Sued a 2nd Time on Same Debt - Arbitration Procedural Questions

[Around The Fur]

I am being sued a 2nd time by the same Plaintiff on the same debt. The first time around, CKS Prime Investments voluntarily dismissed the suit (without prejudice) after I had filed my MTC. The SOL on Promissory Notes in Louisiana is 10 years, so unfortunately this new case is entirely legitimate.  I went through the same process on this new claim (filed answer w/ MTC, etc.) Today, I received a thick stack of new court documents the Plaintiff filed related to Arbitration. I have not received the court-approved MTC yet, but it seems this JDB is trying to swamp me with various filings in hopes that I stumble. I have completed the JAMS arbitration demand form online, but have not yet paid the $250 as I am waiting on the MTC ruling. Just to note, this Court has denied my MTC on a separate case in the past. I went through the appeals process, and won. However, it's difficult to automatically assume that my MTC will be granted. To be clear, at this point I have filed Answer to Petition, MTC, and response to Request for Admission of Facts. I have not received anything back from the Court granting my MTC, nor have I completed payment for JAMS.

If anyone can guide me on what my next steps need to be, I'd greatly appreciate it. Do I need to respond to the Court for all of these filings w/ the standard "not proper jurisdiction due to arbitration language?" Do I go ahead and initiate with JAMS (despite not receiving approved MTC from Court yet?) The following are new Court filings from the Plaintiff:

Note Interrogatories

1. The creditor indicates a balance on the note of $11,938.92 as of July 30, 2021. Do your records reflect otherwise and if so, please describe.
2. The creditor indicates that all funds described in the note were advanced. Do your records reflect otherwise and if so, please describe.
3. The creditor indicates that all payments and credits have been applied to the balance. Do your records reflect otherwise and if so, please describe.
4. The note includes various terms, including provision for interest and attorney's fees as reflected in the petition. These terms were agreed upon when you signed the note. Please fully describe any terms which you feel are not accurately reflected in the petition; fully detail the suggested accurate terms; and describe and attach any document which substantiates an agreement as to any different terms.

Request for Genuineness of Documents / Request for Production of Documents

1. Please admit or deny the genuineness of the attached documents transferring ownership of the account to CKS Prime Investments, LLC.
2. Please admit or deny the genuineness of the attached signed loan document confirming the customer and account information.
3. Please admit or deny the genuineness of the attached business records of the creditor confirming the customer and account information.
4. Please produce any documents which might indicate information other than that presented by the creditor in the attached documents transferring ownership of the account to CKS Prime Investments, LLC.
5. Please produce any documents which might indicate information other than that presented by the creditor in the attached signed loan document confirming the customer and account information.
6. Please produce any documents which might indicate information other than that presented by the creditor in the attached business records of the creditor confirming the customer and account information.

Request for Production of Documents

1. Please produce documents showing that arbitration has been initiated by you in accordance with the Section 18 Arbitration provision of the Loan Agreement.
2. Please produce documents showing a response from JAMS to your request for arbitration.
3. Please produce documents  showing payment of the arbitration fee by defendant to JAMS.
4. Please produce documents identifying the name of the arbitrator selected by JAMS pursuant to defendant's initiation of Arbitration.

Plaintiff's Reply to Defendant's MTC Arbitration

(brief version) Defendant has elected arbitration; therefore, he must do so through the appropriate entity. The plaintiff has received notice from the defendant that he wishes to have this matter arbitrated. Plaintiff has not received any notification from AAA or JAMS that defendant has initiated any arbitration claims.  If defendant initiates arbitration as described in the loan agreement, plaintiff would request this matter be stayed pending the outcome of that arbitration. If defendant has not initiated arbitration pursuant to the loan agreement, plaintiff requests this Court establish a deadline for defendant to initiate arbitration proceedings with either AAA or JAMS, in default of which all stays be lifted and the Plaintiff's suit allowed to continue.

Motion to Set Deadline for Defendant to Initiate Arbitration

This document was attached to a letter stating that the Plaintiff "plans" to file the following documents on 3/1/22. It essentially asks the Court to set a deadline for filing with JAMS. A Consent Judgement  was also attached w/ a repayment plan (full amount w/ interest, atty fees, etc.)

My main questions are:

1. Do I need to respond and file for all of these documents?
2. Do I also have to prepare a response for the Consent Judgement?
3. I will call the Clerk today and see if my MTC was approved. Should I go ahead and complete the JAMS form, or wait for Court response?
4. Any tips on my responses to these documents?

I love you all and THANK YOU for any help you can provide!

[Around The Fur]

Also, I know I skipped ahead a bit. So if you need any background, context or other info I will be happy to respond!

[Clydesmom]

3 hours ago, Around The Fur said:

I will call the Clerk today and see if my MTC was approved. Should I go ahead and complete the JAMS form, or wait for Court response?

You need to file with JAMS ASAP.  They are not opposing your MTC so you do not need to wait for one to be signed by the court.  They are hoping you keep waiting so they can argue to the court you were not serious because you never filed when they said they weren't opposing.

3 hours ago, Around The Fur said:

Please produce documents showing that arbitration has been initiated by you in accordance with the Section 18 Arbitration provision of the Loan Agreement.

File and send them the copies.

3 hours ago, Around The Fur said:

Please produce documents showing a response from JAMS to your request for arbitration.

When you get it send it.

3 hours ago, Around The Fur said:

Please produce documents  showing payment of the arbitration fee by defendant to JAMS.

This will be indicated in the JAMS response.

3 hours ago, Around The Fur said:

Please produce documents identifying the name of the arbitrator selected by JAMS pursuant to defendant's initiation of Arbitration.

This is too early in the process.  A statement that JAMS has not asked the parties to select an arbitrator yet and that the creditor is required to participate in the selection process.

3 hours ago, Around The Fur said:

Do I also have to prepare a response for the Consent Judgement?

I don't think so.  I believe that for it to be valid you would have to sign it.  

 

[WhoCares1000]

The problem is that in the first case, the plaintiff agreed to arbitrate and you did not initiate arbitration. They can now argue that because of that, you were not serious about going into arbitration either. You need to file with JAMS ASAP before doing anything else so that you can show the judge that you were serious about it to begin with.

[Around The Fur]

In the first case, they never agreed to arbitration. They instantly dismissed once I sent notice I wanted to arbitrate. I will complete JAMS ASAP. Thank you!

[WhoCares1000]

14 hours ago, Around The Fur said:

In the first case, they never agreed to arbitration. They instantly dismissed once I sent notice I wanted to arbitrate. I will complete JAMS ASAP. Thank you!

They sent notice because they agreed to arbitrate the case as you requested and dismissed the case because there was nothing for the judge to rule on. They were simply waiting for you to start the arbitration and when you did not, they refiled the case and would oppose your MTC by saying you are not serious about arbitration and are trying to avoid having the issue litigated. Not all arbitration cases begin with a MTC. Many are agreed upon before the judge rules.

[BackFromTheDebt]

2 hours ago, WhoCares1000 said:

They sent notice because they agreed to arbitrate the case as you requested and dismissed the case because there was nothing for the judge to rule on. They were simply waiting for you to start the arbitration and when you did not, they refiled the case and would oppose your MTC by saying you are not serious about arbitration and are trying to avoid having the issue litigated. Not all arbitration cases begin with a MTC. Many are agreed upon before the judge rules.

Let me add to this wonderful post. 
 

Judges are unpredictable.  Two judges can look at the same case and rule opposite ways.  If this were not the case, every Supreme Court decision would be unanimous. 
 

Handling a case is like playing poker.  You make the best play for your hand.  You could lose to a bad beat or you could fill a flush on the River.  But if your opponent folds you can’t lose the hand. 
 

You basically kept your opponent in the game hoping they wouldn’t refile.  But they did. It is possible the judge will still rule in favor of your MTC even if you don’t file in JAMS. However, you gave them a strong case to show you aren’t serious about arbitration.  
 

Just follow the advice above. File in JAMS ASAP.  That shows you are serious about arbitration and takes their argument away from them.  
 

If they contest the MTC you need to have some answer as to why you didn’t file the last time. 

[Around The Fur]

Update:  Initiated demand arbitration with JAMS. I'm going to attach that confirmation to my response for their Request for Production of Documents - file and send certified copies.
 

Still slightly confused on which of these documents they sent that I need to respond to:

1. Plaintiff's Reply to Defendant's Motion to Compel Arbitration: Cautiously assuming I don't need to respond to this one? In it, they don't object to arbitration, only ask that the judge set a deadline for initiating arbitration on my end.
2. Note Interrogatories: (I don't believe this is an actual court filing. It is addressed to me rather than the Court and doesn't contain the legal language in their other court filings.) Do I still need to respond and file my answer with the Court?
3. Request for Genuineness/Production of Docs: Preparing a formal response that I will file later today
4. Motion to Set Deadline for Defendant to Initiate Arbitration: Attached to a cover sheet saying they "plan" on filing this motion on 3/1. Sent alongside their reply to my MTC. Again, asking judge to set a deadline - which is moot because I have already filed with JAMS and will file all confirmation with Court today (and send certified to atty.)

To recap, I'm responding to their request for production of docs today (which includes JAMS payment and initiation confirmations.) They sent two, separate requests for production of docs - one related to arbitration/JAMS and another one related to the debt in question. I am responding to both, but on the latter objecting and citing lack-of-jurisdiction responses. I'll hold off on doing anything else until I can learn a bit more.

[Around The Fur]

On 2/10/2022 at 8:35 AM, BackFromTheDebt said:

Let me add to this wonderful post. 
 

Judges are unpredictable.  Two judges can look at the same case and rule opposite ways.  If this were not the case, every Supreme Court decision would be unanimous. 
 

Handling a case is like playing poker.  You make the best play for your hand.  You could lose to a bad beat or you could fill a flush on the River.  But if your opponent folds you can’t lose the hand. 
 

You basically kept your opponent in the game hoping they wouldn’t refile.  But they did. It is possible the judge will still rule in favor of your MTC even if you don’t file in JAMS. However, you gave them a strong case to show you aren’t serious about arbitration.  
 

Just follow the advice above. File in JAMS ASAP.  That shows you are serious about arbitration and takes their argument away from them.  
 

If they contest the MTC you need to have some answer as to why you didn’t file the last time. 

Update:

Arbitration has commenced, and other party's attorney has paid initial fee. Arbitrator was recently selected. I sent a mutual dismissal w/ prejudice offer to their attorney after the arbitrator was selected, and just received a reply - They rejected the offer, and the attorney was sure to include verbiage stating they are set on recouping costs associated with arbitration. He further stated "it is our appreciation that recovery of the arbitral fees and attorney fees incurred can only be accomplished through a fully completed arbitration in the award of the arbitrator."

Not sure how I missed it initially, but I combed through my loan agreement again and found the following:

***If you elect arbitration, filing costs and administrative fees (other than hearing fees) shall be paid in accordance with the rules of the administrator selected, or in accordance with countervailing law if contrary to the administrator's rules. We shall pay the administrator's hearing fees for one full day of arbitration hearings. Fees for hearings that exceed one day will be paid by the party requesting the hearing, unless the administrator's rules or applicable law require otherwise, or you request that we pay them and we agree to do so. Each party shall bear the expense of its own attorneys' fees, except as otherwise provided by law. ii a statute gives you the right to recover any of these fees, these statutory rights shall apply in the arbitration notwithstanding anything to the contrary herein***

My question is should I respond to their attorney and tactfully suggest they read our binding arbitration agreement, or just leave it alone?  The fees incurred by them to date, along with a full day of arbitration would exceed the balance owed.  He seems to be under the strong impression they will be able to recoup any and all fees associated with this arbitration process. Any help would be appreciated!!!

[BackFromTheDebt]

It is possible that their attorney committed an FDCPA violation by misrepresenting your possible payment.  I am not sure of this, but their attorney did give you false information designed to influence your decisions. 

The false information may well be due to ignorance rather than malice   But then he may be misleading his client as well, convincing them that they can reimburse costs when they cannot   

You might as well send off an email politely educating him as to his mistake.  Quote the applicable portion of the agreement.  See what happens.  
 

There is a serious problem with letting him find out the hard way.  His $ is not on the line.  His client’s $ is.  Quite likely he can rack up charges and when the client wonders where the reimbursement is, we’ll, oops, those arbitrators can be unpredictable, whatayagonnado?

 

Since your goal is to get as file a settlement as possible, having him aware of his error works to your advantage, unless he foolishly decides not to believe you or else he is unethically trying to rack up attorney fees. 
 

On top of that, the arbitrator rules prevail, so that they would be liable for the unlikely second day of hearings as well   

  

[nobk4me]

Maybe they are planning to do something like PRA did to @catlady22 in AAA, call the arbitration "frivolous" and seek to recover the fees that way.

[Around The Fur]

JDB attorney filed their response to my statement of claim (they filed about a week late.) They also admitted guilt in a couple of my claims. However, also included in their response, were a list of counter claims. Is that standard procedure? 

[BV80]

9 minutes ago, Around The Fur said:

JDB attorney filed their response to my statement of claim (they filed about a week late.) They also admitted guilt Ina couple of my claims. However, also included in their response, were a list of counter claims. Is that standard procedure? 

What were the counterclaims?

[Around The Fur]

11 hours ago, BV80 said:

What were the counterclaims?

They essentially copied the charges from the original court lawsuit - you owe this debt i/a/o $$$, you took out this loan, etc. 

[BV80]

1 hour ago, Around The Fur said:

They essentially copied the charges from the original court lawsuit - you owe this debt i/a/o $$$, you took out this loan, etc. 

Counterclaims can be made in arbitration just like can in court.

[shadow99]

17 minutes ago, BV80 said:

Counterclaims can be made in arbitration just like can in court.

They have to pay additional fees to make a counterclaim. Did they do that?

[BV80]

Just now, shadow99 said:

They have to pay additional fees to make a counterclaim. Did they do that?

I don’t know.  The OP would need to find that out.

[Around The Fur]

39 minutes ago, shadow99 said:

They have to pay additional fees to make a counterclaim. Did they do that?

To my knowledge, they have not. There is still a substantial bill outstanding that is due in a few days

[Bulldoger]

The o.p. started arbitration so they became the claimant,  if their claim was just violations by the plaintiff. The plaintiff now the respondent would have to file counterclaims to get the debt they are after.  IDK if that would require fees but I am sure they will pay them, as they have no other means to get an award for the debt.  

[Around The Fur]

On 8/8/2022 at 9:55 AM, shadow99 said:

They have to pay additional fees to make a counterclaim. Did they do that?

The JDB attorney has not paid anything other than the required deposit to this point, and the deadline is fast approaching.

In regards to the respondent filing counter claims, I pulled this statement from the JAMS website:  "No claim, remedy, counterclaim or affirmative defense will be considered by the Arbitrator in the absence of such prior notice to the other Parties, unless the Arbitrator determines that no Party has been unfairly prejudiced by such lack of formal notice."

No notice was given prior to them responding to my statement of claims. In addition, the attorney filed his answer to my statement of claims over a week past the deadline set by the arbitrator. Should I object here? Or just answer counter claims? 

Lastly, any recommendations on responding to the counter claims?  They are copied from the original court filing (you owe this debt i/a/o, etc.)

 

[Around The Fur]

I will also note that the attorney denied most everything relevant to violations on their part, even denying that the attorney himself is a party to the arbitration. Violations I listed involving the OC (credit reporting, etc) were answered by the attorney with statements like "I am not legally required to answer this question, but in abundance of caution, respondant denies allegations."

They also stated at end of counter claims that they are seeking full amount owed plus atty fees plus cost of arbitration. Not sure how to respond to that. Any help would be appreciated! 

[BV80]

40 minutes ago, Around The Fur said:

Violations I listed involving the OC 

What violations involving the OC?

 

55 minutes ago, Around The Fur said:

even denying that the attorney himself is a party to the arbitration.

How is the attorney a party to the arbitration agreement?

[Around The Fur]

3 minutes ago, BV80 said:

What violations involving the OC?

 

How is the attorney a party to the arbitration agreement?

OC still reporting on credit bureau (JDB also reported same debt) 

 

I listed the attorney as a representative of the respondant - which they denied 

[BV80]

6 minutes ago, Around The Fur said:

OC still reporting on credit bureau (JDB also reported same debt) 

 

I listed the attorney as a representative of the respondant - which they denied 

The JDB is allowed to report.  is the OC still reporting a balance?  Or does its balance show $0?
 

In regard to the attorney, just because he represents the respondent doesn’t necessarily make him a party to the arbitration agreement.  If you had an attorney representing you, it would not make your attorney a party to the contract or the arbitration provision.  

[Around The Fur]

6 minutes ago, BV80 said:

The JDB is allowed to report.  is the OC still reporting a balance?  Or does its balance show $0?
 

In regard to the attorney, just because he represents the respondent doesn’t necessarily make him a party to the arbitration agreement.  If you had an attorney representing you, it would not make your attorney a party to the contract or the arbitration provision.  

The OC is still reporting full balance