fisthardcheese

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

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9 minutes ago, Brotherskeeper said:

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? 

This new ruling has some very good snippets that you have posted above.  This ruling really adds a few good punches that, IMO all but makes an MTC impossible to defeat.  I agree that this ruling seems to also work against the argument of costs being a viable reason to deny an MTC.

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1 hour ago, fisthardcheese said:

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.

Ok, Thanks! So far they are ignoring the AAA case (for the $3000 one that has not sued)  They had until Feb 7 to pay, then AAA sent another letter stating they have until Feb 22 to pay and if they don't they may decline to administer any other consumer disputes involving this business and request that the business remove the AAA name from its arbitration clause so that there is no confusion to the public regarding our decision.  Since they bought the debt from Citi and it's in Citi's agreement, not sure how that would work. 

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20 hours ago, williams4 said:

Ok, Thanks! So far they are ignoring the AAA case (for the $3000 one that has not sued)  They had until Feb 7 to pay, then AAA sent another letter stating they have until Feb 22 to pay and if they don't they may decline to administer any other consumer disputes involving this business and request that the business remove the AAA name from its arbitration clause so that there is no confusion to the public regarding our decision.  Since they bought the debt from Citi and it's in Citi's agreement, not sure how that would work. 

That is just a standard letter AAA sends when any JDB fails to pay them.  Eventually, if they stiff AAA enough times, like Midland has, AAA will immediately reject any filings between a consumer and the JDB, just like they now do with Midland.  But court ordered arbitration from a granted MTC are always accepted.

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Since this is a general thread on Arb strategy, I will post what I have seen over the past few years, while working for banks.

Over the past few years, I have spent a total of about 1 year working for a total of two different banks.  Interestingly, right before I started with Bank A, about $60-70k of debt went SOL, but was still on my CRA.  At one point they ran my credit check, and coincidentally fired me.  Everything is off my CRA now, and I am working for Bank B.  I never had a card with them.

 

Here are some of the things I have found, which may help explain why certain banks, such as Discover and American Express (neither of which I ever worked for) are notorious for going to the ends of the earth to chase down a few thousand dollars.

1. If a bank (or for that matter any large corporation) has a Policy from on high, that Policy is treated as if it is carved in stone.  Never mind that the bank may change it's mind at any point.  Never mind that the people closer to the action realize the Policy may be costing the bank money.  If it is Policy, it is followed.  People can lose their jobs, or at least lose a chance at a promotion, by not following The Policy.  

Similarly, we know Discover and Amex have their Policy to spend whatever it takes to win in arbitration, even if they spend far more than they recover.  Seriously, nobody is going to lose his or her job because of zealously chasing down a debt, but heads might roll if they don't. 

Note there are exceptions to everything.  I got settlements with both Amex and Discover which made me a very happy camper, but that was because these cases were unique,  To make a long story short, somebody along the way had totally screwed the pooch on those accounts, and the poor attorney was faced with a terrible hand.  So yes, I got both Amex and Discover to go against their normal policy, but don't count on it yourself.  In both of these cases, I had a VERY strong shot of winning the case in the hearing, so they were very happy to drop losing hands.  

 

2.  Banks will spend ungodly amounts of money to clear up small discrepancies.  

I have to be careful what I say, but I know of a case in which a bank discovered they were overcharging some customers by tens of thousands of dollars, and the bank spent millions of dollars to fix the situation.  I am not joking.  

Why would they do that?

Because the reputation of a bank is worth more than the money they spend chasing down mistakes.  

Look at the flip side of that.  

Suppose Amex and Discover want the reputation of being the tough guys who will go to the ends of the earth to chase down debts.  If they want that reputation, they are willing to spend whatever it takes.  If they lose a few million chasing down accounts in arbitration, so be it.  Their reputation as people not to mess with may be worth more than that.  

Or not.  

What if they are wrong, and this Policy is costing them money?

See #1.  

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Thank you everyone for the continued conversation.

I have a small dilemma, however. I intended to go down to CLARO today to have them look over the MTC I am writing, and maybe even do it themselves if it is within the scope of what they do. Well, I just remembered that CLARO only works on Thursdays from 3-6. So I called to see if a MTC was something they could DEFINITELY do, and because no lawyer was actually present, the person who answered said she did not know. Now, with my court being so close, do I wait until Thursday to see CLARO and have them look over/complete my MTC, or do I go to the court today and do that myself? Do I take a chance that my MTC is up to par? The Sample MTC, which I pretty much copied, changing only one paragraph and of course the dates and names, states that I sent the lawyer a copy of the MTC and other docs by certified mail, which I haven't done yet. Do I do this- send this possibly faulty written up MTC to the opposing side, tipping my hand and my possible foolishness? Thursday is a long way off and I don't want to do nothing for the next few days. FYI, my court date is not March 6th, it's closer. I didn't originally want to put the actual date because you never know who is here gawking.

Also, another quick question(s) about the MTC, shouldn't it have my case info at the top? Like Plaintiff's Name vs My Name and my Docket Number? And, do I replace the words "Defendant" and "Plaintiff" with my name and Cavalry's name?

Thank you all again :)

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52 minutes ago, Miss Abbie said:

 I intended to go down to CLARO today to have them look over the MTC I am writing

Because the concept of using arbitration to force a dismissal is so 'abstract', I'd bet money they won't get it and will look at you like "why would you want to have this case heard in arbitration instead of court?"

So my advice is to draft it as close to the examples you see here. If you're still unsure, post it for its us to look over. Then just file it. 

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10 minutes ago, Harry Seaward said:

Because the concept of using arbitration to force a dismissal is so 'abstract', I'd bet money they won't get it and will look at you like "why would you want to have this case heard in arbitration instead of court?"

So my advice is to draft it as close to the examples you see here. If you're still unsure, post it for its us to look over. Then just file it. 

Here you go, Harry Seaward :)

MOTION TO COMPEL.docx

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On 2/25/2019 at 12:00 PM, Miss Abbie said:

Here you go, Harry Seaward :)

MOTION TO COMPEL.docx

The MTC looks fine, except that I would find an example of the case caption (the header information at the top of your motion) and use the structure that attorneys use to file pleadings in your court.

Also, if you start a new thread of your own for you case you can get better help and input from many people with experience in your state.

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Hey everyone, so grateful for all this useful info. Thank you all for taking the time to share your knowledge and experience.

I'm in WA, where pocket service (service of suit before filing with the court) is unfortunately still legal. I have to respond to the attorney that served me on behalf of the JDB. I cannot respond to the court as they will not accept anything without a case number, and one does not exist until the JDB actually files. This will happen either when I answer, give notice of appearance, both, or none of the above within the 20 day clock (what they hope for so they can file a motion for default judgment at the same time and bag another automatic win).

I have my own thread in case law and was referred over here by Harry Seaward (Thanks, Harry!). My question is regarding how I would go about initiating the arbitration strategy in this case. Do I just answer their complaint and object to all allegations based on improper venue due to my election of arbitration and then file an MTC as soon as they actually file in court?

Thanks for the help!

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@fisthardcheese I am being sued from Portfolio Recovery (RSIEH) for a PayPal card. I filed an answered to the court mentioning Arbitration and I sent a copy to the lawyer. I was getting ready to put together a MTC, but I received an email from their compliance attorney. Stating “

Hello XXXXX,

I was reaching out to you to see what we can get done on the above listed case prior to the court setting any type of hearing. I know my client is interested in resolving. Please let me know your thoughts. Thanks.

STEVE A JAVANDOOST,    COMPLIANCE ATTORNEY”

Can you give me some pointers on how to answer? Can I ask to have my case dismiss with prejudice (minimum) at this point? I don’t want to jeopardize the case because I said something wrong. Thank you so much I really appreciate you taking your time and helping!

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On 5/1/2019 at 3:49 PM, lilladyy said:

@fisthardcheese I am being sued from Portfolio Recovery (RSIEH) for a PayPal card. I filed an answered to the court mentioning Arbitration and I sent a copy to the lawyer. I was getting ready to put together a MTC, but I received an email from their compliance attorney. Stating “

Hello XXXXX,

I was reaching out to you to see what we can get done on the above listed case prior to the court setting any type of hearing. I know my client is interested in resolving. Please let me know your thoughts. Thanks.

STEVE A JAVANDOOST,    COMPLIANCE ATTORNEY”

Can you give me some pointers on how to answer? Can I ask to have my case dismiss with prejudice (minimum) at this point? I don’t want to jeopardize the case because I said something wrong. Thank you so much I really appreciate you taking your time and helping!

You are not required to respond to them.  If this were me, I would just file the MTC and send them a copy. If you contact them in response to this email, they will just ask you to settle for payments under a stipulated judgement.  Once the MTC is filed and granted, you will have the leverage to make that settlement much more in your favor.

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On 5/4/2019 at 4:45 PM, fisthardcheese said:

You are not required to respond to them.  If this were me, I would just file the MTC and send them a copy. If you contact them in response to this email, they will just ask you to settle for payments under a stipulated judgement.  Once the MTC is filed and granted, you will have the leverage to make that settlement much more in your favor.

 

I have a pre-trial hearing tomorrow at 3 pm (Texas). I’m guessing it’s too late to file an MTC?

 

Once the hearing begins does that kill any chance for arbitration?

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On 5/16/2019 at 1:19 AM, dev714 said:

 

I have a pre-trial hearing tomorrow at 3 pm (Texas). I’m guessing it’s too late to file an MTC?

 

Once the hearing begins does that kill any chance for arbitration?

Most people can't respond for next day advice.  What did you end up doing?  My philosophy is that asking for arbitration is never "too late" unless or until a judge tells you no.

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Thank you so much for this updated information. 

I do not have copies of the original cc agreements. How do I find out if there’s a clause about arbitration with each card and is there a way to find out which of the two (AAA or JAMS) is appropriate?v

Thank you...

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4 hours ago, Stubis said:

Thank you so much for this updated information. 

I do not have copies of the original cc agreements. How do I find out if there’s a clause about arbitration with each card and is there a way to find out which of the two (AAA or JAMS) is appropriate?v

Thank you...

To find card agreements:

 

1. https://www.consumerfinance.gov/credit-cards/agreements/

2. www.cardmemberagreements.org

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In response to a JDB lawsuit, I am creating my MTC today to file in the local court in California along with my response. 

I am not sure which relevant California cases to cite in the MTC. 

Would appreciate some help...?

Thank you.

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On 1/15/2018 at 4:19 AM, fisthardcheese said:

Very Important Note:  It is imperative that when you file an answer, you mention arbitration as a defense.  In some states, if you do not raise arbitration as part of the answer, the court can rule that you waived your right to arbitration.  In your answer, after you deny all allegations in the complaint, you should create a new section with the following title:  Affirmative Defense”.  Under this heading you will state “Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter”.

Hi, I was sued by a Junk Debt Collector. (I received and answered Plaintiff's discovery and I am about to send my own discovery packet)

1) I  denied everything due to lack of knowledge.......In my Answer , I didn't mention Arbitration as an Affirmative Defense. (If I denied the debt because lack of knowledge.... there is no card contract agreement either, therefore, I do not now if the card had an arbitration claus on it. (Citibank). Can I still request arbitration or its too late? Can I request arbitration after the Junk Collector answer my discovery?.

2) Am I admitting to the debt if I file for arbitration?

3) I received a copy of the Card agreement from the Plaintiff. They wanted me to admit to genuineness and I denied since only the original bank can admit to that. Attached to the agreement they sent a "Fact Sheet" with info about interest charges, rates and penalties but it says.. "Periodic Rate as of 04/02/2016". (The account was already closed, defaulted and charged off in 2015).

4) Got sued for 3 credit cards (Total under $25000). Do I need to file 3 different arbitration requests or its all one single debt?

5) Court date is set for 01/2020. 

 

Thanks

 

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18 minutes ago, YOLO YOLO said:

1) I  denied everything due to lack of knowledge.......In my Answer , I didn't mention Arbitration as an Affirmative Defense. (If I denied the debt because lack of knowledge.... there is no card contract agreement either, therefore, I do not now if the card had an arbitration claus on it. (Citibank). Can I still request arbitration or its too late? Can I request arbitration after the Junk Collector answer my discovery?.

You can still try it but it may be too late.  In many states participating in the litigation process (which discovery is) waives your right to arbitrate automatically.  Another problem is CITI is one of the few creditors that has a carve out for debt cases in small claims court so that could potentially deny you arbitration as well.

19 minutes ago, YOLO YOLO said:

2) Am I admitting to the debt if I file for arbitration?

Potentially.  Depends on how you word it.

 

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22 minutes ago, Clydesmom said:

You can still try it but it may be too late.  In many states participating in the litigation process (which discovery is) waives your right to arbitrate automatically.  Another problem is CITI is one of the few creditors that has a carve out for debt cases in small claims court so that could potentially deny you arbitration as well.

Sued for 3 cards but Junk Buyer only sent discovery for 1 card (Case). Nothing happened to the other 2  cases.

Can I amend the original Answer and include Affirmative Defenses now? To all 3 cases or at least the 2 cases that nothing happened so far?

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55 minutes ago, YOLO YOLO said:
 

Sued for 3 cards but Junk Buyer only sent discovery for 1 card (Case). Nothing happened to the other 2  cases.

Can I amend the original Answer and include Affirmative Defenses now? To all 3 cases or at least the 2 cases that nothing happened so far?

You are in California, so I would file the Motion to Compel Arbitration as soon as you can and if the other side opposes as mentions that you waited to long, you just respond by saying until they provided the card agreement, you were not fully aware of the arbitration agreement.

1.  You can admit that their card agreement is authentic and a correct copy of the agreement you once had with Citi.  This will make arbitration almost a guarantee since the other side can not now say that this agreement is not valid because THEY provided it.

2.  Admitting that the card agreement is correct and that arbitration is proper does not mean that you admit that you owe any money.

3.  You will need to file a separate motion to compel arbitration in all 3 of your cases and send each of them to a separate arbitration case with JAMS.  Having 3 different arbitration cases for these accounts is in your favor.

Lastly, you will probably get much better help if you start your own thread.

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Hello All,

haven’t provided Midland with my answered, yet but did submit to court before the 30 days.  Does that mean the case is closed and a default judgment will be granted?  If, not should I still provide the attorney my answer, with MTC and request for production via certified mail first class and an Affidavit of Service or will certified mail suffice.

I appreciate all assistance with this matter. 

Thank you in advance.

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