scarab

Sued by Velocity Investments in Nevada

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@scarab the arbitration we've been talking about you'd consider is private contractual arbitration, it would stick out with mention of JAMS or AAA (arbitration administration firms). Court Ran Arbitration you'd be able to find the detail on in your court rules. You don't want that.

http://www.leg.state.nv.us/courtrules/RGADR.html

https://www.washoecourts.com/index.cfm?page=arbitration

You are allowed a trial de novo if you've paid all the court arbitration fees. If you have not, the arb decision becomes binding. They've also got a short trial program in the rules. A lot of alternatives that aren't cheap. Read through the fine print. If these court programs are mandatory I'd strongly consider JAMS or AAA if in the agreement where you'll pay $250 or under and the Plaintiff will pay much more which can be an incentive for them to settle with you or dismiss in court.

 

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I just edited my prior post - I found the arb terms.   Looks like the choices are AAA and JAMS.

I'm arguing strongly that the document submitted by the plaintiff is not the actual promissory note.  It would seem to me that if the judge buys that argument, then the arb terms and conditions would be out.   Also, I feel pretty good about getting documents thrown out.   Both the attorney I saw and the PDF of advice to debt collectors (posted previously in this thread, and written by another NV attorney) say that Nevada courts are willing to throw out bad documentation.

Can the court force me into court run arb?

 

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@scarab the paragraph numbers are different so I don't know how well it matches your agreement but the one I found https://www.lendingclub.com/info/consolidated-borrowerLoan-agreement.action

is under the FAA (Federal Arbitration Act) which allows you to use the choice of law in the agreement when you go to arbitration if this would ever get that far. That says Utah which I believe has a 4 year SOL but you'll want to double check that.

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3 minutes ago, scarab said:

Ok, I just found the info on court run arb.  It doesn't look so bad, as I can go back to court.

For going back to court are you referring to the trial de novo? Did you see the costs you have to pay and share with the Plaintiff? Just go through the fine print on all those alternative court programs and what they mean when they say they aren't binding.

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This is what I read: 

https://www.washoecourts.com/index.cfm?page=arbitration&td=Arb

Quote

Although the program is mandatory in these cases, the results of the arbitration are not binding.  As long as a party participates in the arbitration process in good faith, and complies with the applicable rules, that party may reject the arbitrator’s decision and request a trial (referred to as a “trial de novo”).

Nevertheless, the arbitrator’s decision and reasoning will usually provide litigants with valuable insight into the merits of the case.  Often, the litigants accept the arbitrator’s decision, which is then converted into an enforceable judgment.  Other times, the parties settle their dispute after considering the arbitrator’s explanation, findings, and conclusions.

Parties in cases assigned to the Court Annexed Arbitration Program generally are responsible for their arbitrator’s costs and fees.  The arbitrator’s costs may not exceed $250, and the arbitrator generally may not charge more than $100 per hour, up to a maximum of $1,000.  The costs and fees of the arbitrator are shared equally by the parties.

Did you see something else I should read?

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10 minutes ago, CCRP626 said:

@scarab the paragraph numbers are different so I don't know how well it matches your agreement but the one I found https://www.lendingclub.com/info/consolidated-borrowerLoan-agreement.action

is under the FAA (Federal Arbitration Act) which allows you to use the choice of law in the agreement when you go to arbitration if this would ever get that far. That says Utah which I believe has a 4 year SOL but you'll want to double check that.

I don't think I get any help from Utah where SOL is concerned.  Same laws as NV.

4 year for contracts with no written instrument

http://le.utah.gov/xcode/Title78B/Chapter2/78B-2-S307.html?v=C78B-2-S307_1800010118000101

6 for contract upon written instrument

http://le.utah.gov/xcode/Title78B/Chapter2/78B-2-S309.html?v=C78B-2-S309_1800010118000101

 

 

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16 minutes ago, scarab said:

Did you see something else I should read?

$1,250 split equally, so $625 mandatory to enter arb. Failing to pay has results such as default judgment against you and blocks trial de novo. The rules allow exemptions if you request. http://www.leg.state.nv.us/courtrules/RGADR.html

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2 minutes ago, scarab said:

I can live with that.

Okay. They also if you're placed into arb, give you the choice of the short trial program if you're interested in a jury trial. If you're staying in court and they're pushing you into mandatory programs you might as well pick the one that works best for you and opt out of the others.

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Yes, I think I should push for a jury trial.  I think a pro se consumer has an edge here, if s/he can paint a picture of the JDB being the big bad wolf.  I think excellent persuasion is the key.  I still doubt we will get this far.    My response to their complaint is at 8 pages and still growing.  I am listing all of my affirmative defenses and my counter claims.

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Just a tidbit, generally 'excessive litigation' waives your right to contractual arbitration (JAMS, in your case).  Unfortunately, 'excessive litigation' is not well defined and it varies by jurisdiction.  So you need to decide early whether you want to go for JAMS arb or court.  But yes, you are right in that it doesn't make sense to claim you have a right to contractual arbitration if you're also claiming the contract they're providing is not, in fact, valid.  If they're able to prove they have a contract you could then try to invoke the arbitration clause but it's up in the air at that point whether you get it.

I was in a similar conundrum when we went for arb, because I wasn't keen on acknowledging that we did in fact have a valid contract rather than forcing the plaintiff to prove it.  But in our case, it was an OC that I knew would have all the documentation to prove their case anyway so I figured there wasn't much to be lost there.  Arbitration, in general, is basically a giant bluff that they won't pay their way through the process.  That makes it a great strategy for people who don't have a leg to stand on in terms of defending their case conventionally.  If you have a high degree of confidence that you can defend yourself based on the evidence and/or procedural rules, then court is a perfectly reasonable option.

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@scarab if you're staying in court did you look into a consumer attorney? It sounds like you're doing fine on your own but the Plaintiff knowing they may have to pay for your attorney fees could give up earlier and a consumer attorney might find a state consumer law violation we've all missed. Even if you don't hire one, getting some local experience on navigating through the myriad of court programs could come in handy.

http://www.consumeradvocates.org/find-an-attorney

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9 hours ago, CCRP626 said:

@scarab the paragraph numbers are different so I don't know how well it matches your agreement but the one I found https://www.lendingclub.com/info/consolidated-borrowerLoan-agreement.action

is under the FAA (Federal Arbitration Act) which allows you to use the choice of law in the agreement when you go to arbitration if this would ever get that far. That says Utah which I believe has a 4 year SOL but you'll want to double check that.

A promissory note that identifies the parties, and terms in the four corners of the document, will fall under the 6 year SOL.

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@scarab  State Court run Arbitration = bad.   AAA or JAMS = Good.

In my opinion, you'll just prolong this if you go into State run Arbitration (where you'll still likely get railroaded). AAA & JAMS are cost prohibitive for the JDB, that is your leverage.  Not to mention the contract posted above has the 3-panel appeals clause.  The appeal alone will likely cost more in fees than what they are suing you for.  These fees are "unrecoverable", and they are out-of-pocket.  That means the JDB has to cut a check to arbitrate the issue.  Whereas, in court their lawyers are probably running on a small flat fee or contingency (i.e. very little out of pocket expenses).

If it was me, I'd get this thing into JAMS and start applying some leverage....today.

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9 hours ago, scarab said:

Yes, I think I should push for a jury trial.  I think a pro se consumer has an edge here, if s/he can paint a picture of the JDB being the big bad wolf.  I think excellent persuasion is the key.  I still doubt we will get this far.    My response to their complaint is at 8 pages and still growing.  I am listing all of my affirmative defenses and my counter claims.

8 pages?   What are your defenses and counterclaims?

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9 hours ago, hades01 said:

Just a tidbit, generally 'excessive litigation' waives your right to contractual arbitration (JAMS, in your case).  Unfortunately, 'excessive litigation' is not well defined and it varies by jurisdiction.  So you need to decide early whether you want to go for JAMS arb or court.  But yes, you are right in that it doesn't make sense to claim you have a right to contractual arbitration if you're also claiming the contract they're providing is not, in fact, valid.  If they're able to prove they have a contract you could then try to invoke the arbitration clause but it's up in the air at that point whether you get it.

I was in a similar conundrum when we went for arb, because I wasn't keen on acknowledging that we did in fact have a valid contract rather than forcing the plaintiff to prove it.  But in our case, it was an OC that I knew would have all the documentation to prove their case anyway so I figured there wasn't much to be lost there.  Arbitration, in general, is basically a giant bluff that they won't pay their way through the process.  That makes it a great strategy for people who don't have a leg to stand on in terms of defending their case conventionally.  If you have a high degree of confidence that you can defend yourself based on the evidence and/or procedural rules, then court is a perfectly reasonable option.

That's interesting.  I may be going for "excessive litigation".  That is part of my strategy.  I fully expect the judge to tell me to amend/revise my response/counterclaims. 

Though I am not a lawyer, I am unfortunate in that I have extensive experience with litigation now both as Plaintiff and Defendant.  Most of it has been over the past 4-6 years.  I am more comfortable with the traditional legal process. 

As for using arbitration, I am willing to look at any strategy that will bring this matter to a close faster, but not at the expense of me agreeing to a large settlement.    I know very little about the arbitration process with JAMS or AAA.   I would like to understand how I would go through that process.  For example, would I file the same kinds of legal briefs, get into discovery with demand for docs, admissions, interrogatories, etc.?  

Can anyone give me an idea of just how neutral the 3 person arbitration panel is?

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3 hours ago, Coffee_before_tea said:

@scarab  State Court run Arbitration = bad.   AAA or JAMS = Good.

In my opinion, you'll just prolong this if you go into State run Arbitration (where you'll still likely get railroaded). AAA & JAMS are cost prohibitive for the JDB, that is your leverage.  Not to mention the contract posted above has the 3-panel appeals clause.  The appeal alone will likely cost more in fees than what they are suing you for.  These fees are "unrecoverable", and they are out-of-pocket.  That means the JDB has to cut a check to arbitrate the issue.  Whereas, in court their lawyers are probably running on a small flat fee or contingency (i.e. very little out of pocket expenses).

If it was me, I'd get this thing into JAMS and start applying some leverage....today.

That's the kind of info I need to know.   Any idea of what Arb would cost them, and what Arb would cost me?

 

Everyone posting responses to this thread should remember that they are suing for well over 10K, on a debt they paid around $400 for.   How much are they willing to spend to fight me?

I did not realize that their attorneys were on flat fee.  Seems to me that they probably don't make much per case, therefore, they would be very unwilling to do much work on my particular case.  Yet, when you guys see my response, you will understand how much work I am willing to do, and how much work I am going to create for them.

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2 hours ago, BV80 said:

8 pages?   What are your defenses and counterclaims?

I promise to post it here shortly.  I want feedback from those of you on this forum that are experienced in fighting these things.    It might help you to understand that I have been involved in extensive and very prolonged litigation in cases that have nothing to do with debt collection, but I am not a lawyer.   I have seen a particular strategy used with almost deadly effectiveness:  its a scorched earth strategy.    I am using something similar.  I am completely destroying every document they have included in their exhibit, and picking apart every single detail that is wrong with their documents, to show that the documents are worthless to their case.    I am also making a lot of counterclaims and making "mountains out of molehills".  Trust me this works.  More on this later, I'm out of time at the moment.

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3 minutes ago, scarab said:

That's the kind of info I need to know.   Any idea of what Arb would cost them, and what Arb would cost me?

 

Everyone posting responses to this thread should remember that they are suing for well over 10K, on a debt they paid around $400 for.   How much are they willing to spend to fight me?

I did not realize that their attorneys were on flat fee.  Seems to me that they probably don't make much per case, therefore, they would be very unwilling to do much work on my particular case.  Yet, when you guys see my response, you will understand how much work I am willing to do, and how much work I am going to create for them.

Arb costs vary between AAA & JAMS.  JAMS is considered to cost more than AAA, and allows arbitrators to set their own fees, most are over $400 per hour.   AAA has a set fee for hearings & Arbitrator compensation.  For example:

JAMS:
- $1500 Filing Fee
- Arbitrator Fees Vary - Range between $400 - $1000 per hour

AAA:
- $1700 Filing Fee
- $500 Hearing Fee
- $1500 Arbitrator Fee Per Day

AAA would be $2200 for their filing fee.  You will likely have multiple hearings through discovery & objections, which would cost around $2000 per hearing (according to the fee schedule).  Assuming you have 3-6 hearings before your actual case is heard, then that's an additional $6k-$12K in hearing fees.  The 3-panel arbitrator appeal (I believe is de novo), and will cost $1500 per arbitrator, or $4500.

$200.00 is the Maximum AAA fee for you (the consumer)
$250.00 is the Maximum JAMS fee for you (the consumer)

JAMS is known to be more expensive, so keep that in mind.  These fees also do not include Attorneys fees, which will run the JDB around $250-$500 per hour.

Add up your estimated Arb fees, not including the 3-panel appeal, and you can see it can quickly get expensive.  Assuming AAA would be around $10K - 16K + Attorneys fees

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52 minutes ago, scarab said:

That's interesting.  I may be going for "excessive litigation".  That is part of my strategy.  I fully expect the judge to tell me to amend/revise my response/counterclaims. 

Though I am not a lawyer, I am unfortunate in that I have extensive experience with litigation now both as Plaintiff and Defendant.  Most of it has been over the past 4-6 years.  I am more comfortable with the traditional legal process. 

As for using arbitration, I am willing to look at any strategy that will bring this matter to a close faster, but not at the expense of me agreeing to a large settlement.    I know very little about the arbitration process with JAMS or AAA.   I would like to understand how I would go through that process.  For example, would I file the same kinds of legal briefs, get into discovery with demand for docs, admissions, interrogatories, etc.?  

Can anyone give me an idea of just how neutral the 3 person arbitration panel is?

 

Arbitration has court-like procedures, but the rules are generally more relaxed than court.  That's part of the appeal for some.  For specifics, you'd have to refer to the particular arbitrator's rules.  JAMS has their rules online.  It would probably also be wise to look through the JAMS case history to see if your plaintiff has ever followed someone into JAMS (https://www.jamsadr.com/consumercases/).  That's what sealed the deal for me; I saw that our plaintiff had never followed a consumer into JAMS for a credit card debt.  Some plaintiffs will aggressively follow you into JAMS though, like Discover or American Express.

As far as litigating as part of raising their costs goes, I'm not sure how effective that is in a courtroom setting where they'll be able to saddle you with the costs if they win.  Obviously if they know their case is weak that might motivate them to walk away, but if they're confident (rightly or wrongly) in their case I don't see why it would necessarily be a deterrent.  That's a big part of the magic of arbitration; in virtually all cases the non-consumer party pays all but $250 (for JAMS) of the costs.  Win or lose the plaintiff is out that arb fee money.

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1 hour ago, Coffee_before_tea said:

The 3-panel arbitrator appeal (I believe is de novo), and will cost $1500 per arbitrator, or $4500.

AAA Administrative fees are an additional $6,000 for the appeal.

1 hour ago, scarab said:

I did not realize that their attorneys were on flat fee.  Seems to me that they probably don't make much per case, therefore, they would be very unwilling to do much work on my particular case. 

No, they'll work as hard in court, they're expected to with the agreement they've entered. The idea is they're hired and have a cap for each case, if the fees go past that cap they're expected to be make that up from the fees awarded in a judgment. The JDB has no incentive to stop due to attorney fees. The law firm is probably the same one handling most of their cases, filing all those default judgments with little work. They've built up plenty of fees from that to weather any loss from your case while it's being litigated.

The benefit of private arbitration is all those additional non-attorney fees a cents on the dollar JDB has to pay in advance at each stage of arbitration. Splitting court costs with you for these expensive (but cheaper than private arb) alternative court ran programs with a one time entry fee does not have the disincentive private arb would where the most you pay is $250.

1 hour ago, scarab said:

remember that they are suing for well over 10K, on a debt they paid around $400 for.

A lot of junk debt they can buy spread out among multiple accounts to reduce risk instead of paying thousands to collect your single debt.

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2 hours ago, scarab said:

Can anyone give me an idea of just how neutral the 3 person arbitration panel is?

That's for the appeal, the initial arbitration is a single arbitrator. Appeal has different procedures for selection than the initial arb but you are informed of the selections and there are strike lists. AAA and JAMS have their own procedures you'd want to review. You get background on the arbitrator and have a certain amount of time to request replacements.

As @hades01 mentioned, you can review consumer case history. AAA and JAMS both have this detail so you could see if your JDB would even pay the initial fee.

JAMS Consumer Case filings https://www.jamsadr.com/consumercases/

AAA https://www.adr.org/aaa/faces/aoe/gc/consumer/consumerarbstat

 

As far as the agreement, unless you're saying you never had any dealing with the original creditor, you're only saying you have an agreement to arbitrate with all other questions including the rest of the contract and how you would be bound to that to be decided by the arbitrator after the Plaintiff has paid their fees. Then they still have standing to prove along with other issues you bring up.

 

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In the JAMS cases, I couldn't find Velocity anywhere.  On another note (for an example), Midland was listed numerous times, and most of them were abandoned or settled, with one award.

This is a Midland-is-asleep-at-the-wheel moment.  They have one case that went to an award (don't know if it could have been appealed).  Here are the details (line 3203):

- Amount sought/awarded:  $2,687
- Midland's Arbitration Fees:  $18,250 (not including attorneys fees)

 

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