fisthardcheese

Arbitration Overview and Strategy (2018 - Most Up To Date Info)

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On 12/21/2018 at 2:43 PM, fisthardcheese said:

All of the Citi agreements I have read state that they will pay your AAA filing fee if you ask.  Therefore, I would not send any money in, but yes, I would send in the AAA filing paperwork with my DV letter.

 

In my Citi card agreement, it states they will pay my arbitration fee, if it is unrelated to debt collection.  If my claim with AAA is debt validation, would that be considered debt collection? or no?

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On 1/3/2019 at 2:02 PM, williams4 said:
 

In my Citi card agreement, it states they will pay my arbitration fee, if it is unrelated to debt collection.  If my claim with AAA is debt validation, would that be considered debt collection? or no?

Possibly.  It depends on what you mean by "debt validation".  I would make my AAA filing about any potential FDCPA, FCRA, TILA or State UDAP violations on their part.  I wouldn't mention the debt at all.

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3 hours ago, fisthardcheese said:

Possibly.  It depends on what you mean by "debt validation".  I would make my AAA filing about any potential FDCPA, FCRA, TILA or State UDAP violations on their part.  I wouldn't mention the debt at all.

An FDCPA claim implies the existence of a debt.  Absent a debt or attempts to collect a debt, there can be no violation of the Act. 

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16 hours ago, BV80 said:

An FDCPA claim implies the existence of a debt.  Absent a debt or attempts to collect a debt, there can be no violation of the Act. 

An FDCPA violation is an action that a collector would have taken in connection with collecting a debt.  But it is their action that violates the law and does not mean that a debt still exists, or that one ever did exist or was valid.  Additionally, a claim of FDCPA violations is a case regarding the action the collector took, not a claim on whether a debt exists or is valid, therefore according to the card agreement language, it would not be a claim associated with a debt.  I would use the well established case laws that say that a violation exists and someone has standing to sue on it even if the collector is dunning or calling the wrong person (who does not hold the underlying debt at all) to further this position if they wanted to go down that road.

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1 hour ago, fisthardcheese said:

An FDCPA violation is an action that a collector would have taken in connection with collecting a debt.  But it is their action that violates the law and does not mean that a debt still exists, or that one ever did exist or was valid.  Additionally, a claim of FDCPA violations is a case regarding the action the collector took, not a claim on whether a debt exists or is valid, therefore according to the card agreement language, it would not be a claim associated with a debt.  I would use the well established case laws that say that a violation exists and someone has standing to sue on it even if the collector is dunning or calling the wrong person (who does not hold the underlying debt at all) to further this position if they wanted to go down that road.

I understand that.   But the OP stated that the arbitration agreement states that the creditor will pay the fees unless it’s related to debt collection.  An FDCPA claim is related to debt collection.  

 

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21 hours ago, fisthardcheese said:

Possibly.  It depends on what you mean by "debt validation".  I would make my AAA filing about any potential FDCPA, FCRA, TILA or State UDAP violations on their part.  I wouldn't mention the debt at all.

Right now they do not have any violations to these, unless they file a lawsuit after I said I ask for arbitration.  I sent my debt validation letter on Saturday but I haven't filled out the AAA forms yet.  But in the debt validation letter, I stated something along the lines that if they can validate this debt and that they do own the debt that I elect arbitration to resolve all disputes.  Do I wait to see if they file a lawsuit then as soon as they do file with AAA for violations? I am not sure how else to file a claim with AAA without mentioning the debt since up to this point, they have not violated anything.

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3 hours ago, BV80 said:

I understand that.   But the OP stated that the arbitration agreement states that the creditor will pay the fees unless it’s related to debt collection.  An FDCPA claim is related to debt collection.  

 

I disagree for the reasons above.  If the JDB attempts to say it is, I would object in an email using the reasons I stated above.  JAMS or AAA would then state that the arbitrator would have to decide who ultimately pays. They MIGHT force the consumer to pay the filing fee to continue at that point, but they SHOULD make the company pay until and unless the arbitrator says otherwise.

2 hours ago, williams4 said:

Right now they do not have any violations to these, unless they file a lawsuit after I said I ask for arbitration.  I sent my debt validation letter on Saturday but I haven't filled out the AAA forms yet.  But in the debt validation letter, I stated something along the lines that if they can validate this debt and that they do own the debt that I elect arbitration to resolve all disputes.  Do I wait to see if they file a lawsuit then as soon as they do file with AAA for violations? I am not sure how else to file a claim with AAA without mentioning the debt since up to this point, they have not violated anything.

Yes, I would wait to file any arbitration claim until a court grants your MTC.  In the meantime, I would be looking at all 3 of my credit reports with a fine tooth comb and comparing them with not only each other but any letters or documentation ever sent by the JDB.  I would be wanting to see if they have sent collection letters or reported amounts on my credit reports in the past that have changed or had "fees" or "interest" added to them.  If so, that is a good TILA violation, since you can be sure they never sent you periodical statements for those charges. There is probably SOMETHING there if you look.  And remember what I always say - any arbitration claims you file can be amended at any point before an arbitrator is appointed.

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3 hours ago, fisthardcheese said:

I disagree for the reasons above.  If the JDB attempts to say it is, I would object in an email using the reasons I stated above.  JAMS or AAA would then state that the arbitrator would have to decide who ultimately pays. They MIGHT force the consumer to pay the filing

I agree that it’s up to the arbitrator.  My point is that you said not to mention a debt.  If there is an FDCPA claim, that means debt collection whether or not there’s actually a debt.   

Then there’s the fact that Unifund is a debt buyer.  Again, whether or not there is actually a debt or whether or not a debt is mentioned, the claim is related to debt collection.  

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4 hours ago, williams4 said:

Right now they do not have any violations to these, unless they file a lawsuit after I said I ask for arbitration.

Actually their filing a lawsuit even though you ASKED for arbitration is not an FDCPA violation until you (or someone else in that situation) sues saying it is and WINS.  To date there is no case law we have found that says a creditor suing after the consumer merely elects arbitration is an FDCPA violation.

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5 hours ago, williams4 said:

Right now they do not have any violations to these, unless they file a lawsuit after I said I ask for arbitration. 

@Clydesmom is correct. There are no rulings that support the above.

I believe you are in the 7th Circuit.   Here’s a ruling.

The FDCPA is not an enforcement mechanism for matters governed elsewhere by state and federal law. Beler v. Blatt, Hasenmiller, Leibsker & Moore, LLC, 480 F.3d 470, 474 (7th Cir.2007).

The Federal Arbitration Act (FAA) governs the arbitration provision in your agreement.   The FAA allows for a party to refuse to arbitrate.  In the event of a refusal, the Act states that a motion to compel can be filed.  Depending upon your court rulings, filing a,lawsuit could be considered a refusal to arbitrate.  Therefore, you would have a remedy by filing a MTC.  

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3 hours ago, BV80 said:

The Federal Arbitration Act (FAA) governs the arbitration provision in your agreement.   The FAA allows for a party to refuse to arbitrate.  In the event of a refusal, the Act states that a motion to compel can be filed.  Depending upon your court rulings, filing a,lawsuit could be considered a refusal to arbitrate.  Therefore, you would have a remedy by filing a MTC.  

My credit card agreement does state "if arbitration is chosen by any party, neither you nor we have the right to litigate that Claim in court or have a jury trial on that claim."  It does go on to say after this "Except as stated below, all Claims are subject to arbitration", then it says "Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court"  So it makes it sound like if I FILE/PAY for AAA, then they can't bring that claim in court, even small claims? Or am I reading this wrong?  They have already taken the credit card off my credit report.  So I can't tell if there is any interest or anything they added. 

 

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22 minutes ago, williams4 said:

My credit card agreement does state "if arbitration is chosen by any party, neither you nor we have the right to litigate that Claim in court or have a jury trial on that claim."  It does go on to say after this "Except as stated below, all Claims are subject to arbitration", then it says "Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court"  So it makes it sound like if I FILE/PAY for AAA, then they can't bring that claim in court, even small claims? Or am I reading this wrong?  They have already taken the credit card off my credit report.  So I can't tell if there is any interest or anything they added. 

I suppose I’m just dense tonight, and I apologize  

What exactly are you asking?

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10 minutes ago, BV80 said:

I suppose I’m just dense tonight, and I apologize  

What exactly are you asking?

No, I apologize.  I left out my question.  My CC agreement has Small Claims exemption.  But it also states that if arbitration is chosen by any party, neither you nor we have the right to litigate that Claim in court or have a jury trial on that claim.  So if I file with AAA before they sue me, would my CC agreement hold up in Small Claims for getting a MTC arbitration? Or can they still file a lawsuit and refuse to arbitrate? (I will also add, this is on my Citi card for $3500 that I only received a dunning letter for)

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12 minutes ago, williams4 said:

No, I apologize.  I left out my question.  My CC agreement has Small Claims exemption.  But it also states that if arbitration is chosen by any party, neither you nor we have the right to litigate that Claim in court or have a jury trial on that claim.  So if I file with AAA before they sue me, would my CC agreement hold up in Small Claims for getting a MTC arbitration? Or can they still file a lawsuit and refuse to arbitrate? (I will also add, this is on my Citi card for $3500 that I only received a dunning letter for)

No need to apologize..  😀

All I can tell you is if they were to file in small claims, you would need to abide by the FAA and file a MTC.  I cannot predict how the court would rule.  

 

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3 minutes ago, BV80 said:

No need to apologize..  😀

All I can tell you is if they were to file in small claims, you would need to abide by the FAA and file a MTC.  I cannot predict how the court would rule.  

 

Thanks!  I truly appreciate everyone's help here! I would be so lost if I didn't find this group. 

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I'm kind of stuck with writing my Motion to Compel. I'm in Baltimore City and I downloaded the court rules but I'm still lost. The sample letter says not to copy and paste so lost on what really needs to be in the letter. Can anyone give me some further advice?

LocalRules.pdf

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@Yungskeeme You've posted the rules for the United States District Court for Maryland. This is federal court. Are you being sued in Maryland State Court/Baltimore City? If so, you need to follow the Maryland Rules of Civil Procedure and any local rules of the specific court your case is filed in. It would be best for future help if you would start your own thread and give us more information on the details of your case. Here are some links you might find helpful:

https://mdcourts.gov/lawyers/legalsites

Chapter 300. Pleadings and Motions

MOTIONS DOCKET: HOW TO NAVIGATE IT SUCCESSFULLY

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3 hours ago, Brotherskeeper said:
 

@Yungskeeme You've posted the rules for the United States District Court for Maryland. This is federal court. Are you being sued in Maryland State Court/Baltimore City? If so, you need to follow the Maryland Rules of Civil Procedure and any local rules of the specific court your case is filed in. It would be best for future help if you would start your own thread and give us more information on the details of your case. Here are some links you might find helpful:

https://mdcourts.gov/lawyers/legalsites

Chapter 300. Pleadings and Motions

MOTIONS DOCKET: HOW TO NAVIGATE IT SUCCESSFULLY

Wow didn't even know I had the wrong rules. Being sued in court in Baltimore City. Thanks for pointing that out. I do have my own thread I guess I should've asked there. I'll take a look at what you provided and if I have anymore questions I'll ask there.

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I was served a Civil Summons by Smith Debnam for their client Midland Funding LLC (OC Citibank Best Buy Credit). My first name was incorrect so I responded to the summons claiming I did not have an account under that incorrect name. Now they have sent me request for Plaintiff's 1st set of Interrogatories, Request for Production and Requests for Admissions. From all the threads it seems Demand for Arbitration is the way to go but I am not sure what my next step is supposed to be. Do I sent Motion to Compel Arbitration with answering the Discovery questions before I submit Demand for Arbitration with JAMS or AAA or, do I put a file in with JAMS or AAA first, send notice to Smith Debnam that I have submitted a demand for arbitration and then submit my MTC to the court with the Discovery requested by Smith Debnam? Need Help!

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8 hours ago, RC88 said:

I was served a Civil Summons by Smith Debnam for their client Midland Funding LLC (OC Citibank Best Buy Credit). My first name was incorrect so I responded to the summons claiming I did not have an account under that incorrect name. Now they have sent me request for Plaintiff's 1st set of Interrogatories, Request for Production and Requests for Admissions. From all the threads it seems Demand for Arbitration is the way to go but I am not sure what my next step is supposed to be. Do I sent Motion to Compel Arbitration with answering the Discovery questions before I submit Demand for Arbitration with JAMS or AAA or, do I put a file in with JAMS or AAA first, send notice to Smith Debnam that I have submitted a demand for arbitration and then submit my MTC to the court with the Discovery requested by Smith Debnam? Need Help!

If the name is just a variation on your actual name or a possible typo, I would forget about that and just file the MTC.  If you are going to go with arbitration, the ONLY response to discovery I would make is to answer "Objection" to every question due to the arbitration clause making Court not the proper jurisdiction.

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On 10/20/2018 at 12:05 AM, Harry Seaward said:

It needs to state that you are making the statements under penalty of perjury, that your statements are based on your personal knowledge of the account and records, that it was your account and that the attached agreement was in effect during the life of the account. It also needs to be notarized ("subscribed and sworn to before me") to have any effect. 

@Harry Seaward thank you for all of your information and you even responded to my personal question and I really appreciate it. I have been trying to prepare my case as per everyone's suggestion before I even get served, so I am "ready for battle" so to speak and am seeking arbitration because of my original Synchrony account per all the super helpful recommendations I've got on this forum. I know this sounds so dumb, but I am printing my old synchrony statement and doing the above mentioned affidavit and everyone says to have it notarized. Can any notary republic do this? or does it have to be with some court clerk or would that be part of the rules of your court? sorry if this is just a really dumb elementary question, am just trying to make everything correct so it goes through. I am in NY Supreme if that makes a difference and again thanks to everyone for their help.

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19 minutes ago, SHELLY7 said:

Can any notary republic do this?

Yes, but not all of them will. If you find one that gives you a hard time, go find another one somewhere else. I've never had a problem with one at my local bank branch. Also most companies have their own these days, so if you have one where you work, try that also.

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Just now, Harry Seaward said:

Yes, but not all of them will. If you find one that gives you a hard time, go find another one somewhere else. I've never had a problem with one at my local bank branch. Also most companies have their own these days, so if you have one where you work, try that also.

Thank you so much @Harry Seawardso I'll just go to my local library notary republic like the cool person I am;)

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@fisthardcheese This new SCOTUS opinion, decided on Jan. 8, 2019, might offer some persuasive argument to use when the JDB raises its costs of arb when opposing a MTC. I've added emphasis to some text. I realize this case is about who decides threshold arbitrability--judge or arbitrator--and not about the cost per se of arbitration. What do you think? 

HENRY SCHEIN, INC. v. ARCHER & WHITE SALES, INC. 586 U. S. ____ (2019)

"We must interpret the Act as written, and the Act in turn requires that we interpret the contract as written. When the parties’ contract delegates the arbitrability question to an arbitrator, a court may not override the contract. In those circumstances, a court possesses no power to decide the arbitrability issue. That is true even if the court thinks that the argument that the arbitration agreement applies to a particular dispute is wholly groundless.

That conclusion follows not only from the text of the Act but also from precedent. We have held that a court may not “rule on the potential merits of the underlying” claim that is assigned by contract to an arbitrator, “even if it appears to the court to be frivolous.” AT&T Technologies, Inc. v. Communications Workers, 475 U. S. 643, 649–650 (1986). A court has “‘no business weighing the merits of the grievance’” because the “‘agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious.’” Id., at 650 (quoting Steelworkers v. American Mfg. Co., 363 U. S. 564, 568 (1960)). That AT&T Technologies principle applies with equal force to the threshold issue of arbitrability. Just as a court may not decide a merits question that the parties have delegated to an arbitrator, a court may not decide an arbitrability question that the parties have delegated to an arbitrator."

[snip]

Third, Archer and White says that, as a practical and policy matter, it would be a waste of the parties’ time and money to send the arbitrability question to an arbitrator if the argument for arbitration is wholly groundless. In cases like this, as Archer and White sees it, the arbitrator will inevitably conclude that the dispute is not arbitrable and then send the case back to the district court. So why waste the time and money? The short answer is that the Act contains no “wholly groundless” exception, and we may not engraft our own exceptions onto the statutory text. See Exxon Mobil Corp. v. Allapattah Services, Inc., 545 U. S. 546, 556−557 (2005).

[snip]

Fourth, Archer and White asserts another policy argument: that the “wholly groundless” exception is necessary to deter frivolous motions to compel arbitration. Again, we may not rewrite the statute simply to accommodate that policy concern. In any event, Archer and White overstates the potential problem. Arbitrators can efficiently dispose of frivolous cases by quickly ruling that a claim is not in fact arbitrable. And under certain circumstances, arbitrators may be able to respond to frivolous arguments for arbitration by imposing fee-shifting and cost-shifting sanctions, which in turn will help deter and remedy frivolous motions to compel arbitration. We are not aware that frivolous motions to compel arbitration have caused a substantial problem in those Circuits that have not recognized a “wholly groundless” exception. In sum, we reject the “wholly groundless” exception. The exception is inconsistent with the statutory text and with our precedent. It confuses the question of who decides arbitrability with the separate question of who prevails on arbitrability. When the parties’ contract delegates the arbitrability question to an arbitrator, the courts must respect the parties’ decision as embodied in the contract."

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On 1/7/2019 at 6:42 PM, williams4 said:

No, I apologize.  I left out my question.  My CC agreement has Small Claims exemption.  But it also states that if arbitration is chosen by any party, neither you nor we have the right to litigate that Claim in court or have a jury trial on that claim.  So if I file with AAA before they sue me, would my CC agreement hold up in Small Claims for getting a MTC arbitration? Or can they still file a lawsuit and refuse to arbitrate? (I will also add, this is on my Citi card for $3500 that I only received a dunning letter for)

If you file in arbitration BEFORE they sue you on a contract containing the small claims exemption language, then, yes, in theory they can not sue.  However, in the real world, they WILL ignore the arbitration and sue you in small claims court anyway.  However, if they do this, you now have a very strong case in favor of granting your MTC.  I would file the MTC and when they oppose by saying there is a small claims exception, I would show my previous filing prior to the lawsuit and state that I already opened an arbitration case that they willfully ignored in an attempt to get out of their own contract of adhesion.  I think a court should rule to grant that MTC.

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