StartingOver123

Being sued by JDB Absolute Resolutions and wish to use arbitration

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1. Who is the named plaintiff in the suit?     Absolute Resolutions Investments, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) 

3. How much are you being sued for?     Less than $3K

4. Who is the original creditor? (if not the Plaintiff)   U.S. Bank National Association

5. How do you know you are being sued? (You were served, right?)  Served

6. How were you served? (Mail, In person, Notice on door)     In Person

7. Was the service legal as required by your state?     Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  Collection Letters never responded to

9. What state and county do you live in?     Washington State

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  Not past SOL

11. When did you open the account (looking to establish what card agreement may be applicable)?     I have the original agreement from the time card was issued

 

I have read the thread,  Arbitration Overview and Strategy, a few times now and wish to use arbitration in my case but I have a question.

The agreement says that, "This does not apply to any claim in which the relief sought is within the jurisdictional limits of, and is filed in, a small claims court."

My case is filed in District Court and I plan to elect arbitration in my affirmative defenses.  However, due to the low amount I'm being sued for, less than $3k, what is to stop the law firm from dismissing the case in District Court and refiling in Small Claims Court?

 

 

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As @nobk4mestated, in some states they can’t file in small claims. If that is the case, they won’t file in small claims.  
 

Check your state laws and RCP to make sure.  
 

Your strategy if this remains in District Court is simple.  File an MTC.  It is very rare for a JDB to follow a case this small into arbitration. 
 

If you research the state laws and they could go into small claims, file the MTC anyway.  It is doubtful they would drop the case in one court and file in another; but be prepared.  For example, in my state they could unilaterally drop the case before an answer is sent, but to have the case dismissed without prejudice after an answer is sent requires a motion before the judge.  Which is why you need to know the Rules of Civil Procedure.  
 

Suppose they need a motion before the judge to dismiss without prejudice, after you filed the MTC.  You usually have at least a few days to object or not.  If they can’t bring the case into small claims, agree to the dismissal.  Or at least don’t object. 
 

OTOH, if they could bring it into small claims, then use a different strategy.  Don’t object to the dismissal.  A day or two before the deadline for objections, file a claim in JAMS.  As soon as you do that, the case can’t be re-filed.  
 

I once won a case with a small claims exemption by filing in JAMS a few days before they filed in small claims court.  That was a clear violation, so we agreed to a dismissal with prejudice before I had to pay any JAMS fees.  

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On 3/24/2021 at 12:22 PM, nobk4me said:

Check your state's laws.  In some states JDBs (assignees) can't use small claims court.  @fisthardcheese, any advice here?  Maybe filing an arb case now?

I can't find anything that prohibits them from using small claims court.  It does say that attorneys aren't allowed for either side unless the judge gives permission.

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On 3/24/2021 at 12:59 PM, BackFromTheDebt said:

Your strategy if this remains in District Court is simple.  File an MTC.  It is very rare for a JDB to follow a case this small into arbitration. 

I'm going to file my answer with the court on Tuesday as well as mail a copy to the lawyer.  Do I file my MTC at the same time as my answer?  Or, do I wait until the lawyers take the next step which I'm assuming is discovery.

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2 hours ago, StartingOver123 said:

I'm going to file my answer with the court on Tuesday as well as mail a copy to the lawyer.  Do I file my MTC at the same time as my answer?  Or, do I wait until the lawyers take the next step which I'm assuming is discovery.

In states other than Florida you would file your answer with an affirmative defense of improper venue due to the arbitration clause.  It wouldn’t hurt to file the MTC at the same time.  
 

Include a copy of the original credit card agreement with a notarized statement that it is the true and correct agreement.  

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18 hours ago, StartingOver123 said:

I can't find anything that prohibits them from using small claims court.  It does say that attorneys aren't allowed for either side unless the judge gives permission.

That means, unless the judge allows it,  corporations can't use small claims court.  JDBs are corporate entities, not a real, natural person. A human being can represent him or herself.  A corporation has to have an attorney.  If they try to use small claims with an attorney,  object strenuously.  If they have an attorney and you don't, that puts you at a disadvantage.   And you can't afford to hire a lawyer.

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On 3/26/2021 at 7:47 PM, BackFromTheDebt said:

In states other than Florida you would file your answer with an affirmative defense of improper venue due to the arbitration clause. 

I found an example on here with the following affirmative defense:

  • Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, this Court does not have jurisdiction to hear this matter. 

Will that work instead of Improper Venue or should I use Improper Venue instead or use both?

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1 hour ago, StartingOver123 said:

I found an example on here with the following affirmative defense:

  • Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, this Court does not have jurisdiction to hear this matter. 

Will that work instead of Improper Venue or should I use Improper Venue instead or use both?

Use Lack of Subject Matter Jurisdiction 

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On 3/30/2021 at 1:19 PM, BackFromTheDebt said:

Use Lack of Subject Matter Jurisdiction 

Thanks so much for all the help.  I filed my Answer with the court today and mailed a copy to the attorney.

I need to work on my MTC now and file it next week.  I'm using the example in the "Arbitration Overview and Strategy" thread and want to add something from WA.  I found this and need to know if I should include it.

RCW 7.04A.070

Motion to compel or stay arbitration.

(1) On motion of a person showing an agreement to arbitrate and alleging another person's refusal to arbitrate pursuant to the agreement, the court shall order the parties to arbitrate if the refusing party does not appear or does not oppose the motion. If the refusing party opposes the motion, the court shall proceed summarily to decide the issue. Unless the court finds that there is no enforceable agreement to arbitrate, it shall order the parties to arbitrate. If the court finds that there is no enforceable agreement, it may not order the parties to arbitrate.
(2) On motion of a person alleging that an arbitration proceeding has been initiated or threatened but that there is no agreement to arbitrate, the court shall proceed summarily to decide the issue. If the court finds that there is an enforceable agreement to arbitrate, it shall order the parties to arbitrate. If the court finds that there is no enforceable agreement, it may not order the parties to arbitrate.
(3) The court may not refuse to order arbitration because the claim subject to arbitration lacks merit or grounds for the claim have not been established.
(4) If a proceeding involving a claim referable to arbitration under an alleged agreement to arbitrate is pending in court, a motion under this section must be filed in that court. Otherwise a motion under this section may be filed in any court as required by RCW 7.04A.270.
(5) If a party files a motion with the court to order arbitration under this section, the court shall on just terms stay any judicial proceeding that involves a claim alleged to be subject to the arbitration until the court renders a final decision under this section.
(6) If the court orders arbitration, the court shall on just terms stay any judicial proceeding that involves a claim subject to the arbitration. If a claim subject to the arbitration is severable, the court may sever it and limit the stay to that claim.
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@StartingOver123 Here is a legal white paper on arb in your state that may be helpful:

"A Practice Note explaining how to request judicial assistance in Washington state court to compel or stay arbitration. This Note describes the issues counsel should consider before seeking judicial assistance, and explains the steps counsel must take to obtain a court order compelling or staying arbitration in Washington state court."

Compelling and Staying Arbitration in Washington

 

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12 hours ago, StartingOver123 said:

@BrotherskeeperWhen I send a copy of the MTC to the attorney do I need to include all the exhibits such as the CC agreement and my affidavit?

@BackFromTheDebt is correct that anything you attach to your motion and submit to the court must also be timely sent to the opposing side. In fact, many courts require you to also submit a "proof of service" or "certificate of service" attesting that you did so, when you sent it and by what manner it was sent. Please check your court rules of civil procedure and your local court or judge's rules to make certain you are following them. As a pro se, you are expected to know them. 

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2 hours ago, Brotherskeeper said:

@BackFromTheDebt is correct that anything you attach to your motion and submit to the court must also be timely sent to the opposing side. In fact, many courts require you to also submit a "proof of service" or "certificate of service" attesting that you did so, when you sent it and by what manner it was sent. Please check your court rules of civil procedure and your local court or judge's rules to make certain you are following them. As a pro se, you are expected to know them. 

Yeah, I remember back in the old days when I had active cases, I often  had those certificates notarized.  In some other cases I had a notary from my work sign a statement that she mailed the stuff for me.   The mail drop box was at her desk so I handed the stuff to her, and she dropped it in the box.  
 

Most banks have notaries, and they are often free. There were some cases in which I used a notary from a branch of the same bank that was suing me.  I somehow found that amusing.  

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@StartingOver123 

https://www.courts.wa.gov/court_rules/?fa=court_rules.list&group=sup&set=CR

CR 5 SERVICE AND FILING OF PLEADINGS AND OTHER PAPERS 

     (2) Service by Mail.
     (A) How made. If service is made by mail, the papers shall be deposited in the post office
addressed to the person on whom they are being served, with the postage prepaid. The service
shall be deemed complete upon the third day following the day upon which they are placed in the
mail, unless the third day falls on a Saturday, Sunday or legal holiday, in which event service
shall be deemed complete on the first day other than a Saturday, Sunday or legal holiday,
following the third day.
     (B) Proof of service by mail. Proof of service of all papers permitted to be mailed may be
by written acknowledgment of service, by affidavit of the person who mailed the papers, or by
certificate of an attorney. The certificate of an attorney may be in form substantially as follows:


CERTIFICATE

     I certify that I mailed a copy of the foregoing _______________ to (here name the person, first name then last name), (plaintiff's) attorney, at (office address or residence), and to (here name the person, first name then last name), an additional (defendant's) attorney (or attorneys) at (office address or residence), postage prepaid, on (date).
___________________________________
(here name the person, first name then last name)
Attorney for (Defendant) here name the person, first name then last name


   

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