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Arbitration may not be your best defense!

81 posts in this topic

Try this in your next motion ... we are Pro Se so we get some leeway! LOL

If Plaintiff attempts to stipulate or imply in any pleading, Motion or other legal document to this Court changes or restrictions to the arbitration provision that is contrary to the Contractual Agreement provided by Plaintiff in Plaintiff’s Complaint For Damages, then Defendant prays for this Court to dismiss this action immediately and have Plaintiff change venue for this action to the Federal Court having jurisdiction in this matter as provided in the Federal Arbitration Act. 9 U.S.C. §§ 1-16 (2000).

Edited by MG05
MG

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I know I will be needing this type of Motion soon. I have a gut feeling the opposing attorney is up to something.

And, as a pro-se one judge did lecture me on a mis-step but granted my request to the displeasure of the opposing attorney.

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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.

I filed my MCA after I was served with their MSJ. However, they took their time in filing it with the court. My OSJ, and MCA was filed with the court before their MSJ. Not sure this makes any difference tho. The atty also asked for a trial to decided who has to "pay" the filing fee. The atty also told me I have the right to arbitration (over the phone, no prof other than my notes) They may have screwed themselves.

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I filed my MCA after I was served with their MSJ. However, they took their time in filing it with the court. My OSJ, and MCA was filed with the court before their MSJ. Not sure this makes any difference tho. The atty also asked for a trial to decided who has to "pay" the filing fee. The atty also told me I have the right to arbitration (over the phone, no prof other than my notes) They may have screwed themselves.

I would go to trial for the "who has to pay" then I would ask attorney for a wavier for the fee from the OC if you lose! Nothing like playing Pro Se!!!

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themselves if you took them up on their Arbitration offer - hopefully contract has JAMS as an Arbitration Forum.

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themselves if you took them up on their Arbitration offer - hopefully contract has JAMS as an Arbitration Forum.

Yes it does. Crap one. I've been told I have a very nice deceptive trade practices suit that I would be more than happy to take up with JAMS.

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Good luck and I am sure you have read and re-read Trueq's posts on JAMS.

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In reading the Capital 1 agreement further … if you litigate in court and lose the Capital 1 agreement states you would be liable for interest and attorney fees. If you go to arbitration and lose it is a wash between parties. That to me seems so strange? My take is that when they had NAF and AAA in the back pocket they never worried about it because they knew they were going to prevail. Amazing how times can change.

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your costs are minimal. Cap 1 hires attorneys and up go their costs (or pay their in house attorneys). What more can a person ask for. I've got one in Arbitration now and another one will be soon. Then there is that pesky third one, not sure what is going to happen with that one yet.

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It appears we now have an answer in Florida to the what occurs if an arbitration association will not take a case. Florida Arbitration Blog.

You should consult a local lawyer before electing arbitration. In some cases you may be giving up your right to an appeal, a jury, discovery, the rules of evidence, etc. Also recognize that in some states arbitrators are immune to lawsuits unless very specific events can be proven. Make sure you have determined what outcome you are seeking before making any decision.

Testimony on Arbitration before the legislature.

The Arbitration Trap

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THANK YOU, FlaLawyer!!!! It has been scaring me to death to see all the "just say yes to arbitration" discussions that have been going on here.

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When you have unchartered waters people will always have differences on the best way to chart them. I think that arbitration was a horrible and despicable practice and I am certainly glad legislation will be passed to eliminate it in the future. I have read extensively on this issue and anything pre July 2009 was a complete sham for the consumer. Once NAF and AAA were taken out of the picture and decided not to take consumer arbitration the picture seemed to have changed. However, with caution, the test of taking the original creditor to arbitration post July 2009 is a theory that might have some validity. I think a disclaimer should always be posted with a theory or a test until someone wins outright or cases start getting dismissed. I look at this like a gang of thugs, when you have a few thugs wanting to fight the deck is always stacked that you’re going to get beat. When it is just you against one thug you never know what the outcome might be and you might just win. I think JAMS knows government will be watching the actions of their arbitrators over the next few months. If JAMS was smart would insure that a few more consumers win these decisions as they can then clearly distance themselves from the NAF and AAA. JAMS know if legislation is passed it could cripple their business. I think everyone has to look hard at a situation and decided what is best in their case. I am a gambler at heart and would roll the dice that this theory might work but with that said the window to use this tactic will be very short and will be cut off once a solution is found by the original creditor. The one thing I do know is Trueq was very correct with adding the “arbitration clause” in the DV letters to JDB. I have gotten two back in the past week stating that they have closed the account. I had a friend add the arbitration clause to a collection letter for an account with Chase. I will keep you posted on the outcome of that as Chase has publicly said they will not initiate any more arbitration on credit card debt.

Edited by MG05

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The FAA does not grant power to the court to replace the arbitration forum.

Any appointment to an alternate arbitration forum would have to be agreed upon by the parties (according to latest NCLC update).

If court were to appoint an alternate forum without consent of both parties, that decision would be subject to appeal. (because court is altering the contract).

Are there any "alternate forums" out there similar to AAA?

I don't see this blog info as a negative, only a reaffirmation of the issue.

This is precisely the situation I am alluding to: Exercising arbitration makes it a mess for debt lawyer suing you!

You see this as negative?

Credit card, as court is indictating, has to either get agreement from you on alternate forum OR PROVE THAT AAA IS INTEGRAL TO THE CONTRACT!

THAT'S A HEAP OF BURDEN FOR THE CREDIT CARD COMPANY!

That is great for the consumer! NCLC has got this pegged!

"The Arbitration trap" and the testiminy you refer to is completely accurate, BEFORE THE MN AG TOOK NAF OUT AND CAUSED AAA TO DROP OUT. The landscape has changed since July!

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I'm only saying that this method is UNTESTED!! The data is not all in.

trueq, you may have halted your lawsuits with this method, but by your own admission, lots of these cases have not reached their conclusions.

Anyone considering this method please PROCEED WITH CAUTION.

The other legal methods put forth here are not tricks, but basic law which has been around for decades.

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And also, as I keep pointing out...anyone reading this whole thread....remember:

Trueq method relates to the "arbitration clause" written into some credit card agreements. It does not pertain to "court ordered arbitration" when a judge decides not to hear a case directly, but to send it to a third party arbitrator. They're not the same thing...

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The FAA does not grant power to the court to replace the arbitration forum.

Since when?

Section 5. Appointment of arbitrators or umpire

If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator.

They will likely just appoint an arbitrator and that arbitrator will follow the rules established by AAA, NAF, etc. Florida has tons of arbitrators just hanging around waiting for telephone calls.

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http://www.consumerlaw.org/naf/nclc-rpts-udap-jul-aug-2009-web.pdf

NCLC says persuasive case law supports arbitration forum replacement is a distinct concept vs. replacing arbitrator under section 5 of FAA.

I have read the NCLC. They are speaking in general terms. NCLC material is like all other secondary source material. It is a good starting point, but requires much deeper research.

The issue is settled by binding law in Florida. Read the various Florida cases. The same situation existed regarding nursing homes. AAA decided to avoid nursing home arbitrations. Problem was, the nursing homes had AAA as the sole arbitration forum. Litigation ensued. Nursing homes compelled arbitration. AAA said no. Court chose arbitrator.

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"Instead, the parties can petition the trial court for another arbitrator"

That would denote "agreement" among the parties for a replacement.

If a court were to, for the sake of argument, force an unacceptable, non-agreed on alternate arbitration forum upon the consumer....

"It is anticipated that parties seeking to avoid arbitration will now seek to develop evidence suggesting that the AAA was an integral part of agreeing to arbitration."

Translation: There is an argument to be made the court cannot alter the contract by forcing the proposed alternate. This would be a tremendous contract alteration by the court.

i understand the issue you are driving at, but it does leave door open for appeals on the issue, if something undesirable were thrust on the consumer by the court in terms of alternate forums. (Expanding judge's powers beyond scope of FAA) That situation, while concerning, is certainly still preferable to getting racked up on SJ on the merits.

Take for instance, the US Bank agreement: (a classic AAA only credit card contract)

It states if AAA is not available, the contract states the parties should agree on an alternate. That alternate must also:

1.) Do business on a Nationwide basis

2.) Be independent

3.) Have similar fees and rule

I find it difficult for the court to supercede that language.

JAMS denoted contracts are really not an issue in this context.

Where your argument is strongest on this issue is citibank contracts and Bank of America contracts. They have NAF and AAA, but litle provisions for alternates and how to choose alternates when NAF and AAA refuse.

In those cases, under the scenerio you suggest is for the consumer to offer JAMS as an alternative. Make yourself appear cooperative to the judge. Let the other guy look like the uncooperative jerk.

This is probably one of the most fascinating legal subjects in today's legal environment! There are so many positions and ways to "stir the pot"!

Edited by trueq

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My question would be this … The Capital One agreement is what the lawsuit is based on (breach of contract)… the Capital One agreement states “In the event of a conflict or inconsistency between this arbitration provision and the other provisions of this agreement, this arbitration provision shall govern”. So if you can’t enforce this arbitration as written and agreed it would appear the entire agreement is out. How can you change the intent of the agreement? Additionally, it the agreement it states “the arbitration shall not be subject to, Federal, state or local rules of procedure that apply to arbitration proceedings. Simply stated in the agreement “the rules of the administrator will govern”. Capital One is by all rights the Master of the Ship in the contract it provided and bound the consumer on. How could the court then force the consumer to have the local court now become Master of the Contract? I believe that if arbitration is out Capital Ones contract would also be invalid. Additionally, I have questions that Capital One can be a choice to JAMS because if you research the contract Capital One limits discovery stating it may be limited or unavailable. JAMS rules state that discovery must be allowed. So I think Capital One boxed themselves in on this … Imagine you could fight the award if discovery was denied by Capital One under JAMS rules. I think if a lawsuit for damages in Florida is based on breach of contract you could have a strong defense to have the agreement tossed. If damages is past the two year statute of limitations for other causes of damage the case would have to be tossed. Greed will be the underlying factor in the demise of consumer arbitration amongst the banks.

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I wouldn't be surprised if they don't monitor forums such as this at least on some scale in order to gain intel on what the "dumb consumer" is doing. They may take a few hits due to the current arbitration landscape but I just can't see them taking too many before they dig in. I'm sure as we speak their legal teams are pitching various strategies to head off the arbitration elections by their "customers", we'll see. My opinion and it's only that, is that the percentage of victorious consumers that fought via arbitration will be in the single digits.

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You are absolutely correct and they will take a few hits with arbitration but the majority of charged off debt they have will get judgments thru normal court proceedings. Most people do not have the money or wherewithal to fight the kind of fight this would take. You have to have a set of balls and a lot of craziness to take big banks head on Pro Se. A lot of people talk the talk but never take the walk! Something tells me that Capital One will settle before it gets to final arbitration. If you read Trueq posts Capital One did try and settle but he refused the offer (have to love his tenaciousness). Like anything else they will attempt to settle before the costly arbitration knowing that they will never recoup the monies. It is like a nuisance lawsuit … sometimes it is cheaper just to make it go away. If they are looking at these posts they certainly know we are on to them and no matter what … they wrote the contract and they are suing people using this contract. Hey Capital One … kiss me where the good Lord split me! LOL

Edited by MG05

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LOL.

I am quite sure though that atty's for jdb's scope this site.;)

Especially when they encounter someone with the moxy to fight them. They gotta figure the people are getting educated somewhere and a simple google search for their firm or the jdb etc wouldn't take long for them to zero in, I love it. They need to know that some of us won't be bullied sooner rather than later.

Tells me that this site is quite effective at helping people fight back against the big banks and the scum jdb's.

I'm quite anxious the hear if the OC's can effectively counterclaim in JAMS or not.

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Well in digging in on some of the arbitration issues it appears that if it goes there and you lose, whatever the other side accumulates in arbitration fees may and can be passed on to you. I'm really starting to rethink this whole arbitration thing. The debt amount in question could double or triple real fast with yet more fees courtesy of arbitration if that's the case.

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Read this on FDCPA attorney fee recovery...

http://www.familyandconsumerlaw.com/2009_11_01_archive.html

You can make the same argument in arbitration, if your initial claim is FDCPA in nature.

also, my states consumer law prohibits recovery of this sort. Check your state law.

When it comes to confirmation, its an additional reason to oppose confirmation of the award.

JAMS just came back with a letter that Cap1 pays all fees, but indicated the arbitrator can reallocate those fees, depending on the outcome of the decision. The letter was written in a way that this is unlikely to happen in a consumer case.

YOU HAVE TO REMEMBER JAMS IS FEARFUL OF NAF FATE IN ITS TREATMENT OF THE CONSUMER!

So any FDCPA claim awarding any arbitration fees better not meet the minimal colorable standard!

Yes it could happen, but you have to weigh the alternate path...are you going to win in court?

If you are, then don't arbitrate, beat them in court!

My position is: If something ridiculous were to happen, i can always BK them out.

(For me, anything like that is 2-3 years away, and by then everything else will have fallen away on SOL and I could just Ch. 13)

There are always risks, but you have to remember BK is always your ace in the hole to something incredibly adverse.

I find its worth the risk. But I may play on a different scale. To me, $10,000 in arbitration fees would not be a big deal, relative to the numbers I play with.

Don't do anything that makes you uncomfortable.

EDIT *****I want to make sure I disclose that, under Wisconsin Consumer law, I would NEVER be responsible for arbitration fees. The Wisconsin Consumer Act under Chapter 425 prohibits merchants (which includes JDB's, OC's, CA's, Lawyers, etc) from imposing terms that, ""jeopardize money or property beyond the money or property immediately at issue in the transaction." TRANSLATION: WISCOSNISN CONSUMERS CAN NEVER BE FORCED, LEGALLY, TO PAY JAMS ATTORNEY FEES. So my state law provides incentive to run the Cap1 bill in arbitration.

Edited by trueq

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