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FlaLawyer, do you have a moment? (Arbitration question).


JohnnyG
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Okay, as I am sure you're aware, the admin is stating that you and other attorneys do not agree with using arbitration as strategy in a debt collection law suit.

Could you elaborate on why this is a bad strategy?

I've seen many interesting points as to why it is a GOOD strategy, mainly by Trueq.

After reviewing many threads on this site I've determined it would be the correct choice for myself. I was threatened by an attorney whom represents capital one that they would be filing suit against me.

The alleged debt is around 4,000 dollars. It is the original creditor suing me. I have no counsel and cannot retain counsel. The debt was charged off only a year or so ago. I have no real defense or legal knowledge.

Wouldn't it be more sound to make the move to enter arbitration, rather than battle a titan bank, and receive a summary judgment?

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I agree with FlaLawyer that it is not always the best or wisest choice. I do use it ( or the threat of it), but only in dire circumstances. Trueq makes some good points and he has had success with it, but you have to weigh it all.

Arbitration costs money, too. You need to know what the provision says as to who pays what. If you think you want to use arb for a counterclaim, you will have to pay.

I would rather face a judge than a rent-an-arb. Ask any lawyer who has been involved in a court-mandated arbitration or small claims court. You have more discovery leeway in court than in arb, which is tilted in favor of the one proffering the provision. Do you think all those banks put arb in their agreements to make it FAIR?

We all can throw a baseball. And some can throw a baseball 60 feet six inches with some accuracy. But how many CC Sabathias are there in the world? My point being, arb-as-defense has some value, but one needs to be careful when and how he uses it.

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We all can throw a baseball. And some can throw a baseball 60 feet six inches with some accuracy. But how many CC Sabathias are there in the world? My point being, arb-as-defense has some value, but one needs to be careful when and how he uses it.

Well put.

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Hello everyone! Sorry for jumping in... but this appears to be a topic that affects me as well. I've just been notified by a lawfirm stating in a letter:

"Please be advised that we inted to praecipe this matter for arbitration. Kindly contact this office if you object to the scheduling of this matter for arbitration."

It is for a Cap1 account.. I've DVed and haven't heard from the office until this letter. If I don't completely understand how the arbitration process works.. is it best I object? If so.. can I find a sample letter on this site somewhere?

Thank you so much in advance for your input!!

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Hello everyone! Sorry for jumping in... but this appears to be a topic that affects me as well. I've just been notified by a lawfirm stating in a letter:

"Please be advised that we inted to praecipe this matter for arbitration. Kindly contact this office if you object to the scheduling of this matter for arbitration."

It is for a Cap1 account.. I've DVed and haven't heard from the office until this letter. If I don't completely understand how the arbitration process works.. is it best I object? If so.. can I find a sample letter on this site somewhere?

Thank you so much in advance for your input!!

Trueq really needs to see this. I think he would give a better response. I'll try though.

I'm basing this simply on logic alone.

I ask myself this:

Why would capital one's attorney ASK you if you WANT to arbitrate?

If they are a law firm, they know, that the contract provides that they can FORCE arbitration upon you.

It's not UP to you if THEY decide to arbitrate as the contract reads. Or vice versa, if you decide to arbitrate, they don't get to CHOOSE if they want to.

This leads me to believe that they want to scare you. They want to have you say " no, I don't, lets work this out "..

Then, when they do litigate, you cannot arbitrate anymore since they have evidence that you objected to it initially. It's like they want to trap you into losing the ability to arbitrate.

Lastly, perhaps they don't mean the same type of arbitration. Maybe they mean some arbitrator in a county court like a mediator.

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Have you been sued? If yes, they are talking about court arbitration. You need to read "newryman's" post on PA law!

If you have not been sued, this is an illegal threat under FDCPA!

Cap1 has 3 forums. NAF, AAA, JAMS. NONE OF THEM WILL TAKE DEBT COLLECTION CLAIMS OVER CREDIT CARDS THESE DAYS!

See my post on someone threatening arbitration with me!

http://www.debt-consolidation-credit-repair-service.com/forums/showpost.php?p=1035649&postcount=20

I sent them an ITS letter!

Here's another helpful thread.

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=298272&highlight=threatening+arbitration

If they are threatening arbitration in the contract, you can sue lawyers/collector for violating FDCPA!

Edited by trueq
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You can review my posts throughout the site. In short, my biggest problem with it is a lack of oversight, loss of protections, loss of evidentiary rules, and loss of discovery.

In court I can maintain several appeals. Lets say I am in small claims court in Florida. My first appeal is filed in Circuit Court and may be before 1 - 3 judges. My next appeal is before the District Court of Appeals (3 judges). My final appeal would be before the Florida Supreme Court (7 judges) - if they take it. Then, if a federal issue is involved, the U.S. Supreme Court (9 judges). So I have a possibility of up to 22 judges reviewing the decision after the 1 trial judge. At a minimum you will be guaranteed that 4 judges at two appellate levels will review the trial judges actions.

Reviewing the numbers from NAF it should be no surprise that a high number of awards favored the creditors. The OC has a better chance of having the documents needed to prove its case. In short, if they are going to win at summary judgment, they will likely win at arbitration.

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You can review my posts throughout the site. In short, my biggest problem with it is a lack of oversight, loss of protections, loss of evidentiary rules, and loss of discovery.

In court I can maintain several appeals. Lets say I am in small claims court in Florida. My first appeal is filed in Circuit Court and may be before 1 - 3 judges. My next appeal is before the District Court of Appeals (3 judges). My final appeal would be before the Florida Supreme Court (7 judges) - if they take it. Then, if a federal issue is involved, the U.S. Supreme Court (9 judges). So I have a possibility of up to 22 judges reviewing the decision after the 1 trial judge. At a minimum you will be guaranteed that 4 judges at two appellate levels will review the trial judges actions.

Reviewing the numbers from NAF it should be no surprise that a high number of awards favored the creditors. The OC has a better chance of having the documents needed to prove its case. In short, if they are going to win at summary judgment, they will likely win at arbitration.

Ok, this sounds reasonable based on how things have operated in this arena up until ~3 months ago.

If it's in fact true that NAF, AAA and JAMS are not accepting arbitration, doesn't that change the playing field considerably?

Edit: Aaaand...if you are being sued by an OC that has all the proof they need, what good are options for appeals? Maybe for a lawyer that has been involved with the case from the start there will be some angles to work, but these are people asking for advice on pro se litigation. Few people reading here are really going to know how to use the appeals process effectively.

Edited by TheBeeGuy
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You can review my posts throughout the site. In short, my biggest problem with it is a lack of oversight, loss of protections, loss of evidentiary rules, and loss of discovery.

In court I can maintain several appeals. Lets say I am in small claims court in Florida. My first appeal is filed in Circuit Court and may be before 1 - 3 judges. My next appeal is before the District Court of Appeals (3 judges). My final appeal would be before the Florida Supreme Court (7 judges) - if they take it. Then, if a federal issue is involved, the U.S. Supreme Court (9 judges). So I have a possibility of up to 22 judges reviewing the decision after the 1 trial judge. At a minimum you will be guaranteed that 4 judges at two appellate levels will review the trial judges actions.

Reviewing the numbers from NAF it should be no surprise that a high number of awards favored the creditors. The OC has a better chance of having the documents needed to prove its case. In short, if they are going to win at summary judgment, they will likely win at arbitration.

So basically, in my situation as a pro se litigant ( if they file suit ), I am screwed. I'd lose in arbitration and in court?

Unless I hired an attorney like yourself?

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So basically, in my situation as a pro se litigant ( if they file suit ), I am screwed. I'd lose in arbitration and in court?

Unless I hired an attorney like yourself?

No. Just research the issues, review the rules of evidence, the rules of judical administration, and the rules of procedure. Defeat the MSJ and you will have a strong settlement position.

If they have the proper documentation and testimony to prevail at MSJ, they also have the goods to prevail at trial. Now, just because they file an MSJ doen't mean they have what it takes to prevail. Attorney or no attorney, that is how the system works. If the court incorrectly granted the Plaintiff's MSJ then you can appeal the court's order. At arbitration I am stuck with whatever result the arbitrator awards - whether it is right or wrong. Some arbitration clauses allow for an appeal to another panel of arbitrators. Oh joy, the expenses just keep adding up.

Arbitration is not some magical land with unicorns and lephercauns. In fact, in arbitration you may lose the strength to get into a better negotiation position based on discovery sanctions. Heck, if the discovery conduct is abusive enough you might even get a dismissal with prejudice. Arbitration just limits the methods I have at my disposal.

This guy gives you a good overview of how to defend an action by OC.

Edited by FlaLawyer
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No. Just research the issues, review the rules of evidence, the rules of judical administration, and the rules of procedure. Defeat the MSJ and you will have a strong settlement position.

If they have the proper documentation and testimony to prevail at MSJ, they also have the goods to prevail at trial. Now, just because they file an MSJ doen't mean they have what it takes to prevail. Attorney or no attorney, that is how the system works. If the court incorrectly granted the Plaintiff's MSJ then you can appeal the court's order. At arbitration I am stuck with whatever result the arbitrator awards - whether it is right or wrong. Some arbitration clauses allow for an appeal to another panel of arbitrators. Oh joy, the expenses just keep adding up.

Arbitration is not some magical land with unicorns and lephercauns. In fact, in arbitration you may lose the strength to get into a better negotiation position based on discovery sanctions. Heck, if the discovery conduct is abusive enough you might even get a dismissal with prejudice. Arbitration just limits the methods I have at my disposal.

This guy gives you a good overview of how to defend an action by OC.

It seems like that explanation was based on if I hired an attorney.

Also, correct me if I'm wrong, but it seems like your main strategy would be to allow a judgment, then begin the appeal process.

Wouldn't this just cost me more and more to pay an attorney, like yourself, to go through these continuing appeals?

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It seems like that explanation was based on if I hired an attorney.

Also, correct me if I'm wrong, but it seems like your main strategy would be to allow a judgment, then begin the appeal process.

Wouldn't this just cost me more and more to pay an attorney, like yourself, to go through these continuing appeals?

How is the appeal process a main strategy? Its the keeping them honest safety net. No one has claimed its a main strategy. The main strategy in a case involving an OC is to make the other side prove the debt exists and the amount thereof.

The man in the link lays out a good trial strategy.

I can only lead a horse to water.

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Arbitration is not some magical land with unicorns and lephercauns. In fact, in arbitration you may lose the strength to get into a better negotiation position based on discovery sanctions. Heck, if the discovery conduct is abusive enough you might even get a dismissal with prejudice. Arbitration just limits the methods I have at my disposal.

This is all predicated on the idea that arbitration still exists. If (and I fully acknowledge this is a huge "if") the arbitrators are not accepting debt cases, how can one lose at an event that never takes place? Can the court force another arbitration forum? Is it likely the court would strike the arb clauses from the card holder agreement altogether based on the absence of available arbitration forums? These (for me at least) are the cornerstones for the whole debate.

I'm in a position where I have no qualms about rolling the dice to see how it plays out. And just so I'm clear, my probing is specific to my own situation and I don't mean to imply that I think arbitration is appropriate for anyone else. I just want to know exactly what the possibilities are so there are no surprises.

By the way, the link you posted had some interesting ideas and gave me some new angles for my defense, so thanks. :) I had never heard of filing a sworn denial. Is this common practice? It seems the optimal time for filing it would be with an Answer, but could it be filed after, like say with responses to RFAs?

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This is all predicated on the idea that arbitration still exists. If (and I fully acknowledge this is a huge "if") the arbitrators are not accepting debt cases, how can one lose at an event that never takes place? Can the court force another arbitration forum? Is it likely the court would strike the arb clauses from the card holder agreement altogether based on the absence of available arbitration forums? These (for me at least) are the cornerstones for the whole debate.

In Florida this is not an issue. The courts have already decided the issue here in favor the appointment of an alternate arbitrator. The state faced the same issue now occurring in collection litigation. In those earlier cases the named arbitrator would no longer accept cases regarding nursing home issues.

Here in Florida I don't do sworn denials. My clients file an affidavit in response to any MSJ filed. My guess is that the sworn denial works in the same way.

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I had never heard of filing a sworn denial. Is this common practice? It seems the optimal time for filing it would be with an Answer, but could it be filed after, like say with responses to RFAs?

In Arizona - it may be the same as a sworn statement, and it is given the same weight as if you were there in front of the judge after having sworn in to tell the truth. If you have a witness who can't appear, a sworn statement suffices as live testimony in a trial.

To make a sworn statement, you write out your statement and have it notarized. I've you have a notarized statement saying the debt isn't yours or it's paid off included in your answer - that does have weight with some judges.

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This is all predicated on the idea that arbitration still exists. If (and I fully acknowledge this is a huge "if") the arbitrators are not accepting debt cases, how can one lose at an event that never takes place? Can the court force another arbitration forum? Is it likely the court would strike the arb clauses from the card holder agreement altogether based on the absence of available arbitration forums? These (for me at least) are the cornerstones for the whole debate.

After the closure of NAF, AAA, etc. people got the impression there were no commercial arbitration forums left in this country - absolutely not true. There are tons of mom and pop shops out there. They just didn't have the huge machine to process all the cases. Nor were they "in bed" with the credit card companies.

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After the closure of NAF, AAA, etc. people got the impression there were no commercial arbitration forums left in this country - absolutely not true. There are tons of mom and pop shops out there. They just didn't have the huge machine to process all the cases. Nor were they "in bed" with the credit card companies.

If the cardholder agreement names an exclusive arbitrator, then what?

I'm not trying to nail you (or anyone else) down on a definitive answer only to hold your feet to the fire when things don't go down as you say. Like I said before, I just want to know the range of possibilities.

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If you can show me an agreement that names a specific arbitrator....

Here's the Cap1 agreement about arbitration attached. Notice they don't name an arbitration company. The other credit card companies contract wording is about the same.

Capital One Arbitration-17-18.gif

post-1-135461038447_thumb.jpg

Edited by admin
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If you can show me an agreement that names a specific arbitrator....

Here's the Cap1 agreement about arbitration attached. Notice they don't name an arbitration company. The other credit card companies contract wording is about the same.

they name THREE companies or am I reading it incorrectly?

post-82627-13546103845_thumb.jpg

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I am not going to pretend to know how to post a file. I am looking at an HSBC CHA and it specifically states NAF AAA or JAMS.

This embolden paragraph at the end is interesting,

The parties acknowledge that they have the right to litigate claims through a court before a judge or jury, but will not have that right if either party elects arbitration. The parties knowingly and voluntarily waive their rights to litigate such claims in a court before a judge or a jury upon election of arbitration by either party.

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Chase specificallly states NAF, AAA or JAMS.

Amex specifically states NAF or AAA.

You do raise an excellent point, Admin. Not all arbitration agreements list a specific arbitrator. Those that do often have a provision about choosing alternate arbitrators.

As I've said before, unless you are in Wisconsin, this is a Hail Mary play.

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