be waived if not addressed in a first responsive pleading.  This is relatively recent FL Appeals case:

Examples of active participation that is "inconsistent with the right to compel arbitration" includes "filing a lawsuit, filing an answer that does not assert the right to arbitrate, moving for summary judgment, or conducting discovery." Truly Nolen of Am., Inc. v. King Cole Condo. a$$'n, Inc., 143 So. 3d 1015, 1017 (Fla. Dist. Ct. App. 2014).

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Thank you, I am honestly so thankful for you all taking the time to help me thru this.  So I took your advice and started to write based on the template provided by the amazing @fisthardcheese so I'm still working on the MTC but I did do this one:  Also, I have no idea how to answer the summons!  Any thread I can read to answer it?... THANK YOU ALL AGAIN FOR YOUR INCREDIBLE INSIGHT!

ORDER TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY THE CASE PENDING ARBITRATION

 

Case No. 202---------------:  COURT OF OSCEOLA COUNTY


ABSOLUTE RESOLUTIONS INVESTMENTS, LLC
VS.                                                                                Case No. 20---------------
VANESSA SILVA

The foregoing Motion having come before the Court and having been duly considered, it is hereby ORDERED:


_______ GRANTED      /    _______ DENIED

Further, this case shall be stayed pending the outcome of private arbitration.


This _____ day of _________________, 2020


By: ________________________

       Judge of the ____________ Court

 

Then this one I am still working on - but I do not understand half of it!  

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY PROCEEDINGS PENDING ARBITRATION

NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about June 29, 2020, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2020, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

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

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.



5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime 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. 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 . . . "

7. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to stay proceedings pending contractual arbitration.



Respectfully submitted this day ________________, 2014


(Your name), Defendant, pro se

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Make sure the Proposed Order is on it's own seperate page and that it is the LAST page in stack when filing.  You will also need a Certificate of Service which goes AFTER the motion and BEFORE the Proposed order.

Since you are filing the motion in place of the answer, I would just make it a combined filing and state within it that you also deny all allegations in their complaint.  I made suggested changes below:

 

On 7/28/2020 at 1:31 PM, Vaness@ said:

DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT AND MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY PROCEEDINGS PENDING ARBITRATION

NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about June 29, 2020, Plaintiff filed its Complaint against Defendant.

2. Defendant denies all allegations as set forth in Plaintiff's complaint.

Did you send a letter to them asking for arbitration? 2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2020, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:
(Is the following a - e actual quotes from YOUR card agreement??)

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.



5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime 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. 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 . . . "

7. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to stay proceedings pending contractual arbitration.



Respectfully submitted this day ________________, 2014


(Your name), Defendant, pro se

@Brotherskeeper Do you have FL case law for an MTC on hand she can add?

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@fisthardcheese You are Heaven sent!  I have to admit I have been nauseous and overwhelmed and brain stumped but you guys have helped get me focused.  Here is the letter I will be sending to the attorney tomorrow: 

August 3, 2020

 

 

Ida Baena Paez, Esq.

Andrew, Palma, Lavin & Solis, PLLC

887 Donald Ross Road

Juno Beach, FL. 33408

(877) 229-5972

 

Re: CASE NO.: 2020--------- ABSOLUTE RESOLUTIONS INVESTMENTS, LLC vs. VANESSA SILVA

To Whom It May Concern:

This letter is to notify you I’d like to settle this matter through arbitration in order to reach a fair and final compromise.

According to clause 20. Arbitration Provision, I am hereby invoking my right to binding arbitration.  I am requesting the group to arbitrate will be JAMS http://www.jamsadr.com. 

Also, in accordance to Clause 20. Arbitration Provision, subsection Arbitration Fees and Awards, I am requesting any, and all arbitration fees associated be advanced and paid on my behalf.

With Respect,

anything else I am missing? I am workign on the answer/MTC next based on your suggestions.  

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I wouldn't bother with the letter myself.  It's just extra work for no reason in my opinion.  They will be notified of your intention to arbitrate when you send them a copy of the MTC.  I would just remove that line about sending a letter from the MTC.

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6 hours ago, fisthardcheese said:

I wouldn't bother with the letter myself.  It's just extra work for no reason in my opinion.  They will be notified of your intention to arbitrate when you send them a copy of the MTC.  I would just remove that line about sending a letter from the MTC.

Here is my Certificate of Service;  WHO IS THE PETITIONER ON THIS FORM? ME? thats the only part I couldn't figure out...

 

 

IN THE CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT, IN AND FOR OSCEOLA COUNTY, FLORIDA

 

                                                                      ,                               Case No.: 202__________       

Petitioner,

 and                                                                                                

                                                                       ,

Respondent.

 

 

CERTIFICATE OF SERVICE 

I, __________, certify that a copy of Defendant’s Answer To Plaintiff’s Complaint and Motion to Compel Private/Contractual Arbitration and To Stay Proceedings Pending Arbitration

was (x) mailed via certified mail to the person listed below on  August 6, 2020.

Other party or his/her attorney:

Name:       

Address:  

Phone Number: 

 

Signature of Party

 

Printed Name:                                                      

Address:                                                              

City, State, Zip:                                                      

Telephone Number:                                                      

 

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