Your Name
Your Address
Re: Account # --------
Name of CA lawfirm
address
To whom it may concern,
The undersigned hereby refuses and objects to participation in any arbitration process for the following reasons.
(1) There were no existing or legitimate disputes between the parties at the time the claimant made the attempt to include any arbitration provision in any purported agreements.
(A) Additionally, if this clause was part of any original written agreements between the parties, it violates pending House Resolution 1433 /2007, ( Consumer Fairness Act) which amends Title 15 USC 1601 of the Consumer Credit Protection Act.
(B) It also violates amendments to the Federal Arbitration Act (S. 192) which make pre-dispute mandatory arbitration agreements in consumer credit contracts invalid and unenforceable.
(2) In addition, any arbitration forums chosen by the claimant are unfair and, unconstitutionally violate respondent's rights to due process and they constitute an unfair trade practice as recently established by the California Appellate court.
(A) "The arbitration agreement in a credit cardholder agreement is unconscionable and unenforceable, to the extent it prohibits class treatment of small individual claims, where presented as a 'take it or leave it' clause with no opportunity for negotiation" Szetela v. Discover Bank, No. G029323 (Cal. 4th App. Dist. April 22, 2002)
(B)The purported arbitration clause is not enforceable because it unconscionably requires the respondent to arbitrate in a distant state under an organization and rules designed to favor the purported lender.Patterson v ITT Consumer Financial Corp., 14 Cal. App. 4th 1659, 18 Cal Rptr 2d 563 (Cal App. 1993).
(a)Badie v. Bank of America, 79 Cal. Rptr.2d 273 (Cal. Ct. App. 1998) "The claimant has no authority to unilaterally change any terms of any agreements that may or may not exist between the claimant and respondent. The post-agreement, unilateral arbitration clause is unenforceable because it exceeds the unilateral right of one party to make subsequent, substantive, changes to the agreement, violates the implied covenant of good faith and fair dealing and because the resulting jury waiver was not unambiguous and unequivocal, as required to waive a constitutional right."
(3)In addition,mandatory arbitration may not be imposed without the MEANINGFUL consent of BOTH parties.
(A)The United States Supreme Court has repeatedly stressed that arbitration under the [Federal Arbitration Act (F.A.A.)] is a matter of consent, not coercion.
(a)Allied-Bruce Terminex Co. v. Dobson (1995) 513 U.S. 265, 270;
(b)First Options of Chicago, Inc. v. Kaplan (1995) 514 U.S. 938, 944;
(c)Mastrobuono v. Shearson Lehman Hutton, Inc. (1995) 514 U.S. 52, 55-56;
(d)Volt Info. Sciences, Inc. v. Board of Trustees (1989) 489 U.S. 468, 478.
(e) AT&T Tech., Inc. v. Communications Workers (1986) 475 U.S. 643, 648:
(4)A party cannot be required to submit to arbitration to any dispute which he has not agreed so to submit.
I therefore reiterate, I refuse to accept arbitration and dispute your claim in it's entirety.
Sincerely,
( sign your name)
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The following format may be used to prevent the entry of an arbitration award
, or to defend against an existing entry.
This is a GENERIC form, and you
MUST obtain your own Court's guidelines for submitting any motion.
Use the sections in ITALICS to replace the sections underlined
[Name]
[Address]
[City state zip]
[Phone]
[Creditor or Collector]
ATTN: [Attorney]
[Address]
[City state zip]
[Date]
Re: [Plaintiff v. Defendant]; Case No. _____
COURT
STATE
__________________________,
PLAINTIFF,
v. Case No. ___________
__________________________,
DEFENDANT.
_____________________________________/
DEFENDANT'S MOTION TO DISMISS APPLICATION TO CONFIRM ARBITRATION AWARD, VACATE ARBITRATION AWARD AND FOR STAY OF PROCEEDINGS
Now comes this defendant, [NAME], and respectfully moves this court to dismiss plaintiff's application to confirm arbitration award, vacate arbitration award and for stay of proceedings thereon for the reasons herein:
____________________________
COURT
________________________
STATE
Re:Notice Of Arbitration Award(attach copy)
MOTION TO BAR APPLICATION TO CONFIRM ARBITRATION AWARD, AND FOR STAY OF PROCEEDINGS
Now comes this defendant, [NAME], and respectfully moves this court to BAR any application to confirm attached arbitration award, and for stay of any proceedings thereon for the reasons herein:
1. There was no valid written undertaking to arbitrate. There was no authority to arbitrate since the alleged arbitration provision was induced prior to any disputes.
2. There was fraud in the inducement of that undertaking, as it was a contract of adhesion.
3.The dispute was nonarbitrable.
4. Arbitration was rejected (exhibits attached)
5. Plaintiff did not waive any notice requirements or participate in the arbitration proceedings.
6. The arbitral tribunal conducted its proceedings unfairly and at an incovenient venue in contravention of the FDCPA and State Consumer Protection Statutes.
7. The award obtained is contrary to public policy and consumer protection laws of the United States and of this State.
8. Plaintiff's objective in bringing this claim into arbitration was to unlawful ly escape the formal rules of evidence, discovery and due proccess. The arbitration process is inherently prejudicial to any defense because of these factors and substantially impairs any consumer defendant's right to a fair and impartial hearing.
WHEREFORE defendant respectfully requests an order dismissing plaintiff's application to confirm arbitration award, to vacate arbitration award and for stay of proceedings thereon.
WHEREFORE defendant respectfully requests an order barring any application to confirm this arbitration award, and to stay any proposed proceedings thereon.
DATED this ___ day of [month] [year].
________________
[Defendant]
[Address]
[City state zip]
CERTIFICATE OF SERVICE
I [defendant] hereby certify that a copy of the foregoing was mailed to plaintiff's attorney, [attorney], by first class mail to: [address; city state zip] this ___ day of [month] [year].
By _______________________
Add your State's Notarization Jurat Here:
________________________Signed
________________________Notarize
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