MaeghanF

PRA/Synchrony- Motion to complete arbitration denied

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Hi all,

 

This is my second round with PRA (first case with the same judge was successfully moved to arbitration and dismissed with prejudice in 4/2020). This second case, the judge has denied arbitration. Has anyone successfully fought the denial of an MTC? 

 

Thanks in advance!

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3 hours ago, WhoCares1000 said:

What were the circumstances in which the judge denied arbitration?

The PRA attorney stated it should not be applicable to small claims court. When I pointed out to the judge that he had agreed to arbitration in a smiliar case six months ago, he stated that the court does not go by past records.

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I had my motion granted but I know from reading over this forum people have successfully appealed such rulings. Look up the appeals process for your particular court and appeal immediately if you're still within the window, state your case law and comb back over the arbitration agreement. Can you post a copy of your specific agreement?

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@MaeghanF 

Does the account agreement you submitted with your motion to compel state that the arbitration provision is governed by the FAA?  The Federal Arbitration Act (FAA) on appeals:

9 U.S.C. § 16.

§16. Appeals
(a) An appeal may be taken from—

(1) an order—

(A) refusing a stay of any action under section 3 of this title,

(B) denying a petition under section 4 of this title to order arbitration to proceed,

(C) denying an application under section 206 of this title to compel arbitration,

(D) confirming or denying confirmation of an award or partial award, or

(E) modifying, correcting, or vacating an award;


(2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is subject to this title; or

(3) a final decision with respect to an arbitration that is subject to this title.


(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order—

(1) granting a stay of any action under section 3 of this title;

(2) directing arbitration to proceed under section 4 of this title;

(3) compelling arbitration under section 206 of this title; or

(4) refusing to enjoin an arbitration that is subject to this title.

(Added Pub. L. 100–702, title X, §1019(a), Nov. 19, 1988, 102 Stat. 4670, §15; renumbered §16, Pub. L. 101–650, title III, §325(a)(1), Dec. 1, 1990, 104 Stat. 5120.)

 

From a very recent 2020 Texas Supreme Court decision:

Bonsmara Natural Beef Co. v. Hart of Texas Cattle Feeders, LLC, No. 19-0263 (Tex. June 26, 2020). at 8:

"Interlocutory appeal statutes give parties another option for challenging particular kinds of orders. Each of these statutes provides—in more or less the same words—that a person “may appeal from” the specified order.3  The statute relevant here provides that “[i]n a matter subject to the Federal Arbitration Act . . . , a person may take an appeal . . . to the court of appeals from the [trial court’s] . . . interlocutory order . . . under the same circumstances that an appeal . . . would be permitted” in federal court. TEX. CIV. PRAC. & REM. CODE § 51.016; see 9 U.S.C. § 16 (listing appealable and non-appealable orders regarding arbitration and permitting interlocutory appeal of an order denying application to compel arbitration).4"

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6 hours ago, Brotherskeeper said:

@MaeghanF 

Does the account agreement you submitted with your motion to compel state that the arbitration provision is governed by the FAA?  The Federal Arbitration Act (FAA) on appeals:

9 U.S.C. § 16.

§16. Appeals
(a) An appeal may be taken from—

(1) an order—

(A) refusing a stay of any action under section 3 of this title,

(B) denying a petition under section 4 of this title to order arbitration to proceed,

(C) denying an application under section 206 of this title to compel arbitration,

(D) confirming or denying confirmation of an award or partial award, or

(E) modifying, correcting, or vacating an award;


(2) an interlocutory order granting, continuing, or modifying an injunction against an arbitration that is subject to this title; or

(3) a final decision with respect to an arbitration that is subject to this title.


(b) Except as otherwise provided in section 1292(b) of title 28, an appeal may not be taken from an interlocutory order—

(1) granting a stay of any action under section 3 of this title;

(2) directing arbitration to proceed under section 4 of this title;

(3) compelling arbitration under section 206 of this title; or

(4) refusing to enjoin an arbitration that is subject to this title.

(Added Pub. L. 100–702, title X, §1019(a), Nov. 19, 1988, 102 Stat. 4670, §15; renumbered §16, Pub. L. 101–650, title III, §325(a)(1), Dec. 1, 1990, 104 Stat. 5120.)

 

From a very recent 2020 Texas Supreme Court decision:

Bonsmara Natural Beef Co. v. Hart of Texas Cattle Feeders, LLC, No. 19-0263 (Tex. June 26, 2020). at 8:

"Interlocutory appeal statutes give parties another option for challenging particular kinds of orders. Each of these statutes provides—in more or less the

same words—that a person “may appeal from” the specified order.3  The statute relevant here provides that “[i]n a matter subject to the Federal Arbitration

Act . . . , a person may take an appeal . . . to the court of appeals from the [trial court’s] . . . interlocutory order . . . under the same circumstances that an

appeal . . . would be permitted” in federal court. TEX. CIV. PRAC. & REM. CODE § 51.016; see 9 U.S.C. § 16 (listing appealable and non-appealable orders

regarding arbitration and permitting interlocutory appeal of an order denying application to compel arbitration).4"

It did. I've attached the case law i used in my MTC:

 

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

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

1. That on or about September 28, 2020, Plaintiff filed its Complaint against Defendant.

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

3. 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.


4. 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”.

5. Texas General Arbitration Act

    (a) A written agreement to arbitrate is valid and enforceable if the agreement is to arbitrate a controversy that:

(1) exists at the time of the agreement; or
(2) arises between the parties after the date of the agreement.
    Tex. Civ. Prac. & Rem. Code § 171.021(a).
1.     When arbitration is ordered, the court must stay the litigation. Tex. Civ. Prac. & Rem. Code § 171.025


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 November 19, 2020


MaeghanF, Defendant, pro se

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@texasrocker may be able to advise.  

http://www.txcourts.gov/programs-services/self-help/self-represented-litigants/self-help-resources/

"NOTICE: This Pro Se Appellant Guide was published in 2014; therefore, it does not reference the most current rules and procedures promulgated by the Supreme Court of Texas, including the rules for proceeding in this court without prepayment of fees and costs. This court utilizes the current version of those rules and procedures, which can be accessed at General Rules & Standards located under the Practice Before the Court menu."

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