Author Topic: HIGHJACK: FDCPA -REGARDING Motion to Compel  (Read 525 times)

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Bellessima

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HIGHJACK: FDCPA -REGARDING Motion to Compel
« on: March 03, 2012 09:53:37 PM »
I made a mistake by filing a motion to compel private arbitration and not include the JAMS application.  The Attorney oppose my request and asked the court to proceed with court arbitration even though my CC states this cannot happen.  How do I fix this?

I also need the application for JAMS.

I have responded to the summons and filed a MTC and MTD.
The plaintiff responded  in opposition that i failed to that I failed to initiate the arbitration as provided by the terms of the CC agreement, specifically i failed to notify the arbitration administrators of my election of arbitration and failed to pay the initial arbitration fee. I attached the customer agreement that permits either party to initiate arbiitration at any time.  However, there are requirements that must be met before a pending action can be dismissed in response to an election to arbitration.Stated that I must pay the initial fee as provided in the agreement. Therefore Defndant is not entitled to have the case dismissed or to compel arbitration.

My CC agreement is BA 2003 which  STATES THAT: YOU UNDERSTAND AND AGREE THAT IF EITHER YOU OR WE ELECT TO ARBITRATE A CLAIM, THIS ARBITRATION SECTION PRECLUDES YOU AND US FROM HAVING A RIGHT OR OPPORTUNITY TO LITIGATE CLAIMS THRU COURT OR TO PARTICIPATE OR BE REPRESENTED IN LITIGATION FILED IN COURT BY OTHERS EXCEPT AS OTHERWISE PROVIDED ABOVE, ALL CLAIMS MUST BE RESOLVED THRU ARBITRATION IF YOU OR WE ELECT TO ARBITRATE.

I failed to submit the application for JAMS but question why this even went to court as mandatory arbitration initially submitted by the plaintiff.
I understand that this cannot be litigated thru the courts.   Please clarify this for me......

I want to respond and request another MTD based on the above statements in my agreement.
Plaintiff has also failed to verify that they own the debt or provide me with any signature of agreement.

Where do I go from here?  this is a first for me and I appreciate any assistance youu are willing to provide.  Thank you.   


howucantoo

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Re: HIGHJACK: FDCPA -REGARDING Motion to Compel
« Reply #1 on: March 03, 2012 10:41:02 PM »
This is a typical first responder.

Response is probably required its called brief in response to opponent's response. In the reply brief one can attach exhibits such as initiation /filings, card agreement  etc. It may also be wise to use case laws in support of .

Check RCP for response time to motions such as this. Reply brief usually has a short timeline like 9-14 depending on the state court rules and guidelines should be followed like any other motion filed in court. (filed, stamped send opponent a copy CMRR, etc).

In support it is a good idea to reference to case laws where arbitration in a written contract is unavoidable, irrevocable and binding in its terms and per FAA section 1-16 ,  Att vs Concepcions et al.(SCOTUS), Moses cone vs Mercury hospital (SCOTUS), etc. there are many useful cases to search.

What state ?

JDB or OC?

Does your court require motions to be scheduled & heard ?

I am not an attorney, just  type" A" personality.
If you need legal help, you should seek legal counsel.

KFMAN

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Re: HIGHJACK: FDCPA -REGARDING Motion to Compel
« Reply #2 on: March 03, 2012 11:10:14 PM »
MT Stay and Compel Arb seems to work better than MTD, but you need to stick to your guns because once either party elects it's over in court.  I think you have them on Breach of Contract and an FDCPA violation since they are still trying to litigate this issue.  If this was my issue, I would go ahead Initiate in JAMS arb and pay the fees. 

Does the contract have JAMS in it?

 

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