Linda7

The strategy and steps of arbitration

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This will be a series of posts regarding general information about the strategy and steps in arbitration. Please read all the way through as tidbits have been added from time to time.

 

A MTC arbitration is listed in post #8.  If you need one requiring a brief in support, you can find that in post #165.

A sample of a formal complaint is now listed in post #36 & #37.

Sample violations are listed in post #38.

Settlement negotiations are discussed in post #76.

 

A Motion to Clarify is listed in post #274.  This might be helpful to file back with your court (and ask for a hearing on your motion) if Citibank sneaks into AAA after a consumer has already filed in JAMS.

 

Sample letters to send to the creditor and their attorney "after" your MTC arbitration is granted are listed in posts #298 and #299. This allows the creditor an opportunity to "get out" of going into arbitration while the consumer gets what they want. Both parties are pleased with a mutual walk away.  The creditor saves money by not going into arbitration and paying the high fees, while the consumer gets the court case dismissed with prejudice, no selling of the debt, deletion of the negative tradelines and no 1099. 

Election letters, judge's order, affidavit, etc., are discussed in various posts.  Please read through the whole thread to glean any information that might be applicable to your situation.

 

Capital One has been using the argument against consumers that they took out arbitration in 2010 and even though your agreement from when you opened the account has a survivability clause, they say that due to their amending the agreement in 2010 - that arbitration is no longer an option.  See post #272 for a sample of a MTR (motion to reconsider) that can be filed if the judge rules against the consumer.  Or you can use the arguments in the MTR to orally argue the points if you have a hearing scheduled and Capital One brings up the Ross v BOA case.  *NOTE - the case cites are for Michigan.  You could use your own state's case cites and then use the rest of the MTR to support your argument.

In talking about election and initiation, please realize this is two separate things. Election is when you notify the creditor and their attorney (if it has gotten that far) that you elect arbitration. Initiation is filling out the forms to begin the proceedings of arbitration. If you are dealing with Citibank, you have to elect and initiate with JAMS on the same day to keep them from getting into AAA.

If you want to use arbitration, elect "early"! In some courts you waive your right to arbitrate if you participate in discovery or file other motions with the court. They take that as continued litigation. In Florida, you would want to send a letter electing arbitration to the attorney and creditor and then file a MTC arbitration with the court. Don't file an answer first or you waive your right to arbitrate. In some other states, you can file your answer along with your MTC arbitration and use as your first affirmative defense that you have elected arbitration which takes away both parties right to litigate. If you want arbitration, check your own state's rules to make sure you file correctly and don't waive your right to arbitrate.

If your agreement has arbitration, you can use this as a strategy to get the creditor out of court or keep them from ever getting into court. And why would you want to do that? Because in court, it doesn't cost the creditor much to pursue the collection of the debt. However, if you get into arbitration, it will cost the creditor a "lot" to pursue the same debt. Often times this will get them to walk away or at least give you great negotiating power to get a great settlement. Here's a thread which gives more information in regard to that - http://www.creditinfocenter.com/forums/arbitration/309878-cost-strategy-arbitration-why-works-consumer.html'>http://www.creditinfocenter.com/forums/arbitration/309878-cost-strategy-arbitration-why-works-consumer.html

Another good reason that one might consider using arbitration is due to the SOL of the debt. In most courts (not all) you can't successfully use the argument of the contract's language of another state's shorter SOL. However, there are a very few exceptions - with Florida quickly being one of them that comes to mind. In Florida you can stay in court and use another state's SOL. Read up on the Pincus case for more information.

Also, be sure and check to see if your state views credit card debt procedural or substantive or if your state might have a borrowing statute. However, for the majority of states, you're generally stuck with your own state's SOL even though the agreement may specifically say that it is governed by the laws of the state of Delaware or Virginia - they will still use your own state's "longer" SOL. Georgia is one of these states that comes to mind.

But, in arbitration your state's rules should be thrown out the window and the arbitrator will ask what state's laws you want to use, so you at least have the option of declaring that you are abiding by the contract's language and you both agreed to the contract which says that Delaware or Virginia will govern the contract. (If one of those is in your agreement). So, then if you wanted to use the shorter SOL, then you would have a reason to ask for a dismissal if the debt is beyond the SOL according to the laws of Delaware or Virginia. Again this will depend on your agreement's language, so read them thoroughly.

First, I would like to say to "read" your agreements! There is a wealth of information there and depending on who you might be up against, the agreements and/or even the years of the same creditor's agreements can be different. Always look for one that is more to your liking and use it as the governing agreement. If you attach an affidavit, that makes it a fact before the court. To defeat this, the creditor would have to provide authentic evidence or a witness from the OC with personal knowledge - anything else would be hearsay. So, in other words once you file your affidavit, you've just twined another obstacle in the creditor's path.

Think of the year the account was opened and what year the account defaulted, then look for any and all agreements that fell within that time period and find the one that best suits your needs. In particular, look for one that has JAMS as that is the best for choosing against a creditor as it costs the creditor a "lot" to pursue the collection of a debt when the consumer has elected JAMS.

Also, be on the lookout for a survivability clause in the agreement you want to use. Often the creditor will try to say that the agreement you chose is outdated and say that it has been amended to a newer agreement that is better for them - the newer agreement could have even gotten rid of JAMS. But, if you have an agreement that fell within the time period of when the account was opened and the default and it has the survivability clause, then you direct that to everyone's attention - even including that part in your MTC arbitration. The survivability clause should say something along the lines that it will survive "any" changes in the agreement, etc.

*Also, please note, this thread contains my views and opinions only and is not "set in stone".

**Also please note this is a work in progress and I will be stopping from time to time and then coming back to pick up from where I left off. My hope is to try and get all the information together in this one thread. :)++

Edited by Linda7
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The next thing we need to talk about is "when" is the best time to elect arbitration.

When you get a collection letter and you respond with a DV/dispute letter - that is a great time to elect arbitration "if" you know that you have an agreement that would work the way you want. This is a way to "set up" a violation against them. If you elect arbitration and they ignore it and sue you, then you have a nice violation to use.

Any mention of electing arbitration should always contain the mention of JAMS as I have heard that if your election letters do not specify JAMS, the creditor can use your election letter and initiate arbitration in AAA and if you have a choice - you definitely want JAMS!

I would then reply with something like this if your agreement has JAMS:
 

Your Name

Your Address

Their Name

Their Address

Account number they list on their collection letter ________________________


Date

Dear _________________________,

This letter is in response to your letter dated ______________________, 2011 (copy enclosed).

I dispute this alleged account.

As per the FDCPA, I have the right to request proper validation of the alleged debt.

I elect private contractual arbitration via JAMS to resolve any disputes between us.

All phone calls are inconvenient, so all communications need to be by mail.

 

Regards,

Your name typed

 

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Then you would wait to see if they go away, validate or sue you.

Sometimes they will go away or sell you to a junk debt buyer or if the one trying to collect was already a junk debt buyer, they may then sell you to yet another junk debt buyer and if they do, you just repeat the same process and remember - if the first one didn't want to fight, you know the ones coming along behind will probably have even less proof. Just remember with the new ones, send them the same DV/dispute and elect arbitration letter.

If they validate, check it carefully. Is it actually proof from the OC or if you're dealing with a JDB, did they go back to the OC and get the validation or is it just the JDBuyer's own validation? Read your state's consumer protection laws and see if they validated correctly and read the requirements of the FDCPA to see if the validation follows their rules. § 809. Validation of debts

Also, read up on the rules of the FDCPA in regard to your rights as you might find other violations that you can use - http://www.ftc.gov/bcp/edu/pubs/consumer/credit/cre27.pdf

Or did they not even validate, but sued you instead? If so, then you have them for not validating "and" suing you instead of honoring your election of arbitration. And don't forget, often times by doing this - they are also in violation of your own state's laws, so get familiar with them too. In some states, the violations are even trebled!

Edited by Linda7

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Now let's pretend they validated - whether they did it correctly or not - let's just say they responded with some sort of validation.

I would then respond with this short letter -

Your Name

Your Address

Their Name

Their Address

Date

Re: (The account number on their collection letters)

Dear __________________,

This letter is in response to your letter dated _____________ which was received on ________________, regarding the collection of the alleged account referenced above.

This matter remains in dispute and my election of arbitration via JAMS stands.

All phone calls are inconvenient, so all communications need to be by mail.

Regards,

Your Name Typed

*Or let's say in your agreement it states they "will" advance the fees - include a line something like this:

Pursuant to the terms of the agreement, I am requesting the advance of the arbitration filing fee.

Now keep in mind, this letter is setting up a few more things. Again, you are letting them know that you choose arbitration. If they sue you, they are in violation.

I also requested the fees because in "this" agreement it states that you can ask for the advance. If they don't comply, they again are in violation.

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I have seen some creditors stop when they receive the first letter.

Then again, I have seen stop after receiving the second letter.

However, at times they will plod forward and of course violating as you have already elected arbitration.

Now let's say that either they ignored your request for arbitration or what about in the cases that you never sent them any kind of dispute letter or election of arbitration letter or times that maybe you didn't even receive a collection letter, but now you suddenly have received a summons/complaint.

If you have received a summons/complaint - it is "too" late to start with a debt validation letter. If your agreement has the arbitration clause and if that is what you want, you need to immediately send to the attorney and to the creditor an election of arbitration notice which I will post a sample below.

*As an EXAMPLE ONLY - from this point on, I will pretend that I am dealing with either Capital One or a Junk Debt Buyer who has bought a defaulted Capital One account "and" there is already a summons/complaint.

In your instance, make sure that any quotes or terms are met using "YOUR" agreement - not the agreement terms/quotes I will be using in my sample!

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

If you want arbitration, you need to send a letter electing arbitration to both the attorney and to Capital One's address that they show in the arbitration provision.

If you want to elect and initiate, I'd send something like this. *The quotes are from a 2008 Capital One agreement. Make sure to send it CRRR.

Your Name/Address

Their Name/Address

_________________, 2012

Claim or Case #_____________________

NOTICE OF ARBITRATION ELECTION

Pursuant to Capital One cardholder agreement, I ELECT arbitration via JAMS to resolve all of our disputes.

As per the agreement, "If you or we elect arbitration of a claim, neither you nor we will have the right to pursue that claim in court or before a judge or jury."

The agreement further states, "You or we may elect arbitration under this arbitration provision with respect to any claim, even if the claim is part of a lawsuit brought in court."

As of this notice you must dismiss or stay any and all actions in regards to the alleged debt pending the result of the Arbitration.

___________________________(Your Name Typed)

Certified Return Receipt #_________________________

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*Another option to think about. Some people at this stage "only" send the election letter, while others not only send the election letter, but also include the JAMS demand papers with the election letter (which we will cover in posts below).

Moving along, I want to also discuss your answer to your complaint. You need to check in regard to your state as to "when" you file your MTC and your answer. Don't miss your deadline for filing your answer! However, in some states, you don't file your "answer" first or you waive your right to arbitrate. Florida is one such state. You must immediately notify the creditor and the attorney of your election of arbitration (sending the election of arbitration notice) and then file a MTC with the court. If you answer first, you waive your right to arbitrate.

In other states, you can file your answer and your MTC arbitration at the same time.

You'll need to check your state's rules as to which is the correct way to proceed or ask here and hopefully some members from your own state can tell you the correct procedure for filing in your state.

Below is a SAMPLE of an answer/affirmative defenses to a credit card case.

*Note that your answer will be different in some ways as well as some of your affirmative defenses. The answer/affirmative defenses below is just a SAMPLE - yours would be different! I'm putting this in below so that you will understand how to write to include the part about your election of arbitration.

You would first take this to a notary and sign in front of the notary at the bottom where the affidavit is. The notary will then put their stamp on it and you can then file it with your court and send a copy of it to the plaintiff's attorney. Make sure to send it CRRR.

Put in your court header and mimic it like they have it on the summons/complaint with the court name, plaintiff vs. defendant, civil action file number, etc. Check any names or dates, fill in addresses, etc.

Also, check your court's rules about anything special like double spacing, font size (usually 12 is what they say) - any special pleading paper, etc. You can probably tell a lot just by looking at the Plaintiff's complaint as to how they did theirs.

Make sure to scroll all the way down to make sure you get the whole thing with the affidavit and certificate of service.

DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT

Comes now the Defendant, pro se, and submits the following answer to Plaintiff's complaint.

1) Defendant ADMITS he is a resident of this county, but has elected private contractual arbitration pursuant to the terms of the governing cardholder agreement, which takes away both sides litigation rights in court.

2) Defendant is without information or knowledge sufficient to form an opinion as to the truth of Plaintiff's paragraphs (2-5) and must respectfully DENY Plaintiff's remaining allegations. Defendant holds the Plaintiff to provide the strictest proof thereof.

AFFIRMATIVE DEFENSES

1) Defendant states there is an arbitration clause in the cardholder agreement that takes away both parties litigation rights if elected by either party. Defendant has already notified Plaintiff's attorney of his election to arbitrate pursuant to the terms of said agreement and has filed a motion to compel arbitration with the court. This court lacks jurisdiction and proper venue to decide this matter as Defendant has exercised the binding arbitration agreement.

2) Plaintiff failed to state a claim upon which relief can be granted. Plaintiff has brought suit against Defendant as "suit on account", but has not provided the contract or any other valid and sufficient proof of agreement on behalf of the Defendant with the Plaintiff, whether expressed or implied.

3) Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

WHEREFORE, Defendant respectfully asks the Court to dismiss this case, or stay this case pending arbitration pursuant to Capital One Bank agreement.

Respectfully submitted this day, March ____, 2012

Your Name Typed, Defendant

Your Address

VERIFICATION BY AFFIDAVIT

Personally appeared before me the undersigned who on oath states that the facts set forth in this ANSWER/AFFIRMATIVE DEFENSES are true and correct to the best of his knowledge and belief.

_______________________________________

Your Name Typed Here and sign above, Defendant Pro Se

Witness my hand and official seal this the _________ day of __________, _________.

(SEAL)

____________________________________

Notary Public

My Commission expires:

____ / ____ / ________.

I CERTIFY that I mailed a copy of this ANSWER/AFFIRMATIVE DEFENSES to:

Attorney's Name Plaintiff's attorney

Attorney's Address

By: Your Name Typed, Defendant Date: March _____, 2012

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And then you'll need your MTC to file along with your answer/affirmative defenses. SAMPLE will be in the next post.

*Depending on your state, you might need to also include a brief in support of your motion. Please always check your court's rules.

*Please NOTE to any other members reading this - this sample of a motion to compel arbitration contains information from a Capital One 2008 agreement. If your original creditor is someone else, or even if it is Capital One, but you are using a different year agreement, the words citing the parts of the agreement will need to be changed to reflect the agreement you are using. Also, the way it is written, it can be used for any state.

Also note, this is my personal choice of a motion to compel and has been critiqued accordingly. I like it as I feel it touches base with all aspects needed.

Also, at the bottom of this motion to compel, I have included the certificate of service and a verification by affidavit. All of this, the motion to compel, the certificate of service and the verification by affidavit can all be within the same document. It will be more than one page, but can be included as one document, if you'd like. If you don't want to do it that way, you can do each one on a separate piece of paper.

Check with your court's rules and make sure that you know your filing requirements, the text size, spacing, etc.

Make sure to put your court's header at the top. Just try and duplicate how your complaint looks with the court's name, plaintiff v defendant and the claim/case number.

When you're ready to file, take it and sign it in front of a notary, so that your affidavit will be notarized. Then get two copies, file the original with the court, send one copy to the plaintiff's attorney and keep one copy for your files.

Also, when you file it, ask the clerk if you need to request a hearing for your motion. In some courts, there will be no decision on your motion, unless you have scheduled a hearing for it. Other courts will tell you that if it is needed, they will let you know. Just be sure and ask when you file, so that you have your bases covered.

Edited by Linda7

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As you can see, this motion to compel mentions 2 attached exhibits.

Exhibit A, is a copy of the election letter that is sent to the plaintiff's attorney.

Exhibit B, is a copy of the agreement. You need to highlight the portions in the agreement that have been cited in the motion to compel. In this instance, it would be the things listed in paragraph 4, a-e.

*If your court requires a brief in support of your motion, see post #165 for the motion to compel and post #167 for the brief in support.

 

**Also check to see if you need to request a hearing on your motion.

 

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND

DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING

ARBITRATION


NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about ___________, 2012, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2011, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY’S SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

B) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.

5. The Federal Arbitration Act (FAA) 9 USC, Section provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

 

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

 

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , http://www.law.cornell.edu/supct-cgi/get-us-cite?546+440"] 546 U. S. 440'>"http://www.law.cornell.edu/supct-cgi/get-us-cite?489+468"] 489 U. S. 468'>"http://www.law.cornell.edu/supct-cgi/get-us-cite?489+468"] 489 U. S. 468, 478 (1989) ."

7. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.



Respectfully submitted this day ________________, 2012


(Your name typed), Defendant, pro se



VERIFICATION BY AFFIDAVIT

Personally appeared before me, the undersigned, who on oath states that the facts set forth in this MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION are true and correct to the best of (his/her) knowledge and belief.

 

_______________________________________


Witness my hand and official seal this the _________ day of __________, _________.



(SEAL)

____________________________________
Notary Public

My Commission expires:

____ / ____ / ________.



I CERTIFY that I mailed a copy of this MOTION to:

XXXXXXXXXXXXXXXXX., Plaintiff's attorney
Their address


By: Your name typed, Defendant

Date: __________________, 2012

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Remember how we talked about using an affidavit to make the agreement you choose, a fact before the court? This is a SAMPLE of such and you would just attach it to your agreement.

*To support that the agreement you are using is the correct governing agreement and to make it a "fact" before the court, you can attach an affidavit like this sample below: (Sign on the line in front of a notary.)


COURT NAME





Capital One,
Plaintiff

Case No. or Claim No. XXXXXXXXXXXXX
vs.

XXXXXXXXXXXX,
Defendant

AFFIDAVIT



The attached agreement (see Exhibit
B) is a true, unaltered copy of (Name the bank - like Capital One's, etc.) cardmember agreement that contains the arbitration provision which governs the dispute between the parties for this alleged account.





Pursuant to 28 U.S.C. § 1746(2), I, XXXXXXXXXXXXXXXXXXXX, hereby declare under penalty of perjury, that the foregoing is true and correct, to the best of my knowledge, information and belief.


_______________________________________(Your signature)

XXXXXXXXXXXXXXXXXXXXXXXXXX (Your name typed)

Your address
City, State Zip Code


I, _________________________________, the undersigned Notary, hereby certify that XXXXXXXXXXXXXXXXXXXXXXXXXXX personally known to me to be the affiant in the foregoing affidavit, personally appeared before me this day and having been by me duly sworn, deposes and says that the facts set forth in the above affidavit are true and correct.

Witness my hand and official seal this the _____ day of _________________, 2012.



(SEAL)

____________________________________
Notary Public


My Commission expires:

____ / ____ / ________.

I CERTIFY that I mailed a copy of this AFFIDAVIT to:

XXXXXXXXX, Plaintiff's attorney
Their address
City, State and zip code

By: XXXXXXXXXX, Defendant

Date: __________________, 2012

Edited by Linda7

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And here are SAMPLES of Judge's Orders to go along with your MTC arbitration. You would put in your court header information, plaintiff vs defendant, case number, etc. and you could attach it as the last page of your MTC arbitration. It makes it easy for the Judge to check off the boxes that you want. Sometimes they will use your order and other times, they will draft their own order if it somehow differs in what they decide.
 

 

ORDER GRANTING DEFENDANT’S


MOTION TO COMPEL PRIVATE / CONTRACTUAL ARBITRATION

 

WHEREFORE, in consideration of Defendant’s Motion to Compel Arbitration, it is hereby ORDERED and ADJUDGED that Defendant’s motion shall be GRANTED.

It is further ordered:


________That this matter is Dismissed without prejudice

 

OR

________To Stay proceedings pending Private/Contractual arbitration.



SO ORDERED this _______ day of _______________, 2012

______________________________________________
JUDGE


Or if there is any reason to think the creditor might try and use AAA (Citibank is known for doing this!) instead of your choice of JAMS - then make an order similar to the sample below. If signed, this would keep the creditor from initiating at all as it gives the Defendant permission to initiate and with the order stating JAMS, the creditor could not initiate in AAA.
 

ORDER

 

IT IS HEREBY ORDERED that the Defendant will initiate in JAMS within thirty (30) days. The Defendant must notify both the Court and the Plaintiff in writing when arbitration has been initiated. If the Defendant fails to initiate arbitration within thirty (30) days of this order, the Plaintiff may proceed with its lawsuit.


Dated this ______ day of _________________________, 2012.


___________________________________________________
JUDGE

 

Edited by Linda7
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Some people go ahead and fill out their JAMS demand form and send it with their election of arbitration letter as we discussed previously. Others fill it out later and then file a copy with the court or take it with you to show the Judge that you're serious about initiating arbitration.

The JAMS form is here - http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf"'>"http://www.jamsadr.com/files/Uploads/Documents/JAMS_Arbitration_Demand.pdf"
 

Here is the information to put on the JAMS form. Add any of their attorneys and/or lawfirm that you are wanting to include are the respondants. Put in the names, addresses, etc. Their representative attorney, address, etc.

Be sure and add "all" respondents at the very beginning. This would be anybody else that you might have a claim/violation against in regard to your case - Individual attorney and/or law firm representing the creditor.

For instance, if you were going to have Capital One as the Respondent, but had violations on their attorney and/or law firm, you would fill out the JAMS demand along these lines:

RESPONDENT: Capital One, David L. Brack/attorney, Smithhouse & Bracken, Law firm

*Sometimes they will allow all the respondents you claim, while other times they won't allow them. It just all depends on each individual case.

 

Nature of Dispute - Consumer Arbitration, Consumer law violations and other torts (Or if you already know some of your violations, like FDCPA, FCRA, TCPA, violations of your state's consumer laws, breach of contract, etc., you can list it like that). Will be detailed in formal complaint which will be filed in accordance with JAMS Rules. All respondents will be named in the formal complaint *Do this, just in case you need to add anybody else. Sometimes they let you add respondents later, other times they won't.
 

Under arbitration agreement - cite the location of the arbitration provision - look at your agreement and then describe where the provision is - page numbers and mention to them that you have highlighted the arbitration provision.


For Claim and relief - Statutory and actual damages and other relief will be detailed in formal complaint.

 

Request for Hearing - Put your hometown to make them travel to you.

DO NOT CHECK THE BOX FOR EXPEDITED PROCEDURES.
Just leave it blank.

 

Sign it, etc., and last page is not for you - unless you are in California.

When you get everything filled out, send the creditor a copy and then send the law firm a copy. Keep the original so that you will have it to send to JAMS plus another copy.


Keep checking the USPS site to see when they receive their letters. Make a print out of the USPS delivery information as your proof of service - if you don't have time to wait for your green cards.


When you have proof they have received their JAMS demand packets or you get your green cards back, you're ready to send in everything to JAMS.

You'll need to send in the original of the JAMS demand, plus one copy of the JAMS demand, two copies of the complete agreement (and I highlight the arbitration provision), proofs of service where you sent the JAMS demands to the creditor and the attorney and a cover letter.

The cost for arbitration "initiation fees" in JAMS for the consumer is capped at $250. Some people go ahead and send in the whole $250, while others might send in $50 and ask JAMS to apply it toward their $250 and then make payments to JAMS on the remainder. This buys time while negotiations can begin. *However, I have recently read a thread at debtorboards regarding reaching a settlement before you finish paying your $250 and members are reporting that they still have to finish paying JAMS the whole $250 even if you don't go further into arbitration. The $250 is the filing fee and upon acceptance by JAMS, you will need to finish paying that part! *EDIT - others have simply dismissed their claims from JAMS and did "not" have to finish paying the JAMS filing fee, so this will vary from one consumer to the next. Read your agreements! In some agreements, it says the creditor "will" advance or pay your fees. In that case, you don't send in any money, but tell JAMS and quote from the agreement where it says the other side will pay and also be sure to mention in your election of arbitration letter to the creditor and/or attorney that pursuant to the cardmember agreement, I am requesting the advance of my fees to initiate arbitration.

I will add a sample of a cover letter in the next post.






 

Edited by Linda7
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Here is a SAMPLE cover letter that would go "only" to JAMS.

March 26, 2012

JAMS Resolution Center

Address

Your Name

Your Address

RE: Demand for Arbitration

New Consumer Case Filing - regarding account number _______________(put an identifying account number something maybe used on a collection letter or if you're already in court and the case was stayed, use the court/case number to identify)

Dear Sir/Madam:

Enclosed please find an original of the Demand for Arbitration (plus one copy), along with proofs of service and two (2) copies of the entire contract naming JAMS as an appropriate forum.

This matter involves a Consumer Arbitration.

The parties in this matter are: YOUR NAME (hereinafter Claimant), and XXXXXXXX, XXXXXXXXX and XXXXXXXXX as respondents.

Claimant is requesting full rules of evidence, and an in person hearing, to be held in my home town or within the federal judicial district.

Claimant also requests JAMS, bill fees to respondent per the terms of the agreement. **Only "if" it says that in the agreement!

A copy of the court order compelling arbitration, is also enclosed. **If you have already had your motion to compel granted and have a court order to arbitrate. If you are filing before the decision on your motion to compel arbitration, then you won't have a court order and would leave this sentence out.

If you should have any questions, please call me at XXX-XXX-XXXX.

Sincerely,

Your Name Typed

Edited by Linda7
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My next series of posts in this thread which will be posted at a later time, will be about your formal complaint and we will also talk about settlement negotiations.

Also, please feel free to add to this thread.

If you know any state specific information of what to do or what "not" to do in regard to arbitration, please share in this thread as it would be beneficial to other members as they begin their journey! :)++

Edited by Linda7

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Once you get the above steps done, you basically wait to see what happens.

The creditor might dismiss and walk away.

They might dismiss with the stipulation that you initiate.

They might do nothing and then you have to wait for the Judge to decide if your MTC will be granted.

If this does move forward into arbitration and the initiation fees are paid, then the arbitration is commenced and you will have to file a formal complaint.

A lot of times though, you will be offered a settlement "before" you have to pay your full JAMS $250 or even file your formal complaint. Remember, the creditor would rather take "less" than to pay the arbitration fees. This is when you are in a good place for settlement negotiations.

However, while you are waiting to see what's next - this gives you time to start getting your thoughts together about your formal complaint just in case you do have to file.

If it does move forward with the creditor paying their part of the fees, then it is commenced and at that time, you will need to file your formal complaint within 7 days for most cases as you'll usually end up with streamlined rules. For comprehensive rules (claims over $250,000) you have 14 days. You will also receive an arbitrator strike list from which you will select your choice of arbitrators. We'll discuss this a little more in another post. Also, at this time, the creditor will receive their next bill - somewhere in the neighborhood of $2,000-$5,000. This is another good place that the creditor might "rethink" this whole thing and offer you a good settlement.

Your formal complaint details your claims and will look basically like a court pleading with you being the "Claimant" and the creditor (and attorneys if you included them) as "Respondents".

You need to get your thoughts together as what possible violations you might have and then write them out like a story. Then using this, you can form your formal complaint.

It would be good to get familiar with your state's laws, consumer protection laws, fair business practices act, deceptive trade practices, anything that might could be used in addition to possible FDCPA, FCRA, TCPA, Fraud & Misrepresentation, Breach of Contract, possibly even physical and emotional distress, etc.

In some states, violations are even trebled, so it is important to search for your own state's laws in regard to your claims. This can be as easy as using the search feature on the forum and putting in your state's name and reading posts from other members. Or using google to search for violations that can be used in your state. There are a lot of resources out there - you just have to look.

If you need any help, I'm sure you can post in the "Is there a Lawyer in the House" forum and just title your post as "Needing help with (your state) violations", etc., and you should get a lot of help from our members.

I will be posting at another time, a "sample" formal complaint so that you can see how they are set up.

Edited by Linda7
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Now let's talk about the arbitrator strike list.

You would only see this "if" the creditor has paid their initiation fees. (Still more fees await the creditor beyond this point and still more opportunities for them to negotiate a settlement as their bills continue to mount up.)

You will be sent a list of names (usually 3-5) names and they will want you to put them in order of which would be your first choice, second choice and third choice. You are allowed to strike one out completely. This means that by no means do you want to use "that" arbitrator. If they send you 5 names, you get to strike two and then rank the remaining 3.

Now keep in mind that the creditor is also getting their strike list, so it is important that you "don't" let them know your choice or they will be sure to strike your choice from their list.

Check each arbitrator and see what they've done. Do a search of their names on "google", "bing", "yahoo", etc. If you find one that has worked pro bono, community work, consumer's rights, etc., that would be one that would probably be one that would be more consumer friendly and of course you would want someone like that. Try and stay away from ex-BK judges or anyone tied to the banking industry, etc.

Sometimes you will get to see the creditor's strike list before you turn in your list. If you do, strike their top choice off your list. That way you are making sure that you have gotten rid of their top choice.

Also, another key is to wait until the last possible minute to turn in your strike list. Don't miss your deadline though and make sure to synchronize the time zones so that you won't be late! By waiting until the last possible moment, hopefully the creditor won't have time to strike your top choice.

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Linda...this is really excellent work!! I can't wait to see your sample complaint!

This makes it so easy for everyone. Thank-you!! It is so wonderful of you to share your time and expertise in this area! I sure appreciate the time you put into this!

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Please pardon this question, As it may sound silly. Do you have to have a Violation or counterclaim agains an OC to elect arbs?

Some have the opinion that you must submit claims against an OC to elect or initiate a private arbitration. I disagree. You do not need to have violations.

If a suit is filed against you, you can elect private arbitration. You can simultaneously demand that the suit be dismissed or stayed in favor of the arbitration. At the same time, I believe it's best to initiate the arbitration.

If the OC does not comply with your demand, you can MTC arbitration with the court.

If you're aggressive, you can sue the OC and/or the Law firm and attorney for resisting your demand to arbitrate.

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Linda's examples helped me to gain a foothold on legal procedure and arbitration when I had zero knowledge on the subjects.

I just sent my JAMS demands out on June 15th, and I've already received a response. For a complete noob, I think that's proof positive that I did something right--and it's due to this thread.

The case is still up in the air but at least I don't feel like I'm completely in the dark about things anymore :)

Thank you, Linda7.

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Linda

Such awesome and detailed information. I have been struggling and happened upon your words of wisdom and think you for posting such detailed information. Regret not finding it sooner!

I do need some help as I am beyond some of the steps and this attorney is relentless.

this is the status:

Being sued by FIA card services /Bank of America

CC Agreement states must be settled thru arbitration forum JAMS AAA

Filed MTC

Filed response to Plaintiffs MSJ

Paid Jams fees/Plaintiff sent second notice/has not paid

Judge has not ruled on MTC. MSJ/MTD - Case on inactive calendar

Now Plaintiff requests interrogatories etc and in the event of denial of any of the matters herein stated, and subsequent proof thereof by Plaintiff , as per Rule 37© AZRCP, requests this court

order requiring Defendant to pay the reasonable expenses incurred in making said proof, including attorney fees.

Plaintiff has failed to provide proof that he owns this debt. Yes, I have received the usual affidavit and a CC application and statements for 3 months. Nothing more. This CC originated in 2003-2004.

Why now do I have to provide the information this JDB has refused to provide to me upon my request from him?

How would I proceed in answering the interrogatories that I do not want to answer. And personal information about who I was married to and proof there of and divorce proof?

I do not feel he is entitled to this personal information along with my proof of documentation.

As my MTC PCA has not been ruled on and this matter cannot be settled in a court of law...why all these requests as though it were going to be settled in court?

Please advise if this situation is a common one and if why and how I should respond.

Thanks

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Linda

Such awesome and detailed information. I have been struggling and happened upon your words of wisdom and think you for posting such detailed information. Regret not finding it sooner!

I do need some help as I am beyond some of the steps and this attorney is relentless.

this is the status:

Being sued by FIA card services /Bank of America

CC Agreement states must be settled thru arbitration forum JAMS AAA

Filed MTC

Filed response to Plaintiffs MSJ

Paid Jams fees/Plaintiff sent second notice/has not paid

Judge has not ruled on MTC. MSJ/MTD - Case on inactive calendar

Now Plaintiff requests interrogatories etc and in the event of denial of any of the matters herein stated, and subsequent proof thereof by Plaintiff , as per Rule 37© AZRCP, requests this court

order requiring Defendant to pay the reasonable expenses incurred in making said proof, including attorney fees.

Plaintiff has failed to provide proof that he owns this debt. Yes, I have received the usual affidavit and a CC application and statements for 3 months. Nothing more. This CC originated in 2003-2004.

Why now do I have to provide the information this JDB has refused to provide to me upon my request from him?

How would I proceed in answering the interrogatories that I do not want to answer. And personal information about who I was married to and proof there of and divorce proof?

I do not feel he is entitled to this personal information along with my proof of documentation.

As my MTC PCA has not been ruled on and this matter cannot be settled in a court of law...why all these requests as though it were going to be settled in court?

Please advise if this situation is a common one and if why and how I should respond.

Thanks

Look for an email. :)++

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A little confused. Do I send "Notice of Arbitration Election", "MTC" and "Demand for Arbitration before JAMS" all at the same time, or just the NAE and MTC and wait for the Judge to approve before JAMS?

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I was sent an advertisment from attorney stating I may be sued. Online I found the case information.

The CA is Cavalry. The local attorney is Nelson Ewin.

Case information states "CCS- Cerificate Arbitration-Subject To"

I am understanding from this thread that arbitration works for the consumer. Why would CA want arbitration?

thanks

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There are two types of arbitration.

  1. Court Ordered - mandatory
  2. Private Contractual Arbitration - elected

I believe that Arizona (I'm not from your state ) is one of the states that uses court ordered arbitration to relieve the stress on the court system. This is NOT the type of arbitration that this thread is addressing. This type of arbitration is NOT consumer friendly.

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Thanks, Savior.

So should I seek legal counsel?

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