abrelosojos Posted February 23, 2022 Report Share Posted February 23, 2022 Hello, I am being sued in small claims court by Midland Financial in Georgia for a Comenity credit card debt. I've already attended a mediation meeting where the lawyer for the Law Offices of Emmet Goodman Jr. agreed to a dismissal without prejudice after I stated I wished to take the arbitration route. This was 2 weeks ago. I checked my court's online case page and now it appears I have a non jury trial date set for May 6th. How should I proceed? Also I cannot find my original comenity credit card agreement but the ones provided online seems to be amended and have a carve out for small claims. Can someone verify and if there is a carve out, how should I proceed? Thanks to all in advance! J Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted February 23, 2022 Report Share Posted February 23, 2022 2 minutes ago, abrelosojos said: I've already attended a mediation meeting where the lawyer for the Law Offices of Emmet Goodman Jr. agreed to a dismissal without prejudice after I stated I wished to take the arbitration route. This was 2 weeks ago. I checked my court's online case page and now it appears I have a non jury trial date set for May 6th. How should I proceed? Did you start arbitration after they agreed? If not, you need to do so immediately. If the opposing party agreed then they waved their right to the carve out if it exists. Quote Link to comment Share on other sites More sharing options...
abrelosojos Posted February 23, 2022 Author Report Share Posted February 23, 2022 I have not, but I will get on it ASAP. The mediation was "moderated/mediated" by a court appointed mediator. I was present, the lawyer "present" via zoom video call. Once I stated my intent to arbitrate, the lawyer changed his tune immediately and agreed to a dismissal without prejudice. Since leaving the mediation, I have not received any documents stating that it was dismissed without prejudice. Would I fill out the AAA arbitration form, send a copy of the credit card agreement and the arbitration form to the lawyer? Thanks in advance Quote Link to comment Share on other sites More sharing options...
abrelosojos Posted February 23, 2022 Author Report Share Posted February 23, 2022 9 minutes ago, Clydesmom said: Did you start arbitration after they agreed? If not, you need to do so immediately. If the opposing party agreed then they waved their right to the carve out if it exists. Does a carve out exist in my case with the comenity credit card agreement? I've searched high and low for the cc agreement that pertains to the time frame of when I opened my card initially but have not been successful. As it states, this will be a non jury trial. Will it be possible to appeal for a court trial via the higher courts to ask for arbitration? Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted February 24, 2022 Report Share Posted February 24, 2022 3 hours ago, abrelosojos said: Since leaving the mediation, I have not received any documents stating that it was dismissed without prejudice. There is NO chance they will dismiss until served with the notice from the arbitration forum that you have opened a case. They do not want to have to start over with the suit if you are bluffing. Since you demanded arbitration you need to open the case. 3 hours ago, abrelosojos said: Would I fill out the AAA arbitration form, send a copy of the credit card agreement and the arbitration form to the lawyer? Fill it out and file it with AAA and send copies of everything to the attorney on record. 3 hours ago, abrelosojos said: Does a carve out exist in my case with the comenity credit card agreement? I cannot tell from that screen shot. You need the card agreement from the year you defaulted or the one from the previous year if that was the last updated one. Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted February 24, 2022 Report Share Posted February 24, 2022 3 hours ago, abrelosojos said: Will it be possible to appeal for a court trial via the higher courts to ask for arbitration? In Georgia if you lose at Magistrate Court it is a trial de novo (a complete do over) at the state court level. The problem is you may be required to post an appeal bond in the amount of the verdict before they let you do the appeal. Quote Link to comment Share on other sites More sharing options...
abrelosojos Posted February 24, 2022 Author Report Share Posted February 24, 2022 58 minutes ago, Clydesmom said: There is NO chance they will dismiss until served with the notice from the arbitration forum that you have opened a case. They do not want to have to start over with the suit if you are bluffing. Since you demanded arbitration you need to open the case. Fill it out and file it with AAA and send copies of everything to the attorney on record. I cannot tell from that screen shot. You need the card agreement from the year you defaulted or the one from the previous year if that was the last updated one. The cc agreement states "We will not demand to arbitrate an individual Claim that you bring against us in small claims court or your state’s equivalent court, if any. But if that Claim is transferred, removed or appealed to a different court, we then have the right to demand arbitration" Quote Link to comment Share on other sites More sharing options...
BV80 Posted February 24, 2022 Report Share Posted February 24, 2022 8 hours ago, abrelosojos said: The cc agreement states "We will not demand to arbitrate an individual Claim that you bring against us in small claims court or your state’s equivalent court, if any. But if that Claim is transferred, removed or appealed to a different court, we then have the right to demand arbitration" What is your question about that section? Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted February 24, 2022 Report Share Posted February 24, 2022 14 hours ago, abrelosojos said: The cc agreement states "We will not demand to arbitrate an individual Claim that you bring against us in small claims court or your state’s equivalent court, if any. But if that Claim is transferred, removed or appealed to a different court, we then have the right to demand arbitration" That means they cannot force you to arbitrate if you were to sue them. CHASE has done that to consumers at great expense to the customer just to make them pay for challenging them. In order to say whether there is or is not a carve out we need to see the ENTIRE arbitration clause not that one section. Quote Link to comment Share on other sites More sharing options...
nobk4me Posted February 24, 2022 Report Share Posted February 24, 2022 I'm not familiar with GA law, but wouldn't the OP need to file a MTC Arb? Instead of just filing in the arb forum? Unless I missed something here, it looks like the OP just told the creditor attorney that he/she wants to do arb. Not that an arb motion was filed. Quote Link to comment Share on other sites More sharing options...
Clydesmom Posted February 24, 2022 Report Share Posted February 24, 2022 1 hour ago, nobk4me said: I'm not familiar with GA law, but wouldn't the OP need to file a MTC Arb? Instead of just filing in the arb forum? Unless I missed something here, it looks like the OP just told the creditor attorney that he/she wants to do arb. Not that an arb motion was filed. No. Magistrate Court does not allow discovery or motions in advance. It is all done on the day of trial. If the OP does not open arbitration before the trial date then they will go ahead with the trial at that time. If the arb case is started they will issue a stay pending arbitration. Quote Link to comment Share on other sites More sharing options...
abrelosojos Posted February 24, 2022 Author Report Share Posted February 24, 2022 10 hours ago, BV80 said: What is your question about that section? My question is, is this a carve out that will prevent me from requesting a MTC before the magistrate in small claims court. TIA. Quote Link to comment Share on other sites More sharing options...
BV80 Posted February 24, 2022 Report Share Posted February 24, 2022 4 minutes ago, abrelosojos said: My question is, is this a carve out that will prevent me from requesting a MTC before the magistrate in small claims court. TIA. No. It states that if YOU bring a claim against them in small claims, they will not force you to arbitrate. You did not bring a claim against them. They filed one against you. Quote Link to comment Share on other sites More sharing options...
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