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Citibank Small Claims Arb Exclusion


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Unfortunately I am back in small claims.  After receiving a notice in 2015 from the same law firm regarding a Citibank card, I send a DV (within 30 days).  I never heard back.  This account went through several players and not one would budge on settlement payment/plan.  So I forgot about it. 

In January 2017 I suddenly received a package in the mail.  Please see the attached below. 

I am thinking I may have yet another violation of the FDCPA - the DV cover letter states "Plaintiff Citibank" and Defendant "Me".  Nothing was filed until March 09 2017.  The amount on the complaint is $4,500 and the filing fee.  I have to answer by tomorrow and am going to do this once I post here. 

I want to to a MTC again but, how does the Citibank SC exclusion work?  I read that "
Usually the language in a  credit card agreement that has the small claims exception is ambiguous, and as many courts have stated, any ambiguity in a contract is construed against the maker.

The paragraph after the small claims language is thus (2017 agreement):
Arbitration limits• Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court.
• We won’t initiate arbitration to collect a debt from you unless you choose to arbitrate or assert a Claim against us. If you assert a Claim against us, we can choose to arbitrate, including actions to collect a debt from you. You may arbitrate on an individual basis Claims brought against you, including Claims to collect a debt.

From a 2011 CA - What about Claims filed in Small Claims Court? Claims filed in a small claims court are not subject to arbitration, so long as the matter remains in such court and advances only an individual (non-class, non-representative) Claim.
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.

Thank YOU!!!!!

The "DV" package contained the following:

1. Bill of Sale - on a blank 8 1/2x11 sheet of paper - no logos, no notary, no seal, no nothing! and 3 statements( 2 copies of each) 3 affidavits (see below as I typed them out) and a computer print out with last 4 of SSN, last payment date, charge off date and name/address/DOB

2.     Affidavit from Citibank “Document Control Officer” Susie DeSha, stating my account was sold to Atlantic – dated , 2015
3.     Affidavit of Angela Campbell – Atlantic Credit Atty. Relationship mgr.  , 2016 – State of NH


“1. I am employed as an Attorney Relationship Manager by Atlantic Credit & Finance, Inc (“ACF”) servicer of this account on behalf of ATLANTIC CREDIT & FINANCE SPECIAL FINANCE UNIT, LLC (“Plaintiff”). I am a competent person over the age of eighteen years of age, and I am authorized to make this affidavit on Plaintiff’s behalf.  In this affidavit, I make my statements about this account based upon my personal review and knowledge of those account records maintained by ACF on Plaintiff’s behalf and that are pertinent to those statements (“Pertinent Records”).
2.  Plaintiff is current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to defendant's CITIBANK NA account xxxxxxxxxxxx- (herein "the account").

 3. As a result of Plaintiff’s purchase of the account, ACF acquired certain account records from the seller and incorporated those records into ACF’s own permanent business records.  Those acquired and incorporated records are kept by ACF in the regular course of business on behalf Plaintiff. 

4. The acquired and incorporated records are treated as trustworthy and accurate, and are relied upon by Plaintiff and ACF in purchasing and servicing this account because, the original creditor was required to keep careful records of the account at issue in this case as required by law and/or suffer business loss. 

5. I have access to and have reviewed the Pertinent Records (including pertinent electronic records) concerning the account maintained by ACF.  The electronic records reviewed consist of data acquired from the seller when Plaintiff purchased the account, together with records generated by ACF in connection with servicing the account since the day the account was purchased by Plaintiff.  In addition, I reviewed the documents that are attached to this affidavit.

6. As set forth in the records attached hereto, on or about X/X/2015, the account was sold from Citibank, N.A. to Atlantic Credit & Finance Special Finance Unit, LLC.  If applicable, the account was then sold to the following debt buyers in order of occurrence on or about:

7. Attached hereto are the following records regarding the account:


Bill of Sale(s) and Assignment and/or Affidavit(s)of Sale for the above referenced sales) of the account.

Seller data sheet reflecting the individual account data extracted and printed from electronic records provided to the seller to ACF pursuant to the Bill of Sale/Assignment in connection with the sae=le of the account to Plaintiff. 

8. The documents attached hereto are true and correct copies of the originals, being a reproduction of the records on file on behalf of Plaintiff based upon my review, except to the extent that confidential and privileged information anf/or personal identifying information is omitted or redacted as required by local rules, and applicable state and federal law. 

 

4.     Affidavit of Angela Campbell – Atlantic Credit Atty. Relationship mgr.  , 2016 

“1. I am employed as an Attorney Relationship Manager by Atlantic Credit & Finance, Inc and have access to pertinent records of this account maintained on behalf of Plaintiff by its agents.  I am a competent person over the age of eighteen years of age, and make the statements herein based upon personal knowledge of those account records maintained on plaintiff's behalf. Plaintiff is current owner of, and/or successor to, the obligation sued upon, and was assigned all the rights, title and interest to defendant's CITIBANK NA account xxxxxxxxxxxx- (herein "the account"). In connection with plaintiff's acquisition of the account, relevant account records and information have also been by the original creditor or its agents/assigns. I have access to and have reviewed the records pertaining to the account and am authorized to make this affidavit on the plaintiff's behalf.

2.  I am familiar with the manner and method by which the business records I have reviewed are created and maintained on behalf of the plaintiff pertaining to this account.  The records are kept in the regular course of business. It was in the regular course of business for a person with knowledge of the act or event recorded to make the record or data compilation, or for a person with knowledge to transmit information thereof to be included in such record. In the regular course of business, the record or compilation was made at or near the time of the act or event. 

3.  The account shows that the defendant(s) owe(s) a balance of $XXX.xx, based upon my review of business records kept on behalf of Plaintiff, Defendant(s) opened a CITIBANK, N.A, account, and the account was charged off on X/X/2015

4.  Those business records that I have reviewed do not indicate that the defendant is a minor or incapacitated person.

5.  Attached hereto is a true and correct copy of a statement of account, bill(s) of sale and/or billing statement(s) relating to this account, as reflected in plaintiff's business records and/or records provided to plaintiff by original creditor (or its agents/assigns) in connection with the plaintiff's purchase and/or assignment of the account.

6. The documents attached hereto are true and correct copies of the originals, except to the extent that confidential and privileged information is omitted or redacted and personal identifying information is omitted or redacted as required by local rules, and applicable state and federal law.

 

 

CITI-DV.png

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Yes, Atlantic is the Plaintiff in the Complaint and Niederman represents Atlantic. The packet was (I am to assume) for fulfillment of the DV? But that request I made for DV was over a year ago! 
Suit filed a month or so after the packet received.

I filed my answer last night - Deny

Same firm that was representing Midland - and sent over the DV package after they sued me; asking to settle and not go to court....

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4 hours ago, NH-Warrior said:

Yes, Atlantic is the Plaintiff in the Complaint and Niederman represents Atlantic. The packet was (I am to assume) for fulfillment of the DV? But that request I made for DV was over a year ago! 
Suit filed a month or so after the packet received.

I filed my answer last night - Deny

Same firm that was representing Midland - and sent over the DV package after they sued me; asking to settle and not go to court....

Make sure the lawsuit had not been filed with the court at the time the letter was mailed.  If it wasn't, the letter violates the FDCPA because there was no plaintiff and defendant.

Even if the lawsuit had been filed when the letter was mailed, I believe you'd still have an FDPCA violation because Citibank would not be the plaintiff.

 

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Also, if your DV request was sent within 30 days of recieving your first collection attempt by Atlantic, then the fact that they filed suit before providing this validation is also an FDCPA violation.

If this were me, I would call several consumer attorneys in my area to run this information by them.  I would see if any of them agree to take your case on contengiency and file either a counter claim or a new federal suit against Atlantic for their multiple FDCPA violations.

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15 minutes ago, fisthardcheese said:

Also, if your DV request was sent within 30 days of recieving your first collection attempt by Atlantic, then the fact that they filed suit before providing this validation is also an FDCPA violation.

If this were me, I would call several consumer attorneys in my area to run this information by them.  I would see if any of them agree to take your case on contengiency and file either a counter claim or a new federal suit against Atlantic for their multiple FDCPA violations.

So far, it appears that they had not filed suit before sending validation.  Along with the fact that the letter falsely references a plaintiff and defendant due to no lawsuit at the time, the reference to "Citibank" as the "plaintiff" is additionally false because the account had already been sold to Atlantic. 

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8 minutes ago, BV80 said:

So far, it appears that they had not filed suit before sending validation.  Along with the fact that the letter falsely references a plaintiff and defendant due to no lawsuit at the time, the reference to "Citibank" as the "plaintiff" is additionally false because the account had already been sold to Atlantic. 

Thanks, I read it wrong the first time.  I see now, suit filed AFTER dv packet.   But I agree with the violations in the letter, so I would still speak with some consumer attorneys to see if any can help OP deal with this on contingency.

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@fisthardcheese and @BV80 Thank you again :) Yes, they filed on 09 March, 2017 - the DV was sent/postmarked 10 January, 2017.  The original DV request was in May of 2015!  

This is the same law firm that send me the (for Midland) DV and offered settlement so we wouldn't have to go to court; 40 days AFTER they filed suit and while we were waiting on MTC judgement.  Now that doesn't matter to this instance but, I think that there is a pattern here :( UGH.

I plan to file a MTC for this as well but wonder if I have a chance with the way citibank arbitration is laid out in the card agreement? I had thought of doing a counterclaim with my answer to the suit but, I'm still trying to wrap my head around that. 

** Just noticed they filed the Atlantic suit 2 days after they sent me misleading DV for the Midland action as we were awaiting the MTC judgement on Midland.  they are trying topull a fast one me thinks.  I did forget all about the Atlantic suit being filed as I was concentrating on Midland.  All the card companies have to do is just work with people!!

Thanks!

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I know elsewhere it seems to say that claims filed against you can be arbitrated, but I think the consensus is that Citibank has a small claims court carve out:

"Arbitration limits • Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court."

Is that correct? @fisthardcheese? @BV80

In your case, however, if you could get a lawyer to counterclaim for FDCPA damages and attys fees, you might have some leverage. www.consumeradvocates.org

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Before filing an MTC, I would speak with as many consumer attorneys as possible.  The fact that you have an FDCPA violation may spark one of them to help you with no upfront cost.  I have had some creative attorney arrangements in the past when I had solid violations.  The attorneys won't generally do defense work free, but if they feel like your FDCPA violation is solid, they usually do a reverse-contengency, where they will agree to defend you in the suit and use any award or settlement to cover their flat-rate fee for the defense work.  In the end you may not get a check, but you may get a free attorney to make this lawsuit go away.  I would prefer this over arbitration with a Citi agreement that has a troublesome small claims language.

You can still try to get your MTC granted if all else fails, but if they call you on the "small claims" language and the judge agrees with them, then you will likely be denied.  If you can't find an attorney to help you out, I believe it's worth a shot.  But I would also be prepared with a plan B on the chance your MTC is denied based on that language in the agreement.

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Just an update - I have filed for a jury trial so that we actually go by the rules of evidence and be able to do full discovery.  Again, I will keep you all posted :)

Is it important that I keep updating so that others might glean some info.?  I don't want to keep posting useless info if it's not, well, useful ;)

Thanks all!

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@fisthardcheese I filed myself for the move to Superior Court - which is actually filing for a Jury Trial here.  Once you request a jury trial, if the amount in dispute is over $1,500.00, then they move the case to Superior Court.  When the amount exceeds $1,500 then you are entitled to due process and all the rules of evidence apply.  And I agree, having someone there to guide and move this along is going to be great.  I don't have time to really do al lthe research that would be needed but I am going to give it a go so that I am in the know!

 I really dislike how Small Claims has been coopted by JDBs.  There should be a move to have 2 separate SC courts, one for the intended cases - XYZ contractor didn't get paid by client and whatnot - and one for the JDBs. 

Thanks for all your help and thanks to the others too :)  I will post as we go through this!

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