Arbitration Motion granted, but we must initiate!! HELP!

[trueq]

Its funny because its so true!

If you would EVER end up in front of a judge because you did not do a good enough JOB PRACTICING LAW FOR THE OTHER SIDE, get a good consumer attorney to eat that for lunch!

In my court, you can move to substitute the judge for any reason.

If you have to intiate arbitration....

concentrate on the proper claim....YOURS!

Remember over 50% of consumers win in JAMS....this is not like NAF!

Cap1 does fear that some of the stuff you throw against the wall may stick!

TAKE CONTROL!

[david9041]

Trueq ,They use the Agreement to hit us with all these outrageous charges including the lawyer fees , when I read the agreement it states in larger that normal letters :

IF YOU OR WE ELECT ARBITRATION OF A CLAIM , NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY

Please note the word ELECT , Why did their motion change the word to INITIATE ?

And this motion was made AFTER I ELECTED Arbitration .

I would love to charge them with Breach Of Contract .

[trueq]

Other side is framing the issue "election" means "initiation". They are doing that because they know initation for them is DEATH.

So their "framing the issue" is: election is initiation. (which is crap, because if it was, the word "election" loses all meaning.)

This is why its important for the consumer to "frame the issue"!

"Judge I'm not qualified to undertake such a complex legal operation."

"I don't have a claim to initiate, I'm not authorized to practice law for Mr. certified professional's client."

"Mr. certified professional over here should be the one to initiate such a complex proceeding, he's far more educated."

I still maintain this small, ALBEIT SOMEWHAT IRRATATING, judicial issue is not a big deal either way....BECAUSE YOU JUST COMPLETELY DENIED THEM ACCESS TO THE COURT!!!!!! (no matter who the judge orders to initate.)

Look at it this way.

If they have to initiate===Nothing happens, case is dead..

If you have to initiate===you get to file a big claim against them in JAMS...and its questionable their (counter)claim can or will be accepted in the filing.

I don't see a losing scenerio.

Remember. local counsel usually gets fired off case in the process. JAMS chief legal counsel, Jay Welsh, says banks are literally begging him to take debt collection arbitrations over past few months. Jay Welsh says they are not "drinking" on it!

If you "lose" the initiation argument in court... Just initiate with JAMS and file a big claim for you.

OR if you really want to grind the ax....

petition to appeal the "initiation" part of the order.

I know the "initiation" thing is irratating and all over the place, but what you think is a minor setback now, could pay you big later and leave you to wonder why I didn't initiate in all of them (which I'm starting to wonder myself now.)

You've made the mess for debt lawyer and Cap1, its a question of how much you want to pile on! I say grind the ax. file claims, make accusations, and make it about "evil monster mega bank".

[david9041]

Here is a copy of my motion , I clearly stated that I was ELECTING ARBITRATION , I even put it in bold letters and underlined it .
-------------------------------------------------------------------------------------------------------------------------------------- Date 10 / 14 / 2009

IN THE COUNTY COURT IN THE SIXTH JUDCIAL CIRCUIT IN AND FOR THE PASCO COUNTY , FLORIDA Case No.__51- 2009 - S C - xxxx -WS/S

CAPITAL ONE BANK
Plaintiff
Vs.
XXXX XX XXXXX
Defendant

MOTION FOR DEMAND TO INITIATE ARBITRATION

Pursuant to Agreement Arbitration Clause furnished by Capital One Bank , I XXXXX X XXXXXX hereby ELECT arbitration to resolve all disputes between us.


As you are aware, once arbitration is exercised by either party, pursuant to the agreement, both parties waive their right to litigation.

I expect dismissal of Case No.__51- 2009 - S C - XXXX- WS/S no later than 30 days from the receipt of this notice.

I also demand you immediately forward any amounts required in the contract and amendments to initiate my claims against Capital One Bank in the contract.


If you would kindly forward the agreement and ALL AMENDMENTS so we can determine what amounts Capital One Bank needs to forward to me for my claims in arbitration I would much appreciate it.



Thank You Sincerely
_________________________


XXXXX X XXXXXX
XXXX XXXX XXXXXXX
Port Richey , Florida 34668

[trueq]

When you have the hearing.

Just keep pounding the point. It uses "election" in this part of agreement and "initiation" in this part...

So judge "Election" and "initiation" are 2 different things.

Then go into my argument on how mr. Certified professional is smarter...etc.

JUST KEEP POUNDING SAME POINT OVER AND OVER.

Trust me, other side will squirm like a greased pig.

JUST KEEP POUNDING SAME POINT, DON'T GET OFF TOPIC, ESPECIALLY WHEN OTHER SIDE STARTS SCREAMING HOW YOU ARE JUST TRYING TO GET OUT OF PAYING THE CLAIM!!!!

[david9041]

Trueq , I am making up my claim for Jams now , I am still going to get it heard in Vegas , I've liked that idea sense you posted it a long time ago , I just want to jurk them around in the court first , and them giving me a time limit might be a good reason . I am going to file each case (4) by itself with JAMS , I asked for $10,000 Less the amount they are demanding ? To low ? To high ? and should I ask them to deduct their demand ?

[trueq]

punitive damages, etc.

If you only get 10% of it, you still get paid after claim offset.

As a rule of thumb, always claim 10 times what they want.

Think big.

Read up on FDCPA actual damages, state consumer law actual dmages, and damages in relation to deceptive trade practice acts.

Damages inlcude missed opportunity, did you miss saving $50,000 on your mortgage re-fi because of their deceptive statement...well that's $50,000 in damage plus your trauma from missing that event.

Get creative, that's what personal injury claims are all about!

[KentWA]

One big mistake Pro Se's make is not arguing all possibilities. In your original motion to compel arbitration, you should have argued very strongly why you should not be the one to initiate since it was a possibility that they would attempt to force you to initiate.

Are you submitting a motion? It looks more like a letter to the attorney. A motion is addressed to the court, not the oppsing side.

File a motion for reconsideration if you are within the time frame. Let the judge know that he has ordered you to unlawfully practice law for the other side since you believe you need to draft the plainiffs claim for them to forward the issue to arbitration. You are also having difficulty figuring out just what their claim is and how to frame it legally. Go on and on using some of the suggestions here.

Also in your motion bring up the contract language that they have to pay up front and ask that if the court will not change its determination that you initiate, that the court orders them to forward to you the initiation fee.

[lilq]

Yes, here's a tip for all of you going before a judge where the debt attorney will argue that election is initiation. That argument is easily batted down by saying your honor election and initiation don't mean the same thing and last I checked they never have. In the contract they are listed as two seperate actions and two separate paragraphs. The contract states I only have to elect in order to remove this from court, not initiate.

But the judge could argue, as was in my case, that in the Cap One contract it states the Captial One cannot initiate as long as it's before a court. And it's true that is in their contract but you must remind the judge that once he stays the case permanently it will no longer be in this court and then Capital One can initiate.

[david9041]

Originally Posted by KentWA

One big mistake Pro Se's make is not arguing all possibilities. In your original motion to compel arbitration, you should have argued very strongly why you should not be the one to initiate since it was a possibility that they would attempt to force you to initiate.

Are you submitting a motion? It looks more like a letter to the attorney. A motion is addressed to the court, not the oppsing side.

File a motion for reconsideration if you are within the time frame. Let the judge know that he has ordered you to unlawfully practice law for the other side since you believe you need to draft the plainiffs claim for them to forward the issue to arbitration. You are also having difficulty figuring out just what their claim is and how to frame it legally. Go on and on using some of the suggestions here.

Also in your motion bring up the contract language that they have to pay up front and ask that if the court will not change its determination that you initiate, that the court orders them to forward to you the initiation fee.

Thanks , I did it both ways , Letter , and motion , the letters I sent to Cap1 as the agreement stated , I bypassed the lawyers just to see who Cap1 would respond .
And I want to be the one to initiate so I can control everything . They filed a motion to Stay for 60 days but the judge has not ruled on their motion yet .
I talked to Jams , when I file I can use a waiver and they will bill Cap1 for everything .

[KentWA]

I would argue the issue stronger than that. State that the language is in there because election means that their right to litigate has been waived and the proper course of action is for them to dismiss the case and file with named arbitration forum. As an alternative Stay the case perminantly.

[trueq]

Precisely! Focus on dismissal!

Make other guy "glad" to initiate in exchange for saving the case with a permanent stay.

[david9041]

Originally Posted by KentWA

I would argue the issue stronger than that. State that the language is in there because election means that their right to litigate has been waived and the proper course of action is for them to dismiss the case and file with named arbitration forum. As an alternative Stay the case perminantly.

I did not know a Stay could be permanent , how would that work ? I still do not understand how they come up with 60 days where in our rules or laws do they find that? What if no time limit exists at all , that would be a good argument to make . If there is a limit I can't find it ?


Trueq , I told my wife you said we should think bigger , now she wants to make it 5 Mil , but I talked her down to the 100,000 , easy way to make 90,000 . The dread has turned into fun .

[david9041]

Originally Posted by KentWA

I would argue the issue stronger than that. State that the language is in there because election means that their right to litigate has been waived and the proper course of action is for them to dismiss the case and file with named arbitration forum. As an alternative Stay the case perminantly.

I forgot , If I argue that and I want to but what would I call it ? Maybe MOTION TO DISMISS and state my argument to Dismiss instead of 60 day Stay ? The agreement states it real clear , anything other than a Dismiss would be litigation .

[david9041]

Originally Posted by KentWA

I would argue the issue stronger than that. State that the language is in there because election means that their right to litigate has been waived and the proper course of action is for them to dismiss the case and file with named arbitration forum. As an alternative Stay the case perminantly.

How does this sound ?
OBJECTION TO PLAINTIFF'S MOTION TO STAY PENDING DEFENDANT'S INITIATION AND OUTCOME OF ARBITRATION


The Plaintiff's Motion to give the Defendant a time limit to initiate Arbitration is both unfair and unjust , Defendant has no control over the Arbitration Forum . When Defendant Elected Arbitration it stopped Plaintiff's right to litigation and Plaintiff demanding a time limit would be in fact litigation after Defendant ELECTED Arbitration . The Agreement is clear on this issue . Defendant begs this court to dismiss this case

[trueq]

Usually judge will stay case for 60 days for the party to initiate....

Once initiated and documents showing the arbitration has been initiated are delivered to the court, the court enters an order permanently staying the case pending outcome of binding arbitation.

some judges just stay it permanently off the bat and don't "give a rip" which party initiates.

Like I said, this initiation thing is all over the map, its how you deal with it is what counts!

[KentWA]

Argue every point and possible scenario in your motion. Typically your opposition to their motion can be something like 25 to 40 pages, USE THEM.

[trueq]

This issue of "initiation" will be one of a thousand roadblocks available to you in arbitration not available in litigation!