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Being sued despite arbitration election - do I have a case against them for violations


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Hi all,

I posted another thread a couple days ago asking for lawyers in town. I get some great tips and I will consult the recommended lawyers in a few days, but I would like to do some homework first.

Quick summary:
It is my wife's Discover card, opend in 2009 and went default in early 2012. Amount is ~8000. The plaintiff's attorneys are Bishop, White, et all., of Seattle. We are in Oregon.


Highlighted Events:
1. On July 2012, received a letter from Discover stating "Attorney Placement Pending". They wanted us to contact by Aug 31.

2. Within 2 weeks I sent Discover the following letter via CMRRR. Received the receipt a week later.

------------- x --------------------- x -------------------
My wife's name

Address

Discover

Address

Re: Account #

This letter is being sent to you in response to a "Attorney Placement Pending" letter sent to me on July XX, 2012.

I dispute this debt.

As listed in the Card Member Agreement, I elect the arbitration with JAMS.

I also request that you advance my JAMS fees directly to JAMS, per the Agreement.

I would also like to request, in writing, that no telephone contact be made by your offices to my home or the homes or places of employments of my family as it is very inconvenient.

Signed

My wife's name
------------- x --------------------- x -------------------

3. Never heard from Discover again

4. Sep 2012, first letter from Bishop et all. arrived, stating "Unless you dispute the validity...". Standard collection letter.

5. Sep 2012, about a week later, second letter from Bishop et all. Stating "Please call us..."

6. Within 2 weeks, sent DV letter to Bishop et all. via CMRRR. Received receipt in a week.

7. Never heard from them again.

8. A few days ago (Apr 2013), served by complaint filed by Bishop et all.




Questions
- Did we do anything wrong in our arbitration election letter to Discover?
- Did they validate anything, as we did elect it but they went ahead and sued us?   
- Can this law firm ignore DV letter?


Other Miscellaneous Note
- I pulled my wife's credit report. Only Discover is listed, but is charged off.
- Even after the letters from 1, 4, and 5 above, Discover sent her statement until Jan 2013.


Thank you so much for your answers in advance. You didn't have to help but decided to do it anyways. I cannot thank you all enough.

 

Sincerely,

suite800

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What I suspect happened is that when you sent your Debt Validation to the original creditor (Discover) with the do not call provision they pretty much ignored you and sold off your account or placed it with a collection agency. 

 

When you requested validation from them and asked for Arbitration they deferred your DV letter back back to the OC.  When nothing happened at the Collection Agency your account got sold to a Junk Debt Buyer for pennies on a dollar. DV is of no further concern and when you didn't call them to make a deal they sent their summons with complaint. 

 

The election for Arbitration usually takes place after you have been sued. Here is where you would file a Motion to elect Private Arbitration with JAMS in lieu of answer with the court clerk. You will have to move pretty fast on that because Oregon Mandatory Arbitration will kick in about 60 days after the Complaint was filed. 

 

 

I would also recommend sticking to one thread that way when we toggle our follow button we get all your questions and can help with the answer. Do a Google search for "linda7" and/or try to search for her posts on CIC forum. She has some great tips on how to set up and work with JAMS Arbitration that will now apply being your lawsuit is in process.  

 

HP

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I am not in OR but I do know about election and arbitration (I have been through a full blown arbitration with bells and whistles).

 

Keep in mind OCs have no obligation to honor your requests for arbitration by just electing it. I know it sounds corny and all but read your card agreement as to what how and whos. You may have an FDCPA cause of action for the numb brain who sued you after electing arbitration.

 

I must make a correction to Huey's comment;  electing private arbitration can be done at any stage (including when one feels the law suit coming) so it is not necessarily at the court stage alone (after being sued), but after suit is filed it's done by compelling the other party to obide by their own contract, which is why motion to compel is drafted.

 

I have done 5 pre-emptive filings in JAMS after I was threatened with suit, one OC did not want to bother with me or pay the fees. That OC is barred from litigation for life because of its refusal to participate and SOL is up on the contract.

 

Two JDBs did not also want to participate afterward and they are also SOL both on contract and filing suit.

 

But these were done a few years back and prior to OCs starting to get hammered with "arbitration election" so the field has dramatically changed where OCs are willing to fetch 20-30 grand to teach debtors a lesson in arbitration.

 

READ Discover's card agreement and make sure to file claim in JAMS accordingly and specify the amount to be over $100K to be qualified for appeal if necessary.

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Sending a letter to the plaintiff electing arbitration is improper procedure. You have to file a motion with the court electing arbitration, among other things. Linda7 is the expert on this, see her threads. Contrary to poular belief, the court can deny you this if you have gotten too far into litigation. The law firm is subject to the FDCPA but Discover is not.

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