Jump to content

Sent Request For Arb and Got A Hearing With Magistrate...


pmccravitz
 Share

Recommended Posts

Hello all:

I'm dealing with a lawsuit from Portfolio Recovery and I pulled the arbitration request. I followed the request with a motion to dismiss/stay pending arbitration to the court. As expected, portfolio didn't respond to the request for Arb and the court responded by setting up a pre-trial hearing with the magistrate. I figured the courts would at least stay the case but it doesn't seem to be happening.

What should I do next?

Link to comment
Share on other sites

What should I do next?

Getting the hell out of court arbitration !!!! and getting private contractural arbitration. The reason they did not oppose your request is because they will gladly let you go down the court arbitration route.

You want arbitration with JAMS, if you're going the arb route. You're thinking contractural arbitration and you're really in court arbitration. Not good, not good at all.

Link to comment
Share on other sites

I'm in Ohio, and I don't think this is court arbitration. Having a pre-trial with a magistrate is standard operating procedure in Ohio.

You need to insist on a MOTION HEARING instead of a pre-trial. You filed a motion, challenging the court's jurisdiction, so that should be the first thing on the table, before the court does anything further. The court needs to rule on your motion.

If the JDB didn't respond to your motion, then you should win by default.

You might want to contact your court clerk. Maybe you need to schedule a motion hearing with the clerk? I didn't have to do that, but maybe your local rules are different.

Link to comment
Share on other sites

Here's an update:

The JDB sent a response to my motion and it goes as follows:

Comes now Plaintiff, Portfolio Recovery Associates, LLC, by and through counsel, blah blah blah...

On or about (date) plaintiff filed a complaint in this court against defendant...alleging that Defendant is in default on an account owned by Plaintiff...Defendant filed Defandant’s Motion to Dismiss the Plaintiff’s Complaint, or, Alternatively, Motion to Stay Pending Arbitration...

Defendant argues that Plaintiff “cted as part of it’s Complaint the GE Money Bank cardmember agreement which it claims is binding on the parties in this case.” See Defendant’s Motion to Dismiss the Plaintiff’s Complaint. or, Alternatively , Motion to Stay Pending Arbitration. Plaintiff maintains that Defendant’s assertion is whnolly incorrect and misstates the facts as they relate to this matter. Plaintiff attached a copy or an account statement to its Complaint. See Plaintiff’s Complaint. Plaintiff did not, in fact, attach a copy of the cardmember agreement nor did Plaintiff’s Complaint reference a cardmember agreement. Id. In order for Defendant to successfully stay the above-styled action filed by the Plaintiff and compel arbitration, Defendant must be able to produce evidence that both parties did indeed agree to submit all disputes to binding arbitration. As Defendant has attached an agreement, which has no indication that it even applies to the within account, and this has shown no evidence that the parties did in fact agree to arbitrate the within matter, Plaintiff respectfully requests this Court deny Defendant’s Motion to Dismiss the Plaintiff’s Complaint, or, Alternatively, Motion to Stay Pending Arbitration.

In the alternative, Plaintiff requests a ruling on said motion be stayed until Defendant can produce evidence of an agreement between Plaintiff and Defendant, in which the parties agree to submit all claims to binding arbitration.

Defendant goes on to argue that the Court lacks subject matter jurisdiction and excerpts portions of the cardmember agreement the he would like to be controlling in this matter.....However, Defendant leaves out relevant portions of the agreement:

However, we will not require you to arbitrate: ... (2) any claim by us that only involves our effort to collect money you owe us.

Blah blah blah....As such, Plaintiff was permitted to file this action in the Municipal Courts and the Court has jurisdiction.

WHEREFORE, Plaintiff, ...respectfully requests that Defendant’s Motion to Dismiss the Plaintiff’s Complaint or .... be denied. Or, in the alternative, Plaintiff requests a ruling on said motion be stayed until Defendant can produce evidence of an agreement between Plaintiff and Defendant, in which the parties agree to submit all claims to binding arbitration.

What can I do now?

Link to comment
Share on other sites

Did you include an affidavit stating that the agreement you are using for the arb clause is in fact the agreement that governs the account, to the best of your knowledge and belief?

If not, you should do that. Your affidavit becomes evidence. For the JDB to counter it, they would have to get someone with personal knowledge, from the OC, to claim that the agreement you are using does not apply to the account in question. Only someone from the OC has that knowledge. The JDB doesn't.

Does the agreement include the typical language, that if either party elects arbitration, then neither party may litigate in court? If so, hammer that home, that you elect arbitration, and, under the terms of the agreement, either party's unilateral election is binding. There is no need for both parties to agree to arbitrate.

You should file a reply to their response.

Their excerpt that "we will not require you to arbitrate" their collection attempts is inapplicable. They are not requiring you to arbitrate. You are the one that wants arbitration.

Keep fighting. You can win this.

Link to comment
Share on other sites

Thank you. I've not done an affidavit before. Are there examples on this forum?

Here's the entire arb clause from the card member agreement. It mentions "upon demand, and except as otherwise provided below, you and we must arbitrate". I'm not sure if that's sufficient to state that they can't sue if I elect arb. Thoughts?:

"DISPUTE AND CLAIM RESOLUTION (INCLUDING ARBITRATION) PROVISION.

General/Requirement to Arbitrate. PLEASE READ THIS PROVISION CAREFULLY. UNLESS YOU SEND US THE REJECTION NOTICE DESCRIBED BELOW, THIS PROVISION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED. This Provision replaces any existing arbitration provision with us and will stay in force no matter what happens to your account, including termination.

Upon demand, and except as otherwise provided below, you and we must arbitrate individually any dispute or claim between you, any joint cardholder and/or any additional cardholder, on the one hand; and us, our affiliates, agents and/or dealers/merchants/retailers or participating professionals, on the other hand, if the dispute or claim arises from or relates to your account. However, we will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) any claim by us that only involves our effort to collect money you owe us. However, if you respond to a collection lawsuit by claiming that we engaged in any wrongdoing, we may require you to arbitrate.

YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY CARDHOLDER WHO IS NOT A JOINT OR ADDITIONAL CARDHOLDER WITH YOU ON YOUR ACCOUNT (AN “UNRELATED CARDHOLDER”), AND YOU AGREE THAT NO UNRELATED CARDHOLDER MAY BRING ANY CLAIMS AGAINST US ON YOUR BEHALF. CLAIMS BY YOU AND BY AN UNRELATED CARDHOLDER MAY NOT BE JOINED IN A SINGLE ARBITRATION. Only a court may decide whether any part of this paragraph is enforceable. If it is finally determined that this paragraph is not fully enforceable, only this sentence of the Provision will remain in force and the remainder of the Provision will be null and void, provided that the court’s determination concerning the enforceability of this paragraph shall be subject to appeal.

Starting an Arbitration. If you or we elect to arbitrate a claim, the electing party must notify the other party in writing. This notice can be given after the beginning of a lawsuit and can be given in papers filed in the lawsuit. Otherwise, your notice must be sent to GE Money Bank, Legal Operation, 950 Forrer Boulevard, Kettering, OH 45420, ATTN: ARBITRATION DEMAND and our notice must be sent to the most recent address for you in our files. The party seeking arbitration must select as the arbitration administrator either the American Arbitration Association (“AAA”), 1633 Broadway, 10th Floor, New York, NY 10019, AAA - Arbitration, Mediation and other forms of Alternative Dispute Resolution (ADR), (800) 778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, JAMS Arbitration, Mediation, and ADR Services, (800) 352-5267. If neither the AAA nor JAMS is able or willing to handle the dispute, then the parties will resolve their dispute in court.

The arbitration administrator will appoint the arbitrator and tell the parties what to do next. The arbitrator must be a lawyer with at least ten years legal experience. In making decisions or awarding remedies, the arbitrator must apply the same law and legal principles that would apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Provision, this Provision will control.

Arbitration Location and Fees. The arbitration will take place by phone or at a location reasonably convenient to you. Upon your request, we will normally pay all the fees the administrator or arbitrator charges, if we believe you are acting in good faith. We will always pay these arbitration costs, as well as your legal fees and costs, to the extent required under

applicable law or in order for this Provision to be enforced.

Governing Law. This Provision is governed by the Federal Arbitration Act (the “FAA”). Utah law shall apply to the extent state law is relevant under Section 2 of the FAA in determining the validity of this Provision. The arbitrator must follow: (1) the substantive law, consistent with the FAA, that would apply if the matter had been brought in court, (2) this Provision, and (3) the administrator’s rules. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award."

Link to comment
Share on other sites

An affidavit can be a simple as a statement such as this:

I, pmccravitz, being duly sworn, depose and say that:

- I am over 18 years of age;

- the cardmember agreement attached hereto is the agreement that governs the alleged account XXXX XXXX XXXX XXXX, to the best of my knowledge and belief;

and, further, affiant sayeth naught.

__________________________

Your signature

Sworn to and subscribed before me this ____ day of ______, 2012.

___________________________

Notary public

**********************************

Now, in the the arb language:

This is probably the definitive excerpt:

Starting an Arbitration. If you or we elect to arbitrate a claim, the electing party must notify the other party in writing. This notice can be given after the beginning of a lawsuit and can be given in papers filed in the lawsuit.

If you have given them notice of your election of arbitration, and your motion is such notice, then I think the standard has been met.

The subsequent part about sending the notice to GEMB is moot, as the account has been sold to a JDB.

Now, the JDB claims to have standing to sue you, as they have stepped into the shoes of the OC. Therefore the contract, all of it, applies to them. If it didn't apply to them, then they would not have the right to sue you. And they can't pick and choose only the parts they like.

Also hammer on ATT Mobility v Concepcion, a recent US Supreme Court case that verfies that arb clauses in contracts are to be honored.

Link to comment
Share on other sites

Now, the JDB claims to have standing to sue you, as they have stepped into the shoes of the OC. Therefore the contract, all of it, applies to them. If it didn't apply to them, then they would not have the right to sue you. And they can't pick and choose only the parts they like.

Also hammer on ATT Mobility v Concepcion, a recent US Supreme Court case that verfies that arb clauses in contracts are to be honored.

This is excellent info from nobk4me! Use it in your response.

Also, find the contract arb clause section "parties covered" (or similarly worded). The language should state that the arbitration clause binds the OC's predecessors etc to arbitration.

As stated in a reply, if JDB says that they are not a party to the contract, then they can NOT sue you under the acct's contract and think they can collect!

You can beat a JDB!

Also make sure you use JAMS not AAA!

Link to comment
Share on other sites

Oh, you are definitely winning. You have them arguing there is no contract agreement between you and them! So what is their lawsuit based on. If there is no contract, how can they justify the interest?!?

If you really want to have some fun, file a motion to dismiss for lack of standing since they claim there is no contractual agreement between them and you!

While what I just said may be fun, I would stick with the tried and true and file the affidavit.

Link to comment
Share on other sites

Ok:

Here is my response to the JDB's response above. Please let me know if this is ok. I'm not sure if I should add on the "alternative" requesting dismissal for lack of standing or if I've even properly done so:

On or about XX,XX, 2012, Plaintiff filed Response To Defendant’s Motion To Dismiss The Plaintiff’s Complaint, Or, Alternatively, Motion To Stay Pending Arbitration. See Docket for Case No. XXXXXX.

Plaintiff claims that Plaintiff was permitted to file its claim in the Municipal Courts and that the Court has jurisdiction over the claim by stating a portion of the agreement on the alleged account that does not “require” the Defendant to arbitrate (See Plaintiff’s Response To Defendant’s Motion To Dismiss The Plaintiff’s Complaint, Or, Alternatively, Motion To Stay Pending Arbitration). Defendant maintains that the provision cited in Plaintiff’s statement is inapplicable to the matter as Defendant elected arbitration and was not forced into arbitration out or “requirement”. The cardholder agreement states the right for either party to elect/demand arbitration:

“Starting an Arbitration. If you or we elect to arbitrate a claim, the electing party must notify the other party in writing.”

Defendant has properly enacted his right to arbitration by notifying Plaintiff in writing electing arbitration (See “” in Docket for Case No. XXXXXX). The provision of the agreement continues by stating that arbitration election may be given after a lawsuit has been filed:

“This notice can be given after the beginning of a lawsuit and can be given in papers filed in the lawsuit.”

Defendant has properly enacted his right to arbitration, which relinquishes Plaintiff’s right to claim in court:

“Upon demand... you and we must arbitrate individually any dispute or claim between you, any joint cardholder and/or any additional cardholder, on the one hand; and us, our affiliates, agents and/or dealers/merchants/retailers or participating professionals, on the other hand, if the dispute or claim arises from or relates to your account.”

As per the above, the court lacks jurisdiction on this claim.

In the alternative, Defendant motions a dismissal with prejudice of Plaintiff’s claim for Plaintiff’s lack of standing.

Plaintiff is claims to be the assignee of GE Money Bank. By claiming to be the assignee and owner of the account, Plaintiff is, therefore, bound by the applicable agreement (See “26. ASSIGNMENT.” of the “agreement’). Plaintiff failed to provide a copy of the applicable agreement in its complaint that was signed by Defendant. In failing to provide a copy of an applicable agreement, Defendant argues that Plaintiff lacks standing to pursue this claim.

WHEREFORE, Defendant respectfully requests that Defendant’s Motion to Dismiss the Plaintiff’s Complaint or, Alternatively, Motion to Stay Pending Arbitration be upheld. Or, in the alternative, Defendant motions a dismissal with prejudice of Plaintiff’s claim for Plaintiff’s lack of standing.

Respectfully Submitted,

Link to comment
Share on other sites

Also, not knowing which GEMoneyBank agreement you're looking at - but, the one I see does have the part about successors, assigns, etc., so that will cover Portfolio Recovery.

It also says that "they" will pay all fees up to $2,500 - so, this sets up a great plan . . . :rolleyes:

I'd file a motion to compel arbitration with the court, sending a copy to Portfolio and the attorney. I'd attach the agreement that you will be using and an affidavit saying that it is the agreement governing the account.

I'd also go ahead and initiate with JAMS "now" and in the cover letter cite the part about the creditor paying the fees.

That should pretty much ice the cake! xdancex

Link to comment
Share on other sites

Ok:

Here is my response to the JDB's response above. Please let me know if this is ok. I'm not sure if I should add on the "alternative" requesting dismissal for lack of standing or if I've even properly done so:

On or about XX,XX, 2012, Plaintiff filed Response To Defendant’s Motion To Dismiss The Plaintiff’s Complaint, Or, Alternatively, Motion To Stay Pending Arbitration. See Docket for Case No. XXXXXX.

Plaintiff claims that Plaintiff was permitted to file its claim in the Municipal Courts and that the Court has jurisdiction over the claim by stating a portion of the agreement on the alleged account that does not “require” the Defendant to arbitrate (See Plaintiff’s Response To Defendant’s Motion To Dismiss The Plaintiff’s Complaint, Or, Alternatively, Motion To Stay Pending Arbitration). Defendant maintains that the provision cited in Plaintiff’s statement is inapplicable to the matter as Defendant elected arbitration and was not forced into arbitration out or “requirement”. The cardholder agreement states the right for either party to elect/demand arbitration:

“Starting an Arbitration. If you or we elect to arbitrate a claim, the electing party must notify the other party in writing.”

Defendant has properly enacted his right to arbitration by notifying Plaintiff in writing electing arbitration (See “” in Docket for Case No. XXXXXX). The provision of the agreement continues by stating that arbitration election may be given after a lawsuit has been filed:

“This notice can be given after the beginning of a lawsuit and can be given in papers filed in the lawsuit.”

Defendant has properly enacted his right to arbitration, which relinquishes Plaintiff’s right to claim in court:

“Upon demand... you and we must arbitrate individually any dispute or claim between you, any joint cardholder and/or any additional cardholder, on the one hand; and us, our affiliates, agents and/or dealers/merchants/retailers or participating professionals, on the other hand, if the dispute or claim arises from or relates to your account.”

As per the above, the court lacks jurisdiction on this claim.

In the alternative, Defendant motions a dismissal with prejudice of Plaintiff’s claim for Plaintiff’s lack of standing.

Plaintiff is claims to be the assignee of GE Money Bank. By claiming to be the assignee and owner of the account, Plaintiff is, therefore, bound by the applicable agreement (See “26. ASSIGNMENT.” of the “agreement’). Plaintiff failed to provide a copy of the applicable agreement in its complaint that was signed by Defendant. In failing to provide a copy of an applicable agreement, Defendant argues that Plaintiff lacks standing to pursue this claim.

WHEREFORE, Defendant respectfully requests that Defendant’s Motion to Dismiss the Plaintiff’s Complaint or, Alternatively, Motion to Stay Pending Arbitration be upheld. Or, in the alternative, Defendant motions a dismissal with prejudice of Plaintiff’s claim for Plaintiff’s lack of standing.

Respectfully Submitted,

Your alternative request for relief, dismissal for lack of standing, would probably need more briefing. I would not include it at this point.

I would keep pounding on your arb rights. I would include a citation to ATT Mobility v. Concepcion.

Link to comment
Share on other sites

To add to this thread here's my proven strategy with JDB's in similar situations. Once served, and before the answers due, file with JAMS via FAX and Fax the JDB attorney. Include a cover letter demanding dismissal, and wait for the phone to ring. The first time I used this it resulted in a mutual walk within 12 days or so. No court involvement period, and it is done. Sent 2 faxes and 20 minutes on the phone. I had this kid so confused he almost paid me, and he even forgot his own address. Mutual walk, won't resell, no 1099c, CR deleted, and a few other goodies.

The second time, Well the phone didn't ring, I had to answer and at the same time I filed a MTC and they tried to bail out on the court date. I advised that while I'd be willing to let them drop the court case that I wasn't dropping my JAMS case. I told the kid that if I withdrew the JAMS case they'd simply sell it to someone else and eventually we'd be right back to square one.

Update coming in 3 days....;)

Edited by maggie22
typos
Link to comment
Share on other sites

  • 1 month later...

Ok, sorry for the delay and thought I'd post here as well so as to not leave the thread hanging. No new record here but basically I just completed a rinse and repeat with the same JDB- Portfolio, same exact procedure as above. This one took longer as this was with a different local firm and they ignored everything I did.

I was thus forced to File an answer and I also filed a MTC at the same time and scheduled a hearing date. They filed no response. The attorney that showed up for the hearing claimed he was trying to get ahold of me. I inquired if it were by telepathy, or indian smoke signals, because nobody called me period. We then went to talk in a conference room.

Offers were discussed: He asked me for an offer and although I never make offers I decided to mess with him so I offered $500, and he countered with $900. I replied: We have a deal! The attorney said really? I said sure, if you want to pay me more that's up to you.

He then indicated that he wouldn't be paying me, and I replied: Oh yes you will, you can pay me now, or pay me more later. I then said let's just go see the Judge, my coffee's getting cold.

He then indicated he'd just voluntarily dismiss the case prior to the hearing, and I said: Do whatever you want, but I refuse to withdraw the JAMS demand because they could just sell it and start everything all over again. The attorney said Well, arbitration ya know is very expensive to which I replied and so is paper and ink.

I advised him he'd wasted my time by forcing an answer and a MTC and I then handed him the dismissal paperwork that I had previously drafted and sent to his office. The case was then dismissed and I told him I see him in Arbitration.

I then waited a week decided to call the kid up and force a walk. I told him I had good news for him, that I was considering dropping the JAMS case and just suing in Federal court to help his client save some money and he'd be a hero.

I then quickly changed topic and asked him where the JAMS case was at? He indicated he hadn't heard from them. I then said here we go again, and told him there's this thing called a telephone with numbers on it and that he needed to call JAMS, get the case number to move things along.

Next, I told him to not do anything, that I'd do it and call him right back, followed by instructing him that since I'd already done all the work that for now we should just wait.

At this point I took a breath and said, Well, are you going to say anything or what? He replied: Are you talking to me? I said Listen, I don't think there's anyone else around but us, and Yes, I'm talking to you.

I continued on making contradictory demands and eventually I ended the call and achieved nothing. I was disappointed but think I confused him with my rapid fire topic switching.

10 minutes later he called back and offered a mutual walk. It's now done. Again, I know it was against a JDB but nonetheless an easy win and 2K now gone. Start to finish 2.5 months, most of which was spent waiting for the hearing date and execution of the release. It contained all bells and whistles, so no need for a NDA.:D

Link to comment
Share on other sites

I would have bought a blanket. That's because it'd be a cold day in...

before a JDB that paid approximately $100 would spend $800 for the JAMS filing fee followed by more down the road and all the while face potential exposure for alleged claims for which they are generally/routinely found liable.

In fact, they committed more violations during the wait for the release.

It is advisable to always think any plan all the way through and make sure and have an A,B,C just in case.

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.