Kablooey

Will JDB balk at JAMS for 10k?

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Hello all,

 

This is my first post. I have been sued by Midland in Oregon. At this time I don't want to post too much more info than that in case the attorneys are surveying this forum.

 

First of all, thank you all for your informative contributions. As my case progresses, I hope to be able to contribute as well.

 

Midland is suing for about 10k, if I MTC/stay for JAMS (it is allowed in my case), will they stay the course? I guess I am really asking for is what people think a "small" or "large" amount of debt is.

 

Also, the fee section of my arb clause reads:

 

Who pays? Whoever files the arbitration pays the initial filing
fee. If we file, we pay; if you file, you pay, unless you get a
fee waiver under the applicable rules of the arbitration firm.
If you have paid the initial filing fee and you prevail, we will
reimburse you for that fee. If there is a hearing, we will pay
any fees of the arbitrator and arbitration firm for the first day
of that hearing. All other fees will be allocated as provided by
the rules of the arbitration firm and applicable law. However,
we will advance or reimburse your fees if the arbitration firm
or arbitrator determines there is good reason for requiring
us to do so, or if you ask us and we determine there is good
reason for doing so. Each party will bear the expense of that
party’s attorneys, experts, and witnesses, and other expenses,
regardless of which party prevails, but a party may recover
any or all expenses from another party if the arbitrator,
applying applicable law, so determines.
 

From what I can tell so far, the last sentence means that they can seek legal expenses in the arb award, that sucks, but fine. What I am still not sure of is whether they can try and get me to pay their arb fees if they win. For example, what is to stop the JDB from calling arb fees "other expenses"? JAMS comprehensive rule 31© (or streamlined rule 26©) reads:

 

The Parties are jointly and severally liable for the payment of JAMS Arbitration fees and Arbitrator compensation and expenses. In the event that one Party has paid more than its share of such fees, compensation and expenses, the Arbitrator may award against any other Party any such fees, compensation and expenses that such Party owes with respect to the Arbitration.

 

This seems to allow for dumping the fees back onto the consumer. It seems there is some back and forth on this in this and other forums. Does anyone know of a case where a consumer was forced to pay the much larger JDB fees after losing contractual arb?

 

Thanks!

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After some more digging, I was able to answer some of my questions.

 

Mad props to @lheart for the following from this post. Note that the data is now here.

 

If you are curious to see who has paid what, you can download the quarterly disclosure document and review for yourself. http://www.jamsadr.com/consumer-arbitration-disclosures/

 

Jackpot!!! Huge spreadsheet of JAMS arbs over the past 5 years or so. It is not clear to me if this is all of them. Also there is a recurring entry "pre-2015" in many fields. I am assuming that means they did not collect certain types of data for older cases.

 

After some sorting I was able to assess the following:

 

467 Big Bank OC cases were initiated:

  • Aproximately 35% went to pre-hearing settlement, 50% were abandoned or withdrawn, and 15% went all the way to a hearing.
  • Of those that went to a hearing, the consumer prevailed in at least 10% of those 70 cases. Who won is not always listed.
  • Claims averaged $31k, SD $50k. Again, whether it was awarded and in which direction was not always listed.
  • Arbitrator fees averaged $6700, SD $7300.
  • No extra fees were imposed on the consumer in any case.

83 JDB/CA cases from Asset Acceptance, CACH, Cavalry, Midland, LVNV, and Portfolio were initiated.

  • Aproximately 50% went to pre-hearing settlement, the other 50% were abandoned or withdrawn.
  • Only one case actually went to a hearing resulting in a $2600 award to Midland. Cost them $18k in arb fees, hahaaa!
  • Arbitrator fees averaged $5400, SD $6800.
  • No extra fees were imposed on the consumer in any case.

So I am going to elect arbitration. Currently using the guide by @Linda7 to write my answer and MTC with a big fat smile on my face!

 

Unfortunately my answer is due tomorrow. Anyone from OR know if filing an answer before a MTC arb will cause me any problems?

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@Kablooey

 

Please read Oregon Rules of Civil Procedure (ORCP) 21A(1), 21G(4). I am not a lawyer, but it appears you may file a motion to compel in lieu of an answer. If you file an answer (responsive pleading), you might consider (IANAL) asserting the alleged contract's arbitration clause as an affirmative defense. 

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Isn't Oregon a state that likes court ran arbitration, so you have to be real clear you want private, contractual JAMS?

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Here is the link to AAA stats. Their list has 18k cases since 2011.

 

I didn't have time to go through them too carefully, but big bank OCs are definitely more successful at getting their arbitration fees assigned to the consumer. There were also a few cases of JDB/CA accomplishing this as well.

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@Kablooey did those AAA cases get settled early? I noticed AAA in their costs detail refunds fee partially to businesses if they resolve before 30 days or an arbitrator is hired.

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@Kablooey did those AAA cases get settled early? I noticed AAA in their costs detail refunds fee partially to businesses if they resolve before 30 days or an arbitrator is hired.

 

I doubt AAA publishes the time-frame of a settlement.  Most cases listed as "withdrawn" are likely early settlements within the first 30 days.  All 6 of my AAA cases were "withdrawn" by me after we settled in the first 30 days.  Each of those businesses still paid $1200 to AAA - half of the initial $2500 payment due.

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Thanks for the updated JAMS link.  

 

A quick look and sort shows that NO consumer paid either JAMS fees or attorney's fees for credit card cases even when the case went to hearing and award.  (There were a couple of automobile claims where the consumer got stuck with attorney's fees.)

 

There is a lot of good info there if you take the time to parse it.

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Filed the MTC arb and dismiss, and also an answer using the the election of arb as an affirmative offense. I also filed a declaration (same as an affidavit for some things in OR) that the CC contract applies to my account.

I have a motion judge and some dates. It looks like my judge is fairly liberal and probably won't be a fan of this firms business model...

Has anyone been through this in Oregon? How do these hearings go? Can I just go watch one? If I can't find a MTC arb hearing to watch, what would be the closest type of motion hearing.

Also, arb clause says this:

"What about debt collections? We and anyone to whom we
assign your debt will not initiate an arbitration proceeding to
collect a debt from you unless you assert a Claim against us
or our assignee. We and any assignee may seek arbitration
on an individual basis of any Claim asserted by you, whether
in arbitration or any proceeding, including in a proceeding to
collect a debt. You may seek arbitration on an individual basis
of any Claim asserted against you, including in a proceeding
to collect a debt."

Should I take this to mean that they cannot initiate arbitration before I do?

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1 hour ago, Kablooey said:

Also, arb clause says this:

"What about debt collections? We and anyone to whom we
assign your debt will not initiate an arbitration proceeding to
collect a debt from you unless you assert a Claim against us
or our assignee. We and any assignee may seek arbitration
on an individual basis of any Claim asserted by you, whether
in arbitration or any proceeding, including in a proceeding to
collect a debt. You may seek arbitration on an individual basis
of any Claim asserted against you, including in a proceeding
to collect a debt."

Should I take this to mean that they cannot initiate arbitration before I do?

Yes, that's what that means.  But why are you worried about that?  Midland won't even go to arbitration when YOU file there either,

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2 hours ago, fisthardcheese said:

Yes, that's what that means.  But why are you worried about that?  Midland won't even go to arbitration when YOU file there either,

Are you saying that "in general" Midland won't arbitrate in either venue? They have in the past, has something changed?

And as to your earlier comment regarding time frame:

On 12/30/2015 at 3:14 AM, fisthardcheese said:

I doubt AAA publishes the time-frame of a settlement.  Most cases listed as "withdrawn" are likely early settlements within the first 30 days.  All 6 of my AAA cases were "withdrawn" by me after we settled in the first 30 days.  Each of those businesses still paid $1200 to AAA - half of the initial $2500 payment due.

From the AAA spread sheet, using the "filing date" and "close data" fields, disputes labeled as "Consumer" and "Withdrawn" were settled on average in 181 days with SD of 103 days. For "settled" cases, the average was 227 with SD of 204.

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12 hours ago, Kablooey said:

Are you saying that "in general" Midland won't arbitrate in either venue? They have in the past, has something changed?

That's what I am saying. 

AAA refuses to take on any case with Midland.  Therefore, if I had a choice, I would get a court to order arbitration, then I would file in AAA.  AAA will respond that due to Midland's refusal to  comply with AAA rules previously, they are closing the file.  This puts Midland between a rock and hard place.  They must arb as ordered by the court, but AAA refuses. They have no other option but to dismiss the claim or be in violation of the court order, or they could pay up all of the back owed AAA bills and become compliant, at which point they would still have to pay for your particular arbitration.  99% of the time they will take the road of less resistance, which is the dismissal.

Even if JAMS is used, you have seen the consumer reports.  There is no single case where Midland completed an arbitration to an award.  They are all "settled" or "withdrawn" at some point.  This means Midland gave up due to the expense of arb.  The numbers speak for themselves.

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Midland or any JDB will not step into JAMS. I've tried on triple of the amount of the alleged debt you're being sued on. No luck !

I've seen ML try to scare a debtor by paying the initial $550 fees but backed out when it was billed after the strike and rank list prior to choosing the arbitrator (Bill is about $4-5K) plus each party (excluding the consumer ) must pay $400 case management fee.

The AAA charges a big upfront fee which comes close to $3K but lets look a bit close to ROI (return on investment ) which is what JDB is in business for.

If ML paid  3 cents on the dollar (high end) to acquire the alleged account then it paid $300 to take ownership. Do you think in its right mind it would pay $3K plus court fees plus attorneys fees to MAYBE (I say that b/c most people are uncollectable ) collect ? By the time it is done ML  is out more than $10K in attorneys fees alone.

That's why JDBs are the best candidates for arbitration.

I know of one person who took a JDB to AAA and the JDB decided to go all the way to the hearing and he lost, the person did not really know what he was doing and didn't listen to the others who had gone before him.

I've not been to AAA arbitration all my dealings were in JAMS.

I'm not saying go into arbitration mindless, I'm saying it is the best strategy to deter JDBs from spending good money chasing bad.

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Did you send this to the attorney when you served them their copy?  If you did, I would just visit the clerk's office and say that you just wanted to file an exhibit that you omitted from your previous motion.  I would think they can just add it to the case file for you.

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