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Without seeing exactly what the contract says and exactly what the court order denying your request says, it is hard to answer. It may be that the court wanted you to appear "specially" to compel arbitration. In any event, I would not make any more motions in this matter. You are no worse off being in court. At the first hearing in the case ask the judge to send the case to mediation.
the arbitration states as follows:
1. “CARDMEMBER AGREEMENT AND DISCLOSURE STATEMENT” states under the ARBITRATION section on page page 13, “THE PARTIES ACKNOWLEDGE THAT THEY HAVE A RIGHT TO LITIGATE CLAIMS THROUGH A COURT BEFORE A JUDGE OR JURY. BUT WILL NOT HAVE THAT RIGHT IF EITHER PARTY ELECTS ARBITRATION THE PARTIES HEREBY KNOWINGLY AND VOLUNTARILY WAIVE THEIR RIGHTS TO LITIGATE SUCH CLAIMS IN A COURT BEFORE A JUDGE OR JURY UPON ELECTION OF ARBITRATION BY EITHER PARTY.
Plaintiff then just answered to Compel me to initiate arbitration.
then the judge comes up with some wierd stuff:
judge says this differs from the standard boiilerplate "mandatory" arb clauses.
he even states the aggreement reaffirms the right to litigation twice in the quoted paragraph
So, the card has the absolute right to sue you in court and your election of arbitration does not change that. The judge is right. This is NOt a mandatory arbitration clause. At best, XXXXX XXXXX hazy.
He further states" The defendant has not elected arbitration, perhaps because thedefendant has made no claim against hte plaintiff under the contract.
how bout I send verfication of debt letter, sent prior to the motion that clearly states to debt collector I wanted to elect arbitration.
The clause is ambiguous at best. Please take my advice. You are fighting for something you probably should not even want.
I am in receipt of your Summons and Complaint dated Jun 28, 2010. What I would first like to know is who are you? Where did you come from?. It sounds like HSBC Bank Nevada, N.A. has sold this account to you, a 3rd party interloper and YOU may be participating in FRAUD.
Are you the person that is accountable for this contract for which I am being offered, since your name is XXXXX XXXXX but no signature? I am not aware of any current Contractual relationship I may have with you or other RESPONDENTS’s named in the Summons and Complaint. If you can state your claim & provide that contract I have with you whereas there is a wet ink signature from the Claimant & someone from the RESPONDENT, I would be happy to settle this alleged account.
An underlying arbitration clause is associated with this claim; I hereby exercise it, and waive your litigation rights to this claim, per the underlying arbitration clause.
You cannot waive their right to litigate under this arbitration clause. Also, the terms and conditions of the card most likely state that when you first used the card, you agreed to all of the terms and conditions and that is what forms the contract.
I had also included in this verification of debt letter a self executing contract where if they failed to respond they entered into a tactic agreement to the conditional acceptance
You cannot make a contract based on some other party's failure to respond. "Tacit acceptance" is not recognized under the law of any state.
isn't that what is used to create the default summary judgements that often occur. it's part of the admistrative remedy
if a person does not respond to the dunning letter, it is then viewed as accepted by the same rule
a debt collector is then, supposedly, able to enter a civil suit.
YET, it seems that my letter to them, regardless of the imperfect language, does clearly state I elect arbitration.
at that point, the debt collector has to acknowledge that one of the parties has elected arbitration.
thus, when they replied, they didn't argue arbitration, but that I be compelled to initiate it.
I'm not making myself clear so I will try again. Sorry. The arbitration clause in the contract DOES NOT give you the right to choose arbitration by them as their exclusive remedy. You are in court on this matter and you are going to stay in court. It's time now to leave that issue behind and move on. As for "tactit acceptance", you are confusing what you did with the doctrine in law known as "account stated". "Account stated" means if somebody sends you a bill, and you do not dispute the bill, you are deemed to accept the amount of the balance on the bill. It has nothing to do with what you tried to do to them in your letter. What you tried to do is the same as sending somebody a letter that states "If you don't answer me in 7 days, you owe me $10,000". It DOES NOT work. Please take my advice above.
thanks for your input and advice
but to clarify, I believe the contact states either party
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