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  • Topics

  • Posts

    • In the Mercury/Barclay case, Mercury has slightly better wording, so I'm going with that. The Barclay only has AAA and has this: Alternatively, you and we may pursue a Claim within the jurisdiction of the Justice of the Peace Court in Delaware, or the equivalent court in your home jurisdiction, provided that the action remains in that court, is made on behalf of or against you only and is not made part of a class action, private attorney general action or other representative or collective action.  I think that's small claims court? Mercury has JAMS and only discusses small claims, which this case isn't filed in.  The last case I had, the plaintiff's attorney unsuccessfully tried to argue that Virginia General District Court should be treated the same as small claims court according to the "spirit" of the contract. The judge did not agree.  He said that the contract allowed arbitration and that he thought I was entitled to that option - or something to that effect. Entitled is probably not the right word. 
    • Another thought: does NJ have a borrowing statute?  If it does, Barclays uses Delaware law where the SOL is 3 years.  So depending on when in 2018 the last payment was made, this could be out of statute.  Again, IF New Jersey has a borrowing statute.   That said, Barclays has an arb clause, so I would use that strategy.  Note, if you use arb, do not answer their discovery with substantive answers.  You need to OBJECT to each one of them, on the grounds that arbitration has been elected and a jurisdictional motion (the Motion to Compel Arbitration that you need to file soon) is before the court.   The reason for the objection is that going too far in litigation could waive your arb rights.
    • This brings up an important point.    There are also many mergers in the banking world.  Also some banks buy accounts from other banks.    Suppose you open an account with bank A. Later bank B buys up all of bank A’s credit card accounts.  Then, bank C merges with bank B and now you have bank C as your bank.  At some point you default.  Bank C sells the account to JDB D which later sells to to JDB E.    Which is the proper agreement?   The proper agreement is whatever agreement was in effect when you last used the card, or the last payment.  Suppose you used the card last when bank B owned the account but made your last payment when bank C owned the account. Use the account with the better arbitration provision.  If it is bank C, your argument is the bank C account was in effect at the time of default ergo the correct one.  If bank B had the better provision, especially if there is a survivability clause, your argument is you never accepted the bank C agreement and the bank B agreement has a survivability clause.     There was one time I defaulted on an account with a bank; can’t remember which one.  They either added an arbitration provision after default or else changed to a better one.  I sent a letter to the OC, CMRRR, saying I accepted all changes to the card agreement.  Thus, I was able to use a better agreement.     OTOH I defaulted with Cap 1 back when they had an arbitration agreement.  So I took them to JAMS and they ran away. 
    • Regardless of who the debt has been sold or transferred to, the initial account was with Barclays when you defaulted so that is the contract you use.
    • I do see a Barclay's folder as well. That contract also has an arbitration clause that looks about the same - maybe identical - to the one I have from the other folder. My card was sold several times over the years - it went from Juniper > Mercury > Barclays, or Juniper > Barclays > Mercury - I lost track. They're suing me under the Mercury name, but sometimes they mention Barclay's, so I had to Google to find out that was actually under the bankname then look there for a Mercury contract.  It was very confusing.     
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