PFri88

Help sued by Velocity investments assignee of Lending Club Corp assignee of web bank

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I was served with law suit by a process server. I am being sued for defaulting on a Loan with Lending Club for $18,455.98. There was no evince submitted along with the summons. However I was able to log onto my old lending club account. 

I looked through original Borrower agreement documents and found the Arbitration Clause below. Is filing an MTC my best bet? I only have a  couple of days before I have to submit and answer. 
 

Help! I am located in Texas. Any templates of MTC for Texas? Any help would be extremely appreciated. 

 

21. Arbitration. RESOLUTION OF DISPUTES: I HAVE READ THIS PROVISION CAREFULLY AND UNDERSTAND THAT IT LIMITS MY Copy of
RIGHTS IN THE EVENT OF A DISPUTE BETWEEN YOU AND ME. I UNDERSTAND THAT I HAVE THE RIGHT TO REJECT THIS PROVISION AS PROVIDED IN PARAGRAPH (b) BELOW. If you are a "Covered Borrower" as defined by the Military Lending Act (32 CFR §232, as amended from time to time) at the time of entering into this Agreement, this section 21 Arbitration is not applicable, you do not need to opt out of or take any action to ensure inapplicability.
a. Either party to this Agreement, or any subsequent holder, may, at its sole election, require that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this section 21 (the "Arbitration Provision"), unless you opt out as provided in section 21(b) below. As used in this Arbitration Provision, "Claim" shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us and/or any subsequent holder (or persons claiming through or connected with us and/or the subsequent holders), on the other hand, relating to or arising out of this Agreement, any Loan Agreement and Promissory Note(s), the Site, and/or the activities or relationships that involve, lead to, or result from any of the foregoing, including (except to the extent provided otherwise in the last sentence of section 21(f) below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counterclaims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible interpretation that is enforceable.
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b. You may opt out of this Arbitration Provision for all purposes by sending an arbitration opt out notice to WebBank, c/o LendingClub Corporation, 71 Stevenson St., Suite 300, San Francisco CA, 94105, Attention: Legal Department, which is received at the specified address within 30 days of the date of your electronic acceptance of the terms of this Agreement. The opt out notice must clearly state that you are rejecting arbitration; identify the Agreement to which it applies by date; provide your name, address, and social security number; and be signed by you. You may send an opt out notice in any manner you see fit as long as it is received at the specified address within the specified time. No other methods can be used to opt out of this Arbitration Provision. If the opt out notice is sent on your behalf by a third party, such third party must include evidence of his or her authority to submit the opt out notice on your behalf.
c. If a Claim arises, our goal is to learn about and address your concerns and, if we are unable to do so to your satisfaction, to provide you with a neutral and cost effective means of resolving the dispute quickly. You agree that before filing any claim in arbitration, you may submit Claims by sending an email to customeradvocacy@lendingclub.com at any time, or by calling (888) 596-3157 from Mon-Fri 6:00 AM to 5:00 PM PT and Sat 8:00 AM to 5:00 PM PT.
The party initiating arbitration shall do so with the American Arbitration Association (the "AAA") or Judicial Alternatives and Mediation Services ("JAMS"). The arbitration shall be conducted according to, and the location of the arbitration shall be determined in accordance with, the rules and policies of the administrator selected, except to the extent the rules conflict with this Arbitration Provision or any countervailing law. If you have any questions concerning the AAA or would like to obtain a copy of the AAA arbitration rules, you may call 1(800) 778-7879 or visit the AAA’s web site at: www.adr.org. If you have any questions concerning JAMS or would like to obtain a copy of the JAMS arbitration rules, you may call 1(800) 352-5267 or visit their web site at: www.jamsadr.com. In the case of a conflict between the rules and policies of the administrator and this Arbitration Provision, this Arbitration Provision shall control, subject to countervailing law, unless all parties to the arbitration consent to have the rules and policies of the administrator apply.
 d. If we (or the subsequent holder) elect arbitration, we (or the subsequent holder, as the case may be) shall pay all the administrator’s
The original document is owned by LendingClub Corporation and this copy was created on Feb 21, 2018 06:09:26 PM.

Copy of the Electronic Original® document managed by the eCore® On Demand (EODTM) Service.
 filing costs and administrative fees (other than hearing fees). If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator’s rules. We (or the subsequent holder, as the case may be) shall pay the administrator’s hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator’s rules or applicable law require otherwise, or you request that we (or the subsequent holder) pay them and we agree (or the subsequent holder agrees) to do so. Each party shall bear the expense of its own attorneys’ fees, except as otherwise provided by law. If a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein.
e. Within 30 days of a final award by the arbitrator, any party may appeal the award for reconsideration by a three-arbitrator panel selected according to the rules of the arbitrator administrator. In the event of such an appeal, any opposing party may cross-appeal within 30 days after notice of the appeal. The panel will reconsider de novo all aspects of the initial award that are appealed. Costs and conduct of any appeal shall be governed by this Arbitration Provision and the administrator’s rules, in the same way as the initial arbitration proceeding. Any award by the individual arbitrator that is not subject to appeal, and any panel award on appeal, shall be final and binding, except for any appeal right under the Federal Arbitration Act ("FAA"), and may be entered as a judgment in any court of competent jurisdiction.
f. We agree not to invoke our right to arbitrate an individual Claim you may bring in Small Claims Court or an equivalent court, if any, so long
as the Claim is pending only in that court. NO ARBIT RAT ION SHALL PROCEED ON A CLASS, REPRESENTAT IVE, OR COLLECT IVE BASIS
(INCLUDING AS PRIVAT E AT T ORNEY GENERAL ON BEHALF OF OT HERS), EVEN IF T HE CLAIM OR CLAIMS T HAT ARE T HE SUBJECT
OF T HE ARBIT RAT ION HAD PREVIOUSLY BEEN ASSERT ED (OR COULD HAVE BEEN ASSERT ED) IN A COURT AS CLASS
Copy of
and shall not (a) determine the rights, obligations, or interests of anyone other than a named party, or resolve any Claim of anyone other than a named party; nor (b) make an award for the benefit of, or against, anyone other than a named party. No administrator or arbitrator shall have the power or authority to waive, modify, or fail to enforce this section 21(f), and any attempt to do so, whether by rule, policy, arbitration decision or otherwise, shall be invalid and unenforceable. Any challenge to the validity of this section 21(f) shall be determined exclusively by a court and not by the administrator or any arbitrator.
g. This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information.
h. This Arbitration Provision shall survive (i) suspension, termination, revocation, closure, or amendments to this Agreement and the
REPRESENTATIVE, OR COLLECTIVE ACTIONS IN A COURT. Unless consented to in writing by all parties to the arbitration, no party to the
arbitration may join, consolidate, or otherwise bring claims for or on behalf of two or more individuals or unrelated corporate entities in the
same arbitration unless those persons are parties to a single transaction. Unless consented to in writing by all parties to the arbitration, an
award in arbitration shall determine the rights and obligations of the named parties only, and only with respect to the claims in arbitration,
Original
relationship of the parties and/or LendingClub; (ii) the bankruptcy or insolvency of any party or other person; and (iii) any transfer of any loan
or Loan Agreement or Promissory Note(s) or any other promissory note(s) which you owe, or any amounts owed on such loans or notes, to
any other person or entity. If any portion of this Arbitration Provision other than section 21(f) is deemed invalid or unenforceable, the
remaining portions of this Arbitration Provision shall nevertheless remain valid and in force. If an arbitration is brought on a class,
representative, or collective basis, and the limitations on such proceedings in section 21(f) are finally adjudicated pursuant to the last sentence of section 21(f) to be unenforceable, then no arbitration shall be had. In no event shall any invalidation be deemed to authorize an arbitrator to determine Claims or make awards beyond those authorized in this Arbitration Provision.
T HE PART IES ACKNOWLEDGE T HAT T HEY HAVE A RIGHT T O LIT IGAT E CLAIMS T HROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILLNOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE
PART IES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE T HEIR RIGHT S T O LIT IGAT E SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY.

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5 hours ago, PFri88 said:

Because there wasn’t any evidence submitted and no account information given in the summons, do I still file MTC along with answer? 

Yes. Be prepared to challenge their standing (ownership of the debt) in the event your MTC is denied. 

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Kyla Nicole Baxter 

275 W Campbell 

Suite 312 

Richardson, Tx 75080 

Phone: 214-383-9088 

Bar No. 24090609                           

 

 

                                         } 

VELOCITY INVESTMENTS LLC.                                  } 

PLANTIFF                                                      }              ANSWER TO COMPLAINT/MOTION TO COMPEL 

                                                                       }              PRIVATE/CONTRACTUAL ARBITRATION 

       Vs.                                                           }             AND TO STAY PROCEEDINGS       

           }             PENDING ARBITRATION 

                                                 } 

                                                                        } 

             DEFENDANTS                                                  } 

                           } 

 

 

 
 
NOW COMES Defendants, appearing Pro Se for its Answer to Original Complaint/Motion to Compel Private Contractual Arbitration and as grounds thereto states the following: 
 
1. That on or about July 21, 2020 , Plaintiff filed its Complaint against Defendants. 

2. Defendants deny all allegations stated in initial complaint 

 

 
 
3. Defendants move this court to compel binding Private Arbitration based on the terms and conditions of the Borrower Agreement (see Exhibit A, attached)  
 
4. The parties are bound by the Borrower Agreement. The Arbitration provision states among other things: 
 

{a.} Either party to this Agreement, or any subsequent holder, may, at its sole election, require that the sole and exclusive forum and remedy for resolution of a Claim be final and binding arbitration pursuant to this section 21 (the "Arbitration Provision"), unless you opt out as provided in section 21(b) below. As used in this Arbitration Provision, "Claim" shall include any past, present, or future claim, dispute, or controversy involving you (or persons claiming through or connected with you), on the one hand, and us and/or any subsequent holder (or persons claiming through or connected with us and/or the subsequent holders), on the other hand, relating to or arising out of this Agreement, any Loan Agreement and Promissory Note(s), the Site, and/or the activities or relationships that involve, lead to, or result from any of the foregoing, including (except to the extent provided otherwise in the last sentence of section 21(f) below) the validity or enforceability of this Arbitration Provision, any part thereof, or the entire Agreement. Claims are subject to arbitration regardless of whether they arise from contract; tort (intentional or otherwise); a constitution, statute, common law, or principles of equity; or otherwise. Claims include matters arising as initial claims, counterclaims, cross-claims, third-party claims, or otherwise. The scope of this Arbitration Provision is to be given the broadest possible  interpretation that is enforceable. 

{g.} This Arbitration Provision is made pursuant to a transaction involving interstate commerce and shall be governed by and enforceable under the FAA. The arbitrator will apply substantive law consistent with the FAA and applicable statutes of limitations. The arbitrator may award damages or other types of relief permitted by applicable substantive law, subject to the limitations set forth in this Arbitration Provision. The arbitrator will not be bound by judicial rules of procedure and evidence that would apply in a court. The arbitrator shall take steps to reasonably protect confidential information. 

THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY, BUT WILL NOT HAVE THAT RIGHT IF ANY PARTY ELECTS ARBITRATION PURSUANT TO THIS ARBITRATION PROVISION. THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY ANY PARTY. 
 
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 ________________, 2020 
 
 
, Defendants, pro se 

 

 

 

 

 

 

 

 

 
 
Proposed Order 

  

ORDER TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY THE CASE PENDING ARBITRATION 
 
Case No.  :  COURT OF TARRANT COUNTY 

 

VELOCITY INVESTMENTS              
           VS.                                                                                Case No.  

 
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 TARRANT COUNTY Court # _________ 

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2 hours ago, PFri88 said:

My confusion lies within the fact that I'm denying all allegations but motioning court to compel arbitration because of borrower agreement i have with original lender. 

The plaintiff claims it that owns the account in question, you opened that account, and owe the balance.  You are merely exercising the right allowed in the cardmember agreement related to the account the plaintiff claims you opened.  

Notice I wrote “plaintiff claims”.  That does not mean you admit to the plaintiff’s claims.  

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On 8/27/2020 at 10:55 AM, PFri88 said:

I just filed my answer and MTC. I’m mailing a copy to velocity’s attorney. 

You and me both. I apologize for not getting back to you sooner. This site isn't working well on Chrome, at least not for me, so I'm using the site on Safari. It looks like we'll be dealing with Velocity simultaneously. 

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On 8/26/2020 at 9:19 PM, PFri88 said:

My confusion lies within the fact that I'm denying all allegations but motioning court to compel arbitration because of borrower agreement i have with original lender. 

If it ever comes up in court, I would admit to the fact that at one time in the past, I opened an account with Lending Club backed by Webbank. But I deny that Velocity is the proper party in interest on that account (they don't own the rights), and I deny that I owe any balance at all on the loan.  Therefore, I ONLY admit, if I HAVE to, that I once held an account backed by Webbank that is subjected to an arbitration clause.  ALSO, you deny that the court has any jurisdiction over the subject account due to the arbitration clause, so the court has no ability or right to even question whether Velocity is the proper party in interest, whether any balance is owed or ANY other information regarding the account.  Invoking the arbitration clause means that the court is now limited ONLY to the question of whether a valid arbitration clause exists and if so, the case must be ordered to arbitration.

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I am  in the same situation as you. I sent a petition to compel arbitration today and I am waiting for when the court will respond. Pls keep us posted and I will update here if I hear anything from them. I am in Dallas

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