Onmyway2012

Arbitration and OC using current agreement

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I received dunning letter from law firm CA representing the OC - I dv'd and elected arbitration in my letter as this law firm CA well known for their tactics.

 

Several months later received a stack of statements from the OC and a different time period stack of statements from the law firm CA.

 

At that point I filed pre-emptively for arbitration with JAMS and paid my $250 (I did ask for waiver, but did not receive it so I paid the fee to make sure this was officially started) - since the law firm OC is well known for filing lawsuits and I am in pro-creditor state.

 

All paperwork went out to all parties including the 2008 card member agreement which includes the survivability language - any accounts I had with this OC were opened pre-2000. 

 

Then I received a fed ex from the OC litigation specialist with the 2010 agreement saying that is the agreement I am bound by.  They also sent it to JAMS saying arbitration is not an option as the 2010 agreement does not have arbitration included.  Jams has told them it is up to the arbitrator to decide which agreement is binding, but when OC told told them they had sent me a letter informing me the 2010 agreement was the only binding agreement, JAMS then asked them to forward over the letter they sent to me.  That was early last week.

 

Do I let this sit or should I respond with another copy of my declaration that the 2008 agreement is the binding agreement to settle any disputes between the OC and me? should I also include the survivability language in the 2008 agreement?

 

(note - last purchases using account with OC was in 2009 - any activity since has been their adding interest, adding late fees, adding overlimit fees, and applying payments).

 

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I received dunning letter from law firm CA representing the OC - I dv'd and elected arbitration in my letter as this law firm CA well known for their tactics.

 

Several months later received a stack of statements from the OC and a different time period stack of statements from the law firm CA.

 

At that point I filed pre-emptively for arbitration with JAMS and paid my $250 (I did ask for waiver, but did not receive it so I paid the fee to make sure this was officially started) - since the law firm OC is well known for filing lawsuits and I am in pro-creditor state.

 

All paperwork went out to all parties including the 2008 card member agreement which includes the survivability language - any accounts I had with this OC were opened pre-2000. 

 

Then I received a fed ex from the OC litigation specialist with the 2010 agreement saying that is the agreement I am bound by.  They also sent it to JAMS saying arbitration is not an option as the 2010 agreement does not have arbitration included.  Jams has told them it is up to the arbitrator to decide which agreement is binding, but when OC told told them they had sent me a letter informing me the 2010 agreement was the only binding agreement, JAMS then asked them to forward over the letter they sent to me.  That was early last week.

 

Do I let this sit or should I respond with another copy of my declaration that the 2008 agreement is the binding agreement to settle any disputes between the OC and me? should I also include the survivability language in the 2008 agreement?

 

(note - last purchases using account with OC was in 2009 - any activity since has been their adding interest, adding late fees, adding overlimit fees, and applying payments).

I would definitely "not" let this sit.  Capital One took out arbitration in 2010.  You did "not" use the card "after" they changed the agreement, therefore they cannot say that by "use" of the card you agreed to their amendment.  When you were using the card it did have an arbitration provision and you defaulted "before" they took arbitration out.  You need to make sure that JAMS understands this. 

 

Look through the statements they sent to you and use those to show that from their own paperwork they are showing a default in 2009 "before" they amended the agreement.

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Assuming that I actually preferred dealing with a collection claim in arbitration versus court, *I* would preserve the issue of arbitrability for the court to decide.

 

I would not be comfortable allowing an arbitrator to decide the issue of arbitrability, i.e., whether the applicable agreement between the parties has a binding arbitration clause or not.

If I permitted/agreed with the OC to have the issue of arbitrability determined by the arbitrator it is highly unlikely that the court would later grant me a Motion to Compel Arbitration based on any error the arbitrator made regarding the applicable agreement. That would mean the claims would stay in court.

I doubt the OC wants to pay arbitration fees to JAMS to have an arbitrator decide the applicable agreement. If the arbitrator rules that arbitration applies then the OC is stuck in arbitration and if the arbitrator rules that the arbitration clause does not apply then the OC would likely have already paid JAMS fees and will also have to pay court costs to pursue the dispute.

 

Having not personally dealt with JAMS, my assumption would be that  the DC law firm will likely try to convince JAMS, without an arbitrator and the associated fees, to toss the OPs claim or refuse to pay their share of the arbitration fees while doing/not doing whatever it takes to cause JAMS to toss the OPs claim.

 

From my experience I would not trust AAA to determine the applicable agreement and I sure would not trust any arbitrator, that AAA selected, to accurately rule on that or any issue. I would use private contractual arbitration in a collection dispute to hopefully scrape the alleged creditor/DC law firm scum off my shoes. I would not expect to win as a consumer in a collection arbitration. YMMV

 

I believe, if later sued, (in AZ) I would be able to prevail with a grant on an MTC Arbitration if the only party to rule on the arbitrability issue was JAMS (especially if I objected to their authority to decide the issue and made every effort to preserve the issue of arbitrability for the court). If the parties give authority for the arbitrator to determine the issue of arbitrability without objecting, the arbitrator's decision is very unlikely to be reversed.

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They tried this with me also.  Except I compelled arbitration after a lawsuit. I used the agreement they filed with the lawsuit to compel arbitration, which was pre-2010. When they tried to pull the switch, I sent them a letter stating that if they certified in state court the agreement covering the account and could not arbitrarily change it now.

 

If you had no activity after the new agreement was released, object that you never agreed to the new agreement by activity, payment or written acceptance.

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