Jump to content

Can/Should I use arbitration?


kja2s
 Share

Recommended Posts

I was just served a summons for court by September from Portfolio recovery associates on behalf of HSBC. I don't know what I am doing and I am trying to sort through all this research and information. Does anyone know if HSBC has an arbitration clause? If so could i still use it since they've already served me papers? Would it be benefitial to use the clause if it is there?

Thank you:confused:

Link to comment
Share on other sites

Yes, HSBC has an arb clause with JAMS, which is the preferred (for the consumer) forum.

I believe they (creditor) will also pay all the arb fees except the first $50.

I would go the arb route. It changes the cost-benefit analysis of debt collection, to the detriment of the creditor. The "big bill" in JAMS is over $20K! Which the creditor has to pay to go forward.

Check out debtorboards.com, which has a more vigorous discussion on arbitration.

Link to comment
Share on other sites

Yes, HSBC has an arb clause with JAMS, which is the preferred (for the consumer) forum.

I believe they (creditor) will also pay all the arb fees except the first $50.

I would go the arb route. It changes the cost-benefit analysis of debt collection, to the detriment of the creditor. The "big bill" in JAMS is over $20K! Which the creditor has to pay to go forward.

Check out debtorboards.com, which has a more vigorous discussion on arbitration.

Thank you for the info. To go for the ARB route, do I just call the plaintiff's autorney and tell them or are there papers I have to file with the court?

Thanks!

Link to comment
Share on other sites

Thank you for the info. To go for the ARB route, do I just call the plaintiff's autorney and tell them or are there papers I have to file with the court?

Thanks!

Read your courts rules of civil procedure. The procedures to follow are different in all states. In my state, you must file a MTC (motion to compel) Private Contractual Arbitration. You can file it in lieu of an answer, but it's expensive. $135.00. You must also attach the cardholder agreement from the year your account defaulted to the motion. But that's in my state. Again, read your RCPs and see how you have to do it.

If this is really the route you want to pursue, I recommend you read this link before you jump into it blindly....

http://www.creditinfocenter.com/forums/there-lawyer-house/298679-arbitration-may-not-your-best-defense.html

And whatever you do, never call the plaintiffs attorney unless you want to settle...

Edited by workingpoor
Link to comment
Share on other sites

Arbitration is a great tool to use "if" there seems to be a necessity for it. However, a lot of cases don't even have to go that route.

Without knowing more of your specifics it is hard to say.

If you could tell us more of the details without giving your personal information, we could better advise.

Ballpark figure for the alleged debt?

Year of the alleged default?

What evidence (if any) did they attach to the summons?

Link to comment
Share on other sites

Thank you for the info. To go for the ARB route, do I just call the plaintiff's autorney and tell them or are there papers I have to file with the court?

Thanks!

First, you should send the attorney a letter, by certified mail, stating that you are electing private, contractual arbitration to resolve this dispute and that you expect them to dismiss the court case within 5 days.

If they don't, then, depending on your state's laws and rules of procedure, you need to file either a Motion to Compel Arbitration, or a Motion to Dismiss, or in the alternative, to Stay Pending Arbitration.

It's best to do this before you file the answer.

Link to comment
Share on other sites

Arbitration is a great tool to use "if" there seems to be a necessity for it. However, a lot of cases don't even have to go that route.

Without knowing more of your specifics it is hard to say.

If you could tell us more of the details without giving your personal information, we could better advise.

Ballpark figure for the alleged debt?

Year of the alleged default?

What evidence (if any) did they attach to the summons?

Hi Linda, thank you to everyone for helping out.

I am being sued for just under $1,700 plus court costs, attorney fees, etc.

The acount was opened in 2008 and I allegedly defaulted in 2009.

The only thing I recieved was a piece of pink paper stating the court date and then attached to that was an affidavit. This is what the Affidavit said:

AFFIDAVIT

State of Virginia

City of Norfolk ss.

I, the undersigne, Elaine Freeman-Lark, Custodian of records for Portfolio Recovery Associates, LLC hereby depose, affirm and state as follows.

1. I am competent to testify to the matters contained herein.

2. I am an authorized employee of Portfolio Recovery Associates, LLC (" Account Assignee") Which is doing bsiness at Riverside Commerce Center, 140 Corporate Boulevard, Norfolk, Virginia, and I am authorized to make the statements, representaitons, and averments herein, and do so based upon a review of the business records of the Account Assignee and those recoreds transferred to Account Assignee from HSBC BANK NEVADA, N.A/GM ("Account Seller"), which have become a part of and have integrated into Account Assignee's business records, in the ordinary course of business.

3. According to the business records, which are maintained in the ordinary course of business, the account and all proceeds of the account are now owned by the Account Assignee, all of the Account Seller's interest in such account having been sold, assigned and transferred by the Account Seller on 7/27/2010. Further, the Account Assignee has been assigned all of the Account Seller's power and authority to do and perform all acts necessary for the settlement, satisfaction, compromise, collection or adjustement of said account, and the Acount Seller has retained no further interest in said account or the proceeds therof, for any purpose whatsoever.

4. According to the records transferred to the Account Assignee from Account Seller and maintained in the ordinary course of business by the Account Assignee, there was due and payable from (my name) ("Debtor and Co-Debtor") to the Account Seller the sum of $1,672.09 with the respect to account number ending in 5538 as of the date of 1/30/2010 with there being no known un-creidted payments, counterclaims or offsets against the said debt aas of the date of sale. Plaintiff believes that the defendant is not a minor or an incompetent individual, and declares that the defendent is not on active military service of the United States.

5. According to the records of said Account Assignee, after all known payments, counterclaims, and/or setoffs occurring subsequent to the date of sale, there was due and owing at the time this lawsuit was filed a sum of $1,672.09.

Porfolio Recovery Associates, LLC

(Signature)

Elain Freeman-Lark, Custodian of Records

Subscribed and sworn to before me on JUN 02 2011

(signature)

Notary Public

They did not attach any evidence whatsoever, and there were no instructions on how to "answer" the summons.

Also, the police officer who served me the papers told me that I needed to call the plaintiff's attorney with any questions and with instructions on how to procede....that didn't seem right to me.

Link to comment
Share on other sites

Also, the police officer who served me the papers told me that I needed to call the plaintiff's attorney with any questions and with instructions on how to procede....that didn't seem right to me.

You definitely do not want to call the plaintiffs attorney for advise on how to proceed!

Link to comment
Share on other sites

Did they attach a copy of the agreement? If not, you might want to read up on this - Tenn. R. Civ. P. 10.03

Look up (google) the case of Discover Bank v. Shirley D. Henson

To better answer your question about arbitration, go to debtorboards and ask on the arbitration forum. They have a lot more information gathered in regard to arbitration. The link is Debtorboards - Sue Your Creditor and Win! - Index For a debt this small, I don't think the creditor would want to arbitrate with you, so you might have them over a barrel!

Also, read through this thread as there is a lot of great information relating to your situation - http://www.creditinfocenter.com/forums/arbitration/298404-tennessee-general-sessions-court.html

Also, in General Sessions court, you do not need to file a formal written answer, but you need to appear in court to avoid a default judgment. :)++

Edited by Linda7
Link to comment
Share on other sites

If you have been served with a summons, you should not contact the plaintiff's attorney!:spank: You need to answer the summons. You need to send in a copy of the arbitration agreement showing the JAMS arbitration clause. You also need to send your Motion to Compel Arbitration as well as your Motion to Stay the Proceedings Pending Arbitration. This needs to be sent to both the court and the plaintiff's attorney. Your summons should state where to see your responses. :-)= Make sure you keep copies of everything. If your cardholder agreement states that you initiate JAMS, you need to go online and read what you need to do...such as fees, paperwork, etc. You can also talk to someone if you are not clear on what you need to do. :WuvMe:

Link to comment
Share on other sites

Linda---thanks so much for those links, I found a lot of really great informaiton. Based on one of the threads I read I've come to this conclusion.

So I think I am planning on submitting a sworn denial to the court since general sessions court in TN does not allow for a formal answer.

Here is what I plan to say:

"I swear that I have no recollection of this alleged debt and on information and belief am denying any liability for it. I demand strict proof, if it exists, and retain the right to amend my answers if the need arises."

I will get this statement notarized and then submit it to the court as well as the plaintiff.....

Is this a good plan?

Thanks!

Link to comment
Share on other sites

That's partly incorrect. While TN General Sessions court doesn't require a formal complaint or answer, that doesn't mean you can submit one (Unless of course your local district rules prohibit it). Mine in the 9th state circuit doesn't prohibit it.

Anyway. Some statutes you'll want to hang on to can be found here:

LexisNexis® Custom Solution: Tennessee Code Research Tool

(unfortunately Michie's has shut down their personal hosting and is now using lexis nexis. A little harder to navigate but still free!)

T.C.A. 62-20-127(d)(2)

Regarding Assignment of Accounts. Yep, you got it, file the sworn denial.

But there's more.

47-3-203 allows you to question the transfer and endorsement of the instrument (contract)

And if you have the contract, and ARB is available, I'd go there first.

My plan of action would be to file two motions.

One as a motion to compel arbitration since it's immediately appeal-able if the judge isn't going to abide by the FAA.

But if he refuses to compel and stay the case for arb, the MTD based on the sworn denial and lack of compliance of showing holder in due course, which means basically lack of staning under 47-3-203.

If you get into the UCC, which is pretty much all of what Title 47 of TN Code is, you may find a few more goodies you can throw at them.

Hope that helps. :D

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.