JAMS Fees - Any waiver of fees for consumer?

[Determined1]

Hi,

 

I plan to invoke arbitration in a contract with a bank over a dispute in a personal checking account. The checking account has an arbitration clause, with options for AAA or JAMS. From my read of posts in this forum by @Linda7, I understand JAMS is the preferred forum. I spoke with JAMS today who advised that consumer must pay $250 to initiate arbitration. The bank also pays $250, and is then responsible for all fees going forward. The bank contract suggests there may be waivers by the arbitration administrator, but is not more specific. Are there any waivers available for the consumer's initial $250 fee? Not looking to be cheap here, but the more I make the other side pay costs up front, the greater the chance they'll look to resolve this early in the process.

 

Also, the JAMS website has a listing of arbitrators, or "neutrals" as they call them. Instead of picking blindly, can anyone suggest a way of choosing a good arbitrator from their list?

 

Thanks!

[Linda7]

The consumer does "not" necessarily have to pay $250 for JAMS - it all depends on what your agreement says.  Do you have a copy of it and what does it say?

 

The $250 is the "most" that a consumer would have to pay for the initiation fees - but, again depending on the agreement - it could be that the consumer pays none or maybe $50, $125, etc.

 

If you could post a copy of the agreement here, it sure could help with your answers. 

 

As far as picking arbitrators, you'll need to wait and see the list they send to you.  Then you research each name, using all search engines that you have.  Look for arbitrators who are consumer friendly, did pro bono work, etc.  Stay away from the big business ones, bankers, etc.

[Determined1]

Hi Linda,

 

Thank you for your feedback! The following is the Arbitration Section of Checking Account Agreement. I redacted the bank's name for privacy at this time and copied the fee provisions up front in this post for easier review. My read of this is I have to forward an amount equivalent to a court filing fee to JAMS. Do you still feel JAMS is a preferable venue over AAA?  My county court's filing fee is $400. JAMS told me they will only require $250. However, this agreement seems a bit vague as it says the arbitration administrator "may" have a fee waiver provision. Here's the pertinent section:

 

"For Claim(s) that total less than $75,000 and at your written request, we will pay all filing, hearing and/or other fees charged by the administrator and arbitrator to you for Claim(s) asserted by you in arbitration after you have paid an amount equivalent to the fee, if any, for filing such Claim(s) in state or federal court (whichever is less) in the judicial district in which you reside. If you have already paid a filing fee for asserting the Claim(s) in court, you will not be required to pay that amount again. In addition, the administrator may have a procedure whereby you can seek a waiver of fees charged to you by the administrator and arbitrator. We will always pay any fees or expenses that we are required to pay by law or the administrator’s rules or that we are required to pay for this arbitration agreement to be enforced. The arbitrator will have the authority to award attorneys and

expert witness fees and costs to the extent permitted by either these rules and regulations, the administrator’s rules or applicable law. The arbitrator shall award you your reasonable attorneys’ and expert witness fees and costs (a) if and to the extent you prevail on Claim(s) you assert against us in an arbitration commenced by you, or ( b ) to the extent required under applicable law for this arbitration agreement to be enforced. The arbitrator shall write a brief explanation of the grounds for the decision. A judgment on the award may be entered by any court having jurisdiction."

 

I'm very appreciate of any feedback on the fee issue and JAMS vs AAA question. Thanks!

 

 

Full Agreement:

 

ARBITRATION AGREEMENT

 

 

READ THIS PROVISION CAREFULLY AS IT WILL HAVE A SUBSTANTIAL IMPACT ON HOW DISPUTES AND CLAIMS YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. YOU HAVE THE RIGHT TO REJECT THIS ARBITRATION AGREEMENT AS SET FORTH BELOW.

 

If you do not reject this arbitration agreement, for a

Claim subject to arbitration, neither you nor we will

have the right to: (1) have a court or a jury decide the

Claim; (2) engage in information-gathering (discovery)

to the same extent as in court; (3) participate in a

class action in court or in arbitration; or (4) join or

consolidate a Claim with claims of any other person.

The right to appeal is more limited in arbitration than

in court and other rights in court may be unavailable

or limited in arbitration.

 

Claims Subject to Arbitration. A “Claim” subject to

arbitration is any claim, dispute or controversy between

you and us (other than an Excluded Claim or Proceeding

as set forth below), whether preexisting, present or future,

which arises out of or relates to the Account, these rules

and regulations or any transaction conducted with us in

connection with the Account or these rules and

regulations. “Claim” has the broadest possible meaning

and includes initial claims, counterclaims, cross-claims,

third-party claims and federal, state, local and

administrative claims. It includes disputes based upon

contract, tort, consumer rights, fraud and other intentional

torts, constitution, statute, regulation, ordinance, common

law and equity and includes claims for money damages

and injunctive or declaratory relief. Upon the demand of

you or us, Claim(s) will be resolved by individual (not class

or class-wide) binding arbitration in accordance with the

terms specified in this arbitration agreement.

 

Special Definition of “We,” “Us” and “Our.” Solely for

purposes of this arbitration agreement, the terms “we,”

“us” and “our,” in addition to the meanings set forth in

these rules and regulations, also refer to Bank

employees, officers, directors, parents, controlling

persons, subsidiaries, affiliates, successors and assigns.

“We,” “us” and “our” also apply to third parties if you assert

a Claim against such third parties in connection with a

Claim you assert against us.

 

Excluded Claim or Proceeding. Notwithstanding the

foregoing, “Claim” does not include any dispute or

controversy about the validity, enforceability, coverage or

scope of this arbitration agreement or any part thereof

(including, without limitation, the Class Action Waiver set

forth below and/or this sentence); all such disputes or

controversies are for a court and not an arbitrator to

decide. However, any dispute or controversy that

concerns the validity or enforceability of the rules and

regulations as a whole is for the arbitrator, not a court, to

decide. In addition, the following claims or proceedings will

not be subject to this arbitration agreement: (1) any

individual action brought by you or us in small claims court

or your state’s equivalent court, unless such action is

transferred, removed, or appealed to a different court; (2)

the exercising of any self-help rights, including set-off as

described in the paragraph below titled “Right of Offset

and Security Interest,” or (3) any individual action in court

by one party that is limited to preventing the other party

from using a self-help remedy and that does not involve a

request for damages or monetary relief of any kind. The

institution and/or maintenance of any such right, action or

litigation shall not constitute a waiver of the right of either

of the parties to compel arbitration regarding any other

dispute subject to arbitration pursuant to this arbitration

agreement. Moreover, this arbitration agreement will not

apply to any Claims that are the subject of (a) a class

action filed in court that is pending as of the effective date

of this arbitration agreement in which you are alleged to be

a member of the putative class (however, you and we will

continue to be bound by any prior version of this

arbitration agreement) or ( b ) a motion to compel arbitration

filed by us against you before the effective date of this

arbitration agreement pursuant to a prior version of this

arbitration agreement (however, you and we will continue

to be bound by any prior version of this arbitration

agreement).

 

Federal Arbitration Act. Notwithstanding any choice of

law or other provision in these rules and regulations, the

parties agree and acknowledge that this agreement

evidences a transaction involving interstate commerce and

that the Federal Arbitration Act (Title 9 of the United States

Code) (“FAA”) shall govern its interpretation and

enforcement and proceedings pursuant thereto. 

 

Class Action Waiver. Notwithstanding any other

provision of these rules and regulations, if either

you or we elect to arbitrate a Claim, neither you

nor we will have the right: (a) to participate in a

class action, private attorney general action or

other representative action in court or in

arbitration, either as a class representative or

class member; or ( b ) to join or consolidate

Claims with claims of any other persons. No

arbitrator shall have authority to conduct any

arbitration in violation of this provision.

(Provided, however, that the Class Action Waiver

does not apply to any lawsuit or administrative

proceeding filed against us by a state or federal

government agency even when such agency is

seeking relief on behalf of a class of borrowers

including you. This means that we will not have

the right to compel arbitration of any claim

brought by such an agency). The parties to these

rules and regulations acknowledge that the

Class Action Waiver is material and essential to

the arbitration of any disputes between the

parties and is nonseverable from this arbitration

agreement. If the Class Action Waiver is limited,

voided or found unenforceable as to any

Claim(s), then the parties’ arbitration agreement

(except for this sentence) shall be null and void

with respect to such Claim(s) (but not as to any

other Claim(s) that have been or are later

brought), subject to the right to appeal the

limitation or invalidation of the Class Action

Waiver. The parties acknowledge and agree that

under no circumstances will a class action be

arbitrated.

 

Arbitration Procedures. If you or we elect to arbitrate a

Claim, the electing party must notify the other party in

writing. This notice can be given after the beginning of a

lawsuit and can be given in papers filed in the lawsuit.

Otherwise, your notice must be sent to Bank

Legal Department, Attn: General Counsel-Arbitration

Election, Mail Code 0643, 303 Peachtree Street, N.E.,

36th Floor, Atlanta, Georgia 30308, and our notice must

be sent to the most recent address for you in our files. Any

arbitration hearing that you attend must take place in a

venue reasonably convenient to you. If a party files a

lawsuit in court asserting Claim(s) that are subject to

arbitration and the other party files a motion to compel

arbitration with the court which is granted, it will be the

responsibility of the party prosecuting the Claim(s) to

select an arbitration administrator in accordance with the

paragraph below and commence the arbitration

proceeding in accordance with this arbitration agreement

and the administrator’s rules and procedures.

 

The arbitration will be administered by the American

Arbitration Association (“AAA”), 1633 Broadway, 10th

Floor, New York, NY 10019, www.adr.org, 1-800-778-

7879 or JAMS, 1920 Main Street, Suite 300, Irvine, CA

92614, www.jamsadr.com, 1-800-352-5267. The rules and

forms of the AAA and JAMS may be obtained by writing to

these organizations at the addresses listed above. If the

AAA and JAMS are unable or unwilling to serve as

administrator, the parties may agree upon another

administrator or, if they are unable to agree, a court shall

determine the administrator. No company may serve as

administrator, without the consent of all parties, if it adopts

or has in place any formal or informal policy that is

inconsistent with and purports to override the terms of this

arbitration agreement. In the event of a conflict between

the provisions of this arbitration agreement and any

applicable rules of the AAA or JAMS or other administrator

used, the provisions of this arbitration agreement shall

control.

 

A single arbitrator will be appointed by the administrator

and, unless the parties agree otherwise, must be a

practicing attorney with ten or more years of experience or

a retired judge. The arbitrator will not be bound by judicial

rules of procedure and evidence that would apply in a

court, nor by state or local laws that relate to arbitration

provisions or proceedings. The arbitrator will honor and

enforce statutes of limitation and claims of privilege

recognized under applicable law. In determining liability or

awarding damages or other relief, the arbitrator will follow

the applicable substantive law, consistent with these rules

and regulations and the FAA, that would apply if the

matter had been brought in court. The arbitrator may

award any damages or other relief or remedies permitted

by applicable law. For Claim(s) that total less than $75,000

and at your written request, we will pay all filing, hearing

and/or other fees charged by the administrator and

arbitrator to you for Claim(s) asserted by you in arbitration

after you have paid an amount equivalent to the fee, if

any, for filing such Claim(s) in state or federal court

(whichever is less) in the judicial district in which you

reside. If you have already paid a filing fee for asserting

the Claim(s) in court, you will not be required to pay that

amount again. In addition, the administrator may have a

procedure whereby you can seek a waiver of fees charged

to you by the administrator and arbitrator. We will always

pay any fees or expenses that we are required to pay by

law or the administrator’s rules or that we are required to

pay for this arbitration agreement to be enforced. The

arbitrator will have the authority to award attorneys and

expert witness fees and costs to the extent permitted by

either these rules and regulations, the administrator’s rules

or applicable law. The arbitrator shall award you your

reasonable attorneys’ and expert witness fees and costs

(a) if and to the extent you prevail on Claim(s) you assert

against us in an arbitration commenced by you, or ( b ) to

the extent required under applicable law for this arbitration

agreement to be enforced. The arbitrator shall write a brief

explanation of the grounds for the decision. A judgment on

the award may be entered by any court having jurisdiction.

 

Severability and Survival. If any part of this arbitration

agreement, other than the Class Action Waiver, is deemed

or found to be unenforceable for any reason, the

remainder shall be enforceable. This arbitration agreement

shall survive the closing of your Account and the

termination of any relationship between us, including the

termination of these rules and regulations.

 

Effect of Arbitration Award. The arbitrator’s award shall

be final and binding on all parties, except for any right of

appeal provided by the FAA. However, if the amount of the

Claim exceeds $50,000 or involves a request for injunctive

or declaratory relief that could foreseeably involve a cost

or benefit to either party exceeding $50,000, any party

can, within thirty (30) days after the entry of the award by

the arbitrator, appeal the award to a three-arbitrator panel

administered by the Administrator. The panel shall

reconsider anew any aspect of the initial award requested

by the appealing party. The decision of the panel shall be

by majority vote. Reference in this arbitration provision to

“the arbitrator” shall mean the panel if an appeal of the

arbitrator’s decision has been taken. The costs of such an

appeal will be borne in accordance with the above

paragraph titled “Arbitration Procedures.” Any final

decision of the appeal panel is subject to judicial review

only as provided under the FAA.

 

Notice and Cure; Special Payment. Prior to initiating a

Claim, you may give us a written Claim Notice describing

the basis of your Claim and the amount you would accept

in resolution of the Claim, and a reasonable opportunity,

not less than thirty (30) days, to resolve the Claim. Such a

Claim Notice must be sent to us by certified mail, return

receipt requested, at ________ Bank Legal Department,

Attn: General Counsel-Claim Notice, Mail Code 0643, 303

Peachtree Street, N.E., 36th Floor, Atlanta, Georgia

30308. This is the sole and only method by which you can

submit a Claim Notice. If (i) you submit a Claim Notice in

accordance with this Paragraph on your own behalf (and

not on behalf of any other party); (ii) you cooperate with us

by promptly providing the information we reasonably

request; (iii) we refuse to provide you with the relief you

request; and (iv) the matter then proceeds to arbitration

and the arbitrator subsequently determines that you were

entitled to such relief (or greater relief), you will be entitled

to a minimum award of at least $7,500 (not including any

arbitration fees and attorneys’ fees and costs to which you

will also be entitled). We encourage you to address all

Claims you have in a single Claim Notice and/or a single

arbitration. Accordingly, this $7,500 minimum award is a

single award that applies to all Claims you have asserted

or could have asserted in the arbitration, and multiple

awards of $7,500 are not contemplated.

 

Right to Reject Arbitration Agreement. You may reject

this arbitration agreement and therefore not be subject to

being required to resolve any claim, dispute or controversy

by arbitration. To reject this arbitration agreement, you

must send us written notice of your decision so that we

receive it at the address listed below within forty-five (45)

days of the opening of your Account. Such notice must

include a statement that you wish to reject the arbitration

agreement section of these rules and regulations along

with your name, address, Account name, Account number

and your signature and must be mailed to the _________

Bank Legal Department, Attn: Arbitration Rejection, P.O.

Box 2848, Mail Code 2034, Orlando, FL 32802-2848. This

is the sole and only method by which you can reject this

arbitration agreement and any attempt to reject this

arbitration agreement through any other method or form of

notice, including the filing of a lawsuit, will be ineffective.

Rejection of this arbitration agreement will not affect any

remaining terms of these rules and regulations and will not

result in any adverse consequence to you or your

Account. You agree that our business records will be final

and conclusive with respect to whether you rejected this

arbitration agreement in a timely and proper fashion. This

arbitration agreement provision will apply to you and us

and to your Account unless you reject it by providing

proper and timely notice as stated herein.

 

 

[sillymonkey]

D1,

My JAMS contract also stated that I was responsible for no more than what I would have to pay to file in court.

Are you low income? In many counties, you can file for a fee-waiver if you earn and/have below a certain amount of $$. If you do qualify, just print out the court waiver income requirements and send to JAMS with copies of your pay stubs. JAMS accepted my request. I just stated that I would not have to pay any fees to the court because of my income levels (with the pay stub proof) and also bolded the terms stated in the contract. I then asked them to bill the OC, which they did.

The OC paid the pull $800 to commence almost instantly (because of the large alleged debt - tens of thousands). We're still in JAMS just filing and filing Motions.

Read this board and DB. Keep reading. I was lucky that the OC and (3) CAs made a lot of mistakes as I didn't document a lot of violations until much later. Still, by divine intervention, I have over 50 claims/complaints (OC and their CA were NOT happy about all the claims).

 

Research everything, FDCPA, TCPA, TILA, UCCC (Uniform Consumer Credit Code - if your state uses it), your state's Consumer Protection Act, Usary Laws, FCRA.

 

1 CA has already caved with a $xxxx settlement coming next week or so (amount confidential).

The CAs have low-balled settlement offers (declined). OC is feeling the heat of the arb costs and wants to settle for a fraction of the alleged amount (declined).

 

We have time, nothing to lose and I have a LOT of fight in me. I have full support from my spouse. For us, even if they win the case, they still lose because they'll get nothing as we have BK7 as our ace.

 

 Every case/person is different so my situation/fight will be different from yours.

 

My tip is: put in as many Complaints/Claims as possible. If nothing else, it takes up the lawyer's time (=$) as well as the Arbitrator's time to go over everything ($$$). Object to everything the OCs claim. Argue for use of your state's law (if applicable). Add the CAs in your complaint.

Just keep flapping your lips/pen.

 

The CAs will fight being added into the Complaint but my OC's Arb Clause was very clear to state that debt collectors are included in the Arb Clause. GOOD LUCK!!

 

 

*** Nothing I say should be construed as legal advice. I am not a lawyer and I write a lot of crap.

[Linda7]

JAMS is "always" the preferred choice as it costs the creditor more and gives the consumer a better strategic position.

 

I sent you a pm with some questions.