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C1 Arbitration hearing to add CA and Litigation Specialist


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I have  JAMS  Arbitration hearing next week to add CA and LS to my JAMS claim.

 

Arguments will be heard by both sides by Arbitrator and decision will be made as to my request to add CA and LS to my JAMS claim.

 

Would anyone have case law that I can use in my brief regarding adding a CA/respondeat superior to Arbitration claim.

 

thank you,

 

 

 

 

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I have  JAMS  Arbitration hearing next week to add CA and LS to my JAMS claim.

 

Arguments will be heard by both sides by Arbitrator and decision will be made as to my request to add CA and LS to my JAMS claim.

 

Would anyone have case law that I can use in my brief regarding adding a CA/respondeat superior to Arbitration claim.

 

thank you,

Capital One is the "author" of their own cardmember agreement.  I believe their agreements say the quote below - (Note the part that is in bold and underlined) -

 

"We," "us," "our" and "Capital One" mean Capital One Bank (USA), National Association; and its agents, authorized representatives, successors, and assignees.
 
I'm sure when you accepted that agreement you agreed to the above provision.  For Capital One to now say that their attorneys or even the attorneys to say they are "not" part of this agreement, I would take as Breach of Contract.
 
I would direct their attention to the above quote in their agreement and highlight it for the arbitrator.  Then I would say something like this -
 
The attorneys/law firm are tied to this arbitration by Capital One's agreement.   A lawyer acts on behalf of the client, representing the client, with consequences that bind the client. Lawyers act as clients' agents.  
 
Capital One's agreement states that "We," "us," "our" and "Capital One" mean Capital One Bank (USA), National Association; and its agents, authorized representatives, successors, and assignees.

 

Capital One's attorneys are clearly representing their client (Capital One), acting as their client's agent. They are connected with Capital One and are tied to Capital One's arbitration provision.
 
Another familiar law firm - JB&R suing for Capital One, was involved with a case and thus proves they are representatives.  Check here - Javitch, Block & Rathbone, LLC v. First Union Securities, Inc., 315 F. 3d 619 - Court of Appeals, 6th Circuit 2003

 

The above shows that the law firm definitely falls under the theory of equitable estoppel.

Equitable Estoppel -

Defendants continue to argue with one voice that the receiver should be bound to arbitrate all claims against all 629*629 defendants under the theory of equitable estoppel because all of the claims arise out of the broker-customer relationship that would not exist "but for" the customer agreements containing the arbitration clauses. As the district court correctly stated, nonsignatories may be bound to an arbitration agreement under ordinary contract and agency principles. Arnold v. Arnold Corp., 920 F.2d 1269, 1281 (6th Cir.1990). Five theories for binding nonsignatories to arbitration agreements have been recognized: (1) incorporation by reference, (2) assumption, (3) agency, (4) veil-piercing/alter ego, and (5) estoppel. Thomson-CSF v. Am. Arbitration a$$'n, 64 F.3d 773, 776 (2d Cir.1995).

The court in Thomson held that a nonsignatory may be bound to an arbitration agreement under an estoppel theory when the nonsignatory seeks a direct benefit from the contract while disavowing the arbitration provision. Id. at 778-79.

 

When a law firm signs on to take a case they become a third party beneficiary. The fee paid to __________________(law firm) in taking this case for Capital One proves it benefits from the contract. Fiduciary is considered agent in law of agency, law firm/lawyers are agents of Capital One and act on behalf of Capital One.

 

And a little more reading -

 

Signatories to arbitration agreements have been permitted to compel non-signatories to arbitrate, in M.S. Dealer Serv. Corp. v. Franklin, 177 F.2d 942 (11th Cir. 1999), the court recognized two circumstances when signatories would be able to compel non-signatories to arbitrate.  First, “equitable estoppel applies when the signatory to a written agreement containing an arbitration clause must rely on the terms of the written agreement in asserting its claim against the nonsignatory.”  Second, the doctrine should apply “when the signatory to the contract containing an arbitration clause raises allegations of substantially interdependent and concerted misconduct by both the nonsignatory and one or more signatories to the contract.”

In International Paper Co. v. Schwabedissen Maschinen & Anlagen GMBH, 206 F.3d 411, 416-17 (4th Cir. 2000), the court found that “Well-established common law principles dictate that in an appropriate case a non-signatory can enforce, or be bound by, an arbitration provision within a contract executed by other parties.” That is because the “legal principle [of equitable estoppel] rests on a simple proposition: it is unfair for a party to ‘rely on a contract when it works to its advantage and repudiate it when it works to its disadvantage.’” Wachovia Bank, Nat. a$$’n v. Schmidt, 445 F.3d 762, 769 (4th Cir. 2006) (quoting Hughes Masonry Co. v. Greater Clark County Sch. Bldg. Corp., 659 F.2d 836, 839 (7th Cir. 1981) (alteration omitted). Thus, equitable estoppel will “apply against a non-signatory who sues a signatory [to an arbitration provision]…when his underlying claims seek a ‘direct benefit’ from the contract containing the arbitration clause.” American Bankers Ins. Group v. Long, 453 F.3d 623, 628 (4th Cir. 2006) (internal citations omitted).

 

 
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Linda7 you are AMAZING!!!!

 

Thank you so much for sharing your research and knowledge. 

 

I will post outcome.

You are very welcome. 

 

Depending on the arbitrator, it could go either way.  I'll be hoping the outcome is in your favor!

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Depending on the arbitrator, it could go either way.  I'll be hoping the outcome is in your favor!

 

Linda7, 

 

I noticed that the OP is from ILL that has a 5 or 10 year sol while VA has a 3 year SOL. The Cap1 contracts I have read talk about the governing laws of VA. I realize this is a difficult argument in most courts. Does it work or is it at least worth pursuing in arbitration? TIA

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Linda7, 

 

I noticed that the OP is from ILL that has a 5 or 10 year sol while VA has a 3 year SOL. The Cap1 contracts I have read talk about the governing laws of VA. I realize this is a difficult argument in most courts. Does it work or is it at least worth pursuing in arbitration? TIA

Most definitely!

 

Some states do have borrowing statutes, while others do not.  If you happen to live in a state with a borrowing statute, then you may be able to use the creditor's choice of law provision and choose their state to get the shorter SOL.  You also have to check to see how your court views procedural vs substantive and again, most are stuck with the consumer's state of residence SOL. 

 

The Pincus case in Florida comes to mind as one that successfully used Capital One's choice of law provision (Virginia) and used the shorter SOL.  There are several others.

 

But, let's think about the states that don't have borrowing statutes, etc., and are stuck with the consumer's state of residence SOL.  In court - you are stuck with those rules.  But, in arbitration - one of the first things to be decided is which state do the creditor and consumer agree to use.  You don't get that option in court!  In arbitration I would submit to the contract's language and use the choice of law provision stating for example in Capital One agreements that Virginia will govern. 

 

Quoting from Fighting Irish -

 

"In arbitration you can choose the state law that applies.

It's subject to FEDERAL law, and not individual.

If SOL for the contract is in your favor, agree graciously to accept the contract's state law.

Then, later on, you can point out that the DOFD was greater than X years ago, and the entire attempt to collect violates that SOL."

 

You also would be able to use your state's laws for collection violations as that is "not" part of the contract. 

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The date of delault is 2008. C1 filed suit in 2009. State court case was dismissed without prejudice due to Arbitration in 2011. 

 

Since state court case was dismissed, can I now claim SOL using VA law as we have agreed on VA law in Arbitration or can C1 succesfully object since they originally filed state law suit in 2009?

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The date of delault is 2008. C1 filed suit in 2009. State court case was dismissed without prejudice due to Arbitration in 2011. 

 

Since state court case was dismissed, can I now claim SOL using VA law as we have agreed on VA law in Arbitration or can C1 succesfully object since they originally filed state law suit in 2009?

 

It depends on your state and how tolling is viewed.  It could be that you get to count from the 2008 default up until the month they filed suit in 2009.  Then after the case was dismissed, you could start adding the months from the date of the dismissal.  Arbitration doesn't toll the SOL, so once it was dismissed from court - it started ticking again in your favor.

 

But, to get the specifics on your state and the tolling - please be sure and ask at debtorboards in the arbitration forum.

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  • 1 month later...

Hearing to add CA and Litigation Specialist did not go well.  Hearing lasted less then 10 minutes and Arbitrator granted Respondent's motion to dismiss my request to add them to claim.

 

Arbitrator also made it clear that he was just ruling on the motion to add respondents and not the claims that Claimant asserted against respondents and that Claimant could very well

 

have claims against respondents. 

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