Linda7

The strategy and steps of arbitration

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Regarding settlement negotiations -

In settlement talks, you start off with something that probably won't fly - then let them come back with something - then you come back with something different.

For instance and remember your "claims" - you could start off with them paying you $1,000 (or more if you have great claims), mutual walk with dismissal of everybody's claims, no selling of the debt, deletion of the tradelines and no 1099. However, it is the law that they have to put in the part about the 1099, but you can ask for "no" 1099 so that when you give in to that, you have compromised. But, they actually don't have to give a 1099 if the forgiveness part is $600 or under.

They will probably want to know your claims which they actually are not entitled to know under JAMS rules until the formal complaint. However, if you've got some good ones, you can let them know up front that they'll be faced with FDCPA, state consumer law violations or whatever without going into detail. Keep in mind that an original creditor is not bound by FDCPA violations, but their attorneys or collectors are. Or if you want to withhold any information, then you just remind them that your violations will be detailed in the formal complaint pursuant to JAMS rules. Remember you don't have to show/detail the actual violations until after they pay to arbitrate and you file your formal complaint. If you don't have any great violations or "any" violations - at this time, you play the bluffing game. You don't have to show them your violations yet and there will be ample time to receive settlement negotiations from them before you would have to lay your cards on the table. 99% of the time, they will settle before you have to show them your violations.

Or you can start out, by asking them what they have in mind. They'll probably tell you something like $1,500 - $1,000 - $800 - $600, etc. (depending on the debt). Then you kindly refuse their offer and tell them that if Capital One wants to settle and save further arbitration costs, that you might consider paying them the rest of your JAMS fee which if you've already paid $50 - that would leave you with $200 to offer. Or start out offering them $100 and then let them say "no" to which you can offer your max of the rest of your JAMS fee or you'll see them in arbitration. *EDIT - apparently this option will no longer work. I saw a post at debtorboards and it seems that if you initiate even if they settle before going any further - you are still responsible for the whole $250 as those are the initiating fees - "unless" your agreement states otherwise. So, with that thought in mind - if you initiate, realize that you will be out $250 to JAMS (unless specified differently in your contract) plus whatever amount (if any) you decide to offer the creditor. (*EDIT - It seems that some are reporting that they "did" get their fee back from JAMS due to settling before going further in JAMS. I would definitely ask JAMS for it back.) Either way you still have great bargaining power because you might have claims they will need to consider, or even if you don't - they will still have to consider what it is going to cost them in the long run. They might decide to walk away or accept a small monetary amount from you, just to get away from the thousands it will cost them.

Expect this to go for a few rounds and at times they will fall silent. Don't seem eager. I've even seen them say "no way" and that they will give it to their next set of lawyers and you think it is over and then as a last final offer days later - they come back and accept your last offer.

Always remember to ask for the debt to be reflected as settled in full, no selling of the debt and deletion of the negative tradelines and ask for no 1099 and let that be one of your compromises.

Keep in mind that all cases are different and outcomes can be different as well. What I posted above is what I have seen in 99% of the cases I've followed.

It's just a game of chicken . . . and takes nerves of steel at times.

Edited by Linda7

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I am almost ready to file my MTC, and need some help with the entries I have from my 2007 chase agreement as the wording is a bit different from what I have been reading. It has "binding arbitration"

This is what I have from the agreement entered in my MTC from lindas example.

(a) IT PROVIDERS THAT ANY DISPUTE BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT.

(B) THIS ARBITRATION AGREEMENT SETS FORTH THE CIRCUMSTANCES AND PROCEDURES UNDER WHICH CLAIMS (AS DEFINED BELOW) MAY BE RESOLVED BY ARBITRATION INSTEAD OF BEING LITIGATED IN COURT.

© CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US

(d) EITHER YOU OR WE MAY ELECT MANDATORY BINDING ARBITRATION OF ANY CLAIM, DISPUTE OR CONTOVERSY BY EITHER YOU OR US AGAINST THE OTHER

(e) EVEN IF A CLASS ACTION LAWSUIT OR OTHER REPRESENTATIVE ACTION SUCH AS THAT IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION, IS FILED ANY CLAIM BETWEEN US RELATED TO THE ISSUES RAISED IN SUCH LAWSUITS WILL BE SUBJECT TO AN INDIVIDUAL ARBITRATION CLAIM IF EITHER YOU OR WE SO ELECT.

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

Thank you very much for any help.

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Facts: Sent letter to OC electing Arb. 9 months ago after OC filed suit. Also filed MTC Arb a month later. OC filed MSJ but never made it to hearing because OC had other accounts under same name and consolidated. Can I now file MTC arb on all since I already elected 9 months ago and OC ignored the request? and a hearing was never called for 1st MTC arb.

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Does SOL come into play with Arb?

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Hi, I am new here, but have a pending lawsuit with LVNV. I was served and I elected arbitration in my answer with the court, but the lawyers Gurstel Chargo for LVNV ignored my demand. They sent interrogatories which I didn't fill out, and now they filed a msj with the courts. I am going to file a mtc arbitration with the courts tomorrow. Can anyone please help me answer the msj? I am so stressed and confused over this whole process! Thank you!

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Wow Linda, thanks so much for this info! Quick question, the JDB that is suing me did not provide any info in his complaint. I sent them a letter stating I want to go to arbitration and now I'm filing my answer-to-complaint and motion-to-dismiss. In my motion, I have 2 exhibits, the letter I sent and the credit card agreement that I'm using.

Question: I know I have to send the lawyer a copy of both the answer and the motion but do I also have to send the exhibits? Are they part of the motion and thus required?

I don't want to give the lawyer any info/ammo but if I have to then I guess I have to....

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Hi, I am new here, but have a pending lawsuit with LVNV. I was served and I elected arbitration in my answer with the court, but the lawyers Gurstel Chargo for LVNV ignored my demand. They sent interrogatories which I didn't fill out, and now they filed a msj with the courts. I am going to file a mtc arbitration with the courts tomorrow. Can anyone please help me answer the msj? I am so stressed and confused over this whole process! Thank you!

I don't quite understand what you mean you elected arbitration in your answer?

Did you not send the creditor and the attorney a letter electing arbitration and then your answer to the court would reflect that you have notified the plaintiff of your election of arbitration.

As for the MSJ - it seems that your main point would be that you elected private contractual arbitration which takes away both parties rights to litigate in court.

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Facts: Sent letter to OC electing Arb. 9 months ago after OC filed suit. Also filed MTC Arb a month later. OC filed MSJ but never made it to hearing because OC had other accounts under same name and consolidated. Can I now file MTC arb on all since I already elected 9 months ago and OC ignored the request? and a hearing was never called for 1st MTC arb.

It seems that you're in Florida.

In Florida, if you want arbitration, you do not file an answer with the court - but, instead you should have filed your MTC arbitration after sending an election notice to the creditor and the attorney. If you filed an answer first, you have waived your rights to arbitration I'm afraid.

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I am almost ready to file my MTC, and need some help with the entries I have from my 2007 chase agreement as the wording is a bit different from what I have been reading. It has "binding arbitration"

This is what I have from the agreement entered in my MTC from lindas example.

(a) IT PROVIDERS THAT ANY DISPUTE BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT.

(B) THIS ARBITRATION AGREEMENT SETS FORTH THE CIRCUMSTANCES AND PROCEDURES UNDER WHICH CLAIMS (AS DEFINED BELOW) MAY BE RESOLVED BY ARBITRATION INSTEAD OF BEING LITIGATED IN COURT.

© CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US

(d) EITHER YOU OR WE MAY ELECT MANDATORY BINDING ARBITRATION OF ANY CLAIM, DISPUTE OR CONTOVERSY BY EITHER YOU OR US AGAINST THE OTHER

(e) EVEN IF A CLASS ACTION LAWSUIT OR OTHER REPRESENTATIVE ACTION SUCH AS THAT IN THE FORM OF A PRIVATE ATTORNEY GENERAL ACTION, IS FILED ANY CLAIM BETWEEN US RELATED TO THE ISSUES RAISED IN SUCH LAWSUITS WILL BE SUBJECT TO AN INDIVIDUAL ARBITRATION CLAIM IF EITHER YOU OR WE SO ELECT.

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

Thank you very much for any help.

You always use the direct quotes from the agreement that you are using. If those are your quotes, then it should be fine.

You do realize however, that with a 2007 Chase agreement, you won't have the option of JAMS - but, instead AAA.

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Does SOL come into play with Arb?

I don't quite understand your question.

If you are meaning, can you use SOL as a defense - yes.

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Also, Does anyone have a 2006 HSBC agreement? I would appreciated any help I can get! Thank you!

I'll send you a pm in a minute.

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Wow Linda, thanks so much for this info! Quick question, the JDB that is suing me did not provide any info in his complaint. I sent them a letter stating I want to go to arbitration and now I'm filing my answer-to-complaint and motion-to-dismiss. In my motion, I have 2 exhibits, the letter I sent and the credit card agreement that I'm using.

Question: I know I have to send the lawyer a copy of both the answer and the motion but do I also have to send the exhibits? Are they part of the motion and thus required?

I don't want to give the lawyer any info/ammo but if I have to then I guess I have to....

Anything filed with the court, needs to also go to the Plaintiff's attorney.

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You always use the direct quotes from the agreement that you are using. If those are your quotes, then it should be fine..

Yes that is from my agreement, but do I leave them with the letters (a) (B) ect as I took them from paragraphs that are not lettered or numbered.

You do realize however, that with a 2007 Chase agreement, you won't have the option of JAMS - but, instead AAA.

Yes I do. I have changed the wording to reflect this. I am using all of your examples here as I go. I have until August 30th to answer.

Do I need to change from PRIVATE/CONTRACTUAL ARBITRATION to what the agreement states "BINDING ARBITRATION"?

Thank you very much for all your help as I am starting to feel more at ease rather than a complete reck after receiving a summons.

Never thought I would have to learn so much in such a short amount of time at my age!

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Yes that is from my agreement, but do I leave them with the letters (a) (B) ect as I took them from paragraphs that are not lettered or numbered.

Yes I do. I have changed the wording to reflect this. I am using all of your examples here as I go. I have until August 30th to answer.

Do I need to change from PRIVATE/CONTRACTUAL ARBITRATION to what the agreement states "BINDING ARBITRATION"?

Thank you very much for all your help as I am starting to feel more at ease rather than a complete reck after receiving a summons.

Never thought I would have to learn so much in such a short amount of time at my age!

Yes, as for lettering (a), (B), etc. You just apply the letters to the different quotes from your agreement.

As for private/contractual - where are you seeing that? Any credit card agreement with an arbitration provision is private/contractual arbitration.

Also, realize that you aren't going to have the leverage of it costing the creditor a lot in AAA compared to JAMS.

Have you read at debtorboards the various threads regarding AAA?

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

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.

Hi Linda, I was wondering if we should include a request in the answer for the bill of particulars too if they did not attach a signed agreement with the complaint? Not sure if this helps or hurt our case if we are seeking to arbitrate with JAMs. Greatly appreciate you input.

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Yes, as for lettering (a), (B), etc. You just apply the letters to the different quotes from your agreement.

As for private/contractual - where are you seeing that? Any credit card agreement with an arbitration provision is private/contractual arbitration.

Also, realize that you aren't going to have the leverage of it costing the creditor a lot in AAA compared to JAMS.

Have you read at debtorboards the various threads regarding AAA?

The private/contractual arbitration is in the MTC but not anywhere in the chase 2007 agreement just states binding arbitration.

Yes I am still reading at debtboards. The alleged debt is for $4400, and was bought by Portfolio Recovery Associates, so I was told that AAA would still be a high cost for the JDB.

What is your opinion?

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It seems that you're in Florida.

In Florida, if you want arbitration, you do not file an answer with the court - but, instead you should have filed your MTC arbitration after sending an election notice to the creditor and the attorney. If you filed an answer first, you have waived your rights to arbitration I'm afraid.

Yes. Florida. No Answer has been filed. I filed a MTD MTS and MTC arb. on one case. They had several other cases which they combined into one. I haven't filed anthing on the consolidated cases.

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I don't quite understand what you mean you elected arbitration in your answer?

Did you not send the creditor and the attorney a letter electing arbitration and then your answer to the court would reflect that you have notified the plaintiff of your election of arbitration.

As for the MSJ - it seems that your main point would be that you elected private contractual arbitration which takes away both parties rights to litigate in court.

No Linda, I didn't send a letter to Atty and Creditor. I didn't know what I was doing at the time. I have a better idea now as to what I should have done. I answered the courts by asking to elect arbitration and sent copy to Gurstel Chargo. We then went to court mediation, and nothing was settled. I didn't admit to anything. I tried to hire a lawyer, but they all want 2500 to fight this for me. In the meantime, the lawyer just filed a msj because I didn't answer their interrogatories. I think at this point my only hope is to file a mtc arbitration. I would really appreciated that HSBC agreement!

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I'll send you a pm in a minute.

Hi Linda, I got your private message and tried to message you back, but I'm not able to respond until I have 10 posts. However, I did send you an email regarding the HSBC agreement. Thanks!:)

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Hi Linda, I was wondering if we should include a request in the answer for the bill of particulars too if they did not attach a signed agreement with the complaint? Not sure if this helps or hurt our case if we are seeking to arbitrate with JAMs. Greatly appreciate you input.

I would check with Bad98roadster as they know your state's/court rules. :)++

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The private/contractual arbitration is in the MTC but not anywhere in the chase 2007 agreement just states binding arbitration.

Yes I am still reading at debtboards. The alleged debt is for $4400, and was bought by Portfolio Recovery Associates, so I was told that AAA would still be a high cost for the JDB.

What is your opinion?

Private/contractual is not anything that is being quoted from an agreement. That is just a term that anybody can use "if" your agreement has an arbitration provision. It is meaning that it is "not" court arbitration.

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Yes. Florida. No Answer has been filed. I filed a MTD MTS and MTC arb. on one case. They had several other cases which they combined into one. I haven't filed anthing on the consolidated cases.

I wish you had only filed the motion to compel arbitration. I hope the judge will overlook the other things that you filed and realize that you did not "answer", but instead did file the MTC arbitration.

As for the other cases, why not file a motion to compel for each one of them?

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Hi Linda, I got your private message and tried to message you back, but I'm not able to respond until I have 10 posts. However, I did send you an email regarding the HSBC agreement. Thanks!:)

Glad you told me. I found you in the spam folder. :shock:

The agreement should be at your house now. And don't forget when you file your MTC arbitration - you need to answer their MSJ or they will get a judgment. File an "opposition" to their MSJ. You can do a search here and find some samples of oppositions to MSJ, but within yours make sure you point out that you elected arbitration and let them know that you filed your MTC arbitration with the court.

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Hi Linda7, I have a question about the affidavits on the first page of this thread. Would they not be effective if they were just declarations under oath?

I'm not at this step yet, so this question is just out of curiosity.

Thanks.

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