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Railroaded by judge mandatory arbitration


heartglass
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Opposing council is a law firm who alleges to represent Citibank. They did not respond to our proof of claim process. At the hearing for the motion to dismiss, with supporting affidavit. The judge not only allowed the opposing council to side step their standing by claiming attorney client confidentiality, but also heard opposing council's challenge to the lawfulness of the EFT instrument. At this point the judge denied the motion to dismiss without addressing any of the other issues raised in the motion to dismiss. As in lack of jurisdiction , debt was charged off , who was harmed? No one.

 

They filed complaint in Oct 2012 , no affidavits, in all their paperwork they claimed I had been served. I was not served a summons until June 8 2013 , they had requested twice in the 8 months to keep the case open . I then filed a motion to dismiss, based on no proof of claim, then the poop hit the fan.

 

The judge entered the affidavit in support of the motion to dismiss as the answer to the complaint and ordered the case to go to binding arbitration. We have till this coming Friday to respond to the court with a selection of an arbitrator.

We are at a loss as to what to do or file next. We have been reviewing law, and  looking through the forum for information specific to this matter. Any help pointing to specific calls and documents, and in what form to present to the court will be extremely helpful. We heard a call last week about the supreme CT ruling ( Heintz v Jenkins ) which places attorney's and law firms under the jurisdiction of the FDCPA . This should clearly require opposing council to disclose their relationship with Citibank. How do we bring the challenge again?

Do we file a request for discovery from the JDB ( Suttell & Hammer)

How do I handle the mandatory arbitration and what evidence can I introduce and where to I introduce it?

Any feedback is greatly appreciated , feeling a bit worn out ...... 

 

In the trenches....

 



 

 

 

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@heartglass

 

Suttell & Hammer is law firm, not a JDB.  Check Citibank's entry on your credit.   If the account has been sold, their entry will indicate "sold" or "transferred".

 

If the account has merely been charged off, then Citi still owns the account, and S & H is merely representing them. 

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Opposing council is a law firm who alleges to represent Citibank. The judge not only allowed the opposing council to side step their standing by claiming attorney client confidentiality, 

 

If the law firm is only representing the original creditor the court's ruling is correct.  Alleges?  If they are the attorney of record on the case then they DO represent the client as far as your case goes.  They do not have to disclose their entire relationship to you as it does violate attorney client privilege.  If they are the counsel of record for the case then that IS their relationship and unless you have a direct conflict of interest in their representing Citi they do not have to recuse themselves from representing the bank.

 

At this point the judge denied the motion to dismiss without addressing any of the other issues raised in the motion to dismiss. As in lack of jurisdiction , debt was charged off , who was harmed? No one.

 

Did you simply state these in the MTD or did you have case law to back it up?  The biggest treason pro-se litigants lose is lack of preparation and not understanding the rules of civil procedure or how to draft a motion.  

 

I can tell you that the debt being charged off is NOT a reason to dismiss.  "Charged off" is merely an accounting term and it does not prevent the creditor from suing you at all.  It only demonstrates the accounting flow of the consumer account.  "No one was harmed" was a really bad idea to put into a MTD.  When an account is defaulted on the bad debt DOES harm the business.  However, it doesn't matter.  You tried an argumentative defense (creditor has no damages) in a MTD and that doesn't work as you found out.

 

Court is serious and despite what you read on internet forums you cannot simply cut and paste a motion someone else said worked for them and expect it to comply with the courts in YOUR jurisdiction.  Each state has its own laws and established the procedure for motions and how they must be drafted for the court to consider them.  In your MTD 3 out of the 4 reasons appear to be frivolous and that probably gave the court wide latitude to consider the entire motion as frivolous and not hold a hearing on it before denying the motion.

 

They filed complaint in Oct 2012 , no affidavits, in all their paperwork they claimed I had been served. I was not served a summons until June 8 2013 , they had requested twice in the 8 months to keep the case open .

 

Having difficulty serving you doesn't necessarily mean the case is thrown out.  If the defendant is never served the court will ultimately dismiss it without prejudice under a no prosecution.  While unusual it is not unheard of for it to take quite a bit of time to get a defendant properly served.  It also isn't uncommon for a plaintiff to request continuances and get them if they can demonstrate an active process is in the works to get the defendant served.

 

We heard a call last week about the supreme CT ruling ( Heintz v Jenkins ) which places attorney's and law firms under the jurisdiction of the FDCPA . This should clearly require opposing council to disclose their relationship with Citibank. How do we bring the challenge again?

 

Clearly you do NOT understand the law.  Lawyers and the firms are subject to the FCDPA but this case had to do with the lawyer for the bank suing for an amount of money for insurance that was not provided for in the original auto loan contract and therefore misrepresented the debt.  If you read the entire brief the Supreme Court upheld that a lawyer or firm representing their client and sending letters to the defendant even when there is a C&D did not violate the FCDPA. Contact regarding and active lawsuit or intended legal action they can take does not violate.  The lawyer in this case added in money that the contract/loan did not provide for and attempted to collect on it.  That made him a debt collector not that he merely represented a client in litigation.  Indeed, the CFPB issued their own statement that lawyers engaged only in litigation did not fall under the FCDPA in their opinion.  The Supreme Court has not had a legal challenge to that yet.

 

You cannot read one section of an entire ruling or hear about it and keep pursuing this frivolous chase and you are likely to end up with sanctions of your own.

 

You cannot just read a partial paragraph from a suit or a quoted legal case line and think "that sounds exactly like my situation" and then hammer the court with it and a bunch of other denials and hope something sticks.  When you deny or challenge evidence you have to have a LEGAL basis to do so.  The reason challenging a line on an excel spreadsheet from a JDB works is there is no LEGAL proof that sheet someone created accurately verifies a debt or that it belongs to the defendant.

 

We are at a loss as to what to do or file next.

 

I agree.  You thought you were up against a JDB but so far it does not appear this debt has been sold.  If the original creditor is suing you then you have a MUCH harder time defending the case and about half of the arguments you see on forums like this won't work because affidavits, bills of sale, bills of particulars etc. won't apply because the OC still has the entire file and is pursuing you.

 

Unlike a court case where you can go and watch how the court and judge does things because they are public, arbitration is private.  You won't have the advantage of being able to observe how it goes.  It is less formal on how you present evidence.  Generally the arbitrator listens to both sides and then takes all the evidence and renders a decision.  Here is your problem:  the big reason you see other forums (and occasionally here) recommending the CONSUMER/Defendant file demanding arbitration is that it is expensive for the plaintiff.  Often when faced with arbitration the plaintiff backs down and the whole thing gets dismissed with prejudice because the plaintiff did not comply with their own contract.  You do not have that option because they requested it.  The requesting arb tactic just went out the window.

 

There are some people who are able to be pro-se litigants and some who are not.  If you cannot afford to hire a lawyer I highly suggest you head over to your local legal aid office and see if you qualify.  If not try your local law school.  Often they have low or no cost clinics with graduating law students and faculty overseeing them to help consumers in your situation at low or no cost.  Another option would be to pay a flat one hour fee to a consumer lawyer to educate you on now to defend this in arbitration based on  your situation.  

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Thanks Clydesmom ...how depressing .....

 

It isn't meant to be depressing.  If you are going to fight you need to know how to do it to win.  The BIGGEST reason pro-se litigants lose is because they are grossly unprepared and do not understand the rules of civil procedure for court.  Sites like this one are a great resource to get started on what direction to go but are NOT a substitute for an actual legal education.

 

Have consumers beat lawyers in debt cases?  Absolutely. But one person's success does not mean it will happen in every case or in your court in your jurisdiction.  Most of the success stories you hear about involve a junk debt buyer with no evidence or evidence that does not meet the burden of proof in a court of law.  When you are battling the creditor who granted you the account most of those defenses used against a JDB are not available to you.  

 

The difference here is the creditor (plaintiff) is going to bring their own records.  Not copies, not an account that has been sold, and not just a ledger line.  They can attest to their own records.  So your hearsay defense is impotent if not gone.  You did not raise a SOL defense in your MTD which means they filed within the SOL in your state.  (which OCs tend to do when they haven't sold the debt)  You are also dealing with an OC that is KNOWN for being aggressive in pursuing defaulted accounts.  The larger the amount of the account defaulted on the more aggressive they are going to be.

 

Now that they have elected arbitration where you don't have to worry about motions, rules of evidence, and formal procedures you should consult an attorney to discuss your realistic options.  A one time consultation could educate you more about what to do next and how to maybe win the case.  I am not saying give up but you need to start researching how to battle an OC in arbitration.  Clearly Citi is not going to back down and if you don't get some expert input based on the facts of your circumstances you are going to get steam rolled.  

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I already got a taste of the courts here, the judge referred to me not by name , just pointed at me and said YOU here sit! talk about treated like a dawg. Yes I have been studying the law , just not able to verbalize it when my knees are knocking.

 

At the hearing Suttel did not appear in person they telephoned  late claiming they did not know it was scheduled court reminded them they had recieved notice, denied having my affidavit , then found it , they have been using sham legal process for 8 months. They let the case expire twice filed extensions to keep the case pending all the while claiming I had been served . 

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I already got a taste of the courts here, the judge referred to me not by name , just pointed at me and said YOU here sit! talk about treated like a dawg. Yes I have been studying the law , just not able to verbalize it when my knees are knocking.

 

Then arbitration may be far better for you since it is less formal.

 

At the hearing Suttel did not appear in person they telephoned  late claiming they did not know it was scheduled court reminded them they had recieved notice, denied having my affidavit , then found it , they have been using sham legal process for 8 months. They let the case expire twice filed extensions to keep the case pending all the while claiming I had been served . 

it is at the discretion of the Judge to allow telephone appearance and if the court is okay with it, it is a very acceptable form of appearing.  Disorganized doesn't actually mean sham.  I would bet money that had you had a lawyer they would have had it thrown out long ago due to the disorganization.  Unfortunately your lack of legal expertise on how to fight it put you in a worse position than their disorganization.

If they are that loose on their preparation all the more reason to consult a local expert who may be familiar with their tactics and can educate you on how to fight them.

 

Not exactly the same but I got a ticket for an expired license once.  Called a lawyer familiar with the traffic court judge that would hear it and he told me exactly what would happen, what to say, and what to do to get it dismissed.  I followed his advice and it was thrown out.  

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@Clydesmom

 

Lawyers and the firms are subject to the FCDPA but this case had to do with the lawyer for the bank suing for an amount of money for insurance that was not provided for in the original auto loan contract and therefore misrepresented the debt.

 

 

Actually, the Supreme Court heard this case in order to determine if attorneys who engage in litigation in order to collect a debt are debt collectors.   The court ruled that they are debt collectors bound by the FDCPA.

 

The lawyer in this case added in money that the contract/loan did not provide for and attempted to collect on it.  That made him a debt collector not that he merely represented a client in litigation.  Indeed, the CFPB issued their own statement that lawyers engaged only in litigation did not fall under the FCDPA in their opinion.  The Supreme Court has not had a legal challenge to that yet.

 

 

 

I respectfully disagree.  It was not the adding of interest that made the attorney a debt collector. 

 

The district court had ruled that the attorney had not violated 1692f(1), (adding the interest) because he was not a debt collector subject to the FDCPA.   The 7th Circuit Court of Appeals ruled, and the Supreme Court affirmed, that attorneys who engage in litigation to collect a debt are, in fact, debt collectors.  

 

The Court ruled that he was a debt collector due to the fact that he was collecting a debt through litigation.

 

"For these reasons, we agree with the Seventh Circuit that the Act applies to attorneys who "regularly" engage in consumer-debt-collection activity, even when that activity consists of litigation."

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The arbitration sounds like court connected arbitration ("CCA").

http://www.osbar.org/public/legalinfo/1216_MandatoryArbitration.htm

I would find out as much about the CCA rules and procedures as I could. Research any existing controlling case law on appeals for CCA.

 

CCA is a different animal than private mandatory binding arbitration ("PMBA") which is sourced from an agreement between the parties. PMBA are fairly common in CC agreements.

 

I was not as impressed with the documentation and affidavits of the N.A.s that have sued me YMMV. The fight against an OC and their DC attorneys is not a trivial battle as any one that has actually fought one and lost or prevailed would likely agree. Litigation will take time, resources, dedication, and guts to prevail. Even with all that failure is still a possibility. Making a solid trial court record to reference on appeal and reverse any errors or discretion abuses is critical IMO.

 

PMBA may be an option if the alleged debt is not large. I am not a fan of PMBA but some have success with it.

 

I have won in CCA but it was a lot of work. I did not expect to win an award in my favor but expected to take an adverse award back to court and start over. Having the court's arbitrator file arguments on behalf of a N.A. bank attorneys because they were unable to address my motion properly was just one of the "anomalies" I faced.

 

Barring the ability to find and engage a competent attorney to win/settle I would likely want to:

- Research PMBA and see if an agreement existed for such and determine if I wanted to enforce that arbitration agreement against this particular plaintiff.

- Learn all I can about CCA including any appeal process and costs.

- Sit in on some collection hearings at the courthouse.

- Determine the plaintiff's cause of action and all the required elements they must prove.

- If not previously filed, determine if I have any appropriate affirmative defenses that can still be filed and file them.

- Review their affidavit and any attachments in light of case law requirements to see if they meet the requirements for admissible evidence.

- Review any cases in my jurisdiction that were collection cases won by the defendant and pull the motions and responses used by the parties and/or their counsel for reference on what a winning case file looks like.

- A bunch of other stuff as it comes to mind.

 

Litigation, even only one case at a time, is a serious part time job. In the beginning the learning curve is steep and it feels more like a full time job.

 

Since the self-represented do win and they can win against OCs I know it can be done and don't presume I am the brightest one having success. But it is hard and often frustrating work that not everyone is willing or able to take on. My OC battles have each averaged nearly 2 years. Some defendant's fights are longer and some are shorter but I would plan on the long haul if winning was my goal.

 

Personally, I don't believe there are ready to use templates for DV letters and I know there are no such things free and readily available online for motion practice in a collection case for the defendant.

 

Only the defendant can decide what to do when faced with a suit. It is not pleasant but it is not without hope as the success of others indicates. I am unable to provide an easy button for litigation and would avoid those they claim to have one.

 

If there is a "magic bullet" it is probably intelligent hard work coupled with a refusal to give up.

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In Oregon, answering the complaint starts the wheels for court arbitration which is what I believe you're headed for.

 

Did you elect JAMS arbitration with the creditor?

 

Have you initiated in JAMS?

 

From what I've heard in Oregon, you need to elect and initiate the private/contractual arbitration before you answer and I would have included copies when you filed your answer using the fact that you have already chosen per the agreement the arbitration forum and have initiated pursuant to the rules of the governing contract.

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Sorry I do not know what JAMS is , can you please tell me . Yesterday I got serveda summons to appear with in 30 days no affidavit with the complaint  from another layer debt collector who bought  another debt from another  CA  , am over whelmed . My house is in foreclosure thats another story , struggling to keep my small business and just stay alive. I am thinking of BK I am consumed with this , have been studying law , but I do not have what it takes. Can't afford a lawyer any suggestions?

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Sorry I do not know what JAMS is , can you please tell me . Yesterday I got serveda summons to appear with in 30 days no affidavit with the complaint  from another layer debt collector who bought  another debt from another  CA  , am over whelmed . My house is in foreclosure thats another story , struggling to keep my small business and just stay alive. I am thinking of BK I am consumed with this , have been studying law , but I do not have what it takes. Can't afford a lawyer any suggestions?

JAMS http://www.jamsadr.com/ is a forum that conducts private mandatory binding arbitration ("PMBA")  that is included in the agreement between parties. As mentioned previously it is common to CC agreements.

 

AAA  http://www.adr.org and BBB are other arbitration forums that handle consumer disputes. The CC agreement would have an arbitration clause if it applied. That clause would address things such as arbitration forum choices, if any.

 

I would want to find and review the agreement between myself and the OC that is the source of the alleged debt being sued upon.

 

JAMS is pretty expensive for the business and if it is a JDB that paid 5 cents on the dollar they might likely refuse to follow you into arbitration once you successfully motioned the court to force them out of court and into arbitration.

 

PMBA is less effective from what I have read in cases with large balances against an aggressive OC. Most effective on smaller balances with a JDB. It is less formal than court but I prefer the predictability and stare decisis/case law precedent that I can rely on in court should I need to appeal. YMMV

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Sorry I do not know what JAMS is , can you please tell me . Yesterday I got serveda summons to appear with in 30 days no affidavit with the complaint  from another layer debt collector who bought  another debt from another  CA  , am over whelmed . My house is in foreclosure thats another story , struggling to keep my small business and just stay alive. I am thinking of BK I am consumed with this , have been studying law , but I do not have what it takes. Can't afford a lawyer any suggestions?

 

 

If you don't know about JAMS or NAF, then you didn't elect arbitration per the credit card agreement.  You're probably going through a type arbitration required by your court in order to try to resolve the issue outside of court proceedings.

 

In my state, court-ordered  mandatory arbitraion is like mediation.  Both parties meet with a mediator.  That mediator charges a certain rate per hour, and the parties split the expense.  In the meeting, the mediator explains the rules and asks if the parties can agree to a settlement right then and there.  If not, the parties go into separate rooms, and the mediator goes back and forth with each party's offers.  If the parties can't agree on a settlement, the case goes back to the court. 

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  • 1 month later...
  1.  

    Answer to the summons and complaint .yes
  2. Response to Plaintiffs request for documents -they did not request
  3. Response to Plaintiffs request for admissions -they did not request.
  4. Filed your counter affidavit denying you ever had an account with this plaintiff.I did file a affidavit which states I discharged the debt in june 2012, complaint not supported by affidavit by by any first hand material witness,

    according to my credit report account was charged off in 2012, and have had no response from Suttell and hammer proving they are not acting on their own interest.

  5. Court ordered arbitration at hearing....

  6. Filed request on Plaintiff for production of documents. yes they ignored this
  7. Filed request on Plaintiff for admissions.no
  8. Filed motions to strike any evidence provided by Plaintiff.....can I still do this ?
  9. Filed motion for summary judgment requesting dismissal with prejudice. I do not see the point if my butt will be handed to me ?
  10. Paid the Arbitration fee or provided a waiver...that is next 375.00 ugh date is set for oct 21
  11. submitted all these filed documents to the arbitration...not yet, can I still file stuff to the courts then give to arbitrator
  12. Filed and submitted a pre-hearing statement of proof with the arbitrator...   what is this?
  13. After arbitration file judgment with the court.
  14. All so the arbitration lawyer sent me a letter addressed to me ,with suttell's name and another defendant's name midland as the plaintiff ....that is interesting , so the arbitration lawyer obviously has a on going relationship with the arbitrator.

 

  • I have to get this paper work in this week any suggestions ....please
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  • 2 weeks later...

Getting educated here the arbitration goes on ...

Huey P has been a great help in getting my ducks in a row

I am submitting my docs tomorrow to the arbitrator I have written a memorandum in opposition to Summary award also voiced my opinion against the telephonic appearance ...what happened to the right to face your accusor?

My chances of getting a a DWP are slim but I have my fingers crossed .the arb date is Oct 21 so wish me luck ...if I lose its trial de novo here we come .....I have agonized over getting the info together ...today I recieved packets from the Citi lawyers , they love to use up the forests , about 300 pages of crap copies of copies of credit card invoices some court filing copies which were incomplete, failure to get any evidense from their Duces Tecum for records from  my old bank, plus they sent their response to my request for production another 300 pages of denial adn refusing to answer ...very interesting is this the way its usually done?

S.

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  • 1 month later...

Up date on Citi bank complaint ...went to arbitration ..got my a$$ handed to me , the acting judge ( a really old lawyer) let suttell appear telephonically and allowed a witness from citi to be sworn in on the phone , I had no knowledge of this witness no name before hand , totally sandbagged . I lost it , it was so obvious I was not going to get any where , the judge filed an award the next day for the plaintiff. It was pitiful ...So I have filed Trial de novo  Nov 4th ,I have not heard a thing back from the courts yet .

 

Now on to the next ....Discover filed complaint , I filed a answer and a request for cardmember arbitration the court ignored it and put me through to court ordered arbitration with out a hearing .

So here I am again in the same pile of poop...

I filed a mtc for jams arb was denied

Arb to take place on dec 9

So far I have filed a answer with affirmative defenses , and a request for production ...I have not heard back a thing except from the the new arbitrator asking to get paid. It looks to me like the other side has not sent any discovery to the arb or fees.

Any input appreciated ...S

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I just found this by Coltfan thanks for the laugh ...the JDB asked me questions telephonically , I think the old judge /arbitrator would have had a heart attack if I did this ....




 

 

Coltfan1972 said

They can call you as a witness because you can cross examine yourself. I've been there done that. You just ask yourself questions or if the judge allows go into a narrative. You can also object from the witness stand. The only time they can't force you to the stand is in a criminal case where you can plead the 5th. This is civil. Well it's comical, but it's still technically civil.

However, it will do no good.

Midland- Do you owe XXXX on XXXX card?

You- Hell yes I do, you better believe I owe every damn dime.

Midland- Do you have a reason you have not paid?

You- Nope, I spent all my money on crack and booze, I don't have any money left to pay it.

Midland- So you fully admit you owe XXX on XXXX card ?

You- Not just yes, but hell yes !!

Midland- And you fully admit you have no legal defense to not paying, only you have no money?

You- Unless blowing all my money on drugs and booze is a defense, I have no defense for not paying XXXX back, the ones that I opened the account with.

Midland- Your ID was not stolen and you opened the account

You- I don't know, I've never really checked into it. I don't really care either way, but yeah, I opened the account.

Midland- So what is your defense to this suit, why do you feel the judge should rule you don't us the money you just admitted you did not pay back.

You- I don't owe you the money, I owe somebody that can prove legal ownership of the account with admissible evidence. You guys told me it was Infeasible to prove you owned the debt.

Midland-

You- Can I go home now your Honor, I'm tired, hungry, and need a drink.

 

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