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jpavv

Att. Req. CC Arg. to review JAMS

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Check on DB. I know that at least one had, the last time I was active there--and that was a couple years ago, so could be more by now.

 

The board member argued that, because the contract was subject to DE law, that they by rights should be using DE law for the arbitration. 

 

Which, of course, put the debt out of SOL. The arbitrator agreed.

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Thanks. I searched those statistics. Neither had the JDB that is pursuing me. 

Those statistics are only for consumers not businesses. AAA and JAMS do not publish business/business arbitration results to the public AFAIK.

 

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

I believe a better question is: Has a self-represented consumer and alleged debtor ever prevailed in the defense of a simple debt collection claim in contractual arbitration that went all the way to a final hearing and resulted in an award of nothing to the alleged creditor? I believe it has happened in rare circumstances. I would not count on it.

 

If I had a valid enforceable SOL defense I would rather deal with it in appealable court of law than risk losing that defense in arbitration where I am unlikely to be able to reverse such an error.

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Check on DB. I know that at least one had, the last time I was active there--and that was a couple years ago, so could be more by now.

 

The board member argued that, because the contract was subject to DE law, that they by rights should be using DE law for the arbitration. 

 

Which, of course, put the debt out of SOL. The arbitrator agreed.

 

Thanks, I'll take a look. In debtor-hostile states with long SOL's this looks like a ray of hope. 

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Thanks, I'll take a look. In debtor-hostile states with long SOL's this looks like a ray of hope. 

I would be curious to see where an arbitrator that:

1.) is not required to precisely follow any precedent;

2.) can ignore the rules of evidence; and

3.) cannot be easily or inexpensively appealed, if at all

is somehow more beneficial to the alleged debtor's case than a judge that:

1.) must follow precedent or risk being reversed on appeal;

2.) must follow the rules of evidence or risk being reversed on appeal;

3.) is at risk of being reversed for error or abuse of discretion upon a successful appeal

in prevailing on a time-barred/SOL debt defense.

 

My "ray of hope" for a valid SOL defense is in the courts YYMV.

 

AFAIK a bad case in court is not going to improve by moving the dispute to arbitration.

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My "ray of hope" for a valid SOL defense is in the courts YYMV.

 

 

That strikes me as a very dim ray when default is, say, four years ago and the court uses a six year SOL. 

 

 

 

AFAIK a bad case in court is not going to improve by moving the dispute to arbitration.

 

Continuing the example, the "bad" case in court becomes a "good" case in arbitration if the SOL goes from six to three years, AFAIK. Your math may vary.

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That strikes me as a very dim ray when default is, say, four years ago and the court uses a six year SOL. 

 

 

Continuing the example, the "bad" case in court becomes a "good" case in arbitration if the SOL goes from six to three years, AFAIK. Your math may vary.

In the same jurisdiction the court doesn't use a different SOL period of time than an arbitration forum. I am unclear on any evidence to the contrary.

 

Having participated in arbitration and court I know which works best for me as a self-represented party, whether plaintiff or defendant.

 

Others should feel free to do their own research and have their own experiences in arbitration.

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

At this point I would probably stop communicating with the DC attorney. Other may view it differently.

 

If the JDB files a lawsuit based on a breach of contract I would expect they would present a contract to the court at some point. In AZ it seems Cap One has been claiming to the courts a theory that a class action settlement permitted them to make a the arbitration clause from previous agreements non-binding on them. ¶16 Capital One contended in the trial court that the dispute is not subject to arbitration because the Daveys continued to use the card after the effective date of the Order, which mandated certain credit lenders remove mandatory arbitration provisions from their existing and pre-existing cardholder agreements.  CAPITAL ONE BANK (USA), NA v. Davey, No. 1 CA-CV 13-0109 (Ariz. Ct. App. Dec. 19, 2013).  (class action settlement order from the United States District Court for the Southern District of New York (Order))

 

Whether down stream debt buyers would attempt to sell the story of "no arbitration for you!" or they would just bring an alternative cause of action to a breach of contract is not likely possible to confidently predict.
 
There are a lot of moving parts but I would probably want to wait until/if they file something with the court and address it at that time. Meanwhile, I would want to understand my arguments and evidence that support my contention that the arbitration should apply the consumer rules/protections/costs and not the unfavorable business/business arbitration. I would be researching how I motion to compel arbitration and stay the proceedings in my jurisdiction. I would want to know what level of participation in litigation that would be deemed waiver of contractual arbitration.
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This is how we learn. You're welcome, again.

I don't claim to know how others "learn" to handle their collection disputes. I learn through my experiences which are mostly preceded by time consuming research in an effort to avoid fatal mistakes. I don't typically learn anything substantial from raw speculation.

 

I am sorry for any confusion I may have caused. I never intended to proffer anything that could possibly be construed as a "thank you" when posting my thoughts on what I currently view as a risky and misguided "ray of hope". A "ray of hope" based on the notion that an arbitration forum can or will routinely use a shorter and more consumer friendly SOL than the statutory SOL the courts in the same jurisdiction are required to use in a similar collection dispute.

 

While hope is often critical to surviving the psychological war of debt collection I believe that false hope can be fatal to my success.

 

Common sense and experience tell me that a collection dispute doesn't get better in arbitration versus court. I have recently seen some statistics on a link posted in the forum regarding the results of Midland's VA lawsuits. I have posted the consumer arbitration statistic links for AAA and JAMS in post #15. Should someone be willing to do the work there is probably enough additional data online to gain some valuable insights as to the results of collection disputes in arbitration versus court.

 

If someone was able to provide any evidence (beyond one or two examples of anecdotal evidence) of a reliable pattern of certain arbitration forums using a shorter SOL than the courts would for the same case, I am sure many would be thankful for such valuable research. Arbitration is closer to arbitrary than reliable based on my experience, numerous anecdotal postings, and my review of quite a bit of case law relative to arbitration.

 

If an arbitrator dismissed my claims or counterclaims in arbitration based on a shorter SOL than the case law supports I would likely move the court to vacate any adverse arbitration award. Odds of success on such a motion to vacate are likely much better than average. A debt collector similarly dismissed by an arbitrator based on an invalid SOL may or may not pursue a vacatur in court. It likely depends on the amount of alleged debt, the likelihood of collection, and many other variables.

 

If I truly believed that I would prevail on an SOL defense in arbitration and the arbitration clause/rules/procedures permitted the arbitrator to award attorney fees I would probably want to consult a competent winning attorney familiar with arbitration for use in that likely successful SOL defense.

 

Lacking stare decisis, I believe that relying on the arbitrator to enforce a more favorable (than the courts) SOL for the consumer is likely to be an unreliable strategy. I contend SOL interpretations by the arbitrator will be more likely to to favor the debt collecting business than the consumer.

 

AFAIK a bad case in court is not going to improve by moving the dispute to arbitration.

 

Having been through both an arbitration final hearing that produced an adverse arbitration award as well as a court hearing/trial that produced a favorable court judgment my experience supports that view. Others may have a different experience while taking litigation and arbitration to its full adjudication.

 

Contractual binding arbitration continues to be a tool that I would consider using if my specific circumstances appeared likely to benefit from either the leverage to precipitate a favorable settlement or the leverage to cause the collector abandon the pursuit of an alleged debt. Perhaps it provides other predictable benefits that consumers routinely experience IDK.

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

 

D agreement states "Governing Law. This Agreement and any claim or dispute arising out of this Agreement will be governed by applicable federal law and, to the extent state law applies, Delaware law."

 

My state has a 6yr SOL - Delaware has a 3yr SOL ... the agreement clearly states that it uses Delaware law ... am I wrong in thinking that if I haven't used that card in 3 years that they should not be able to collect?  OR is there a federal statute of some sorts that says debtors state prevails?

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@tykra

 

In Smither v. Asset Acceptance (2010), the IN Court of Appeals ruled that the IN SOL applies to credit card debt even if the agreement is governed by a state with a shorter SOL.

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@tykra

 

In Smither v. Asset Acceptance (2010), the IN Court of Appeals ruled that the IN SOL applies to credit card debt even if the agreement is governed by a state with a shorter SOL.

 

BUT, was that a case in court, or was this in arbitration?

 

One of the great things about private CONTRACTUAL arbitration is the arbitrators should be bound by the contract, not the state laws on SOL.  At least that is what I would argue.

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BUT, was that a case in court, or was this in arbitration?

 

One of the great things about private CONTRACTUAL arbitration is the arbitrators should be bound by the contract, not the state laws on SOL.  At least that is what I would argue.

I have not experienced anything "great" about private contractual arbitration.

 

The application of case law or contract terms in arbitration being more predictable, reliable, and reversible in arbitration than in court is also outside of my experience..

 

There are multiple AZ Court of Appeal reversals on CC summary judgments granted to OCs in the last year or two. See #22.

 

I am unable to find any vacated arbitration awards for OC or JDB debt collection disputes in the AZ CoA. Perhaps those grants of vacatur of an arbitration award just never get appealed from the trial court in AZ. IDK

 

Here is one I found that is a confirmation for a NAF award:FIA CARD SERVICES, NA v. Levy, 200 P.3d 1020, 219 Ariz. 523 (Ct. App. 2008).

 

Perhaps there are some vacated arbitration awards for CC collection disputes to be found in NJ. This may be a start on that search: http://scholar.google.com/scholar?q=%22arbitration+award%22+vacate+%22credit+card%22&btnG=&hl=en&as_sdt=4%2C31

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BUT, was that a case in court, or was this in arbitration?

 

One of the great things about private CONTRACTUAL arbitration is the arbitrators should be bound by the contract, not the state laws on SOL.  At least that is what I would argue.

 

Let me clarify what you are saying - So if a case went to arbitration then the arbitrator should follow the contract and not state laws?   I reckon that would be a darned good reason for the plaintiff to fight the MTC A.  hmmmm

 

Does JAMS maintain rulings and procedures that can be used similar to what case law in courts can or is it always case by case judgement calls?

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Let me clarify what you are saying - So if a case went to arbitration then the arbitrator should follow the contract and not state laws?   I reckon that would be a darned good reason for the plaintiff to fight the MTC A.  hmmmm

...

The arbitrator has broad latitude to do as they please in "interpreting" the law. They have broad latitude in "interpreting" the contract. I have no reason to believe that latitude would routinely favor an alleged debtor in arbitration. Of course if I found myself in arbitration I would argue my understanding of the applicable law, contract interpretation, applicable SOL, etc. very vigorously.

 

I don't believe that the plaintiff is fighting having an arbitrator enforce their self-drafted agreement over the law. The determination of the arbitrator on choice of law is not guaranteed. It could go either way IMHO. They wrote the contract and likely don't find its terms too onerous. I believe it is more likely the costs. They typically wanted the substantial benefits of class action waiver provided in a contract of adhesion that contained arbitration and class waiver but when an individual is threatening to avail themselves of that arbitration clause they conveniently argue that they should not have to comply with their arbitration clause and attendant costs. They are trying to have their cake and eat it too.

 

Now, those JDBs never drafted those arbitration clauses and would probably prefer a familiar low cost lawsuit to collect from the recalcitrant alleged debtors.

 

The court records show a lot of reversals of court's erroneous decisions. The most likely place to reverse an erroneous ruling by an arbitrator on an award is likely to be in the very court that the alleged debtor was presumably trying to avoid.

 

Judicial review of arbitration awards is usually extremely limited from what I read.

 

The rules of evidence are not required to be used by the arbitrator. I am not comfortable with that and much prefer court if there is to be an actual fight until a final adjudication.

 

Before participating in arbitration it would probably be a good idea to be thoroughly familiar with the applicable rules. I have not seen anything in the rules for JAMS or AAA that would permit me to keep hearsay evidence from being presented to, reviewed by, and factored into the arbitrator's decision on an award in a collection dispute. Perhaps someone can point that rule out and post a link to it on the forum.

 

http://www.jamsadr.com/rules-streamlined-arbitration/

Rule 17. The Arbitration Hearing

(d) Strict conformity to the rules of evidence is not required, except that the Arbitrator shall apply applicable law relating to privileges and work product.

http://www.jamsadr.com/rules-comprehensive-arbitration/

Rule 22. The Arbitration Hearing

(d) Strict conformity to the rules of evidence is not required, except that the Arbitrator shall apply applicable law relating to privileges and work product

https://www.adr.org/aaa/faces/rules/searchrules/rulesdetail?doc=ADRSTG_004130

R-34. Evidence

...

Conformity to legal rules of evidence shall not be necessary.

 

...

Does JAMS maintain rulings and procedures that can be used similar to what case law in courts can or is it always case by case judgement calls?

...

Lacking stare decisis, I believe that relying on the arbitrator to enforce a more favorable (than the courts) SOL for the consumer is likely to be an unreliable strategy.

...

Arbitration does not rely on precedent or stare decisis. Every case is a brand new case in front of an arbitrator. Sometimes the arbitration agreement itself even addresses the issue:

http://www.syncano.com/terms/

9.3.5 AN ARBITRATION AWARD AND ANY JUDGMENT CONFIRMING IT APPLY ONLY TO THAT SPECIFIC CASE; IT CAN’T BE USED IN ANY OTHER CASE EXCEPT TO ENFORCE THE AWARD ITSELF.

 

I read that to mean:

1. if the exact same dispute occurs;

2.) between the same parties; and

3.) I had prevailed with a favorable arbitration award & confirmed judgment in the first dispute

I would not have any expectation that I would automatically prevail in dispute #2 and I cannot use the previous arbitrators award or the court's confirming judgment to assist in proving my case.

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Based on that it would seem that if the defendant demanded to see a ledger from zero to current to prove debt they would not be required to provide such evidence - that hearsay would simply be considered.   From your posting one might surmise that arbitration is a farce ... surely that can't be true.

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Based on that it would seem that if the defendant demanded to see a ledger from zero to current to prove debt they would not be required to provide such evidence - that hearsay would simply be considered.   From your posting one might surmise that arbitration is a farce ... surely that can't be true.

From my posting I welcome rebuttal based on facts or experience. Unfortunately, our experiences are typically going to be very limited. Even if we had 9 trips to arbitration it "feels" like that the landscape has changed a lot in 5 years so the older experiences may not be as useful in predicting the current state of consumer collection dispute arbitration.

 

I am not tasked with defending or crushing the viability of consumer contractual arbitration. I do not have a dog in the fight. It may be the right tool for the right circumstances. When someone suggests the arbitration tool can do a certain thing because a handful of people in other jurisdictions prevailed that way I would be very cautious in relying on that as my winning ace card.

 

Still, I would hold out my verdict until I had read and understood the applicable agreement, all the applicable arbitration rules, the FAA, my state's arbitration statutes, the controlling case law in my state regarding contractual arbitration and arbitration awards (confirm, vacate, and remand), forum discussions applicable to the appropriate use of contractual arbitration.

 

AFAIK no one has produced any statistics or evidence that indicates that the highest and best use of consumer arbitration is something other than to cause the party that is pursuing or threatening to pursue an alleged debt through a lawsuit to drop the pursuit. The resulting favorable settlement or abandonment appears to be due to the expense and risks involved in contractual arbitration.

 

If I was unaware that there is nothing to prevent hearsay from being weighed by the arbitrator, I would not be satisfied that my knowledge was sufficient to make a proper decision on whether or not arbitration is the best approach for my particular situation. I would want to do a lot more study on the tool of arbitration. Arbitration is merely a tool, just like negotiation and litigation.

 

I have used all three tools is moving a dispute forward. Mostly I use a combination of 1 or 2 tools.

 

Availability and the extend of discovery allowed in arbitration is another area of knowledge I would want to have for my applicable forum before proceeding in arbitration.

 

I find arbitration to be  just as involved and difficult as litigation but with much less control and predictability. I find successful negotiation the opposite of trivial.

 

Some seem to be searching for a shortcut. I know of know shortcuts in a collection dispute and would want to avoid the snake oil salesman purporting to have found that shortcut.

 

In my experience the most predictable route to prevail in a collection defense, other that writing a check and making it go away, is doing the hard work to litigate in an appealable forum while making a proper appeal record. Along the way I am constantly looking for any leverage I can use. When opposing perceives that I have sufficient leverage they *may* come to the table with an acceptable or negotiable settlement offer or they could tie up the court for 2 years until they lose.

 

But, some might say, I don't want to work that hard for only $1,000. If similarly situated, I would consider paying what the opposing party demands, assuming that attempts to negotiate a reduction, based on leverage were to fail.

 

It is not rocket science. But from my experience it is intelligent hard work to prevail.

 

Oh, and if consumer arbitration appears to be a farce it would likely be due to attempting to use the tool improperly. I would not expect a hammer to cut a 2x4 very efficiently. I would think that a consumer that wishes to take a collection dispute to a final hearing and arbitration award would very likely be using the tool of arbitration improperly. Opinions may vary.

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@Credator

 

 

I hear you that you don't like arb.

 

I do, for the following reasons:

 

1.  it gets you out of a railroad, pro-creditor court.  Such courts don't follow the rules of evidence or civil procedure, either.  The only way to reverse that is through an appeal, which can be an expensive and daunting task, especially for a pro se.

 

2.  it is so expensive for creditors that it radically changes the cost-benefit analysis of debt collection.  The most successful arbitrations are the ones that never take place, because the creditor refuses to pay the arb forum's fees.  The arb clauses typically read "If either you or we elect arbitration, then neither party can litigate in court." So you elect arb.  The creditor refuses to pay the fees.  Per the terms of the arb clause, they are stuck.  They can't litigate in court, and they don't want to pay for arb.  So they collect nothing from the debtor.

 

3.  The informality of arb can work to a pro se's benefit.  For example, an arbitrator does not have the power to throw you in jail for contempt of court.

 

And, citing NAF awards that have been confirmed isn't relevant.  NAF is now out of the consumer arb business, and it's because of that that arb is now a potent consumer weapon.

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@nobk4me

@Credator

 

I hear you that you don't like arb.

...

And, citing NAF awards that have been confirmed isn't relevant.  NAF is now out of the consumer arb business, and it's because of that that arb is now a potent consumer weapon.

I like the 4 digit check (not including the decimal point :-) ) that I cashed by using arbitration as leverage. As I believe I have previously made clear, arbitration can be a good tool, in the right circumstances.

 

No evidence exists that my realistic view of arbitration based on actual experiences and significant review of the case law surrounding arbitration somehow supports the contention that I "don't like arb". As a tool used by a competent and knowledgeable party and in the right circumstance it can be "likable".

 

Finding a case cite other than the NAF one might be helpful, if such exists. As I stated "I am unable to find any vacated arbitration awards for OC or JDB debt collection disputes in the AZ CoA" Some times the missing data speaks clearly and loudly. The questions is whether we choose to ignore it or try to understand whether it is telling us something significant that we can use to our benefit or to stay out of trouble.

 

I have posted plenty of facts and data that people are free to rebut with their own cites from the law or arbitration procedures.

 

It may assist others, with an interest in arbitration, if one can rebut the arbitration rules and other items I have cited rather than to make unsupported claims that I somehow "don't like arb." To me, contractual arbitration is merely another tool on my belt. To some it appear to be the grail. I just don't get that magical quality in my experiences and cannot put my finger on any hard data that would confirm such a reliance is warranted in a collection dispute that goes to a final hearing and award.

 

I believe it ill advised to go into arbitration based on the allegation that I "don't like it" or someone else does "like it". I would want to do the heavy lifting and actually figure out what works best for my specific situation.

 

I don't purport to know the answer for anyone but myself and am distrustful of anyone suggesting they know the answer on whether or not I should use consumer arbitration in a collection dispute.

 

Best of success to the OP.

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Ok, so I misspoke about you not liking arb.

 

But, looking for data and case law may be misleading because it doesn't tell the whole story.  As I stated, the most successful arb cases never get into case law, in fact, the actual arbitration never takes place, because either the creditor won't pay the fees, or the parties achieve a settlement, such as mutual walkaway.

 

To me, anytime a debtor doesn't have to pay a creditor is a win.  Even if it never gets reported in case law, which is the reality in most of these consumer wins.

 

The arb strategy has worked well for me.

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