Author Topic: being sued by Zwicker/American Express  (Read 11029 times)

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Bruno the JDB Killer

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Re: being sued by Zwicker/American Express
« Reply #45 on: October 22, 2016 06:51:23 PM »
Correct. JAMS will bill them and send a copy of the demand.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

kevinmanheim

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Re: being sued by Zwicker/American Express
« Reply #46 on: October 23, 2016 12:21:59 AM »
I'm a little confused now. I'm sending the completed Demand for Arbitration to JAMS and I efile to the court my motion to compel arbitration, correct?  And then I just send a copy of the demand for arbitration to the attorny along with a brief letter explaining that I have initiated arbitration?
Read the JAMS demand instructions. Do exactly what they indicate.

https://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf

CMRRR everything to JAMS and the attorney. Expect the attorney to deny receipt of the demand. Save all USPS receipts as proof.

File copies of the JAMS paperwork with the court. 


tndebtor

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Re: being sued by Zwicker/American Express
« Reply #47 on: October 23, 2016 02:52:15 AM »
I'm a little confused now. I'm sending the completed Demand for Arbitration to JAMS and I efile to the court my motion to compel arbitration, correct?  And then I just send a copy of the demand for arbitration to the attorny along with a brief letter explaining that I have initiated arbitration?

Mail a copy of the Demand to the atty CMRRR and mail the original Demand To JAMS CMRRR. You will mail copies of the RRR cards when you get them back to JAMS proving you served atty. As for court, you can give them a copy of your Demand and a copy of the certified mail that shows you sent it to the attorney. You can give them a copy of the RRR cards as well once you get them back through the mail.  Keep in mind anything you want to be evidence in court has to be accompanied by an affidavit.

kevinmanheim

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Re: being sued by Zwicker/American Express
« Reply #48 on: October 23, 2016 01:47:26 PM »
You haven't yet filed a Motion to Compel Arbitration with the court?

If not, this is what you need to do:

1- Fill out the JAMS demand. Follow the instructions.

2- CMRRR the JAMS demand to JAMS and the attorney for the creditor. Make sure to follow the JAMS instructions for including copies of the contract, payment, etc.

AT THE SAME TIME --

3- File your MTC Arb with the court. Attach a copy of the JAMS demand form to it as an exhibit. Attach a copy of the certified mail receipt showing that you sent the JAMS demand to the attorney.

When the green CMRRR cards come back to you --

4 - Send JAMS a copy of the green card showing that the attorney was served.

5 - Save the originals of the green cards to have as proof that you filed with JAMS, and served the attorney.

tvaughn

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Re: being sued by Zwicker/American Express
« Reply #49 on: October 23, 2016 09:58:13 PM »
Thank you all. I'm going to try to send the demand for arbitration in as soon as possible.

tvaughn

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Re: being sued by Zwicker/American Express
« Reply #50 on: October 24, 2016 02:57:18 PM »
Hi guys.  I am sitting down at my computer right now trying to get everything in order here so that I can mail it out today, and I am feeling a bit overwhelmed.  I'm reading through this forum and there almost seems to be too much information here, and I feel like I'm getting things mixed up.

I understand that I have to fill out the Demand for Arbitration form and send it to JAMS, the attorney for the creditor and to the court when I file the motion to compel arbitration; however, I'm a little unclear about exactly how much detail I need to put in the nature of dispute section on the Demand for Arbitration form.

I'm also not exactly clear which Motion to Compel Arbitration template I should be using.  I found this one from howucantoo but I'm not sure if this is correct for my specific circumstance:

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND
DISMISS
OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING
ARBITRATION





NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about ___________, 2015, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2015, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

(c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.


5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute in JAMS.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.



Respectfully submitted this day ________________, 2015


(Your name typed), Defendant, pro se




VERIFICATION BY AFFIDAVIT
Personally appeared before me, the undersigned, who on oath states that the facts set forth in this MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of (his/her) knowledge and belief.



_______________________________________
XXXXXXXXXX, Defendant Pro Se


Witness my hand and official seal this the _________ day of __________, _________.



(SEAL)

____________________________________
Notary Public

My Commission expires:

____ / ____ / ________.



I CERTIFY that I mailed (personally handed)  a copy of this MOTION to:

XXXXXXXXXXXXXXXXX., Plaintiff's attorney
Their address


By: Your name typed, Defendant

Date: __________________, 2015


This template requires a notary and obviously I would need to alter the template as needed.  Is there a different template that is perhaps more simple that doesn't require a notary though?  I don't want to send the wrong thing and mess everything up for myself.  Also, do I need to include something in the MTC arbitration letter about the fact that I elected arbitration in my DV letter and they chose to ignore it and sue me anyway?
« Last Edit: October 24, 2016 03:16:37 PM by tvaughn »

Bruno the JDB Killer

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Re: being sued by Zwicker/American Express
« Reply #51 on: October 24, 2016 04:17:49 PM »
Use her template, just change it. All you need for a reason is to say the credit card agreement says you are entitled to arbitration to resolve any dispute, no matter who instigates it.

Electing and filing are two different things. If you didn't follow through in a reasonable time, they can sue you.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

tvaughn

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Re: being sued by Zwicker/American Express
« Reply #52 on: October 24, 2016 04:19:50 PM »
Thank you Bruno.  Does it really need to be notarized though?  I'm trying to save myself as much time as possible here because it's getting down to the wire.

Do I need to include some type of cover letter when I mail the MTC letter to the court? It seems kind of odd to be sending just the letter with nothing else attached other than the cardmember agreement and a copy of the DV letter I sent to the attorney.
« Last Edit: October 24, 2016 04:40:29 PM by tvaughn »

Bruno the JDB Killer

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Re: being sued by Zwicker/American Express
« Reply #53 on: October 24, 2016 05:17:42 PM »
No letters, just the motion. Notarize the affidavit part.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

tvaughn

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Re: being sued by Zwicker/American Express
« Reply #54 on: October 24, 2016 10:22:16 PM »
Thank you so much everyone!!!  As of today, October 24, 2016, I have sent everything to JAMS, the attorney and the court. I guess all I have to do now is wait for the green cards to come back and then send JAMS a copy of the green card that proves that I served the attorney.

tvaughn

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Re: being sued by Zwicker/American Express
« Reply #55 on: November 05, 2016 09:01:51 PM »
Today, November 5, 2016, I received a letter back from the court saying that my documentation has "been received but not filed pursuant to R.1:5-6(c) for the following reason(s):

1.  Fee not paid (no signed check enclosed):  Motion fee is $50.00
2.  Motion also needs a form of order to be signed by the judge.

#1 sounds easy enough to rectify. I will call the court on Monday and ask them who to make the check out to and where it should be sent. 

What do I need to do to satisfy #2 though?  Should I just ask them that when I call to ask about the check or do you guys already know what I need to do?

bdrew6

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Re: being sued by Zwicker/American Express
« Reply #56 on: November 05, 2016 10:57:39 PM »
Your in NJ right?  You can file for an IFP motion if you cant/dont want to pay the court fee.

A proposed order is just that.  They want a order that the judge can sign off if he approves the arb motion so the judge/clerk doesnt have to type it out them-selfs.

I attached a random proposed order for arb; just tailor the language, a lot of  court websites even have blank forms to use.  Also, if you want I attached the fee waiver.
(Pro se) BK chap 7 {discharged}
(Pro se) 3 TCPA  {2 settled, 1 win (Federal)}
(Pro se) 1 FDCPA {1 settled}
(pro se) 1 AAA Arbitration {1 settled}

tvaughn

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Re: being sued by Zwicker/American Express
« Reply #57 on: November 07, 2016 12:41:49 AM »
@bdrew6:  Thank you. Yes, I am in NJ.  Is filing for a few waiver frowned upon?  I mean I would rather bit have to pay the $50, but will it effect the decision they make?  Or does it not even matter since the arbitration clause does apply and they has to dismiss the case regardless?

bdrew6

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Re: being sued by Zwicker/American Express
« Reply #58 on: November 07, 2016 04:42:26 AM »
No, I've done IFP waivers myself multiple times. Most courts don't really care, just some courts are harder to get approved then others.
(Pro se) BK chap 7 {discharged}
(Pro se) 3 TCPA  {2 settled, 1 win (Federal)}
(Pro se) 1 FDCPA {1 settled}
(pro se) 1 AAA Arbitration {1 settled}

tvaughn

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Re: being sued by Zwicker/American Express
« Reply #59 on: November 07, 2016 04:37:20 PM »
@bdrew6:  Thank you again.  I will be sending out the fee waiver and the proposed order today.