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jpavv

Att. Req. CC Arg. to review JAMS

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1. Who is the named Debtor?   Me (they list debtor as a business INC, then my name)

2. What is the name of the law firm handling?   Rather not post here, trolls

3. Who is the original creditor?  CrapOne, ( After a few sales, now Absolute and/or New Century. They list them both)

4. What state and county do you live in? NJ

5. When is the last time you paid on this account?  Their records show charged off Aug 2011, opened Dec 2005.

 

Received a CL a few months ago from a JDB law firm. Since I had success in the past using Linda7's technique, I sent a DV letter back. In it, I put "I elect contractual arbitration via JAMS to resolve any disputes between us."

 

This usually gets them to back off and sell it off. 

 

This JDB law from replied form letter, ( I've seen others post here the same ) with my data input. Enclosed where a copy copies of statements.

 

The kicker is they ask me to send them a Copy of my Card Member Agreement showing my right to JAMS.

 

Normally, if they DV'd, I would respond with my election for JAMS stands. However, they ask for a copy of the CC agreement.

 

How would you respond?

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There are websites that have copies of card member agreements.  I would print off the one that favors what I want and applies and send it to them.  

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1. Who is the named Debtor?   Me (they list debtor as a business INC, then my name)

...

Received a CL a few months ago from a JDB law firm. Since I had success in the past using Linda7's technique, I sent a DV letter back. In it, I put "I elect contractual arbitration via JAMS to resolve any disputes between us."

 

This usually gets them to back off and sell it off. 

 

This JDB law from replied form letter, ( I've seen others post here the same ) with my data input. Enclosed where a copy copies of statements.

 

The kicker is they ask me to send them a Copy of my Card Member Agreement showing my right to JAMS.

 

Normally, if they DV'd, I would respond with my election for JAMS stands. However, they ask for a copy of the CC agreement.

 

How would you respond?

Reference to "business INC" would seem to indicate that the OP has a business debt where they may be alleged to be personally liable.

 

If this is not a consumer debt, I would be concerned that each side may need to pick up half of the cost of JAMS. Those costs for the alleged debtor may exceed the alleged debt FAIK.

 

AFAIK the leverage of contractual arbitration on an alleged credit card debt is typically available to consumers and not business debt.

 

Since *I* believe that if the collection machine is going to sue they are going to sue, (and unlike the OP I am not likely to ever elect arbitration in advance to a lawsuit) *I* might respond something along the lines of "My bad, I cannot locate any card member agreement with the OC, JDB1, or JDB2. Perhaps your request for me to provide an agreement is based on your client's failure to provide any contract to you. Lacking any agreement between the parties it is unclear how you plan to pursue the debt you allege that my business JDB Slayer, Inc. owes." Others may prefer to keep a low profile and possibly even ignore the DC law firm correspondence. I cannot say what would be appropriate for the OP.

 

NJ appears to have a 6 year SOL on credit card contracts so it would not appear that the SOL is close to being run.

 

While I like the idea of using what has worked for me previously, I would always want to remain flexible and open to using litigation, arbitration, BK, and/or negotiation as appropriate. What worked last week with a one alleged creditor may not work for me this week with different alleged creditor.

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There are websites that have copies of card member agreements.  I would print off the one that favors what I want and applies and send it to them.  

 

True, however the only found is a poor copy.

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+1 tp Credator. Business/business arb is NOT in your best interest. 

 

The fact that this is JDB #3, in a court of law, if you work to show lack of standing, is.

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Reference to "business INC" would seem to indicate that the OP has a business debt where they may be alleged to be personally liable.

They reference INC, however I am not Incorporated. 

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They reference INC, however I am not Incorporated. 

I doubt incorporation would be an issue relative to JAMS. If the purpose of the alleged debt was mostly business it may be that I would be unable to enforce/use the advantageous consumer rules in arbitration and be left with the commercial rules. If BK was my fallback position that may be a risk I would be willing to take, depending on the details of the arbitration terms in the applicable business/consumer credit card agreement.

 

It may be that the arbitration forum would attempt to deny use of the consumer rules if there was a business name listed as opposing the alleged creditor. IDK

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Since I DV'd them with "As per the FDCPA, I have the right to request validation of the alleged debt" and they responded with debt validation, did they wave their right to treat this as a business account since FDCPA rules do not apply to business accounts?

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Since I DV'd them with "As per the FDCPA, I have the right to request validation of the alleged debt" and they responded with debt validation, did they wave their right to treat this as a business account since FDCPA rules do not apply to business accounts?

If by "waiving" I believed I could enforce a violation of the FDCPA in a federal court on a business debt, I believe a competent winning FDCPA attorney would know the answer.

 

If I had to guess I doubt they waived anything. I don't know of any bar to a DC attorney, attempting to collect a business debt, that prevents them from providing information in a response to a DV letter. Will they continue to treat it as a personal alleged debt in arbitration, as they may appear to have done in response to a DV letter? No one but the plaintiff and their DC counsel know for sure IMHO.

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Should I respond with a copy of an agreement and see how they respond, or sit back and see if they file suit?

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Should I respond with a copy of an agreement and see how they respond, or sit back and see if they file suit?

Sending a copy of an agreement in an attempt to enforce an arbitration agreement on an alleged business debt would seem risky to me.

 

If I were to do so *I* would want to be confident that:

1.) I am OK if the arbitration ends up using non-consumer arbitration rules/costs (reading/understanding the applicable JAMS rules is how I would decide); or

2.) I could enforce the consumer rules to be applied in the event it goes to arbitration.

 

Perhaps others that have dealt with the issue of business debt and arbitration have different thoughts to share on the subject.

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Perhaps others that have dealt with the issue of business debt and arbitration have different thoughts to share on the subject.

Can't seem to find any business and arb. on here.

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As far as Electing JAMS, what would be different consumer vs. business? The CC Agreement would be the same, wouldn't it? Wouldn't they have to file and pay the fees since they claim it is a debt I owe? 

 

By the way, the debt is 3K<.

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Perhaps others that have dealt with the issue of business debt and arbitration have different thoughts to share on the subject.

Can't seem to find any business and arb. on here.

 

FAIK, there may not be anyone on the forum that has pursued arbitration to defend a for a business debt collection dispute. If so it could likely be for the same same reason creditor businesses are sometimes reluctant to follow through on arbitration. It is expensive for businesses, especially JAMS.

 

As far as Electing JAMS, what would be different consumer vs. business? The CC Agreement would be the same, wouldn't it? Wouldn't they have to file and pay the fees since they claim it is a debt I owe? 

 

By the way, the debt is 3K<.

Probably a significant difference in arbitration costs for an alleged debt arbitration that is viewed by the arbitration forum as business/business debt dispute versus a business/consumer debt dispute.

 

First I would probably want to locate the applicable agreement, (I don't know if Cap One had a separate consumer and business agreement around the date the OP is presumed to have opened an account) I would thoroughly read the arbitration clause.

 

Next I would probably want to thoroughly read the applicable arbitration rules/procedures.

 

If after I became very familiar with the arb clause and the applicable arb rules/costs I was still interested in arbitration, I would review the applicable forum's consumer statistics ( business vs. business statistics are not published AFAIK) and see how previous arbitration of collection disputes were historically resolved with Cap One as the non-consumer. AAA consumer statistics and JAMS consumer statistics.

 

Once I have reviewed all this relevant information I am likely best positioned to make an appropriate decision on whether or not I wish to pursue arbitration or avoid arbitration.

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In Consumer arb, the cost to the consumer is $250 to initiate. If the creditor initiates, they pay the entire initial $800.

 

Also in consumer, all cost subsequent to initiation are borne by the creditor. SOME arb agreements state that the creditor will bear the entire cost, others say that each will bear their own cost ($250 to the consumer, the considerably larger--as high as $20k or more--by the creditor) and some say that the party who wins can choose to have the party who loses bear the cost. However, the JAMS minimum standards for consumer arbitration states that the ONLY cost to the consumer must be the $250.

 

That, of course, is one of those rules that is only enforced if the consumer insists upon in in the pre-hearing phone conference.

 

For you, though, with a business debt, all bets are off. To start off, you will be responsible for $400 of the first $800. Second, the retainer to get to that first phone conference, usually starting at around $5000 or more, will be paid half by you.

 

And on and on.

 

If it were me, a HUGE advocate of consumer arb as a weapon against JDBs, I would be learning everything that I can about chain of title and standing, in the event that the JDB chooses to sue me.

 

I'd also know, inside and out, the SOL for the particular debt, and whether the laws of my state or of the state of the OC apply.

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In their response letter, it is addressed to me personally. They also say "As to JAMS arb, please send me a copy of your card member agreement showing your right to the same for me to review".

 

Now they're asking for me to find a agreement on an account that they say I may have opened several years ago. Hell, the VA has me on so many meds, I can't remember what I did yesterday.

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Since the OC is Cap 1, the agreement says Virginia Law applies. I'm in NJ.

Does the does SOL follow Virginia  or NJ law?

 

Virginia is 3, NJ is 6.

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It depends on whether or not your state will borrow the SOL from VA.

 

Check it to be sure.

 

As for the JDB...it's their job, as the party that is claiming the right to collect money from you, based on a contract, to have the proper copy of that contract.

 

It's also their job, should they sue you, and you require it of them, to demonstrate that the amount being claimed is exactly accurate, that the chain of title was conveyed exactly appropriately from the OC to the first, the first to the second, and now to them as a JDB.

 

Those are high standards. You may wish to wait and see what happens, especially if NJ does have a borrowing statute. I would certainly be checking my own records, and buying the records from my bank, if I didn't have them, to know the exact date of the last payment, so I would know the exact date that the account went into default. C/O usually is 6 months after the default. But it can be earlier, and even an OC can mess around with the default date--I had Sallie Mae, on a loan I cosigned for my son, report the account as 60/90/120 days late three separate times after the last payment I made, and didn't C/O for at least a year and a half.

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You may wish to wait and see what happens, 

 

True, but tempted to send them a letter requesting them to provide a cc agreement from the time this account was opened.

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Since the OC is Cap 1, the agreement says Virginia Law applies. I'm in NJ.

Does the does SOL follow Virginia  or NJ law?

 

Virginia is 3, NJ is 6.

 

In private CONTRACTUAL arbitration in JAMS, the point is to enforce the contract.  So the contract choice of law, Virginia, with its 3-year SOL, governs.  Whether NJ has a borrowing statute is irrelevant.

 

At least that is what you should argue.

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In private CONTRACTUAL arbitration in JAMS, the point is to enforce the contract.  So the contract choice of law, Virginia, with its 3-year SOL, governs.  Whether NJ has a borrowing statute is irrelevant.

 

At least that is what you should argue.

 

Has this worked for anyone ever? I would think that would put a stop to every suit with VA or DE (or any other 3 year SOL state) governing law and an arbitration clause.

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In theory, you absolutely can use the laws of any state you want, in arbitration.

 

In this case, though, because it's a business debt, which is under $3K, it would be an enormous waste of the OP's money to initiate a JAMS dispute against the JDB. He doesn't have the use of the FDCPA for business debt. He DOES have the responsibility to pay 1/2 the cost of the arbitration. Assuming it's a relatively cheap arb process, that is still about $7500, just to get to the hearing. And if he loses, he WILL be paying the debt and the other half.

 

Given that he's not been sued yet, it seems more prudent to me to stay radio silent unless and until he's sued, and then and only then, fire back with the substantial issue of standing on a third of three JDB to buy this debt in his answer.

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In theory, you absolutely can use the laws of any state you want, in arbitration.

 

Yes, in theory. In all the years of forums like this has anyone ever prevailed that way? I can't recall a single instance. 

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