Cavalry SPV/Javitch block lawsuit Texas: Should I request arbitration or fight in court

[txrider1]

Cavalry SPV is using Javtich Block to sue me in "Justice Court" on a roughly $9,800 dollar debt. I filed a basic answer using the solosuit template that denied all allegations. I called the court before filing my answer to make sure I could still file a motion to arbitrate after the initial answer filing and was told yes. I just got a letter from the Justice of the peace notifying me of my hearing on Nov 18. Should I file a motion to arbitrate, or try discovery? Javitch block included nothing with the filing accept for a copy of a my citi card account(attached) summary which included my name and the last 4 digits of my account number. No affidavit, no nothing... 

Also, In the title of the summons it is Listed as Calvary SPV I llc Vs Me, but the rest of the documents and the next page it is listed as Cavalry SPV I Vs Me; Maybe just a court mistake, is this something I need to worry about or could use as leverage? 

 

Lastly, I received a letter from Javitch block after filing my answer that was a "compromise letter" saying to call if I wanted to discuss settlement. I offered them 50% right before filing my answer and they came back with some way higher number. Not sure if this letter matters just wanted to include everything. 

I am worried that on an amount this large they will arbitrate, but I'm also worried if I do discovery it will eliminate my chances to arbitrate and they may produce the doc's.  Any advice on the best next step would be appreciated.

 

1. Who is the named plaintiff in the suit? ----Calvary spv

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

3. How much are you being sued for?------- Around $9,800

4. Who is the original creditor? (if not the Plaintiff) -----Citibank NA AAdvantage

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? - Tried to settle but they were nuts, I never admitted to debt.

9. What state and county do you live in? ------ TX

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)--- 2020(to citibank)

11. When did you open the account (looking to establish what card agreement may be applicable)?  - 2018- Contract includes arbitration clause

12.  What is the SOL on the debt? To find out: ---3 years

13. What is the status of your case? ----I responded with objections and was just given a hearing date. 

14. Have you disputed the debt with the credit bureaus? --- No

15. Did you request debt validation before the suit was filed?--- No

16. What evidence did they send with the summons? ----- Literally just a picture of my account balance from Citi card( pic attached)

17.  How did you find out about this site? ---- Google

[HueyPilot]

@texasrockerseems to have a good handle on this question. The current trend seems to favor arbitration but Citibank may have a few wrinkles in their credit card agreement for arbitration in various courts. Find your agreement online and read through that provision. Should help you decide. It's hard to win in civil court anymore. I also have a pending case with Citibank & Cavalry.

[txrider1]

My contract does have the small claims court cut out, but as @texasrocker has stated, that was abolished. One small problem Is I didn't include the arbitration route in my answer to the court, just a general Denial. However, before filing my answer I did call the clerk and verify I could still file a motion to arbitrate and she said yes I could up until the hearing date. 

Could I amend my response? Or should I just go ahead and file a MTC arbitration and include the clause in the agreement? 

[texasrocker]

You don't have to amend your answer to file the motion.

[Bulldoger]

5 hours ago, txrider1 said:

I am worried that on an amount this large they will arbitrate, but I'm also worried if I do discovery it will eliminate my chances to arbitrate and they may produce the doc's.  Any advice on the best next step would be appreciated.

IMO, Your Arb clause states they will not pursue their arb fees but AAA may award them if your claim is frivolous (has happen before). I would file MTC but also try to get judge to have them file the case with AAA.  In this way you don't have a claim to be found to be frivolous. See Capital One Bank (USA) N.A. v, Rotman, 2012-Ohio-480 for case law to have JDB file with AAA. Whatever JDB has as documents they will have in both court or in arbitration but your odds of getting a better settlement lied in Arbitration. 

[txrider1]

I filed everything for arbitration and then never heard back from the court, so I sent an email inquiring if I had been mailed or missed anything. The next day I received the following return email… Please let me know if anyone has  advice on how to respond.

@Clydesmom, @firsthardcheese

 

 

Our office received your Order to Grant Private/Contractual Arbitration and to Stay Proceedings Pending Arbitration and has reviewed your request. At this time the request has been denied based on Texas Civil Practice and Remedies Code Sec 171.002. I have included said chapter for your review.
Respectfully,
***** *******
 
 

Texas Civil Practice and Remedies Code

Sec. 171.002
Scope of Chapter

(a)

This chapter does not apply to:

(1)

a collective bargaining agreement between an employer and a labor union;

(2)

an agreement for the acquisition by one or more individuals of property, services, money, or credit in which the total consideration to be furnished by the individual is not more than $50,000, except as provided by Subsection (b);

(3)

a claim for personal injury, except as provided by Subsection (c);

(4)

a claim for workers’ compensation benefits; or

(5)

an agreement made before January 1, 1966.

(b)

An agreement described by Subsection (a)(2) is subject to this chapter if:

(1)

the parties to the agreement agree in writing to arbitrate; and

(2)

the agreement is signed by each party and each party’s attorney.

(c)

A claim described by Subsection (a)(3) is subject to this chapter if:

(1)

each party to the claim, on the advice of counsel, agrees in writing to arbitrate; and

(2)

the agreement is signed by each party and each party’s attorney.

[Goody_Ouchless]

That's nuts. Was there any more in the way of explanation? The only thing I see is that are saying it's credit, under 50K, and the plaintiff does not agree to sign. That shouldn't apply since there is an existing agreement to arbitrate.

Sec. 171.002. SCOPE OF CHAPTER. (a) This chapter does not apply to:

(2) an agreement for the acquisition by one or more individuals of property, services, money, or credit in which the total consideration to be furnished by the individual is not more than $50,000, except as provided by Subsection (b);

(b) An agreement described by Subsection (a)(2) is subject to this chapter if:

(1) the parties to the agreement agree in writing to arbitrate; and

(2) the agreement is signed by each party and each party's attorney.

[Bulldoger]

3 hours ago, Goody_Ouchless said:

That's nuts. Was there any more in the way of explanation? The only thing I see is that are saying it's credit, under 50K, and the plaintiff does not agree to sign. That shouldn't apply since there is an existing agreement to arbitrate.

Seems it does if you look at the complete chapter. 

CIVIL PRACTICE AND REMEDIES CODE

TITLE 7. ALTERNATE METHODS OF DISPUTE RESOLUTION

CHAPTER 171. GENERAL ARBITRATION

SUBCHAPTER A. GENERAL PROVISIONS

Sec. 171.001. ARBITRATION AGREEMENTS VALID.

(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.

(b) A party may revoke the agreement only on a ground that exists at law or in equity for the revocation of a contract.

Sec. 171.002. SCOPE OF CHAPTER. (a) This chapter does not apply to:

2) an agreement for the acquisition by one or more individuals of property, services, money, or credit in which the total consideration to be furnished by the individual is not more than $50,000, except as provided by Subsection (b);

b) An agreement described by Subsection (a)(2) is subject to this chapter if:

(1) the parties to the agreement agree in writing to arbitrate; and

(2) the agreement is signed by each party and each party's attorney.

Crazy way it's written as Defendant will always have a and Plaintiff always have b. 

@texasrocker

 

 

 

[txrider1]

I posted all I received from her. Any thoughts on how to proceed?

[BV80]

@Bulldoger

@Goody_Ouchless

The agreement is governed by the Federal Arbitration Act, not Texas law.  From the Texas Supreme Court:

Section 2 of the FAA preempts state law that would otherwise render arbitration agreements unenforceable in a contract involving interstate commerce. 9 U.S.C. § 2. In re Olshan Foundation Repair Company, LLC,328 S.W.3d 883, 888 (Tex. 2010)(citing Southland Corp. v. Keating, 465 U.S. 1, 10-11, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984)).  We have recognized that the FAA preempts parts of the TAA, including section 171.002(a)(2) of the Civil Practice and Remedies Code. Id.

[txrider1]

@BV80

So what exactly do I do, send the judge  this citing showing this or what?

[Bulldoger]

You would file a motion with court for judge to revisit the MTC. @texasrocker knows Texas procedures.  If you go online most states have forms that you can fill out. Look for forms title motion to rehear, review, etc.. review rules on filing motions. Follow rules. File motion.

[BV80]

5 hours ago, txrider1 said:

@BV80

So what exactly do I do, send the judge  this citing showing this or what?

Along with what @Bulldoger  said, look into your rules about “interlocutory appeals”.  Most motion decisions are not appealable until a lawsuit is finished, but a denial of arbitration might be appealable to the higher court as soon as it’s denied.  

[Jimmy E]

@txrider1

I take this comment:  At this time the request has been denied based on Texas Civil Practice and Remedies Code Sec 171.002. I have included said chapter for your review.  ...the "At this time" part to mean their minds could be changed.  Since they seemed quick to answer your email, I don't think it would be inappropriate to put together a quick email reply that quotes the 'Section 2 of the FAA' that @BV80 mentioned -- which overrides Texas law -- and "you are including for their convenience."  Ask them straight out if this federal law makes a difference since it appears to contradict the 'Remedies Code Sec 171.002' they sent you.

It may not do any good whatsoever, but some courts are small and informal enough the clerk may ask the judge about it.  It would be a shame if you had to file an appeal because a small town court judge wasn't aware of this federal law.

I've read a lot of cases where appeals courts overruled a lower court that either denied a MTC or a stay in proceedings.  @Bulldogerpointed out an Ohio Supreme Court Ruling that did this very thing. 

In short, JDB won an argument that defendant could not file to 'stay the proceedings pending arbitration' if said defendant had not initiated arb yet.  The court reversed this decision and even said:  "Indeed, it would be nonsensical to require a defendant to commence arbitration of a claim against himself.  Thus, where defendant properly exercises a right to arbitration, it is incumbent upon the plaintiff to pursue its claims in arbitration once a stay of the action is granted."

If you read these arb agreements carefully, I've found a great many do not have language about WHO must file a claim in arbitration -- only that either party may 'elect' it.  Of course, different courts, different interpretations.

Either way, good luck!

Jimmy

 

[txrider1]

@Jimmy E

Thanks for the advice, that is precisely what I wanted to do but I didn't know if emailing the judge back without notifying the opposing council was inappropriate/illegal.

I mean she strait up emailed me back, never sent a formal response... So I assume it will be fine. I will keep you posted!

Thanks again!

[texasrocker]

18 hours ago, Bulldoger said:

@texasrocker

Whenever someone asks for my advice regarding arbitration I refer them to @fisthardcheese Search for posts by him and you will most likely find your answer.

[Bulldoger]

help with the timeline:

when did you get  letter from the Justice of the peace notifying you of my hearing on Nov 18. Did hearing have a title and is hearing still happening?

When did you file MTC? Did you have order for judge to sign? 

Did plaintiff file a response? (you should have gotten copy)

Is hearing still on for Nov. 18th title of hearing? 

I suggest you file a paper titled 

Memorandum Regarding Motion for Compelling Private Contractual Arbitration used of Texas Civil Practice and Remedies Code Sec 171.002 when contractual agreement is governed by the Federal Arbitration Act. 

1. In that paper point out section of the agreement used in MTC stating federal law applies. 

2. quotes the 'Section 2 of the FAA' that @BV80 mentioned

3.  statement that Sec 171.002 does not apply in your case since it is governed by federal law. 

4.  Therefore the MTC should be granted. 

 

 

[txrider1]

I received the hearing date exactly 1 day after filing my initial response,  September 28th. The timing was so fast I think they mailed the hearing date before even receiving my response. Before filing  my response I made sure to email and ask the clerk If I could file a MTC after filing my response and she said yes. I then Sent my MTC arbitration, Order to grant, Affidavit, and highlighted copy of the card agreement(contract). Next day I got a response from the clerk saying she had received it but then I heard nothing from the court and definitely no response from the plaintiff. On Nov 7 I sent an email inquiring about this and then the next day is when the judge emailed me this back, some court system we have here in small town Texas.... 

From What I know the hearing is still happening as I haven't heard otherwise, but I also haven't received anything form them until pressing them so who knows... I am pretty sure she didn't even read those documents or my initial response until I sent that second email on Nov 7...

 

[txrider1]

Should I also include that I have not received a response from the plaintiff and that I would like a copy if one was filed? 

[txrider1]

I just now received the "Notice of filing of business records", 1 day before my hearing... 

The interesting thing is, they included a CERTIFACTE OF SERVICE that is dated November 12, 2021.

But they overnighted it yesterday and also included a affidavit that was dated yesterday, November 14,2021... So they certificate of service must be a lie? 

Could I bring this up in court tomorrow as a way to get the filing(which includes the evidence they need to prove the debt is mine) thrown out?

[nobk4me]

37 minutes ago, txrider1 said:

I just now received the "Notice of filing of business records", 1 day before my hearing... 

The interesting thing is, they included a CERTIFACTE OF SERVICE that is dated November 12, 2021.

But they overnighted it yesterday and also included a affidavit that was dated yesterday, November 14,2021... So they certificate of service must be a lie? 

Could I bring this up in court tomorrow as a way to get the filing(which includes the evidence they need to prove the debt is mine) thrown out?

Maybe others will have a different opinion, but I would say, not likely.  It would be considered a technicality, bona fide error, or of minimal significance.

[BV80]

47 minutes ago, txrider1 said:

I just now received the "Notice of filing of business records", 1 day before my hearing... 

The interesting thing is, they included a CERTIFACTE OF SERVICE that is dated November 12, 2021.

But they overnighted it yesterday and also included a affidavit that was dated yesterday, November 14,2021... So they certificate of service must be a lie? 

Could I bring this up in court tomorrow as a way to get the filing(which includes the evidence they need to prove the debt is mine) thrown out?

I agree with @nobk4me regarding the dates.  However, check your rules to see if there are requirements for filing evidence within a certain amount of time before trial.  Have you received copies of those documents at any other time before today?

[txrider1]

Nope, Just got them today. Apparently the deadline has passed for discovery, but seeing that I did not ask for the documents they are not too late for filing evidence.  

[txrider1]

I guess at this point my best option tomorrow is to continue the push for Arbitration.

[texasrocker]

3 hours ago, txrider1 said:

Nope, Just got them today. Apparently the deadline has passed for discovery, but seeing that I did not ask for the documents they are not too late for filing evidence.  

This definitely should have been addressed in discovery.  You could have made them put their foot in their mouth and admit that those affidavits and whomever signed them are a joke.