nickysduck2

If I elect arb do I have to file?

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When sending a dv letter to a creditor on a debt with an arbitration clause, can I elect that all disputes be settled in arb using JAMS without having to file or initiate a claim? I am being sued on another debt because I never elected arb before PRA sued and I now have another new debt that PRA has just purchased so I want to elect before they sue. Someone told me in another forum that if I elected I had to initiate a claim or else its just a bluff. Im confused because I have only received one letter from them and have no violations to sue them on so why would I file a case in arb just to keep them from suing me? 

I thought my election was just to make it known my preference should they decide to sue me?

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I actually did but was told if I did'nt file a claim when I elected it would be considered a bluff and I could look forward to this..


"The defendant indicated that (he) wanted to exercise the arbitration clause in the contract. Thereafter, defendant did NOT exercise the arbitration clause in a timely fashion. Therefore, Plaintiff avers that this was nothing more than a delaying tactic designed to thwart the system. Defendant believes that once arbitration is "elected," court actions are permanently stayed. Defendant then refused to file a case, thinking that this chicanery precludes any action by Plaintiff to recover the debt. Plaintiff prays the court to see this ruse for what it is and deny (the motion) or objection.

 

 

I read the arbitration thread on this forum and it was suggested that we elect arb in our dv letter so thats what I was going to do until i was told on the debtorboard forum it was a bluff unless if initiated.   Now Im confused. I need a second opinion. The cc agreement states that if either party elects arb both parties waive their right to litigate in court. Its does'nt say I have to file a claim upon election as far as I can see.

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"Electing" arbitration in a letter is essentially meaningless.  You would have to file in order to hold any legal weight in court.

However, all that needs to be done is to file an MTC in court on the new case.  Arbitration should not be be denied by a court as long as you have an agreement with an arbitration clause.  Some courts wrongly have denied, but are usually over turned upon appeal because the SCOTUS is very clear that arbitration supersedes other litigation.

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When a jdb sues after receiving the dv letter electing arb, isn't this an FDCPA violation (contract has arb clause)? Is this violation best brought up as a counter-claim within their suit or best pressed as a new lawsuit? Is  FDCPA violation suit always filed in a federal court? If not, where else would you file this type of complaint?

Edited by Roxanne
Missed a word

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1 hour ago, Roxanne said:

When a jdb sues after receiving the dv letter electing arb, isn't this an FDCPA violation (contract has arb clause)?

What would be the violation? 

1 hour ago, Roxanne said:

Is this violation best brought up as a counter-claim within their suit or best pressed as a new lawsuit?

I learned the hard way that chasing FDCPA violations as counterclaims is a bad idea. Always better to seek your compensation in a separate Federal lawsuit.

1 hour ago, Roxanne said:

If not, where else would you file this type of complaint?

Your local Federal courthouse. And you better know what you're doing if you go at it without a lawyer. Federal court is 100% no-nonsense. 

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1 hour ago, Roxanne said:

When a jdb sues after receiving the dv letter electing arb, isn't this an FDCPA violation (contract has arb clause)? Is this violation best brought up as a counter-claim within their suit or best pressed as a new lawsuit?

Some have suggested that theory, but there are no court rulings to support it at all.

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On 1/15/2017 at 9:22 AM, fisthardcheese said:

"Electing" arbitration in a letter is essentially meaningless.  You would have to file in order to hold any legal weight in court.

^^

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