kittycat

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kittycat last won the day on May 21 2020

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About kittycat

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  • BV80

  1. Section (iii) looks like delegation to me. If that's right, that means that the arbitrator must decide disputes about substantive arbitrability. So, OP should at least throw that argument into the mix, or maybe even lead with it. See this old thread.
  2. Would have both from what, just Union Recovery (National Bank)? Where did you pull that quote from? I read that section beginning with; "It is well established law in Virginia..." The debt buyer doesn't exactly make that argument. Their substantive unconscionability argument doesn't depend on the rights and liabilities of the assignee. But the substantive unconscionability argument is weaker when it comes from the party that drafted the agreement. The OP would be making the arguments about the effect of the assignment in the first instance, in order
  3. @BV80Thank you! Thank you! Thank you! I was searching Google Scholar last night for hours after your suggestion and just couldn't find it. You are a lifesaver! That case is fine if virginia state law is applicable to the agreement. If you find a utah case, you can argue in the alternative.
  4. As others have mentioned, usually state law, not federal law, provides the standard for unconscionability. Although you're correct that the potentially applicable state law is usually also within the arbitration clause itself. Something like this: Even if language about state law is missing from the arbitration clause, state law is probably the only law that can be applied to an argument about the costliness of arbitration (that the arbitration agreement is substantively unconscionable). You're also correct that the debt buyer is effectively the "drafting party" for the purp
  5. Yep, that seems to be the case. Still subject to immediate appeal as per Towles, etc.
  6. Right, the case I referenced above (Towles v. United Healthcare Corp., et al.) cites both federal and state law. The applicable state law is the SCUAA § 15-48-20 & § 15-48-200. See https://www.scstatehouse.gov/code/t15c048.php But I didn't review OP's motion to compel. I don't know if the application was made under the relevant SCUAA statutes, or just the FAA.
  7. How do the small claims rules in Wisconsin preclude an interlocutory appeal of a denied motion to compel arbitration? Several states provide for de novo review of the entire case. The standard of review for a denied motion to compel arbitration is almost always de novo. In South Carolina, it is de novo with some qualifications. Having de novo review of the entire case is of superfluous benefit if all that a party is concerned with is the denied motion to compel arbitration. OP seemed to indicate that the mtc hearing and the trial are scheduled for the same day. OP shouldn't h
  8. If your motion to compel is denied, and the court directly proceeds to a trial on the merits, you could ask the court for leave to file an interlocutory appeal of the denied motion to compel. Towles v. United Healthcare Corp., et al., - SC Stedor Enter., Ltd. v. Armtex, Inc., 947 F.2d The above was uncovered after only a few minutes of searching. You'd want to do your own due diligence, both to verify the information and check for better precedent. The court could still refuse leave and go ahead with the trial, but that itself might be an error, if you asked for leave
  9. BV80 said, in this thread, which concerns only a debt buyer, that; The implication of which is that there is no extra expense, at least not one for which they would ultimately "lose the money" (incur an expense). It follows that even if arbitration is less easy in terms of effort, any extra effort that need be expended is just more tax deductions. So, I was just asking BV80, if the costs of arbitration ultimately aren't real costs, what is the reason that debt buyers bail? His answer seems to be that arbitration is less easy. Apparently the costs of arbitration are not the
  10. Assuming that's true, why then do debt buyers generally have an aversion to arbitration? Perhaps they have less of an aversion in recent times, with the broad adoption of virtual arbitration hearings, where even their custodian (or other witness) can appear over zoom. But historically they haven't liked arbitration all that much. But why if it doesn't cause them to lose any money? It doesn't cause them to lose money overall, in the aggregate, yes. But It is included primarily for one, and only one, reason. It allows the contractual exclusion of class action claim
  11. Ask your attorney if the automatic stay created by your 11/11 bk filing should have prevented the court from entering judgment on 11/15, or if the case should have been stayed instead. Also ask your attorney if the judgment created a statutory lien on any real estate you might own. If you do own real estate, and the court didn't have the authority to grant the judgment on 11/15 (given the automatic stay on 11/11), then ask your attorney if she can move to have the judgment order vacated. In certain circumstances, it is better to have as few judgments as possible as you file bankrupt
  12. When did pra file to confirm the arbitration award in court? Was it after your attorney sent notice of the bk to pra? Never mind, I see reading your prior post that they filed to confirm two days before you filed bk.
  13. Oh good, you have a lawyer. I thought you may have filed the bk yourself. If you provided your lawyer with a list of all your debts/creditors, and information about all pending court cases, then your lawyer should have handled everything. If you filed bk before the court granted the judgment, your lawyer may even be able to get that judgment vacated (although in some jurisdictions, bk stays everything). Not that it matters all that much. If you have trouble, your lawyer can handle it. Unless you paid your lawyer for bk filing services only, and not for complete representation through the disc
  14. You can file a notice of bankruptcy in the court case if you haven't already. Doing so will stay the case and prevent execution of any judgment (since the court has already granted the judgment). Even if you don't file a notice of bankruptcy in the court case, they shouldn't be able to execute the judgment but you might have to give notice about the bk if they attempt to execute with bank, employer, property lien, etc. Debt buyers like pra are independently notified about bk filings (via services to which they subscribe) even if you don't send them a notice about the bk. It is probably still
  15. Does the ruling by the appeal panel change anything for anyone else going forward? If it does, how does it do so? It seems what you're saying is that the error made by the first arbitrator in your case was so egregious that any other arbitrator would likely not commit the same error, assuming such arbitrator read and understood the plain language of the CMS. If this is true, it was also true before the appeal panel in your case made any ruling.