fisthardcheese

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

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Is AAA a lot cheaper? I'm trying to find something in their forms about the 5000 retainer. I'm just seeing 1 arbitrator at 1750/day and filing fee of 400-something? (Those numbers might not be correct, I don't have the AAA site up.)

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16 minutes ago, Harry Seaward said:

Those fees are correct. Your portion is limited to $200, though. 

Makes me wonder, if it's only say at a cost of just over 2k, will a JDB actually proceed through arb for a 6800 debt?

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1. Is there a sample letter for the letter we are supposed to send to JDB before doing the MTC Arbitration? I'm not sure exactly what to say. Do I just say "I elect arbitration to settle this dispute." sign and send it? Or is something more elaborate necessary?  

2. Is there a sample/general affidavit for the credit card agreement?

 

(I know some of these questions seem elementary but I honestly and truly have no idea what I'm doing am learning as I go.) 

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11 minutes ago, shyneon said:

1. Is there a sample letter for the letter we are supposed to send to JDB before doing the MTC Arbitration? I'm not sure exactly what to say. Do I just say "I elect arbitration to settle this dispute." sign and send it? Or is something more elaborate necessary?  

2. Is there a sample/general affidavit for the credit card agreement?

 

(I know some of these questions seem elementary but I honestly and truly have no idea what I'm doing am learning as I go.) 

I was (and still am!) in this same boat. Before filing the motion I sent a letter saying: 

On DATE I was personally served notice of civil case NUMBER regarding a $AMOUNT debt with JDB NAME.


Please be advised, I am disputing the debt presented to me and have begun the arbitration process with the American Arbitration Association (case number here if you have started), per the conditions of my cardmember agreement. I am requesting that you dismiss CIVIL CASE NUMBER, as this is a matter for arbitration as agreed upon per the cardmember agreement.

 

For the card member agreement I labeled it Exhibit B and obtained an Affidavit of True and Correct Copy from my court's website and had it notorized. I sent these with everything else to the JDB and brought to court with my MTC and answer.

Welcome to the boards, everyone here has been amazing with helping me personally!

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22 hours ago, catlady22 said:

I was (and still am!) in this same boat. Before filing the motion I sent a letter saying: 

On DATE I was personally served notice of civil case NUMBER regarding a $AMOUNT debt with JDB NAME.


Please be advised, I am disputing the debt presented to me and have begun the arbitration process with the American Arbitration Association (case number here if you have started), per the conditions of my cardmember agreement. I am requesting that you dismiss CIVIL CASE NUMBER, as this is a matter for arbitration as agreed upon per the cardmember agreement.

 

For the card member agreement I labeled it Exhibit B and obtained an Affidavit of True and Correct Copy from my court's website and had it notorized. I sent these with everything else to the JDB and brought to court with my MTC and answer.

Welcome to the boards, everyone here has been amazing with helping me personally!

This is perfect. Thank you! 

Unfortunately my court's website (here: https://riverside.courts.ca.gov/) doesn't have an Affidavit of True and Correct Copy. I've contacted the court asking if they have a copy available and they have yet to respond. I also tried doing a Google search for one but they all seem so different and I couldn't find one for California. Do any of these look good?:

 

1. State of Arkansas
County of ____________


I, ______[Name of Notary]_______, certify this is a true and perfect copy of the original document _______[insert type of document]______ presented to me on this ______ day of _________, 20___.


Notary's Signature _____________
My commission expires: ___________
                                                                [Seal of Office]

2. State of Oklahoma
County of ____________

I certify that this is a true and correct copy of a document in the possession of _____________________
Dated _________________

(Signature of notarial officer)
(Seal, if any)

Title (and Rank)
(My commission expires: )
(My commission # )

3. STATE OF FLORIDA
COUNTY OF __________

On this _____ day of __________, ___(year)____ , I attest that the preceding or attached document is a true, exact, complete, and unaltered photocopy made by me of ______(description of document)______ presented to me by the document's custodian, ____________________, and, to the best of my knowledge, that the photocopied document is neither a vital record nor a public record, certified copies of which are available from an official source other than a notary public.

(Official Notary Signature and Notary Seal)
(Name of Notary Typed, Printed or Stamped)

 

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42 minutes ago, shyneon said:

This is perfect. Thank you! 

Unfortunately my court's website (here: https://riverside.courts.ca.gov/) doesn't have an Affidavit of True and Correct Copy. I've contacted the court asking if they have a copy available and they have yet to respond. I also tried doing a Google search for one but they all seem so different and I couldn't find one for California. Do any of these look good?:

 

1. State of Arkansas
County of ____________


I, ______[Name of Notary]_______, certify this is a true and perfect copy of the original document _______[insert type of document]______ presented to me on this ______ day of _________, 20___.


Notary's Signature _____________
My commission expires: ___________
                                                                [Seal of Office]

2. State of Oklahoma
County of ____________

I certify that this is a true and correct copy of a document in the possession of _____________________
Dated _________________

(Signature of notarial officer)
(Seal, if any)

Title (and Rank)
(My commission expires: )
(My commission # )

3. STATE OF FLORIDA
COUNTY OF __________

On this _____ day of __________, ___(year)____ , I attest that the preceding or attached document is a true, exact, complete, and unaltered photocopy made by me of ______(description of document)______ presented to me by the document's custodian, ____________________, and, to the best of my knowledge, that the photocopied document is neither a vital record nor a public record, certified copies of which are available from an official source other than a notary public.

(Official Notary Signature and Notary Seal)
(Name of Notary Typed, Printed or Stamped)

 

Mine was not quite as detailed as those examples. I'd make sure to verify your court's rules and procedures (something I learned very quickly on this board!) I also included a certificate of service.

 

At my first hearing, the JDB argued that my CMA was not dated. My recourse was that this was provided to me by 1. By public record. My OC wouldn't send me a copy since the debt was no longer theirs but did say which agreement was valid for my account, that any and all CMAs from my OC have the same language spanning the entire duration of my membership per public record, and 2. That a notary signed my sworn agreement that this was the correct contract. The judge agreed.

 

 

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@shyneon You need to verify the California Code of Civil Procedure (CCP) requirements for an affidavit--as @catlady22 advised. (I am not a lawyer--IANAL) A declaration is a statement of facts within someone's personal knowledge made under penalty of perjury. An affidavit also states facts within the affiant's personal knowledge, but is signed in front of someone with authority to witness an oath, usually a notary public. By signing under oath before a notary, you’re swearing under the law that the things you say in the affidavit are true. You'll need to look at a sample affidavit from California to see if you write an affidavit in numbered paragraphs, and if you also must include language that, "if sworn as a witness, I could and would competently testify thereto," or something similar. Here are a few links to check out:

2009 California Code of Civil Procedure - Section 2009-2015.6 :: Article 2. Affidavits

 

ARTICLE 2. Affidavits [2009 - 2015.6]  ( Article 2 enacted 1872. )    2015.5.

2015.5. 

(a) If executed within this state:

“I certify (or declare) under penalty of perjury that the foregoing is true and correct”:
_____________ _________
(Date and Place)(Signature)

(b) If executed at any place, within or without this state:

“I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct”:
_____________ _________
(Date)(Signature)

 

"If the declaration is executed outside of California but fails to include the language “under the laws of the State of California” as indicated in option (2) above, then the declaration will be considered to be inadmissible hearsay. “[C]ourts do not find compliance with section 2015.5 to be both substantial and sufficient unless all statutory conditions appear on the face of the declaration in some form.” (Kulshrestha v. First Union Comm’l Corp. (2004) 33 Cal.4th 601, 612.)   Add these certifications to every declaration you prepare, and if it doesn't exist in your opponent's declarations, be sure to object." 

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21 hours ago, catlady22 said:

Mine was not quite as detailed as those examples. I'd make sure to verify your court's rules and procedures (something I learned very quickly on this board!) I also included a certificate of service.

 

At my first hearing, the JDB argued that my CMA was not dated. My recourse was that this was provided to me by 1. By public record. My OC wouldn't send me a copy since the debt was no longer theirs but did say which agreement was valid for my account, that any and all CMAs from my OC have the same language spanning the entire duration of my membership per public record, and 2. That a notary signed my sworn agreement that this was the correct contract. The judge agreed.

 

 

 

13 hours ago, Brotherskeeper said:

@shyneon You need to verify the California Code of Civil Procedure (CCP) requirements for an affidavit--as @catlady22 advised. (I am not a lawyer--IANAL) A declaration is a statement of facts within someone's personal knowledge made under penalty of perjury. An affidavit also states facts within the affiant's personal knowledge, but is signed in front of someone with authority to witness an oath, usually a notary public. By signing under oath before a notary, you’re swearing under the law that the things you say in the affidavit are true. You'll need to look at a sample affidavit from California to see if you write an affidavit in numbered paragraphs, and if you also must include language that, "if sworn as a witness, I could and would competently testify thereto," or something similar. Here are a few links to check out:

2009 California Code of Civil Procedure - Section 2009-2015.6 :: Article 2. Affidavits

 

ARTICLE 2. Affidavits [2009 - 2015.6]  ( Article 2 enacted 1872. )    2015.5.

2015.5. 

(a) If executed within this state:

“I certify (or declare) under penalty of perjury that the foregoing is true and correct”:
_____________ _________
(Date and Place)(Signature)

(b) If executed at any place, within or without this state:

“I certify (or declare) under penalty of perjury under the laws of the State of California that the foregoing is true and correct”:
_____________ _________
(Date)(Signature)

 

"If the declaration is executed outside of California but fails to include the language “under the laws of the State of California” as indicated in option (2) above, then the declaration will be considered to be inadmissible hearsay. “[C]ourts do not find compliance with section 2015.5 to be both substantial and sufficient unless all statutory conditions appear on the face of the declaration in some form.” (Kulshrestha v. First Union Comm’l Corp. (2004) 33 Cal.4th 601, 612.)   Add these certifications to every declaration you prepare, and if it doesn't exist in your opponent's declarations, be sure to object." 

@catlady22 and @Brotherskeeper you guys are awesome! Really, thank you for this! I will certainly do some research on the California of Civil Procedures and my court's rules and procedures on affidavits. If it wasn't for your help, I'm not sure I could have continued on the arbitration route because it started to become a little too confusing for me, but now I feel more confidant than ever, as everything is starting to make more sense. Thanks again guys. I can't express in words how much you helped me. 

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On 1/15/2018 at 6:19 AM, fisthardcheese said:

Also when sending the Demand, I send it to AAA/JAMS and to the attorney for the JDB at the same time.  I send both CMRRR and retain the green cards.  Although the Demand Form instructions say that proof of service is needed, I simply include a "certificate of service" with my forms that states that I certify that I sent a copy to the JDB by USPS Certified Mail.  If there is ever a question about service after I file, I will have the green card to submit as proof if needed.

I just want to make sure, when you send the form, do you only send the form or the other stuff as well?  For example, JAMS asks for credit card agreement and court order (if one) when filing.  If the JDB/OC has those already, I shouldn't send again right? 

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On 1/11/2020 at 7:15 PM, Impress said:

I just want to make sure, when you send the form, do you only send the form or the other stuff as well?  For example, JAMS asks for credit card agreement and court order (if one) when filing.  If the JDB/OC has those already, I shouldn't send again right? 

You should follow the directions exactly as listed on the JAMS demand form regardless of what you believe the JDB may already posses.

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On 1/19/2020 at 12:14 PM, fisthardcheese said:

You should follow the directions exactly as listed on the JAMS demand form regardless of what you believe the JDB may already posses.

I got your reply after I sent them copy.  I didn't give them the credit card agreement and court order.  I did state in my cover letter that I didn't provide because I assumed they had them but if not, let me know and I will provide a copy.

Can you clarify something for me?   I have received my case number from JAMS.  I know this is one of the times that is good for negotiating whatever settlement we are looking for.  Do you approach the other party or wait for them to approach you?

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On 1/23/2020 at 3:01 PM, Impress said:

I got your reply after I sent them copy.  I didn't give them the credit card agreement and court order.  I did state in my cover letter that I didn't provide because I assumed they had them but if not, let me know and I will provide a copy.

Can you clarify something for me?   I have received my case number from JAMS.  I know this is one of the times that is good for negotiating whatever settlement we are looking for.  Do you approach the other party or wait for them to approach you?

You have a court order, so they are now in a corner they don't like to be in.  It's a good time to send a settlement offer to them and show them there is a better way out of it for them to consider.

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fisthardcheese ....   

I am going through exactly the same thing with the Velocity Investments as the original bk85.    Only the amount is $10,292.57 but still Avant Webbank.  It is in the state of Georgia in Fulton county.  I assume I can use the same suggestions as you provided in this thread.    I had a lawyer tell me to pay 50 to 80 % of the balance but I have paid then a small fortune on this original loan and I do not want to pay them this remaining amount.    I have to file my response before March 5th.  Do you suggest I do the same?  My contract is exactly the same as the one posted on his original post. 

Let me know your thoughts and any advice you have. 

 

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On 2/13/2020 at 7:09 PM, redrose06 said:

fisthardcheese ....   

I am going through exactly the same thing with the Velocity Investments as the original bk85.    Only the amount is $10,292.57 but still Avant Webbank.  It is in the state of Georgia in Fulton county.  I assume I can use the same suggestions as you provided in this thread.    I had a lawyer tell me to pay 50 to 80 % of the balance but I have paid then a small fortune on this original loan and I do not want to pay them this remaining amount.    I have to file my response before March 5th.  Do you suggest I do the same?  My contract is exactly the same as the one posted on his original post. 

Let me know your thoughts and any advice you have. 

 

It is best to start your own Post rather than going through all the details in this reply thread.

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19 hours ago, Unique1991 said:

If I haven’t been served (Chicago) do I wait or go and file MTC anyways I’m asking because my work schedule is rough 

You have the option to call the attorney's office and tell them when you will be available at home and are willing to accept service at that time.  Some people do this to avoid being served at work or having sewer service and missing a court date.

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On 1/27/2020 at 9:43 AM, fisthardcheese said:

You have a court order, so they are now in a corner they don't like to be in.  It's a good time to send a settlement offer to them and show them there is a better way out of it for them to consider.

Yeah, this post is old, but it bears repeating over and over and over, as long as people get into arbitration.

When you get into arbitration, you are hoping for one of two results:

1. They walk away.  This especially happens if it is a JDB.  I did, however, have an OC walk away from a debt in the $10-15k range.  Back when Crap 1 still had an arbitration agreement, they simply refused to pay the JAMS fees, and the case was dismissed.  

2. You get some kind of settlement.  This could be a mutual walkaway, or it could be one party paying money to the other party.  I had one arbitration for which I could add a debt collector, and I got a small amount of money from them.  So it isn't always the consumer paying the money.  

 

The settlement you get depends on a lot of factors.  I actually came out ahead on my JAMS settlements.  The other settlements were all mutual walkaways because of extenuating circumstances, such as some very genuine claims on my part.  Or, in one case, there was an SOL issue (I filed in JAMS years after the Delaware SOL but a few months before my state's SOL, and the contract used Delaware law).  The SOL issue combined with some questionable accounting and some legitimate claims on my part led to a mutual walkaway.  Another case had some claims against their attorney, who arranged to just have the whole thing dropped with me dropping the claims against the attorney.  One case involved some genuine malfeasance on the part of the OC.  Their attorney seemed to lose all interest in the case as soon as he saw my evidence in discovery.  

If you don't have some really good claims against the OC, or SOL issues, etc., do NOT count on getting a mutual walkaway.  JDBs are more likely to get a mutual walkaway or they just ignore JAMS and let the case get dismissed.,

There are a few very good windows for settlement:

A.  Between the time the JAMS case is initiated and when they have to pay the initial fee.  This is why we often suggest not paying the $250 at front.  This is a time when you have almost maximum leverage.  You may be able to get a good settlement.    I got a settlement at this point.  As I mentioned, Crap 1 simply walked away, which was pretty much the same result.  

B. After discovery, if and only if there is something damaging to the creditor during discovery.  As I mentioned, in one case I had some VERY damaging evidence against the OC, so their attorney got them to agree to a mutual walkaway at this point.  Don't count on good settlement leverage unless you have the goods.  

C. Just before the hearing.  I got an OC to agree to exactly the same settlement I previously offered at point A just before the hearing.  The bill for the hearing is expensive, and sometimes they are willing to negotiate to avoid the hearing.  I have seen other cases in which the OC ignored settlement offers until just before the hearing.  

D. If there is an appeal, repeat A-C.  

 

These are your best windows for settlement.  Which usually means YOU contact THEM with a settlement offer.  You will rarely get an OC to settle for a mutual walkaway, but in special cases it happens.  In general, point C is your absolute best settlement, with point A a close second.  Point C is only if they rejected your reasonable offer in point A, and you give it another shot.  Point A is when you really HOPE to settle, to avoid all the hassles of the arbitration.  

 

Point B is a special case.  If you have the goods against them, stick to your guns, insist on a mutual walkaway.  You will get it if you have something they really don't want an arbitrator to see.  

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On 8/23/2018 at 7:12 PM, Harry Seaward said:

First, I would use  AAA over JAMS if your agreement has the option for AAA. The consumer fees are a little lower, but more importantly the AAA rules expressly prohibit the arbitrator from reallocating the JDBs fees back to you making it that much more unattractive for the JDB to follow you into arbitration. 

@Harry Seaward

 

If I do a Demand for Arbitration with JAMS I could be responsible for all the JDB arbitration costs?

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2 hours ago, IrishNick said:

If I do a Demand for Arbitration with JAMS I could be responsible for all the JDB arbitration costs?

There was a guy here that was sued by Discover.  He used JAMS and at the end, the arbitrator said the consumer was responsible for all of Discover's arbitration fees.  It went to an appeal, and the last update was that it was still pending a decision from the JAMS appeal panel.  That was over a year ago, and it's usually a bad sign when the OP doesn't come back to revel in their victory.  Especially one that was so intensely debated on the board.   You can read the discussion here.  It's very long and gets pretty far out into the weeds with analyzing the wording of the JAMS arb rules, but by the 4th page in, I was pretty sold on the idea that the JAMS rules seem to have a pretty significant gap between the "initial filing fee" and final award.  AAA is crystal clear that the company's arb fees can never be reallocated back to the consumer, with the exception being that the arbitrator finds the consumer acted in bad faith.  The problem with AAA is that they have a 'fast track' arb process wherein the company can have their entire case heard and settled for about $2,000, making it not a lot more expensive for them than using court.  It's up to the consumer to ensure nothing is getting 'fast tracked' by requesting hearings for anything that needs deciding by an administrator or arbitrator, and ensuring their arbitration rights are fully exercised.

 

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On 3/3/2020 at 7:53 PM, Harry Seaward said:

There was a guy here that was sued by Discover.  He used JAMS and at the end, the arbitrator said the consumer was responsible for all of Discover's arbitration fees.  It went to an appeal, and the last update was that it was still pending a decision from the JAMS appeal panel.  That was over a year ago, and it's usually a bad sign when the OP doesn't come back to revel in their victory.  Especially one that was so intensely debated on the board.   You can read the discussion here.  It's very long and gets pretty far out into the weeds with analyzing the wording of the JAMS arb rules, but by the 4th page in, I was pretty sold on the idea that the JAMS rules seem to have a pretty significant gap between the "initial filing fee" and final award.  AAA is crystal clear that the company's arb fees can never be reallocated back to the consumer, with the exception being that the arbitrator finds the consumer acted in bad faith.  The problem with AAA is that they have a 'fast track' arb process wherein the company can have their entire case heard and settled for about $2,000, making it not a lot more expensive for them than using court.  It's up to the consumer to ensure nothing is getting 'fast tracked' by requesting hearings for anything that needs deciding by an administrator or arbitrator, and ensuring their arbitration rights are fully exercised.

 

I would just add to this that this is the ONLY case we know of where a JAMS arbitrator allowed the costs of arbitration to be awarded against a consumer.  There have been many other cases I know of previously where the arbitrator DENIED such requests by the collectors, citing the JAMS rules against it.  Technically the rules say it is up to the arbitrator, but also the consumer rules state that it can only be done if found to be frivolous. Because of the slight discrepancy, there is that very small chance it can happen like the case Harry points to.   However, in my personal cases, I would always prefer to use JAMS for many other reasons, including that you can get full comprehensive discovery, easier in-person hearings, and a more fair unbiased arbitrator.  Generally speaking.

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Do you have any further advice on what to argue/present in the initial telephone hearing (AAA)? Do they ask why you'd request an in-person?

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