Linda7

The strategy and steps of arbitration

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Rather than arbitration, you might be better off contacting a consumer attorney and suing them for FDCPA violations.  There will be no cost to you, as the collectors will pay the attorney fees.

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Here is a list of events that has happened.

 

My husband was served with 2 papers for previous payday loan debts on Saturday November 30th at 7pm.  Prior to researching the law we immediately emailed the email listed to work out a payment plan or settlement. The attorney listed kept pushing for my husband’s employment information. I told him I did not feel comfortable with giving him that information. His reply was that I was not cooperating and that if I was not going to cooperate then he didn’t feel it necessary to provide a payment plan.

 

Again before researching a couple days later I emailed him again asking for a payment plan. He replied offering a payment plan. That night I researched and picked up my contracts from the original creditors. Noticing that I had the option for arbitration. I emailed the attorney again stating I revoked my previous email, and will be electing arbitration via JAMS. He replied the next morning stating that for one of the debts I did not have the option for arbitration. I asking how that was possible I had the contracts in front of me. He then emailed back stating he would like me to send him a copy of the contract because he doesn’t have a copy that says I have the option for arbitration.  ( I have not sent him a copy)

 

He also had these papers served; I had my husband contact the court because there was no claim or case number. The court stated the served papers had not been filed with their court.  I have contacted the original creditor and the collection agencies who had these debts prior to the attorney, both locations say they no longer “own” the debt.  Yet on the paperwork that was served, the attorney lists himself as the attorney and the plaintiff as the original creditor. 

 

 

 

I am now filling out the Demand for JAMS paperwork.

 

I dont know what to put in the Claim & Relief Sought By Claimant: Claimant asserts the following claim and seeks the following relief 

(including amount in controversy, if applicable)

 

 

Also what do i put in the 

Request for Hearing:

JAMS is requested to set this matter for hearing at: Section?

and Do i check the box for Election For Expedited Procedures (Comprehensive Rule 16.1)

By checking the box to the left, Claimant requests that the Expedited Procedures described in JAMS Comprehensive 

Rules 16.1 and 16.2 be applied in this matter. Respondent shall indicate not later than seven (7) days from the date 

this Demand is served whether it agrees to the Expedited Procedures.

Read post #11 of this thread and you will find the answers to your questions.  If you still have questions, post back and let us know. 

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Them changing the interest rates, etc., is one thing. But, your arbitration provision stating it will survive "any" changes, etc., - then they are hooked with that.

Unfortunately here in Az. that isn't the case. My agreement has a survivability clause and yet the judge ruled in favor of the OC and denied my MTC. I filed a motion to reconsider and have yet to hear back from the judge.

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@azneb

 

The problem I see with a "survivability clause" is that it doesn't necessarily mean that it survives the removal of the arbitration process from an agreement..  It might only mean that it survives changes to arbitration procedure and arbitratable issues.

 

Is there any court precedent that shows a "survivability clause" applies to the removal of the arbitration process from the agreement?

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Unfortunately here in Az. that isn't the case. My agreement has a survivability clause and yet the judge ruled in favor of the OC and denied my MTC. I filed a motion to reconsider and have yet to hear back from the judge.

A motion to compel arbitration is special. In AZ a denial of an MTC arb is an appealable issue (see Pre Trial AZ could use some Pointers...  #5). The AZ statute gives us the tool. It is up to us to use it properly and timely.

 

@azneb

 

The problem I see with a "survivability clause" is that it doesn't necessarily mean that it survives the removal of the arbitration process from an agreement..  It might only mean that it survives changes to arbitration procedure and arbitratable issues.

 

Is there any court precedent that shows a "survivability clause" applies to the removal of the arbitration process from the agreement?

The arbitration procedures are typically maintained and modified by the applicable arbitration forum.

 

Survivability relative to changes to "arbitrable issues" would seem to dance around the core of survivability of the arbitration clause itself.

 

If a drafter can remove arbitrability from the agreement at any future date I would question what purpose a arbitration survivability clause would serve if it does not mean the arbitration clause survives.

 

I have not seen any court precedent on the issue of survivability terms embedded in arbitration clauses. Survivability is a wonderful clause modifier that the drafter would likely argue opposite meanings based on what was convenient on any given day in court. I believe any contract term ambiguity (I don't see ambiguity in the arbitration clauses containing survivability that I have read) can be construed in favor of the the non-drafter.

 

Here is some typical language from a 2006 Chase card agreement:

Severability, survival. This Arbitration Agreement shall survive: (i) termination or

changes in the Cardmember Agreement, the Account and the relationship between

you and us concerning the Account, such as the issuing of a new account number

or  the  transferring  of  the  balance  in  the  Account  to  another  account;  (ii)  the

bankruptcy of any party or any similar proceeding initiated by you or on your behalf;

and (iii) payment of the debt in full by you or by a third party. If any portion of this

Arbitration Agreement is deemed invalid or unenforceable, the remaining portions

shall nevertheless remain in force.

 

While I doubt that Chase can enforce their agreement to arbitrate in a BK court where a consumer has filed for BK protection, it would seem the intent of the language is pretty clear. Mandatory binding arbitration survives changes to the contract. I would submit that removal of an arbitration clause from a contract is a "change to the contract" that could easily be anticipated in the survivability language such as provided above.

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@Credator

 

"Changes in the cardmember agreement" might work.  But again, it's going to be up to the court.  Arbitration has nothing to do with the issues surrounding the account itself.  Since there's no precedent, it could be that "changes in the cardmember agreement" needs to be defined. 

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@BV80

@Credator

 

"Changes in the cardmember agreement" might work.  But again, it's going to be up to the court.  Arbitration has nothing to do with the issues surrounding the account itself.  Since there's no precedent, it could be that "changes in the cardmember agreement" needs to be defined. 

I suppose one could argue that it depends on what the meaning of the word "change" is. I doubt there would be much confusion on the meaning if it were being reviewed by an appellate level or higher court. Change is change in my world.

 

I am unclear on how "Arbitration has nothing to do with the issues surrounding the account itself." Referencing the same 2006 Chase card agreement I find the following language under the heading Arbitration Agreement:

Claims Covered. Either you or we may, without the other's consent, elect mandatory,
binding arbitration of any claim, dispute or controversy
by either you or us against the
other, or against the employees, parents, subsidiaries, affiliates, beneficiaries, agents or
assigns of the other, arising from or relating in any way to the Cardmember Agreement,
any prior Cardmember Agreement, your credit card Account or the advertising, application
or approval of your Account ("Claim").

 

The way I read this Chase clause, mandatory arbitration seems to be all over the account and presumably every claim, dispute or controversy issue relative to the account.

 

I believe I would be able to enforce a similar arbitration agreement at some level above the trial court. Others may wish to hire competent winning consumer attorney or forge ahead assuming no favorable precedent exists. Not being a big fan of arbitration in collection lawsuits it is unlikely that I will be contributing to making any precedents on enforceability of survivability clauses in CC arbitration agreements any time soon. :-)

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@Credator

 

When I said that arbitration has nothing to do with the issues surrounding the account itself, I was referring to charges, payments, default, etc.  Dispute procedures are provided for in TILA.

 

Yes, arbitration regards a dispute about the account, but it is about the procedure to resolve disputes. 

 

What I'm asking is if the arbitration procedure would survive the changes in the agreement. 

 

I'm not stating a fact.  I'm merely looking for more specific details or terms to research.

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I have been reading this thread the last several days as I have found myself in a situation where the info is needed.

 

I created an account just so I could say thank you to Linda for sharing all of this information!    I believe I am ready to fight this fight now thanks to you!

 

Thanks!

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I hope to not bombard you, but I spent 5 hours the other night reading through this arbitration forum and i'm getting overwhelmed and confused.

 

I'll try to make my story somewhat short.

I am being sued by Portfolio recovery associates for an HHGregg/GE moneybank credit card I had a few years ago.  The charge off was June of 2013...I dont think I made a payment on it since 2012.  The total amount is $1200.  WIth the summons a bill of sale from GE capital to PRA was included, along with the june statement where my debt was charged off, my account number except the last 4 digits is blacked off, and it has an old address.

 

Back in October of 2013 I moved in with my boyfriend, from Ohio to Kentucky, but we had our disagreements so I didn't until just this past month officially change my mailing address from Ohio to Kentucky.  I dont pay a rental agency, just him, no utilities in my name because he already had it established, but I did change my banking and address with my employer before January.  The summons is dated June 10, so I have until July 8 to respond.  I am hoping to get it in the mail tomorrow.  I have been instructed to file a motion to dismiss based on inconvenient/incorrect venue, seeing as I am now in Kentucky, and was told to add in there if MTD is denied, I request arbitration with JAMS.   (there is a JAMS arb. clause in my agreement).  

 

My first question, do I have to answer the points in the letter before I go into defenses of the MTD?

 

Can I put the MTD in with an almost MTC arbitration in the same thing?

I am so confused on this.  

 

If I have to answer each point, I dont really know how to, I mean, I know its my debt...so...I can't deny it.  If it goes to arbitration i'm hoping to settle before it gets to an actual JAMS artibtrator, because I really dont have a defense against them.  I ignored it all, burried my head in the sand, ignored the phone calls, i hate opening mail, and now its biting me in the butt.  

If you have a minute and have any further guidance that would be most helpful. 

 

Thanks so much in advance for any more help. :-)

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You need to take this step by step.  Keep motions simple and separate.

 

First: file the MTD for improper venue.

 

Second:  if that is denied, then file an answer with the MTC arb.  Don't file your answer to the plaintiff's complaint unless and until the MTD (improper venue) is denied.  Doing so might be submitting to the court's jurisdiction, and your MTD is saying this court does not have jurisdiction because you don't live in Ohio.

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@Linda7.

I am being sued by Javit Block LLC in Travis County, Austin, TX regarding the debt of 2k from American Airline CC issues Citibank, N.A . I received a summons on 10/1/2015 and I had turned in the answer to the court.

My questions are:

1/Do I need to send a letter for Notice of Arbitration Election? ( I do not have a cardholder agreement  since I opened in 2010) 

2/ What should I expect to do next? 

 

Thank you.

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@kyl3xy

 

It would be best if you start your own thread and include your questions about arbitration.

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@kyl3xy if you are in JC the equivalent of small claims, Citibank has small claims exemptions in their card agreements. You might be better off following the advice of texasrocker for help. Start a thread in the parent forum " is there a lawyer in the house"

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I was referred here. I read pg 1 and im lost.
being sued by portfolio recovery associates and lvnv.
i have already filed my answers. PRA court date is set civial small claims-- in discovery with lvnv as of now, circuit small claims.

lvnv sent card terms with JAMS in it---PRA sent 3 of 4 pgs of terms, nothing about arbitration it is citibank.

Is it to late for me?
 

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If it is past 30 days since they first sent collection letter can I still send them a dv letter electing arb with JAMS? I received a letter back in October and haven't heard anything since but I have not responded. I know there is an  arb agreement. Its for Citibank N.A. (Home Depot) but I can't find a 2015 copy anywhere. I even searched the cfpb website.

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On 5/20/2012 at 1:24 PM, Linda7 said:

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! :)++

you got awesome information here and I have produced some fine looking documents from your postings here ..  gonna do it! thanks

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I'm not sure if I jumped the gun by writing my dv letter with election of arbitration.  The arb clause is in the CC agreement (Citibank) but the dunning letter is from a jdb's (Calvary portfolio) attorney and I'm almost positive the debt is time-barred. Since I already sent my dv with arb election, should I just initiate arb with JAMS (I didn't elect JAMS in the dv letter, read later that I should have) so attorney can't initiate with AAA? I qualify for filing waiver, jdb must pay my filing fee. Do I waive my rights to demand jdb prove I own the debt in arbitration? I read somewhere SOL isn't considered in arbitration. Is this true?

I'm also confused on what to do because i think the debt is past statute of limitations but I'm not sure how to read this on my CR. If TU just shows my original default date and going off that (If one knows they didn't purchase or pay after defaulting) is this one's proof debt is time-barred?Can I request other info from CRA to confirm this?

Thank you for all you guys are doing!

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1 hour ago, Roxanne said:

I'm not sure if I jumped the gun by writing my dv letter with election of arbitration.  The arb clause is in the CC agreement (Citibank) but the dunning letter is from a jdb's (Calvary portfolio) attorney and I'm almost positive the debt is time-barred. Since I already sent my dv with arb election, should I just initiate arb with JAMS (I didn't elect JAMS in the dv letter, read later that I should have) so attorney can't initiate with AAA? I qualify for filing waiver, jdb must pay my filing fee. Do I waive my rights to demand jdb prove I own the debt in arbitration? I read somewhere SOL isn't considered in arbitration. Is this true?

I'm also confused on what to do because i think the debt is past statute of limitations but I'm not sure how to read this on my CR. If TU just shows my original default date and going off that (If one knows they didn't purchase or pay after defaulting) is this one's proof debt is time-barred?Can I request other info from CRA to confirm this?

Thank you for all you guys are doing!

Check your bank records to determine when you made the last payment.   If the debt is time-barred, just send a cease and desist letter.   Unless you have violations against them right now, you really don't have anything to arbitrate.

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If I understood right, electing and/or initiating arb is used to get the jdb to back off and to  avoid being sued, especially if you are banking on them not having their proof after suing. When initiating arb, you just state a general complaint like: consumer arbitration and then state you will detail in your formal complaint. Formal complaint is written after Jdb (or if)  pays their fees, right? I just need to know what is the best way to avoid/approach suit, I'm sure this jdb has nothing to support a complaint.

Any thoughts are appreciated!

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52 minutes ago, Roxanne said:

If I understood right, electing and/or initiating arb is used to get the jdb to back off and to  avoid being sued, especially if you are banking on them not having their proof after suing. When initiating arb, you just state a general complaint like: consumer arbitration and then state you will detail in your formal complaint. Formal complaint is written after Jdb (or if)  pays their fees, right? I just need to know what is the best way to avoid/approach suit, I'm sure this jdb has nothing to support a complaint.

Any thoughts are appreciated!

If the debt is time barred,  more than likely, they will not sue. If they were to sue you, they would be violating the FDCPA. 

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On 5/20/2012 at 2:53 PM, Linda7 said:

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.

Does anyone understand how to fill out the JAMS form?  Last time I was sued I did a general denial and brought my MTC Private contractual arbitration to court. Judge denied my MTC and entered a judgement against me.  This time around my case is for $4875.00 and I am entering my answer asking for arbitration right at the start in hopes they will back off.  But looking at the JAMS forms I am not sure how to fill out the nature of dispute

 

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16 minutes ago, breturbo said:

But looking at the JAMS forms I am not sure how to fill out the nature of dispute

The forms are geared toward people having original claims, so what you put in there doesn't really matter.   Just say that the plaintiff is suing you in court over an alleged credit card debt and you want their claims to be heard in arbitration.

Also, you can call JAMS and they will walk you through it.

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