Patz

How to Determine SOL for Arbitration (FDCPA)

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I'm having trouble trying to determine when the SOL (for FDCPA) began for a case that began in state court and ended up in arbitration.

Case originally filed in court in Nov 2013.  Arb filed in April 2014. My question revolves around the fact that the SOL for my FDCPA claims would have expired in Dec 2013.  But is the SOL stayed for all the time while the case was "trying to get" to arbitration?  I can't imagine that going to arbitration after a MTC would require a new start period for the SOL.  After all, that would be most unfair for the debtor if the JDB farted around with the arbitration waiting for an SOL to expire.

I'm hoping that if there was a MTC, then arbitration simply picks up where the court case left off.

Thoughts anyone?  Hope I'm making sense.

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Are you saying you were sued by a debt collector and elected arbitration in THAT case?  Do your alleged FDCPA claims stem from the debt collector's activity during that case? 

Typically, nothing from one case will toll the SOL on a cause of action brought in another suit.

If you filed counterclaims under the same case number as you were sued on, the SOL continues to run but your claims would be protected unless and until they were dismissed with prejudice. 

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3 minutes ago, Harry Seaward said:

Are you saying you were sued by a debt collector and elected arbitration in THAT case?  Do your alleged FDCPA claims stem from the debt collector's activity during that case? 

Typically, nothing from one case will toll the SOL on a cause of action brought in another suit.

Yes, elected arb 3x before complaint was even filed.  I was ignored.  Finally got to arb on a MTC.

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Am I understanding this correctly?

 

You had disputes, so you attempted to invoke the arb clause 3 times BEFORE they filed a lawsuit to collect?

It would seem to me, and this is only my opinion, but it would seem that if you attempted arbitration because of FDCPA violations specifically, and they ignored you, then you might be able to bring up the notion that the arbitration clause puts you as a consumer at too big a disadvantage to ignore.  Under that scenario, all the debt collector would have to do to have to face up to the violations is continue to ignore arbitration, which would eventually force you to sue them in court or the SOL expires.  Since you have the authority under the agreement to elect arbitration, and they simply blew your attempts off, this may be construed as them breaching the contract.  I do not recall seeing an arb clause that permitted the creditor or its assignees the right to simply ignore arbitration requests.

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40 minutes ago, Harry Seaward said:

I should say, court of law or arbitrator? 

I never answered.  I filed a MTD due to lack of jurisdiction since I had elected arbitration.  Then I filed a MTC.  But the filing of the complaint is the key date for the SOL, not when the defendant answers.

If the plaintiff wants to be certain the SOL for counterclaims has passed, then they need to file the complaint after the SOL ends.  This piece of info came from  a very good consumer debt attorney in my state.

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14 minutes ago, kraftykrab said:

Am I understanding this correctly?

 

You had disputes, so you attempted to invoke the arb clause 3 times BEFORE they filed a lawsuit to collect?

It would seem to me, and this is only my opinion, but it would seem that if you attempted arbitration because of FDCPA violations specifically, and they ignored you, then you might be able to bring up the notion that the arbitration clause puts you as a consumer at too big a disadvantage to ignore.  Under that scenario, all the debt collector would have to do to have to face up to the violations is continue to ignore arbitration, which would eventually force you to sue them in court or the SOL expires.  Since you have the authority under the agreement to elect arbitration, and they simply blew your attempts off, this may be construed as them breaching the contract.  I do not recall seeing an arb clause that permitted the creditor or its assignees the right to simply ignore arbitration requests.

There is more to electing arbitration than merely sending a letter to a debt collector.  It's possibly one thing to let them know you want their claims settled via arbitration, but if you're the one making the claim against the debt collector, you bear the burden of initiating arbitration. 

@Patz said the SOL was Dec 2013. This doesn't sound to me like the FDCPA claims are based on the debt collector ignoring his/her demand for arbitration of their claims against him/her. 

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16 minutes ago, Patz said:

If the plaintiff wants to be certain the SOL for counterclaims has passed, then they need to file the complaint after the SOL ends.

Correct.  However, if I understand correctly, you never filed counterclaims (or any other claims, for that matter) so this piece of info is irrelevant. 

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1 hour ago, kraftykrab said:

 Since you have the authority under the agreement to elect arbitration, and they simply blew your attempts off, this may be construed as them breaching the contract.

If the account was already in default, I doubt a claim for breach of contract would work.  The reason is because the OP first breached the contract by failing to pay the debt.   Basic contract law says that a party who first breaches a contract can't maintain that claim against the other party's later failure to perform.

It is basic contract law principle that if one party to a contract breaches the agreement, the other party is no longer obligated to perform his or her contractual obligations. Arizona Property & Casualty Insurance Guaranty Fund v. Helme, 153 Ariz. 129, 136-37, 735 P.2d 451, 458-59 (1987).

It doesn't mean that the other party doesn't have to arbitrate if a valid agreement exists.  It just means that you can't sue them for breaching the contract you already breached.

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10 hours ago, Harry Seaward said:

There is more to electing arbitration than merely sending a letter to a debt collector.  It's possibly one thing to let them know you want their claims settled via arbitration, but if you're the one making the claim against the debt collector, you bear the burden of initiating arbitration. 

@Patz said the SOL was Dec 2013. This doesn't sound to me like the FDCPA claims are based on the debt collector ignoring his/her demand for arbitration of their claims against him/her. 

I agree, but perhaps we need the OP to clarify what is meant by "I elected arbitration three times..."  We do not know if OP did only send them a letter, or if more took place.

 

And I'm sorry if I was confusing, I was not trying to say that FDCPA claims were based on the debt collector ignoring arbitration attempts.  I was pointing to those more as a breach of contract issue, which as BV points out correctly, would likely fail if the OP breached first by non-payment.  But again on that front, we do not know if OP breached the contract first or not, based on the info that's been posted.  My point about breach of contract was that it would be rather easy for a debt collector to ignore an arb election, thus putting the individual at an unfair disadvantage.

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8 hours ago, BV80 said:

If the account was already in default, I doubt a claim for breach of contract would work.  The reason is because the OP first breached the contract by failing to pay the debt.   Basic contract law says that a party who first breaches a contract can't maintain that claim against the other party's later failure to perform.

It is basic contract law principle that if one party to a contract breaches the agreement, the other party is no longer obligated to perform his or her contractual obligations. Arizona Property & Casualty Insurance Guaranty Fund v. Helme, 153 Ariz. 129, 136-37, 735 P.2d 451, 458-59 (1987).

It doesn't mean that the other party doesn't have to arbitrate if a valid agreement exists.  It just means that you can't sue them for breaching the contract you already breached.

I agree, but we do not know if the account was already in default, or how it would have gotten that way.  Case in point, my mortgage case.  I was NOT in default.  I was paying on time each month and completely current.  The creditor decided to refuse my payments, based on a false claim that I was behind and not paying.  Even when I sent them copies of payment records showing when they cashed my checks, it did not matter to them.  We were simply told that any further payments would be refused unless it was the total balance of the loan in a lump sum, and that they would foreclose.  Even then, we still paid, and they took that last payment and stuck it in "unapplied funds" rather than credit it to the loan like the law and the loan contract required.  They breached the contract, and we can prove it.  So, when they did try to foreclose, I hit them with a counter claim that made them turn tail and "sell off" the loan instead of dealing with the mess they created.  There is breach of contract, and it occurred with the OC in that case.  We do not know enough about the OP's situation to know if there was really a breach, and if so, who caused it.

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54 minutes ago, kraftykrab said:

My point about breach of contract was that it would be rather easy for a debt collector to ignore an arb election, thus putting the individual at an unfair disadvantage.

It would not be easy for a debt collector to ignore a proper arbitration election (consumer fills out and sends in the arbitration paperwork with their $250 fee).  The arbitration company will make several attempts to contact the debt collector making it very difficult to ignore them.

A savvy consumer would include "all claims by either side" as a part of the arbitration initiation, thus putting the debt collector in a position of waiving their claims against the consumer, should they ignore the arbitrations company's attempts to get them to participate.

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The JDB ignored arbitration request both before and after the complaint was filed in the court.

I totally understand about the "breach first" concept as it applies to a party wanting to make a claim for breach of contract. But there are exceptions to that rule. There are many contracts where a party's obligation to perform certain duties ONLY occurs after the other party has breached. If a defaulted debtor could not file an arb claim merely because he/she was in default, then we wouldn't be talking about arb on this forum. Exceptions also apply in the mortgage world.  For some mortgages, there are certain things lenders are required to do after a borrower defaults.   My cousin's attorney was successful with a breach claim in foreclosure in PA.

More so, I didn't say I was making any claim for breach.  My claims would be violations of the FDCPA.

BTW, my contract clearly states that if I have a dispute, I can send a letter requesting arb.  No court case need be filed at all.

Harry, they ignored my request for arb BEFORE any fees were paid. My contract says they pay all fees. I know I could have sent the $250, but I did not want to do that.

We have gotten so off topic.  Can anyone comment on my original question about the SOL as it relates to a case that began in court and rolled over to arb?

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2 hours ago, Patz said:

Harry, they ignored my request for arb BEFORE any fees were paid. My contract says they pay all fees. I know I could have sent the $250, but I did not want to do that.

I understand not wanting to pay the fees.  But did you even initiate with an arbitrator?  No court in the land will recognize a letter to a debt collector as initiating arbitration for the purpose of tolling SOL.

2 hours ago, Patz said:

We have gotten so off topic.  Can anyone comment on my original question about the SOL as it relates to a case that began in court and rolled over to arb?

Hypothetically speaking, a case rolling over to arbitration in and of itself would not affect the SOL.  In your case, you didn't assert your claims in a court of law or in arbitration prior to the expiration of the SOL so it's a moot point for you.

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@Patz

15 hours ago, Patz said:

If the plaintiff wants to be certain the SOL for counterclaims has passed, then they need to file the complaint after the SOL ends.  This piece of info came from  a very good consumer debt attorney in my state.

That is because a consumer would normally file a counterclaim for FDCPA violations along with an answer to the complaint which would serve to toll the SOL on the violations.  As @Harry Seawardhas pointed out, you didn't file a counterclaim.   I can't find any case law that shows that the debt collector's filing of a debt collection complaint tolls a consumer's claims for FDCPA violations.

I also agree with Harry that the mere election of arbitration without taking any other action does not toll the SOL.

 

 

 

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41 minutes ago, Harry Seaward said:

I understand not wanting to pay the fees.  But did you even initiate with an arbitrator?  No court in the land will recognize a letter to a debt collector as initiating arbitration for the purpose of tolling SOL.

Hypothetically speaking, a case rolling over to arbitration in and of itself would not affect the SOL.  In your case, you didn't assert your claims in a court of law or in arbitration prior to the expiration of the SOL so it's a moot point for you.

 

As I mentioned above, "they ignored my request for arb BEFORE any fees were paid."  So of course arb was initiated.  The FDPA violation is NOT about initiating arb.  The violation is their abject refusal to honor my request to resolve the dispute via arb.  Once I elected arb, no court case could be filed.  Electing and initiating are 2 different pieces of the puzzle.

I disagree on your "hypothetical" point.  I never had an opportunity to respond with my claims since the court didn't have jurisdiction.  For certain, all of the violations that occurred after the complaint was filed are not moot.   And again,  the key date for calculation of time under the SOL is the date the complaint  was filed.  When they filed that complaint, it stopped the running of my SOL for any claims that occurred before that date.  So long as the "court to arb train" is continuous, then I am okay with the SOL - and this was my original question..

I'll follow up later with  outcomes.  Seeing an attorney tomorrow for a consultation.

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12 minutes ago, BV80 said:

@Patz

That is because a consumer would normally file a counterclaim for FDCPA violations along with an answer to the complaint which would serve to toll the SOL on the violations.  As @Harry Seawardhas pointed out, you didn't file a counterclaim.   I can't find any case law that shows that the debt collector's filing of a debt collection complaint tolls a consumer's claims for FDCPA violations.

I also agree with Harry that the mere election of arbitration without taking any other action does not toll the SOL.

 

 

 

I don't think I said that electing tolls.   I for certain know that's crazy.  I referred to tolling via the filing of the complaint.

A defendant cannot file/answer anything if court doesn't have jurisdiction.

Thanks for everyone's assistance.

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@Patz

6 minutes ago, Patz said:

The violation is their abject refusal to honor my request to resolve the dispute via arb.  Once I elected arb, no court case could be filed. 

There is no case law to support such a claim.  Do you have claims for any other violations of the FDCPA?

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19 minutes ago, BV80 said:

@Patz

..........   I can't find any case law that shows that the debt collector's filing of a debt collection complaint tolls a consumer's claims for FDCPA violations.

 

 

 

When I was in foreclosure court  many years ago, that's exactly what happened.

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21 minutes ago, BV80 said:

@Patz

That's good.  Did it result in published case law?

No BV80, it was resolved in the trial court.   I did more Google  research & find some back & forth on the issue.

https://www.avvo.com/legal-answers/does-statute-of-limitation-tolls-when-the-case-is--559069.html

Though I never put all faith in Avvo, most times it can be somewhat helpful.

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2 minutes ago, Patz said:

No BV80, it was resolved in the trial court.   I did more Google  research & find some back & forth on the issue.

https://www.avvo.com/legal-answers/does-statute-of-limitation-tolls-when-the-case-is--559069.html

Though I never put all faith in Avvo, most times it can be somewhat helpful.

This is different.

The person who posed the question on Avvo filed a timely breach of contract lawsuit in court.   He was asking if his filing  of his lawsuit tolled his breach of contract claim.

You did not file a lawsuit.  

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19 hours ago, Patz said:

I'm having trouble trying to determine when the SOL (for FDCPA) began for a case that began in state court and ended up in arbitration.

Case originally filed in court in Nov 2013.  Arb filed in April 2014. My question revolves around the fact that the SOL for my FDCPA claims would have expired in Dec 2013.  But is the SOL stayed for all the time while the case was "trying to get" to arbitration?  I can't imagine that going to arbitration after a MTC would require a new start period for the SOL.  After all, that would be most unfair for the debtor if the JDB farted around with the arbitration waiting for an SOL to expire.

I'm hoping that if there was a MTC, then arbitration simply picks up where the court case left off.

Thoughts anyone?  Hope I'm making sense.

Was the case dismissed?  Or stayed for arbitration?  I'm assuming the MTC was granted?

I would look at this a couple of ways:

-  If the case was stayed and arbitration was compelled, then I would gather the FDCPA claims would be tolled, and for the Arbitrator to decide.
-  If the case was dismissed, and no MTC was granted, then the SOL would fall on the date they filed the complaint.  Unless, they continued to violate the FDCPA beyond that date.
-  My guess if you filed a Federal FDCPA suit against them, they would claim the SOL had expired.  You'd have to make the argument that the time was tolled because of pending arbitration,  in a contractually agreed forum, in which was compelled by the courts.

Unless you can get these claims in arbitration, the courts would possibly rule that you are barred by laches.

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57 minutes ago, Coffee_before_tea said:

Was the case dismissed?  Or stayed for arbitration?  I'm assuming the MTC was granted?

I would look at this a couple of ways:

-  If the case was stayed and arbitration was compelled, then I would gather the FDCPA claims would be tolled, and for the Arbitrator to decide.
-  If the case was dismissed, and no MTC was granted, then the SOL would fall on the date they filed the complaint.  Unless, they continued to violate the FDCPA beyond that date.
-  My guess if you filed a Federal FDCPA suit against them, they would claim the SOL had expired.  You'd have to make the argument that the time was tolled because of pending arbitration,  in a contractually agreed forum, in which was compelled by the courts.

Unless you can get these claims in arbitration, the courts would possibly rule that you are barred by laches.

Likewise, this was my thought process.  Will see what happens.  Thx

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