nickysduck2

Need a 2015 copy of the Citibank N.A (Home Depot) cc agreement

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I need a 2015 copy of the Citibank N.A Home Depot agreement. I found the 2016 version on the citibank website but it says only AAA can be used if arbitration is elected. My debt is $745 and their filing fee is $750 and total fee is $800 so would electing arb still be smart?  Im not sure if the 2015 has JAMS. 

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The CFPB has a database of credit card agreements that you can search, but in the archives there, they do not appear to have any agreements for 2015 at all.  They go from Q4 in 2014 right to January 2016.  Also, if you contact Citibank directly, and request a copy of the original agreement, they must provide one to you by law.  if they do not, you can file a complaint with the CFPB.

 

Also, arbitration costs a lot more than just the initial filing fee.  Many debt collectors will not go into arbitration, even if the cardmember agreement specifies it.  This is because they do not want to spend a few thousand dollars to try to collect $745.  You can still elect arbitration, and if they have already sued, you can elect arbitration, but if they already filed a lawsuit, then you will be challenged most likely about the arbitration clause.  That means that you will need the 2015 agreement. 

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Thanks. I have not requested dv yet. The first letter they mailed me was delivered to my neighbor by mistake back in October and im only just getting it so the 30 days to request dv is over. I am going to tell them in my dv letter that I noticed their info on my credit report and request it anyway.  There is an arbitration thread on debtorboards.com  that says ..

" Somwhere in DV put, "If there is an underlying arbitration clause associated with this claim, I hereby exercise it, and waive your litigation rights to this claim, per the underlying arbitration clause."

You should also make a demand for a copy of the contract with the arbitration clause.

Point #1) You are not required to file an arbitration by doing this.

Point #2.)You have provided notice of your dispute resolution intentions, if they sue you in court, they have violated the FDCPA...by exercising a legal right that does not exist...ergo arbitration election waives other parties right to litigate.

What options are left if OC/JDB cannot litigate claim?"

 

 

This is what I was planning to do but someone else told me on debtorboards that if I elect and don't initiate its considered a bluff and This is what I can look forward to...


"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 (true motion) or objection.

 

Now Im clueless on what to do. I have no violation against the creditor and another thread on deborboards says not to initiate a cliam unless you have violations. what is my best course of action here? PRA is the ca and the debt is only $745.

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6 hours ago, kraftykrab said:

They go from Q4 in 2014 right to January 2016.

Download the Jan 2016 archive. They are actually 2015 agreements in there and I'm pretty sure I saw some for Citibank when I looked at it earlier this week. 

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15 hours ago, nickysduck2 said:

Thanks. I have not requested dv yet. The first letter they mailed me was delivered to my neighbor by mistake back in October and im only just getting it so the 30 days to request dv is over. I am going to tell them in my dv letter that I noticed their info on my credit report and request it anyway.  There is an arbitration thread on debtorboards.com  that says ..

" Somwhere in DV put, "If there is an underlying arbitration clause associated with this claim, I hereby exercise it, and waive your litigation rights to this claim, per the underlying arbitration clause."

You should also make a demand for a copy of the contract with the arbitration clause.

Point #1) You are not required to file an arbitration by doing this.

Point #2.)You have provided notice of your dispute resolution intentions, if they sue you in court, they have violated the FDCPA...by exercising a legal right that does not exist...ergo arbitration election waives other parties right to litigate.

What options are left if OC/JDB cannot litigate claim?"

 

 

This is what I was planning to do but someone else told me on debtorboards that if I elect and don't initiate its considered a bluff and This is what I can look forward to...


"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 (true motion) or objection.

 

Now Im clueless on what to do. I have no violation against the creditor and another thread on deborboards says not to initiate a cliam unless you have violations. what is my best course of action here? PRA is the ca and the debt is only $745.

OK, this is my take on that info....

 

First, DV only serves one purpose, and validation does not affect arbitration very much at this point IMO.  Your focus should be on just getting arbitration going.  The problem as I see it, and this is just my opinion, is that you cannot exercise things according to contract unless those things are IN the contract.  For example, you mentioned above that "they have violated the FDCPA" if they sue you after you informed them that you intend to arbitrate.  This is not really the case.  If you look at the arbitration clause itself, it does not state that they do not have any ability to avail themselves of the courts if you INFORM them that you intend to arbitrate.  It generally states in those clauses that a party may ELECT arbitration.  Electing arbitration is not "I'm sending you this letter to inform you that I intend to arbitrate if you try to sue me".  That does not take away their right or ability to file a lawsuit, and it does not make filing that lawsuit an FDCPA violation.  Arbitration ONLY removes the ability to litigate if A--you elect it, as in, you contact the arbitrator and file the case there, and B--if they already did sue and you move the court to compel arbitration, and the court grants your motion.  Until there's actual an arbitration case filed and initiated, they have nothing that takes away any ability to sue you.  Notice that most arb clauses state that either party MAY elect, this means it is optional.  You can choose to arbitrate if they sue you, or you can choose to argue the matter in that court.  It's a CHOICE, and until you officially enact that choice, they have that right.

 

I agree that if you do not initiate, it's only a bluff---and that's why they do not violate if you "intend" to arbitrate and they sue you anyways....because it's the action itself, not the intention to act, that removes the ability to litigate.  Especially if they have already sued you, the basic idea is that you motion to compel arbitration in accordance with the original contract.  Then, you file arb.  Do not wait for the court to grant your motion, get that ball rolling.  That way, you can point to the filing and show the court that you are serious about your intentions. 

I do not agree with the info you were given that it only makes sense to arbitrate if you have them on FDCPA violations, because the sole purpose of using arbitration is to make them go away.  Most JDBs will not follow you into arbitration, especially for such a small amount, because their cost will be much greater than what they could hope to recover.  All they care about is the bottom line, so if it does not make them $$$ in the end, they don't want to do it. 

Yes, make demand for the contract, but not from PRA.  Contact the original creditor, by law they must provide it to you.  PRA, even if they have it, wont provide you with something that buries their case unless they absolutely have to.  We've seen debt collectors actually sue people, and then when discovery requests are sent, sometimes they actually dismiss their own lawsuit rather than send some certain info or documentation to the consumer.  Does not happen all the time, but it does happen, especially in foreclosure situations. 

 

12 hours ago, Harry Seaward said:

Download the Jan 2016 archive. They are actually 2015 agreements in there and I'm pretty sure I saw some for Citibank when I looked at it earlier this week. 

Harry, thanks for the heads up on this.  This is why I love this forum--lots of people that are very knowledgeable and willing to help.

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@nickysduck2

Some people have believed and put forth that electing arbitration in a DV letter prevents a lawsuit.  As @kraftykrabpointed out, that's not the case.  If it were true, everyone would do it.  It is also not a violation of the FDCPA if a debt collector files a lawsuit after consumer elects arbitration in a DV letter. 

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Thanks so much for all your help. I requested a copy of the 2015 cc agreement from citibank. I think i understand what to do now. I will write them saying

I dispute this debt in its entirety. You may communicate with me by mail only. All calls to any phone number associated with me or this account are inconvenient. That includes work numbers. I also revoke any prior express consent to call my cell phone for any reason. In the event of litigation, I intend to exercise my right to private contractual arbitration as specified in the applicable credit card agreement."

 

 

Once I receive the correct cc agreement I will know if I can use JAMS or have to use AAA. Depending on what the contract says I will then go ahead an initiate a claim in one of those arb forums and send this initiation paperwork with my dv letter. Is this correct? I read the arb website and seem to meet the requirements for a fee waiver so will request that.Questions I have are..

1. Since I am  applying for a fee waiver does that mean the fees fall to the creditor and if thats the case their refusal to pay prevents them from suing me in court? 

 2. I owe $745 on this debt. If I am the one initiating and I have no violations against them and PRA does by chance pay the fees how does it work? What are my arguments? 

3. Would it be a good idea to include a copy of the citibank agreement with a notorized affidavit that it is the correct agreement to PRA in with my arb election letter and initiation paperwork?   

4. Given the small amount of this debt what is the likelyhood they will pay the arb fees if AAA ends up being the forum I must use depending on my cc agreement? 

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On 1/13/2017 at 9:59 PM, Harry Seaward said:

Download the Jan 2016 archive. They are actually 2015 agreements in there and I'm pretty sure I saw some for Citibank when I looked at it earlier this week. 

I downloaded the  Jan 2016 archives but could'nt open the file. Sue wish somebody had a 2015 citibank agreement they could email me. I called Citibank and because the account is closed and sold to a jbd they refused to send me one. I filed a complaint against them for denying me a copy. I really can't get started on anything until I get a 2015 copy of this cc agreement.

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It's a .zip file. I looked at it again yesterday and there is a 2015 citi/home depot agreement in there. 

I'm on my phone but when I get to a computer I'll upload the agreement here.

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On 1/14/2017 at 10:42 AM, BV80 said:

It is also not a violation of the FDCPA if a debt collector files a lawsuit after consumer elects arbitration in a DV letter. 

Is your basis for this claim anything other than the 7th Circuit Bentrud case?

Even if Bentrud is assumed to be good case law, the opinion seems to indicate that it may have been a contract violation to pursue litigation after some notice that invoked the arbitration provisions of the contract.

The precise language in the arbitration provision of the agreement is relevant here.   Some language doesn't explicitly state that a case has to be filed with the arbitration provider in order to invoke the arbitration provisions of the contract.  Mere notice may be sufficient.

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3 hours ago, Harry Seaward said:

It's a .zip file. I looked at it again yesterday and there is a 2015 citi/home depot agreement in there. 

I'm on my phone but when I get to a computer I'll upload the agreement here.

Oh thank you so much!!! Really appreciate it!!

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9 minutes ago, Xerxes said:

Is your basis for this claim anything other than the 7th Circuit Bentrud case?

Even if Bentrud is assumed to be good case law, the opinion seems to indicate that it may have been a contract violation to pursue litigation after some notice that invoked the arbitration provisions of the contract.

The precise language in the arbitration provision of the agreement is relevant here.   Some language doesn't explicitly state that a case has to be filed with the arbitration provider in order to invoke the arbitration provisions of the contract.  Mere notice may be sufficient.

If arbitration was the only forum offered in a contract, I could see an FDCPA violation if a debt collector filed a lawsuit.   However, it's not the only option.

What contract violation?  A breach of contract requires damages.  Also, you usually can't claim a breach of contract if you're the one who first breached it by defaulting on a debt.

 "A party who has materially breached a contract is not entitled to damages stemming from the other party's later material breach of the same contract."  McClain v. Kimbrough Constr. Co., Inc., 806 S.W.2d 194, 199 (Tenn.Ct. App.1990).

I don't know if Bentrud is considered to be "good case law", but it's precedent in the 7th Circuit and no other court has taken up the issue.  It would seem to me that if it were a valid claim, there would be other court rulings about the issue.

Note that in regard to the FDCPA claim in Bentrud, the court quoted its decision in Beler v. Blatt that "the FDCPA is not an enforcement mechanism for matters governed elsewhere by state and federal law. "   The remedy for a refusal to arbitrate is governed by state and federal law.  You file a MTC arbitration.

 

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On 1/16/2017 at 7:42 PM, BV80 said:

What contract violation?  A breach of contract requires damages.  Also, you usually can't claim a breach of contract if you're the one who first breached it by defaulting on a debt.

These are questions for the 7th Circuit Court of Appeals.  Quoting from the Bentrud opinion,  "If Bentrud is concerned about Bowman-Heintz resuming litigation after he elected arbitration—a procedural oddity, at worst—his remedy sounds in breach of contract".

A claim of breach of contract is one thing, not being entitled to damages is another.  The citibank language allows arbitration for other sorts of relief besides damages, such as injunctive or declaratory relief.  The party who committed the first breach will not have been determined prior to award in arbitration.

So, what constitutes sufficient invocation of the arbitration provisions?   Is it notice, initiation, moving to compel, or some or all of these?  On what basis would any of these be excluded as sufficient invocation? 

Consumer attorneys in the debt defense field still don't use arbitration very much at all, much less would they have a chance at a case where their client had sent a pre-suit notice to a debt buyer invoking arbitration.  So, it is not surprising that there aren't other court rulings because there have not been many cases with such claims . Yes, it is precedent in the 7th Circuit, but it is not exactly Black Letter Law (well-established case law) in my opinion.

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3 hours ago, Xerxes said:

If the contract language is to have any force, arbitration becomes the only option once so elected.  The standard citibank language relevant to the case in this thread;

The enforcement comes with a MTC or filing with the appropriate arbitration forum.

3 hours ago, Xerxes said:

So, what constitutes sufficient election (or invocation) of this provision?   Is it notice, initiation, moving to compel, or some or all of these?  On what basis would any of these be excluded as sufficient election? 

The 7th Circuit is not the only Court of Appeals that has ruled that the FDCPA is not an enforcement mechanism for matters governed by state and federal law.   Again, state and federal law govern that issue and provide a remedy if a party refuses to arbitrate.   I believe most cardmember agreements include that they're governed by the FAA which states that one must file a motion to compel if a party refuses to arbitrate.  If arbitration is ordered but the other party fails to arbitrate, again, there's a remedy in the form of sanctions (such as a dismissal of the debt collection lawsuit).

 

1 hour ago, Xerxes said:

The party who committed the first breach will not have been determined prior to judgment/award in court/arbitration.

If a consumer claims or counterclaims the debt collector breached the contract and the debt collector raises first breach as a defense, it will have to be ruled upon before a judgment or award can be issued.

In addition, in a debt collection lawsuit (or arbitration if compelled by the court), if the consumer files a counterclaim asserting that the the other party breached the contract, the consumer would be admitting that he opened the account and the JDB owned the account.

3 hours ago, Xerxes said:

Attorneys still don't use arbitration very much, so it is not surprising that there aren't other court rulings.  Yes, it is precedent in the 7th Circuit, but it is not exactly Black Letter Law (well-established case law) in my opinion.

There's plenty of arbitration case law.  So far, I haven't found any court that has ruled that filing a lawsuit after the other party "elected" arbitration violates any law. 

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My view is that such a claim is non-frivolous as a basis for a claim in an arbitration filing.   I disagree that the remedies you state are the exclusive remedies.  But the remedies, damages, or defenses raised in an arbitration case are largely beside the point.

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8 hours ago, BV80 said:

The enforcement comes with a MTC or filing with the appropriate arbitration forum.

For what it's worth, I agree with BV on this one.  To "elect" something is to choose it....to send a letter telling of your INTENT to choose it is not choosing it.  Until you actually choose that option, it has not been elected, and since the contract says that either party MAY elect arbitration, it is also true that a party might only TALK about electing it without ever actually doing so.  Just as courts have ruled in certain situations that a JDB talking about suing is not the same as actually suing, this would apply here in my opinion.  BV is also right about the requirement that there be actual damages, not just hypothetical damages.  Article III of the Constitution deals with the requirements for a party to have proper standing, and the first one on the list is that there must be an actual injury, not just the potential for injury to occur. 

8 hours ago, BV80 said:

If a consumer claims or counterclaims the debt collector breached the contract and the debt collector raises first breach as a defense, it will have to be ruled upon before a judgment or award can be issued.

In addition, in a debt collection lawsuit (or arbitration if compelled by the court), if the consumer files a counterclaim asserting that the the other party breached the contract, the consumer would be admitting that he opened the account and the JDB owned the account.

I only agree in part.  If a consumer concedes that there was an account, that does not automatically mean that the consumer is also admitting that the JDB owns it.  These are two separate points that both should be explored and, if appropriate, questioned.  It's not really the same situation, but the CA Supreme Court ruled in Yvanova v. New Century that the consumer does not owe a debt to the world at large....in other words, even the verified existence of a debt does not grant any JDB that comes along proper standing to sue over that debt.  Plus, if a consumer were to counterclaim that the other party breached first, I would hope that the consumer had proof of this.  In Louisiana, there's a law that says if one party to a contract refuses to perform its obligations under that contract, the other party is excused from performance without penalty.  So, at least down here, showing that they breached it first, or if you're dealing with a JDB, showing that the OC breached it first, excuses you from the requirement to perform.  It also prohibits the other party or its successors from being able to get additional damages from you for your not performing, such as interest, collection fees, and so on.  If you're talking about a counterclaim against the JDB, then yes, I do see your point, but at that point, but generally, such issues should be against the OC when possible.  The JDB actions are probably best kept for FDCPA, UFTPA, or other consumer law claims instead of breach of contract.  As you noted in other conversations, once default occurs, everything changes for the consumer.

7 hours ago, Xerxes said:

My view is that such a claim is non-frivolous as a basis for a claim in an arbitration filing.   I disagree that the remedies you state are the exclusive remedies.  But the remedies, damages, or defenses raised in an arbitration case are largely beside the point.

Understand that you disagree, but when courts have ruled in that manner, it's kind of hard to disagree with that.  If that's the standard that a court uses, nothing else in that situation should matter.  It's also important to note that a judge issues his/her ruling based partially on opinion.  You can present case law and the judge may or may not be persuaded by your case, especially if you present case law from one jurisdiction in another.  The way it is supposed to work is that trial courts are supposed to fall in line with rulings from that state's higher courts.  However, there are plenty of examples, especially if you look at foreclosure cases, where the standard set by appeals or even state supreme courts gets ignored at the district court level.  They are supposed to abide by all judgments of the higher courts, and often do not.  So, we are still dealing with matters of how much a litigant can persuade that judge. 

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In reading all of this I am even more confused than ever. In this case I have received 2 letters from the jdb and there has been no mention of a lawsuit at this point. I was advised on debtorboards to send a leter to the jdb electing arb and then file a claim with JAMS (Im applying for a fee waiver) and include the application papers with my letter to the jdb. Since the debt is only $750 it is predicted that the jdb (PRA) won't pay the fees. 

What I am concerned about is the fact that I have no violations against PRA.  Im going to initiate a claim because saying I am without actually doing it would be a bluff right? Im unsure what to put on my application as to why im filing. I can't just say "to keep this out of court" or can/should I?

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8 minutes ago, nickysduck2 said:

In reading all of this I am even more confused than ever. In this case I have received 2 letters from the jdb and there has been no mention of a lawsuit at this point. I was advised on debtorboards to send a leter to the jdb electing arb and then file a claim with JAMS (Im applying for a fee waiver) and include the application papers with my letter to the jdb. Since the debt is only $750 it is predicted that the jdb (PRA) won't pay the fees. 

What I am concerned about is the fact that I have no violations against PRA.  Im going to initiate a claim because saying I am without actually doing it would be a bluff right? Im unsure what to put on my application as to why im filing. I can't just say "to keep this out of court" or can/should I?

hi,

 

I tried to cover this above, but it may have gotten lost in the discussion.  You do not need violations, especially with the low amount of money that is involved here.  You mentioned that they are trying to collect around $750, am I right?  The cost of arbitration is not just the filing fees.  They will have to pay for every hearing.  The total is likely to go into multiple thousands of dollars, and PRA would have to spend all that money just to try to collect $750 or so.  Financially, it's not worth their time.  Arbitration is often effective as a way to get them to simply go away and leave you alone.  You don't need to rack up violations for that.  Your argument could be nothing more than that PRA needs to prove it has the lawful authority to collect this alleged debt. 

Also, it's PRA....while I'm sure that they have most likely had some accounts somewhere in which they did not violate laws, those are probably the exception rather than the rule.  PRA is a bottom feeder, no question. 

 

Here's a recent thread in this same forum where PRA even won a trial court judgment against the consumer....the consumer raised arbitration on appeal because he was not permitted the chance to in justice court.  PRA, having already won the judgment, STILL dismissed its own case once they got his MTC letter......

http://www.creditinfocenter.com/community/topic/328405-sued-by-portfolio-recovery-in-texas/#comment-1350539

 

Its in Texas, but PRA did not want to go to arbitration over $1000 or so in that case. 

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3 hours ago, kraftykrab said:

I only agree in part.  If a consumer concedes that there was an account, that does not automatically mean that the consumer is also admitting that the JDB owns it.  These are two separate points that both should be explored and, if appropriate, questioned.  It's not really the same situation, but the CA Supreme Court ruled in Yvanova v. New Century that the consumer does not owe a debt to the world at large....in other words, even the verified existence of a debt does not grant any JDB that comes along proper standing to sue over that debt.  Plus, if a consumer were to counterclaim that the other party breached first, I would hope that the consumer had proof of this.  In Louisiana, there's a law that says if one party to a contract refuses to perform its obligations under that contract, the other party is excused from performance without penalty.  So, at least down here, showing that they breached it first, or if you're dealing with a JDB, showing that the OC breached it first, excuses you from the requirement to perform.  It also prohibits the other party or its successors from being able to get additional damages from you for your not performing, such as interest, collection fees, and so on.  If you're talking about a counterclaim against the JDB, then yes, I do see your point, but at that point, but generally, such issues should be against the OC when possible.  The JDB actions are probably best kept for FDCPA, UFTPA, or other consumer law claims instead of breach of contract.  As you noted in other conversations, once default occurs, everything changes for the consumer.

The relinquishment of the requirement to perform based upon a breach of contract is basic contract law.  

Whether you're the plaintiff bringing a lawsuit or the defendant filing a counterclaim, both the plaintiff and the defendant would have to be a party to that contract in order for a breach of contract to be cause of action against the other party.   Even if you assert the OC breached the contract first, the JDB would still have to be a party to it for you to sue the JDB for breach of contract.

Now, if you use first breach by the OC as a defense (not a counterclaim) in a debt collection lawsuit brought by a JDB, you would be admitting that the account is yours and would eliminate a possible defense that the JDB has not proven that you opened and used the account. 

As you stated, you'd need some sort of proof that the OC breached the contract.  Merely making the claim with no record of a dispute and especially if you continued using the card and making payments would probably not succeed.

 

 

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47 minutes ago, BV80 said:

The relinquishment of the requirement to perform based upon a breach of contract is basic contract law.  

Whether you're the plaintiff bringing a lawsuit or the defendant filing a counterclaim, both the plaintiff and the defendant would have to be a party to that contract in order for a breach of contract to be cause of action against the other party.   Even if you assert the OC breached the contract first, the JDB would still have to be a party to it for you to sue the JDB for breach of contract.

Now, if you use first breach by the OC as a defense (not a counterclaim) in a debt collection lawsuit brought by a JDB, you would be admitting that the account is yours and would eliminate a possible defense that the JDB has not proven that you opened and used the account. 

As you stated, you'd need some sort of proof that the OC breached the contract.  Merely making the claim with no record of a dispute and especially if you continued using the card and making payments would probably not succeed.

Thanks for all the info. I am still going to take my chances on arb. I still have not received a 2015 of the citibank agreement despite a hundred google searches but filed a complaint with a consumer finance website and they called me and said Home Depot was mailing me one but who knows how long that will take. In the event that PRA does pay thousands of dollars in arb to collect such a small amount will a repayment plan be something we can negotiate in arb or is a judgement entered without negotiations should I lose?

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1 minute ago, nickysduck2 said:

Thanks for all the info. I am still going to take my chances on arb. I still have not received a 2015 of the citibank agreement despite a hundred google searches but filed a complaint with a consumer finance website and they called me and said Home Depot was mailing me one but who knows how long that will take. In the event that PRA does pay thousands of dollars in arb to collect such a small amount will a repayment plan be something we can negotiate in arb or is a judgement entered without negotiations should I lose?

I never meant to imply that you shouldn't arbitrate.  My comments had nothing to do with that.

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1 hour ago, BV80 said:

The relinquishment of the requirement to perform based upon a breach of contract is basic contract law.  

Whether you're the plaintiff bringing a lawsuit or the defendant filing a counterclaim, both the plaintiff and the defendant would have to be a party to that contract in order for a breach of contract to be cause of action against the other party.   Even if you assert the OC breached the contract first, the JDB would still have to be a party to it for you to sue the JDB for breach of contract.

Now, if you use first breach by the OC as a defense (not a counterclaim) in a debt collection lawsuit brought by a JDB, you would be admitting that the account is yours and would eliminate a possible defense that the JDB has not proven that you opened and used the account. 

As you stated, you'd need some sort of proof that the OC breached the contract.  Merely making the claim with no record of a dispute and especially if you continued using the card and making payments would probably not succeed.

 

 

These are good points....a consumer needs to make 100% certain that he really does have a claim for the OC breaching first, or it will not end well for them in court.  Admitting that the account is yours is only one portion of this, but one that could lose the case.  It depends on how convincing the JDB is with its "proof" of ownership and chain of title, combined with how much the consumer questions that "evidence". 

 

Also, I don't recall exactly where at the moment, but I did see a credit card debt case where the JDB successfully argued that it was a party to the contract because as the successor to the OC, they gain all the rights and responsibilities therein.  I don't know if I've ever seen of a consumer making the same argument in the opposite direction--that the JDB was a party to the contract by succession.  I know that in anything that's covered under RESPA, which obviously does not apply to a credit card, the JDB assumes all liability for the OC's actions if the debt was acquired after default occurred.  Obviously that does not help in this specific case...

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23 hours ago, nickysduck2 said:

In reading all of this I am even more confused than ever. In this case I have received 2 letters from the jdb and there has been no mention of a lawsuit at this point. I was advised on debtorboards to send a leter to the jdb electing arb and then file a claim with JAMS (Im applying for a fee waiver) and include the application papers with my letter to the jdb. Since the debt is only $750 it is predicted that the jdb (PRA) won't pay the fees. 

What I am concerned about is the fact that I have no violations against PRA.  Im going to initiate a claim because saying I am without actually doing it would be a bluff right? Im unsure what to put on my application as to why im filing. I can't just say "to keep this out of court" or can/should I?

You might have trouble enforcing arbitration in TN if PRA files suit in small claims court, because citibank agreements have a small claims carve out.  Check if PRA typically files suit in what is considered small claims court in your jurisdiction.  Also check if there is a distinct small claims division of the TN General Sessions Court, or if it is all consolidated.  Check if a small claims complaint has to be filed in a particular way that is different from other complaints in the TN General Sessions Court.

If PRA typically files complaints in what is considered small claims court in your jurisdiction, then the whole issue about whether you should assert your right to arbitration in a communication to PRA (without initiating) becomes moot.  Then, the only possibility to enforce arbitration is to initiate with the arbitration forum before PRA files suit and hope that jurisdiction is established in the arbitration forum before they file suit.

The first step is to research whether PRA typically files suit in what is considered small claims court in your jurisdiction.  Has PRA made a discounted settlement offer?

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