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Pericles last won the day on August 15

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  1. Whenever I witness someone being piled on, my instinct is to apply the principle of charity to their words and actions. I'll often find that there was some failure in communication. Either the person being censured did not communicate well, or their communications were not understood as intended.
  2. What does the court order state, if anything, about the payment of arbitration filing fees? The agreement language concerns your share of the arbitration fee. Your share is determined by the AAA consumer rules. Conditional restated in standard form; If (claims ≤$75k) are unrelated to debt collection, [then] we’ll pay your share of the arbitration fee. antecedent: (claims ≤$75k) are unrelated to debt collection consequent: we’ll pay your share of the arbitration fee It does not follow from a claim that the antecedent is false that the consequent is also false. However, the next sentence in the agreement does address all other circumstances when the antecedent does not obtain; Otherwise, arbitration fees will be allocated according to the applicable AAA Rules. The AAA consumer rules define your share of the filing fee to be around $200. What sort of response has the AAA requested?
  3. What's the other case? The MacDonald case (see here) is interesting. But it was a four year long journey that required two appeals and MacDonald was well represented. Since it was two years ago, and this case was very expensive for PRA, you can bet that they've adjusted their affidavits to withstand a MacDonald type challenge. After the Idaho Supreme Court remanded the case back down to Magistrate Court (Case Number CV-2014-1100), MacDonald's attorney, Ryan Adam Ballard, did manage to negotiate a dismissal with prejudice. The docket doesn't indicate any agreement about attorney's fees, but the Supreme Court said that MacDonald was entitled to them if he ultimately prevailed in the lower court. This was probably the leverage for MacDonald. If you don't have an attorney, you won't have this leverage. MacDonald also "won" two other cases with the same attorney. You can view the dockets at Idaho's iCourt Portal. You can probably get the documents for the cross summary motions, but the discovery only has service documents, not the discovery documents themselves. You won't know what the affidavit for your case looks like until they produce it or it is included with the summary judgment motion. Then you can see if it has the same shortcomings as the affidavit in the MacDonald case. But even if it does, you will likely get steamrolled unless you can somehow manage to acquire all of the required knowledge, or hire an attorney like MacDonald did. Though you won't be able to hire Ballard, because he gave up his law license over some shenanigans in debt collector cases.
  4. What sort of changes are you looking for? What's your ultimate or ideal preferred resolution for all of this? I ask these questions not being sure if you're allowed to post anymore.
  5. I've witnessed trials (deft had counsel) in states other than NY where the debt buyer custodian would testify that they took repeated field trips to various original creditors to learn about their business practices. The debt buyer attorney would argue that this met the personal knowledge threshold. The testimony was admitted over hearsay objections. So, do judges in these sorts of cases in NY never exercise (or abuse) their discretion to admit this sort of custodian testimony into evidence in debt buyer cases that go to trial? Or, are you saying that debt buyers in NY won't even bother trying to proceed to trial with merely their own custodian as the primary witness? That in all cases where the defendant is represented and his attorney sufficiently foreshadows (during discovery) his intent to require a witness from the original creditor, those cases are dropped before trial? And that if some case (where the deft is represented) does somehow manage to go to trial, the judges invariability don't admit custodian testimony into evidence? It is always found to be hearsay? Edit: I've just read a few cases, for example; this one, which seem to be consistent with SJULawAlum's representations. I don't know if this is a matter of permissible discretion for any particular judge in any particular case, or if to do otherwise would always be a reversible abuse of discretion. If a debt buyer’s custodian generally cannot attest to the business records of the original creditor, it would seem that NY exceeds CA (& CA's CCP) as far as the extent of witnesses and evidence required for the buyer to prevail.
  6. Would you please list a few of your favorites? A debt buyer can't use their own custodian in NY? The witness must be from the original creditor? Does any of the aforementioned case law demonstrate this requirement? Are "authenticated documents" in NY something different than what debt buyers usually produce; selected pages from the forward flow agreement and a notarized affidavit? Are these requirements (witness form the original creditor) in NY only for contested cases? What about defaults and summary judgments? Before this thread fades into the ether, the contents in the following posts to this thread; 1 2 3 4 should be fleshed out so that future searches don't cause confusion.
  7. It does appear that hhgregg used a generic synchrony agreement during '15-'16. You can view some version of it from that time period on the internet archive; click Terms & Conditions on this page, which links to the agreement here.
  8. If the appeal goes to circuit court, you can raise both the adopted-by-reference delegation, and the "so long as the matter remains in such court" arguments. Assuming that the buyer raises the cut-out at all. Depending on the rules in your jurisdiction, if the appeal is not de novo, any objection based on the cut-out might be waived if not raised in the lower court.
  9. What's the incorporation (adopted by reference) language like? For agreements that reference both the AAA and JAMS, it usually looks something like this; For agreements that reference just the AAA; The following is quoted from Rent-A-Center delegation of arbitrability to the arbitrator is alive and well ...; In Hughes v., 2019 WL 2260666 (May 28, 2019), and the customer agreed to arbitrate disputes, except for certain claims not involved in the case. The parties’ arbitration agreement adopted by reference AAA’s Consumer Arbitration Rules, including Rule R-14(a), which provides that “[t]he arbitrator shall have the power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement or to the arbitrability of any claim or counterclaim.” In order for some citi agreement to be inconsistent with the adopted-by-reference language, it would have to state the contrary of that language, something like; only a court decides "claims related to the validity, enforceability, coverage or scope of the arbitration clause". Probably most of the relevant cases are decided in "small claims" court and not challenged beyond that.
  10. Who is the plaintiff? Citi or a buyer? What's the date of the agreement? Citi had delegation language from 2001 until late 2016 or early 2017 (depending on the style of account). The delegation language looks like this; Citi removed this language a couple of years ago. But if the agreement that governs the account in question does contain this language, then the court can't consider the small claims cut-out. The Supreme Court re-enforced this interpretation earlier this year in Henry Schein, Inc. v. Archer & White Sales, Inc., 586 U.S. ___, 139 S. Ct. 524. See also; U.S. Supreme Court Holds That Arbitrators, Not Courts, Decide Arbitrability Under Contractual Delegations—Even When the Answer Is Obviously “No” SCOTUS Rejects Exception to Compelling Arbitration—Delegation clause means arbitrator decides scope—no plausible argument required Supreme Court Gives Teeth to Delegation Clauses in Arbitration Provisions U.S. Supreme Court Rejects ‘Wholly Groundless’ Exception to Delegation Clauses in Arbitration Agreements — If the agreement that governs the account in question does not contain the delegation language, then you might not have this leverage unless delegation is somehow incorporated by reference to the rules of the arbitration forum — as was the case in Schein.
  11. It is correct that there isn't any language within the agreement that states that any type of claim is not subject to arbitration. Because of the delegation provision, any such question isn't even required to be put before the court - which eliminates any possibility of some lower TN court misinterpreting the language. If delegation isn't raised in the motion, it could be waived.
  12. The agreement delegates "substantive arbitrability" to an arbitrator. See here for a summary about delegation. The relevant section in the agreement is; Which Disputes are covered? The relevant language in the agreement is; It includes claims related to setting aside this Clause. It includes claims about the Clause’s validity and scope. It includes claims about whether to arbitrate. For comparison to another payday lender (that uses the same legal services for the drafting of its agreements) that does not delegate, see this agreement. When there is delegation, a party can require that an arbitrator decide gateway questions, such as what claims are subject to arbitration. An argument has to be made about the existence of the delegation provision if one is to expect the court to enforce it.
  13. Is there some language about "which claims are covered" that includes language about who decides "claims related to the validity, enforceability, coverage or scope of the arbitration clause"? If the language states that only a court decides "claims related to the validity, enforceability, coverage or scope of the arbitration clause", then there is no delegation. If the language states that only an arbitrator decides "claims related to the validity, enforceability, coverage or scope of the arbitration clause", then there is delegation.
  14. Maybe sometimes it is. State law governs the procedural defense of statute of limitations. Yet a defendant isn't limited merely to asserting the SOL as an affirmative defense, she also can file an FDCPA complaint - many of which have been successful. As I've mentioned before, the Bentrud opinion states , "If Bentrud is concerned about Bowman-Heintz resuming litigation after he elected arbitration—a procedural oddity, at worst—his remedy sounds in breach of contract". The opinion doesn't state that Bentrud is limited to filing a motion to compel, but rather that he has a cause of action in breach of contract. That is the remedy recommended in the precedent opinion, regardless of damages. The availability of one remedy doesn't necessarily exclude the availability of some other remedy. Yes, Bentrud is governing precedent in the 7th Circuit. But there is not yet even any circuit split. Consider this case. The opinion is not consistent with Bentrud. Remember the circuit history of delegation. There was a lone circuit decision for over 4 years before there finally was a split, and then another, and then another before it bubbled up to the supreme court and ended with Rent-A-Center.