Billy Pilgrim

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Everything posted by Billy Pilgrim

  1. The issue to me is that in the contract default section it says the arbitration costs are owed back to the creditor. And while the reallocation of the AAA fees is clearly disallowed per the contract, there is nothing specifically saying arbitrator’s cost is exempt from reallocation. So my concern is that the contract leaves me on the hook for the arbitrator’s cost regardless if the claims asserted by me are valid. AAA seems to make a distinction between the AAA fees and the arbitrator’s compensation (i.e. cost).
  2. Hello, I have an open thread involving PRA suing me for a Barclay’s card here, but I wanted to create a separate thread to bring attention to some nuances in the Barclays credit card agreement. Specifically, there are relevant parts to the agreement which are outside of the arbitration section and may be missed by some people (myself included). First of all, the arbitration section has verbiage that states: "Under no circumstances will we seek from you payment or reimbursement of any fees that we incur in connection with arbitration.” Now while the sounds all warm and funny, it’s important to note that AAA (which is the arbitration forum designated by the agreement) caps consumer fees at $200 anyway, so there may not be a whole lot of intrinsic value to the consumer in the above statement. Now, in the" default" section of the agreement there is verbiage which states “As permitted by applicable law, you agree to pay all collection expenses actually incurred by us in the collection of amounts you owe under this Agreement (including court or arbitration costs and the fees of any collection agency to which we refer your Account).” While this may seem to conflict with the verbiage in the arbitration section quote above, it’s important to note that the sentence begins “as permitted by applicable law”, which I believe implies that the debtor is on the hook for arbitration costs which are not explicitly fees, since the contract itself would be the applicable law. This would imply the arbitrator’s compensation is owed to the creditor. AAA rules state that “Arbitrator compensation is not subject to reallocation by the arbitrator(s) except as may be required by applicable law or upon the arbitrator’s determination that a claim or counterclaim was filed for purposes of harassment or is patently frivolous.” This appears to pave the way for an arbitrator to reallocate their compensation based on the verbiage in the default section of the agreement, even in the absence or frivolous claims or harassment. So if you get sued by Barclays or a JDB, and you elect and are granted arbitration, you may be on the hook for at least $1500 ($2500 if there is a telephonic or in-person hearing) despite no wrongdoing of your own. The final point I would like to bring up is in the "governing law" section, which states “THIS AGREEMENT AND YOUR ACCOUNT WILL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE AND, AS APPLICABLE, FEDERAL LAW.” Delaware Law has a 3-year statute of limitations for credit card debt, and while this is something that Barclays isn’t likely to overlook, it can be easily missed by a JDB. So if you are sued by a JDB for a Barclays card debt past the 3 year window, a SOL defense in court might be your best option. And if you have already commenced arbitration, this is something worth mentioning to the arbitrator as they have, to the best of my knowledge, the option of considering a SOL defense (and also the option of disregarding them). Hopefully this is helpful to anyone being sued/or in arbitration for a Barclays card debt. The verbiage quoted is found in both the 2014 and 2020 Barclays card agreements. Thanks for reading and any inaccuracies are welcome to be corrected.
  3. Sorry for the wall of text above. Basically the cc agreement says in one place: “As permitted by applicable law, you agree to pay all collection expenses actually incurred by us in the collection of amounts you owe under this Agreement (including court or arbitration costs and the fees of any collection agency to which we refer your Account).” And in another place says, in a place where it discusses filing fees and fees paid to the administrator: "Under no circumstances will we seek from you payment or reimbursement of any fees that we incur in connection with arbitration.” My interpretation is that PRA can seek reimbursement of the arbitrator's cost but not the AAA fees. What is everyone else seeing with this? Of course, PRA is seeking the AAA fees and is saying my claims are "patently frivolous" for pointing this out.
  4. The alleged agreement is a 2014 Barclay's card agreement, which is 11 pages long so not going to post the whole thing. The relevant sections are the "default" and "arbitration" sections: Default/Collection Costs. Unless otherwise prohibited by law, your Account will be in default and we may demand immediate payment of the entire amount you owe us if: 1) in any month we do not receive your Minimum Payment Due by the Payment Due Date; 2) you make Purchases, initiate Balance Transfers, use a Check, or obtain Cash Advances in excess of your credit line; 3) you fail to comply with this Agreement; 4) there is a filing for your bankruptcy; 5) you die or become incapacitated; or 6) we believe in good faith that the payment or performance of your obligations under this Agreement is impaired for any other reason. As permitted by applicable law, you agree to pay all collection expenses actually incurred by us in the collection of amounts you owe under this Agreement (including court or arbitration costs and the fees of any collection agency to which we refer your Account) and, in the event we refer your Account after your default to an attorney who is not our regularly salaried employee, you agree to pay the reasonable fees of such attorney. We will not be obligated to honor any attempted use of your Account if a default has occurred or we have determined to terminate your Account or limit your Account privileges (as discussed below). ARBITRATION. At the election of either you or us, any claim, dispute or controversy (“Claim”) by either you or us against the other, arising from or relating in any way to this Agreement or your Account, or their establishment, or any transaction or activity on your Account, including (without limitation) Claims based on contract, tort (including intentional torts), fraud, agency, negligence, statutory or regulatory provisions or any other source of law and (except as otherwise specifically provided in this Agreement) Claims regarding the applicability of this arbitration provision or the validity of the entire Agreement, shall be resolved exclusively by arbitration. For purposes of this provision, “you” includes yourself, any authorized user on the Account, and any of your agents, beneficiaries or assigns, or anyone acting on behalf of the foregoing, and “we” or “us” includes our employees, parents, subsidiaries, affiliates, beneficiaries, agents and assigns, and to the extent included in a proceeding in which Barclays is a party, its service providers and marketing partners.Any Claims sought to be made or remedies sought to be obtained as part of any class action, private attorney general or other representative action (hereafter all included in the term “class action”) shall be subject to arbitration, and arbitrated on an individual basis between you and us, not on a class or representative or other collective basis. The arbitrator shall not have any authority to entertain a claim, or to award any relief, on behalf of or against anyone other than a named party to the arbitration proceeding. If any Claim is advanced in a court, arbitration may be elected under this provision instead, and the right to elect arbitration shall not be deemed to have been waived if the election is made at any time before commencement of trial. 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. The arbitration shall be administered by the AmericanArbitrationAssociation, www.adr.org, 950 WarrenAvenue, East Providence, Rhode Island, 02914, 1-866-293-4053 (the “Administrator”). The Administrator provides information about arbitration, its arbitration rules and procedures, fee schedule and claims forms at its web site or by mail as set forth above. The Administrator will apply the rules and procedures in effect and applicable to the claim at the time the arbitration is filed. The Claim will be heard before a single arbitrator. The arbitration will not be consolidated with any other arbitration proceedings. The Administrator shall resolve each dispute in accordance with applicable law. If you commence arbitration, you must provide us the notice required by the Administrator’s rules and procedures. The notice may be sent to us at Barclays Bank Delaware, P.O. Box 8801, Wilmington, DE 19899-8801. If we commence arbitration, we will provide you notice at your last known billing address. We agree to honor a request by you to remove the action to a Small Claims Court, provided that we receive the request within thirty days of the notice of commencement of arbitration.Any arbitration hearing at which you appear will take place at a location within the federal judicial district that includes your billing address at the time the Claim is filed. This arbitration agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the FederalArbitrationAct, 9 U.S.C. §§ 1-16. No class actions, joinder or consolidation of any Claim with a Claim of any other person or entity shall be allowable in arbitration, without the written consent of both you and us. In the event that there is a dispute about whether limiting arbitration of the parties' dispute to non-class proceedings is enforceable under applicable law, then that question shall be resolved by litigation in a court rather than by the arbitrator; and to the extent it is determined that resolution of a Claim shall proceed on a class basis, it shall so proceed in a court of competent jurisdiction rather than in arbitration. A party can file with the Administrator a written appeal of a single arbitrator’s award within 30 days of award issuance, requesting a new arbitration in front of three neutral arbitrators designated by the Administrator. The panel will reconsider all factual and legal issues, following the same rules of procedure, and will make decisions based on majority vote.Any final arbitration award will be binding on the named parties and enforceable by any court having jurisdiction. Judgment upon any arbitration award may be entered in any court having jurisdiction. We will pay, or reimburse you for, all fees or costs to the extent required by law or the rules of the arbitration Administrator. Whether or not required by law or such rules, if you prevail at arbitration on any Claim against us, we will reimburse you for any fees paid to the Administrator in connection with the arbitration proceedings. Under no circumstances will we seek from you payment or reimbursement of any fees that we incur in connection with arbitration. In addition, in any arbitration that you elect to file that could be heard in Small Claims Court in your jurisdiction, we will pay the filing fees and other arbitration fees above the cost of filing in that Small Claims Court. If you are required to advance any fees or costs to the arbitration Administrator, but you ask us to do so in your stead, we will consider and respond to your request. This arbitration agreement applies to all Claims now in existence or that may arise in the future, and it survives the termination of the Cardmember Agreement and the Account relationship, including your payment in full, and your filing of bankruptcy. Nothing in this Agreement shall be construed to prevent any party’s use of (or advancement of any claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or property interests for contractual debts now or hereafter owed by either party to the other under this Agreement. ARBITRATION WITH RESPECT TO A CLAIM IS BINDING AND NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT. IN ARBITRATION YOU AND WE WILL NOT HAVE THE RIGHTS THAT ARE PROVIDED IN COURT INCLUDING THE RIGHT TO A TRIAL BY JUDGE OR JURY AND THE RIGHT TO PARTICIPATE OR BE REPRESENTED IN PROCEEDINGS BROUGHT BY OTHERS SUCH AS CLASS ACTIONS OR SIMILAR PROCEEDINGS. IN ADDITION, THE RIGHT TO DISCOVERY AND THE RIGHT TO APPEAL ARE ALSO LIMITED OR ELIMINATED BY ARBITRATION.ALL OF THESE RIGHTS ARE WAIVED AND ALL CLAIMS MUST BE RESOLVED THROUGH ARBITRATION.
  5. Okay, filed my claims against PRA and have gotten PRA’s response back (the arbitrator allowed them to respond a second time). The PRA attorney is claiming, in line with their established intention to seek cost compensation, that my claims are “patently frivolous” and also that my exercising of my arbitration rights constitutes harassment. The heart of the issue is language in the credit card agreement in the “Default” section, which states : “As permitted by applicable law, you agree to pay all collection expenses actually incurred by us in the collection of amounts you owe under this Agreement (including court or arbitration costs and the fees of any collection agency to which we refer your Account).” However, it appears what the agreement means by “arbitration costs” refers to the act of arbitration only and not the AAA fees related to the arbitration. From the arbitraton section of the agreement: “We will pay, or reimburse you for, all fees or costs to the extent required by law or the rules of the arbitration Administrator. Whether or not required by law or such rules, if you prevail at arbitration on any Claim against us, we will reimburse you for any fees paid to the Administrator in connection with the arbitration proceedings. Under no circumstances will we seek from you payment or reimbursement of any fees that we incur in connection with arbitration.” It appears to me that the agreement, in the last sentence of the above passage, is specifically referring to the AAA fees never being sought for reallocation. While PRA appears to be entitled to the arbitrator’s cost, it is not entitled to the AAA fees, which they asked for in their original response and again in their second response. So twice they have violated the credit card agreement, the second time after having been warned about it. And since my FDCPA claims are built around this violation, I’m having a hard time seeing how they could be “patently frivolous” And on a final note, as the first passage quoted above (in the “default” section) begins with “as permitted by applicable law”, the credit card agreement itself can be a source of applicable law: https://www.law.cornell.edu/wex/contract#:~:text=Contracts%20arise%20when%20a%20duty,be%20exchanged%20for%20adequate%20consideration.&text=Contracts%20are%20mainly%20governed%20by,(i.e.%20the%20private%20agreement). From the link above, under the “governing laws” section: “Contracts are mainly governed by state statutory and common (judge-made) law and private law (i.e. the private agreement).” Is anybody else reading this the same way? I’ll post the cc agreement in the next post.
  6. The AAA Assistant Vice President had a correspondence with one of PRA's attorneys regarding PRA's standing with AAA, and the PRA higher-up was following up to the correspondence. I'll send you a PM with more details.
  7. I may have a rogue attorney in my case as they are going against PRA's recently articulated policy to pay their arbitration costs in AAA cases (see my post directly above). Not to mention going directly against the CC agreement by seeking arb fees.
  8. Speaking of new policies, on March 20 PRA had posted a document to my AAA case from its Managing Counsel of the Litigation and Compliance Department to the Assistant Vice President of AAA regarding PRA's standing with AAA, stating that PRA was going to "pay the costs of arbitration." So I guess no more arbitration cases being closed due to "non payment" in consumer cases where PRA is a party.
  9. The stipulated agreement was pretty boilerplate, saying "PRA and debtor jointly stipulate to dismiss the case without prejudice". When I got it was that there was nothing in regards to the order to arbitrate, so I was concerned at the time due to this, and the fact that the judge on the case is very slow with approving motions. I was concerned I would still have to go into arbitration, and then 6 days later PRA filed its motion to dismiss with prejudice. Looking back, I agree I should have taken the offer (and have it notarized). I'll upload it in a few when I have a chance.
  10. Yup, there appears to be three of them. The MTD without prejudice was never filed though as I never signed the stipulated agreement they sent me. The MTD w/o prejudice was dated Jan 16, the original MTD with prejudice was filed Jan 22, and the MTD with prejudice they sent me was dated Feb 10. I'll make an updated timeline when I have time, but it will be soon. Right now I need to get my amended claims in to AAA as they/re due by June 1.
  11. IMO it was the original attorneys wanting to get a dismissal, and going about it strangely, and then PRA having a change of strategy once the current lead attorney was assigned to the case. Which is what I argued when I opposed PRA's motion to vacate. In regards to the mixing up of the cases, PRA originally filed their MTD with prejudice January 22, then sent me a MTD with prejudice dated February 10th. So if cases were mixed up, it was done twice, which is why I am hesitant to embrace that line of reasoning.
  12. Even after mailing me a settlement offer of a joint dismissal without prejudice? PRA did change lead attorneys on the case.
  13. I've attached the motion to dismiss (the copy PRA sent me), the motion to vacate, and the judge's granting of the MTC arbitration. I don't have a copy of the court's granting of the MTD as apparently it wasn't mailed to me, but I could probably get one from the court.
  14. In the meantime, I have a question. When filing arbitration claims, do you guys group them together or submit them as separate documents?
  15. I don't think it's admissible in court, but PRA mailed me a settlement offer to mutually dismiss without prejudice (which they wanted me to sign) on Jan 16th. And as stated in the post above, they mailed me a copy of a MTD with prejudice timestamped Feb 10, several weeks after the filed MTD on record. I'll scan the MTD that I have and the Motion to Vacate in a moment and attach the files to a post.
  16. To followup on a prior post of yours, PRA filed their arbitration counterclaim on March 23, well after their Motion to Dismiss. Also a correction: PRA actually filed their MTD on Jan 22nd, and then mailed me a copy of what appears to be a filed MTD timestamped Feb 10 and postmarked Feb 11.
  17. I see what you are saying here, but I posted this exact question to AVVO, which was answered by 3 attorneys who all said the same thing: namely, that a voluntary dismissal with prejudice invalidates a court order to arbitrate. https://www.avvo.com/legal-answers/if-my-case-is-dismissed-with-prejudice--do-i-have--4847884.html However I am stuck in arbitration, since the motion to dismiss wasn't granted until after PRA paid their fees and the arbitrator had been assigned.
  18. It appears that the credit card agreement specifies either a Delaware or Arizona court. From the arbitration section of the CC agreement: "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." It would appear to me that a court has been specified, so the condition stated above (before the bolded part) is not met. However I'm not sure if the dismissal, if upheld, would invalidate that specification.
  19. Thank you for the link Kitty Kat! Retraxit looks like a good argument to make in court, which is where we might end up given the attitude of the PRA attorney now in charge of the case.
  20. Not to mention if they participate in the post-hearing action, it’s also a sueable offense that I can try in court to the tune of a $1000 FDCPA violation. I do realize there’s a very small chance the fees can be reallocated but I’m not going to do anything to help them. So no questionable claims (such as TCPA) will be filed on my part, only the SOL and FDCPA claims, which I feel are strong.
  21. I’m trying not to focus on the cost issue, but the PRA attorney who is currently in charge of the case strikes me as being a bit rogue. They were assigned to the case as soon as it went to arbitration, and the first thing they did after the initial payment was to ask AAA for recovery of the arbitration costs, even before seeing any of my claims. And they are also going against PRA policy by asking for claims, as one of their big-wigs sent a memo to AAA in March promising to pay all of their arbitration costs (which the Arbitrator knows about and commented on to PRA before allowing the post-trial hearing). It seems like this particular attorney (initials SP) wants to take a longshot and see if it’s at all possible to recover arbitration fees, and my case is the guinea pig. And if this is the case, they are more than willing to see the process through. So my concern isn’t so much that I’m going to get stuck with their arbitration fees, it’s more that PRA isn’t going to be reasonable and be willing to settle. Although I'm still going to try and settle with them as soon as I file my claims. I can't help but wonder... has anyone ever had over heard of a JDB seeking arbitration cost reimbursement from the get-go in an AAA case?
  22. On another note, the arbitrator stated that any court related issues are not germane to the arbitration. However, I feel the court issues are ammunition in my favor. If the Dismissal With Prejudice gets upheld, they are potentially going to incur hassle chasing after any award, which is more leverage for a settlement.