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Arbitration with Citi


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This is my first post here. I recently elected arbitration through JAMS naming Citi and their law firm as respondents. I sent a certified letter to both Citi and their attorney and attached a copy of the demand for arb with JAMS. I also sent the demand forms to JAMS along with a $100 check assuming I would be billed for the full amount due when accepted.

 

The attorney sent me a letter within a few days after receipt of my letter to them informing me that if I didn't submit the full amount to JAMS in the next 14 days they would take legal action against me. They apparently had called JAMS to verify I sent the entire $250 payment. I promptly sent in the difference.

 

Meanwhile, they have sent me another letter asking me to forward them a copy of the Demand filed with JAMS. They claim they did not receive the Demand and claim JAMS  did not receive it either which of course makes no sense since JAMS has already commenced arbitration and cashed my check and theirs.

 

At this point I don't feel it is my job to forward them the Demand as they should have it and I'm not responsible for their recordkeeping. In addition, I feel they violated my consumer rights by threatening legal action unless I send the full amount into JAMS within a stated time period since I already elected arbitration.

 

Any help and suggestions on this would be much appreciated as I am a total newbie here. Thanks.

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This is my first post here. I recently elected arbitration through JAMS naming Citi and their law firm as respondents. I sent a certified letter to both Citi and their attorney and attached a copy of the demand for arb with JAMS. I also sent the demand forms to JAMS along with a $100 check assuming I would be billed for the full amount due when accepted.

 

The attorney sent me a letter within a few days after receipt of my letter to them informing me that if I didn't submit the full amount to JAMS in the next 14 days they would take legal action against me. They apparently had called JAMS to verify I sent the entire $250 payment. I promptly sent in the difference.

 

Meanwhile, they have sent me another letter asking me to forward them a copy of the Demand filed with JAMS. They claim they did not receive the Demand and claim JAMS  did not receive it either which of course makes no sense since JAMS has already commenced arbitration and cashed my check and theirs.

 

At this point I don't feel it is my job to forward them the Demand as they should have it and I'm not responsible for their recordkeeping. In addition, I feel they violated my consumer rights by threatening legal action unless I send the full amount into JAMS within a stated time period since I already elected arbitration.

 

Any help and suggestions on this would be much appreciated as I am a total newbie here. Thanks.

You have the green card back and signed by the atty as proof you sent it to them?

 

I suspect they are satlling for some reason. Or maybe they tossed it out for whatever reason.

 

Check JAMS rules first and then follow up with a call to your case manager with what

the attorney said and ask if resubmitting by electronic mailing is appropriate

or does it have to be a hard copy.

 

Then call the atty. for their email/fax number.... and do it that way.

 

You will have electronic proof you sent it and they cannot claim they

never received it .

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You have the green card back and signed by the atty as proof you sent it to them?

 

I suspect they are satlling for some reason. Or maybe they tossed it out for whatever reason.

 

Check JAMS rules first and then follow up with a call to your case manager with what

the attorney said and ask if resubmitting by electronic mailing is appropriate

or does it have to be a hard copy.

 

Then call the atty. for their email/fax number.... and do it that way.

 

You will have electronic proof you sent it and they cannot claim they

never received it .

Yes, I have the signed green card and all the documentation I submitted to the attorney. I will speak with the case manager before proceeding as I don't believe it is my repsonsibility to resubmit anything to the law firm and apparently JAMS wasn't cooperative with them either. I do note that the original attorney who I submitted the paperwork to appears to have given the case to another attorney in the firm. This just does not make them seem very organized.

 

I also don't think they can give me a deadline for submitting full payment to JAMS as they did. This seems like something JAMS obviously could ask for in a demand for payment but seems out of place for the law firm to demand. Any thoughts on this?

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The attorney sent me a letter within a few days after receipt of my letter to them informing me that if I didn't submit the full amount to JAMS in the next 14 days they would take legal action against me. They apparently had called JAMS to verify I sent the entire $250 payment. I promptly sent in the difference.

 

 

Are you saying you initiated an arbitration proceeding against Citi before they commenced an action against you? 

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When you elected arbitration, did you ask that Citibank advance the fees?  Or did you apply for a fee waiver?

 

What did you say to JAMS regarding not sending the full payment at first?

 

Most times, JAMS will accept payments toward the consumer's filing fees.  This is between you and JAMS - not the creditor.

 

However, since you have now sent in the full payment - you've shut the door on the attorney's argument.  But, I would still rack it up as violations.

 

Also, if you asked Citibank to advance the fees or if you applied for a fee waiver to JAMS - you are allowed the right to get a answer before sending in all the money.

 

The attorney is in violation of stating they will take legal action against you "if" they have already received notice of the election of arbitration.  That takes away their right to litigate in court.  Notice the part I put in bold text below.  *Make sure to check your agreement to see if it says the same thing.

 

IT PROVIDES THAT ANY DISPUTE MAY BE
RESOLVED BY BINDING ARBITRATION. ARBITRATION
REPLACES THE RIGHT TO GO TO COURT, INCLUDING
THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE
IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBI-
TRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR
INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCE-
DURES ARE SIMPLER AND MORE LIMITED THAN COURT
PROCEDURES.
Agreement to Arbitrate:
Either you or we may, without the
other’s consent, elect mandatory, binding arbitration for any
claim, dispute, or controversy between you and us (called
“Claims”).
 
Per the original credit card agreement, the attorney is taking or threatening to take an action that they can't legally take.
 
15 U.S.C. §1692e(5).
 
FDCPA against the attorney/lawfirm (You can't use FDCPA against the original creditor)
 
And depending on your state, you could have consumer protection laws which also could be used against the attorney and Citibank.
 
And look to your state for any unfair/deceptive practice laws and of course, they are in breach of contract.
 
As I said - you have already "elected" arbitration - that takes away the litigation rights of both parties.  And you initiated, but not paid the entire fee at first.  If JAMS accepted your payment to go toward your filing fee (and they did because they cashed the check) - that should be of no concern to the attorney.  That is between you and JAMS.
 
The fact that you have proof they received the JAMS demand is another issue that I would consider a violation since they want to say they didn't. 
 
 
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As I said - you have already "elected" arbitration - that takes away the litigation rights of both parties.  And you initiated, but not paid the entire fee at first.  If JAMS accepted your payment to go toward your filing fee (and they did because they cashed the check) - that should be of no concern to the attorney.  That is between you and JAMS.
 
The fact that you have proof they received the JAMS demand is another issue that I would consider a violation since they want to say they didn't. 
 
 

 

 

Let's not forget that the mere act of "electing" arbitration doesn't take away anybody's rights to litigate. First, it must be shown that a valid arbitration agreement exists and that the parties at odds are subject to it. Broad generalizations such at the statement above could easily lead an unwitting consumer to believe that in response to a summons, he need do nothing more than "elect" arbitration and the lawsuit will go away. We all know that is not the case and to suggest otherwise is simply wrong.

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The attorney is in violation of stating they will take legal action against you "if" they have already received notice of the election of arbitration.  That takes away their right to litigate in court.  Notice the part I put in bold text below.  *Make sure to check your agreement to see if it says the same thing.

 

I rarely disagree with Linda, but in this case I have to, altho it is fairly minor, probably semantics. This is the part of Nascar's post that I agree with....

 

a valid arbitration agreement exists

 

If the party who elected arbitration did not follow the procedure and make the proper payments as required, the other side would have a valid objection and could claim that a valid agreement did not exist due to this factor. It's a fairly minor point, but a critical one. Cases are won or lost on less than this. Such a condition would then throw the case back into the jurisdiction of the court.

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Of course there needs to be an agreement to arbitrate - that goes without being said.

 

However, the point I'm making is in reading those agreements.  If it specifies that upon "election" of arbitration - the disputes will be resolved by arbitration or that if either party elects arbitration that the dispute will be resolved by an arbitrator and not by a judge or jury, etc. - then the "election" of arbitration "does" take away the rights to pursue the collection of the debt through the court.

 

Initiation of arbitration and election of arbitration are two totally different things.

 

Since the consumer had already "elected" arbitration to resolve the dispute - per the terms of the agreement - this is to be resolved through arbitration - not the court system.

 

In this OP's situation - they have not only "elected" per the rules, but they have initiated and paid the fees.  The argument from the attorney came into play when the attorney thinks they can dictate whether or not the consumer initiated properly.  That is not up to the attorney.  If JAMS accepts the case (even without full payment), then the case has been initiated.  If the initiation was not done properly or there was a problem per JAMS rules, it would be up to JAMS to tell the consumer - not the attorney.  There is also nothing in the agreement that says that the consumer has to pay "all" the fees on the day they initiate the arbitration.  It actually says that you can apply for a fee waiver or even ask the creditor to advance the fees and if the arbitrator thinks there is good cause, etc.  The point being if a consumer initiated even without paying the full fees, there are other options they can initiate under and "wait" to see if they can apply for the fee waiver or see if the arbitrator will agree that the creditor needs to advance the fees, etc.  Not paying on the day of initiation does "not" mean that the consumer has failed to initiate. 

 

And per the agreement, the consumer had already elected arbitration which puts the resolution of the dispute in front of an arbitrator - not a judge or jury, so the attorney has no right to threaten legal action.

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When you elected arbitration, did you ask that Citibank advance the fees?  Or did you apply for a fee waiver?

 

What did you say to JAMS regarding not sending the full payment at first?

 

Most times, JAMS will accept payments toward the consumer's filing fees.  This is between you and JAMS - not the creditor.

 

However, since you have now sent in the full payment - you've shut the door on the attorney's argument.  But, I would still rack it up as violations.

 

Also, if you asked Citibank to advance the fees or if you applied for a fee waiver to JAMS - you are allowed the right to get a answer before sending in all the money.

 

The attorney is in violation of stating they will take legal action against you "if" they have already received notice of the election of arbitration.  That takes away their right to litigate in court.  Notice the part I put in bold text below.  *Make sure to check your agreement to see if it says the same thing.

 

IT PROVIDES THAT ANY DISPUTE MAY BE
RESOLVED BY BINDING ARBITRATION. ARBITRATION
REPLACES THE RIGHT TO GO TO COURT, INCLUDING
THE RIGHT TO A JURY AND THE RIGHT TO PARTICIPATE
IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBI-
TRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR
INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCE-
DURES ARE SIMPLER AND MORE LIMITED THAN COURT
PROCEDURES.
Agreement to Arbitrate:
Either you or we may, without the
other’s consent, elect mandatory, binding arbitration for any
claim, dispute, or controversy between you and us (called
“Claims”).
 
Per the original credit card agreement, the attorney is taking or threatening to take an action that they can't legally take.
 
15 U.S.C. §1692e(5).
 
FDCPA against the attorney/lawfirm (You can't use FDCPA against the original creditor)
 
And depending on your state, you could have consumer protection laws which also could be used against the attorney and Citibank.
 
And look to your state for any unfair/deceptive practice laws and of course, they are in breach of contract.
 
As I said - you have already "elected" arbitration - that takes away the litigation rights of both parties.  And you initiated, but not paid the entire fee at first.  If JAMS accepted your payment to go toward your filing fee (and they did because they cashed the check) - that should be of no concern to the attorney.  That is between you and JAMS.
 
The fact that you have proof they received the JAMS demand is another issue that I would consider a violation since they want to say they didn't. 
 
 

 

Linda, thanks so much for your response. You're amazing! I've been reading here for a short while and gained a multitude of info from everyone's posts

 

I sent in the JAMS paperwork at the same time I sent the paperwork to the attorney and Citi and I did receive all the green cards back within a few days.  I did not ask Citi for any waiver or upfront fees. That is not in their contract so I knew it had to be paid by myself. When I did send JAMS the $100 check I enclosed it with my Demand and any other docs required. From reading on here I gathered that I'd just be billed for the balance.

 

The question that remains for me is...would you send them the Demand paperwork they are requesting? I'm of the mind to respond to them letting them know that their request lacks justification since I have proof I sent them the Demand.

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And per the agreement, the consumer had already elected arbitration which puts the resolution of the dispute in front of an arbitrator - not a judge or jury, so the attorney has no right to threaten legal action.

 

 

Assume the other party doesn't want to play your game and files suit. Consumer says "but judge, that isn't fair, I elected arbitration." Plaintiff says, "we don't believe we're subject to an arbitration agreement." You cannot honestly say you still believe a judge has no role in determining the controversy. I have to say, some of these posts remind me of the old WhyChat dribble of a few years ago.

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Assume the other party doesn't want to play your game and files suit. Consumer says "but judge, that isn't fair, I elected arbitration." Plaintiff says, "we don't believe we're subject to an arbitration agreement." You cannot honestly say you still believe a judge has no role in determining the controversy. I have to say, some of these posts remind me of the old WhyChat dribble of a few years ago.

The point is that in the letter the firm did not disagree with my choice or suggest another forum as long as I paid. I would have to assume, however, that if I did not cave in to their demand they might have filed suit. They might have assumed that I was going to disregard them.

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Linda, thanks so much for your response. You're amazing! I've been reading here for a short while and gained a multitude of info from everyone's posts

 

I sent in the JAMS paperwork at the same time I sent the paperwork to the attorney and Citi and I did receive all the green cards back within a few days.  I did not ask Citi for any waiver or upfront fees. That is not in their contract so I knew it had to be paid by myself. When I did send JAMS the $100 check I enclosed it with my Demand and any other docs required. From reading on here I gathered that I'd just be billed for the balance.

 

The question that remains for me is...would you send them the Demand paperwork they are requesting? I'm of the mind to respond to them letting them know that their request lacks justification since I have proof I sent them the Demand.

No, I would not.  Does your green card receipt show the name of the person that received it?  If so, I think I would email or fax them and let them know that you already paid to send the information to them certified and they need to check with so and so of their lawfirm as they are the one that signed for it.

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Assume the other party doesn't want to play your game and files suit. Consumer says "but judge, that isn't fair, I elected arbitration." Plaintiff says, "we don't believe we're subject to an arbitration agreement." You cannot honestly say you still believe a judge has no role in determining the controversy. I have to say, some of these posts remind me of the old WhyChat dribble of a few years ago.

If the other party ignored the election and filed suit, then the consumer would answer "and" present a motion to compel arbitration based on their state's uniform arbitration act.  Properly prepared it would show a timeline of events and showing there "is" an agreement with an arbitration provision and pursuant to their state's uniform arbitration act, the FAA and the Supreme Court decision of AT&T vs Concepcion . . .

 

All most states need is proof of that agreement.  Some also want the other side to "refuse" before they grant a motion to compel while others will grant the motion to compel as long as there is an agreement.  You always need to check your states rules.

 

Another thing to remember is to attach an affidavit to your cardmember agreement.  That is your "proof" before the court.

 

The Judge has the role of determining if there is an agreement to arbitrate.  Once that is decided and there is an agreement to arbitrate, the case is dismissed or stayed pending the result of arbitration.

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The point is that in the letter the firm did not disagree with my choice or suggest another forum as long as I paid. I would have to assume, however, that if I did not cave in to their demand they might have filed suit. They might have assumed that I was going to disregard them.

Absolutely! 

 

That attorney letter I'm sure came across as threatening and should fall into the FDCPA's Least Sophisticated Consumer Standard.

 

And according to the agreement once you elected arbitration, "any" dispute would be resolved by arbitration - so, the attorney is out of line for threatening legal action.  And the fact that "he" gave you a time period to pay all your fees . . . that should be up to JAMS - not the attorney.

 

I would go to debtorboards and post in their arbitration forum and get their opinions as they may well differ.  http://www.debtorboards.com/index.php?board=121.0

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Thanks for your suggestion, Linda. I have tried a few times to get an account on Debtorboards and have registered but their validation emails are never sent. It's been frustrating trying to get an account on there.  I've heard a couple others have the same problem ever since the board upgrade.

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If the other party ignored the election and filed suit, then the consumer would answer "and" present a motion to compel arbitration based on their state's uniform arbitration act.  Properly prepared it would show a timeline of events and showing there "is" an agreement with an arbitration provision and pursuant to their state's uniform arbitration act, the FAA and the Supreme Court decision of AT&T vs Concepcion . . .

 

All most states need is proof of that agreement.  Some also want the other side to "refuse" before they grant a motion to compel while others will grant the motion to compel as long as there is an agreement.  You always need to check your states rules.

 

Another thing to remember is to attach an affidavit to your cardmember agreement.  That is your "proof" before the court.

 

The Judge has the role of determining if there is an agreement to arbitrate.  Once that is decided and there is an agreement to arbitrate, the case is dismissed or stayed pending the result of arbitration.

 

 

So what you're saying is the mere "election" of arbitration by one party doesn't take away the right of the other party to litigate in court . . . isn't that right?

 

Look, several months ago, I was involved in a case (yet another) where a debt buyer was attempting to invoke arbitration to escape liability for its actions by claiming that, as an assignee, it was subject to the cardmember agreement. Long and short of it, consumer won the day; court held that even though an agreement existed, this debt buyer was "not entitled to enforce the Arbitration Provision." 

 

Consumers often face the same battle in trying to prove (1) that an arbitration provision exists; (2) that the parties are subject to it, and; (3) that the controversy falls within the contemplated purview of the Agreement. See Battels v. Sears Nat'l Bank, 365 F. Supp. 2d 1205, 1211 (M.D. Ala. 2005) (Issues to be decided by the court "include certain gateway matters, such as whether the parties have a valid arbitration agreement at all or whether a concededly binding arbitration clause applies to a certain type of controversy.")

 

When consumers facing a potentially complicated legal process are told simply, "since you have now sent in the full payment - you've shut the door on the attorney's argument," they are both mislead and misinformed. While I don't think that is Linda7's intent (at least I hope not), I do think she fails to appreciate the fact that legal proceedings are seldom as simple as the solutions offered in a Liz Weston article or an internet "How To" post. Folks, do your homework on the arbitration angle before you bet the farm on it, and be careful what you ask for; you might just get it.

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Anything can happen in court as we all know.  And I am certainly "not" saying to bet the farm on anything.

 

I've seen cases that had every mark of being won by the consumer - completely decided in favor of a creditor by a judge having "no" reason to do so.

 

My remark "since you have now sent in the full payment - you've shut the door on the attorney's argument," is in regard to "this" OP's situation - meaning that it shuts the door on the attorney's argument for "this" case.  The attorney was trying to force the full payment and the consumer obliged, so the attorney's argument is now a moot point.

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I need some help here, please! This has become all rather frustrating. The complaint is due this week. The strike list is also due this week. I spoke with the case manager about adding the firm and the  attorneys who contacted me as respondents. He said that can only be done by the arbitrator who of course has not been picked.

The case manager said that the attorney who represents Citi is not a respondent and cannot be named a respondent without the arbitrator's permission. The problem is the bulk of the complaint focuses on the FDCPA violations committed by the attorney once he took over collection.  When he did  I immediately elected arbitration and sent the forms in while I disputed.

If I remove both attorneys as respondents there is little left to the complaint. I was going to send them both a copy of the complaint naming them as respondents but it appears I can't. Anyone with ideas on best how to handle this? Can I just file what I already have naming all these parties and just wait for a response?  Will they allow me to cure something that is incorrect? The case  manager was really unable to help which I understand. I need some guidance on this.

On the commencement form this attorney is named as a respondent which confuses me even more and I mentioned that to the case manager. He said my arbitration exists only with Citi and not the attorneys.


At this point I have to get this complaint in and don't want to be tossed out.  Any help is appreciated as I need this thing out the door ASAP!

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They are correct. Arb is between you and Citi. If you want to go after the attorney for FDCPA violations you have to sue in court. Arb does not mediate anything other than the dispute set forth in the agreement.

Can you hold a creditor responsible for their attorney's behavior if they are acting as a debt collector?

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Nope. You sue the lawyer. If the lawyer thinks the creditor is responsible, he can implead the creditor as a third party defendant, and he'll have the worst argument ever heard, "we were just doing what our client wanted.....violating the law." Good luck with that one. Original creditors such as Citi are not subject to the FDCPA, only third party debt collectors and debt collection law firms are. Citi is out of the picture.

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