Vaness@

Absolute Resolutions Investment Lawsuit filed against me

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14 minutes ago, Vaness@ said:

@fisthardcheese what are your thoughts?  do I NEED an attorney???

The vast majority of successful defendants on this site did not employ attorneys.  Most of those who come to this site cannot afford an attorney.  

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Ok this is what I have for the answer/MTC - @fisthardcheese #5 - 5 (e) those are the actual quotes from the credit agreement.  # 6 and 7 I got from another MTC I have read.  I still dont have a MTC case in Fl. to cite, if I do find one that is relevant, I can add it.    So I will print this, along with the Exhibit A, the certificate of service, and proposed order.  Anything else?

Thank you ALL for VALUABLE and PRICELESS help!

COUNTY COURT IN AND FOR OSCEOLA COUNTY, FLORIDA

CASE NO. 20________________

 ABSOLUTE RESOLUTIONS INVESTMENTS, LLC

Plaintiff,

vs.

Defendant.

VANESSA SILVA

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.

3. Defendant sent a letter via certified mail to Plaintiff's attorney on August 5, 2020, electing arbitration with JAMS (see Exhibit A, attached).

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

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

(a you and we agree that any party covered by this Clause may elect to arbitrate or require arbitration of any “Dispute”


(b) you or we may elect arbitration with respect to any Dispute brought by a new party or any Dispute later asserted by a party in that or any related or unrelated lawsuit. For example, if we file a lawsuit against you in court to recover amounts due under this Agreement, you have the right to request arbitration.

(d) If one party begins or threatens a lawsuit, or files a counterclaim in an existing lawsuit, the other party can demand arbitration. This demand can be made in court papers such as a motion to compel arbitration.  Once an arbitration demand is made, no lawsuit can be brought and any existing lawsuit must stop.

(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.


6. 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”.

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.

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 Cardmember Agreement and to stay proceedings pending contractual arbitration.

Respectfully submitted this day August ___, 2020


__________ Defendant, pro se

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@Vaness@

The Supreme Court case law should be sufficient, but here’s some FL case law.

In Florida as well as under federal law, the use of arbitration agreements is generally favored by the courts. See Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). 

As a threshold procedural matter, the Federal Arbitration Act (FAA)[5] applies to agreements evidencing a transaction involving interstate commerce. See Acton CATV, Inc. v. Wildwood Partners, Ltd., 508 So. 2d 1274 (Fla. 5th DCA 1987)Williams v. Hardy, 468 So. 2d 429 (Fla. 5th DCA 1985)Donmoor, Inc. v. Sturtevant, 449 So. 2d 869, 870 (Fla. 5th DCA 1984). A contract between a Florida resident and a foreign corporation is an agreement evidencing a transaction involving interstate commerce. See Gilman & Ciocig, Inc. v. Wetherald, 855 So. 2d 900,904-905, (Fla. 4th DCA 2004).

"Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration." Shotts v. OP Winter Haven, Inc., 86 So. 3d 456, 462 (Fla. 2011) (quoting Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984)).

 

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20 hours ago, Vaness@ said:

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:                                                      

 

Use the same case header that you see on their complaint.  It should state their name first with PLAINTIFF under and then your name with DEFENDANT under it and then the case number.  That is what should be on EVERYTHING you file.  The exact same way.  Put it on your motion, your certificate of service and your Proposed Order.

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18 hours ago, Anthony Russo said:
 
 

yes, it is standard....you can not do this by your self... 

Ignore this person who doesn't seem to know what they are talking about.

15 hours ago, Vaness@ said:

COUNTY COURT IN AND FOR OSCEOLA COUNTY, FLORIDA

CASE NO. 20________________

 ABSOLUTE RESOLUTIONS INVESTMENTS, LLC

Plaintiff,

vs.

Defendant.

VANESSA SILVA

Defendant

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.

3. Defendant sent a letter via certified mail to Plaintiff's attorney on August 5, 2020, electing arbitration with JAMS (see Exhibit A, attached).  You are not sending a letter prior to filing this. Leave it off

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

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

(a) you and we agree that any party covered by this Clause may elect to arbitrate or require arbitration of any “Dispute”


(b) you or we may elect arbitration with respect to any Dispute brought by a new party or any Dispute later asserted by a party in that or any related or unrelated lawsuit. For example, if we file a lawsuit against you in court to recover amounts due under this Agreement, you have the right to request arbitration.

(d) If one party begins or threatens a lawsuit, or files a counterclaim in an existing lawsuit, the other party can demand arbitration. This demand can be made in court papers such as a motion to compel arbitration.  Once an arbitration demand is made, no lawsuit can be brought and any existing lawsuit must stop.

(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. In Florida as well as under federal law, the use of arbitration agreements is generally favored by the courts. See Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). 

As a threshold procedural matter, the Federal Arbitration Act (FAA)[5] applies to agreements evidencing a transaction involving interstate commerce. See Acton CATV, Inc. v. Wildwood Partners, Ltd., 508 So. 2d 1274 (Fla. 5th DCA 1987)Williams v. Hardy, 468 So. 2d 429 (Fla. 5th DCA 1985)Donmoor, Inc. v. Sturtevant, 449 So. 2d 869, 870 (Fla. 5th DCA 1984). A contract between a Florida resident and a foreign corporation is an agreement evidencing a transaction involving interstate commerce. See Gilman & Ciocig, Inc. v. Wetherald, 855 So. 2d 900,904-905, (Fla. 4th DCA 2004).

"Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration." Shotts v. OP Winter Haven, Inc., 86 So. 3d 456, 462 (Fla. 2011) (quoting Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984)).

6. 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”.

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.

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 Cardmember Agreement and to stay proceedings pending contractual arbitration.

Respectfully submitted this day August ___, 2020

 

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2 minutes ago, Vaness@ said:

@fisthardcheese THANK YOU! I have made all the changes and will print and take it to the court tomorrow.  Keep me in prayers!  thank you ALL sooo much! I would be so lost without your guidance!  I'll report back :)

Print 3 copes of everything.  Ask the clerk to stamp all 3 motions.  One set is for the clerk to keep and file, one set is to mail to the attorney and one set is for you to keep as a record of what and when you filed.

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20 hours ago, Vaness@ said:

Do any of these documents need to be notarized?

I didn't see you mention that you were filing an affidavit testifying to the true and correct copy of the card agreement that you are filing.  This would be the only document that would need to be notarized.  It is important to get the answer filed on time, so if there is no time to type up your affidavit and notarize it, then just skip it for now.  It is just an aide to help head off an argument the other side could make later saying that your Exhibit isn't the "correct" card agreement.  It can be dealt with at that time if you can't file the affidavit now.

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7 hours ago, Vaness@ said:

Hi All, just an update!  I submitted MTC w answer paperwork Monday... and today I get an email from the collections office with the following:  (I think the settlement they offered was still a lot...) what should I do?...

image.png.4721bf974442aec7c3afc67df078fcd8.png

The answer to this question will guide your next steps:

 

Is this a settlement you are content with?

Only you can answer.  
 

If the answer is yes, take the offer. 
 

If the answer is no, send a counter offer that does make you happy.  Put a deadline on the counter offer.  If they don’t take the offer by the deadline, have your arbitration forms ready.  Then file.  
 

My favorite tactic was to file in arbitration and THEN make the offer.   Once you have filed, that puts a lot of pressure on them.  The offer I usually made was a mutual dismissal of all claims.  Once I got that right away.  Another time the creditor simply ignored the case in arbitration, so they got nothing.  In some cases I had very stubborn OCs who went deep into arbitration before settling. 
 

 

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7 minutes ago, Vaness@ said:

Thank you for your response :) I filed the MTC friday, they received notice of MTC filed Monday and I got the offer email 2 days later.  How can I file in arbitration? I'd like to do that and then make the offer... 

In the following article, you’ll see “Filing the Arbitration Case”.

https://www.creditinfocenter.com/community/topic/329436-arbitration-overview-and-strategy-2018-most-up-to-date-info/

However, let’s what @fisthardcheesehas to say.  I don’t know that you wouldn’t have received that offer even if you had not filed a MTC.  They would rather settle than do any extra work of any kind whether it’s to oppose a MTC or file a motion for summary judgment.  

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I don't believe this is a true settlement offer regarding the court case, in my opinion.  This looks just like a regular collection letter.  In fact, it looks to me like a potential FDCPA violation.  If it were me (and I do things more aggressively), I would reply to this email and ask simply "how would this affect the court case, because you make no mention of that resolution in this offer".  I am sure they will have no idea what you are talking about and perhaps could say something to further a potential FDCPA violation.

 

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❤️ I will absolutely respond how you suggested. (I too, like to go about things more aggressively) especially since they were the 3rd collection company that bought the debt in March and in June they sued me... What would you say to alert them this is a potential violation of the FDCPA?

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14 minutes ago, Vaness@ said:

What would you say to alert them this is a potential violation of the FDCPA?

Absolutely nothing.  That goes very quietly into my back pocket.  All I do right now is VERY CAREFULLY set enough sticks out and see if they trip over them.  Just dont over talk. You don't want to end up tripping yourself over your own sticks.

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48 minutes ago, Vaness@ said:

How can I file in arbitration? I'd like to do that and then make the offer... 

Please read my entire Arbitration thread again.  You do NOT want to file in arbitration right now.  You are in court right now.  You must only focus on that.  Rushing things is bad.  Be patient. Deal with the court case.  Until the judge orders your case to arbitration, then you are NOT in arbitration.

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7 minutes ago, fisthardcheese said:

Absolutely nothing.  That goes very quietly into my back pocket.  All I do right now is VERY CAREFULLY set enough sticks out and see if they trip over them.  Just dont over talk. You don't want to end up tripping yourself over your own sticks.

Ok, I am going to email them your first suggestion and see what they say... 

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There is something to be said about what @fisthardcheese  is saying about FDCPA violations.  

There were some times I had a lot of violations by the time I went into arbitration.  In fact, EVERY time I went into arbitration, I had some violations.

In some cases, a complete mutual walkaway was arranged. They drop their case against me, I drop all my cases against them.  Those were often situations in which the arbitration agreement applied to the collection agencies and the law firms as well.  So I would file against EVERYONE, and see what sticks.  That never went badly for me.  

In one arbitration case, I had a lot of violations, and the OC simply walked away from arbitration.  I was able to get some $$$$ from one of the collection agencies along the way as well.  In that situation, the CA was NOT subject to the arb agreement, so that was handled in a separate case.  

In one arbitration case, there was some real legitimate wrongdoing by the OC, as well as by the law firm.  In that case, the OC cut the law firm loose, but the arbitration agreement said it applied to the collection agencies and law firms as well.  I got some $$$$ from the original law firm, and a mutual walkaway from the OC.  

So check your arbitration agreement carefully.  To whom does it apply?  Does it apply to the CAs and the law firm as well?  If that is the case, file against everyone.  As I said, that has never gone badly for me.

What about if the agreement ONLY applies to the owner of the debt?  

Since the JDB is NOT the OC, then the FDCPA applies.  In some states, state violations may apply as well.  So if you have any possible FDCPA violations against the JDB, that gives you a lot of leverage to arrange for a mutual walkaway.  

 

Get the MTC first.  And set some traps for FDCPA violations along the way.  

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14 minutes ago, BackFromTheDebt said:

There is something to be said about what @fisthardcheese  is saying about FDCPA violations.  

There were some times I had a lot of violations by the time I went into arbitration.  In fact, EVERY time I went into arbitration, I had some violations.

In some cases, a complete mutual walkaway was arranged. They drop their case against me, I drop all my cases against them.  Those were often situations in which the arbitration agreement applied to the collection agencies and the law firms as well.  So I would file against EVERYONE, and see what sticks.  That never went badly for me.  

In one arbitration case, I had a lot of violations, and the OC simply walked away from arbitration.  I was able to get some $$$$ from one of the collection agencies along the way as well.  In that situation, the CA was NOT subject to the arb agreement, so that was handled in a separate case.  

In one arbitration case, there was some real legitimate wrongdoing by the OC, as well as by the law firm.  In that case, the OC cut the law firm loose, but the arbitration agreement said it applied to the collection agencies and law firms as well.  I got some $$$$ from the original law firm, and a mutual walkaway from the OC.  

So check your arbitration agreement carefully.  To whom does it apply?  Does it apply to the CAs and the law firm as well?  If that is the case, file against everyone.  As I said, that has never gone badly for me.

What about if the agreement ONLY applies to the owner of the debt?  

Since the JDB is NOT the OC, then the FDCPA applies.  In some states, state violations may apply as well.  So if you have any possible FDCPA violations against the JDB, that gives you a lot of leverage to arrange for a mutual walkaway.  

 

Get the MTC first.  And set some traps for FDCPA violations along the way.  

Currently I am waiting on judge to approve arbitration.  I filed MTC last friday, I sent the attorneys a certified copy of the MTC which they received Monday and Wednesday I received that email from the attorney... They had never sent me an email or any notification at all prior so... I did email them back asking them how their email  affect the case, so I am awaiting to see their response, if any.  

The arbitration clause extends to OC or their attorneys.  I will review it, read it carefully and give feedback.... 

I can't help but to be so thankful each and everytime for this forum!!! You guys are just incredible!!!!!!! 

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