tvaughn

In arbitration

336 posts in this topic

I'll try to keep this as brief as possible, but I really need some help.  

I was sued by (name deleted) for an alleged debt owed to (name deleted). I filed a MTC arbitration and we are now in arbitration.  We already had our initial conference call between myself, (name deleted) and the arbitrator.  (Name deleted) wanted the hearing to be on the papers and I wanted an in-person hearing.  Long story short, I have been granted an in-person hearing.  Second conference call is scheduled for today, but I'm not sure what it is going to entail and what I should be saying and/or asking for.  Any advice is greatly appreciated.

Edited by BV80
Per OP's request

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I assume you are same person with an eight page thread about this on the "other" site? As I recall, you were advised to purse arbitration, as the cost would make the plaintiff go away. Once that didn't happen, the advice dried up?

 

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6 minutes ago, Goody_Ouchless said:

I assume you are same person with an eight page thread about this on the "other" site? As I recall, you were advised to purse arbitration, as the cost would make the plaintiff go away. Once that didn't happen, the advice dried up?

 

Yup - that's why I'm here looking for advice.  I still need help but I don't seem to be getting much of it over there unfortunately.  

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That's typical - it often turns into "blame the victim" when the stock advice fails. 

I went back and reviewed your case and I can kind of see where it went off the rails. You did everything right to the point that a debt buyer would have folded long ago. The problem is that to have any chance of scaring off an OC, at this point, requires arguments that will compel the arbitrator to keep the meter running, so to speak. There are some people so experienced at arbitration (FistHardCheese, for example) that they use it against everyone - phone company, cable provider, etc. Others enjoy the "game" so much that they argue every little point to a ridiculous degree of farce (like the story from Peace Talks during the Korean War where separate meetings were called to discuss the size of flags in the conference room - while people were dying).

Other's may chime in, but your best chance here may be to go with the custodian of records approach and be a stickler for rules, in-person hearings and JAMs Appeal. If (deleted) keeps playing at that point, you are doomed regardless. Your only real hope is that granting an in-person hearing may lead them to decide to make a deal.

Edited by BV80
Per OP's request
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Thank you.  Well it certainly seems like they are willing to keep moving forward since the arbitrator already ruled that I am entitled to an in-person hearing and they have not offered any sort of settlement. 

Anyway, the 2nd conference call didn't go so well in my opinion.  The arbitrator asked if anyone thought we needed more than one day to settle this.  I said yes and they said no, and the arbitrator is inclined to agree with them; howevet, I have a week to make my case in writing for why I think we need more than one day.  Not quite sure what to do about that.  

Also, I agreed to submit a pre-hearing memorandum stating my case.  That is due three weeks before the hearing, which hasn't been scheduled yet.  I don't know if should have agreed to that or not because it is not required. 

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Not really comfortable posting the exact amount here, but I did PM you the amount because I certainly understand that it's relevant to the discussion.  For everyone else here, let's just say that it's high enough that it was worth it for them to sue me; however, from what I understand it's not high enough to offset the attorney's fees and the cost of an in-person arbitration hearing.

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On 6/23/2017 at 9:22 AM, tvaughn said:

Not really comfortable posting the exact amount here, but I did PM you the amount because I certainly understand that it's relevant to the discussion.  For everyone else here, let's just say that it's high enough that it was worth it for them to sue me; however, from what I understand it's not high enough to offset the attorney's fees and the cost of an in-person arbitration hearing.

The law firm is likely hired on a flat rate annual fee so that is not a factor for (deleted).  Not only will they get the attorney fees but post judgment interest.  ALL (deleted) has to do is let that judgment sit for a while and generate interest to offset the arbitration cost.  It is also possible that they have negotiated a flat rate fee with JAMS for these cases as well which would limit their costs.  If you read other forums (deleted) is typically VERY aggressive in arbitration regardless of the cost because it is an easy win for them.  There are multiple stories of consumers who used this strategy to have (deleted) not only see it through but also appeals.

The arbitration strategy works well with junk debt buyers.  All it does with an original creditor who is willing to go through with it is delay the inevitable.  

Edited by BV80
Per OP's request

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@Clydesmom:  Thank you for your reply.  The info you posted is certainly not something that was shared with me on the other board, so I really appreciate you taking the time to post.  The other board kind of made it sound like once I filed in JAMS, the other side would run away with their tail between their legs.  That clearly hasn't happened here and although I'm certainly not giving up, they do seem willing to go the distance.  I'm willing to go the distance as well though, and I will certainly be looking for any violations they may have committed thus far.  That seems to be the prudent thing to do.

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@tvaughn

I've never been involved in consumer arbitration or even elected it, so my comments are strictly my personal opinion.  

While JDBs will usually dismiss a lawsuit rather than arbitrate,  OCs, especially (deleted) and Discover Bank, are far more likely to agree to arbitrate.   I don't know why you were not warned of that possibility. 

On occasion, posters have been told that they can "run up" the other party's arbitration fees.   While I'm sure that's true, I don't see it as a reason for a creditor to offer a more favorable settlement than it would have before arbitration commenced.

1.  If a creditor doesn't want to spend money, why would it agree to arbitrate and pay the filing fee?

2.  If a creditor has the necessary documentation to prove it's claims, what would motivate it offer a lower settlement when it has already lost more money due to the cost of arbitration?

3.  Certain legal fees are tax deductible.   You can bet your sweet bippy (see * below) that the creditor is going to deduct every cost allowed.   As a result, it's not costing the creditor as much as posters have been led to believe.

4.  In addition to number 3, a creditor can recoup the cost of arbitration with a few default judgments in states where wage garnishment is allowed.

I absolutely agree that arbitration is a deterrent to lawsuits filed by JDBs.  However, when sued by an OC, a consumer who visits this site should be informed of the possibility that the creditor will arbitrate and that a more favorable settlement offer will not necessarily be the outcome.

In other words, just as in a lawsuit with an OC, a consumer could spend his time fighting and end up owing the full amount.   There is no guarantee that costing the creditor more money  will result in a lower settlement offer.

* The phrase "bet your sweet bippy" originated on Rowan & Martin's Laugh-In  which was televised from 1968 - 1973.   I do not admit that my knowledge of the phrase is a result of my viewing the television show during the referenced years.   Anyone who makes reference to those dates and my age will be beaten with a wet noodle.

 

Edited by BV80
Per OP's request
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@BV80 - thank you for your thoughtful post.  What you stated was definitely not made clear to me at all going into this arbitration.  Like I said, they made it sound like the lawyers would lose their minds when I filed for arbitration. 

While I do admit that the lawyers seem more than a little salty about it, I don't get the impression that they are scared to move forward in any way. 

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20 minutes ago, tvaughn said:

@BV80 - thank you for your thoughtful post.  What you stated was definitely not made clear to me at all going into this arbitration.  Like I said, they made it sound like the lawyers would lose their minds when I filed for arbitration. 

While I do admit that the lawyers seem more than a little salty about it, I don't get the impression that they are scared to move forward in any way. 

Bless your heart.  Most of us here knows what it feels like to be confused and/or caught between a rock and a hard place.

I don't see how lawyers would be scared to move forward if the OC says to do so because the lawyers are not liable for the OC's decisions.

You do what is best for you based upon the time and effort you're willing to expend and/or what they can or cannot do to you  if they get a favorable ruling. 

That being said, if the lawyers violate the FDCPA, you have a claim against them but not against the OC.

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On 6/23/2017 at 11:54 AM, tvaughn said:

The other board kind of made it sound like once I filed in JAMS, the other side would run away with their tail between their legs.

They ALWAYS say stuff like that and ignore the numerous posts which show the exact opposite.  One poor poster over there was warned by myself and a few others that Discover was not going to back down in arbitration and the same schmucks that are telling you this garbage told her the same thing.  Discover walked all over her and won easily.  The shame was she had a good defense had she just turned her sister in for identity theft.

On 6/23/2017 at 11:54 AM, tvaughn said:

I'm willing to go the distance as well though, and I will certainly be looking for any violations they may have committed thus far.

Not as easy to pin FDCPA violations on a law firm representing their client in litigation/arbitration.  Especially arbitration.  The rules are way more relaxed than those in court.  FDCPA won't apply to (deleted) at all.  

On 6/23/2017 at 5:19 PM, BV80 said:

You do what is best for you based upon the time and effort you're willing to expend and/or what they can or cannot do to you  if they get a favorable ruling. 

THIS^^^^^^^^^^^^^^^^^^^^^^^^^^^

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On 6/23/2017 at 5:19 PM, BV80 said:

Bless your heart.  Most of us here knows what it feels like to be confused and/or caught between a rock and a hard place.

I don't see how lawyers would be scared to move forward if the OC says to do so because the lawyers are not liable for the OC's decisions.

You do what is best for you based upon the time and effort you're willing to expend and/or what they can or cannot do to you  if they get a favorable ruling. 

That being said, if the lawyers violate the FDCPA, you have a claim against them but not against the OC.

@BV80:  You are 100% correct - I can only do so much here and it's not like I can devote 100% of my time to this.  Like everyone else, I have a life and other problems I have to deal with and although this is certainly very important to me, I cannot ignore everything else that I have going on.  I hate that I'm in this predicament and it's totally my fault, but I'm hoping to get a favorable outcome with the help of the people here.  I'm so thankful that you and the others are willing to take the time to help me, because I know you have lives as well.

 

All I can do at this point is keep updating the thread and listening to the advice of people who have far more experience in this than me.

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On 6/23/2017 at 8:24 PM, Clydesmom said:

They ALWAYS say stuff like that and ignore the numerous posts which show the exact opposite.  One poor poster over there was warned by myself and a few others that Discover was not going to back down in arbitration and the same schmucks that are telling you this garbage told her the same thing.  Discover walked all over her and won easily.  The shame was she had a good defense had she just turned her sister in for identity theft.

Not as easy to pin FDCPA violations on a law firm representing their client in litigation/arbitration.  Especially arbitration.  The rules are way more relaxed than those in court.  FDCPA won't apply to (deleted) at all.  

THIS^^^^^^^^^^^^^^^^^^^^^^^^^^^

The people at DB definitely seem to know their stuff, but I got the feeling that they were kind of leaving me on my own after a certain point.  I get it because it's not like they are under any obligation to help me or anyone else, but it was more than a little disconcerting because I really needed (and still need!) the help.

I'm not even sure how to handle any FDCPA violations by (deleted) at this point.   I guess I should first focus my efforts on trying to explain why I think I need more than 1 day for this hearing.

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On 6/26/2017 at 9:27 AM, tvaughn said:

The people at DB definitely seem to know their stuff,

They do to a certain extent.  MOST of that knowledge is based on how things USED to go in these cases.  The climate has definitely changed when it comes to the courts and specifically arbitration.  There are some hardcore members over there who refuse to acknowledge that as time has passed things have evolved and their strategy from years ago is not necessarily effective.  (deleted) and Discover have both not shied away from arbitration and it doesn't send them running like it does a JDB.  The defense has to be very different when the offense is not the least bit worried. 

Their second major flaw is the assumption that EVERY attorney is automatically an idiot.  Like every profession the law has its good and bad apples and they are not the least bit equipped to deal with things when the attorney isn't the moron they painted them to be and simply fade away to avoid reality leaving posters on their own.

On 6/26/2017 at 9:27 AM, tvaughn said:

I guess I should first focus my efforts on trying to explain why I think I need more than 1 day for this hearing.

I would start there.  Any alleged violations by the law firm can be handled separately as a Federal claim later if need be.  The problem is even if there are violation(s) the maximum fine is $1k  and it won't offset the debt.  There is a post on DB now where there were valid violations and the fine was $1500 which the law firm simply deducted from the arbitration award!  And that was an (deleted) case.  Be forewarned:

http://www.debtorboards.com/index.php/topic,28232.msg291173/topicseen.html#new

" My TCPA claims got denied, but my FDCPA claim got me an award of $1500.
This $1500 got subtracted from (deleted) counterclaim for the account balance owed.  (deleted) filed a motion for the court to confirm the original counterclaim award only. "

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@Clydesmom:  I really wish I knew a lot of this stuff before I got into this whole thing, although it probably wouldn't really have changed my approach much since I didn't (and still don't) have the money to pay the bill anyway.  I guess some people may enjoy this process and look at it as a game, but this is not fun for me at all.  Even the worst of attorneys will likely have the upper hand in cases like this, so I don't understand why certain forum users (not on here) would act so cocky or confident.  Maybe if I had some past experience I would be in a better position, but if I had past experience I'd like to think that I would have learned my lesson and not gotten myself into the same mess.

Lesson learned this time around, but I still have to find my way out of this situation first.  Definitely overwhelming though.

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Discover and (deleted) will NEVER back down from arbitration. I've seen them go after people for as little as 500.00.  Personally I would never go to arbitration with any original creditor, as they put in the Arbitration clauses as a protection against class actions suits, but take the good with the bad when they collect. Now most OC's (not discover or (deleted) will just sell off your debt to a junk buyer, but the occasional one may be willing to go all the way. Other factors are if you have more than 1 account with them, they are more likely to, and will work to combine the other accounts if they are in collections also.  Opposite side of the coin, I've only seen 2 Junk dealers go into arbitration. one lost, and one settled very quickly. Some can't even go because the companies like JAMS or AAA wont let them arb due to owing back money. Or they want all the money upfront. JBD's are not willing to take that chance.

Edited by BV80
Per OP's request

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I would always choose arbitration over court, even with OCs like (deleted), despite what "horror stories" people like Clydesmom want to go on about.  If you wrap them up in arbitration properly for a long period of time, you can get a favorable settlement.   If (deleted) violates the FDCPA in the process (which seems to happen more often than not), then a new arbitration case should be filed against them for that.  Each new violation by the attorney or the OC should result in a new arb case being filed.  That is how you properly fight the OC down to a reasonable settlement.

(Deleted) has in most of their arbitration clauses the right to appeal to a 3-arb panel.  This is to your benefit and you must use this.  But it requires you going through the first arb hearing and "losing" first.  So in the mean time, you want to bog them down with discovery and have them provide a witness to testify to the records they present at the hearing (the attorney can not testify to the accuracy or authenticity of any statements or records they present).  Object to anyhting they do counter to the consumer rules and ask for a hearing on your objection (at least a phone hearing).  These are the strategies that work for arbitration.  Do not let them roll right through to the hearing,  be an obsticle in their way at every step.  Then force the appeal and do everything all over again.  The appeal is where the costs for (deleted) reach $100k or more.  They will be more willing to deal and settle at that point.  The entire thing will take a long time, perhaps over a year.  So relax and just do what you are supposed to do and let it play out for a while.

Edited by BV80
Per OP's request
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@fisthardcheese:  Thank you for your detailed and helpful reply!  At this point the next step in the process for me is to put an email together making my case for why I think the in-person hearing will take more than one day (I'm not sure if it will or not but I have to at least make the case).  

Any help with that is greatly appreciated as I have a feeling the arbitrator is going to rule against me regardless.

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On 6/27/2017 at 12:01 PM, fisthardcheese said:

  If (deleted) violates the FDCPA in the process (which seems to happen more often than not), then a new arbitration case should be filed against them for that.  Each new violation by the attorney or the OC should result in a new arb case being filed.  That is how you properly fight the OC down to a reasonable settlement.

How does a FDCPA violation against (deleted) affect the OC?

Edited by BV80
Per OP's request

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On 6/29/2017 at 4:46 PM, BV80 said:

How does a FDCPA violation against (deleted) affect the OC?

It doesnt. It causes their attorney to be side tracked, frustrated and on tilt. I consider that an advantage, especially if it causes the attorney to make a mistake.

Edited by BV80
Per OP's request

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Just now, fisthardcheese said:

It doesnt. It causes their attorney to be side tracked, frustrated and on tilt. I consider that an advantage, especially if it causes the attorney to make a mistake.

The point is that it doesn't affect the OC.    Therefore, it has nothing to do with fighting the OC down to a reasonable judgment.

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Just wanted to post a quick update to let everyone know that my arbitration hearing is scheduled for October.

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