Q: When should I file a motion to compel arbitration in South Carolina?

I am being sued by a junk debt buyer in commons plea court in South Carolina. I plan on filing an answer to the summons. When should I file a motion to compel arbitration? Should I put it in my answer? Or file just the motion in place of the answer?

2 Lawyer Answers
Timothy Denison
Timothy Denison
  • Bankruptcy Lawyer
  • Louisville, KY

A: Both. Put it in your answer and file a motion to boot just to be safe.

James L. Arrasmith
James L. Arrasmith pro label Lawyers, want to be a Justia Connect Pro too? Learn more ›
  • Bankruptcy Lawyer
  • Sacramento, CA

A: In South Carolina, when you're faced with a lawsuit by a junk debt buyer and you believe arbitration is the correct venue for the dispute, the timing of filing a motion to compel arbitration is crucial. Typically, this motion should be filed early in the case, ideally at the same time as or shortly after your answer to the summons.

You have the option to include your motion to compel arbitration within your answer to the lawsuit, as a separate affirmative defense. Alternatively, you can file it as a separate motion alongside your answer. The key is to assert your right to arbitration before engaging in significant litigation activities, as participating extensively in the court process could be seen as waiving your right to compel arbitration.

It's also important to provide evidence of the arbitration agreement that applies to your case, showing that the dispute falls within its scope. This could be part of the original contract with the creditor, which the junk debt buyer is now subject to.

Given the procedural and strategic considerations involved, consulting with an attorney experienced in debt defense and arbitration is recommended. They can help you navigate the process, ensure your motion is timely and properly filed, and advise on the best strategy for your specific situation.

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