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Judge said they do not have authority to compel arbitration


ccindc
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42 minutes ago, ccindc said:

Should I file the motion anyways, have them deny, then take it to the next level? Any help would be great. Thank you!

We need a lot more information.  Why did the judge reject the motion?  Who is the OP?  Who sued you?  What kind of court?  Is there an arbitration agreement?  What does the agreement, if any, say?  

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5 minutes ago, BackFromTheDebt said:

We need a lot more information.  Why did the judge reject the motion?  Who is the OP?  Who sued you?  What kind of court?  Is there an arbitration agreement?  What does the agreement, if any, say?  

Judge did not believe the agreement gave them authority to compel. OP is synchrony. JDB is Midland. Small claims/district court. 

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1 hour ago, ccindc said:

Should I file the motion anyways, have them deny, then take it to the next level? Any help would be great. Thank you!

To be clear: you have not filed with the court a written motion to compel arbitration and stay the case. 

15 minutes ago, ccindc said:

Judge did not believe the agreement gave them authority to compel. OP is synchrony. JDB is Midland. Small claims/district court. 

Was this a discussion with the judge during a court proceeding? Did the judge review the Synchrony agreement's arbitration clause from the bench? Where did a copy of the Synchrony agreement come from?

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1 hour ago, Brotherskeeper said:

To be clear: you have not filed with the court a written motion to compel arbitration and stay the case. 

Was this a discussion with the judge during a court proceeding? Did the judge review the Synchrony agreement's arbitration clause from the bench? Where did a copy of the Synchrony agreement come from?

I did not file yet, no. This discussion happened during a scheduling proceeding. Yes, judge reviewed the clause from the bench. The agreement came from CFPB and corresponded to the dates in my case. Thank you!

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6 minutes ago, ccindc said:

I did not file yet, no. This discussion happened during a scheduling proceeding. Yes, judge reviewed the clause from the bench. The agreement came from CFPB and corresponded to the dates in my case. Thank you!

What, if anything, did Midland's attorney say during this proceeding? 

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2 hours ago, ccindc said:

Judge did not believe the agreement gave them authority to compel.

"Them" refers to the judge? Why wouldn't the judge have the authority to compel arb if the Synchrony arb clause explicitly states s/he is to decide the enforceablitiy of the arbitration agreement? Can you please explain this a bit more?

We have had CIC members tell us that some judges, when ruling on a motion to compel, will not compel the JDB plaintiff to arbitration if there's been no refusal or opposition by the plaintiff to arbitrate. Some judges will grant a portion of the motion to continue/stay the case for X number of days so that the defendant can file the arbitration demand in either JAMS or AAA, then report back to the court.  In that particular situation, there is no court order to compel that can be submitted along with the arbitration demand claim to the arb forum. 

Does your Synchrony agreement have these 3 sections? 

"3. Examples of claims subject to arbitration are disputes about an account transaction, fees, charges or interest, the events leading up to the Agreement (such as any disclosures, advertisements, promotions or oral or written statements, warranties or representations made by us), an application for or denial of credit, any product or service provided by us or third parties in connection with the Agreement, credit reporting, benefit programs related to your account including any reward program, the collection of amounts due by our assignees, service providers, or agents and the manner of collection.

4. However, we will not require you to arbitrate any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court. Also, even if all parties have opted to litigate a claim in court, you or we may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in any related or unrelated lawsuit, including modifying an individual claim to assert a class, representative or multi-party claim. Arbitration may be requested at any time, even where there is a pending lawsuit, unless a trial has begun, or a final judgment entered.
 

5. Only a court will decide disputes about the validity, enforceability, coverage or scope of this Arbitration section or any part thereof. However, any dispute that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator to decide."

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8 minutes ago, Brotherskeeper said:

"Them" refers to the judge? Why wouldn't the judge have the authority to compel arb if the Synchrony arb clause explicitly states s/he is to decide the enforceablitiy of the arbitration agreement? Can you please explain this a bit more?

We have had CIC members tell us that some judges, when ruling on a motion to compel, will not compel the JDB plaintiff to arbitration if there's been no refusal or opposition by the plaintiff to arbitrate. Some judges will grant a portion of the motion to continue/stay the case for X number of days so that the defendant can file the arbitration demand in either JAMS or AAA, then report back to the court.  In that particular situation, there is no court order to compel that can be submitted along with the arbitration demand claim to the arb forum. 

Does your Synchrony agreement have these 3 sections? 

"3. Examples of claims subject to arbitration are disputes about an account transaction, fees, charges or interest, the events leading up to the Agreement (such as any disclosures, advertisements, promotions or oral or written statements, warranties or representations made by us), an application for or denial of credit, any product or service provided by us or third parties in connection with the Agreement, credit reporting, benefit programs related to your account including any reward program, the collection of amounts due by our assignees, service providers, or agents and the manner of collection.

4. However, we will not require you to arbitrate any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court. Also, even if all parties have opted to litigate a claim in court, you or we may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in any related or unrelated lawsuit, including modifying an individual claim to assert a class, representative or multi-party claim. Arbitration may be requested at any time, even where there is a pending lawsuit, unless a trial has begun, or a final judgment entered.
 

5. Only a court will decide disputes about the validity, enforceability, coverage or scope of this Arbitration section or any part thereof. However, any dispute that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator to decide."

Here's the text:

1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account,
and us, our affiliates, agents and/or Amazon.com if it relates to your account, except as noted below.
2. We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual
case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing,
we may require you to arbitrate.
3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage
or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any
dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.

The judge did not elaborate on the court's authority to compel, just said it lacked the authority. My feeling is that the judge is simply wrong.

I'm in the early stages of arbitration: filed, paid, and mailed the appropriate parties.

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If you are in small claims court, maybe that is the reason.  But even that language can be defeated.  The clause says the creditor won't require YOU to arbitrate.  It doesn't prevent you from seeking arbitration, that you want.

You said you already filed and paid the arb forum?  Before filing the MTC Arb?  That is doing it backwards.  Usually it is best to file the MTC Arb, wait until it is granted, and then file with the arb forum.  I think you do need to file the MTC Arb.

 

@Bulldoger is in VA; maybe he has some advice?

 

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1 hour ago, nobk4me said:

If you are in small claims court, maybe that is the reason.  But even that language can be defeated.  The clause says the creditor won't require YOU to arbitrate.  It doesn't prevent you from seeking arbitration, that you want.

You said you already filed and paid the arb forum?  Before filing the MTC Arb?  That is doing it backwards.  Usually it is best to file the MTC Arb, wait until it is granted, and then file with the arb forum.  I think you do need to file the MTC Arb.

 

@Bulldoger is in VA; maybe he has some advice?

 

I see. Ok, I’ll do that and keep an eye on the topic. 

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I'm in Virginia.  I have one case in the works with a MTC and will present another MTC in another case next month.

Virginia law says that the judge must grant the MTC if the other party REFUSES to arbitrate. I think this may be why there aren't a lot of MTC grants in VA? 

If they don't refuse, then they must agree - I guess.

I've been to court 4 times now with a 5th date coming up. The MTC has not been granted, but the all 4 different judges have agreed that I have the right to arbitrate. They just keep continuing to allow the plaintiff to act on the arbitration case. The last judge put in the notes that if the plaintiff did not take meaningful action by the next court date, the next judge should "seriously" consider a dismissal.

The case that is in motion has in the contract that it's also governed by Utah state law. The new case by Nevada.

Both of those states say that the judge should grant the MTC if the opposing side agrees, opposes or doesn't show up - different from Virginia.  I'm not sure whether I'll bring that up or not.

I don't know where you are located, but for my court, they have a rotating set of judges. I'd file the MTC and see what the next one says. The worst thing they can do is disagree with you again. 

Here is a link to the Virginia law:

https://law.lis.virginia.gov/vacode/title8.01/chapter21/section8.01-581.02/

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7 hours ago, ccindc said:

I did not file yet, no. This discussion happened during a scheduling proceeding. Yes, judge reviewed the clause from the bench. The agreement came from CFPB and corresponded to the dates in my case. Thank you!

Scheduling proceeding, What was scheduled/ Trial date? Have you filed a ground of defense and/or received bill of particulars? 

Attorneys are not allowed in small claims so a small claims clause is not an issue. 

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17 hours ago, Bulldoger said:

Scheduling proceeding, What was scheduled/ Trial date? Have you filed a ground of defense and/or received bill of particulars? 

Attorneys are not allowed in small claims so a small claims clause is not an issue. 

I only know that the case was continued. I’m not sure if that means that a second scheduling conference would be next or the trial date. I have not filed a ground of defense nor received a bill of particulars. Thanks for the reply!

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7 minutes ago, ccindc said:

I only know that the case was continued. I’m not sure if that means that a second scheduling conference would be next or the trial date. I have not filed a ground of defense nor received a bill of particulars. Thanks for the reply!

From my limited experience in VA General District court, they can continue the initial hearing over and over for pretty much any reason the plaintiff gives.

They don't order the plaintiff to file a bill or particulars with a corresponding grounds of defense from the defendant until they schedule an actual trial.

As I mentioned, my fifth hearing is coming up and it still hasn't gone to an actual trial.  

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1 hour ago, shadow99 said:

From my limited experience in VA General District court, they can continue the initial hearing over and over for pretty much any reason the plaintiff gives.

They don't order the plaintiff to file a bill or particulars with a corresponding grounds of defense from the defendant until they schedule an actual trial.

As I mentioned, my fifth hearing is coming up and it still hasn't gone to an actual trial.  

Thanks for that. Given what I’ve read about Midland/AAA issues, would it be reasonable to wait until I get something from AAA saying that Midland hasn’t paid then include that with my MTC?

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4 hours ago, ccindc said:

Thanks for that. Given what I’ve read about Midland/AAA issues, would it be reasonable to wait until I get something from AAA saying that Midland hasn’t paid then include that with my MTC?

I don't know. Usually, the members here recommend that you go to court first, then file.

In my first case, the opposing attorney (a rent-a-lawyer - not from the actual firm) agreed to arbitration on the first court date.

You mentioned what the judge said. What did the plaintiff's attorney say?

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On 8/21/2021 at 8:48 PM, shadow99 said:

I don't know. Usually, the members here recommend that you go to court first, then file.

In my first case, the opposing attorney (a rent-a-lawyer - not from the actual firm) agreed to arbitration on the first court date.

You mentioned what the judge said. What did the plaintiff's attorney say?

Not much, really. The judge was quite deferential to the plaintiff’s attorney.  The judge suggested a continuance to allow time for arbitration and the attorney agreed. 

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Looks to me like you got a stay and verbal order to arbitrate.  When you go back to court you need to let judge know that you filed and paid your fees. The plaintiff will do same and case will be dismissed or stayed depending status or arbitration. 

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