Arbitration conundrum?

[Savoir]

My Card Member Agreement (2006) states that "arbitration will be conducted by the NAF".


I am the under the impression that NAF has been precluded from arbitrating credit card disputes.

The Arbitration Clause also states that "if NAF is unable or unwilling to act as arbitrator, we may substitute another nationally recognized independent arbitration organization that uses a similar code of procedure."

The rest of the language is pretty typical of other agreements that I have seen posted.

The 2008 amendments still uses the NAF.

Questions: If I elect Arb and then compel with the court, can I request/file/substitute with JAMS? ...or do I have to wait to see who the OC will substitute?

I think I know the answer to this but, I'd like to get other opinions.


Background:

1. Suit filed from OC
2. I answered, denying all with Arb as affirmative defense.
3. No discovery has been initiated although, a pre-trial order has been issued that Plaintiff provide me with Card Member Agreement and credit card statements.
4. I have not DV'd electing Arb
5. I have not sent Plaintiff a letter electing Arb
6. I have not filed any motions with the court.

If any other information is required ... please let me know.

[bad98roadster]

Was the suit filed within SOL?

[Savoir]

Originally Posted by bad98roadster

Was the suit filed within SOL?

According to the choice of law clause in the agreement (Delaware) the suit was filed 6 months out of SOL.
According to my states (Mich.) SOL, yes, it still has a few years to run.

[Coltfan1972]

Originally Posted by Savoir

The Arbitration Clause also states that "if NAF is unable or unwilling to act as arbitrator, we may substitute another nationally recognized independent arbitration organization that uses a similar code of procedure."

I'd argue that another arbitration forum that uses a similar code of procedure as NAF would be a violation of law. The NAF'S procedure has already been ruled to be in violation of law and directly financed by the banks. The NAF'S procedure violates the Federal Arbitration Act, is unconscionable, and violated the very spirit of arbitration.

Therefore, that clause of the agreement should be ruled unconstituntial and unenforcable and since that is a material clause in the contract that dictates how they can enforce a dispute, they are left with no means to enforce a dispute if you choose arbitration. They chose to get in bed with the NAF and according to their own contract, anybody that uses similar code of procedure.

In other words they are asking you how you want to die. A gunshot to the head, a knife to the throat, or a baseball bat to your skull. However, a gunshot to the head has now been ruled out so do you want a knife to your throat or a baseball bat to your skull. They are all similar ways to die, they kill you pretty much on the spot.

[bad98roadster]

Does your state import foreign SOL?

Resurgence vs Chambers. What recent CA case law can teach us all about DE SOL!!!!


Read this:
http://www.edcombs.com/CM/Custom/9art.new.pdf

Within that document you'll find this:

E. ACTUAL DAMAGES
A debt collector who has violated any provision of the FDCPA is liable for actual damages. 15 U.S.C. §1692k(a)(1). The amount of a valid debt does not constitute actual damages. Wiginton v. Pacific Credit Corp., 2 Haw. App. 435, 634 P.2d 111, 118 (1981). However, if it is time-barred it is actual damages. Gervais v. O’Connell, Harris & Assoc., 297 F.Supp.2d 435 (D.Conn. 2003).

You have a claim against law firm and attorney for filing the suit outside the statute of limitations. If it were me, I'd file suit.

You're damages are the amount in which they sued you plus statutory damages plus costs and attorney fees.

How fast do you think they'll settle if you bring the action?

[Savoir]

Originally Posted by Coltfan1972

I'd argue that another arbitration forum that uses a similar code of procedure as NAF would be a violation of law. The NAF'S procedure has already been ruled to be in violation of law and directly financed by the banks. The NAF'S procedure violates the Federal Arbitration Act, is unconscionable, and violated the very spirit of arbitration.

Therefore, that clause of the agreement should be ruled unconstituntial and unenforcable and since that is a material clause in the contract that dictates how they can enforce a dispute, they are left with no means to enforce a dispute if you choose arbitration. They chose to get in bed with the NAF and according to their own contract, anybody that uses similar code of procedure.

In other words they are asking you how you want to die. A gunshot to the head, a knife to the throat, or a baseball bat to your skull. However, a gunshot to the head has now been ruled out so do you want a knife to your throat or a baseball bat to your skull. They are all similar ways to die, they kill you pretty much on the spot.

..... however, I don't think that the NAF's procedures are the same type of procedure the agreement is referring to.

[Savoir]

Originally Posted by bad98roadster

Does your state import foreign SOL?

Resurgence vs Chambers. What recent CA case law can teach us all about DE SOL!!!!

I believe that Mich has adopted the Second Restatement’s MSR approach in 1995 as outlined in Chrysler Corp. V. Skyline Industrial Services, Inc.

In sum, a sister-state or foreign limitations period is borrowed only if the claim would be barred in the sister state. If the claim is time-barred in the forum, on the other hand, the borrowing statute will not be used.



Read this:
http://www.edcombs.com/CM/Custom/9art.new.pdf

Within that document you'll find this:



You have a claim against law firm and attorney for filing the suit outside the statute of limitations. If it were me, I'd file suit.

You're damages are the amount in which they sued you plus statutory damages plus costs and attorney fees.

How fast do you think they'll settle if you bring the action?

That'd be an excellent suit but I HAVE to find out first if Delaware law would apply in this situation.

[Coltfan1972]

Originally Posted by Savoir

..... however, I don't think that the NAF's procedures are the same type of procedure the agreement is referring to.

How do you know? Contract of adhesion, all disputes are ruled in favor of the party that did not write the contract. The clause says similar procedures, not similar legal procedures. Legal procedures are pretty much understood. However, they changed that assumption with their bad acts, and the arbitration clause clearly states, similar procedures.

NAF procedures have been proven illegal and in violation of the spirit of arbitration. Therefore they changed that presumption of being legal themselves. Your credit card company did not immediatley go back and amend the agreement to distance themselves from NAF's illegal behavior and left the part in they will use a forum with similar procedures.

So they have said we will use a forum with procedures that are similar to illegal procedures. That's unenforcable and therefore they lose their right to collect via arbitration. You can only choose arbitration, you can't help if the other side can't find an appropriate forum due to their own contract painting them in a corner. They could have distanced themselves from NAF but they chose to keep laying in that same bed.

Contract of adhesion is your friend in a "creative" dispute.

[Savoir]

Originally Posted by Coltfan1972

How do you know? Contract of adhesion, all disputes are ruled in favor of the party that did not write the contract. The clause says similar procedures, not similar legal procedures. Legal procedures are pretty much understood. However, they changed that assumption with their bad acts, and the arbitration clause clearly states, similar procedures.

NAF procedures have been proven illegal and in violation of the spirit of arbitration. Therefore they changed that presumption of being legal themselves. Your credit card company did not immediatley go back and amend the agreement to distance themselves from NAF's illegal behavior and left the part in they will use a forum with similar procedures.

So they have said we will use a forum with procedures that are similar to illegal procedures. That's unenforcable and therefore they lose their right to collect via arbitration. You can only choose arbitration, you can't help if the other side can't find an appropriate forum due to their own contract painting them in a corner. They could have distanced themselves from NAF but they chose to keep laying in that same bed.

Contract of adhesion is your friend in a "creative" dispute.

Minnesota's case against NAF was in 2009 ...... I defaulted in 2008.
Same situation .... different bed.

Originally Posted by Coltfan1972

Contract of adhesion is your friend in a "creative" dispute.

I'll have to analyze that statement ..... there seems to be an underlying hint there that isn't apparent to me at the moment.

[Coltfan1972]

Okay back to your original question. I would say they can pick the forum, unfortuantely. However, it says we may, not we shall, so I would compel with JAMS and force their hand. Or file with NAF and leave it at that. Of course they won't accept the case and then it forces the other side to make a move that is guaranteed to cost them money. That forces them to at least mull over their decision.

I'd still drag them through the mud on their statement they will find another forum similar. They had time to amend that, even after you defaulted. Of course if they had then you could argue it did not apply to you.

My usual practice is to make it as hard on the other side as humanly possibly while staying technically within the contract and rules. Working with the other side is not something I'm interested in doing. The more money, trouble, and headace I cause, means a job well done in my book.

I'm not an atty that will have to deal with them on other cases and work with them. I could give a dang less what they think about me or what they call me. I don't care how crazy or creative my arguements are, as long as a Judge does not rule them frivilous.

I don't have to not represent my client (me) to the best of my ability, or fear making the other side mad and not willing to work with me on other cases, like many attys will do, in an effort to save a working realtionship with the other side.

Burn the bridge? No way!! Drop a nuke on it and look for another one to burn.

[Savoir]

Originally Posted by Coltfan1972

........ snipped ......

My usual practice is to make it as hard on the other side as humanly possibly while staying technically within the contract and rules.

That's EXACTLY what I want to do ....... but the court I'm dealing with is not what I would say is in a humorous mood. I want to find a way avoid the NAF requirement but still get it into Arb.

Thank you for your response.

Secondarily:
Do you think there is a case for me in court considering Mich. and their Second Restatement adoption? I think that Mich. considers SOL as procedural law if that helps. I just can't wrap my head around this.

[Coltfan1972]

I have to admit that reading some of the posts and researching, Michigan law does seem to be a little tricky.

The only case that I've had that has been statute of limitations was just between arguing open book account and written contract. They argued five years and me three, but it was still all under Arkansas law and nothing really complicated other than what type of account the alleged debt was.

[Savoir]

Originally Posted by Coltfan1972

I have to admit that reading some of the posts and researching, Michigan law does seem to be a little tricky.

The only case that I've had that has been statute of limitations was just between arguing open book account and written contract. They argued five years and me three, but it was still all under Arkansas law and nothing really complicated other than what type of account the alleged debt was.

yeah ...... tricky Michigan ...

OK ... I'm stumped too ....
Defendant is without information sufficient to admit or deny.
Guess I'll just go gonzo and argue anything I can think of .......

I do appreciate your input, both; Coltfan1972 & bad98roadster

[bad98roadster]

I'd send back the discovery with each an every answer:

"Objection: arbitration clause has been exercised. A mutual agreement on the scope and extent of discovery per the arbitration clause and per the arbitration forum rules has not been reached. Defendant will not be answering until such an agreement is reached between the parties under the contract."

That way you will not be in "default" of discovery. (If you fail to answer or object to admissions, they are deemed admitted.)

File that objection for all discovery requests...get MTC...end of this issue.

[Savoir]

Originally Posted by bad98roadster

I'd send back the discovery with each an every answer:

"Objection: arbitration clause has been exercised. A mutual agreement on the scope and extent of discovery per the arbitration clause and per the arbitration forum rules has not been reached. Defendant will not be answering until such an agreement is reached between the parties under the contract."

That way you will not be in "default" of discovery. (If you fail to answer or object to admissions, they are deemed admitted.)

File that objection for all discovery requests...get MTC...end of this issue.

It's been 30 days since Discovery was allowed. Tricky Mich.... again. You can't initiate Discovery without an order from the court. Let me restate that; you can initiate but, the opposition has the right to deny. Then you have to compel. There is one other provision for Discovery but, it makes absolutely no sense to me.

MCR 2.300 Discovery
Rule 2.302 General Rules Governing Discovery
(A) Availability of Discovery.
(1) After commencement of an action, parties may obtain discovery by any means provided in subchapter 2.300 of these rules.
(2) In actions in the district court, no discovery is permitted before entry of judgment except by leave of the court or on the stipulation of all parties. A motion for discovery may not be filed unless the discovery sought has previously been requested and refused.
(3) Notwithstanding the provisions of this or any other rule, discovery is not permitted in actions in the small claims division of the district court or in civil infraction actions.

In any event, Discovery has not been initiated by either side at this point, nor has Plaintiff complied with the court order. I suspect that they will wait until the last minute to do so.

I'm a little nervous about sending requests so that I don't jeopardize Arb by going too far into the court's jurisdiction.

[Coltfan1972]

Originally Posted by Savoir

[SIZE=2][I](2) In actions in the district court, no discovery is permitted before entry of judgment except by leave of the court or on the stipulation of all parties.

In my state District Courts are basically Small Claims Courts. You can't do discovery but can appeal de novo and then can do discovery. Maybe that is what they are talking about? I don't know but I do agree you want to make sure you don't travel down the litigation road too far as to be in default of the arbitration clause.

[Stickit2em]

How about motion for Summary Disposition pursuant to your cardmember agreement, arbitration clause and MCR 2.116(C)(7)! I would not motion the court to Compel Arbitration yet. I would MSD and play it from there. There's a good chance you get judgement in favor but it will probably be without prejudice. So what, now its up to them to pursue their claim further through arbitration and then it's on their dime. If you compel arbitration there is a possibility that the court can make you pay for the arbitration being that you are the one compelling. I dont know how your whole arbitration agreement is worded but if it is like most, which states that "any controversy, dispute, claims, ect.....be submitted to binding arbitration, you pretty much have good case for MSD. I wouldnt worry about all the discovery crap, if you are going to decide to go the route of arbitration. Like coltfan1972 said.....Drag em' through the mud! Just My .02 Cheers guys

[Savoir]

Originally Posted by Stickit2em

How about motion for Summary Disposition pursuant to your cardmember agreement, arbitration clause and MCR 2.116(C)(7)! I would not motion the court to Compel Arbitration yet. I would MSD and play it from there. There's a good chance you get judgement in favor but it will probably be without prejudice. So what, now its up to them to pursue their claim further through arbitration and then it's on their dime. If you compel arbitration there is a possibility that the court can make you pay for the arbitration being that you are the one compelling. I dont know how your whole arbitration agreement is worded but if it is like most, which states that "any controversy, dispute, claims, ect.....be submitted to binding arbitration, you pretty much have good case for MSD. I wouldnt worry about all the discovery crap, if you are going to decide to go the route of arbitration. Like coltfan1972 said.....Drag em' through the mud! Just My .02 Cheers guys

Resurgence vs Chambers. What recent CA case law can teach us all about DE SOL!!!!

I believe that Michigan regards SOL as procedural law .. and thus would deem SD inappropriate.

[Savoir]

This coming Monday I have a hearing on my Motion to Compel Arbitration.
Trial for this suit is scheduled immediately following this hearing.

If the judge rules against my motion ...... can I ask for (and reasonably expect to obtain) a trial continuance in order to appeal his decision against my motion?

This is in Michigan and I can't seem to find anything about appealing motion decisions in the MCR's.

[maggie22]

There is a procedure for a Motion for Reconsideration, but it is not supposed to be based upon the same arguments.

Other than that, the appeal would go to the circuit court. If you lose I would ask that any trial be adjourned pending the circuit court appeal. District court Judges are funny however, and you may end up doing the appeal after the trial. In this regard make sure the Judge knows it will be coming regardless. I think they'd perhaps be less inclined to ram a trial through knowing they could get shot down on appeal.