Master "Refusal of arbitration" thread

[admin 895]

It seems that the arbitration is an issue that comes up alot, and I'd like to come up with a complete strategy for refusing it.

Here's what I have so far:

Use the following links/letters:

http://whychat.5u.com/arbltr.html

http://www.tlpj.org/briefs/chch2.htm

File them with both the courts and the arbitrator/mediator. Other steps?

[Methuss 10,104]

Good link. And it answers at least one of the questions I posted about mandatory arbitration clauses in credit card agreements (they are quite common).

[admin 895]

US Maritime arbitration laws:

http://www.smany.org/sma/about6-5.html

More case law in favor of refusing arbitration:

http://www.flra.gov/decisions/v39/39-081-4.html

Florida case law for refusal to mandatory arbitration:

http://www.floridamalpractice.com/stat766.209.htm

Basically it says you can never waive your right to trial.

Overall, what I am getting is that you have to prove that both parties have agreed to arbitrate before this can go through. So, if you sign something agreeing to arbitration you are stuck. Is that correct?

[gdouglaslee 11]

US Maritime arbitration laws:

http://www.smany.org/sma/about6-5.html

More case law in favor of refusing arbitration:

http://www.flra.gov/decisions/v39/39-081-4.html

Florida case law for refusal to mandatory arbitration:

http://www.floridamalpractice.com/stat766.209.htm

Basically it says you can never waive your right to trial.

Overall, what I am getting is that you have to prove that both parties have agreed to arbitrate before this can go through. So, if you sign something agreeing to arbitration you are stuck. Is that correct?

I don't understand what you mean. If you sign a separate agreement, then yes. But if it is included in any other agreement, then no, it's unenforceable. A judge can strike an entire agreement/contract as uneforceable or can strike separate clauses in the agreement (such as an arbitration clause).

[admin 895]

I don't understand what you mean. If you sign a separate agreement, then yes. But if it is included in any other agreement, then no, it's unenforceable. A judge can strike an entire agreement/contract as uneforceable or can strike separate clauses in the agreement (such as an arbitration clause).

No, what you stated is exactly what I mean.

Here's a link to some great case law that spells this out in detail:

http://www.firstusa-credit-suit.us/blog/archives/000050.html

[calawyer 1,848]

If you sign a separate agreement, then yes. But if it is included in any other agreement, then no, it's unenforceable.

Sorry, but you just can't generalize like this. Mandatory arbitration is a very complex area of law and the decisions are in flux. The best legal resource on defeating such provisions is found on the Trial Lawyers for Public Justice website. These folks are GREAT lawyers who have taken arbitration on as a major cause of their organization. Here is a link (click "mandatory arbitration abuse" in the first paragraph):

http://www.tlpj.com/

[admin 895]

Great link! The information does seem overwhelming. I wish there were a more standard way of doing things.

[calawyer 1,848]

You mean a way that you could respond uniformly in each state and know that you are OK? If so, I agree but it will never happen.

I am glad that awareness of mandatory arbitration abuse is getting a voice here. It is something I have been whining about for several years. In my view, it is the single biggest threat to consumers today (or at least tied with the stalled class action "reform" bill).

What can you do as consumers? Not much, but the following would help:

1. Support Trial Lawyers for Public Justice (I am not connected with them in any way. It is just my honest opinion that they are a very talented group of lawyers doing a fantastic job).

2. Refuse to sign agreements with mandatory arbitration clauses. I know this is hard because you really are forced to "agree" sometimes. But if you get a "bill stuffer" or a contract is presented to you with an arbitration clause in it, and you are able to decline, do so and make a big stink about it. Write letters to the company telling them why you won't be doing business with them. Get 'em in the pocketbook.

3. If you have a story about a particularly unfair experience with arbitration, let me know about it here, and write your representatives in Washington. The car dealers all lobbied congress to get an exemption from the FAA because it was so "unfair" to them to have to agree to arbitrate disputes with the manufacturers. See, http://www.kl.com/files/tbl_s48News/PDFUpload307/9156/tipoficebergarticle.pdf. Far from the "tip of the iceberg" as this article suggests, car dealers are the only group to be exempted from mandatory arbitration. What is that all about????? How about consumers?????

[irishman 10]

ok

[imjustagoyle 10]

How do I use that sample letter as it applies to Florida law?

I need to respond to a suit NLT December 31. TIA.

[Donnie 10]

Does anybody have any cases of refusing arbitration that were held in Michigan? or and Cases that were motioned like this:

DEFENDANT'S MOTION TO DISMISS APPLICATION TO CONFIRM ARBITRATION AWARD, VACATE ARBITRATION AWARD AND FOR STAY OF PROCEEDINGS

Now comes this defendant, [NAME], and respectfully moves this court to dismiss plaintiff's application to confirm arbitration award, vacate arbitration award and for stay of proceedings thereon for the reasons herein:

[calawyer 1,848]

New Florida Supreme Court decision striking down an arbitration clause:

http://www.floridasupremecourt.org/decisions/2005/sc02-2161.pdf

Again, we have Trial Lawyers for Public Justice to thank for this opinion. You can find the briefs on the organization's website:

http://www.tlpj.org/briefs/buckeye_opening.pdf

[admin 895]

So basically what they are saying is that you can't enforce arbitration as a separate clause if any part of the rest of the contract is illegal? Interesting.

[calawyer 1,848]

So basically what they are saying is that you can't enforce arbitration as a separate clause if any part of the rest of the contract is illegal? Interesting.

Under Florida law.

[Jackiej 10]

Does anybody have any cases of refusing arbitration that were held in Michigan? or and Cases that were motioned like this:

DEFENDANT'S MOTION TO DISMISS APPLICATION TO CONFIRM ARBITRATION AWARD, VACATE ARBITRATION AWARD AND FOR STAY OF PROCEEDINGS

Now comes this defendant, [NAME], and respectfully moves this court to dismiss plaintiff's application to confirm arbitration award, vacate arbitration award and for stay of proceedings thereon for the reasons herein:

Ayone have anything for this ?

Im curious also,

and in Michigan

[Donnie 10]

Hi Jackie,

Has the collection attorneys filed a suit against you? I'm fighting a collection attorneys attemp to enforce their arbitration award and I have some information that I can share with you. Email me at dkoptyra@juno.com if you would like some help.

Donnie

[admin 895]

Here's a ruling in Maryland court of interest. Now if we could find a federal one...

Click on this link and when you return read the article below.

http://www.nclc.org/about/partners.shtml

TLPJ WINS BATTLE WITH CHEVY CHASE BANK OVER CREDIT CARDHOLDERS’ RIGHT TO SUE FOR EXCESSIVE RATE HIKES

Maryland High Court Rules that Bank Cannot Compel Arbitration

Maryland’s highest court ruled unanimously on March 8 that the plaintiffs in TLPJ’s national class action lawsuit against Chevy Chase Bank cannot be deprived of their constitutional right to a jury trial and their right to bring a class action.

TLPJ filed Wells v. Chevy Chase in February 1999, charging that the bank breached its contracts with credit cardholders by unilaterally raising interest rates above a promised 24 percent ceiling, and imposing new and higher fees. The company’s agreement with its customers provided that it would "never" charge more than 24 percent, but the company did so anyway. In May 1999, Chevy Chase filed a motion to halt the litigation and instead force the cardholders into arbitration.

In August 1999, the trial court compelled the plaintiffs into arbitration, but TLPJ appealed the ruling to Maryland’s Court of Appeals. In the March 8 ruling, that Court reversed the trial court and held that the terms of the cardholder contract that Chevy Chase drafted made it clear that the plaintiffs did not agree that they could be forced to arbitrate these claims. The court held that the cardholders could choose to arbitrate their claims if they wished, but that they could not be compelled to arbitrate in a case like this one where they had chosen to go to court instead.

[Methuss 10,104]

The sample letter for refusing arbitration in the first link within this thread has some serious flaws. Basically everything under Section (1) of the letter is complete bunk.

HR 5162 never became law and died in the House in 2002

The Federal Arbitration Act was never amended with S192. It died in committee.

HR 1054 and HR 3607 also died in committee in 2001 and 2002 respectively and never became law.

So basically all the "laws" quoted in the sample letter are vapor-ware. The court cases appear to be OK though.

[admin 895]

Leave it to Methuss.....

[Methuss 10,104]

No one is more disappointed than I.

I was planning on using that info to send out a few letters to snub some of those nasty arbitration clauses. Now I gotta find a different tactic.

[benb 10]

Just in case someone out there is wondering whether or not refusing arbitration works, it did in my case.

Here's the low down:

1/8/06 - Law Firm for CA sent letter threatening if I don't pay up in 10 days, they will file arbitration on me. I send letter offering settlement of 65%.

2/24/06 - Settlement is ignored and the Law Firm files in the NAF.

3/6/06 - I CMRRR 3 letters to the Law Firm: (1) Refusal of Arbitration letter found at http://whychat.5u.com/arbltr.html, (2) Demand Letter for $5,000 from the CA for FCRA and FDCPA violations, and (3) Demand Letter for $2,000 from the Law Firm for FDCPA and FCRA.

3/15/06 - Dated letter (see below) from NAF stating Claimant moved to dismiss arbitration.

[admin 895]

This case law is excellent to cite: Myers v. MBNA America and North American Capitol Corporation:

http://www.atla.org/homepage/mbna.aspx

[mikey 10]

i had good luck on my last arbitration...i won on the sol with hardly anyeffort other than mentioning the expired sol and got it dismissed. i am nervous about a judge deciding my other case. so which is better?

[admin 895]

Here is something I found specific to state law:

Different states have different requirements that an arbitration clause must meet to be enforceable. Some have no special requirements at all, reflecting a policy favoring arbitration. In California, however, consumers must knowingly waive their right to a jury trial. Furthermore, California now requires that an arbitration clause appear in a Aclear and unmistakable form@ in the contract, such as by highlighting, bold type, or by indicating a place for the consumer to indicate that he has read it. Other states have similar

laws. You should investigate your state=s laws or speak to a lawyer.

Companies that are members of the New York Stock Exchange are also subject to specific requirements for arbitration clauses. NYSE rules require that arbitration clauses tell consumers:

• that arbitration is final and binding;
  
• that the parties are waiving their rights to seek remedies in court;
  
• that pre-arbitration discovery (trading of documents and information) is different and more limited than that available in court proceedings;
  
• that arbitrators are not required to spell out the legal or factual bases for their decisions, which are virtually unappealable; and
  
• that a minority of the arbitration panel will be made up of present or former members of the securities industry.
  

http://discussions.abanet.org/publiced/practical/books/consumer/chapter_4.pdf

[mikey 10]

Hey Benb...

that arbitration letter looked like a copy of mine. same lawyer, smae arbitration forum and same outcome. that is so funny.....lol:lol: