tvaughn

In arbitration

336 posts in this topic

20 hours ago, nobk4me said:

The court becomes aware of the arb award when one of the parties files a petition with them.  In your case, it would be a petition to vacate the award.  For the creditor, it would be a petition to confirm the award as a judgment.

I would have to look into this, because it seems weird to oppose an award in 90 days when the other side has a year to confirm.

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1 hour ago, fisthardcheese said:
 

I would have to look into this, because it seems weird to oppose an award in 90 days when the other side has a year to confirm.

Per the FAA, this is correct.  Hence the reason the law firm for the Plaintiff waits at least 90 days to attempt to confirm the award. 

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Here's what likely will happen next (this goes way back to the Wolpoff/MBNA/NAF days)...

1) AMEX sends the account to a law firm in your state (assuming their Arb counsel does not have an office in your state).

2) You'll get a few letters demanding payment of the award from local counsel.

3) At least 90 days, but no more than one year (per the FAA) will pass.  

4) You'll receive a summons for a Petition to Confirm, which is essentially a summary hearing.  Absent extreme scenarios (documentable bias/fraud), the court must confirm the award.

Has AMEX offered to settle?  My guess is they may be so pissed at spending 20k+ in getting the award that they will settle for nothing less than the full amount of the award (perhaps something like 60-90% may be possible if you can get a consumer attorney to fight the petition).

I was in a similar spot with MBNA/NAF about a decade ago.  Found a good NACA attorney who was somewhat inexperienced but very willing to dig in and fight.  We wound up settling for a little over half the arb award, paid off over the span of about two years.  

 

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On 2/7/2019 at 3:43 PM, tvaughn said:

Wouldn’t that 90 day clock only start when/if a judgment is entered by the court?  Right now it’s just an arb award. 

How To Calculate The Appeal Period From An Arbitration Award

If you oppose pursuant to FAA statutes, the time to oppose is actually three months (which might be distinct from 90 days).  See link above.

Was the award only for claims and not costs and attorney fees?

If filing a new federal action in order to vacate the award, you might want to use an attorney.

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3 months is to vacate the award.  But OP doesn't necessarily have to do that.  He can simply oppose confirmation of the award when they file to do so.  OP has documented evidence that the arbitrators did not follow the forum rules regarding costs and other issues, so that evidence is what I would use to prevent a confirmation. Even if the award is not vacated, a denial of confirmation makes the award almost useless anyway.

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13 minutes ago, fisthardcheese said:

3 months is to vacate the award.  But OP doesn't necessarily have to do that.  He can simply oppose confirmation of the award when they file to do so.  OP has documented evidence that the arbitrators did not follow the forum rules regarding costs and other issues, so that evidence is what I would use to prevent a confirmation. Even if the award is not vacated, a denial of confirmation makes the award almost useless anyway.

Extremely unlikely that the OP gets the award vacated.  The FAA allows courts to vacate an award in only the most extreme of circumstances.  Absent obvious fraud or lack of an agreement to arbitrate (moot point here given that OP was the party that chose to arbitrate), the court MUST confirm the award.

Besides, Amex doesn't use the judgment-mill law firms full of the morons who went to the worst law schools in the country in these situations.  They are ticked that a consumer dared take them all the way to a very costly appeal, and are out for blood.  The amount OP owes is a less than a rounding error on AMEX's balance sheet, after all.  Unfortunately OP has little choice at this point but to attempt to settle (assuming they aren't judgment proof) or file BK.  Unfortunately this situation serves as a warning for myself, but at least he did delay the process by about a year and a half.  I hope to do the same and will be saving up a settlement amount in the meantime.

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1 minute ago, pulpfiction0 said:

Extremely unlikely that the OP gets the award vacated.  The FAA allows courts to vacate an award in only the most extreme of circumstances.  Absent obvious fraud or lack of an agreement to arbitrate (moot point here given that OP was the party that chose to arbitrate), the court MUST confirm the award.

Besides, Amex doesn't use the judgment-mill law firms full of the morons who went to the worst law schools in the country in these situations.  They are ticked that a consumer dared take them all the way to a very costly appeal, and are out for blood.  The amount OP owes is a less than a rounding error on AMEX's balance sheet, after all.  Unfortunately OP has little choice at this point but to attempt to settle (assuming they aren't judgment proof) or file BK.  Unfortunately this situation serves as a warning for myself, but at least he did delay the process by about a year and a half.  I hope to do the same and will be saving up a settlement amount in the meantime.

Yes, we have already clearly stated that this is a extreme hail-mary pass at this point.  It is likely to fail, but it is the only play left.  It can buy a few more months if OP needs time to work on a BK.  Also, even though just as unlikely, forcing the OC to go through the motions could turn up new violations to use in a counter and make settling more favorable as well.

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What is the mechanism for opposing confirmation (after 3 months), as opposed to attempting to modify, vacate, or correct within 3 months?

(see prior post here: link)

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18 hours ago, Pericles said:

What is the mechanism for opposing confirmation (after 3 months), as opposed to attempting to modify, vacate, or correct within 3 months?

(see prior post here: link)

Per the Federal Rules of Civil Court, you have the right to oppose any Petition filed against you.  The opposition to their Petition to Confirm Arbitration Award would lay out reasons that the Court should not grant their Petition to Confirm.  It does nothing to change or vacate the award, it simply would just not turn it into a judgement enforceable by the court.  This is different than filing a Petition to Modify, Vacate or Correct an award, which is an action asking the Court to change the actual award.  I see them as completely different actions.

There is no way you can interpret the law to say that you are supposed to just bend over and take it when someone filed a Petition against you in Federal Court.  Every petition has the right to be opposed in court.

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This Findlaw article provides "the basics for confirmation of an arbitration award as well as the basics for vacating, modifying or correcting an arbitration award under the Federal Arbitration Act ("FAA")" :

The Basics of Confirming, Vacating, Modifying and Correcting an Arbitration Award Under the Federal Arbitration Act and the Texas Arbitration Act

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On 2/10/2019 at 11:35 AM, fisthardcheese said:

I would have to look into this, because it seems weird to oppose an award in 90 days when the other side has a year to confirm.

Yes, I know it's weird.  But it's part of arb law, probably the Federal Arbitration Act.

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