tvaughn

In arbitration

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14 hours ago, tvaughn said:

@fisthardcheeseThank you for your advice - I will send my objection to the CD once again since I still have not received the CD; however, is there anything else I should oject to with regard to the affidavit?   Even if they agree to throw out the CD as evidence based on my objection and the fact that it wasn’t sent to me, I still have the affidavit and the paper docs (statements) to deal with.

I can think of a couple of issues with the affidavit.  First, the arb panel lead stated that the representations in the affidavit from the affiant must relate to the documents supplied on the specific CD-ROM that was served to me (how can it when no CD-ROM was ever served to me?) and that the affiant has reviewed thos documents.  The CD-Rom isn’t even mentioned in the affidavit at all.  Also, the affiant is an ASSISTANT custodian of records.  Is that sufficient or does it have to be an actual custodian of records?

Is the discovery time-period over?  IIR you also objected to the untimely discovery, correct? And the arb panel stated they would allow an affidavit as relating to the CD-Rom.  So, obviously, I would object to the affidavit and the new documents produced well beyond the discovery deadline and also the fact that your previous objection to untimely discovery was not opposed by the Respondent and ask that all untimely discovery be stricken from the record.  I would remind the arbitrators that their previous order was to allow Respondent to provide an affidavit as to the CD-Rom, which has not been done.  I would ask that the irrelevant affidavit be stricken and the CD-Rom, which continues to not be provided to you and you have no idea what it contains, also be stricken from the record.

These seem like pretty obvious objections to me and if you are this far into the arbitration process you should know this by now.

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The more I think about this the more I believe there may be something fishy about this affidavit that the creditor's attorney submitted.  After I sent my objections to the creditor's untimely and incomplete brief and exhibits (email was sent on October 15th),  the creditor's attorney sent an email late in the afternoon of October 24, 2018 indicating that it was their "intention to submit an affidavit signed by our client by way of addressing the request for a ‘certificate of authenticity’.  Please note that these documents are identical to those that were admitted into evidence at the actual hearing and authenticated via live testimony from a custodian of business records of CREDITOR.  These are the same documents that were also included in the CD rom that was previously submitted with our brief.  MY NAME has had these documents in his possession for over a year.   In the interest of convenience can we just submit the affidavit as opposed to resubmitting all of the documents?  It should further be noted that subsequent to the original hearing the Arbitrator gave MY NAME an additional two weeks to supply documentation in support of his asserted defense.  I’m attaching the e-mail hereto.  Allowing the affidavit is consistent with the prior rulings in this matter.  Upon receipt of your response I will be able to produce an affidavit quickly."

The arb panel lead responded late in the afternoon of October 25, 2018, saying "You may submit the affidavit without re-submitting all of the documents but the affidavit must make clear that the representations relate to the documents supplied on the specific CD Rom that was served on MY NAME and filed with the ARB ORG panel and that the affiant has reviewed those documents."

I've already stated here that the affidavit makes no reference whatsoever to the CD-ROM - I've already objected to that, but that's not the fishy part.  What's odd is that the affidavit was dated and signed by the assistant custodian of records (and signed by a notary) on October 26, 2018.  Also, as I previously mentioned, the top of the first page of the affidavit lists the court name, case info, docket #, etc for the original civil case that the creditor filed against me - nothing related to the arb case (arb org name, case #, etc) is listed in the affidavit.  If this affidavit was created on or around October 26, 2018, why is the court case info listed on it?  It looks to me that they had perhaps planned to use this affidavit in the court case (or in the first arb hearing since the cover letter lists the original arb case #, not the case # that applies to the appeal) and simply changed the dates and some other info to use it for the appeal  Also, the cover letter included with the affidavit is dated September 27, 2018.

 

 

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Just wanted to post quick update to say that I have no update🧐.  I haven't heard a thing since I sent my objections in about 3 weeks ago, although I know they received my objections via email because I got an out of office reply from the case manager.  Should I just let sleeping dogs lie at this point?

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So would you guys recommend leaving this alone for now or should I reach out to the arb org to check on the status?  I know everyone said that the longer it takes the better it is for me, but I want to make sure I'm doing the right thing by waiting.

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On 12/12/2018 at 12:27 PM, fisthardcheese said:

The only thing I would do aside from waiting is to send a settlement offer to the OC.

Do these guys even present settlement offers to the OC?  Pretty sure I read that they don't.

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On 12/13/2018 at 5:04 PM, tvaughn said:

Do these guys even present settlement offers to the OC?  Pretty sure I read that they don't.

If they are the attorneys representing the OC, then yes.  How would some rando internet person know that they don't?

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On 12/13/2018 at 2:04 PM, tvaughn said:

Do these guys even present settlement offers to the OC?  Pretty sure I read that they don't.

Typically many attorneys will establish with their client what their acceptable settlement terms are when they take the case.  That way if the opposing party makes an offer they can accept or reject it based on pre-established settlement parameters.  It saves time for everyone involved by eliminating the back and forth.  Where it can become an issue is when the settlement offer is ridiculous they may present it anyway and see if the client bites.  An attorney would be irresponsible to not take a settlement offer to their client and it could be malpractice by running up the fees.

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As predicted by pretty much everyone here, the arb panel has ruled in favor of the creditor.  What is my next step?  Do I simply wait for the attorney to move in the courts to have the arbitration award confirmed as a judgment? 

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1 hour ago, tvaughn said:

As predicted by pretty much everyone here, the arb panel has ruled in favor of the creditor.  What is my next step?  Do I simply wait for the attorney to move in the courts to have the arbitration award confirmed as a judgment? 

Not a good option.  You typically have only 90 days in which to ask the court to vacate the arb award.  The plaintiff has much longer, usually a year in which to confirm the award in court as a judgment.  Check your state's rules for specific time limits.  But, essentially, you need to move first.

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On 2/6/2019 at 3:51 PM, nobk4me said:

Not a good option.  You typically have only 90 days in which to ask the court to vacate the arb award.  The plaintiff has much longer, usually a year in which to confirm the award in court as a judgment.  Check your state's rules for specific time limits.  But, essentially, you need to move first.

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. 

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11 minutes ago, Goody_Ouchless said:

Any idea what it cost them, in the end?

 

I have no idea, nor do I now if there’s a way for me to find out.  I would love to know myself, as I’m sure many others here would as well.  

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15 minutes ago, tvaughn said:

I have no idea, nor do I now if there’s a way for me to find out.  I would love to know myself, as I’m sure many others here would as well.  

 It would be nice to know, but we have to remember that the legal fees are part of doing business and are a tax deduction.

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On 2/6/2019 at 10:47 AM, tvaughn said:

What is my next step?

Bankruptcy or stand by for bank levy and wage garnishment.  This was the appeal.  There is no appeal to the appeal.

On 2/6/2019 at 10:47 AM, tvaughn said:

Do I simply wait for the attorney to move in the courts to have the arbitration award confirmed as a judgment? 

There is nothing you can pro-actively do until they do file a motion in court to confirm the award as a judgment.  You can oppose it but like the appeal the court is simply going ot affirm the decision of the panel.  They are not going to re-hear the case without a solid valid legal basis.  I found this from an American Bar Association link:

"For domestic awards, a court may confirm, vacate, modify, correct or remand the award for rehearing.14 There are four grounds for vacatur: (1) the award was obtained by corruption, fraud or undue means; (2) any of the arbitrators were partial or corrupt; (3) the arbitrators were guilty of misconduct in refusing to postpone the hearing on sufficient cause shown; refusing to hear evidence pertinent and material to the controversy; or any other behavior by which the rights of any party have been prejudiced; or (4) the arbitrators exceeded their powers or so imperfectly executed them that they did not make a mutual, final and definite award on the subject matter submitted.15

A court also may modify or correct a domestic arbitral award: (a) where there was an evident material miscalculation of figures or an evident material mistake in the description of any person, thing, or property referred to in the award; (b) where the arbitrators have awarded upon a matter not submitted to them, unless it is a matter not affecting the merits of the decision upon the matter submitted; and (c) where the award is imperfect in matter of form not affecting the merits of the controversy. The court may also modify and correct the award, so as to effect the intent thereof and promote justice between the parties.16"

Reading this I do not see a basis to overturn or modify the decision.

1 hour ago, Goody_Ouchless said:

Any idea what it cost them, in the end?

Them?  Nothing.  The OP?  My guess is tack on another $1000-$1500.  The cost of filing a motion with the court in NJ is probably a couple hundred and my guess is that the law firm will tack on 6-10 hours of billing for doing so.  That cost can be added as part of the judgment expenses and the creditor can ask for it in the motion to be paid by the Defendant.

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25 minutes ago, Harry Seaward said:

What????  This cost them at least $15k.

Not to file the motion to confirm.  I am not referring to the entire case.

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36 minutes ago, Clydesmom said:

Not to file the motion to confirm.  I am not referring to the entire case.

The big question around followed arbitration is always what it costs because arbitration is all about making it uncomfortable for the plaintiff. 

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3 hours ago, 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. 

That is correct.  Wait for them to file in court to confirm the award.  When they do, file your written opposition to confirm.  In your opposition, I would include all of the information about the arbitrators not following the rules (cite all of the specific times and dates and include the emails as evidence).  State they they were biased and prejudiced you by not holding to the consumer rules put in place by the arb firm and written into the OC's card agreement contract.

By the way, none of this will work.  But, I know of ONE person who did this and during the process, the OC violated the FCRA by updating credit reports to reflect the arbitration award before it was confirmed in court and this person filed a new MTC and asked the court to put a stay on the confirmation of award until their new FCRA claims were resolved in arbitration.  (In the end, by the way, that actually worked to induce a walk-away settlement, but this was a VERY rare occurrence at this stage with an OC).  But, just going through the steps and keeping a keen eye on everything in the meantime is your only very last option left.

After this, I would consider BK and just know that you went all the way through a process to join a club that only a small handful of people ever have.  It was a valiant effort.

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14 hours ago, fisthardcheese said:

But, I know of ONE person who did this and during the process, the OC violated the FCRA by updating credit reports to reflect the arbitration award before it was confirmed in court and this person filed a new MTC and asked the court to put a stay on the confirmation of award until their new FCRA claims were resolved in arbitration.

Sounds as if "ONE" could keep this going and going, almost like in Dickens's Bleak House 

Jarndyce and Jarndyce drones on. This scarecrow of a suit has, in course of time, become so complicated that no man alive knows what it means. The parties to it understand it least, but it has been observed that no two Chancery lawyers can talk about it for five minutes without coming to a total disagreement as to all the premises. . . .The little plaintiff or defendant who was promised a new rocking-horse when Jarndyce and Jarndyce should be settled has grown up, possessed himself of a real horse, and trotted away into the other world. . . . but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless."

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1 hour ago, Brotherskeeper said:

but Jarndyce and Jarndyce still drags its dreary length before the court, perennially hopeless.

🤣

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22 hours ago, 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. 

No, I think the 90 day clock starts from the date of the arb award.

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1 hour ago, nobk4me said:

No, I think the 90 day clock starts from the date of the arb award.

How can the clock start if the court isn’t even aware that the arb award exists?

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21 hours ago, tvaughn said:

How can the clock start if the court isn’t even aware that the arb award exists?

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.

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