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MTC with JAMS was Granted by the Court, Plaintiff sent MTC Abritration with AAA


Sgrady
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Hello and thank you for any help!!!

I received the complaint in February, I filed my answers and MTC within the 14 day time limit. A hearing was set to hear the MTC, however the plaintiff responded by not objecting only stating I had to file the arbitration request. The court granted my MTC and I submitted the required information to JAMS. We had another court date where I had to prove I open the JAMS case. The card was Discover, at this healing the judge gives the parties time to talk, while talking, the plaintiff said they were going to object and I asked if he was aware of the court order. He said the the agreement I file was wrong and the 2020 agreement is the correct one. I asked when was the last activity on the account he shows he in his paperwork from Discover that is was Dec 2019.  We go before the judge and the plaintiff tries to objected saying that the AAA is the only association authorized under the card agreement. The judge asked he he was aware of the response that was submitted and the court order on March granting my motion. The judge then says we are not going to go back and was will proceed with JAMS, that was in May.

 

The plaintiff has not responded to any of the email from JAMS or myself requesting they pay the fee. Finally last week the JAMS case manger sends a email saying if the fee is not paid by the 14 the case would be closed. The plaintiff response to the JAMS case manger saying the this is not the correct association. I request an extension with JAMS until the end of the July. the next day in the mail I receive a MTC arbitration with AAA. looking at the paper work they have removed the information showing the last activity on the account because the 2020 card agreement started February 14, 2020. This agreement is after the default, which would be January 2020

 

Please help me respond to their motion, I don't know if I should file a Motion to Dismiss With Prejudice and Sanction plaintiff or respond to their motion.

 

Thank you again     

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I assume your MTC made the case that the other agreement was governing when you defaulted. Also the judge said 

"we are not going to go back and proceed with JAMS, "  Their time to object to the contract was when you filed the MTC that bridge has passed.  So yes I think a motion to dismiss with prejudice based on not complying with MTC is in order. 

 

 

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7 minutes ago, Bulldoger said:

I assume your MTC made the case that the other agreement was governing when you defaulted. Also the judge said 

"we are not going to go back and proceed with JAMS, "  Their time to object to the contract was when you filed the MTC that bridge has passed.  So yes I think a motion to dismiss with prejudice based on not complying with MTC is in order. 

 

 

Yes, my MTC included the other agreement and Jams was stated within my MTC, which they received reviewed and responded with no objections

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I think you need to submit a short objection to their motion.  The judge already ruled in your favor twice.  A quick reply stating they are wasting the court’s and your time is appropriate. 
 

In your objection, point out that you were governed by the agreement in effect at the time of default, and by their timeline in #11 they are trying to use an agreement by which you were never governed.  You never accepted the agreement either by using the card or written agreement, so not only were theY untimely but incorrect. 
 

As for the MTC, I would normally wait until the case had actually been closed in JAMS.  However, in this case you have an email from their attorney, after being warned the case was about to be closed, stating that they refused to participate in JAMS.  This is a direct and willful violation of the court order.  Since a motion will be in front of the judge anyway, why not have your motion in as well?

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26 minutes ago, BackFromTheDebt said:

I think you need to submit a short objection to their motion.  The judge already ruled in your favor twice.  A quick reply stating they are wasting the court’s and your time is appropriate. 
 

In your objection, point out that you were governed by the agreement in effect at the time of default, and by their timeline in #11 they are trying to use an agreement by which you were never governed.  You never accepted the agreement either by using the card or written agreement, so not only were theY untimely but incorrect. 
 

As for the MTC, I would normally wait until the case had actually been closed in JAMS.  However, in this case you have an email from their attorney, after being warned the case was about to be closed, stating that they refused to participate in JAMS.  This is a direct and willful violation of the court order.  Since a motion will be in front of the judge anyway, why not have your motion in as well?

thank you, I will be submitting to the court today, do you have or know where I can find an example of objection 

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They have filed a motion to compel arbitration. In you don't agree, a response in opposition to the motion to compel is in order.

Quote

6. Both parties appeared in court on May 24, 2021 wherein Plaintiff's counsel maintained its willingness to arbitrate, but notified the court that JAMS was not the proper entity for the arbitration.

7. At said appearance, the court deemed the objection moot, as untimely, and ordered arbitration to proceed.

One argument might be that the court has already decided the issue, as they concede in their newest motion.  They are making the same argument that the court found to be untimely in the past, so now it is even more untimely.

Quote

10. Defendant appeared in court with a copy of an old cardmember for which allows arbitration with AAA or JAMS.

11. On or around February 14, 2020, the Defendant was sent written notice by the Plaintiff (attached hereto as "Exhibit B"), advising her of the change in the cardmember agreement and included ...

They also concede in their newest motion that the agreement provided for arbitration with JAMS, at least prior to February 14, 2020.

Usually a change in terms, or a new agreement, contains language something like;

Acceptance of Agreement: You accept this Agreement if you or an Authorized User use the Account.

An argument could be made that there was no acceptance of any change in terms or new agreement, and that the agreement that was submitted with your original motion to compel is the governing agreement, since no newer agreement has been accepted.  You can support this argument with any additional information about the lack of any activity between the parties at the time they claim to have sent the new agreement, as well and before and after that time.

 You could also argue that you've already expended time and expense to file the case with JAMS, and that you shouldn't have to refile with a different entity.  However, if you argue this, they might reply that they'll file and cover all of the expenses.

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10 hours ago, Sgrady said:

Hello and thank you for any help!!!

I received the complaint in February, I filed my answers and MTC within the 14 day time limit. A hearing was set to hear the MTC, however the plaintiff responded by not objecting only stating I had to file the arbitration request. The court granted my MTC and I submitted the required information to JAMS. We had another court date where I had to prove I open the JAMS case. The card was Discover, at this healing the judge gives the parties time to talk, while talking, the plaintiff said they were going to object and I asked if he was aware of the court order. He said the the agreement I file was wrong and the 2020 agreement is the correct one. I asked when was the last activity on the account he shows he in his paperwork from Discover that is was Dec 2019.  We go before the judge and the plaintiff tries to objected saying that the AAA is the only association authorized under the card agreement. The judge asked he he was aware of the response that was submitted and the court order on March granting my motion. The judge then says we are not going to go back and was will proceed with JAMS, that was in May.

 

The plaintiff has not responded to any of the email from JAMS or myself requesting they pay the fee. Finally last week the JAMS case manger sends a email saying if the fee is not paid by the 14 the case would be closed. The plaintiff response to the JAMS case manger saying the this is not the correct association. I request an extension with JAMS until the end of the July. the next day in the mail I receive a MTC arbitration with AAA. looking at the paper work they have removed the information showing the last activity on the account because the 2020 card agreement started February 14, 2020. This agreement is after the default, which would be January 2020

 

Please help me respond to their motion, I don't know if I should file a Motion to Dismiss With Prejudice and Sanction plaintiff or respond to their motion.

 

Thank you again     

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As for template us thers,  follow this example change in title insert "Objection to"  before their title "OBJECTION TO MOTION TO COMPLY........"  

COMES NOW your name Defendant Prose,  and hereby moves this Honorable Court to dismiss Plaintiffs motion....

then list arguments above with paragraph numbers like they did 

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2 minutes ago, Bulldoger said:

As for template us thers,  follow this example change in title insert "Objection to"  before their title "OBJECTION TO MOTION TO COMPLY........"  

COMES NOW your name Defendant Prose,  and hereby moves this Honorable Court to dismiss Plaintiffs motion....

then list arguments above with paragraph numbers like they did 

Thank you again

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15 minutes ago, kittycat said:

They have filed a motion to compel arbitration. In you don't agree, a response in opposition to the motion to compel is in order.

One argument might be that the court has already decided the issue, as they concede in their newest motion.  They are making the same argument that the court found to be untimely in the past, so now it is even more untimely.

They also concede in their newest motion that the agreement provided for arbitration with JAMS, at least prior to February 14, 2020.

Usually a change in terms, or a new agreement, contains language something like;

Acceptance of Agreement: You accept this Agreement if you or an Authorized User use the Account.

An argument could be made that there was no acceptance of any change in terms or new agreement, and that the agreement that was submitted with your original motion to compel is the governing agreement, since no newer agreement has been accepted.  You can support this argument with any additional information about the lack of any activity between the parties at the time they claim to have sent the new agreement, as well and before and after that time.

 You could also argue that you've already expended time and expense to file the case with JAMS, and that you shouldn't have to refile with a different entity.  However, if you argue this, they might reply that they'll file and cover all of the expenses.

Thank you!!

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here is a rough draft

 

DEFENDANT OBJECTION TO PLAINTIFF’S MOTION ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION


NOW COMES Defendant, appearing Pro Se hereby moves this Honorable Court to dismiss Plaintiffs motion and states as follows:

1. On February 26, 2021, Defendant filed her Motion to Compel Arbitration with JAMS.

2. On March 22, 2021, Plaintiff counsel filed a response to the Defendant’s Motion, having no objections to the arbitration request, only requesting the Defendant initiate the arbitration case.

3. On March 22, 2021, the Defendant Motion to Motion to Compel Arbitration was granted.

4. Both Parties appeared in court no May 24, 2021, wherein Plaintiff’s counsel was notified that there was a court order granted the Defendant’s motion and arbitration with JAMS would proceed.

5. Honorable Court has already decided the issue, as the Plaintiff’s counsel states in their motion and was found to be untimely in the past, and is still remains untimely.

6. The Plaintiff’s counsel also states in their motion that the agreement provided for arbitration with JAMS, at least prior to February 14, 2020. The last activity on the account was in December of 2019. There is no acceptance by the Defendant of any change in terms or new agreement, and that the agreement that was submitted with the original motion to compel is the governing agreement, since no newer agreement has been accepted.

7. The governing agreement that was submitted with the original motion to compel is the that was in effect at the time of default, which is prior to February 14, 2020.

WHEREFORE, these premisses considered, Defendant prays that The Court Denies the denies the Plaintiff’s motion to compel arbitration before American Arbitration Association.

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9 minutes ago, BackFromTheDebt said:

Looks good  

A couple of changes—

 

The title is worded incorrectly.  Add in to Compel before Arbitration. 
 

Start #5 with The 

 

I have made the recommended changes. Thanks!!

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11 minutes ago, BackFromTheDebt said:

Maybe you should add between 3 and 4 something to the effect that you already initiated arbitration in JAMS. 
 

I don’t like the wording for #4.  

DEFENDANT OBJECTION TO PLAINTIFF’S MOTION TO COMPEL ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION


NOW COMES Defendant, appearing Pro Se hereby moves this Honorable Court to dismiss Plaintiffs motion and states as follows:

1. On February 26, 2021, Defendant filed her Motion to Compel Arbitration with JAMS.

2. On March 22, 2021, Plaintiff counsel filed a response to the Defendant’s Motion, having no objections to the arbitration request, only requesting the Defendant initiate the arbitration case.

3. On March 22, 2021, the Defendant Motion to Motion to Compel Arbitration was granted.

4. On May 07, 2021, the Defendant submitted the required arbitration case request.

5. Both Parties appeared in court no May 24, 2021, wherein The Honorable Court had already decided the issue stating the order granting the Defendant’s motion to arbitration with JAMS would proceed. The Plaintiff’s motion was found to be untimely in the past, and still remains untimely.

6. The Plaintiff’s counsel also states in their motion that the agreement provided for arbitration with JAMS, at least prior to February 14, 2020. The last activity on the account was in December of 2019. There is no acceptance by the Defendant of any change in terms or new agreement, and that the agreement that was submitted with the original motion to compel is the governing agreement, since no newer agreement has been accepted.

7. The governing agreement that was submitted with the original motion to compel is the that was in effect at the time of default, which is prior to February 14, 2020.

WHEREFORE, these premisses considered, Defendant prays that The Court Denies the denies the Plaintiff’s motion to compel arbitration before American Arbitration Association.

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14 minutes ago, BackFromTheDebt said:

Maybe you should add between 3 and 4 something to the effect that you already initiated arbitration in JAMS. 
 

I don’t like the wording for #4.  

please see above

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1 hour ago, Sgrady said:

DEFENDANT OBJECTION TO PLAINTIFF’S MOTION TO COMPEL ARBITRATION BEFORE THE AMERICAN ARBITRATION ASSOCIATION


NOW COMES Defendant, appearing Pro Se hereby moves this Honorable Court to dismiss Plaintiffs motion and states as follows:

1. On February 26, 2021, Defendant filed her Motion to Compel Arbitration with JAMS.

2. On March 22, 2021, Plaintiff counsel filed a response to the Defendant’s Motion, having no objections to the arbitration request, only requesting the Defendant initiate the arbitration case.

3. On March 22, 2021, the Defendant Motion to Motion to Compel Arbitration was granted.

4. On May 07, 2021, the Defendant submitted the required arbitration case request to JAMS as requested in the motion approved on 3/22/2021.

5. Both Parties appeared in court no May 24, 2021, wherein  Plaintiff requested a change of arbitration forum from JAMS to AAA.  The Honorable Court ruled on the issue stating the order granting the Defendant’s motion to arbitration with JAMS would proceed and no change of forum was necessary. The Plaintiff’s motion was found to be untimely in the past, and still remains untimely.

6. The Plaintiff’s counsel also states in their motion that the agreement provided for arbitration with JAMS, at least prior to February 14, 2020. The last activity on the account was in December of 2019. There is no acceptance by the Defendant of any change in terms or new agreement, and that the agreement that was submitted with the original motion to compel is the governing agreement, since no newer agreement has been accepted.

7. The governing agreement that was submitted with the original motion to compel is the that was in effect at the time of default, which is prior to February 14, 2020.

WHEREFORE, these premises considered, Defendant prays that The Court Denies the denies the Plaintiff’s motion to compel arbitration before American Arbitration Association.

Be prepared to argue this:  the other party is forum shopping.  They did not object to the motion as filed and therefore must comply.  

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2 hours ago, Clydesmom said:

Be prepared to argue this:  the other party is forum shopping.  They did not object to the motion as filed and therefore must comply.  

As the OP pointed out, not only did they not object to the original motion, but they agreed with it.  
 

The judge pointed out in May that they failed to object to the original arbitration agreement, and thus had waived their rights to do so in May. 
 

Now they are trying to get the judge to reverse his May decision of them being too late.  
 

That is why the argument against the new agreement is important.  It shows that the plaintiff would not likely have won their disagreement over the arbitration provision even if the argument had been timely. 

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6 hours ago, Clydesmom said:

6. The Plaintiff’s counsel also states in their motion that the agreement provided for arbitration with JAMS, at least prior to February 14, 2020. The last activity on the account was in December of 2019. There is no acceptance by the Defendant of any change in terms or new agreement, and that the agreement that was submitted with the original motion to compel is the governing agreement, since no newer agreement has been accepted.

7. The governing agreement that was submitted with the original motion to compel is the that was in effect at the time of default, which is prior to February 14, 2020.

WHEREFORE, these premises considered, Defendant prays that The Court Denies the denies the Plaintiff’s motion to compel arbitration before American Arbitration Association.

 

Some suggestions. 

Regarding 6.  What does the credit card agreement say when the account is in default. They usually have a statement that if payment is 30 days late account is considered in default.  That would make it at the latest January 2020 still before Feb 2020. Time of default is spelled out in agreement and flows into your next paragraph. 

regarding 7. The governing agreement that was submitted with the original motion to compel is the that was --the one-- in effect at the time of default, which is occurred prior to February 14, 2020.

WHEREFORE, these premises considered, Defendant prays that The Court Denies the denies the Plaintiff’s motion to compel arbitration before American Arbitration Association.

 

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