CAP1 did file JAMS countercliam for debt.

[trueq]

As suspected, Cap1 ignores JAMS FTC policy statement from Jay Welsh that JAMS does not do "debt collection arbitration".

So be ready for countercliams for the debt in JAMS arbitration, if consumer initiates.

(Solution is making court order Plaintiff initiate.)

I'm going to immediately object and move to dismiss the counterclaim on the basis JAMS represented that they don't do "debt collection"arbitration.

We'll see where that ends up.

[david9041]

As suspected, Cap1 ignores JAMS FTC policy statement from Jay Welsh that JAMS does not do "debt collection arbitration".

So be ready for countercliams for the debt in JAMS arbitration, if consumer initiates.

(Solution is making court order Plaintiff initiate.)

I'm going to immediately object and move to dismiss the counterclaim on the basis JAMS represented that they don't do "debt collection"arbitration.

We'll see where that ends up.

I guess they will counterclaim on mine to , could you let me know about these ?

1 . THREE arbitrators to decide

2 . In person hearing

3 . Location VEGAS

We might as well enjoy it . If it's our choice let us make it more than it is worth

[billikens]

Mr. Welsh may have some explaining to do...maybe to his own organization. This has some interesting scenarios and opens up a whole new front in the war.

[bevj2]

Are you saying JAMS accepted the counterclaim of Cap1?

[trueq]

JAMS has not confirmed officially accepting the filing.

This will be tested on my MTD.

[Baggins]

What I'm wondering is this: JAMS does not do debt collection arbitration as Welsh pointed out, but, did he ever specifically say they would not accept a counterclaim from them? Could it be construed that they cannot initiate a claim but filing a counterclaim is a different story? Anxious to see how this plays out.

Cap1 is more than privvy on what's going on now so imo it will be even harder to get a judge make them initiate, especially the judges that actually understand the scope of the current arbitration situation.

[trueq]

Since Cap1 lawyers are involved, if they force you into the initiation course of action....the FDCPA unsophisticated consumer standard applies.

If the consumer relied on Mr. Welsh's statement for the arbitration, Cap1 lawyers could be violating FDCPA.

Arbitration pleadings, just like state court pleading CANNOT BE FALSE UNDER FDCPA!

So its not if you would believe the counterclaim is somehow allowed in that statement, (or even if its meant to be allowed) its whether the unsophisticated consumer would have figured it out.

I'm sophisticated and even I don't read debt collection counterclaim into his statement.

I got my consumer lawyer analyzing this issue, as to what to do. (In other words, who to sue.)

This is going to be fun.

Edited December 22, 2009 by trueq

[MG05]

TrueQ if you file a complaint in JAMS and your pleading has any inkling of the consumer debt you in fact have opened the door for the consumer debt counterclaim. I don’t see how JAMS could keep the other party silent on a huge monetary complaint against them. They (Capital One) would then have a reason to appeal any type of award you might win or in fact go back to court to argue the arbitration unfair.

In reading your particular complaints even if they counterclaimed you should still be alright based upon your individual situation. However, JAMS complaints lacking in substance will still have lots of scrutiny if counterclaims are allowed by JAMS.

My suggestion for the beginning of a JAMS complaint is to offer an out to Capital One in lieu of a monetary award. Same thing I mentioned to David in an earlier post … Unless you have Capital One by the throat … they will hire competent counsel in arbitration to defeat any complaints with huge monetary figures.

My suggestion is to make the monetary award you’re looking for small or even in at the same figures of the debt and offer Capital One to close the account in lieu of a monetary award. This then makes you complaint a nuisance complaint more likely to be written off as a cost of doing business. Don’t think for a minute you’re going to ask for $100,000 in an arbitration award for a $5000.00 account and Capital One doesn’t hire a competent lawyer to try and kick you’re a_ _! As FlaLawyer says “Welcome to the world of litigation”.

Edited December 22, 2009 by MG05

[MG05]

I went back a read the statements of Mr. Welsh and he doesn’t address a counterclaim whatsoever and with that you have to expect that JAMS would have to allow a person or company the ability to counterclaim a complaint with a monetary award. Mr. Welsh kept his word as they will not allow Capital One to initiate arbitration in consumer debts.

For those of us in Florida you must understand that if you force initiation of arbitration on Capital One you could screw yourself. Florida has case law established that the local court can initiate local arbitration if no forums are available for Capital One to use. Again, Florida residents contemplating arbitration you’re the one that must elect and initiate arbitration or you could be forced into local court arbitration.

Once you have elected and initiated arbitration your okay in Florida and you will get the case stayed the outcome of the arbitration.

My point being if you live in Florida and want to go the arbitration route you must elect arbitration and initiate arbitration immediately. Don’t fight the courts in Florida to try and make the other side initiate as they can’t and you will box yourself into a forum possibly not so friendly.

Counterclaims are part of litigation that we have to deal with … I am okay with it!

I am an arbitration advocate … just filed my JAMS against Capital One and I expected then they will counterclaim … I have to deal with it.

Edited December 22, 2009 by MG05

[trueq]

I understand your point of view.

However, can the unsophisticated consumer construe Mr. Welsh's statements to mean JAMS does not hear any debt collection arbitrations?

"Any" being the operative word. This would include any counterclaims.

The least that will come out of this is a forced clarification of Mr. Welsh with the FTC.

Edited December 22, 2009 by trueq

[david9041]

I understand your point of view.

However, can the unsophisticated consumer construe Mr. Welsh's statements to mean JAMS does not hear any debt collection arbitrations?

"Any" being the operative word. This would include any counterclaims.

The least that will come out of this is a forced clarification of Mr. Welsh with the FTC.

The more I read the more it looks like a counterclaim by Cap1 will be filed , I want this to be a major expense for them ,What about these ?

1 . THREE arbitrators to decide

2 . In person hearing

3 . Location VEGAS

[trueq]

1.) There is a procedure to demand a 3 arbitrator panel...I have not read up on it.

2.) In person hearing is pretty much a given, if you demand it in intial paperwork or complaint, in JAMS arbitration. (unless there is a settlement or dipositive motion before then)

3.) YOU CAN CHOSE ANYWHERE! There is no contractual limitation on which JAMS office to use. You can demand arbitration be in your home Federal Judicial District according to the contract, but the contract is silent on selecting locations outside your Federal Jusdicial District. This is what I did by selecting Vegas. Consumer party has an unusual amount of leeway on this issue.

[david9041]

1.) There is a procedure to demand a 3 arbitrator panel...I have not read up on it.

2.) In person hearing is pretty much a given, if you demand it in intial paperwork or complaint, in JAMS arbitration. (unless there is a settlement or dipositive motion before then)

3.) YOU CAN CHOSE ANYWHERE! There is no contractual limitation on which JAMS office to use. You can demand arbitration be in your home Federal Judicial District according to the contract, but the contract is silent on selecting locations outside your Federal Jusdicial District. This is what I did by selecting Vegas. Consumer party has an unusual amount of leeway on this issue.

Thanks , that all sounds good .

Another question though ,

Dudley3874 is making his answer to the complaint , what he needs is a wording to put in his defenses about his arbitration , they have not given him a agreement , How can he word it so as to protect his arbitration rights without electing arbitration ? I told him to read your posts but I don't know if you have addressed that situation

[MG05]

The more I read the more it looks like a counterclaim by Cap1 will be filed , I want this to be a major expense for them ,What about these ?

1 . THREE arbitrators to decide

2 . In person hearing

3 . Location VEGAS

Before I write this understand I am an advocate for arbitration but I want to make some points. If your case going to arbitration is weak … I would suggest you keep the costs down and the relief for your claim small or equal to the amount debt with an “out” for Capital One. They will not spend money on a nuisance suit …

I believe you need to hold the hearing in the Federal District near your home … why are you fighting the evil giant in Las Vegas when you live in Florida … arbitrators are human and they might question why you would do this or how really harmed are you? If you’re claiming to be poor how did you afford the flight and hotel to Vegas … human nature!

Point being you have been harmed and are seeking relief … not a trip to Vegas. Second, why have a three panel arbitration and extra expense when a one panel might be better. Why give three people the ability to reason on your case and find faults in it.

Keep it simple … the goal is to walk away from the debt.

[MG05]

I understand your point of view.

However, can the unsophisticated consumer construe Mr. Welsh's statements to mean JAMS does not hear any debt collection arbitrations?

"Any" being the operative word. This would include any counterclaims.

The least that will come out of this is a forced clarification of Mr. Welsh with the FTC.

TrueQ you know I respect you … that is not going to fly … you’re not an unsophisticated consumer when you can file arbitration, stay a local lawsuit, cite legal precedents, and write a $100,000 complaint Pro Se against Capital One. They will eat you up on that one … I say take the counterclaim and find holes in their case.

Your cases are safe from what I have read … but others with weaker cases need to understand that unsophisticated consumer crap won’t work. I would imagine that JAMS will give you a take it or leave it stance on the counterclaim issue if you base your objections on a statement of the company president from months ago.

Like I said arbitration works and will work … keep everything in perspective … Capital One has large legal resources that can eat a consumer up. Make your small debt claim simple and easy for them to toss away as a nuisance. Asking them to pay for a three person arbitration in Las Vegas on a $100,000 claim … you better have every duck in a row because they will come at you hard. I guarantee they will not pay out 100K without a fight!

[Baggins]

I see both you guys' points. Even more anxious now to see how it plays out. I think it's gonna get interesting.

[MG05]

In my JAMS arbitration I specifically stated we could end this if Capital One would cease collection of my debt, notate the correct date of last payment and date of charge off. My credit is screwed so I could care less and SOL is up in Aug 2010 (no more worries about being sued). My goal to wash the debt nothing else!

[david9041]

In my JAMS arbitration I specifically stated we could end this if Capital One would cease collection of my debt, notate the correct date of last payment and date of charge off. My credit is screwed so I could care less and SOL is up in Aug 2010 (no more worries about being sued). My goal to wash the debt nothing else!

MG05 , the claim I filed is for 70,000 its for the harm inflicted on me in a illegal lawsuit , strong enough ? I don't know . If I can get contempt of court charges placed against them and Fraud upon the Court charges it may get stronger . I have family living in Vegas and feel they could aid me in this immoral legal action that Cap1 has inflicted upon me and due to my financial situation my family in Vegas is covering my trip cost ( wink - wink )

How much will Cap1 spend ? Remember the figures in this case is over a period of years I used 865 of their money and paid back 860 , of course their would be interest charges but don't you think the arbitrators would question the actions of Cap1's legal persecution ?

[MG05]

Okay … put yourself in the arbitrator’s shoes … the debt is right at or under $1,000 and you are asking for $70,000 and a hearing in Vegas.

What proof of harm do you have as evidence? Contempt of court and fraud … Capital One will throw the blame squarely on the local law firm and process server … what evidence do you have to link Capital One? What do you have to show it is immoral on Capital Ones part to sue for an outstanding debt? They hired a local law firm that might have done some illegal acts … they offered to let you walk on the debt and you refused … do you think you can do battle with them for $70,000 or will they just part easily with $70,000? That is the most important question.

Your battle is with the process server and the local law firm. If this was me I would negotiate this debt with Capital One … you cease collections and I cease arbitration … request they don’t hold your hands to sue the local law firm or process server.

If you were Capital One would you pay $70K plus $20K in expenses and attorneys fees for a $1K debt? Why push them … take the free debt and call it a day!

The new law firm hired for arbitration will not be $125.00 an hour cookie cutter attorney’s … they will be a bit more complex and being a novice Pro Se … you will be in deep. The point is to walk on the debt … not get eaten alive.

In the last 25 years I had been in numerous depositions and then trials … qualified trial attorneys will eat your lunch if you don’t have your crap together (ask FlaLawyer). This isn’t small claims court in Pasco or Broward County … you raised the bar to $70K plus expenses and told them to pack sand your going all the way.

Think about what you’re doing and if you get a chance to walk on the debt … just give it a thought. I am pro arbitration but only to use arbitration to get out of the debt or keep from being sued. As much as we all talk on this site none of us will be there when you’re sitting in front of a seasoned attorney being grilled. Think strategy …

Edited December 22, 2009 by MG05

[david9041]

Okay … put yourself in the arbitrator’s shoes … the debt is right at or under $1,000 and you are asking for $70,000 and a hearing in Vegas.

What proof of harm do you have as evidence? Contempt of court and fraud … Capital One will throw the blame squarely on the local law firm and process server … what evidence do you have to link Capital One? What do you have to show it is immoral on Capital Ones part to sue for an outstanding debt? They hired a local law firm that might have done some illegal acts … they offered to let you walk on the debt and you refused … do you think you can do battle with them for $70,000 or will they just part easily with $70,000? That is the most important question.

Your battle is with the process server and the local law firm. If this was me I would negotiate this debt with Capital One … you cease collections and I cease arbitration … request they don’t hold your hands to sue the local law firm or process server.

If you were Capital One would you pay $70K plus $20K in expenses and attorneys fees for a $1K debt? Why push them … take the free debt and call it a day!

The new law firm hired for arbitration will not be $125.00 an hour cookie cutter attorney’s … they will be a bit more complex and being a novice Pro Se … you will be in deep. The point is to walk on the debt … not get eaten alive.

I do see where your coming from , they did not offer the walk-away untill I had filed with JAMS , I think I will hear from them again .

MG05 sorry I gave you the wrong Figures , On that case its over a period of years I borrowed $2,470 and paid back $3,016 , they were $546 ahead and of course there would be interest but their counterclaim will be $3,994 maybe more because of the arbitration .

What I like about the Arbitration thing is I can pull the action out of the court and in arbitration I can handle my wife's case , Rule 12 The parties may be represented by counsel or any other person of the parties choice . And by the way I think going to Vegas will be cool , if I am going to lose the case at least I will have a good time losing it . I am going over the rules but I don't understand if I can force them to appear IN PERSON in Vegas , it even bothers me the way they can appear in court by telephone and I have to be there in person .

[MG05]

My point exactly … after you elected arbitration they offered you a deal to walk on the debt! Your choice David and whatever you do … I will be here to help if I can!

Edited December 22, 2009 by MG05

[david9041]

My point exactly … after you elected arbitration they offered you a deal to walk on the debt! Your choice David and whatever you do … I will be here to help if I can!

MG05 , Just curious what is the process you would expect if you had a Comprehensive arbitration here in person , would an arbitrator travel here ? Where would it be ? Who pays for the location ? Would it be here in my town ? Would in-house lawyers travel here ? Rule 16 you can request a Preliminary Conference , does that mean everyone has to travel here twice ? Have you ever seen this process in action or talked to anyone who has went through it ?

[MG05]

It would happen most likely in Pasco County and the initial stuff would be via mail, fax and telephone. Capital One pays everything after you take care of your $250.00 initial fee … I would imagine before the actual hearing a few calls will be made to see how to resolve the case before arbitration. If it is like some cases where large dollars are at stake Capital One may conduct some due diligence on you and your background. See about your past or if you have any histories in these kinds of actions. The attorneys will try and mitigate damages as much as they can for Capital One.

[MG05]

I am sure Capital One has a certain dollar amount that they wash in nuisance lawsuits … it is not practical to take everyone to arbitration (especially since AAA and NAF are out of the picture). Am I going to spend $5K to collect a $3K debt that I may never recoup? See where I am going with this … if you say $70K and tell them piss off … I am going all the way they will take you at your word. Ever seen “Deal or No Deal”? Every time they get greedy they open the wrong case!

[david9041]

It would happen most likely in Pasco County and the initial stuff would be via mail, fax and telephone. Capital One pays everything after you take care of your $250.00 initial fee … I would imagine before the actual hearing a few calls will be made to see how to resolve the case before arbitration. If it is like some cases where large dollars are at stake Capital One may conduct some due diligence on you and your background. See about your past or if you have any histories in these kinds of actions. The attorneys will try and mitigate damages as much as they can for Capital One.

Well my past won't be a problem , I have never been in court until their lawsuits and the defaults were due to the sinkhole and auto accident problems

and at that time I had wrote them a letter and requested they freeze my accounts until we could get back on our feet , none of the accounts were at the credit limit but instead they put me at the maximum interest rate and piled on extra fees , Thanks for your help