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Arbitration may not be your best defense!

81 posts in this topic

With all due respect to trueq, who is championing this method - please proceed with caution. Both of our attorneys, Recovering Attorney and FlaLawyer do not think this give the consumer an advantage. Here are their remarks:

http://debt-consolidation-credit-repair-service.com/forums/showthread.php?p=1034813#post1034813

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It may not be YOUR BEST DEFENSE.

If you can get case dismissed or terminated in court...always do that first.

However, arbitration is better than getting racked up on SJ.

I'm OK with this "disagreement", because many have been cautious about embracing the recent radical change in the arbitration landscape for the consumer. (NAF debacle, AAA being out for credit card arbitration, and JAMS refusing to do debt collection arbitration.)

I've embraced arbitration as a way to WAIVE AND DEFER PEOPLE SUING ME FROM COURT, and its saved me from 8 SJ's, and caused at least 2 huge causes of action for my recovery against lawyers trying to deny my right to arbitrate.

As always, everyone admin mentions has excellent advice.

Arbitration is a useful tool...not a full battle strategy.

Edited by trueq
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I owe you big time on the DV and 623 issue alone!

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You know when I first started this process I was terrified of the thought of going to court. I had no idea where to start. I was like any new poster to this site and asked question that now seem trivial. As I gained information my question became more complex and I realized that couldn’t depend on this site alone to do the work for me. When I first saw the posts from trueq about arbitration my first thought was it would be a way to get me out of going to court. I now understand in my case that it is not a means to and end but a strategy that I could use along the way if I needed it. I would like to think you all for your help. I don’t believe the problem is with using arbitration as a strategy. I think the problem is that new posters think it is a way out of court and a means to an end of their problem. I have mapped out how I will handle my case and thanks to trueq arbitration may be a tool I may have to use, but thanks to others for helping me realize that it isn’t were I should start.

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I think if the OC has you “dead to rights” with all the information to get a judgment and they are playing hardball then arbitration is a card you might have to play. I think the JDB has too many hurdles to get a judgment and a good strategy and well written pleadings will get you out of the Court with your shirt and wallet intact not having to pull the arbitration card.

I think Capital 1 will be bombarded with arbitration over the next 3 to 6 months and will have to rethink the costs to litigate every case. That being said … I believe that nuisance low cost settlements will be offered by Capital 1 just to get past the litigation in arbitration. I tend to think that Capital 1 will start selling charged off debt to JDB to get out of this mess and JAMS will most likely end any arbitration from anyone debt related to Capital 1. If your being sued by Capital 1 at this moment in time I think arbitration has Capital 1 screwed and in a bad position … so is pulling the trigger on arbitration a bad thing? Only time will tell … If Capital 1 has the goods to get a judgment what do you do?

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Arbitration is a good tool against..

1.) when person suing you is an OC.

2.) when they "got you"

3.) when faced with an SJ when they "got you".

4.) judge is going to railroad you.

This is where arbitration may be the best strategy.

There are other combinations where arbitration may be right as well, but its NEVER, EVER in your interest to take an SJ or judgment lying down.

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TrueQ and Admin thanks for the time and effort to help us all out! I know we have different thoughts but everyone is working toward a common goal and that is impressive! Admit nothing, deny everything and demand proof!

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Arbitration is a good tool against..

1.) when person suing you is an OC.

2.) when they "got you"

3.) when faced with an SJ when they "got you".

4.) judge is going to railroad you.

This is where arbitration may be the best strategy.

There are other combinations where arbitration may be right as well, but its NEVER, EVER in your interest to take an SJ or judgment lying down.

My own .02 cents....

As a defendant in a number of suits -- I can tell you that the above is absolutely true. My first 2 from Amex....I fought the first one hard with every strategy available. The problem was...they "had me". So....I tried to exercise arbitration, but the judge shut it down because it "was too late".

The 2nd case with Amex -- I filed a MTD and have a hearing scheduled. I don't want to end up at the same point.

I don't think I will ever use arbitration against a JDB...but against a well-prepared original creditor, I don't see many other options.

I'm open for advice, but the reality is, I'm looking to delay and nail them for FCRA or FDCPA violations, and ideally force a settlement. I'm not under any illusions of defeating Amex head to head when they have strong evidence.

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My own .02 cents....

The problem was...they "had me". So....I tried to exercise arbitration, but the judge shut it down because it "was too late".

when is "too late?"

It would seem that my MCA, OSJ, and their MSJ are all sitting on the judge's desk. And have been for a week. Okay, so she is thinking it all over. In the mean time I feel like I'm sitting on pins and needles.

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If you have been already sued:

sometime after your failed MTD, but before pre-trial or an MSJ is filed is usually the prime time to exercise arbitration.

After first pre-trial conference is usually too late in a lot of jurisdictions.

However, some jurisdictions let you do it right up to trial. If you wait too long some courts say you waived your right to arbitrate.

If you have not been sued:

Dropping the "exercise" or "election" of arbitration in your DV letter is the best strategy!

Done it 56 times to date. 0 lawsuits!

In that same time, I did 1 letter without arbitration exercise. I GOT SUED!

If you add arbitration exercise to your DV and they sue...its a violation of FDCPA!

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It appears in Florida you have to elect immediately or you lose your right to arbitrate. I think in Florida your best bet is to file your Motion To Compel Arbitration and then get a court date prior to the pre-trial conference.

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I think this pretty much sums up whether you should litigate or arbitrate:

I think if the OC has you “dead to rights” with all the information to get a judgment and they are playing hardball then arbitration is a card you might have to play. I think the JDB has too many hurdles to get a judgment and a good strategy and well written pleadings will get you out of the Court with your shirt and wallet intact not having to pull the arbitration card.

The OC can generally come up with account statements for several years which will convince a judge that you owe the debt. I remember RA bringing this up in one of my threads.

Lately, the OC's seem to be a little lazy in bringing forth these documents. It is becoming quite common for them to have the same affidavits of knowledge of accounts from the collectors they have hired. There has been some speculation that the OC is not the real party in interest because of this JDB-like collection process.

I would challenge this claim. If the OC produces 2 years worth of statements and an affidavit of knowledge of account from the OC itself, I would seriously consider arbitration.

Actually, I like trueq's suggestion to put the threat of arbitration in a DV letter to the collector.

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Arbitration exercise also makes it a "jurisdictional wrangle", with many ptifalls for creditor these days.

Which is good, when you need to take focus off the merits.

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for two different accounts two weeks ago. One attorney answered back saying I had to meet their deadline to file Arb or else - how interesting.

The other has been silent.

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Keep that letter and you might want to bait them by asking them to provide you with that date. :twisted:

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The attorney, upon electing arbitration in your DV, said you had to meet THEIR deadline to file arbitration against yourself?

Can you say VIOLATION!

They have no right to require you to initate arbitration prior to suit.

Per the contract, they also have no right to sue, because your election waived their litigation rights.

Its not your problem they named arbitration forums in their contract that will not take their filing!

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and I'm smiling and waiting on them to take additional legal actions.

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DFS

I put Implementing Arb in DV

for two different accounts two weeks ago. One attorney answered back saying I had to meet their deadline to file Arb or else - how interesting.

I didn't read that thread.

This is what I read in this thread:

If you have not been sued:

Dropping the "exercise" or "election" of arbitration in your DV letter is the best strategy!

Credit goes to trueq, unless, of course, he plagiarized from your thread.

Doesn't matter...it's a good idea.

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I learned this from Trueq!!!!

All I was wanting to say is when I put this in the letters, one attorney came back and said ok, but you need to file demand for arbitration by xxxxxxx. If they want to file a lawsuit after this date, then they are risking the consequences.

Thanks Trueq for all of your advice.

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Had an attorney who is a close friend review the Capital One CC Agreement and confer with a consumer attorney. In the CC Agreement to “costs” it states that each party bears its own cost regardless of who prevails. Good for us!

Additionally, the CC agreement specifically states that the arbitration is under the FAA. So if any party disputes any part of the arbitration agreement then the issue must be resolved in Federal Court having jurisdiction.

Key to this is to inform the Judge that no place in the agreement does it state, stipulate or imply any condition to the arbitration provision. Under FAA it can’t be modified from the original agreement. You must say for the record “If opposing council pleas to the court to stipulate any conditions on the arbitration agreement then opposing council must dismiss this action immediately and reapply in Federal Court”.

Also, if they order you to initiate tell opposing council in front of the Judge you do not have money to file. Then ask opposing council for permission for you to contact their client to apply for a waiver of fees or if they balk ask opposing council to apply. That buys you a bit of time because it is stipulated in the CC agreement.

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Your post adds "a bunch" of obstacles even I have not mentioned when thrusting arbitration on a debt lawyer and Cap1!

No wonder Cap1 has been so negotiable since I took them out of court!

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I have a great Motion To Compel and Motion To Stay pleading!

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a couple of weeks ago about stating for the record "If opposing council ...." I could have used that to my advantage. Now, it is in my tool bag as yet another great obstacle to throw at the Plaintiff attorney.

Still learning from all you great posters.

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