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Why did Arbitration may not be your best defense got locked?

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because there is a ton of varied and multi-level viewpoints on this topic now since the fallout of the NAF debacle last summer.

Before the NAF debacle all consumers pretty much agreed---arbitration--VERY BAD! (including me, who was victim of NAF twice--fortunately awards expired worthless--so I ended up winning in the end.)

However, with the debacle of NAF last summer and the radical rule changes and consumer fee structure changes at AAA and JAMS---arbitration---in my view has moved to---OUTSTANDING CONSUMER WEAPON.

This is not to say that someday a consumer may lose in arbitration, (will probably be me) but there is a whole lot of consumers winning because creditor/JDB does not want to pay the huge non-consumer party fees and overcome the paperwork hurdle. (Also, AAA and JAMS rules prohibit default judgments, non answers are assumed denied...this is big for consumer.)

The other reason the discussion wondered, as we saw with the "Help, Court 11 A.M." thread, posted at 2 A.M. Day of trial, no defense, opposing attorney and witness shows up. Arbitration MAY BE your best defense.

What we are seeing here is a pioneering trend by the consumer and I don't blame anyone for being skeptical----I had as much rage against the concept of arbitration as anyone----

but $137,000 in terminated debt later using arbitration, I've definitely re-examined my previous arbitration thinking for the consumer.

Its still good we have skeptics...keeps me sharp.

Edited by trueq
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I have stayed out of this until now for several reasons. But you are all missing the point about arbitration.

What is bad about arbitration is when there is a mandatory, pre-dispute arbitration provision inserted in a contract. Typically, this is a binding arbitration with no right to appeal an adverse decison. When a party with superior bargaining power inserts such a provision in a form contract, on a take-it-or-leave-it basis, it can lead to the abuses we saw with NAF and others.

It is quite another animal, however, when parties freely agree to arbitrate AFTER a dispute has arisen (or for that matter, when parties freely agree to it BEFORE a dispute arises in a contract negotiated at arm's length). There are pros and cons to doing so, and I would caution anyone against recommending it in every situation. But it may be appropriate in a given situation and does not necessarily suffer from the unfairness of mandatory pre-dispute arbitration.

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I have stayed out of this until now for several reasons. But you are all missing the point about arbitration.

What is bad about arbitration is when there is a mandatory, pre-dispute arbitration provision inserted in a contract. Typically, this is a binding arbitration with no right to appeal an adverse decison. When a party with superior bargaining power inserts such a provision in a form contract, on a take-it-or-leave-it basis, it can lead to the abuses we saw with NAF and others.

It is quite another animal, however, when parties freely agree to arbitrate AFTER a dispute has arisen (or for that matter, when parties freely agree to it BEFORE a dispute arises in a contract negotiated at arm's length). There are pros and cons to doing so, and I would caution anyone against recommending it in every situation. But it may be appropriate in a given situation and does not necessarily suffer from the unfairness of mandatory pre-dispute arbitration.

Sounds like a " Unconscionable Contract" scenario.

I was going over my welcome letter today on my Capitol One CC and read the agreement. I noticed that that there is nothing that ties the bill to the Agreement. How can they argue that each bill is associated with a given agreement, especiallly when they are changing the rules to the agreement at thier own discretion?

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I have stayed out of this until now for several reasons. But you are all missing the point about arbitration.

What is bad about arbitration is when there is a mandatory, pre-dispute arbitration provision inserted in a contract. Typically, this is a binding arbitration with no right to appeal an adverse decison. When a party with superior bargaining power inserts such a provision in a form contract, on a take-it-or-leave-it basis, it can lead to the abuses we saw with NAF and others.

It is quite another animal, however, when parties freely agree to arbitrate AFTER a dispute has arisen (or for that matter, when parties freely agree to it BEFORE a dispute arises in a contract negotiated at arm's length). There are pros and cons to doing so, and I would caution anyone against recommending it in every situation. But it may be appropriate in a given situation and does not necessarily suffer from the unfairness of mandatory pre-dispute arbitration.

Is that the tides have turned and karma is going to get those who forced this on the consumer ... I don't disagree with your points ... but I agree that "Consumer Initiated Arbitration" has certainly worked in my favor.

Edited by MG05
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Is that the tides have turned and karma is going to get those who forced this on the consumer ... I don't disagree with your points ... but I agree that "Consumer Initiated Arbitration" has certainly worked in my favor.

It all depends on the language of the contract. Capital Ones contract used to suffer from some terminal issues when small amounts were at issue. Other contracts may not be so forgiving.

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It all depends on the language of the contract. Capital Ones contract used to suffer from some terminal issues when small amounts were at issue. Other contracts may not be so forgiving.

Your a lawyer, I took a College level course in contract law (by no means is my knowledge on the same level as yours, but I know the basics and it has kept out of court when I draw up contracts to sell software and computer systems/service), maybe you can answer this question:

How do the CC Companies tie a given bill/statement to a particular contract. Shouldn't there be some docuementation on the statement that you are binded by a particular contract (with some kind of designation) at a given time.

If I was billing out software services and was changing the rules during given periods, should my bills somehow reflect what contractual obligations are binding a particular bill at a given time? I don't think the credit card companies even keep track of what agreements they send you. They should technically have you sign a contract, mail it back to them and then allow you to use the credit card. They just send you something and say this is the agreement, with all the different cards, and changes of thier policies, it seems unconcievable that they would have accurate records that would hold up in court( If one of my customers sued me I would have to produce a contract with terms, written or verbal).

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I have stayed out of this until now for several reasons. But you are all missing the point about arbitration.

It maybe calawyer, but the best lawsuit is when settled out of court. In order for that to happen one party must submit to another and that is done by way of an intimidation.

In my case H&H sent me the initial communication letter stating that he wants the money in his office with in 5 days from the date of the letter dated Feb. 25, 2010 and I received the letter on Mar. 1, 2010 so I had 1 day to send the money over night.

The letter had big bold heading: NOTICE OF INTENTION TO INCUR LEGAL FEES AND COURT COSTS BY FILING SUIT

That is pretty intimidating for many people including me. There is nothing you can do but to comply or go to the court and get a judgment against me from the judge.

So now, I have reply to H&H by stating that from now on we will play by my rules even though they may not be any different from the court rules, and by doing so I have sent a strong message to the bully and quash all his threats into a dust and put him on defensive.

Basically within 7 days I got him to pay me $200 filing fee and $1,600 of cost and served him that I am suing him for $100,000 re FDCPA violation wherein I have prima facie case for at least one cause of action and that is very chilling. You cannot achieve same by any court motion.

So this is what it is all about.

Appeal sucks, it is very limited unless you are granted a trial denovo which never happens accept for small case and if you lose you pay additional attorney fees. Since I am in pro per I can't never ask for the attorney fees from the other side. Big disadvantage.

Strategically it is big winner to zap him with an arbitration.8-)

Edited by sub00
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What are your damages?

As a daytime FX trader, I was so shock, destructed, terrorized and temporary incapacitated for about 3 Hours causing me not to close my open positions in a critical peek.

As result, I have lost about $100,000 and was forced to close after the market conditions turned against me and the EURUSD dropped about 100 pips of which gain I was trying to use, among other things, to pay off HSBC and CAP1 validated amounts.

This would and couldn't happen should I receive an initial written contact notice which would be in full compliance with FDCAP of which purpose is to prevent any terrorizing of the public.:rolleyes:

I should add that a temporary insanity based on tax and bill collectors pressures tactic are not uncommon.

FAQ: nascar, What is a purpose of the FDCAP in your opinion. To do what?

Edited by sub00
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It maybe calawyer, but the best lawsuit is when settled out of court. In order for that to happen one party must submit to another and that is done by way of an intimidation.

I am not really sure I understand what you mean. There are many folks on this board who have prevailed in state court in California and other states. If you prevail in California, you are entitled to recover your costs.

It may be less intimidating for some people to proceed with arbitrations as opposed to litigating in court. There are drawbacks to both procedures and you just can't say arbitration is always better in collection cases or court is always better. It depends on the circumstances. One huge drawback to arbitration is the lack of appeal. Not simply because you don't have that right. But also because the arbitrator knows that her ruling will not be reviewed by another court. In other words, the right of review acts as a check and forces the decisionmaker to comply with the law.

On the other hand, arbitration may be too expensive for JDBs and some JDBs who purchased contracts with mandatory pre-dispute provisions in them may be hoisted on their own pitard now that their chosen arbitation forum does not exist. My point was not to suggest one forum over another. It was simply to explain the true vices of some arbitration provisions.

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One huge drawback to arbitration is the lack of appeal.

calawyer; you are putting to much weight on an appeal as if a success to the litigation efforts is an appeal. Only losers appeal!

You know or should known that you can appeal only a decision based on some judicial error or misconduct.

The appeal is not second bite in the apple. (trial denovo)

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calawyer; you are putting to much weight on an appeal as if a success to the litigation efforts is an appeal. Only losers appeal!

You know or should known that you can appeal only a decision based on some judicial error or misconduct.

The appeal is not second bite in the apple. (trial denovo)

And you are not listening to what I'm saying. The fact that you CAN appeal forces judges to follow the law. The real problem is that in arbitration if there is "judicial error or misconduct" and you can prove it, you still have no remedy.

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I am not really sure I understand what you mean.

calawyer, why do lawyers write threatening letters.... Huh?

If they are eager to go to court then they shout serve summons and skip threats.

Even during the actual proceedings, why do lawyers play like if a trial would be a poker game?

Why is there so much crapola from the lawyers.

Why the judges rule against the attorneys in pro pria persona?

Why the legal language is illegible without special training?..... why not simple English?

Why if you ask courthouse clerk a simple technical question about filing papers he/she will reply that they cannot give you a legal advise?

Why are civil laws written ambiguously subject to interpretation?

It is all fraud created to intimidate the public to rip the public off, wherein the judiciary, trial lawyers, corporations and special interest are the beneficiaries.

Edited by sub00
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And you are not listening to what I'm saying. The fact that you CAN appeal forces judges to follow the law. The real problem is that in arbitration if there is "judicial error or misconduct" and you can prove it, you still have no remedy.

If there is "judicial error or misconduct" you always have remedy.

Show me, in the binding arbitration, a clause which would say "judicial error or misconduct" is not subject to an appeal.

I should add that recent class action lawsuits against the arbitration forums shows that I am correct.

Edited by sub00
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Guest usctrojanalum

Conditions on which you can appeal and vacate an arbitration decision, it is extremely limited but here they are..

(1) where the award was procured by corruption, fraud, or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

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Conditions on which you can appeal and vacate an arbitration decision, it is extremely limited but here they are..

(1) where the award was procured by corruption, fraud, or undue means;

(2) where there was evident partiality or corruption in the arbitrators, or either of them;

(3) where the arbitrators were guilty of misconduct in refusing to postpone the hearing, upon sufficient cause shown, or in refusing to hear evidence pertinent and material to the controversy; or of any other misbehavior by which the rights of any party have been prejudiced; or

(4) where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final, and definite award upon the subject matter submitted was not made.

That is not limited at all it does cover all needs for a reasonable appeal IMO

In the court proceedings you can appeal frivolously but that toes not guarantee you that it will not be tossed out. Then what?

usctrojanalum, name one reasonable cause of action for court appeal which is disallowed under the arbitration.

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That is not limited at all it does cover all needs for a reasonable appeal IMO

In the court proceedings you can appeal frivolously but that toes not guarantee you that it will not be tossed out. Then what?

usctrojanalum, name one reasonable cause of action for court appeal which is disallowed under the arbitration.

Where they are ambiguities in the laws that are on the books and maybe you want a higher court to make a decision on said law.

An unintentional misinterpretation of the law by the arbitrator that had nothing to do with corruption, or the arbitrator exceeding his power.

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Where they are ambiguities in the laws that are on the books and maybe you want a higher court to make a decision on said law.

An unintentional misinterpretation of the law by the arbitrator that had nothing to do with corruption, or the arbitrator exceeding his power.

If such ambiguity exists you can always ask higher curt for an interpretation prior to the final decision is made by forum.... and if denied than you have a cause of action for appeal under 1) as listed above...... "undue means".

FYI the applet court will anyway screen your appeal on the same bases and if frivolous it will no be heard.

Again, successful class action against the NAF proves my point. It had chilling effect on the industry.

I should add that I have never seen any successful class action taken against any court..... therefore, the arbitration is more fair than the court system

In fact the judicial immunity is unconstitutional and there is nothing you can do about it.

Edited by sub00
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Let's see if the following example helps. After that, I'll leave this discussion for others.

JDB employee gets on the witness stand and says defendant owes this debt. When questioned, she answers that she knows this is true because an employee at OC who she has dealt with for 20 years told her so. Defendant objects on hearsay/foundation grounds. The trier of fact overrules the objection and finds for the plaintiff.

In a court case, this normally wouldn't happen because judges have to follow the rules of evidence and they don't like being reversed on appeal. But, if the judge did rule this way, the judgment should be reversed on appeal for error.

In binding arbitrations, rules of evidence typically don't apply (they CAN but normally don't). However, the arbitrator knows that there is no review of her decision. If the evidence is admitted over objection, plaintiff wins and there is no appeal.

Again, in any given arbitration, the arbitrator might well follow the rules of evidence and sustain the objection. The liklihood is increased, in my experience if the arbitrator is a former judge or even a lawyer.

Finally, I want to reiterate that I am not advocating one procedure over another. Both have pros and cons. I am just trying to explain one of the drawbacks to arbitration and why appellate review sometimes matters.

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