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confirmation of arbitration award filed by CACV of Colorado


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I have trial on Monday in Dallas re: confirmation arbitration award. I failed to attend arbitration bc I felt that I had no binding arbitration agreement with CACV. They bought my MBNA credit card acct which was charged off by MBNA. At arbitration they got an award of double the amount of the original debt. The judge ordered us to mediation and they would not budge at all bc they were co fident from a ft worth case that the just must confirm the award. The mediation order stated if it was a Corp then a rep with negotiating power must attend. I confirmed with the mediator that no person from CACV attended just a local counsel hired by their counsel who is in Houston. No discovery was done at all. They have sent me no evidence of what they r presenting at trial or a list of witnesses. I called the court coordinator to announce ready and the other side had not and she told me to call this afternoon and check. Is there anything that I can file on Monday to attack their confirmation? The only exhibit to their original filing was a copy of the arbitration award.

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Here is one of the best resources I have seen on dealing with consumer credit card debt litigation in Texas. Go to page 11 of the document (pg 13 in Acrobat reader) and you will see his discussion of approaches to dealing with the arbitration confirmation process in Texas (You will need Adobe Acrobat to read it - Google it and download it for free if you do not have it):

http://www.txconsumerlawyers.org/papers/defending_credit_card_cases_2009_04.pdf

Definitely read it; great resource for Texas CC litigation.

You may also want to note that most MBNA agreements specify that the Federal Arbitration Act rules, and that act prescribes an arbitration award should be confirmed within a year. I know of people who have used this to get dismissal when the award has been several years old.

Notice:

I am not an attorney. I am only sharing my notes and references as part of a conversation. This research and notes are for reference on Texas consumer debt issues, not guidance on responding to legal proceedings. If you are going before a court, get the counsel of an attorney.

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Here is some more material for your reading pleasure:

The Basics of Confirming, Vacating, Modifying and Correcting an Arbitration Award Under the Federal Arbitration Act and the Texas Arbitration Act

http://www.bmpllp.com/publications/articles.php?action=display_publication&publication_id=34

Challenging Arbitration Awards In Texas Courts:

http://www.texasbar.com/Template.cfm?Section=Texas_Bar_Journal1&Template=/ContentManagement/ContentDisplay.cfm&ContentID=608

I got these references off a page at Arbitration Justice:

http://www.arbitrationjustice.com/Forum/index.php?PHPSESSID=736e5d48b6bd1b51981580c40de81813&topic=89.0

Notice:

I am not an attorney. I am only sharing my notes and references as part of a conversation. This research and notes are for reference on Texas consumer debt issues, not guidance on responding to legal proceedings. If you are going before a court, get the counsel of an attorney.

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I will definitely look at the info u sent. I do know the SOL for confirmation was filed one month right before it was to expire. I've been looking at the Gruber v CACV case where the court ruled that simply attaching a copy of the award to the pleading and asking for the court to take judicial notice of the award was not sufficient as evidence. That will be one of my arguments if they ask the court to take judicial notice of the award.

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As Jordan points out in the very first link I posted above, the arbitration plaintiff must prove there was a contract and an agreement to arbitrate. So, hopefully courts are not handing out judgements based only on the presentation of a NAF award document.

"I do know the SOL for confirmation was filed one month right before it was to expire". I am not sure I understand this.

What sometimes happens is the following. A law firm will file a claim with the NAF and get their award. Then, sometimes they will sit on it doing nothing for several years other than maybe collection efforts. If that fails, they go for confirmation in the defendant's court. Since the NAF award is several years old, defendants sometimes avoid the confirmation judgement by indicating the plaintiff failed to follow the rules of the Federal Arbitration Act which prescribes confirmation within one year.

If they filed with the NAF one month before the end of TX SOL, I am not sure of the impact of that on confirmation. I would try to find out if it were me.

Notice:

I am not an attorney. I am only sharing my notes and references as part of a conversation. This research and notes are for reference on Texas consumer debt issues, not guidance on responding to legal proceedings. If you are going before a court, get the counsel of an attorney.

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From looking at the judge's court policies and procedures it states if the Plaintiff does not announce by 10:30 a.m. on the Friday before trial, the case will be dismissed for want of prosecution. I called Friday at 4 p.m. and they and they had not announced ready or even contacted the court coordinator. So do you think I'm looking at showing up at court tomorrow and having a dismissal granted based on their failure to announce?

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I would show up no matter what. The plaintiff's attorney may know something you don't, like the court sometimes lets that rule slide or they can call early Monday and get it done some way unknown to you.

Some of these JDB attorneys sometimes play tricks to get defaults so be careful.

I and others on here have had them dismiss at the very last moment, so you never know. I think they play it to inflict maximum anxiety on the defendant in order to get them to cave and go for some type of payment plan.

If it were me, I would prepare to go tomorrow and show up at the scheduled time. If you get a dismissal, great, just be sure to save your paperwork. Good luck!

Notice:

I am not an attorney. I am only sharing my notes and references as part of a conversation. This research and notes are for reference on Texas consumer debt issues, not guidance on responding to legal proceedings. If you are going before a court, get the counsel of an attorney.

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Oh I am definitely going tomorrow and I will be ready. If they show up that's great b/c I am going to have all of my attacks in line and I will let the judge rule on whether he is going to be strict about his policies & procedures which he asks you to read prior to court appearances.

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Well, I showed up to court today and the Atty for CACV was not there when the judge called the docket. However, he showed up right as the bailiff was about to announce in the hallway. He wanted to talk outside the courtroom. He admitted that he had not even looked at my pleadings I filed at all. He also said CACV's pleadings were shotty at best and knew he could not win the case so we agreed to a nonsuit. They prey on those who do not show up to fight so always respond!!!

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I'm glad to hear that!

Just keep all your paperwork. Sometimes these folks or their subsequent friends are like the monsters in a horror flick - they have an uncanny ability to rise from the dead in zombie form.

Always good to hear when someone is winning the fight!

"They prey on those who do not show up to fight so always respond!!!" Amen to that.

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Congrats on the victory. The FAA requires arbitration awards to be confirmed within 12 months.

Keep an eye on the cockroach scurrying out from under your foot trying to crawl back up your leg during that time!

I'd take the offensive. Check with a consumer lawyer if the nonsuit violated the FDCPA in some way (harrasment would be my take) or Colorado Consumer Law. Sue. Sue. Sue.

CACV may want to settle. Settle for your attorney fees and an agreement to bury arbitraton award.

Just a thought.

You need to slice the cockroach up so they don't come back to life.

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Very happy your challenge was successful.

To Blog: I can’t write it enough that the arbitration scam by Collect America-CACV-CACH-NAF is so flawed and corrupt. These scoundrels can be beaten, but you must be smart and you can waiver.

Other: These arbitration actions seem to come about at six-month intervals. There seems to be a flurry of activity now. It will calm to start up again in the Fall. I might be mistaken, but this appears to be manner.

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