angelique

Magistrate says he will not stay the case

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I filed a motion to compel arbitration and the magistrate denied it. He said he wll not stay the case but he would hear the case, and for me to file with the arbitration board. Now I need some advice what to do and should I file NAF,JAM OR AAA. Which would be the best.

TIA

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Wow … another story of the court system shafting the consumer … I am not familiar with West Virginia rules of court … so I certainly don’t want to steer you down the wrong path. Basically filing arbitration is somewhat moot at the moment if the court will not stay the case … File a motion of reconsideration with the court and provide them the arbitration complaint you filed with either JAMS or AAA … don’t send the money to either JAMS or AAA … just file the arbitration with the forum. Send a copy of arbitration complaint to the local counsel and OC/JDB and tell them if they continue to move forward in litigation you will file a separate lawsuit against every named person, attorney and business entity for breach of contract. If you get the movement to arbitration by the court or opposing counsel then pay the filing fee … These are the reasons to file preemptive arbitration …

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These are the reasons to file preemptive arbitration …

I'm not even sure that would do any good. If you get a dunning letter and initiate arbitration, or even if you initiate on all debts before dunning, it still won't keep them from ignoring it and filing a lawsuit anyway. And if the courts aren't going to enforce the FAA, like mine hasn't so far, you're screwed. Short of appealing to a higher court after losing case or something. Basically arbitration relies on the courts to be enforced, and if they won't do it doesn't matter when you file for arbitration.

What I'd like to know is if there is a way to hold the court, magistrate, judge, responsible for not enforcing the FAA as it says all courts have too. Basically I'd like to know if there is a way to get sanctions against the court and its officers for violation of the FAA.

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I'm not even sure that would do any good. If you get a dunning letter and initiate arbitration, or even if you initiate on all debts before dunning, it still won't keep them from ignoring it and filing a lawsuit anyway. And if the courts aren't going to enforce the FAA, like mine hasn't so far, you're screwed. Short of appealing to a higher court after losing case or something. Basically arbitration relies on the courts to be enforced, and if they won't do it doesn't matter when you file for arbitration.

What I'd like to know is if there is a way to hold the court, magistrate, judge, responsible for not enforcing the FAA as it says all courts have too. Basically I'd like to know if there is a way to get sanctions against the court and its officers for violation of the FAA.

Filing the separate and much more contentious lawsuit that will follow when they violate your rights and sue after the matter is "in arbitration" … not elect arbitration … not motion to compel arbitration with local court … but in arbitration filed and in place before any lawsuit was brought against you. This is the key … take them out of the game! :twisted:

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Judges can do pretty much anything they please. You may be able to file suit (or an arbitration claim) against the plaintiff and its attorneys for violations of the FAA and the corresponding state laws, though.

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Denial of your rights, and breaching the contract, under the FAA is a complex legal issue.

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I filed a motion to compel arbitration and the magistrate denied it. He said he wll not stay the case but he would hear the case, and for me to file with the arbitration board. Now I need some advice what to do and should I file NAF,JAM OR AAA. Which would be the best.

TIA

Hi angelique.

Did you answer the complaint before you filed a motion to compel. I have a case with AMEX & Zwicker & associates acting as their attorneys. I answered the complaint and then filed a motion to compel. Zwicker came back saying that because I answered the complaint I have waived my right to arbitrate the case. I am getting things ready for the hearing on this (15th April). I am wondering as well if I should initiate ARB with AAA as per the contract before the hearing,to give me some more ammo.Or will this just pee the judge off.

Good luck.

Mick.

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Yes, I answered the complaint and then ask for a motion to compel. I am filing with JAMS today. The arbitration agreement says I have 90 days after the complaint to file for arbitration, so I'm still within the time limit. I don't know if it will do any good but I'm filing anyway.

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Have you researched your state's law on arbitration? In my state, the statute requires courts to stay cases pending arbitration. There is no discretion, and a decision is immediately appealable, meaning no need to wait until the conclusion of the proceeding.

It helps to cite favorable case and statute law in your motion.

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What is up with these so-called "magistrates"? MG05's advice regarding pre-emptive arbitration is proving correct once again. How about filing a Writ of Mandamus to compel the lower court to arbitrate per the agreement or even appealing the matter directly to the federal level?

Correction: This should read "filing a petition for a writ of mandamus."

Edited by Cincinnaticus
Correction added.

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What is up with these so-called "magistrates"? MG05's advice regarding pre-emptive arbitration is proving correct once again. How about filing a Writ of Mandamus to compel the lower court to arbitrate per the agreement or even appealing the matter directly to the federal level?

Basically, the magistrate is ignoring the FAA and more then likely your own states Arbitration rules.

Even if you lose, all you do is file an apeal to a higher court. This will more then likely take about 2-3 years, in which case, you won't have to pay a dime until they decide. The higher courts of course will then recognize the FAA and your own States Arbitration rulings and they then will overturn the magistrates irregular verdict and will compel to Arbitrate.

The only thing that magistrate did is waste 2-3 years of both the Plantiffs and Defendants time.

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I filed a motion to compel arbitration and the magistrate denied it. He said he wll not stay the case but he would hear the case, and for me to file with the arbitration board. Now I need some advice what to do and should I file NAF,JAM OR AAA. Which would be the best.

TIA

From what you have written, you have two conflicting orders. Do you actually have the order from the court? Has an official order been made by the judge? When the case is filed in the court and you file a motion to compel arbitration and to stay the case, the judge has to rule one way or the other. If he orders arbitration, then you will need that order to submit the case to the arbitration forum which gives the arbitrator subject matter jurisdiction.

If he denies the motion to compel, you can immediately appeal that decision which will stay the trial court action until the issue is resolved in the appellate court. The same is not true for the party opposing arbitration. They can not appeal the decision and have to wait until the case is decided in arbitration.

6 Witkin Cal. Proc. PWT § 523

[§ 523] Self-Executing Agreement.

Some arbitration agreements are self-executing, that is, effective without court order. (National Marble Co. v. Bricklayers & Allied Craftsmen (1986) 184 C.A.3d 1057, 1064, 229 C.R. 653.) This is the case when the agreement expressly describes the procedure to be followed when a dispute arises. A party to a self-executing agreement may invoke the other party's duty to arbitrate by giving notice and complying with the other provisions of the agreed procedure. (Mitchum, Jones & Templeton v. Chronis (1977) 72 C.A.3d 596, 600, 140 C.R. 160.)

If the opposing party wants to object to the proceeding, the party may seek an injunction on the ground that there is no enforceable arbitration agreement. (Commercial Ins. Co. of Newark, New Jersey v. Copeland (1967) 248 C.A.2d 561, 564, 56 C.R. 794.) Alternatively, the opposing party may participate in the proceeding and raise the objection by a petition to vacate the award (see C.C.P. 1285, infra, §569 et seq.) or by opposing a petition to confirm the award (see C.C.P. 1285.2, infra, §566). (National Marble Co. v. Bricklayers & Allied Craftsmen, supra, 184 C.A.3d 1064.)

If the agreement permits a party to unilaterally proceed with the arbitration, a court may confirm the arbitrator's award in spite of the opponent's refusal to participate. (National Marble Co. v. Bricklayers & Allied Craftsmen, supra,

184 C.A.3d 1068.)

(2) Allegations of Petition.

The petition must allege that there is a controversy between the parties, that there is a written agreement to arbitrate, and that the other party has refused to do so. (C.C.P. 1281.2; see Graphic Arts Int. Union v. Oakland Nat. Engraving Co. (1986) 185 C.A.3d 775, 780, 230 C.R. 95 [petition to compel arbitration must allege facts demonstrating existence of arbitrable controversy; conclusory allegation that dispute exists are insufficient].) The petition must also set forth the written agreement and the arbitration provision verbatim, or a copy of the agreement should be attached. (C.R.C., Rule 3.1330.) However, for purposes of the petition, it is not necessary to follow the normal procedures for document authentication. C.C.P. 1281.2 does not require the petitioner to introduce the

agreement into evidence.

As a preliminary matter, the court is only required to make a finding that the agreement exists, not an evidentiary determination of its validity. (Condee v. Longwood Management Corp. (2001) 88 C.A.4th 215, 218, 105 C.R.2d 597 [in wrongful death action against residential care facility in which defendant petitioned to compel arbitration, court erred in denying petition on ground that agreement was not properly authenticated]; see 2 Cal. Evidence (4th), Documentary Evidence, §3.)

WAIVER DECIDED BY ARBITRATOR NOT COURT

(4) Federal Law. Where federal law governs arbitration, the question of waiver is decided by the arbitrator. (Butchers Union v. Farmers Markets (1977) 67 C.A.3d 905, 910, 136 C.R. 894; see Cione v. Foresters Equity Services (1997) 58 C.A.4th 625, 639, 68 C.R.2d 167, supra, §522 [in wrongful termination dispute, failure of integrated written employment agreement to address dispute resolution did not waive employer's right, as third-party beneficiary, to compel arbitration under employee's arbitration agreement with National Association of Securities Dealers that required

arbitration of employment-related disputes]; Omar v. Ralphs Grocery Co. (2004) 118 C.A.4th 955, 961, 13 C.R.3d 562 [where arbitration agreement was governed by FAA and plaintiff's waiver allegations involved nonlitigation conduct that necessitated interpretation of arbitration agreement, issue of waiver was for arbitrator to decide].) Under federal law, a party claiming waiver has a heavy burden of proof. (See Thorup v. Dean Witter Reynolds (1986) 180 C.A.3d 228, 225 C.R. 521 [employer's termination of plaintiff was not waiver of agreement to arbitrate termination disputes; termination was not inconsistent with that agreement].)

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Yes - now all of you are being exposed to the dangers of arbitration. Unless you are well versed in the laws of your state, you probably shouldn't attempt to do this.

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of being railroaded on SJ in your local Maybury court.

Given this story already, even the arbitrator experience at the NAF was more "fair" than this magistrate.

Just my impression.

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Yes - now all of you are being exposed to the dangers of arbitration. Unless you are well versed in the laws of your state, you probably shouldn't attempt to do this.

Admin I don’t mean to be disrespectful or come at you the wrong way but what are the dangers? As I see it … the minute you’re sued everything in this game is a danger. No matter whether we litigate in court or arbitrate the danger is all around you!

You could lose wages, property and anything else the corrupt legal system will take. I can only speak for me but arbitration has worked splendidly … I was looking at a huge judgment with an OC that ended up with a very nice settlement {better then was ever offered by the local law firm} and all JDB accounts have ceased collections except for one that I am in arbitration with …. And that looks perfectly good for me as I have the JDB dead on with a false affidavit and documents. I am not certain any judge in my jurisdiction would allow me to fight this JDB the way arbitration is allowing me.

Your disdain for arbitration surprises me as not one person in almost a year has commented once how they got taken in arbitration since the fall of the NAF and the ideas Trueq has presented. As a matter of fact how many people have succeeded in working great settlements or being to walk away from debts from the OC and more so the worst one of them all CAP1. The arbitration scorecard is not something made up by Trueq … it is readers and posters on this site who have succeeded using the principles arbitration.

The minute anyone can tell me how to beat the likes of Cap 1 or any original creditor who has all the documents against you and a debt that falls within the SOL then I will completely walk away from the idea of arbitration as a debt settlement tool. Anyone can beat a JDB in court if you use the principles here on the site … but why go thru all of that when they seem to run from having to cough up arbitration fees.

I know you’re here to help people and I don’t doubt for one minute that you have as much disdain for these scum as I do … but at some point you have to at least give the arbitration idea some type of validation. I am not here to push arbitration on anyone … but I will tell anyone that it is effective if used correctly and is a good settlement tool with the OC.

At the end of the day it is about helping those who need the help ... I know you and I are doing that!

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of being railroaded on SJ in your local Maybury court.

Given this story already, even the arbitrator experience at the NAF was more "fair" than this magistrate.

Just my impression.

Courts hate the consumer ... they see us as deadbeats who just walked out on a debt. No one in the court system looks deeper into what is causing these problems or what will happen to the consumer once the screw is put in. At the end of the day ... I would rather have someone who is paid $500 an hour to listen to my case in arbitration then a judge who takes gifts and graft from the debt collection attorneys. The debt collection game is fixed no matter how you look at it ... the real danger is being in debt to anyone ... never me again ... cash only baby ... good credit is not sexy or even needed ... it is stupid! I want a zero FICO score ...

Edited by MG05

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Courts hate the consumer ... they see us as deadbeats who just walked out on a debt. No one in the court system looks deeper into what is causing these problems or what will happen to the consumer once the screw is put in.

In my experience courts with democrats sitting as judges are very pro consumer and courts that have republican judges are very pro creditor. Politics are EVERYWHERE!

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I live in HEAVILY conservative county with conservative judges.

If you live in a metro area with liberal judges...yes, they can be pro-consumer.

Unfortunately, many of us live in Maybury.

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I live in HEAVILY conservative county with conservative judges.

If you live in a metro area with liberal judges...yes, they can be pro-consumer.

Unfortunately, many of us live in Maybury.

Maybury is all over ... I will take a seasoned arbitrator over the judges we have in my area!

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Admin I don’t mean to be disrespectful or come at you the wrong way but what are the dangers? As I see it … the minute you’re sued everything in this game is a danger. No matter whether we litigate in court or arbitrate the danger is all around you!

I don't see this as disrespectful at all.

The dangers: people who just think they elect arbitration and the case will go away - WRONG! Depending on the court, this could cost you a judgment.

  • I've had so many people contact me and tell me that arbitration was elected and awarded to the Plaintiff. They LOST.
  • As far as the score being touted on this board, some of the stays are being counted as wins. What happens when the case goes to court? Having your case stayed is NOT a win. It's a DELAY only. There is no win lose score which includes cases being won after stays on this tracked on this board that I can see.
  • You need to dig into your civil procedures to see if doing this is even an option. Many courts don't recognize this. Broke Bob's comment that " Judges can do pretty much anything they please." Really? Judges can rule based on nothing or their own whims? I think they would be removed from office pretty quickly. They based their ruling on laws. Do they have prejudices and make mistakes? sure. If you feel like fighting this case in court, please let us know what happens.
  • Arbitration is presented here like some miracle cure. If the judges don't agree with the arbitration, they are labeled as "corrupt".

trueq is very familiar with Wisconsin and also that they have favorable arbitration laws. This is why is he claims to be so successful. Yes, in SOME CASES the creditor has backed down, but it doesn't work every time.

I feel very protective of people who visit this board and want to make sure they are not being harmed by what's presented here. I can't help feel that some of the arbitration advice here is misleading because it is not complete.

Many people are crying on the phone to me because they lost cases stating things like "your board said that if I elected arbitration, my lawsuit would be halted. Well it wasn't, and I lost." Should they have done some research? Absolutely. But PLEASE, when recommending arbitration, be super cautious in your advice.

Edited by admin

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I don't see this as disrespectful at all.

The dangers: people who just think they elect arbitration and the case will go away - WRONG! Depending on the court, this could cost you a judgment.

  • I've had so many people contact me and tell me that arbitration was elected and awarded to the Plaintiff. They LOST.
  • As far as the score being touted on this board, some of the stays are being counted as wins. What happens when the case goes to court? Having your case stayed is NOT a win. It's a DELAY only. There is no win lose score which includes cases being won after stays on this tracked on this board that I can see.
  • You need to dig into your civil procedures to see if doing this is even an option. Many courts don't recognize this. Broke Bob's comment that " Judges can do pretty much anything they please." Really? Judges can rule based on nothing or their own whims? I think they would be removed from office pretty quickly. They based their ruling on laws. Do they have prejudices and make mistakes? sure. If you feel like fighting this case in court, please let us know what happens.
  • Arbitration is presented here like some miracle cure. If the judges don't agree with the arbitration, they are labeled as "corrupt".

trueq is very familiar with Wisconsin and also that they have favorable arbitration laws. This is why is he claims to be so successful. Yes, in SOME CASES the creditor has backed down, but it doesn't work every time.

I feel very protective of people who visit this board and want to make sure they are not being harmed by what's presented here. I can't help feel that some of the arbitration advice here is misleading because it is not complete.

Many people are crying on the phone to me because they lost cases stating things like "your board said that if I elected arbitration, my lawsuit would be halted. Well it wasn't, and I lost." Should they have done some research? Absolutely. But PLEASE, when recommending arbitration, be super cautious in your advice.

This is a good posting.

For me, arbitration is a no brainer. I fully understand the court system and the underlying cardholder contract. That doesn't guarantee I will always win, but I'm batting a thousand so far.

For someone who is looking for help defending a creditor lawsuit, but doesn't know of the games attorneys can and will play, arbitration can be a let down. Of course, that type of person is likely to also get railroaded in court. There is no easy answer to help that person.

My uninformed guess about many of the arbitration failure cases on this forum, is that they failed because they confused local court arbitration for AAA or JAMS. If a judge or attorney wants to steer you into local court arbitration or mediation, fight to the death to avoid it.

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I have come to the conclusion that election of arbitration does nothing but provide you a counterclaim in court if sued. I do believe that if you’re going the route of arbitration you take the fight immediately to the opposing party and initiate the claim. Arbitration is at the best a settlement tool with the OC and a great beating stick to the JDB.

Let me elaborate a bit on this process …

If you initiate an arbitration claim on the OC … they immediately have to fork out cash to continue the collection attempt. I think that minimal amounts of debt causes the OC to find the reasons to negotiate a better settlement then it might have had it filed suit and had the upper hand on the consumer. Simply put … it is cheaper to settle at 25 cents on the dollar then to shell out $2,500 to $10,000 in arbitration. Add the mix most consumers are on the brink of bankruptcy these are very doable strategies if presented carefully. I think that waiting to be sued by the OC is the worst thing you can do … again that is my opinion on the matter. I always preach elect and once the opposing side hires local counsel file arbitration … that is the 30 day window to play. I don’t trust the courts with arbitration because they are as clueless as most with arbitration. Before the OC pays the arbitration forum they will call to try and advert … this is the key time to negotiate and make the other side knowledgeable of your financial condition and if your close to bankruptcy. Not saying you should ever be dishonest but if you only have two pennies then you need to be upfront … I know that if your BK material they will not arbitrate and they will settle. On the other hand if you’re totally off your rocker with demands … they will arbitrate and the situation then becomes more contentious. You have negotiation power with arbitration but they have to know you will pull the trigger … what better way then having the matter on the arbitration forums desk.

Now the JDB is a completely different animal to me … I will arbitrate any JDB that even thinks about coming after me. The difference is this … at 6 cents on the dollar for bad debt it makes no sense to spend $2,500 to $10,000 in arbitration and they will fold. If they pay to arbitrate and yes I have one who has paid … you have a chance to make an impartial person truly understand what is going on with these bottom feeders. I had a 23 page arbitration complaint that listed everything about the purchase of junk debt and the actual costs of junk debt. I provided names and companies that would verify my complaint. No judge will take the time to read that or allow you the opportunity to present that in court. In arbitration with a fair forum they are paid to listen and listening fills the pockets of the arbitrator. I can spend as much time as they will allow me … bottom line JDB will not fund the current costs of arbitration. When the NAF was running full speed it was $250 for a complete one sided arbitration … and that guaranteed the OC/JDB a win!

I agree that if you think just electing arbitration will end the case your crazy … however a proper tactics in arbitration do work … if the NAF was up and running … this whole idea would be a moot point!

Luckily I have been fortunate with arbitration but I understand the limits and what it does and doesn’t do … it is not for the faint of heart. Yes you can lose in arbitration but then the confirmation of the award is another story … I myself have no fears with pulling the arbitration trigger … BEEN THERE AND DONE IT :twisted:

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I think the problem here is that both sides are correct.

Arbitration is a legal tool but like all legal tools, needs to be used correctly as part of a defense against a legal claim. Noticed I said part of. That is because arbitration should not be your only defense. Nor should arbitration be used if you have something better for your defense. The admin is correct in stating that arbitration should only be used after careful study. Yes, there are those who are having great success with it but there are many who try to use it and have failed miserably. We do not see those stories that much here.

Also, you talk about arbitration being used to get a case out of a Mayberry type court. If the judge is truly partial and is appointed rather than elected, what makes you think the judge would follow the FAA? Especially as more people like Trueq and MG05 use arbitration, the judges will simply find a way to keep it from being used if they have already made their decision. Your only possible recourse at that point is appeal but even there, that is an expensive proposition.

Again, arbitration is only a legal tool that should be used only after careful consideration and education. Not because one person on an internet board had good results with it.

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I think the problem here is that both sides are correct.

Arbitration is a legal tool but like all legal tools, needs to be used correctly as part of a defense against a legal claim. Noticed I said part of. That is because arbitration should not be your only defense. Nor should arbitration be used if you have something better for your defense. The admin is correct in stating that arbitration should only be used after careful study. Yes, there are those who are having great success with it but there are many who try to use it and have failed miserably. We do not see those stories that much here.

Also, you talk about arbitration being used to get a case out of a Mayberry type court. If the judge is truly partial and is appointed rather than elected, what makes you think the judge would follow the FAA? Especially as more people like Trueq and MG05 use arbitration, the judges will simply find a way to keep it from being used if they have already made their decision. Your only possible recourse at that point is appeal but even there, that is an expensive proposition.

Again, arbitration is only a legal tool that should be used only after careful consideration and education. Not because one person on an internet board had good results with it.

Good points … but if you have followed what I talk about I don’t let it get to court. I stop everything before suit is filed. I have had two lawsuits against me and came out favorably on both … I made my mind up that I don’t want to play in court because the entire process is unreasonable to me. When I see the courts bending over backwards for the collection attorneys I know this isn’t the place to make a mistake. Since those two I have deflected numerous attempts of collection and have one current arbitration moving forward.

Everyone makes choices for themselves and should not depend on the writings of someone on the internet. I followed Trueq for months before I used some of his ideas … they worked and I feel like I improved upon them moving forward for my own use.

Choices are what everyone makes in life … I made mine and share my experiences.

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I think the problem here is that both sides are correct.

Arbitration is a legal tool but like all legal tools, needs to be used correctly as part of a defense against a legal claim. Noticed I said part of. That is because arbitration should not be your only defense. Nor should arbitration be used if you have something better for your defense. The admin is correct in stating that arbitration should only be used after careful study. Yes, there are those who are having great success with it but there are many who try to use it and have failed miserably. We do not see those stories that much here.

Also, you talk about arbitration being used to get a case out of a Mayberry type court. If the judge is truly partial and is appointed rather than elected, what makes you think the judge would follow the FAA? Especially as more people like Trueq and MG05 use arbitration, the judges will simply find a way to keep it from being used if they have already made their decision. Your only possible recourse at that point is appeal but even there, that is an expensive proposition.

Again, arbitration is only a legal tool that should be used only after careful consideration and education. Not because one person on an internet board had good results with it.

Remember, if I judge ignores your request to arbitrate, you have a case for appeal. Will the creditor spend the money on appeal? Doubtful.

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