Are the Courts crooked or am I just stupid ?

[david9041]

I thought I understood Motions , I filed quite a few and was waiting for the court to hear them , nothing happened , then I learned in this site that I have to request a hearing so I did . The court then gave me a Hearing date for Dec. 14th . I thought now I understood .

Well now Cap1 files their Motions Oct. 23rd and the Judge grants their Motion Nov 4th , no Hearing or anything , the court never notified me of anything , I got the order granting it from Cap1 lawyers .

So I am missing something but what ? It's Florida court .

[scardKaren]

Originally Posted by david9041

I thought I understood Motions , I filed quite a few and was waiting for the court to hear them , nothing happened , then I learned in this site that I have to request a hearing so I did . The court then gave me a Hearing date for Dec. 14th . I thought now I understood .

Well now Cap1 files their Motions Oct. 23rd and the Judge grants their Motion Nov 4th , no Hearing or anything , the court never notified me of anything , I got the order granting it from Cap1 lawyers .

So I am missing something but what ? It's Florida court .

sorry.

[trueq]

FlaLawyer.

[FlaLawyer]

Originally Posted by david9041

I thought I understood Motions , I filed quite a few and was waiting for the court to hear them , nothing happened , then I learned in this site that I have to request a hearing so I did . The court then gave me a Hearing date for Dec. 14th . I thought now I understood .

Well now Cap1 files their Motions Oct. 23rd and the Judge grants their Motion Nov 4th , no Hearing or anything , the court never notified me of anything , I got the order granting it from Cap1 lawyers .

So I am missing something but what ? It's Florida court .

What was the title of the motion that was granted?

If you have not responded to discovery at all, it may have been an ex parte Motion to Compel. They have those south of I-4.

[david9041]

Originally Posted by trueq

FlaLawyer.

Yes I would think FlaLawyer will know , The Motions I am talking about are the 60 day stay Motions for my Arbitration demand , I got them today so 2 of my cases I can now file for Arbitration , I just don't understand how they got granted without a Hearing , I wanted to argue that they could not give me a time limit . I had even filed a Objection to their Motion , But it looks like the judge granted them before he got my Objection .

But the good thing is two cases are stayed and two more to go . I just hope JAMS does not want to bunch the 4 cases into one Arbitration . Can they do that ?

[david9041]

Originally Posted by FlaLawyer

What was the title of the motion that was granted?

If you have not responded to discovery at all, it may have been an ex parte Motion to Compel. They have those south of I-4.

It was PLAINTIFF'S MOTION TO STAY PENDING INITIATION AND OUTCOME OF ARBITRATION , I had demanded Arbitration , When they received my demand they filed the stay . That part worked good , but they gave me 60 days stay and I thought there would be a hearing . Can you somehow get a Motion granted without a Hearing . They told me they had not heard my motions because I did not ask for a hearing , so how could they get their Motion heard ?

They had a Hearing set for SJ so I sent my demand for Arbitration , I felt sure the Judge would grant the SJ . Trueq is right it stopped everything ( at least for 60 days )

[FlaLawyer]

Your court record does not show a signed order. Are you telling me you got an order signed (or stamped) by the judge? Are you sure you did not get a proposed order attached or included with the motion?

They may have appeared during the judge's ex parte hours and asked for the stay. It would not be unheard of as they are giving you what you seek, that being the chance to initiate arbitration. What did the plaintiff's motion say?

South Florida courts deal with arbitration on a regular basis. Up in the northern (should read as southern) part of the state arbitration is not a commonly used critter. You may look for a local administrative order or local court rule that covers arbitration and stays.

The only time I have had a dismissal of a case in response to a Motion to Compel Arbitration was on an Admiralty law matter over cargo. We were forced to go to London to arbitrate the dispute. Otherwise, a stay is usually issued for x number of days. The case continues in court if the party seeking arbitration does not get the ball rolling during that time period.

If JAMS, NAF, or AAA will not allow the plaintiff to arbitrate its collection case then it will return to the court and have the stay lifted and the case will proceed where it left off.

Also, does your arbitration agreement have the following language:

"We will not elect or initiate arbitration of any Claim brought in a small claims court (or the equivalent), so long as the Claim remains in that court, is made solely on behalf of an individual or joint Card holder and is not made as part of a class action, private attorney general action or other representative or collective action."

[david9041]

Originally Posted by FlaLawyer

Your court record does not show a signed order. Are you telling me you got an order signed (or stamped) by the judge? Are you sure you did not get a proposed order attached or included with the motion?

They may have appeared during the judge's ex parte hours and asked for the stay. It would not be unheard of as they are giving you what you seek, that being the chance to initiate arbitration. What did the plaintiff's motion say?

South Florida courts deal with arbitration on a regular basis. Up in the northern (should read as southern) part of the state arbitration is not a commonly used critter. You may look for a local administrative order or local court rule that covers arbitration and stays.

The only time I have had a dismissal of a case in response to a Motion to Compel Arbitration was on an Admiralty law matter over cargo. We were forced to go to London to arbitrate the dispute. Otherwise, a stay is usually issued for x number of days. The case continues in court if the party seeking arbitration does not get the ball rolling during that time period.

If JAMS, NAF, or AAA will not allow the plaintiff to arbitrate its collection case then it will return to the court and have the stay lifted and the case will proceed where it left off.

Also, does your arbitration agreement have the following language:

"We will not elect or initiate arbitration of any Claim brought in a small claims court (or the equivalent), so long as the Claim remains in that court, is made solely on behalf of an individual or joint Card holder and is not made as part of a class action, private attorney general action or other representative or collective action."

When they sent me copies of the Motions ( 2 motions 2 Cases) they sent an unsigned copy of Judge's order then a week later I received the orders with the Judges stamp ( from the lawyer not the court )

One Motion states " Upon notification by the defendant to this court that arbitration has been initiated , plaintiff will submit a notice of voluntary dismissal . But the second motion does not state that .

The agreement reads 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

That is why I wanted the hearing , note the word ELECT , not Initiate , I wanted to argue that point and also the 60 day limit , none of this is in the agreement

Tell me more about "----They may have appeared during the judge's ex parte hours "----- Are there times that you can just go in and see the Judge ?

[david9041]

By the way thats kind cool to be forced to go to London to arbitrate a dispute.
I hope you made a vacation out of it .

[trueq]

"If JAMS, NAF, or AAA will not allow the plaintiff to arbitrate its collection case then it will return to the court and have the stay lifted and the case will proceed where it left off. "

I have to disagree. The Cap1 agreement goes out of its way to invoke the FAA.

If neither of 3 will take, its up to CAp1 to suggest an alternate replacment forum that meets the rules of its 3 suggested "administrators".

I think consumer has a strong argument against the case being picked up where it left off, if Cap1 fails to do this.

Judge does not have power under Section 5 of the FAA to replace "Administrator" or "forum", just arbitrator.

According to NCLC, judge, under FAA, would either have to set up a "forum" or "administrator", similar to JAMS, NAF, or AAA (which will not happen), or strike the arbitration clause.

Such a strike of the contract language would be subject to appeal. In my state, it would likely strike the entire agreement.

[MG05]

Originally Posted by FlaLawyer

Also, does your arbitration agreement have the following language:

"We will not elect or initiate arbitration of any Claim brought in a small claims court (or the equivalent), so long as the Claim remains in that court, is made solely on behalf of an individual or joint Card holder and is not made as part of a class action, private attorney general action or other representative or collective action."

All Cap 1 Agreements have that language ...

[trueq]

from waiving Cap1 from small claims court.

[MG05]

I do not know you but I feel your pain. I would suggest taking a few deep breaths and relaxing with this. Now a novel thought in my opinion would be to have this case removed from your local court to Federal Court:

§ 4. Failure to arbitrate under agreement; petition to United States court having jurisdiction for order to compel arbitration; notice and service thereof; hearing and determination

A party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court which, save for such agreement, would have jurisdiction under Title 28, in a civil action or in admiralty of the subject matter of a suit arising out of the controversy between the parties, for an order directing that such arbitration proceed in the manner provided for in such agreement. Five days' notice in writing of such application shall be served upon the party in default. Service thereof shall be made in the manner provided by the Federal Rules of Civil Procedure. The court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement. The hearing and proceedings, under such agreement, shall be within the district in which the petition for an order directing such arbitration is filed. If the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue, the court shall proceed summarily to the trial thereof. If no jury trial be demanded by the party alleged to be in default, or if the matter in dispute is within admiralty jurisdiction, the court shall hear and determine such issue. Where such an issue is raised, the party alleged to be in default may, except in cases of admiralty, on or before the return day of the notice of application, demand a jury trial of such issue, and upon such demand the court shall make an order referring the issue or issues to a jury in the manner provided by the Federal Rules of Civil Procedure, or may specially call a jury for that purpose. If the jury find that no agreement in writing for arbitration was made or that there is no default in proceeding thereunder, the proceeding shall be dismissed. If the jury find that an agreement for arbitration was made in writing and that there is a default in proceeding thereunder, the court shall make an order summarily directing the parties to proceed with the arbitration in accordance with the terms thereof.


This is how I might handle the case and again I could be totally off but I think not many people working in the court system know all the laws, rules or regulations.

1. Motion your local court:

Pleading: Motion to Change Venue To Federal Court (Your Federal Court Name) and Motion to Stay Proceedings.


In your Pleading you must be specific to the fact that Plaintiff is breeching the intent of the Arbitration Provision in Contractual Agreement made by Defendant and Plaintiff when Plaintiff filed a pleading in local court limiting and changing the Arbitration Provision.

Additionally, The Defendant and Plaintiff agreed in the Contractual Agreement they will follow Federal Laws or Virginia Laws. The arbitration provision would then fall under the Federal Arbitration Act by the Contractual Agreement and by mere fact that Plaintiff conducts interstate banking and commerce and US Code is specific that:

§ 3. Stay of proceedings where issue therein referable to arbitration

If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration.


Nothing in this section allots for 60 days whatsoever and I believe if the pleading was well written you might stand a small chance to get a stay for you to file in Federal Court.

However the upside, if this is denied which I believe in my heart of hearts will happen. It is a huge step in your documentation in your claim against Capital 1 in arbitration for limiting a Contractual Agreement that both parties agreed and that a lawsuit was derived from. Can we say breech of contract or deceptive trade practices? Remember the arbitrator is not a Judge and can’t give you a judgment if you lose but a referee over a dispute between two parties.

I would start this Motion over the weekend and walk it to the court on Monday with a hearing notice. Get a hearing and argue these facts only to he judge. You feel the intent of the Contractual Agreement is being breeched and that you want this matter brought in front of the Federal Court as called for in the US Code.

Again, this is a huge long shot but you’re pro se and you can file these types of Motions and the plus side … the judge has to hear them. Don’t get flustered with all of this because in the end it will all work out.

[FlaLawyer]

Originally Posted by trueq

from waiving Cap1 from small claims court.

That would be correct, but it may place the election and initiation of arbitration on the consumer.

[trueq]

but 7 times of 10 neither the judge or opposing counsel reads the clause!

I "got away with it" (forcing citibank to initate) in one case with a citibank small claim.

Opposing counsel realized it in the hallway after court order was entered. He said to me, "you are lucky I didn't read this part." I then said, "You sued me for breach on a contract you didn't read to reasonably assess whether it was in breach." He smiled and walked away.

Nothing from that lawyer in over 10 months.

[MG05]

Originally Posted by FlaLawyer

That would be correct, but it may place the election and initiation of arbitration on the consumer.

I would tend to agree with that however I don’t believe the Plaintiff can change the intent of the arbitration provision. I think the minute a pleading attempting a change or limiting the arbitration agreement was produced in local court you could somehow work your way out of local court and into Federal Court. US Code seems very specific that any disagreement with arbitration provision can be moved to Federal Court. Again, I think that is a long shot but a definite pleading that would have the court and opposing council scratching their heads over.

[FlaLawyer]

Originally Posted by trueq

Such a strike of the contract language would be subject to appeal. In my state, it would likely strike the entire agreement.

Is there a severability clause in the contract? This may preclude striking the whole contract.

[trueq]

if the contract is subjected to my state's consumer law.

Granted, WI is only 1 of 50 states. It takes only 10 days to become a WI resident.

[david9041]

I will be interested to see the proper agreement , they keep sending a 2005 agreement , during the hearing I asked the Judge to force them to produce the proper one , The plaintiff was on the phone , he told the Judge he would produce it and then he sent another 2005 agreement , that was one of the other cases , but in all 4 cases the alleged accounts were years before that 2005 agreement and in every case they sent the wrong agreement . JAMS told me to just send the one they gave me and they would make sure they furnished the correct one .

Another thing that seemed strange was I wanted to be sure there was a direct link between Cap1 and the lawyers( I still thought the might be JDB's ) so I sent the Demand for arbitration in one case to Cap1 and then a demand for arbitration in a different case to the lawyers . Well the lawyers put in Motions to Stay immediately on both cases which told me they do have a direct link but why did they make the statement -------Upon notification by the defendant to this court that arbitration has been initiated , plaintiff will submit a notice of voluntary dismissal----- in the one I sent to the lawyers and not in the one I sent to Cap1 ?

Does that mean anything at all ? The second thing I want to pin down is if the lawyers do something illegal while they are acting on Cap1's behalf is Cap1 libel for the act the lawyers committed ?
I'm talking about Fraud Upon The Court ( submitting false evidence to the court that they knew or should have known was false )

In my request for ADMISSIONS I asked :

3 . Admit that Plaintiff submitted the falsified Verified Return Of Service to the Court in an act of Ambush on 7 / 23 / 2009 at the pretrial Hearing .



4 . Admit that Plaintiff was requested by Defendant to withdraw this false evidence .



They denied no# 3 ( if they submitted it without letting me see it that is considered Ambush correct? ) , and in No# 4 they admitted I requested but denied it was false .



So I guess I am going to have to place criminal charges against the Server before they are going to admit the evidence is false . I guess it is not enough with me giving them the proof that it was false evidence . ( we were not even in the State of Florida )



I think Trueq is correct , we are far better off in arbitration than in Court .

[MG05]

David9041

File the JAMS Complaint and just hit them with everything you can. I think that in your case the court is just not friendly for you. I think you need to get past the service of the summons and now concentrate on filing the JAMS complaint. Once you have initiated with JAMS go back with a Motion to Stay Proceedings until the completion and award of arbitration. I think the court in your case is just not going to be receptive to anything else. I will PM you a pleading concerning motion to compel arbitration and a motion to stay. Really you need to get past everything else and file your JAMS complaint. Focus on the task at hand … you have 60 days to initiate arbitration or I feel the court will place a judgment on you.