Author Topic: Being sued by Cach, LLC in Kentucky, they are represented by Taylor Law, PLLC  (Read 859 times)

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Gooberian00

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I'm trying to parse the Arbitration clause in the contract, while it does mention AAA specifically in the 2nd paragraph, the first just says a nationally recognized organization:



Quote
Arbitrations shall be conducted through a national arbitration organization with significant experience in financial and consumer disputes
(referred to as an “Administrator”). If more than one such Administrator is available to conduct a consumer credit card-related arbitration, the
Administrator shall be the one mutually agreed upon by you and us. Arbitration through an Administrator shall be conducted in accordance
with the arbitration rules and procedures of the Administrator which are applicable and in effect when the Claim is initiated (the “Arbitration
Rules”). For Arbitrations with an Administrator, the Administrator shall provide and designate a listing of potential Arbitrators to conduct the
arbitration. The Arbitrator shall be selected from the Administrator’s listing and will be the Arbitrator(s) mutually agreed upon by you and us.



If no qualified Administrator is available to conduct a consumer credit card-related arbitration, the arbitration shall proceed by an Arbitrator
without an Administrator. Arbitration without an Administrator shall be conducted in accordance with the rules and procedures of the
American Arbitration Association (“AAA”) in effect when the Claim is initiated, with the Arbitrator taking the place of the AAA therein (also,
the “Arbitration Rules”). For arbitrations without an Administrator, the Arbitrator(s) shall be mutually agreed upon by you and us.



Might JAMS be appropriate due to this language, or should I just go ahead and initiate through AAA?


I found this part interesting as well:

Quote
We will reimburse you for the initial arbitration filing fee up to $350 upon receipt of proof of payment, provided that you have initiated an
individualized proceeding in good faith and in accordance with this Agreement and provided that you have not initiated your proceeding in
concert with any other cardmember(s). All other fees will be allocated in keeping with the applicable Arbitration Rules and applicable law. We
will also advance or reimburse other fees if the Administrator or Arbitrator(s) determine there is good reason for requiring us to do so or if you
ask us and we determine there is good cause for doing so. Each party will bear the expense of the fees and costs of that party’s own attorneys,
experts, witnesses, documents and other expenses, regardless of which party prevails.



« Last Edit: March 16, 2017 05:05:19 PM by Gooberian00 »

Bruno the JDB Killer

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Yeah, I'd file a case with JAMS. Let them try to weasel out of their own wording.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Gooberian00

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I have a hearing to consider the motion next Monday.  Anyone have any advice for this?

BrokeBob

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Yes.

Did you file in JAMS yet?  If not, do so.

Have something that shows you filed in JAMS.  Show to the court that you already filed in JAMS.

I am NOT speaking from experience here, but the odds of getting an MTC ruled on favorably are probably better if you have already filed.  At that point, you are just asking the court to order you to do what you have already done. 

influx773

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    the question comes up yet again------I want to use my original 2009 agreement(one I signed up with) and they changed my CC# once or twice(with amendments of course....

     Also----
               Original contract precide over state law?(now there's a legal question) 
« Last Edit: March 22, 2017 08:15:16 PM by influx773 »

BrokeBob

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in general, the agreement that was in effect at the time of default is the valid agreement.

Gooberian00

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I had my MTC hearing yesterday and it seemed to go pretty good.  Cach or Taylor Law had retained a local attorney who appeared to have been emailed copies of the particulars.  He said he had been instructed to agree to a two month abeyance while I filed for an arbitration, then we would come to the court and I could prove I had entered into arbitration.

Now the interesting part was he pulled this paragraph out of the agreemeent:

Quote
“Ordinary Claims” are not subject to this arbitration provision and may be resolved through litigation. A Claim will be considered an “Ordinary Claim” if all three of the following are true: (1) the only remedy being sought for the Claim is monetary damages; (2) the recovery being sought for the Claim is less than $25,000, excluding interest and costs; and (3) the only parties to litigation to resolve the Claim will be you, us and/or Related Parties.

But then he proceeded to say that Cach was OK with me filing for arbitration...   With him saying that in front of the judge, did he just waive their right to pursue litigation once I show we are in arbitration?  Pretty confusing why he would bring that up if he wasn't going to fight the arbitration.

Also, this is unrelated to my case but there were 2 other motions before mine.  Both by LVNV Funding against 2 separate defendants, neither of whom were there.  I figured they just got hit with summary judgments which is pretty sad.

fisthardcheese

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  • They forced arbitration into your contract. Use it
I had my MTC hearing yesterday and it seemed to go pretty good.  Cach or Taylor Law had retained a local attorney who appeared to have been emailed copies of the particulars.  He said he had been instructed to agree to a two month abeyance while I filed for an arbitration, then we would come to the court and I could prove I had entered into arbitration.

Now the interesting part was he pulled this paragraph out of the agreemeent:

But then he proceeded to say that Cach was OK with me filing for arbitration...   With him saying that in front of the judge, did he just waive their right to pursue litigation once I show we are in arbitration?  Pretty confusing why he would bring that up if he wasn't going to fight the arbitration.

Also, this is unrelated to my case but there were 2 other motions before mine.  Both by LVNV Funding against 2 separate defendants, neither of whom were there.  I figured they just got hit with summary judgments which is pretty sad.

I would file arbitration and I would make sure that my claims are both: 1. seeking declaratory relief, and 2. seeking more than $25,000.

That will kill anything related to "ordinary claims".
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

Bruno the JDB Killer

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They may refuse to arbitrate per the language in the agreement and use that to take the case back to court. It is odd that they did not object to your MTC, but technically they don't have to. They may also object to the arbitration forum directly.

Your argument would be that the FAA case law says the court gets to determine whether or not a valid arb clause exists, which they did by granting your motion.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Gooberian00

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I'm preparing my JAMS filing, but the closest JAMS center to me here in eastern Kentucky is Atlanta, Georgia.  How would this work for getting a hearing?  Do they come here or I have to go there?

Thanks!

BrokeBob

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JAMS hearings have to be in or close to your home town. 

Gooberian00

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I have my court appearance in a couple weeks to show I am in arbitration, but I just received a notice from CACH's attorney that they are seeking Summary Judgement.  I don't see anything about when that motion will be heard though, so I wonder if this will be something I will need to defend against when I go back before the judge?

Their motion for summary judgment states that my answer was merely a general denial, Defendant has not created any genuine issue as to a material fact and they are entitled to Judgment.

They also included a page for Summary Judgement with a place for the Judge to sign and date but that is blank.  I don't see anything about this being stamped as filed and nothing actually from the court.

Will the court now rule on this even before I am supposed to go back to show I am in arbitration?