fisthardcheese

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

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On 1/8/2021 at 4:31 PM, IrishNick said:

So I followed these steps and now I have to strike arbitrators as Discovers lawyers have paid the fee. Do you have any good links breaking down the Arbitration process? Pretty much out there flapping at the moment. Lol.

Just be careful here.  If you are dealing with Discover, the original creditor (OC), and NOT a collector, then Discover will not back down like a collector would.  I highly suggest that as soon as the arbitrator is selected, that you attempt to settle with Discover as best as you can.

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On 1/13/2021 at 12:11 PM, Lauren said:

Hi this forum has saved me from so much anxiety! Thanks! I am about to file for arbitration with FAA and I’ve already been in this lawsuit during covid which the original hearing had been cancelled and postponed Twice. So the newest setting This month now,have 16 days before the online hearing. Which should have taken place last February. I don’t know if my Motion to Arbitrate will be in in time! So I can bring it up during the hearing and I was going to file with FAA before so at the hearing I can say I already filed. Will that be a bad thing or a good thing? I’ve already had the Court Answer to which I denied owing the amount Velocity says I owed from 2015. Which they are asking for the full 10k which I made payments on and I know I don’t owe the full amount. When I ask them about their validation they say they bought my loan for 10.4k and want it all. So I feel I should fight that. I’m thinking arbitration might be better for me. Any thoughts or advice?

It would be best to start your own new post to get the most help from others.  I would very strongly urge you to find and read your court's rules.  I would guess there is a rule in there regarding the timeline to file motions. If you don't have your motion filed before the court date, the Judge is likely to not want to hear it at that time.  You can always ask for an extension of time before the trial date so you can then file your motion before the hearing.

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On 1/14/2021 at 5:23 PM, hi_cotton said:

I won a MTC for arbitration. The suing party motioned to dismiss WITHOUT prejudice. As I understand it, I am still under court order to demand Arbitration. Do I file my demand and other paperwork (Demand form, Court Order, Cover letter, and notice of service) with the clerk of court that granted the motion to compel? Or do I just send a copy with 'Notice of service' to AAA and the legal team who asked for the dismissal?

Court is no longer a factor in your case, so no need to file anything with them.  I would file the AAA case and send a copy of my Demand Form to the attorney.  Once they received it, I would follow up with a settlement offer asking for a mutual release of all claims in exchange for dropping your AAA case against them.  The mutual release is just as good as a dismissal with prejudice. It will be a new contract stating that you are forever released of ALL obligations regarding that account.

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I am working on a Demand for Arbitration through JAMS against Portfolio Recovery for a synchrony bank/amazon card.  They sued me for $973 in small claims in Indiana.

The small claims court judge granted me 60 days to file arbitration after I filed a motion to compel arbitration.  I am choosing to file with JAMS even through the lawyer responded to my motion with a response citing AAA and attaching AAA Rules and asking judge to order me to initiate arbitration with AAA within 60 days.  The judge responded with an order for me to commence arbitration within 60 days or consider my right to arbitration waived.  He did not specify I needed to file with AAA (or any specific company) and my card agreement states I may choose JAMS or AAA.  So, I am going with JAMS and assume this is ok and within my rights per card agreement and that said lawyer was trying to manipulate.

I did read the arbitration post by Fisthardcheese and have a couple questions.

1. I'm not sure what to put in the "Nature of Dispute/Claims and Relief sought by Claimant" section.  I have no evidence of violation of laws or fair debt collection practices.  Should I just put, "Billing dispute"?  and then put the $973 (amount of original lawsuit) under "Amount in Controversy"?

2. Where do I put the request for PRA to pay my JAMS filing fee?  And is there a example letter I can use?  Do I type it into the form or attach a separate document?  Should I also cite the "Waiver of Arbitration Fees" for being within 300% of federal poverty guidelines (I am not sure if my state participates in this, JAMS rep told me there are only 3 states that do this, but would not say which states) or just wait and mention that later if PRA refuses to pay? I'm probably going to leave this out for now.

 I am planning to send everything both by email and certified mail to both JAMS and PRA lawyer.  Any help is much appreciated!

 

 

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On 1/20/2021 at 4:24 PM, indiana gal said:

1. I'm not sure what to put in the "Nature of Dispute/Claims and Relief sought by Claimant" section.  I have no evidence of violation of laws or fair debt collection practices.  Should I just put, "Billing dispute"?  and then put the $973 (amount of original lawsuit) under "Amount in Controversy"?

Yes.  It's not my favorite claim to use, but with no other possible violation to put on them, I would go with this.  Additionally the low amount of this case makes it far less of a problem too.  They should want to get out of this fairly quickly.

On 1/20/2021 at 4:24 PM, indiana gal said:

2. Where do I put the request for PRA to pay my JAMS filing fee?  And is there a example letter I can use?  Do I type it into the form or attach a separate document?  Should I also cite the "Waiver of Arbitration Fees" for being within 300% of federal poverty guidelines (I am not sure if my state participates in this, JAMS rep told me there are only 3 states that do this, but would not say which states) or just wait and mention that later if PRA refuses to pay? I'm probably going to leave this out for now.

The Synchrony agreement is very clear they will pay your fees, so there is no need to file a waiver.  I always include a very short and simple cover letter with all of my documents I am filing and in that cover letter to JAMS, I state that this is for a court ordered CONSUMER arbitration, and that I am asking JAMS to bill the company any consumer portion of the filing fee per the enclosed contract.  I will even nicely highlight the line in the contract that says they will pay all fees so the JAMS admin can see it quite easily.  That is all you have to do. JAMS will know to bill the JDB and you won't have to talk about the fee issue again.

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On 2/15/2021 at 5:47 AM, fisthardcheese said:

Yes.  It's not my favorite claim to use, but with no other possible violation to put on them, I would go with this.  Additionally the low amount of this case makes it far less of a problem too.  They should want to get out of this fairly quickly.

The Synchrony agreement is very clear they will pay your fees, so there is no need to file a waiver.  I always include a very short and simple cover letter with all of my documents I am filing and in that cover letter to JAMS, I state that this is for a court ordered CONSUMER arbitration, and that I am asking JAMS to bill the company any consumer portion of the filing fee per the enclosed contract.  I will even nicely highlight the line in the contract that says they will pay all fees so the JAMS admin can see it quite easily.  That is all you have to do. JAMS will know to bill the JDB and you won't have to talk about the fee issue again.

Ok, thank you.  I wasn't sure because the wording makes it sound like they will pay only if you prevail in your case (win?). 

***Do I need to send this cover letter to my JDB's attorney also or just to JAMS??

Is there a sample cover letter I could use as a guide for this?  I'm not sure whether to do a business cover letter or more of a legal document format.    I couldn't find an example letter, so I am just doing a business letter format at the moment.  But not sure whether I need to send the cover letter to JDB attorney also?

 

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On 2/16/2021 at 8:24 PM, indiana gal said:

Is there a sample cover letter I could use as a guide for this?  I'm not sure whether to do a business cover letter or more of a legal document format.    I couldn't find an example letter, so I am just doing a business letter format at the moment.  But not sure whether I need to send the cover letter to JDB attorney also?

A standard business letter.  Everything you send to JAMS should be duplicated and sent to the attorney as well. That includes the cover letter.

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I just received a notice in the mail from PRA's attorney that they filed a Motion to Dismiss the case in court and the small claims court judge granted a dismissal with prejudice of the case against me.  So, I was very happy to get that news!  I started to get a bit worried because the case manager from JAMS said that the arbitration clause did not necessarily mean PRA would have to pay.  So, I am now going to request to dismiss the arbitration case with JAMS, or should I just let it be dismissed for nonpayment by PRA?

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3 hours ago, indiana gal said:

I just received a notice in the mail from PRA's attorney that they filed a Motion to Dismiss the case in court and the small claims court judge granted a dismissal with prejudice of the case against me.  So, I was very happy to get that news!  I started to get a bit worried because the case manager from JAMS said that the arbitration clause did not necessarily mean PRA would have to pay.  So, I am now going to request to dismiss the arbitration case with JAMS, or should I just let it be dismissed for nonpayment by PRA?

Wait until the court grants the dismissal.  Then close the case with JAMS.  

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On 1/17/2021 at 3:30 PM, fisthardcheese said:

Just be careful here.  If you are dealing with Discover, the original creditor (OC), and NOT a collector, then Discover will not back down like a collector would.  I highly suggest that as soon as the arbitrator is selected, that you attempt to settle with Discover as best as you can.

First teleconference is tomorrow. 4 Lawyers vs. Me. My only income is 100% Permanenet  and total Veterans disability. I got PTSd, TBI, MDD. No matter how many lawyers they have I got no money to pay them.

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I just want to say thank you to everyone who contributes to these boards but especially to fisthardcheese for his amazing post Arbitration Overview and Strategy (2018 - Most Up To Date Info) and all the advice that he provides on these boards.  Thanks to him I was able to win my first case and obtain a dismissal with prejudice, I would not have been able to do that without all the priceless advice that he has provided.  I'm on to the 2nd case one now, hoping for the same results.

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I just mailed my MTC arbitration on a suit from Jefferson Capital Services, (paypal credit debt) There are 9 cases by the same junk buyer on my same court date. Looks like they are batching cases to reduce attorney cost per debtor. There are also 90 cases in all for two hour window. I thinks this will be split by two judges.  My court date is May 03, 2021. I expect the Judge to grant my request  if only to lighten his case load.  I am in Virginia where you do not have to file Answer before court date so I didn't.  Thank you everyone that contributed to this thread.  

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PayPal Credit has a great arbitration clause.  

RESOLVING A DISPUTE WITH ARBITRATION
PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL BE LIMITED.
1. CLAIMS AND PARTIES. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you (including any other user of your account), and us (including our parents, affiliates, agents, employees, officers, and assignees, and PayPal, Inc. and its affiliates) that directly or indirectly arises from or relates to your account, your account Agreement or our relationship, except as noted below. In addition, any assignee, agent, or service provider of ours that collects amounts due on your account are intended beneficiaries of this Arbitration section and may enforce it in full (notwithstanding any state law to the contrary).
2. This Arbitration section broadly covers claims based upon contract, tort, consumer rights, fraud and other intentional torts, negligence, constitution, statute, regulation, ordinance, common law and equity and claims for money damages and injunctive or declaratory relief, even if they arose before this section took effect. You may not sell, assign or transfer a claim.
3. Examples of claims subject to arbitration are disputes about an account transaction, fees, charges or interest, the events leading up to the Agreement (such as any disclosures, advertisements, promotions or oral or written statements, warranties or representations made by us), an application for or denial of credit, any product or service provided by us or third parties in connection with the Agreement, credit reporting, benefit programs related to your account including any reward program, the collection of amounts due by our assignees, service providers, or agents and the manner of collection.
4. However, we will not require you to arbitrate any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court. Also, even if all parties have opted to litigate a claim in court, you or we may elect arbitration with respect to any claim made by a new party or any claim later asserted by a party in any related or unrelated lawsuit, including modifying an individual claim to assert a class, representative or multi-party claim. Arbitration may be requested at any time, even where there is a pending lawsuit, unless a trial has begun, or a final judgment entered.
5. Only a court will decide disputes about the validity, enforceability, coverage or scope of this Arbitration section or any part thereof. However, any dispute that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator to decide.
6. NO CLASS ACTIONS. IF EITHER YOU OR WE ELECT TO ARBITRATE A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT (A) TO PARTICIPATE IN A CLASS ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION IN COURT OR IN ARBITRATION, EITHER AS A CLASS REPRESENTATIVE OR CLASS MEMBER, OR (B) TO JOIN OR CONSOLIDATE CLAIMS WITH CLAIMS OF ANY OTHER PERSONS EXCEPT ACCOUNTHOLDERS ON YOUR ACCOUNT. THUS, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY ACCOUNTHOLDER WHO IS NOT AN ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE.
7. PROCEDURES. The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to Synchrony Bank, Legal Operation, P.O. Box 29110, Shawnee Mission, KS 66201-5320, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select either the American Arbitration Association (AAA),
120 Broadway, Floor 21, New York, NY 10271, www.adr.org, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, to administer the arbitration. If neither administrator can handle the dispute, a court with jurisdiction will appoint an arbitrator.
8. The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of legal experience. The arbitrator must apply the same law, consistent with the Federal Arbitration Act (FAA), that would apply to an individual action in court, but may use different procedural rules. The arbitrator will apply the same statutes of limitation and privileges that a court would apply if the matter were pending in court.
9. The arbitrator may award any damages or other relief or remedies that would apply under applicable law to an individual action brought in court, including, without limitation, punitive damages (governed by the Constitutional standards employed by the courts) and injunctive, equitable and declaratory relief (but only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim). The parties will bear the fees and costs of their attorneys, witnesses and experts. However, the arbitrator will have the authority to award fees and costs of attorneys, witnesses and experts to the extent permitted by the Agreement, the administrator’s rules or applicable law.
10. The arbitration will take place by phone or at a location reasonably convenient to you. If you ask, we will pay all the fees the administrator or arbitrator charges if you cannot obtain a waiver of fees from the administrator and are acting in good faith. We will always pay arbitration costs required by the administrator’s rules or that are necessary for this Arbitration section to be enforced.
11. GOVERNING LAW. This Arbitration section is governed by the FAA. Utah law shall apply to the extent state law is relevant under the FAA, unless otherwise stated herein. The arbitrator’s award will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award. The arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award.
12. SURVIVAL. This Arbitration section shall survive the repayment of all amounts owed, the termination, cancellation or suspension of the Agreement or your account or credit privileges, any legal proceeding, and any bankruptcy by you, to the extent consistent with applicable bankruptcy law. If this Arbitration section conflicts with the applicable arbitration rules or the other provisions of the Agreement, this Arbitration section shall govern.
13. SEVERABILITY. If any portion of this Arbitration section is held to be invalid or unenforceable, the remaining portions shall nevertheless remain in force with the following two exceptions. First, if a determination is made that the “No Class Actions” provision is unenforceable, and that determination is not reversed on appeal, then this Arbitration section shall be void in its entirety. Second, if a court determines that a public injunctive relief claim may proceed notwithstanding the “No Class Actions” provision, and that determination is not reversed on appeal, then the public injunctive relief claim will be decided by a court, and any individual claims will be arbitrated. The parties will ask the court to stay the public injunctive relief claim until the other claims have been finally concluded.
14. HOW TO REJECT ARBITRATION. You may reject this Arbitration section. If you do that, a court will resolve any dispute or claim. To reject this section, send us a notice within 45 days after you open your account or we first provided you with your right to reject this section. The notice must include your name, address, account number, and personal signature, and must be mailed to Synchrony Bank, P.O. Box 965012, Orlando, FL 32896-5012. This is the only way you can reject this section. Rejecting this Arbitration section will not affect any other provision of the Agreement. It will also not affect any prior arbitration agreement or dispute resolution provision between you and us, which will remain in full force and effect. If you don’t reject this Arbitration section, it will be effective as of the date of the Agreement and will supersede any prior arbitration agreement between you and us that would otherwise be applicable.

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found this in my SPAM  (I think I can do better what do you all think)

We are in receipt of your demand for arbitration. I wanted to reach out to you to begin a discussion about the arbitration process.

 First, we will honor your request, if you still decide that is the best route for you.

 Arbitration can cost thousands of dollars, and will be awarded to the successful party.

 

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25 minutes ago, Bulldoger said:

Arbitration can cost thousands of dollars, and will be awarded to the successful party.

That is true but ONLY if the arbitrator awards costs to the plaintiff.   Did you demand JAMS or AAA?

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It is extremely rare for the arbitrator to award costs.  I may be wrong, but at least one and possibly both of the two venues forbid it in consumer cases   
 

If that is the case, they may be committing an FDCPA violation by misrepresenting the legal status of the debt   
I am not sure. But that is something to look into  

 

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1 hour ago, BackFromTheDebt said:

It is extremely rare for the arbitrator to award costs.  I may be wrong, but at least one and possibly both of the two venues forbid it in consumer cases   
 

If that is the case, they may be committing an FDCPA violation by misrepresenting the legal status of the debt   
I am not sure. But that is something to look into  

 

I don’t think there’s a possible FDCPA violation due to the following statement in the agreement and the rules of the arbitration forums.

However, the arbitrator will have the authority to award fees and costs of attorneys, witnesses and experts to the extent permitted by the Agreement, the administrator’s rules or applicable law.”

AAA Consumer Rules

”(a) The arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorney’s fees and costs, in accordance with the law(s) that applies to the case.”

JAMS Rules

“(f) The Award of the Arbitrator may allocate attorneys' fees and expenses and interest (at such rate and from such date as the Arbitrator may deem appropriate) if provided by the Parties' Agreement or allowed by applicable law. When the Arbitrator is authorized to award attorneys' fees and must determine the reasonable amount of such fees, he or she may consider whether the failure of a Party to cooperate reasonably in the discovery process and/or comply with the Arbitrator's discovery orders caused delay to the proceeding or additional costs to the other Parties.”
 

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Thanks for the replies, 

I know in Virginia in district court they can't get attorney cost.  I can argue they should not get then in arbitration either if we get there.  If I can get it down to 30% I will settle. I countered with 25% offer.  I like the last line "However, if you decide to make the monthly payments, we ask that you withdraw your arbitration demand and allow a judgment in the full balance be entered." As if that will ever happen.  

 

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46 minutes ago, BV80 said:

I don’t think there’s a possible FDCPA violation due to the following statement in the agreement and the rules of the arbitration forums.

However, the arbitrator will have the authority to award fees and costs of attorneys, witnesses and experts to the extent permitted by the Agreement, the administrator’s rules or applicable law.”

AAA Consumer Rules

”(a) The arbitrator may grant any remedy, relief, or outcome that the parties could have received in court, including awards of attorney’s fees and costs, in accordance with the law(s) that applies to the case.”

JAMS Rules

“(f) The Award of the Arbitrator may allocate attorneys' fees and expenses and interest (at such rate and from such date as the Arbitrator may deem appropriate) if provided by the Parties' Agreement or allowed by applicable law. When the Arbitrator is authorized to award attorneys' fees and must determine the reasonable amount of such fees, he or she may consider whether the failure of a Party to cooperate reasonably in the discovery process and/or comply with the Arbitrator's discovery orders caused delay to the proceeding or additional costs to the other Parties.”
 

PRA was awarded arbitration costs when I lost in Arb late last year. (AAA)

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here is 

1 minute ago, catlady22 said:

PRA was awarded arbitration costs when I lost in Arb late last year. (AAA)

Sad to hear that surprised PRA took it that far. Did that include attorney cost and travel, witnesses, hotels,  etc..I am looking to settle as I don't have time  to litigate got medical issues in family. The offer presented seems to have come from the law offices of Ben Dover and C.  Howle Fields.   I countered with a reasonable low offer.  I expect we will settle before ruling in arbitration.  

this is how i countered.  

There are no guarantees that the Arbitrator will award your cost of Arbitration if I were to lose.  I have and equal chance if not better of winning in Arbitration than in district court. 

            I am open to working a reasonable mutual settlement.   

I am willing to make a single lump sum payment of 25% to settle this account in full provided you dismiss the case with prejudice and do not relist this back on my credit reports. 

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7 hours ago, catlady22 said:

PRA was awarded arbitration costs when I lost in Arb late last year. (AAA)

Unfortunately, true.  🙁

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