Author Topic: Battling Discover in CT Court - Stayed Pending Arbitration  (Read 4174 times)

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grandgnu

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Battling Discover in CT Court - Stayed Pending Arbitration
« on: September 19, 2012 04:04:43 PM »
My wife was facing a lawsuit by Discover for a credit card debt of around $9,000    After a lot of back and forth paperwork, she discovered the arbitration clause and requested it, so now their attorney has requested a limited stay pending "defendant's commencement of arbitration with JAMS within the next 30 days" and they also state "said stay should be lifted and the litigation continued if the defendant has not commenced arbitration within such time"

According to Discovers arbitration clause, they will pay your fee if you request them to do so.  My wife sent a letter to Discover at the address listed in their agreement for this request, as well as a copy to the court and the Plaintiffs attorney.

My wife is not in a position to pay the initial $400 non-refundable Case Management Fee that JAMS requests.  Any idea for the State of CT what she needs to do to press the issue onto Discover to file the arbitration with JAMS?  She already submitted a Motion to Compel to the court to have Discover enter into arbitration and pay the fees, below is a copy of the body of the Motion submitted, is there anything else she should do file (their Motion to Stay the case came after her Motion to Compel)


***********

DEFENDANT’S  MOTION TO COMPEL ARBITRATION


   The Defendant in the above titled action respectfully moves that Plaintiff be ordered to enter into Arbitration with Defendant outside of courtroom litigation to settle this matter, for Plaintiff to pay the fees and costs to JAMS to initiate this process, and for the court to Dismiss this case without prejudice in lieu of Arbitration.

  LEGAL STANDARD

Pursuant to Plaintiff’s own legally binding contract for credit card members:

Agreement to Arbitrate

If a dispute arises between you and us, either may choose to resolve the dispute by binding arbitration, as described below, instead of in court. Any claim (except for a claim challenging the validity or enforceability of this arbitration agreement, including the Class Action Waiver) may be resolved by binding arbitration if either side requests it. This includes claims and disputes relating to any other Account or agreement you have or had with us. THIS MEANS IF EITHER YOU OR WE CHOOSE ARBITRATION, NEITHER PARTY SHALL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. ALSO DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION.

Governing Law and Rules

This arbitration agreement is governed by the Federal Arbitration Act (FAA). Arbitration must proceed only with the American Arbitration Association (AAA) or JAMS. The rules for the arbitration will be those in this arbitration agreement and the procedures of the chosen arbitration organization, but the rules in this arbitration agreement will be followed if there is disagreement between the agreement and the organization's procedures. If the organization's procedures change after the claim is filed, the procedures in effect when the claim was filed will apply. For a copy of each organization's procedures, to file a claim or for other information, please contact:

AAA at 335 Madison Ave., Floor 10, New York, NY 10017-5905, www.adr.org (phone 1-800-778-7879) or JAMS at 620 Eighth Ave., Floor 34, New York, NY 10018, www.jamsadr.com (phone 1-800-352-5267).

If both AAA and JAMS are completely unavailable, and if you and we cannot agree on a substitute, then either you or we may request that a court appoint a substitute.
Fees and Costs

If you wish to begin an arbitration against us but you cannot afford to pay the organization's or arbitrator's costs, we will pay those costs if you ask us in writing. Any request like this should be sent to Discover, PO Box 30421, Salt Lake City, UT 84130-0421. If you lose the arbitration, the arbitrator will decide whether you must reimburse us for money we advanced for you for the arbitration. If you win the arbitration, we will not ask for reimbursement of money we advanced. Additionally, if you win the arbitration, the arbitrator may decide that you are entitled to be reimbursed your reasonable attorneys' fees and costs (if actually paid by you).


This is readily viewable on their website at
https://www.discover.com/credit-cards/cardmember-agreement/arbitration.html


ARGUMENT


Defendant is legally entitled to arbitration by Plaintiff’s own contract, in place of courtroom litigation, and is selecting this method for resolution of the dispute.

*****************

conrusco

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Re: Battling Discover in CT Court - Stayed Pending Arbitration
« Reply #1 on: September 19, 2012 04:57:05 PM »
Did you submit an order for the judge to sign if your motion was granted or did the attorneys submit the order?

Your order would have included that the OC would pay the arbitration fees.
If they did not then you could go back to the court to force them.

If the attorneys submitted the order without the clause to pay, then you will have to go back to court for another round to get them to pay according to the agreement.

trueq

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Re: Battling Discover in CT Court - Stayed Pending Arbitration
« Reply #2 on: September 19, 2012 05:20:00 PM »
Two points:

1.) Many times the lawyer in case has to prepare the order.   Normally, the winning lawyer prepares order, but many times judges order a lawyer losing to pro se to prepare the order.   This is ultimate insult to the lawyer.     Many times they do not want to file the proposed order.

So this means pro se' should prepare the proposed order.

2.)  In many states a ruling from the bench IS the order.   Reducing the order to writing is only a ministerial act in many states.    Meaning it is only a clerking type procedure.   The order is in effect the minute the judge gives the order from the bench.

I had a case where a written order for arbitration stay was not prepared, despite judge ordering it, orally, from the bench.   Debt collection lawyers thought they could ignore the ruling because there was not written order and proceeded to litigate.   Wrong decision.  Violating a court order can happen even if that order has not been reduced to writing.

Debt collectors were found "guilty" in arbitration of violating FDCPA and state law for violating court order to arbitrate.
My free speech is not legal advice.  If you need legal advice, you need to talk to a lawyer.

Litigation Defense record
Arbitration record:   9 wins * 0 loses
Court Record:         2 wins * 2 judgments (1 of the 2 judgments has been vacated, other judgment upheld on appeal, marked "satisfied", because I wrote a check.)

The one bank that beat me in court, I now have a $2200 limit credit card from them again.
Redemption is always possible.

bikeluver43

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Re: Battling Discover in CT Court - Stayed Pending Arbitration
« Reply #3 on: September 20, 2012 03:06:20 PM »
My wife was facing a lawsuit by Discover for a credit card debt of around $9,000    After a lot of back and forth paperwork, she discovered the arbitration clause and requested it, so now their attorney has requested a limited stay pending "defendant's commencement of arbitration with JAMS within the next 30 days" and they also state "said stay should be lifted and the litigation continued if the defendant has not commenced arbitration within such time"

According to Discovers arbitration clause, they will pay your fee if you request them to do so.  My wife sent a letter to Discover at the address listed in their agreement for this request, as well as a copy to the court and the Plaintiffs attorney.

My wife is not in a position to pay the initial $400 non-refundable Case Management Fee that JAMS requests.  Any idea for the State of CT what she needs to do to press the issue onto Discover to file the arbitration with JAMS?  She already submitted a Motion to Compel to the court to have Discover enter into arbitration and pay the fees, below is a copy of the body of the Motion submitted, is there anything else she should do file (their Motion to Stay the case came after her Motion to Compel)

The fee for JAMS is $250 not $400. I would file your demand leaving the claims blank (for your formal complaint later on). If possible send in at least $50 at first, you don't have to pay it all up front in most cases. Do a search for Linda7 as she has a lot of info on initiating JAMS. On everything you do, make copies for the court so they have record of you actually initiating Arbitration.

The OC probably won't pay your side, but JAMS does have fee waiver if you qualify.
Everything written by Bikeluver43 is 100% fictional and for entertainment only.

grandgnu

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Re: Battling Discover in CT Court - Stayed Pending Arbitration
« Reply #4 on: January 18, 2013 01:57:51 PM »
My wife sent letters to the attorney and to the address that Discover lists for paying to JAMS, but never received responses.  She then filed with JAMS and received a response from JAMS stating it was missing the initial filing fee.

She then sent return receipt certified mail to the attorney for Discover and their address for paying if you are unable to pay, and included the JAMS reference #.

Discover wound up ponying up the fees to get it started, which I believe were $250 for my wifes side and $450 for Discover.  JAMS states that in these cases the consumer is only responsible for the initial $250 fee and everything else is Discovers (but of course with Discovers wording of their arbitration clause they took responsibility of the $250 as well)

My wife then received a listing of six arbitrators, and was instructed by JAMS to strike two, and list the others in order of preference.  She then researched their bio's on JAMS site and struck the ones that appeared to lean more towards business, and ranked higher the ones who had a history of doing pro-bono work, consumer rights, etc. and wound up having her 2nd pick selected as the arbitrator.

In late December she received a copy of the initial invoice that Discover has to pay as a retainer for the arbitrator, and it was $2,500  (bear in mind that this case is for around 9-10 grand AND my wife is judgement proof because of her lack of income)  It's been three weeks and no update yet, so not sure if Discover will follow through and pursue this case further, or if they'll cut their losses and run.

Is there a specific timeframe to consider here?  Guessing my wife at some point should submit to the court a request to dismiss the case with prejudice if Discover fails to pony up the dough to continue the arbitration process?

trueq

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Re: Battling Discover in CT Court - Stayed Pending Arbitration
« Reply #5 on: January 18, 2013 02:43:54 PM »
When case manager wants to have a scheduling conference, thaat is a sign they paid retainer.

Many are shocked at this bill and they balk going further at this point (that means you win).

If they pay, schedule discovery the hearing, etc.   that will burn through the $2500. 

Wait until they get the second and third retainer bills.

JAMS arbitrations cannot be done for less than $15K in JAMS fees.

Sit back and wait.

Legal processes are a marathon, not a sprint.   This is where you sit on curb until the other guy catches up.
My free speech is not legal advice.  If you need legal advice, you need to talk to a lawyer.

Litigation Defense record
Arbitration record:   9 wins * 0 loses
Court Record:         2 wins * 2 judgments (1 of the 2 judgments has been vacated, other judgment upheld on appeal, marked "satisfied", because I wrote a check.)

The one bank that beat me in court, I now have a $2200 limit credit card from them again.
Redemption is always possible.

kevinmanheim

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Re: Battling Discover in CT Court - Stayed Pending Arbitration
« Reply #6 on: January 18, 2013 02:59:57 PM »
AND my wife is judgement proof because of her lack of income)
Get this part out of your mind. It doesn't matter to the OC, arbitrator or opposing attorney.

If you've filed and paid, I would just be quiet and wait. The OC will either pay or contact you about settling.

Do you have counterclaims? Being judgment proof is not a counterclaim. I would want counterclaims to use for settlement negoitiations.

howucantoo

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Re: Battling Discover in CT Court - Stayed Pending Arbitration
« Reply #7 on: January 18, 2013 03:15:00 PM »
While waiting, start working on the complaint , I don't know if the case is streamline or Comprehensive but your wife will have either 7 or 14 days to submit her complaint to JAMS.

I wouldn't wait for last minute to do this.

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

freedy

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Re: Battling Discover in CT Court - Stayed Pending Arbitration
« Reply #8 on: January 18, 2013 03:17:26 PM »
what are some of the more normal violations that can be sited?

howucantoo

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Re: Battling Discover in CT Court - Stayed Pending Arbitration
« Reply #9 on: January 18, 2013 03:21:24 PM »
Everything from federal and state consumer protection laws , Tort, Bank laws ( TILA).
I am not an attorney, just  type" A" personality.
If you need legal help, you should seek legal counsel.

duh

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Re: Battling Discover in CT Court - Stayed Pending Arbitration
« Reply #10 on: January 18, 2013 05:53:02 PM »
The fee for JAMS is $250 not $400. I would file your demand leaving the claims blank (for your formal complaint later on). If possible send in at least $50 at first, you don't have to pay it all up front in most cases. Do a search for Linda7 as she has a lot of info on initiating JAMS. On everything you do, make copies for the court so they have record of you actually initiating Arbitration.

The OC probably won't pay your side, but JAMS does have fee waiver if you qualify.

Link to Linda7 

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/
I am not an attorney. My posts about my experiences are for entertainment and  possibly educational purposes only.

If you need legal help, you should seek legal counsel.

siskelsghost

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Re: Battling Discover in CT Court - Stayed Pending Arbitration
« Reply #11 on: January 18, 2013 06:42:08 PM »
grandgnu, I just PM'ed you.

WinningTheBattle2010

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Re: Battling Discover in CT Court - Stayed Pending Arbitration
« Reply #12 on: January 18, 2013 07:10:27 PM »
I didn't see where the OP mentioned how old of a debt or last payment made date was.

Is this debt maybe SOL in your state?

Discover said I owed under 10,000.  I received the letter after SOLC in my state.  Waiting to see if any violations popup.
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I am not a lawyer, any/all information on my answers should be considered my thoughts only, Not Legal Advice.

grandgnu

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Re: Battling Discover in CT Court - Stayed Pending Arbitration
« Reply #13 on: January 18, 2013 07:42:23 PM »
Case is within SOL and we're using Comprehensive JAMS rules, not streamlined.  Need to look into it all further for claims, this is all still new to us.

siskelsghost

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Re: Battling Discover in CT Court - Stayed Pending Arbitration
« Reply #14 on: January 18, 2013 08:57:09 PM »
what are some of the more normal violations that can be sited?

TCPA can be a good one. Those violations can ad up into 10-20k.

Did they ever call your cell phone with an auto-dialer?

 

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