RESPONDENT by sofiaie


									                            IN THE NATIONAL ARBITRATION FORUM

 [Respondent’s Name]
 c/o [Street and Number]                                MOTION TO DISMISS FOR LACK OF
 [City, State and Postal]                                JURISDICTION; OBJECTION TO
 [Telephone Number]                                             ARBITRATION


 [Claimant’s Name]                               Forum File Number: XXXXXXXXXXXXXXX
 c/o [Claimant’s Attorney’s Street and           Account Number: XXXX-XXXX-XXXX-XXXX
 Number]                                         Cert. Mail: XXXX-XXXX-XXXX-XXXX-XXXX
 [City, State and Postal]
 [Telephone Number]


              COMES NOW, Respondent, and hereby DEMANDS, without subjecting to the

jurisdiction of this Forum, that pursuant to the Forum’s own Code of Procedure, Rule 18 D, that the

FORUM hear and make ruling prior to the appointment of an Arbitrator upon the following Motion to

Dismiss this action for lack of subject matter jurisdiction.

              I, [Respondent’s name], Respondent, hereby declare and state with supporting authority:

              1.       That the original agreement I entered into with Claimant did not contain any

provision of arbitration, or any provision that allowed for amendments or new terms to be added, such as

binding arbitration;

              2.       Notwithstanding the information above, I have never been notified or received any

purported amendment, let alone an amendment containing an arbitration clause that would deprive me of

my right to a trial, nor have I ever been given any opportunity to opt out of any such change of terms;

                                       Motion to Dismiss - Page 1 of 9
              3.      That there is no agreement between the parties to resolve a dispute using

arbitration or the National Arbitration forum (Hereinafter “Forum”), or any other Arbitration forum, or

at all;

              4.      That this Motion to Dismiss should not be construed as a submittal to Arbitration

in any way whatsoever, and that I object to any such arbitration proceeding;

              5.      That the National Arbitration Forum would be acting illegally and without subject

matter jurisdiction by proceeding on Petitioner’s claim;

              6.      That I discharge and prohibit the Forum from making any award or taking any

other action whatsoever, except to dismiss the case for lack of jurisdiction.


              The original agreement between Petitioner and Respondent did not contain any clause or

provision that would permit either party to utilize the National Arbitration Forum to resolve a dispute.

Likewise, the original agreement did not contain any Delaware Choice of Law provision that would

permit Petitioner to argue the ability to make an amendment pursuant to Delaware law. If Petitioner

wishes to assert differently, it bears the burden to show the parties originally agreed to a Delaware

Choice of Law provision to govern the agreement, not by arguing that an unverified amendment grants

them the choice of law provision. Respondent’s argument is supported by the courts, where it rejected a

creditor’s claims of a choice of law provision that was only provided in a revised agreement, the validity

of which was in question. The court acknowledged that it would have to resort to circular logic to reach

the creditor’s conclusion that the revised agreement was valid. The creditor argued that the revised

agreement would be valid if South Dakota law applied, however for South Dakota law to apply, the

choice of law provision in the revised agreement must be given effect. Here lies the problem, as the

choice of law provision would have only been effective if the revised agreement were valid. In essence,

                                       Motion to Dismiss - Page 2 of 9
the creditor was asking that the court use a term from the revised agreement to determine the revised

agreement’s validity. The court ruled that the creditor’s argument was flawed and denied its claims to

South Dakota choice of law. See Citibank (S.D.), N.A. v. Wilson, 2005 Mo. App. LEXIS 635;

                Claimant does not have the ability to amend the original agreement, but even if it did, the

term “amend” is defined in Ballentine’s law Dictionary as: “[t]o improve; to make better by change or

modification.” See also, Black’s Law 4th Edition. “Amend” does not equal the right to add new terms

affecting the inalienable rights of a natural person, such as trial by jury. 1 “The right to amend . . . does

not mean, however, that the debtor has an unfettered right to alter previously settled rights of affected

entities." In Baron D. Grantham, 256 B.R. 262; 1999 Bankr. LEXIS 1847.

                Even if Petitioner has the power and a right to amend the original agreement, which is not

the case here, “it does not act in an objectively reasonable manner when it attempts to recapture a

forgone opportunity by adding an entirely new term which has no bearing on any subject addressed in

the original contract and which was not within the reasonable contemplation of the parties when the

contract was entered into.” See Perry v. Fleetboston Fin. Corp., 2004 U.S. Dist. LEXIS 12616. See also

Myers v. MBNA Am. & N. Am. Capitol Corp., 2001 U.S. Dist. LEXIS 11900, which rejected the

plaintiff’s arbitration clause.2

                The courts recently dealt with the same issue of whether or not a consumer had received

the amendment and/or arbitration clause in an agreement.                       There, the consumer argued that the

arbitration clause was unconscionable, but that she never received a copy of the same. The court

  “The first ten amendments to the Constitution, adopted as they were soon after the adoption of the Constitution, are in the
nature of a bill of rights, and were adopted in order to quiet the apprehension of many, that without some such declaration of
rights the government would assume, and might be held to possess, the power to trespass upon those rights of persons and
property which by the Declaration of Independence were affirmed to be unalienable rights.” See Monongahela Navigation
Co. v. United States, 148 U.S. 312 (1893).
  “[A]n offeror can not, merely by saying that the offeree's silence will be taken as an acceptance, cause it to be such. The
offeror cannot force the offeree to take pen in hand, to use a postage stamp, or to speak, under penalty of being bound by a
contract by not expressing a rejection. Circumstances may indicate that the offeree accepts the offer.” See Myers v. MBNA
Am. & N. Am. Capitol Corp. 2001 U.S. Dist. LEXIS 11900 (D. Mont. Mar. 28, 2001)

                                             Motion to Dismiss - Page 3 of 9
correctly rendered its opinion in the matter by stating that “Plaintiff [Baker] does contend that she

actually had no choice because she never received the amendment. However, if she never received the

amendment, the Arbitration Section is unenforceable because she never entered into an agreement to

arbitrate.” See Barker v. Trans Union LLC, 2004 U.S. Dist. LEXIS 874.3

                No objective observer looking at the agreement and the law in effect at that time could

contemplate a manifest intent of the parties to so allow such an amendment as an arbitration clause.

                The courts agree. “After analyzing the credit account agreements in light of the standard

canons of contract interpretation, we conclude that when the account agreements were entered into,

the parties did not intend that the change of terms provision should allow the Bank to add

completely new terms such as an ADR clause simply by sending out a notice. Further, to the extent

that application of these canons of construction has not removed all uncertainty concerning the meaning

of the provision, we resort to the rule that ambiguous contract language must be interpreted most

strongly against the party who prepared it . . ., a rule that applies with particular force to the

interpretation of contracts of adhesion, like the account agreements here. . . . Application of this rule

strengthens our conviction that the parties did not intend that the change of terms provision

should permit the Bank to add new contract terms that differ in kind from the terms and

conditions included in the original agreements.” See Sears Roebuck & Co. v. Avery, 593 S.E.2d 424,

2004 N.C. App.

                The foregoing case clearly supports Respondent’s argument and position that there is a

huge difference between “amendment,” meaning correct or improve compared to “adding new terms”

which differ from the existing terms entirely.

  Barker v. Trans Union LLC cites Reyes v. Equifax Credit Information Services and First North America Bank, 2003 U.S.
Dist. Lexis 22235. That case dealt with a consumer who had moved and failed to perform his duty by informing the card
company that he had moved, thus his excuse of not receiving the amendment was due to his lack of performance. This is not
the case here.

                                            Motion to Dismiss - Page 4 of 9
                   The original agreement did not provide for existing terms to be changed, or addition of

new terms, therefore based on the foregoing, Petitioner has zero authority to change a private contract

without the mutual consent, knowledge and notification by Respondent.

                   Even if Delaware Title 5, section 952 provided that Plaintiff could add new terms prior to

its amendment in 1999, which is simply not the case, it is also inapplicable here because of the choice of

law is [NAME OF YOUR STATE], not Delaware. Defendant resides in [NAME OF YOUR STATE]

where the contract was entered in to and majority of contacts took place. There is nothing in [NAME

OF YOUR STATE] that supports the assertion that a card company can change a consumer agreement at

any time by adding completely new terms. One State’s statute cannot impair all other states’ protections

of its citizens.

                   “In a choice of law context, the contacts to be taken into account to determine the law

applicable to an issue include: (a) the place of contracting, (b) the place of negotiation of the contract,

(c) the place of performance, (d) the location of the subject matter of the contract, and (e) the domicil,

residence, nationality, place of incorporation and place of business of the parties. The contacts are to be

evaluated according to their relative importance with respect to the particular issue.” See Bergin v.

Dartmouth Pharm., Inc., 326 F. Supp. 2d 179 (D. Mass., 2004).

                   (a) The place of contracting was [NAME OF YOUR STATE], not Delaware. (b) The

place of negotiation of the contract was [NAME OF YOUR STATE], not Delaware. (c) The place of

performance was [NAME OF YOUR STATE], not Delaware. (d) The location of the subject matter of

the contract was [NAME OF YOUR STATE], not Delaware. (e) The domicile and incorporation is split

between [NAME OF YOUR STATE] and Delaware. 1/2 out of 5 should not weigh in favor of

Delaware, regardless of Petitioner’s place of business and incorporation.

                   This is a bargaining issue too. Petitioner has the bargaining power, not Respondent. Does

                                          Motion to Dismiss - Page 5 of 9
the consumer receive any protection under the law when it comes to credit cards solicited by big

business that makes huge profits and have the ability to adapt uniform laws that can be applied and are

fair in each State it chooses to do business? Respondent submits the answer must be yes. Otherwise, it

would require consumers to figure out and learn foreign laws and statutes in places they have no contact

with. Petitioner on the other hand does make a living of soliciting businesses using interstate commerce

and should be required to learn the laws of other states, since it has more than enough manpower and

profits to do so. The consumer does not.

                 Furthermore, it has been a well-established fact in law that binding arbitration impairs

rights of parties to litigate matters in court and the right to a trial by jury. “If an impairment is found, the

reviewing court next determines whether the impairment is of constitutional dimension.”4                               Allied

Structural Steel Co. v. Spannaus, 438 U.S. 234, 245 (1978). Impairment exists when Respondent never

received notice of any amendment that would affect the right to access the courts and the right to a trial

by jury.

                 It has long held that arbitration is voluntary.5 Voluntary is defined in Black’s Law 7th

Edition to mean: “1. Done by design or intention. 2. Unconstrained by interference; not impelled by

outside influence.” Here, Petitioner attempts to force Respondent to submit to arbitration when no

agreement exists to arbitrate and without Respondent volunteering or consenting to arbitration.

                 Respondent submits that such premise is frivolous and for the National Arbitration Forum

to force a party to submit to arbitration when no agreement exists, of notice thereof, is unconscionable

and contrary to law. Essentially this would erode the existing laws respecting consumers’ right to

  See also United States Trust Co. v. New Jersey, 431 U.S, which stated “[t]o prevail on a claim that federal economic
legislation unconstitutionally impairs a private contractual right, the party complaining of unconstitutionality has the burden
of demonstrating, first, that the statute alters contractual rights or obligations.”
  “The arbitration is voluntary, but the award pursuant to the arbitration is conclusive upon the parties as to the merits and
facts of the controversy submitted.” See Texas & N. O. R. Co. v. Brotherhood of R. & S.S. Clerks, 281 U.S. 548. See also
Conrail v. Railway Labor Executives' Ass'n, 491 U.S. 299.

                                              Motion to Dismiss - Page 6 of 9
litigate issues in court and the right to trial by jury, especially when there has been no agreement to the

contrary.   Respondent acknowledges that courts favor arbitration as a means to resolve disputes,

however, the exception is when there is no agreement between parties (as in the instant claim), and when

a party has not received a notice of any provision to arbitrate the dispute.

              Notwithstanding the foregoing, there are fundamental Rights at stake here. These Rights

include, but are not limited to, the Right to trial by jury and Due Process under the law. Let’s not forget

that these rights are secured, not granted, by the Constitution. The protection of these Rights could not

have been addressed in a better way than in Butchers’ Union Co. v. Crescent City Co., 111 U.S. 746

(1884). The court stated:

                      “We hold these truths to be self-evident'-that is, so plain
                      that their truth is recognized upon their mere statement-'that
                      all men are endowed'-not by edicts of emperors, or decrees
                      of parliament, or acts of congress, but 'by their Creator with
                      certain inalienable rights.'-that is, rights which cannot be
                      bartered away, or given away, or taken away, except in
                      punishment of crime-'and that among these are life, liberty,
                      and the pursuit of happiness; and to secure these'-not
                      grant them, but secure them- 'governments are instituted
                      among men, deriving their just powers from the consent of
                      the governed.”

              The Right to a trial by jury secured by the Constitution does not depend upon the

Constitution for its existence. “The Seventh Amendment commands that 'in suits at common law' the

right to trial by jury shall be preserved, and … [t]here is nothing in its history or language to suggest

that the amendment had any purpose but to preserve the essentials of the jury trial as it was

known to the common law before the adoption of the Constitution. Dimick v. Schiedt, 293 U.S. 474

(1935). See also Parklane Hosiery Co. v. Shore, 439 U.S. 322 (1979).

              Let’s never forget that this Right cannot be bartered away, given away or taken away. To

suggest that the Right secured by the Constitution is bartered away, given away and taken away by an

                                       Motion to Dismiss - Page 7 of 9
alleged notification by mail, which was never received, is contrary to the very principles that the country

was founded upon. Government is not instituted to barter, give and/or take away Rights of the people,

but to do everything in its power to secure these rights. MBNA certainly does not possess any power to

take away any rights.

              The foregoing leads Respondent to another issue that is protected and secured under the

Constitution, the Supreme Law of the land. That is, Due Process. Much can be said about Due Process,

but the main principle upon which Due Process is founded and exists is fundamental fairness. See Am

Jur 2nd, 16b Constitutional Law, p. 473. More importantly, Due Process requires notice and opportunity.

See Powell v. Alabama, 287 U.S. 45 (1932).       This requirement is not met in the instant case without

such notice giving Respondent an opportunity to be heard and reject any change in contract.

“Fundamental guaranty of due process is absolute and not merely relative. See Hammond packing Co.

v. Arkansas, 212 U.S. 322 (1909). “There should be great resistance to expand substantive reach of due

process clauses of Fifth and Fourteenth Amendments, particularly if it requires redefining category of

rights deemed to be fundamental.” See Bowers v. Hardwick, 478 U.S. 186 (1986).

              Again, this is all dependent upon whether or not Petitioner has the right to even amend

and/or add new terms to the existing contract. If such right does exist, Respondent never received such

notice to enable the rejection of such terms, and thus violates Due Process of law.

              I, [Respondent’s name] declare that the statements herein and above are true and correct

under penalty of perjury.

 Signed and
 Submitted by:

                                [Your name]

                                      Motion to Dismiss - Page 8 of 9
                                   CERTIFICATE OF SERVICE

     I certify that a copy of the foregoing document was caused to be deposited and mailed on the
_______ day of ____________________, [year], via Certified Mail Number XXXX-XXXX-XXXX-
XXXX-XXXX to the following interested parties:

             [ATTORNEY NAME]
             [CITY, STATE, POSTAL CODE]

             and to:

             [National Arbitration Forum]
             [Address of NAF]
             [City, State zip code]

      Dated this _____ day of __________________ [year].

      Respectfully submitted and signed by,
      [Respondent’s name]

                                    Motion to Dismiss - Page 9 of 9

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