Jump to content

Can I elect arbitraion when doing discovery


donqII
 Share

Recommended Posts

Just a quick question.

Can I elect arbitration when I send my rog answers to them

and also my rog questions to them?

How would I do that.... a seperat page request or work

it into my rogs somehow.

I guess separate page.... ?

They sent me a wrong contract, by year but it does list

all 3.........

They said this is part of their evidence.

Link to comment
Share on other sites

First why Arb? OC or JDB?

In many states if you ingage in discovery you waive your Arb rights.

Check your RCPs. Read your state Arb laws.

Read and re-read everything you can (here and everywhere) before such action to go Arb. MOVE W/CAUTION.

Penn favors court mandated ADR type Arb.

Your in Penn - see, http://www.margolisedelstein.com/files/gallogly_arbitration_in_pa_6-06.pdf

"The Pennsylvania Judicial Code contains provisions authorizing each Judicial

District in the Commonwealth to adopt rules calling for the compulsory arbitration

of civil cases at 42 Pa.C.S. § 7361, and most, if not all state courts have now

adopted such programs, which have proven very successful in expediting the trial

and disposition of civil cases. The Judicial Code language is essentially only an

“enabling” statute, leaving it to the Supreme Court of Pennsylvania to adopt

appropriate Rules of Civil Procedure and the local Common Pleas courts to adopt

their own consistent Local Rules. The statute does, however, set the basic

parameters with respect to the types of cases to be submitted to arbitration based

upon the amount of damages claimed."

Case Laws:

A big case for you to review - RECENT:

United States District Court, E.D. Pennsylvania. Yulon CLERK, on behalf of herself, and all others similarly situated, v. ACE CASH EXPRESS, INC., d/b/a/ America's Cash Express.

Civil Action No. 09-05117. Jan. 29, 2010.

MEMORANDUM BAYLSON, District Judge.

I. Introduction

Presently before the Court is Defendant's Motion to Compel Individual Arbitration and Stay Litigation (Doc. No. 4), brought pursuant to the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1 et seq. For the reasons discussed below, the Court will grant Defendant's motion.

Which law governs a particular arbitration agreement is determined by

examining the language of the contract. Wingate Construction Co. v. Schweizer

Dipple, Inc., 213 A.2d 275 (Pa. 1965).

While it has been held that arbitration agreements do not divest a court of

jurisdiction, such agreements are binding upon the parties and will be enforced

absent proof of duress, fraud or unconscionability. Lytle v. CitiFinancial Services,

Inc., 810 A.2d 643 (Pa.Super. 2002); Reinhart v. State Auto. Ins. a$$’n., 363 A.2d

1138 (Pa.Super. 1976).

Orders compelling a party to submit to arbitration are

considered interlocutory and are not immediately subject to appeal. Erie

Insurance Exchange v. Midili, 675 A.2d 1267 (Pa.Super. 1996).

Any ambiguity as to the scope of an arbitration agreement appearing in an

insurance contract will be construed against the insurer as the party which drafted

the policy. National Grange Mutual Ins. Co. v. Kuhn, 236 A.2d 758 (Pa. 1968).

Because both the Judicial Code and the Rules of Civil Procedure call for a

trial de novo on appeal from arbitration, any local rule which purports to limit

the scope of a subsequent trial is invalid. See, e.g., Weber v. Lynch, 346 A.2d

363 (Pa.Super. 1975), affirmed, 375 A.2d 1278 (Pa. 1977),

If no appeal is filed within 30 days of the docketing of the award, the

court is to enter judgment on the award upon the filing of a praecipe to enter

judgment [Rule 1307©]. It has been held that an unappealed arbitration

award can have a collateral estoppel effect. Ottaviano v. SEPTA, 361 A.2d 810

(Pa.Super. 1976).

Edited by FL4answer58
Link to comment
Share on other sites

Don't stop counting your chickens just yet. Find out! I have heard of people asking right up until judgment. And yes it will depend on your state on when it is too late.

In my state we also have court ordered arb but can request/MTC private contractual arb. Can also request dismissal or staying pending arb.

Link to comment
Share on other sites

This whole thing has been odd.

OC.....

HSBC represented by Weltman Weinberg and Reis. (Supposedly)

They sent me a 2001 contract with their discovery.

Their discovery is a year after filing their complaint.

Their discovery was 2 doc requests...

#1 proof of Payments on this alleged account.

#2 what evidence will I be bringing at time of trial

Admit

#1 I got a card

#2 The statements they sent for evidence proove the debt is

correct.

#3 Last Payment on the account 1/09 (I did not make this...

long story... not for here and was not a full payment)

#4 I did not make any written disputes on the alleged account

#5 The amount being sued upon is a correct amount.

That is all........ I denied everything. Not doing my own.

I know all about our court mandated arbitration and WWR

mentioned the evidence they sent to me is what they

are taking to the arbitration hearing.... which has not been

set as yet, because no praecipe to the court from them has been done

as yet... and I certainly will not.

They are waiting for my answers to their rogs or a phone call re-payments.

Need to get the answer and my discovery requests in the mail by the 12th at the latest........ to be within the 30 days.

That is why I wanted to know if I can elect JAMS, which is so nicely mentioned, with the other 2 in the contract they are using for evidence,

when I send this stuff off to them?

Also... aside from the 2001 contract. The alleged account was closed

in 2002 by me. It was opened more then 30 years ago.

They sent 2 statements from 2001, when the account was still

open, and 4 statements from 2006 when it was closed......

This alleged account was defaulted on in 2008.

They said in their letter that this is proof of the debt and will be taken to

the hearing.

BTW not normal billing statements but some kind of a computer generated

stuff that you can not really make out which end is up.

In that very same letter with this supposed evidence and their

interrogatories, they suggest I call about making payment arrangements

or a possible settlement to stop litigation.

I have no money... I cannot. Plain and simple.

It is about an $1800 claim.

Link to comment
Share on other sites

Just read this: http://www.edcombs.com/CM/Special/collection%20defense%20feb%202010.pdf

Read it twice - it will help.

Otherwise, ...

IF OC (assume it is) JAMs on agreement - YES.

Thank you for the link.

I originaly thought they were a JDB because when they first started

calling in early 09 I sent a cease and desist, that they did honor.

Then another lawfirm sent me a note saying I was being sued and if I would pay them $695 they would guarantee that I would never see court and could get it dismissed. I thought that odd and did nothing figuring WWR was JDB

and they may be working together to get me to pay something.

A summons never came and I kept calling the sherriff if it was there so I could pick it up and not be served at my house... Long story.

Then I called WWR to see if they use the sheriff dept... Yes they do, but he was very nervouse talking to me and mentioned the cease and desist.

They had actually let time expire for service and my phone call made them

reinstate the complaint and I got the summons 2 months later.

It sure looks like it is OC..... I have to proceed that way.

I checked out WWR on Rip off and they are torn if WWR is a CA or a JDB.

Anyway, Again I thank you for the link.

I believe I will write a page to include electing JAMS.

Their evidence just seems all wrong for an OC, (but what do I know, I

never had this before)...

I guess the worst that can happen is they say no.........

And, hopefully will stop them from proceending if they think I know what I am doing. ( I don't)

But of interest is They list this as Complaint in Civil Action (Assumpsit)

Now the legal traslation of assumpsit is "a form of action at common law for the recovery of damages caused by the breach or non-performance of a simple contract, either express or implied, and whether made orally or in writing"

It in much more involved then this but basically is a breach of contract

suit. On the original complaint there was no contract attached. Only

the last billing statement from HSBC...

The contract naming JAMS came with their discovery to me.

What would happen at this point if I were to call HSBC and just ask them if they are suing me? Would that count as to my admitting a debt somehow?

Link to comment
Share on other sites

Assumpsit, the recovery of damages used in pleadings by the plaintiff to set forth the defendant's undertaking or promise.

It’s still just a breach of contract claim that through use of credit card, suggesting that docs indicate, the debt is assumed yours by law.

While not necessarily true – they still have to prove it.

Many states continue to recognize assumpsit as a common law or statutory cause of action or allow the use of the old "common counts" as causes of action. For example, California has a special "common counts" cause of action form (to be attached to an optional form complaint) based directly on the old common counts that were pleaded in assumpsit. The old plead somewhat a ceremony in term – defense may be shown under the plea of non assumpsit, – remains the same today.

I would not suggest Arbitration for this - IF a JDB - and based on the evidence you indicate - you can be successful in court.

Edited by FL4answer58
Link to comment
Share on other sites

Assumpsit, the recovery of damages used in pleadings by the plaintiff to set forth the defendant's undertaking or promise.

It’s still just a breach of contract claim that through use of credit card, suggesting that docs indicate, the debt is assumed yours by law.

While not necessarily true – they still have to prove it.

Many states continue to recognize assumpsit as a common law or statutory cause of action or allow the use of the old "common counts" as causes of action. For example, California has a special "common counts" cause of action form (to be attached to an optional form complaint) based directly on the old common counts that were pleaded in assumpsit. The old plead somewhat a ceremony in term – defense may be shown under the plea of non assumpsit, – remains the same today.

I would not suggest Arbitration for this - IF a JDB - and based on the evidence you indicate - you can be successful in court.

Thanks,

I will take that under advisement.

In any event it is a state mandated 3 panel arbitration board in Pa.

With Micky Mouse court proceedings before as I understand things.

Since there is not court/hearing date as yet I can only pray

that with my answers and my rogs to them that may stop things.

I honestly do not know if I can do the court hearing part and can not hire an atty. (I left a hearing on a speeding ticket, driving 34 MPH oin a 35MPH zone

with knees that almost buckled under me and sammered throught the entire thing)

So......... One day at a time.

Edited by donqII
Link to comment
Share on other sites

I honestly do not know if I can do the court hearing part and can not hire an atty.

I undersatnd court appearances can be scary to us - its the unknown and the idea that we hold such officials and Attys with respect, as we should. But remember you have rights as individual to due process. The judge can be scary. But, they know the law - they understand the debt deception of frivolous lawsuits filed by junk debt buyers – a relatively new and fast-growing segment of the debt collection industry. The cumulative impact of these judgments is enormous: Between January 1995 and July 2010, the top 26 debt buyers extracted an estimated $14-15 billion in judgments against U.S. residents. Debt buyer lawsuits are overwhelmingly concentrated in many districts based on computor models of best prospects most likely not to put up defense like those of low-income communities and communities of color, with devastating results.

If you look at known data we have on the debt buying industry, including an analysis of the debt buyer business model and collection methods you will note (several reports) they have increased claims by over 300% in these so called 'target' areas.

Some findings:

• Many are automatic judgments entered in favor of the debt buyer because the person sued did not appear in court.

• Virtually all (95%) of people with default judgments entered against them by debt buyers resided in low-or moderate-income neighborhoods, and more than half (56%) lived in predominantly black or Latino neighborhoods.

• Not a single person sued in the Court Sample(s) was represented by an attorney. Overall, only 1% of people sued by debt buyers are represented by counsel. Only 10% of people sued answered the summons and complaint.

• 41% of cases were brought by debt buyers who remained unlicensed.

• 35% of cases brought by debt buyers were clearly meritless, and 66% of these clearly meritless cases were brought against minority defendants.

• Less then 1% of JDB cases go to trial. Other indicaters report 0% go to trial.

"One prominent debt buyer saw a 95% increase in revenue from legal collections during the first quarter of 2009". In 2007, Asta Funding’s Chief Financial Officer put it simply: “We’re looking to sue.”

"In recent years, civil courts across the country have been overwhelmed by surges in debt collection filings. The Federal Trade Commission recently observed that “[t]he majority of cases on many state court dockets on a given day often are debt collection matters” and that the glut of debt collection cases has “posed considerable challenges to the smooth and efficient operation of courts.”

"Debt buyers typically do not purchase documentation of debts, such as credit applications bearing signatures, the contracts that applied to each account, account statements, or customer service records that would confirm or clarify fraud claims or customer disputes. While some debt buyers have a contractual right to obtain a portion of this information in a limited number of cases, this is far from the norm. In the vast majority of cases filed, debt buyers cannot provide documentation of the underlying debt. The law requires that debt buyers provide proof of their claims in order to win a case. If a debt buyer cannot do so, and the case is contested, the case must be dismissed."

"Most people are afraid of what might happen to them in court and are unprepared to defend themselves. Debt buyers take advantage of this imbalance of power to pressure people into unaffordable settlements on debts that cannot be proven. By contrast, in the rare event that an individual has counsel, debt buyers tend to abandon cases, presumably because they know they will have difficulty producing the documentation to prove their cases at trial.

--------------

So - now you know - don't be afraid to stand up to them - go have your case dismissed for lack of standing or what ever else they have not proven in the material facts.

Elmore v. McCammon (1986) 640 F. Supp. 905

.. the right to file [or defend] a lawsuit pro se is one of the most important rights under the constitution and laws."

The Fourteenth Amendment (Amendment XIV) to the United States Constitution was adopted on July 9, 1868 as one of the Reconstruction Amendments. Its Due Process Clause prohibits state and local governments from depriving persons (individual and corporate) of life, liberty, or property without certain steps being taken. This clause has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive rights and procedural rights. Its Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction. This clause later became the basis for Brown v. Board of Education (1954), the Supreme Court decision which precipitated the dismantling of racial segregation in the United States

---------------

*NOTE:

There are those on this board who assume it is the “pro se'rs [who] are not versed in the law or procedure” who clog the courts and add to the problem of abusing the legal system.

I do not agree with the presumption that Pro Se litigants clog the dockets. The facts just don’t support the claim by those misinformed individuals. Court docs and reported numbers are readily available and indicate few debt claims are challenged by Pro Se and most go un-challenged in default. So to those who claim Pro Se ‘clogging’ - their math just doesn’t add up. JDB’s clog the courts – a fact - not Pro Se defendants of such law suits. The dozen or so reports from the courts records, federal orgs to legal aid orgs have proven this beyond a reasonable doubt.

Edited by FL4answer58
Link to comment
Share on other sites

Thank you FL4answer58,

Very well put and understood.

But I am 90 % sure this is OC...........

Therefore rules are different.

I can not prove that they are not entitled to their judgment

if they are OC.

I can not even use all my rogs to them because I do not

want to be perceived that I do not know what I am doing

by asking for chain of custody, or proof of assinment

when this may well and likely is

a hired atty working for the OC.

It is their dag gone stupid stuff they have sent me so far that

makes me think at least they may be.

I will know a little better after they answer my discovery.

Yes, it is daunting going into court to answer in front of a judge.

I will be going to answer in front of 3 attorneys ( court appointed arbitors who if I loose, from my understanding I can appeal, but to do that I need to pay arbitor fees of up tp 50% of the amount in dispute that are not refundable) and any of these may be a retired judge.

How can I prove an OC is not entitled to a judgment on this alleged debt?

I am working on it..........

Link to comment
Share on other sites

Guest Anne Tyler

As to the courts being clogged, indeed they are, but as you point out it is not by defendants to the JDB suits but by those filing them hoping for a default judgment when they know they have no proof. If nobody shows they get a judgment even with zero proof. I'm sure in my case that the judge and attorney considered me to be clogging up the system by actually showing up for court and having answered the complaint.

It seems to me that could be cleared up if they had to show at least that they purchased the debt before filing.

In my case currently, I pointed out in my answer to complaint and in my motion for summary judgment and dismissal and in my response to discovery documents that they had failed to state a claim under which relief could be granted them. I went to far as to say that they were on a fishing expedition for evidence because they themselves had no proof.

The judge continued the case twice anyway and then finally a default judgment because I did not show however I did not show because I was misled by the judge as to the hearing date.

I guess thats what the judge considers cleaning the slate/clearing the docket, not dismissing fruitless/abusive cases but filing default judgments to make room for the next victim.

Edited by Anne Tyler
Link to comment
Share on other sites

Guest Anne Tyler

"Most people are afraid of what might happen to them in court and are unprepared to defend themselves. Debt buyers take advantage of this imbalance of power to pressure people into unaffordable settlements on debts that cannot be proven. By contrast, in the rare event that an individual has counsel, debt buyers tend to abandon cases, presumably because they know they will have difficulty producing the documentation to prove their cases at trial.

--------------

So - now you know - don't be afraid to stand up to them - go have your case dismissed for lack of standing or what ever else they have not proven in the material facts.

It is a formidable undertaking to go to court pro se, especially if you don't have anyone to go with you. It feels like singular/solitary you against this huge machine and this man on the bench.

I've seen miscarriages of justice before in other kinds of matters, at least I thought it was a miscarriage. Divorce/Child custody is a hard battle and right now the pendulum has swung to favor women/mothers. It's one of the few ways you are guilty until you prove yourself innocent. Either sex, but mostly its females charging for orders of protection because of violence (which many judges and attorneys will admit its considered a tool, almost). Suddenly you are prohibited from seeing your children and you have to fight to get that right back even though you may be totally innocent of wrongdoing. Most times an order of protection is granted because for one, no judge wants to take the chance that this will be one of those cases where harm does result and then you A is going to be all over the news as having denied protection.

Anyway, I was going to say that overall I have respect for the courts except for domestic matters but then I realize I've seen miscarriages of justice in other matters too so actually I don't think I do have "respect" for the court, by which I mean I no longer assume that the judge is going to be a straight up guy and that I'm not going to get trampled.

I got a default judgment against me last year by the same K&F group because I was sick and I didn't know what to do and so I did nothing. They are trying to garnish but they can't find my bank account, so far they have hit up two of my previous banks where I no longer have funds. I do like the idea of them filing their garnishment orders and coming up with green eggs and ham. But I wonder how they do find your bank. No doubt if I paid a debtor who had been calling, I've had some offers to settle, but if I paid them I bet that info would go into the pipeline who my bank was.

Anyway, what I was going to say is this is the first time appearing pro se in a civil/debt collection thing and while I started out very intimidated, now that I have a better idea of the ruthlessness of it, and in my case even the judge being dishonest, I would be a lot more forceful next time around. For sure from now on when a judge tells me its continued to such and so I would ask he issue an order so stating.

It says in the Rules somewhere that a judge is supposed to avoid giving the appearance of favoritism or of not being impartial. That sure as heck is not the was Judge S. does it.

What you say is true, the attorneys for these JDB count on people being intimidated. Which is why Judge S's SOP bugs me because she (the K&F attorney) has her seat and desk nice and tidy up front close to the judge and they exchange convo's here and there about who knows what. She looks way comfortable with him and he always looks out for her. She never has to file a motion for continuance, he just continues the case on his own. So all that adds to the intimidation for people who show up pro se. I really feel sorry for some of these people who obviously have little education and in some cases don't speak good English trying to do this.

Once you see how dirty the game is. I have no doubt people are getting default judgments against themselves for debts they already paid.

So from here on, its a new ballgame for me.

Edited by Anne Tyler
Link to comment
Share on other sites

Guest Anne Tyler
FL4 is right. Once you're in discovery, it's usually too late. But I would fight on in court. Don't give up.

How do you know you are "in discovery"? I got served with discovery documents from them a couple months ago. I was going to do my own and send to them but as it now happens case being closed with a DJ that won't be necessary.

If I answer discovery documents am I in discovery. This judge never writes anything down, I keep seeing people talking about the judges entering orders for this and that and its made me realize how he just said stuff and thats the way it was.

Link to comment
Share on other sites

How do you know you are "in discovery"? I got served with discovery documents from them a couple months ago. I was going to do my own and send to them but as it now happens case being closed with a DJ that won't be necessary.

If I answer discovery documents am I in discovery. This judge never writes anything down, I keep seeing people talking about the judges entering orders for this and that and its made me realize how he just said stuff and thats the way it was.

The Plaintiff sends Interrogatories, Admissions and Production of Document

requests.

You generally are given 30 days to answer these and then you should be

asking for your own to be sent to you.

This will giove sone idea of evcidence they plan on bringing to court.

If you do not answer their request for admissions as denied, The court automatically assums you admit them. So if they have asked you, for example, to admit $XXXX.oo is the correct amount of the debt you owe on this account... and you have not answered in a timely manner, The court will say you agreed with this and likely give them their judgement.

You can look this info and about the proceedings under your states rules of civil procedure.

Link to comment
Share on other sites

Thank you FL4answer58,

Very well put and understood.

But I am 90 % sure this is OC...........

Therefore rules are different.

I can not prove that they are not entitled to their judgment

if they are OC.

I can not even use all my rogs to them because I do not

want to be perceived that I do not know what I am doing

by asking for chain of custody, or proof of assinment

when this may well and likely is

a hired atty working for the OC.

I disagree that winning against an OC is impossible. Two of my friends are being sued by AMEX, I helped them both to understand the system. One had her case dismissed, the other one can't provide a shred of evidence (not even a card statement).

Cases against the OC are totally winnable.

Link to comment
Share on other sites

I agree totally with admin on this one. It is much better to win in court with a dismissal with prejudice if at all possible.

OC's can be beaten. It might take a bit more research and diligence, but it can be done!

Best if you can get the dismissal with prejudice (even without would be good) and be done with this claim once and for all...

RL

Link to comment
Share on other sites

  • 3 months later...

I too want to thank EVERYONE who participates on this site for the FABULOUS resources you have provided. I just filed my NOA, Answer, Affirmative Defenses and COS and used the wealth of information you all provided. My Midland Case was filed by a law firm in FL who represents Midland, not the OC. If the statistics are correct I might be lucky. Thanks again.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.