MG05

NEW DV ARB TACTIC

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You guys are trying to prove a negative. Just because you haven't gone inside a courtroom doesn't mean this is a result of this DV/Arb thingy.

PROOF would consist of the plaintiff going after you in court after the magical DV/arb letter and having the case dismissed because of it. Just because two things happen doesn't mean there is a relationship between these events.

The disservice here would be to allow people to publish this "method" and claim it works without proof to back it up.

No one is trying to PROVE anything. The title of the thread is "NEW DV ARB TACTIC". We said at the beginning that we would employ this "tactic" and see what the response was. No one has ever claimed that it is a proven legal procedure, because WE ARE NOT ATTORNEYS. We are NOT offering legal advise. We are sharing our own personal experiences. Period.

There is already a disclaimer at the top of this daughter board that says "USE THE ADVICE IN THIS FORUM AT YOUR PERIL! Arbitration is an unproven method." So why do you keep asking us to PROVE what is unproven?

This section is like skydiving. There are inherent risks and everyone that is actively posting is aware of the risks. http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=302710 We have warned away those who have posted here looking for easy answers, there are none.

If arbitration discussion and debate is not allowed on the site, then just say so and be done with it. Close this daughter board and forbid all talk of consumer elected arbitration.

If it is allowed, place your disclaimers and allow use to share our experiences without the constant, "prove it" interruptions.

This is your board, not ours. We either can have these conversations, or we cannot. Please let us know.

IMHO Chucky

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If arbitration discussion and debate is not allowed on the site, then just say so and be done with it. Close this daughter board and forbid all talk of consumer elected arbitration.

If it is allowed, place your disclaimers and allow use to share our experiences without the constant, "prove it" interruptions.

This is your board, not ours. We either can have these conversations, or we cannot. Please let us know.

IMHO Chucky

You can have them. I ask for proof constantly like I ask for proof on anything else. Why do I ask for proof? So we know what is legit and what it not.

In this thread alone, several members have stated that this method works. You can't say that without proof. I'm sorry you don't like the fact that I will continue to challenge this and any other method touted on this board which I don't feel have anything to back it up. It's my duty as a moderator.

If you think you're being picked on, you're right. Whether or not arbitration works is still unproven. I've allowed the discussions to go on in the hopes that proof will emerge one way or another. But I will call you on everything.

We've gone after other methods as well. Debt validation was a hot topic of debate for a long while (starting in 2000 before we decided it worked). The 623 method was one of these, method of verification as well.

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Recieved ruling on MTC today- Here is what happened, was just learning about this process recieved summons and complaint, answer complaint with denial and also sent letter of "Election of Arbitration with answer to Plaintffs attorney. Send second letter of Election and offered to initiate, send me the fee's to do so. File MTC and see ruling of court-

"Case #XXXXXX – Plaintiff Bad Bank VS. Defendant – Defendant’s Motion to Compel Arbitration and Stay Proceedings - DENIED, in part and GRANTED in part as follows: Upon consideration of the moving and opposing papers, the Court finds that the credit agreement at issue in this case does provide for arbitration of any dispute or claim regarding the obligations under the agreement. However, the Defendant has failed to comply with the requirement of initiating the claim with one of the proposed Administrators as required. In that regard, the motion to compel is denied without prejudice at this time.

Further, the Court finds that Defendant has not waived her right to arbitration of the subject dispute and did give adequate notice to Plaintiff of her intent to pursue arbitration of this matter. Therefore, all proceedings brought by Plaintiff against Defendant XXXXXXX in Superior Court, Case No. XXXXXX are hereby STAYED for sixty days ( 60 days) from today, to allow time for Defendant to properly initiate the claim with an Administrator as provided for under the agreement, including payment of the initial fees, request for waiver and/or reimbursement by Plaintiff. Further, the parties are advised that this case is re-assigned to Commissioner XXXXXXXX XXXXXXXX in Department XXXX for all purposes including trial. "

Bad Bank was 2 weeks from filing MSJ I talk to attorney on phone prior to filing MTC. Debt is under $4 we will file a claim, not the claim they want and they will get the bill to proceed.

I now have leverage to negociate, that I didn't have before, that is what this is all about. I also have a number of moves in court based on this ruling if they don't play ball I can haul them back in and ask for MTD, ruling was without predjudice on the portion of MTC that was denied.

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You can have them. I ask for proof constantly like I ask for proof on anything else. Why do I ask for proof? So we know what is legit and what it not.

What proof do you want? From what I read the people who are using it settle with DND. They don't go through the whole arb process. If I settled with DND, I wouldn't be stupid enough to go and post it on an internet forum.

In my case I was facing a SJ last (don't have my paperwork in front of me) October ish. Right now I have a stay pending arb. I wouldn't call it a win, just a stall.

CC are taking the arb clause out... If I understand where you are coming from, by the time it's proven to work, it will be too late.

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Bad Bank was 2 weeks from filing MSJ I talk to attorney on phone prior to filing MTC. Debt is under $4 we will file a claim, not the claim they want and they will get the bill to proceed.

I now have leverage to negociate, that I didn't have before, that is what this is all about. I also have a number of moves in court based on this ruling if they don't play ball I can haul them back in and ask for MTD, ruling was without predjudice on the portion of MTC that was denied.

Interested to see how this case turns out. Keep us informed.

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I am cofused why one would OFFER to accept arb. while it's a PROVEN fact that a JDB can rarely prove their case in court and obtain a judgement. Wouldn't acknowledging the existance of an arb. clause be legally construed as the acknowledgment of the existance of a contract?? Unless you're trueq or another equivalent, I think the arb. angle is still best kept for a defense against an OC. I know of several cases that have been lost because of an admission of the existance of the account, using the card, etc. I don't see how this couldn't possibly be a similar situation. Find an attorney that would use this angle themselves and I may see some merit in it but it seems to me to be very counter-productive potentially. Rip away!!!!

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I am cofused why one would OFFER to accept arb. while it's a PROVEN fact that a JDB can rarely prove their case in court and obtain a judgement. Wouldn't acknowledging the existance of an arb. clause be legally construed as the acknowledgment of the existance of a contract?? Unless you're trueq or another equivalent, I think the arb. angle is still best kept for a defense against an OC. I know of several cases that have been lost because of an admission of the existance of the account, using the card, etc. I don't see how this couldn't possibly be a similar situation. Find an attorney that would use this angle themselves and I may see some merit in it but it seems to me to be very counter-productive potentially. Rip away!!!!

No Rip necessary. It is just one method of many that is available. I think if you know you can get a far hearing in your jurisdiction, court may be the best answer against a JDB. But in some cases like this thread another section http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=302660, sometimes the local court is stacked against you.

I think reasonable minds can disagree without being disagreeable. Some of us have chosen this method and have had great success with it. Since we have used it effectively against OC we are now trying it out on JDB.

***DISCLAIMER**** I intentionally used the word trying. Trying this DV/Arbitration letter is an active experiment. It is not a tested method. It is not a proven method. It has no case law to back it up. We are commenting in this tread to update each other about the progress. As successes or failures occur, we will update the tread. If it does not work for us, we want to warn and inform others not to follow. If it does work and is held up in court as a legitimate legal move, we will share that also.

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Just a point on admission of the debt when exercising arbitration. I realize that it really depends on one's ability to finesse an argument, and the following is solely my opinion on the matter.

I strongly feel that it's possible to elect arbitration without acknowledging a debt is valid. It's all about the wording. Using the "If/then" construction of a claim nullifies outright admittance.

Consider the following two statements.

"This debt has an underlying arbitration agreement, and I hereby elect to resolve any dispute regarding it in one of the contractually specified arbitration forums."

"If a contract exists regarding the alleged debt, and said contract contains a provision for private arbitration, [implied "then] I elect to use one of the listed forums. Please provide a copy of the contract if you attempt to validate this debt."

The second does not admit that a debt exists, but only assets that if the CA is trying to collect on a debt, and they are claiming an underlying contract exists that makes it enforceable, then you would prefer to handle the matter in arbitration if applicable. It essentially shifts the burden to the CA to prove that a contract exists. In the event they can't, then you can bring up your own copy of a contract. If you're defending in the case, it's easy to make the disclaimer that you don't feel that the contract proves the existence of the debt but that it simply says that such disputes, including the validity and enforceability of alleged indebtedness, are to be handled in arb.

If they argue that arb doesn't apply, then they're arguing against any contract they could have used to prove contractual obligation.

I hope that makes sense, not one of my most articulate posts.

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I strongly feel that it's possible to elect arbitration without acknowledging a debt is valid. It's all about the wording. Using the "If/then" construction of a claim nullifies outright admittance.

Sure!..... only if you think that the Judge is stupid..... then what?

You are describing an admission by the omission. That is probably the most unintelligent thinking process, if any, then none.xchimpx

if the answer is 42 then there is no question else what is the question?

Edited by deadbeat00
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We're talking about a VoD letter here with preemptive arb, not a legal pleading where a plaintiff's allegations are deemed admitted unless denied.

The language I posted above would be insufficient to deny an allegation in court, in which case a graduated denial would better serve the purpose. Keep it in context, you're not pleading when you write to a CA.

You're applying a legal standard of proof to a non-legal situation.

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Sure!..... only if you think that the Judge is stupid..... then what?

You are describing an admission by the omission. That is probably the most unintelligent thinking process, if any, then none.xchimpx

if the answer is 42 then there is no question else what is the question?

The IF/THEN structure is an accepted form for a graduated denial. It is used all the time in answers to claims. So why would it be so foreign in a letter before a lawsuit is ever filed?

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With all due respect, I have read all the posts in this thread and most that are in support of this method seem to imply or allude to the fact that a contract is going to be introduced at sometime by the JDB. A JDB does not need a 'copy of the signed contract between me and the OC' to prevail in court- nor do they ever have one!!! Why acknowledge in any way the existance of a contract when you don't need to?? They 'graduating denial arguement' is stupid. If you were a judge how would you mentally process a statement like that? If a JDB never makes mention of a signed contract, who is going to force that clause? Maybe a judge would say "present a copy of the contract showing there is an arb. clause and then you can invoke it."There is no way to test this theory since you can never know if the DV itself kept any further collection activity away or if it was the arb. statement contained in the DV. As I said before, I believe trueq and some others may be using this arb. tool as an offensive weapon but for anybody that wants to make debt collectors go away and avoid judgements and paying altogether and don't have the time to invest in a cat and mouse game, your probability of prevailing is much higher by sticking to the notion that a JDB will always lack the evidence to prevail on an action in court.

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Henry1018,

Here are four post where members of this board have lost in court to JDB. Pro Se defendants do not always get a fair hearing in court.

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=302126

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=301589

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=299812

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=295893

My point is, there should not be a way for a JDB to win in court WITHOUT a contract. If there is no contract, what is there suit based on. It can't be account stated alone because of lack of consideration. They can only sue by "standing in the shoes" of the OC. To do that they have to show that the debt was due to the OC when they purchased the debt. Unfortunately judges have allowed them to prevail in SJ and at trial without any of this evidence.

Could you elaborate on why you believe my "graduating denial argument" is stupid? I thought it followed a solid path of logic. If a "graduated denial" is an established court answer - http://debtcollectionlawyer.blogspot.com/2006/08/how-to-not-pay-your-debt-or-beat_03.html - then when would it be inappropriate in a letter?

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Could you elaborate on why you believe my "graduating denial argument" is stupid? I thought it followed a solid path of logic. If a "graduated denial" is an established court answer -

Sorry- a little harsh on my part. My point is, you ask to invoke arb. Who says there is an arb clause? Are they going to acknowledge the existance of an arb. clause? why would they? They don't have the contract, they don't need the contract. They prove an account stated, they prove they own the debt. Done deal for most pro se's. Push comes to shove, the judge turns to you and says show me the contract and the arb language in it. Now what do you do?? I bet most JDB's will ignore the arb. statement in the DV since if they ignore it, it's on you to prove it exists. A consumer (just like an experienced attorney) should stick to proving the JDB's lack of a chain of ownership. This is the angle that many lawyers on this board have advocated in the past. I want to close with the best 'nutshell' statement I can think of. The arb. angle is probably the best approach against an OC but there are other PROVEN ways to defeat a JDB.

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FWIW, a graduated denial is simply a way of pleading in the alternative.

We realize that there are proven ways to beat a JDB, through the chain of custody attack and attacking lack of standing. But just because they're proven doesn't mean that every pro se is going to get a fair shake at using the strategy. There are extra-legal contextual variables to consider such as the inherent bias of the judge (either against a pro se litigant, or in favor of creditors) that shouldn't exist but do. Litigation doesn't happen in a vacuum as some of us would like to think it does, and this is a very important factor to be considered as a consumer. If you're facing a Mayberry judge who accepts the creditors allegations as fact from the get go (essentially putting you in the position of guilty until proven guilty anyway) who won't listen, no matter how sufficient a defense you put up, then the arbitration route is just another tool for use.

No one here is saying that Arb is the only way to go about defending a suit from a JDB. But the preemptive arbitration election can set up some interesting arbitration counterclaims in the event the contract is actually breached by the JDB.

You also have to factor in the cost benefit analysis that the JDB will inevitably have to consider, even for larger debts. If the consideration they paid for the portfolio is say 10 cents on the dollar, the 10k debt they're trying to collect becomes a cost issue. If you spent 1k on a debt, would you want to pay, at minimum 2.8k, just to be heard in JAMS (I realize AAA isn't necessarily as cost intensive)?

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Thanks LUEser. Or in my case with Portfolio Recovery Services the debt is less than $2.5k. So the arbitration issue makes more legal issue work for them to pursue such a small amount.

If you go back and read the begging of the thread, we are using ourselves as guinea pigs for the benefit of the rest of the board. If it works or doesn't work we will report back with our results. That is the intent of this thread. To prove it or disprove it based on our actual results.

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In my JDB case, the JDB plaintiff attached to their complaint an account statement from the OC, the cardholder agreement (or at least a cardholder agreement, not necessarily the one applicable to the account - it clearly had been faxed around a lot), and an affidavit supposedly from the OC which outlined everything they needed to prevail in a SJ. The affidavit was probably a forgery, but the burden would be on me to prove that.

Given my experience with the Mayberry court in two previous OC cases, in which I was threatened with financial ruin by the supposedly neutral magistrate at a pretrial, I had no doubt I would lose if I went through the traditional court process.

So I tried the arb strategy, and it worked. The case is stayed pending arb. The JDB attorney was obviously distressed at the motion hearing, watching the wheels come off his case, and scurried out of the courtroom, tail between his legs.

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We're talking about a VoD letter here with preemptive arb, not a legal pleading where a plaintiff's allegations are deemed admitted unless denied.

In that case it would be prudent to rely on the language of the original trueq's wording. I do not have it in front of me but I do rectal that first he is asking for existence of the contract, then for existence of the Arb. clause and if they all exist then he is electing the arbitration to resolve this matter.

The denial of the alleged debt is contained in the DV letter itself.

So it does not matter if the debt allegation will be adjudicated or arbitrated. There is no inherent admission of the guilt.

There is no need for any hot dogging around it.

Edited by deadbeat00
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In that case it would be prudent to rely on the language of the original trueq's wording.

There is no need for any hot dogging around it.

If you actually took the time to read the thread, the "New Tactic" is to include a blank form to fill out, NOT changing Trueq's DV letter. :confused:

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If you actually took the time to read the thread, the "New Tactic" is to include a blank form to fill out, NOT changing Trueq's DV letter. :confused:

I was objecting to the following LUEser's hot dogging:

"This debt has an underlying arbitration agreement, and I hereby elect to resolve any dispute regarding it in one of the contractually specified arbitration forums."

"If a contract exists regarding the alleged debt, and said contract contains a provision for private arbitration, [implied "then] I elect to use one of the listed forums. Please provide a copy of the contract if you attempt to validate this debt."

i.e. "This debt has an underlying arbitration agreement" if you deny debt in DV then the above statement in the same letter is oxymoron.

Edited by deadbeat00
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The two statements were meant to serve as two separate examples. Not to be used together in the same letter. The first one implicitly admits there is a debt arising from a contract. The second one indicating how to not admit yet still preserve arbitration rights. What exactly is there to object to?

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That is pretty consistent with Trueq's Letter:

If the alleged agreement has any arbitration clause that waives your litigation rights over this alleged debt, we hereby invoke it.

Read it for yourself.

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=298824&highlight=trueq+letter

There is substantial difference between "this alleged debt" and "this debt".:roll:

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The two statements were meant to serve as two separate examples. Not to be used together in the same letter. The first one implicitly admits there is a debt arising from a contract. The second one indicating how to not admit yet still preserve arbitration rights. What exactly is there to object to?

Wrong!

The trueq's statement is intended to be used in the same letter!8-)

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Dude. we're on the same side here. I was talking about my two statements were not to be used in the same letter. Actually the first should probably be avoided at all costs. No need to twist my words.

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