Author Topic: Being sued by Calvary/GE Capital Paypal  (Read 4466 times)

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YYaWannaNO

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Re: Being sued by Calvary/GE Capital Paypal
« Reply #30 on: September 28, 2017 09:18:20 PM »
So after racking my brain I came up with a somewhat clear argument for ARB -

Defendant’s response to Plaintiff’s Motion to Dismiss

The Defendant states as follows:

Defendant did not file a Motion to Dismiss. On July 24th, 2017, the Defendant filed a Motion to Compel private contractual arbitration (See Exhibit A attached)

In response to the Plaintiff’s claim that the attached document (Exhibit A) is not properly authenticated – The defendant has previously averred through a sworn affidavit (See attached Exhibit A, page 2) that this is a true and correct copy of the agreement that governs this account. The defendant reaffirms this position.

In response to the Plaintiff’s argument that the Defendant’s argument to compel arbitration fails because these terms specifically exclude small claims (see paragraph 2 of the first section of the terms presented)-

“We will not require you to arbitration (any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court of (2) a case we file to collect money you owe us…”
 Defendant objects with Plaintiff’s claim, “because these terms specifically exclude small claims”.  While the second paragraph states “We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court…”, the first paragraph also states, “If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or dealers/merchants/retailers that accept the card or program sponsors…”

The court ruling, decided February 23, 1983 states -
"Any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration, whether the problem at hand is the construction of the contract language itself or an allegation of waiver, delay, or a like defense to arbitrability." Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 24-25, 103 S. Ct. 927, 74 L. Ed. 2d 765 (1983).

WHEREFORE, Defendant respectfully requests that the Motion to Compel contractual arbitration be granted.


As I'm still new to this, I'm hoping this makes sense.  Whether the judge will agree is another matter, but at least I tried.  :)

CleaningUp

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Re: Being sued by Calvary/GE Capital Paypal
« Reply #31 on: September 28, 2017 10:38:42 PM »
Look up SCOTUS case ATT Mobility v Concepion, et al and add that to your reply.  It is more current and far more on point.


YYaWannaNO

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Re: Being sued by Calvary/GE Capital Paypal
« Reply #32 on: September 28, 2017 10:47:36 PM »
Thanks CleaningUp.  I had added ATT Mobility v Conception in my original motion.  Would it be repetitive if  I added it again?

CleaningUp

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Re: Being sued by Calvary/GE Capital Paypal
« Reply #33 on: September 28, 2017 11:33:46 PM »
Of course.  It is absolutely on point. 

And it is controlling.

Now, whether the judge buys it or not is another question.  If he doesn't he has made an error in applying the law, something that is ripe for appeal immediately after he closes the hearing.

YYaWannaNO

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Re: Being sued by Calvary/GE Capital Paypal
« Reply #34 on: October 06, 2017 09:06:40 PM »
So!  My motion was (not surprisingly) denied.  Though the judge did say that my argument was "well written".  Sadly, Cavalry guy's was better.  Oh well.  The judge did deny WITHOUT prejudice in case I want to give it another go so there's that.  Anyway, the judge gave Cavalry 30 days to send me ACTUAL proof that this debt is in fact mine.  In the meantime, what are my options to settle?  Are JDB's receptive to that?  Say if I offer them 40% in a lump sum.  If I can make this go away for $400, I'll gladly do it.  :(

kevinmanheim

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Re: Being sued by Calvary/GE Capital Paypal
« Reply #35 on: October 06, 2017 09:58:15 PM »
Did they explain why it was denied?

I would appeal to the higher court ASAP. You can immediately appeal a denied MTC arb. The appeal will stall the entire case, giving you time to strategize.

I would offer $0 to settle. 40% is absurd.

YYaWannaNO

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Re: Being sued by Calvary/GE Capital Paypal
« Reply #36 on: October 06, 2017 10:20:32 PM »
Did they explain why it was denied?

I would appeal to the higher court ASAP. You can immediately appeal a denied MTC arb. The appeal will stall the entire case, giving you time to strategize.

I would offer $0 to settle. 40% is absurd.

It was denied based on a few arguments -  I didn't attach the WHOLE agreement only the section with the ARB and that it's for a small amount (small claims).  Obviously, I'm going to wait and see what Cavalry is going to produce.  If $400 is absurd, maybe I should shoot for $150!  LOL!

kevinmanheim

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Re: Being sued by Calvary/GE Capital Paypal
« Reply #37 on: October 07, 2017 10:46:20 AM »
It was denied based on a few arguments -  I didn't attach the WHOLE agreement only the section with the ARB and that it's for a small amount (small claims).  Obviously, I'm going to wait and see what Cavalry is going to produce.  If $400 is absurd, maybe I should shoot for $150!  LOL!
I would file a claim against them for breach of contract, and then settle for them paying me $2000

BellEbutton

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Re: Being sued by Calvary/GE Capital Paypal
« Reply #38 on: October 07, 2017 05:44:15 PM »
I would file a claim against them for breach of contract, and then settle for them paying me $2000

How did they breach the contract?

kevinmanheim

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Re: Being sued by Calvary/GE Capital Paypal
« Reply #39 on: October 07, 2017 09:39:48 PM »
How did they breach the contract?
They didn't arbitrate per the contract they are basing their suit upon.

That breach has cost the OP money and other damages that are ongoing.


BellEbutton

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Re: Being sued by Calvary/GE Capital Paypal
« Reply #40 on: October 08, 2017 01:05:10 AM »
They didn't arbitrate per the contract they are basing their suit upon.

That breach has cost the OP money and other damages that are ongoing.

Does the contract state that arbitration is the only option?

kevinmanheim

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Re: Being sued by Calvary/GE Capital Paypal
« Reply #41 on: October 08, 2017 11:28:47 AM »
Does the contract state that arbitration is the only option?
The GE card agreements (pre-Synchrony) state:

"Upon demand, and except as otherwise provided below, you and we must arbitrate individually any dispute or claim"

I would sue Calvary for breach of contract, asking for damages in the amount of my costs to date, plus punitive damages. I would file a MTC arb within that case. I would add GE/Synchrony as a co-defendant, alleging GE routinely sells accounts to Calvary with the knowledge that Calvary attempts to avoid the terms of the contract, thus displaying gross negligence and breach of fiduciary duty to their customers.

BellEbutton

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Re: Being sued by Calvary/GE Capital Paypal
« Reply #42 on: October 08, 2017 04:26:08 PM »
The GE card agreements (pre-Synchrony) state:

"Upon demand, and except as otherwise provided below, you and we must arbitrate individually any dispute or claim"

I would sue Calvary for breach of contract, asking for damages in the amount of my costs to date, plus punitive damages. I would file a MTC arb within that case. I would add GE/Synchrony as a co-defendant, alleging GE routinely sells accounts to Calvary with the knowledge that Calvary attempts to avoid the terms of the contract, thus displaying gross negligence and breach of fiduciary duty to their customers.

Does the agreement also allow for court?  If so, they could not have breached the agreement by doing what the contract allows.  Do you have case law to support your claim.

You do know that in order to sue for breach of contract, there must be a contract between the parties.  By claiming Cavalry breached the contract, the consumer is admitting he opened the account.  He's also admitting that Cavalry owns the account.

As a result, all Cavalry has to do is show that the consumer was the first one to breach the contract by not paying his debt.  Look up court rulings on first breach.  Courts have ruled that a party who first breaches a contract cannot sue the other party for a later breach.

kevinmanheim

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Re: Being sued by Calvary/GE Capital Paypal
« Reply #43 on: October 08, 2017 11:26:42 PM »
The OP isn't going to win the case in arb.

The OP may be able to convince Calvary that it isn't worth pursuing the case. To do so, the OP needs to appear bigger as they back away from the bear.

CleaningUp

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Re: Being sued by Calvary/GE Capital Paypal
« Reply #44 on: October 09, 2017 02:25:37 AM »
By this time the bear knows how to play the game.