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Trial following vacated judgement in VA


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On 5/18/2021 at 9:29 AM, Brotherskeeper said:

Fantastic news! Plaintiff claims here that this attached agreement is the applicable agreement that governs the account at issue. It contains an arbitration clause. Yes, you need to use this fact from Plaintiff's exhibit to support your affirmative defense of an existence of an agreement to arbitrate these disputes. Upon reading the materials Plaintiff just provided to you in the BOP, you discovered your contractual right to have the covered disputes decided by an arbitrator rather than the judge. Because this agreement is governed by the FAA, the judge's role will be to determine if there is a valid written agreement between the parties that includes a binding arbitration clause, and whether the disputes in question are covered by the scope of the arbitration clause. 

Here's an article written by lawyers for lawyers:

Compelling and Staying Arbitration in Virginia 

See page 2

INTERSECTION OF THE FAA AND VIRGINIA LAW
Although the FAA preempts state law to the extent that state law 
contradicts federal law, Virginia state courts apply state contract law
to determine whether the parties have entered into an arbitration
agreement (see Amchem Prods., 563 S.E.2d at 743 (in determining
whether a contractual dispute is arbitrable, court applies Virginia
substantive contract law); Mission Residential, LLC v. Triple Net Props.,
LLC
, 654 S.E.2d 888, 890 (Va. 2008)).
If an agreement falls under the FAA, the state court applies the
federal standard for arbitrability when determining whether to
compel or stay arbitration, rather than evaluating these threshold
questions under state law (see Southland v. Keating Corp., 465U.S. 1, 12-13 (1984);
see also Practice Note, Compelling and Enjoining
Arbitration in US Federal Courts: Arbitrability (6-574-8707)).
For a further discussion of various states’ procedural rules relating
to arbitration, see Practice Note, Choosing an Arbitral Seat in the US
(1-501-0913).


THRESHOLD ISSUES FOR THE COURT TO DECIDE
When deciding an application to stay or compel arbitration,
the Virginia state court may not rule on the merits of the claims
underlying the arbitration (Va. Code Ann. § 8.01-581.02(E)).
The
court instead plays a gatekeeping role that is limited to determining
whether:

A valid arbitration agreement exists (see Valid Arbitration
Agreement).

The arbitration agreement covers the parties’ dispute (see Scope
of Arbitration Agreement).

(See Waterfront Marine Constr. v. N. End 49ers Sandbridge Bulkhead
Groups A, B, and C
, 468 S.E.2d 894, 898 (Va. 1996); see also BG
Group PLC v. Argentina,
134 S. Ct. 1198, 1206-07 (2014).)
Courts decide the question of arbitrability unless the parties’
agreement expressly states that the arbitral tribunal has the power
to rule on its own jurisdiction
(see Waterfront Marine, 468 S.E.2d
at 898-899 (”when entering into an agreement to arbitrate, the
parties surrender the right to have a court determine the merits of

a controversy”) (quoting First Options of Chicago, Inc. v. Kaplan, 514
U.S. 938 (1995)); Kay Jennings Family Ltd. P’ship v. DAMN, LLC, 2006
WL 2578366, at *2-3 (Va. Cir. Ct. Aug. 9, 2006)). Parties may state
their intent for the arbitral panel to rule on its own jurisdiction by:
Expressly granting this power to the arbitrator in their agreement.
Incorporating by reference institutional arbitration rules that grant
this power to the arbitrator, such as the Commercial Arbitration
Rules of the American Arbitration Association (AAA)
(see Suntrust
Secs., Inc. v. Marable,
2004 WL 628213, at *2 (Va. Cir. Ct. Mar. 31,
2004)).
The arbitrator decides all other issues, such as issues of waiver,
timeliness, and the satisfaction of conditions precedent (see
Procedural Issues for the Arbitrator to Decide).

 

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26 minutes ago, FrankinVA said:

@Bulldoger So, if you decide to not accept settlement then you go for the motion to be heard again? Good luck with that. 

I countered with reasonable settlement the percentage I have paid on two other debts. As for the court case my MTC was tabled. Judge set it aside until next hearing. Judge gave us a month to try to arrive at a settlement. I got a verbal from Attorney that they will not contest the MTC and go to arbitration if I decide to do that.  I will see if they accept my settlement offer or go to arbitration.  

 

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Reading over the Arbitration clause, the is a section that I am not sure about. It says 

“AS AN EXCEPTION TO THIS ARBITRATION AGREEMENT, YOU RETAIN THE RIGHT TO PURSUE IN A SMALL CLAIMS COURT ANY CLAIM THAT IS WITHIN THE COURT’S JURISDICTION AND PROCEEDS ON AN INDIVIDUAL BASIS. IF A PARTY ELECTS TO ARBITRATE A CLAIM, THE ARBITRATION WILL BE CONDUCTED AS AN INDIVIDUAL ACTION...”

Will this be a problem in getting MTC granted? This case is in general district court now. Any interpretation would be appreciated. 
 

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Attorneys cannot bring cases to small claims court in VA. Albeit it's the same group of judges and courtrooms the procedures are different. You are right your, since your suit is in General District Court it does not apply. 

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Update - Friends, MTC was granted👍. Very simple! Wanted to thank everyone for the help, suggestions, & support. If I can be of any assistance to others, please don’t hesitate. 
 

 

 

 

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25 minutes ago, Bulldoger said:

My guess is they don't want to show up in arbriation either.  Did you try asking for dismisal with prejudice i would have given it a try. 😀

 I was surprised they didn’t even show up. I was so nervous, did not even think of trying anything new. In my head, I was ready to discuss Virginia cases and contents of the arbitration clause, thankfully none was necessary. 

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3 minutes ago, FrankinVA said:

 I was surprised they didn’t even show up. I was so nervous, did not even think of trying anything new. In my head, I was ready to discuss Virginia cases and contents of the arbitration clause, thankfully none was necessary. 

I'm  sure it went very quickly.  Judge ask for attorney when there wasn't one he/she flipped through your MTC skimmed through clause in agreement and signed order.   

The whole thing was over in minute. 

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@FrankinVADid your motion to compel include a stay of the case pending arbitration? If yes, you need to see what the actual order your judge signed states. If the case is stayed, it has not been dismissed.

I might suggest you reread fisthardcheese's thread on arbitration. Also read the terms of the Chase arb clause to see if Jormandy as assignee is required to pay your arb demand filing fee  if you ask them to. You should consider whether or not filing in arb gives you leverage to negotiate a mutual dismissal. You want this totally behind you with the statute of limitations reset off of its tolling. 

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1 hour ago, FrankinVA said:

Just saw this in the AAA site. Can someone dumb this down for me? Will this be a problem when trying to file after getting MTC granted by court? 
 

93A4DC32-621C-45FD-8234-38A895D05351.jpeg

The second paragraph states that a moratorium is placed on filings by businesses.

Third paragraph:

“The AAA will continue to administer all demands for arbitration filed by consumers against businesses as well as all other types of consumer arbitration’s.” 

There is no moratorium when the consumer is the filer.

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2 hours ago, Bulldoger said:

Not if you file JAMS is that possible in your case? 

IMO you should file JAMS not AAA. AAA has awarded JDBs filing fees to consumers. See @catlady22 case.  

 

Unfortunately JAMS is not an option in the arbitration clause. Thanks though. 

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54 minutes ago, FrankinVA said:

Unfortunately JAMS is not an option in the arbitration clause. Thanks though. 

They didn't show up for court. So after you file they may not respond. If that happens at your show cause court date you tell judge they didn't pay fees hand the judge your preprinted dismissal with prejudice order.  

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49 minutes ago, Bulldoger said:

They didn't show up for court. So after you file they may not respond. If that happens at your show cause court date you tell judge they didn't pay fees hand the judge your preprinted dismissal with prejudice order.  

Good idea, would never have thought of that. Thanks

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  • 1 month later...

 

Hi all! An update on my case, arbitration was filed with AAA and JDB has gone completely MIA. Initially, AAA considered the contract and decided that to initiate I should pay the $200 fee (entire amount for consumer) and be reimbursed by the company (JDB). I did and things began. Now the JDB is to pay their first portion of $3,300.00, but they have missed that deadline and still no communication from them. 
My question is, what happens to them if they just refuse to take any action? In a few months we are due back in court for a civil hearing. The MTC & arbitration were sent certified. Is there anything I should do and how do I request through court to get my money back? 

Thanks & Happy 4th of July💥

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On 5/30/2021 at 8:01 PM, Bulldoger said:

They didn't show up for court. So after you file they may not respond. If that happens at your show cause court date you tell judge they didn't pay fees hand the judge your preprinted dismissal with prejudice order.  

Ask the AAA case manager how much time they are going to give the JDB to pay fees.  If that date is before the court hearing date wait for it to pass then ask the AAA case manger for letter detailing the case is closes and why.  

As for the $200 dollars, You could just let that be the cost of getting the $3K debt resolved. 

I don't know how you would go about getting the $200 back.

 

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If they do not follow the court order to arbitrate, as part of your motion for sanctions, you could request a judgement against them for $200 based on the contract. That would be a kicker considering they started this with a garnishment and ended with a judgement against them.

Now, they might simply dismiss the case (with or without prejudice here is fine because then the statute of limitations has expired). At that point, you will have to decide how much it is worth to you to chase them for $200.

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14 minutes ago, Bulldoger said:

It be best to write your own order with prejudice.  If you can get that then you can mail copies to credit bureaus and have trade line for collection removed.  

A dismissal with or without prejudice will not get the trade line deleted.  Those are entered for administrative reasons.  The court has to rule on the merits that the defendant does not owe the money for the bureaus to delete the trade line.

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