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[Tom Moore]

Hi guys:
I just discovered that OC got an outside attorney but has been unable to serve me with notice.  I change mail address sometime back. I found out researching Court Records,  should I call the attorney and inform him of my mailing address or let him find me?  Also I am thinking (not too clearly) that I should be proactive and do something though I don't know exactly what. The entry in the Court Records is entered as "Trial Delete" Any advise would be greatly appreciated. Happy Holidays.

[trueq]

You could send them a DV with an arbitration clause exercise in it.

That would waive their rights to proceed in court.

I've done it in 58 DV's.  0 lawsuits.

Waived 8 existing lawsuits out of court so far.   Only 2 are proceeding in JAMS right now and its SLOW and EXPENSIVE for Cap1!

[camanokat]

What is the arbitration clause that you include with your VOD letter? Do you have a sample to share?

[Kitten]

Many credit card agreements include a clause that mandates arbitration and revokes both parties' right to sue in court, often specifically naming a purposefully biased arbitration forum like the NAF.
Folks around here devoted a lot of effort to taking cases away from biased arbitrators and trying to get them heard in a court of law.

Earlier this year, the two main arbitration firms went down in a flurry of class action suits, and they aren't accepting new cases. So the latest trick is to show the court that the credit card agreement, an adhesive contract written by the company that is suing you, prohibits the company from suing you, and therefore you demand that the court case be dismissed and any further action take place before the NAF, which will refuse to take on the case.

[trueq]

Sample letter:

http://www.debt-consolidation-credit-repair-service.com/forums/showpost.php?p=1027530&postcount=11

Arbitration waives their right to that court's venue.   If you serve them the arbitration exercise before you are served, in theory, if you were served from that point forward, it would violate FDCPA.   (When their litigation rights are waived, its a false state court pleading to forward litigation.)

Send it certified return receipt and "duck" service until you get green card back.

It you get served before this, you will have to answer and possibly motion to compel arbitration.

Here are some results we have generated against Cap1 with arbitration exercise:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=299233

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=299152

Here's my VD (and DV) letter:

http://www.debt-consolidation-credit-repair-service.com/forums/showpost.php?p=1035950&postcount=6

I like VD because asserting arbitration clause today is like a disease that no amount of drugs can cure!    Litigating against you after exercising arbitration clause VIOLATES FDCPA.

Tee it up to avoid litigation on debt collection!


This is precisely why Cap1 is dropping it arbitration clause in a few days!

[restless native]

I have not been able to find if Citibanks terms and conditions have an arbitration clause. Were any of your filing sucesses against them??

[trueq]

Citibank does have arbitration.   AAA and NAF.

In my Citibank cases (2), Citi was ordered to initate the arbitration.   One problem with that....AAA or NAF will not take the arbitration.

14 months on stay nothing...until last week.  Lawyer dragged in for status conference and told Citi lawyer, he's got 60 days to initiate the arbitration or he's dimissing the cases.

I just sit back and watch them scramble!

Now, sometimes, judge will make you initate.   AAA will accept that, but Citi will get a $1700 bill for initial fees and consumer can get fee waiver for fees (which I have done twice).

That's a big fee stick for Citi to choke on!   

This is easy for me to say, if I ever get dragged through arbitration (which I never have with AAA or JAMS, because non consumer party never wants to pay for it) and lose...Wisconsin law still provides solid defense from confirmation under Coady vs. Cross Country bank.   There hasn't been a confirmed credit card arbitration award in WI in 3 years.

Here's what usually  happens...

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=299233&highlight=scoreboard

[alex04]

trueq:

I was served with this. I plan to exercise the arbitration with a different issuer. As for procedures  is this a one step or 2 step process? IE do I admit/deny/insufficient knowledge each of the following and then file motion to dismiss or can my answer just be the motion to dismiss due to the arbitration clause? Your insight is much appreciated, you are a pioneer.


Comes now plantiff, XXXXX bank by counsel, and for its claim against the defendant and states as follows....

1. The plantiff extended to dfd the use of its credit facilities pursuant to terms of its credit card term and conditions. A copy of credit card agreement is attached (way out of date 5yrs old+)

2. by retention and use of the credit card issued by Plantiff, the defendant agreed to pay for all monies advanced for goods and services charged in a timely manner.

3. The defendand has defaulted upon thier obligation to repay to the planfiff the monies advanced for the goods and services charged. As a result of the defendants default, the plantiff has accelerated the time for the balance to be due and owing in accord with the trerms and conditions set out in exibit A. (cardmember agreement, 5yrs old+)

4. there is currently due and oweing from the defendant to the plantiff the principal sum of XX,XXX, plus interest from Jan 2010 until the date of judgement at the statuatory rate of X% per anum, plus interest on the judgement at the statutory rate of XX% per annum. A copy of the defendants stmt of account is attached (last stmt)

5. Pursuant the terms and conditions the plantiff is additionally entitled to collect its attorneys fees incurred herin, as the plantiffs attny is not its regularly salaried employee.

6.Although due demand has been made upon the dfdt to pay the balance due and owing, the dfdt has failed and refused to do so.

Wherefore, plantiff demands judgement against dfdt. in prin sum of xx,xxxx, together with interest from Jan 2010 until the date of judgement at the statuatory rate of X% per annum, plus interest on the judgement at the statuatory rate of XX% per annum; for its costs incurred herein, including reasonable fee for its attorney; and for any and all other relief to which plantiff may appear entitled.

[trueq]

I'd answer,  assert arbitration exercise as One or your affirmative defenses...attach an arbitration election letter to answer.

Here's a sample...

http://www.debt-consolidation-credit-repair-service.com/forums/showpost.php?p=1027530&postcount=11

Then MTD or MTC...

You need to be careful if you go beyond this.   If you do anything other than answer and MTD, you can waive your right to arbitrate.

Its important to convince judge to order them to intiate that puts them in a box.

Read this:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=299152

[LUCKOFTHEIRISH]

Capital One doesn't seem to like arbitration. They served us in the beginning of January. We have a close friend, who is a lawyer, and we chose arbitration which we included in our answer.

Now the lawyers for Cap One didn't want to negotiate at first. They wanted all the money they allegedly claimed we owed, which was absurd. I told them I do not agree with what you claim we allegedly owe. After we chose arbitration, now Cap One wants to settle for thousands of dollars less. I will keep all of you updated.  I am not in any position to talk to them because we have a lawyer, so we have to have our lawyer talk to Cap One. But arbitration with Cap. One is a good thing if you had an account with them. They seem to want to avoid arbitration at all costs~!

[Mischievous Smurfy]

Luck you didn't read the entire thread....

They likely can't take you to arbitration because two of the three arbitors no longer take consumer credit cases and the third makes them pay hefty fees.

the downfall was that a state attorney general uncovered what the arb. thought was a carefully concealed chain of control of one of the arb. forums by one of the largest debt collection firms in the country.  So the inmates were running the asylum as it were.  to settle before it blew up in their face ... more than it already had ... the arb. agreed to stop accepting consumer debt cases as did one of their peers.


So ....  creditors who had arb. clauses had a stranglehold on the consumers because arb. was mandatory and they could BUY whatever ruling they wanted.    Now the tactic is to hold THEM to it ... two of the ones used will not take the case and they can't take it to court which means they are screwed.  Poetic justice at work.

The third arb. is still in the business but it is more expensive than they like..  and thats even IF that arb. was named.  If not, again, they are screwed. 



[side note:] I would love to know what was in AAA's closet that made them run for the hills before anyone even looked in their direction.

[nobk4me]

I would recommend filing a Motion to Dismiss, or in the alternative, a Motion to Stay Pending Arbitration.  That's what I did in my JDB case, in Ohio, and it worked.  The case has come to a grinding halt.

I think it's important to give the court the alternative of stay pending arbitration.  That's what was granted, not the MTD.  Even though I had solid ground for the MTD.  The case was filed in municipal court.  Under state law, an arbitration award can only be confirmed in a county court of common pleas, not a muni court.  And I found case law on my side.   So even if the JDB were to come out of arbitration with an award, what could they do with it?   Nothing in the muni court, as it lacked jurisdiction under state law.  Furthermore, the JDB attorney didn't even  bother to respond to my motion, so it should have been granted by default.    But for some reason the court didn't grant the MTD.

My state law on arbitration requires a court to stay pending arbitration if there is a contract with an arb clause.  There is no discretion, the statute says "shall stay."    And a decision either way is immediately appealable.

Check your state law on arbitration.  It may be similar, as I suspect the state laws are modeled on the Federal Arb. Act.

[itsmeagain]

Kudos mobk4me . . . . good point and spot on.

[itsmeagain]

Anything for Amex / American Express?

Hi Video and welcome.  Your post doesn't give much to respond to.  You have a question?