Tiglit18

California Verified Complaint OC Barclay Nelson Kennard

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18 hours ago, Tiglit18 said:

I’ve been doing some homework and I’m trying to mentally prepared for battle. I’m willing and ready to take this all the way through appeals - I’m realistic on my standing being it’s an OC and if anything this is just buying me time to hopefully have a decent settlement offer. I do have some process related questions that hopefully you can help me with.

My understanding is now that an arbitrator has been selected by AAA I must get approval from the arbitrator to add/amend my claim. My initial claim was a generic “other disputes”. I feel as though I need to have a real claim and I’m having trouble identifying one without bringing up the collection suit. As you mentioned before, I don’t want to essentially sue myself by listing the debt in my claim. Any common claims that are typical when dealing with an OC that won’t have me fighting myself?

At this point no payments have been made by the OC nor did they respond with an answer or counter-claim by the deadline early last week.

I also feel I should be requesting an initial conference call with the arbitrator so we are all on the same page. Will they grant this if they have not been paid yet? Should I request it now regardless if payment was made?

If the OC plays along, pays the invoice but doesn’t file a counter-claim will that mean they won’t have to right to continue their debt collection pursuit in court?

Arbitrator fees - in the initial acceptance letter AAA noted the case was designated as a desk arb with a daily arbitrator fee of $1700. I immediately requested an in person hearing but did not get a response. When the arbitrator was selected I noticed that the fee chart changed to $2500 per day. Does that mean they granted my request? 

If an arbitrator was selected, then the other side has at least paid the initial filing fee of $1200.  I would not send any communication at this point.  AAA or the selected arbitration will email all parties to set up the initial phone conference. You will not need to do so, and if it were me, I would not rush this process.  However, to prepare, I would watch for the following:

1. Counter claims.  If the OC files or asks to file a counter claim, I would answer that with an immediate written objection and cite the rule number showing the number of days they have to file the counter claim and ask that it be stricken or not allowed as untimely.  However, I would prepare for the arbitrator to allow it anyway.  Also note, that if you file an amended claim, this resets the clock and allows the other side to timely respond with a counter claim according to the rules.

2.  An amended claim.  If you wish to file an amended claim you should ask the arbitrator during the initial phone conference.  If your initial demand was vague he will likely ask for this anyway, or a "list of claims".  Again, just know that when you file this, it does give the OC a new time limit to file their counter claim.

3.  Objections and watching carefully.  Always file objections when the other side doesn't do something according to the rules.  If they just happen to not file a counter claim, then don't say anything until the hearing.  At the hearing if they should bring up the debt, I would object and note that this is not part of the claims of the case and should not be entered into the matter.  Also since you have already objected to a desk arbitration, I would make sure to ask the arbitrator during the initial phone conference if he has a copy of your objection and state that you are requesting an in-person hearing.  I would expect for the other side to object to this, and I would have an answer ready as to why you believe you should have an in-person hearing.  I would expect the arbitrator to rule as a compromise for a phone hearing, which is the usual in my AAA experiences.

4.  Claims.  With an OC, I generally check my credit reports very carefully, comparing the 3 of them to each other along with the lawsuit complaint and any statements they have sent.  I look for any discrepancies on amounts and/or dates that can potentially become FCRA claims.  I also want to think about my cell phone records and any potential TCPA claims. There are also state law claims such as UDAP issues that sometimes can be found.  TILA is another possible area, though that statute is a lot more complicated than the other 3.

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@fisthardcheese

thank you for the detailed response.

Update...

Nothing new to report just yet but the time has now passed where the parties could request the removal of the assigned arbitrator. 

Move been going through phone records and credit reports but haven’t been able to really identify any sort of potential claims. In the meantime I am also reading up on the arb rules. The OC has not made any contact or settlement offers.

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If you haven't yet, this could be a good time to send an offer to their attorney and let them know that "in the interest of further time and expense" you are willing to dismiss with prejudice your arbitration case against their client in exchange for a dismissal with prejudice of the court case against you.  Give them an expiration date for your offer.  I usually give them 2 weeks or so.  "This offer expires on August XX, 2018".  It can't hurt to throw out the offer and see what they say.  This is a good time to do so because they probably have a AAA bill sitting on their desk that they haven't paid yet and this gives them another option to think about other than paying that bill.

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On 8/16/2018 at 10:29 PM, fisthardcheese said:

If you haven't yet, this could be a good time to send an offer to their attorney and let them know that "in the interest of further time and expense" you are willing to dismiss with prejudice your arbitration case against their client in exchange for a dismissal with prejudice of the court case against you.  Give them an expiration date for your offer.  I usually give them 2 weeks or so.  "This offer expires on August XX, 2018".  It can't hurt to throw out the offer and see what they say.  This is a good time to do so because they probably have a AAA bill sitting on their desk that they haven't paid yet and this gives them another option to think about other than paying that bill.

This is exactly what I’m thinking. AAA just gave them a bill for $4400. I will report back with any updates.

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Or you can  get an a copy of your credit reports, all of them, and not the version you get from Credit Karma or Experian online, and see if they're attorney firm or any members of their firm including attorneys, hold your credit report during litigation that's not only a felony but it is a violation of the fcra too I believe. And then you go and get a case filed in federal court or state if you have local laws that apply, and use your filing as a leverage tool to make this all go away even!

 

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1 hour ago, bob5150 said:
 

Or you can  get an a copy of your credit reports, all of them, and not the version you get from Credit Karma or Experian online, and see if they're attorney firm or any members of their firm including attorneys, hold your credit report during litigation that's not only a felony but it is a violation of the fcra too I believe. And then you go and get a case filed in federal court or state if you have local laws that apply, and use your filing as a leverage tool to make this all go away even!

 

Where do you get your information?   The FCRA specifically states that it’s a permissible purpose to obtain a credit report if an entity "intends to use the information in connection with a credit transaction involving the consumer on whom the information is to be furnished and involving the extension of credit to, or review or collection of an account of, the consumer." § 1681b(a)(3)(A)

 What is this “hold your credit report during litigation” business? 

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Update! @fisthardcheese

Things have been slow but finally had the initial conference call. Since my claim didn’t give any specific the arbitrator asked for some details. I gave a little info about harassing phone calls from the law firm. I did not request any money in my claim and the respondent never filed a response. Barclays lawyer said that they took me to court due to money’s owed but they have yet to file a response with the arbitrators. 

The arbitrator set the discovery deadline and the first hearing for early next year. 

Question 1: since Barclay has not officially made a response or counter claim, is the whole thing going to be based on my claim alone? Barclay mentioned on the phone that they were pursuing me for the debt but nothing has been provided in writing to the arbitrator or per the consumer rules. Obviously I’ll object if they try to respond see late in the process.

Question 2: if we proceed to the hearing with only my claim and let’s just say since I don’t have much in violations the arbitrator rules in Barclays favor. What exactly will they get if they have not filed a counter claim demanding the amount they claim I owed in county court?

Question 3: Should I provide an updated claim outlining the violations before the discovery date? 

Looking for some guidance on how to play this out to my advantage or at least cause them some expense along the way. 

 

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18 hours ago, Tiglit18 said:

Update! @fisthardcheese

Things have been slow but finally had the initial conference call. Since my claim didn’t give any specific the arbitrator asked for some details. I gave a little info about harassing phone calls from the law firm. I did not request any money in my claim and the respondent never filed a response. Barclays lawyer said that they took me to court due to money’s owed but they have yet to file a response with the arbitrators. 

The arbitrator set the discovery deadline and the first hearing for early next year. 

Question 1: since Barclay has not officially made a response or counter claim, is the whole thing going to be based on my claim alone? Barclay mentioned on the phone that they were pursuing me for the debt but nothing has been provided in writing to the arbitrator or per the consumer rules. Obviously I’ll object if they try to respond see late in the process.

Question 2: if we proceed to the hearing with only my claim and let’s just say since I don’t have much in violations the arbitrator rules in Barclays favor. What exactly will they get if they have not filed a counter claim demanding the amount they claim I owed in county court?

Question 3: Should I provide an updated claim outlining the violations before the discovery date? 

Looking for some guidance on how to play this out to my advantage or at least cause them some expense along the way. 

 

Absolutely, the entire arbitration should be based on your claims alone.  HOWEVER, I would look for  Barclay's to file a counter claim as soon as they figure this out, and even though you will strongly object to the filing of new claims beyond the date allowed by the rules and that were never mentioned during the initial conference call, it is likely the arbitrator will allow them to stick anyway.  So I would watch for that.  Also, if you file an amended claim (by adding new claims not mentioned in the initial filing), that resets the clock and then allows Barclay's to file their counter claim within the rules' time limits.

Did the arbitrator ask for a list of claims or set a deadline for details of a brief of your claims?

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@fisthardcheese

no kidding this process just drags on. The OC has not filed any counter claim this whole time. We have discover due later this month and the case will be heard in Feb. 

I made an additional attempt to settle and they actually came down to an amount I’m willing to pay. Here is the deal - I’ve settled a 4 other accounts but this is the first time I have been given a “Stipulation for Entry Judgement”. Reading it doesn’t seem too favorable for me although I’m completely confident in paying it in full. Here are the terms:

1. We agree that Plaintiff will have judgement against D for full amount.

2. I agree that the total is due owed and unpaid.

3. Judgement will not be entered if I pay a compromised amount of X by X date at which point the composmisef amount will be paid in full.

6. If I make all payments described in section 3 then P will dismiss with prejudice.

7. If I default they will get judgement in their favor of the balance listed in section 1, all fees, etc.

8. This is a judicially supervised settlement in accordance with CC 664.6

9. Upon execution I release plaintiff of any and all claims

10. I waive CCC 1542

13. Obligations are binding upon me alone.

 

My thoughts are I want something in there about them deleting the tradeline account. I also don’t like #2 admission of the debt and owing the full amount.

 

Any suggestions on how I can modify this? Is it more standard and I am just reading it as something in their favor?

 

thanks for any help :)

 

 

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If it were me, I would not agree to a stipulated judgement against me when I am in arbitration and that arbitration case does not even have any claims against me. 

What I would do is ask for discovery that pertains to your claims only in arbitration.  If they send any discovery requests that have anything to do with the debt at all, I would respond with objections as being irrelevant to your claims brought against them.  If they push on it, I would ask the arbitrator for a hearing regarding discovery issues.  At the hearing, I would ask what their discovery has to do with your claims.  When they mention the debt, I woujld object and state that they have no claims regarding any alleged debt in this arbitration.  I would just let this entire thing play out and unfold while trying not to laugh too hard on the phone with them.

Think about this:  You have a court ordered arbitration order.  The arbitration case has no claims against you.  They are paying for the entire thing (which they don't want to do).  Why on earth would you settle in THEIR favor by paying them AND getting a stipulated judgement against yourself?  I would counter their offer with $500 payment to me and a dismissal with prejudice of their court action in exchange for a dismissal with prejudice of my arbitration action against them.

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Well it’s been a lot of hurry up and wait but after some back and forth I got myself a dismissal with predjudice! Everything was agreed upon outside of arbitration and filed in court. They spent about $5800 in arb fees  and didn’t get the debt paid so all in all a big win for me. 

 

Thank you you all for your help! @fisthardcheese

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Great to hear!!  How long did it take them to figure out they never counter claimed in arbitration for the debt? LOL 🤣

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16 hours ago, Tiglit18 said:

Almost 8months I believe lol

This is a great example of how to deal with an OC in arbitration.  The OC will take things further along than any JDB will, but if you continue to proceed with the steps of arbitration, acting as if you are very content on letting the process play out in full, -- and even when presented with a horrible "settlement deal" from them that included a stipulated judgement -- you will eventually get a more favorable settlement. In this case, a mutual dismissal with prejudice, which is perfect!!  This can be done with just about any OC except, of course, Discover and AmEx.

Great job again, and a good example for others to use going forward!

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Thanks @fisthardcheese for all your helpful responses and postings on other people’s cases. I’ve learned a bunch on here and it’s helped me tremendously!

Speaking of OC’s like Discover and BofA. Being that there is no Arb clause is it best to just settle? For example, Discover just sent me a settlement offer equal to 30% of what I owe. Is that a jump on it kind of offer?

BofA on the other hand is not budging at all and I’m afraid will file any day now. Any thoughts other then proceeding in court and hoping for a settlement offer along the way? 

 

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I believe Discover has an arb clause, but they are said to be aggressive and will follow you into arb despite the costs.  But a settlement offer from them for 30%  of the debt sounds good, given their aggressive reputation.  Then again, Discover didn't pursue me at all for a debt over $5K.  

BofA was very non-aggressive, and quickly sold the accounts to JDBs.  But that was over 10 years ago.  Maybe their approach has changed.

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On 3/26/2019 at 11:56 PM, Tiglit18 said:

Speaking of OC’s like Discover and BofA. Being that there is no Arb clause is it best to just settle? For example, Discover just sent me a settlement offer equal to 30% of what I owe. Is that a jump on it kind of offer?

My opinion is yes.  I would take a 30% deal with Discover. Discover is rather inconsistent lately.  They may give up, but they may also follow you through all the way and then want the full amount afterwards.  I would rather take the 30% deal because your odds are not as nice as they would be with another OC or a JDB.

9 hours ago, nobk4me said:

BofA was very non-aggressive, and quickly sold the accounts to JDBs.  But that was over 10 years ago.  Maybe their approach has changed.

BoA is a very tough one. There is no arbitration in order to gain leverage for a better settlement.  You almost are just at their mercy. 

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