I have to pay the Arbitration filing? Only AAA allowed (Best Buy)

[SkyStillSunny]

I've always wondered this, but which credit card agreement applies on a debt collection? Is it always the most current, or when the account was opened, or when the account was defaulted?

If I do an MTC arbitration, does this agreement attached indicate that I have to pay the filing fee?

In the best buy cc agreement attached, it says this in the PAYMENT section.

We will pay your share of the arbitration fee for an arbitration of claims of $75,000 or less if they are unrelated to debt collection. Otherwise, arbitration fees will be allocated according to the applicable AAA rules.

And it looks like I'm only allowed to arbitrate with AAA. Does that mean I'll have to pay the fees to file since this is related to debt collection? I'm just wondering if the Best Buy credit card is something I should pursue arbitration with against PRA.

My_Best_Buy_Credit_Card_Agreement.pdf

[BackFromTheDebt]

2 hours ago, SkyStillSunny said:

I've always wondered this, but which credit card agreement applies on a debt collection? Is it always the most current, or when the account was opened, or when the account was defaulted?

If I do an MTC arbitration, does this agreement attached indicate that I have to pay the filing fee?

In the best buy cc agreement attached, it says this in the PAYMENT section.

We will pay your share of the arbitration fee for an arbitration of claims of $75,000 or less if they are unrelated to debt collection. Otherwise, arbitration fees will be allocated according to the applicable AAA rules.

And it looks like I'm only allowed to arbitrate with AAA. Does that mean I'll have to pay the fees to file since this is related to debt collection? I'm just wondering if the Best Buy credit card is something I should pursue arbitration with against PRA.

My_Best_Buy_Credit_Card_Agreement.pdf

That appears to be the meaning.

 

So unless this gets settled between the time of filing and when you pay, you will have to pay the fees.   

 

[SkyStillSunny]

The PRA attorney for this case told me that the judge would not hear my MTC arbitration (even though there is an arbitration clause), and went on to say that the debt was only $950 and that my best course of action would be to try to settle instead of taking it to arbitration, which would cost me more than double that if I did. He also said that PRA definitely WOULD arbitrate if I pursued that option. 

I presented my motion to the judge, and PRA objected saying that my CC agreement was not valid. Does anyone know where it states which CC agreement applies in a debt collection? I had a current agreement, and an agreement when the acct was defaulted. PRA attorney said I needed every agreement from when it opened (in 2008) until when it defaulted (2016). I didn't have all those agreements. The judge granted a continuance for me to get those agreements, but in the cc agreement database, it only goes back to 2011. How can I get it as far back as 2008, and is that really needed?

I have to go back to court next month now, and I do plan to arbitrate again. But should I try to settle if arbitration is going to cost me more than the debt? Since the clause says that in this case arbitration fees will be allocated according to the applicable AAA rules. Does anyone know what those fees would be? Looking for advice on how to pursue this one. Thank you!

State: GA

County: Forsyth

[BV80]

55 minutes ago, SkyStillSunny said:

The PRA attorney for this case told me that the judge would not hear my MTC arbitration (even though there is an arbitration clause), and went on to say that the debt was only $950 and that my best course of action would be to try to settle instead of taking it to arbitration, which would cost me more than double that if I did. He also said that PRA definitely WOULD arbitrate if I pursued that option.

I presented my motion to the judge, and PRA objected saying that my CC agreement was not valid. Does anyone know where it states which CC agreement applies in a debt collection? I had a current agreement, and an agreement when the acct was defaulted. PRA attorney said I needed every agreement from when it opened (in 2008) until when it defaulted (2016). I didn't have all those agreements. The judge granted a continuance for me to get those agreements, but in the cc agreement database, it only goes back to 2011. How can I get it as far back as 2008, and is that really needed?

The judge did hear it, didn't he?   So, the attorney was wrong.

There is absolutely no court ruling anywhere that says you have to provide copies of agreements for each year the account was open.    The proper agreement is the one that was in effect the last date the account was in good standing and you used the card. 

Why?  Because using the card shows you agreed to the terms of the cardmember agreement.   Read the agreement and you will find that very language.  

Now, once you provide a valid agreement to arbitrate, it is PRA's burden to show that the agreement is not enforceable.  From the U.S. Supreme Court.

"The party opposing arbitration bears the burden of showing that the agreement is not enforceable." Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 92, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000).

BTW, are they suing you for breach of contract?

[SkyStillSunny]

Ok, thank you @BV80. The judge did hear it, but asked the PRA attorney what his response was, and he objected to my motion, and then the judge granted the continuance. I wasn't sure if I needed the credit card agreement when it opened in 2008 bc I didn't have that, so when the judge granted the continuance, I didn't decline. Sorry, I wasn't confident in my paperwork and wasn't armed with enough info, so I just thought I'd better get my research in order and accept the continuance. When I go back I will state that case you mentioned. PRA is suing for Citibank/Best Buy on a debt. I don't see anything about breach of contract in the court docs. 

My default date was 8/2015, and the charge off date was 4/2016. However, I tried to pay on 5/2016, so which would be a valid cc agreement date?

PRA said they would proceed with arbitration, so should I go ahead and proceed with arbitration next month? Not sure if he was trying to scare me or force me to settle, but that's just what he said and seemed serious. According to the clause AAA can allocate arbitration fees according to their rules, so I guess it's very possible I might be responsible for fees to pursue this... 

[Brotherskeeper]

@SkyStillSunny 

https://www.adr.org/sites/default/files/Consumer Fee Schedule_0.pdf

https://www.adr.org/sites/default/files/Consumer Rules.pdf

Costs of Arbitration (including AAA Administrative Fees)* Arbitrator compensation is not included as part of the administrative fees charged by the AAA. Arbitrator compensation is based on a rate established by the AAA as set forth below. If a Preliminary Management Hearing is held by the arbitrator, the arbitrator is entitled to one-half the arbitration compensation rate for a full hearing day or a documents-only hearing. Once evidentiary hearings are held, the arbitrator is entitled to the full-day rate of compensation. The business shall pay the arbitrator’s compensation unless the consumer, post dispute, voluntarily elects to pay a portion of the arbitrator’s compensation. Arbitrator compensation, expenses as defined in sections (v) and (vii) below, and administrative fees (which include Filing and Hearing Fees) are not subject to reallocation by the arbitrator(s) except as may be required by applicable law or upon the arbitrator’s determination that a claim or counterclaim was filed for purposes of harassment or is patently frivolous.

Consumer Filing Fee—$200 (nonrefundable) Filing Fee—$200 (nonrefundable) Filing Fee—$200 (nonrefundable)

Business Filing Fee—$1,700 Arbitrator Compensation—$750 per case Filing Fee—$1,700 Hearing Fee—$500 Arbitrator Compensation—$1,500 per hearing day Filing Fee—$2,200 Hearing Fee—$500 Arbitrator Compensation—$1,500 per hearing day per arbitrator

(i) Filing Fees In cases before a single arbitrator, a nonrefundable filing fee capped in the amount of $200 is payable in full by the consumer when a case is filed, unless the parties’ agreement provides that the consumer pay less. A partially refundable fee in the amount of $1,700 is payable in full by the business, unless the parties’ agreement provides that the business pay more. This fee is due from the business once the consumer has met the filing requirements. In cases before three or more arbitrators, a nonrefundable filing fee capped in the amount of $200 is payable in full by the consumer when a case is filed, unless the parties’ agreement provides that the consumer pay less. A partially refundable fee in the amount of $2,200 is payable in full by the business, unless the parties’ agreement provides that the business pay more. This fee is due from the business once the consumer has met the filing requirements. There shall be no filing fee charged for a counterclaim. The AAA reserves the right to assess additional administrative fees for services performed by the AAA beyond those provided for in these Rules and which may be required by the parties’ agreement or stipulation.

[Harry Seaward]

6 minutes ago, SkyStillSunny said:

PRA said they would proceed with arbitration, so should I go ahead and proceed with arbitration next month? Not sure if he was trying to scare me or force me to settle, but that's just what he said and seemed serious.

Of course they said this, and of course they sounded serious. Lying liars is in their job description.  Once they realize what it's going to cost them, they will dismiss. They've walked away from debts 10x the amount of yours. 

[SkyStillSunny]

Thank you thank you @Brotherskeeper! 

Based on this, I think @Harry Seaward is right and they are probably trying to scare me (partially because they can tell I'm nervous), but I will just go in there with the correct cc agreement and request to arbitrate. If the attorney objects again, can I say something to that objection and say that I have a right to arbitrate and that I would like my MTC heard and submitted?

[Brotherskeeper]

This NY federal case contains some interesting info;

https://us-arbitration.shearman.com/siteFiles/12403/2016.01.08 McCormick v. Citibank, N.A., 1-15-cv-00046, No. 31 (W.D.N.Y. Jan. 8, 2016).pdf

"As set forth in the Affidavit of Citibank employee Susan Kwiatek, Citibank purchased the Best Buy credit card portfolio from Capital One in February 2013. See Dkt. No. 18-1(Kwiatek Aff.), ¶ 5. In October 2013, Citibank sent plaintiff a mailing containing an explanatory letter and “Notice of Change in Terms and Right to Opt Out” advising him that the Best Buy credit card program had been transferred to Citibank, and that among other changes, the card agreement governing his account was being replaced with a new one, a copy of which was enclosed with the mailing. See Dkt. No. 18-2, p. 20. The letter also advised plaintiff that his Best Buy credit card account number would remain the same; he should keep using the same card; and he should continue to make his payments payable to Best Buy Credit Services. Id. at 19."

"Also in October 2013, Citibank sent plaintiff a monthly billing statement which contained the following notice:
IMPORTANT INFORMATION REGARDING CHANGES TO YOU BEST BUY© CREDIT CARD ACCOUNT
–As of September 6, 2013, your Best Buy Credit Card Account is owned by Citibank, N.A.
–Changes to your account terms, including binding arbitration, are explained in a package being mailed to you separately. Id. at 25."

# # #

"Under New York law, regular use of a credit card constitutes sufficient evidence of the card user's consent to the terms of the agreement governing the account. Salerno v. Credit One Bank, NA, 2015 WL 6554977, at *4 (W.D.N.Y. Oct. 29, 2015) (citing cases). The same holds true under South Dakota law. See, e.g., Fedotov v. Peter T. Roach & Associates, P.C., 2006 WL 692002, at *2 (S.D.N.Y. Mar. 16, 2006) (use of credit card after mailing of Card Agreement binds user to arbitration clause; citing S.D. Codified Laws § 54-11-9 (providing “[t]he use of an accepted credit card ... creates a binding contract between the card holder and the card issuer”)."

# # #

"Based on this record, the court finds that upon using the Best Buy credit card for purchases following Citibank’s mailing of the Card Agreement with written notice of change of ownership and terms of the account, plaintiff agreed to be bound by the arbitration clause of the Card Agreement requiring that all disputes relating to the account be submitted to arbitration governed by, and enforceable under, the FAA. Accordingly, the first element of the four-part arbitrability inquiry is satisfied."

[BackFromTheDebt]

They feed on fear.

Don't let them see fear.  Let them see the arbitration filing.  They will walk away when they figure out they can't bully you.  

[Brotherskeeper]

@SkyStillSunny (I am not an attorney.) If it is alleged that you used the Best Buy card after Citibank purchased the portfolio from Capital One in Feb. 2013, you are bound by that 2013 agreement--according to the federal case I linked to above. (Caveat--if any previous contract included a survivability clause with provisions that work in your specific case.)  Any use after 2013 would bind you to the agreement in effect at the time you last used the card or defaulted on the account. Under Georgia law, like in South Dakota, use of the card constitutes a binding contract. See Davis v. Discover Bank, 277 Ga.App. 864, 865, 627 S.E.2d 819 (2006). https://scholar.google.com/scholar_case?case=17900426872761283881&q=Davis+v.+Discover+Bank,+277+Ga.App.+864,+865,+627+S.E.2d+819+(2006).&hl=en&as_sdt=4,11

"Discover need not produce a copy of Davis's application to establish the existence of a valid credit card debt.

[A] contract was effected in this case when the plaintiff issued its credit card to the defendant to be accepted by [him] in accordance with the terms and conditions therein set forth, or at [his] option to be rejected 821*821 by [him]. Such rejection need take the form of returning the card, or simply its non-use. The issuance of the card to the defendant amounted to a mere offer on plaintiff's part, and the contract became entire when defendant retained the card and thereafter made use of it. The card itself then constituted a formal and binding contract. [Cits.] (emphasis added by Brotherskeeper.)

Read v. Gulf Oil Corp., 114 Ga.App. 21, 22, 150 S.E.2d 319 (1966)."

[SkyStillSunny]

@Brotherskeeper If I didn't make a purchase, but made a payment, do you think that counts as consent to the credit card agreement? I'm assuming so.

[Brotherskeeper]

1 hour ago, SkyStillSunny said:

@Brotherskeeper If I didn't make a purchase, but made a payment, do you think that counts as consent to the credit card agreement? I'm assuming so.

I am not an attorney. As I understand it, making a payment is not the same thing as making a purchase or charge aka "use." Making a payment may indicate consent to a debt. You can make payments after a default. Cardholder agreement terms can change over time. Use of the credit card under S.D. Codified Laws § 54-11-9 (providing “[t]he use of an accepted credit card ... creates a binding contract between the card holder and the card issuer”). The cardholder terms in effect upon use, while the account was last in good standing before default, are binding. If there is a survivability clause in the cardholder agreement, then argument can be made that those terms are still in effect.

[fisthardcheese]

Of course the attorney said all of those lies in GA Magistrate Court.  That is what they do.  He want you to be scared and wants you to pay up.  He doesn't want you to know that once the judge says your MTC is granted that PRA will never follow you into arbitration.

You MUST read the arbitration clause (and entire card agreement) and you MUST read the AAA rules before you start these processes.  If you do that, you would see that the max you would have to pay for AAA is $200.  Since the card agreement clause says they will pay for any arbitration other than debt collection, if this were me, I would file a case against PRA that is NOT about debt collection.  I would file an FDCPA claim against them in AAA for the attorney making several blatant lies to me.  It is up to THEM to make a counter claim for the debt in AAA, which means THEIR claims, not mine, would be related to debt collection.  I would therefore, ask AAA to bill PRA for the consumer fee when I filed my paperwork.

When you go back to court, I would have the card agreement from your year of default with you.  I would state that Supreme Court case quote that @BV80 posted above.  I would also find the other case law (some of it in my sample MTC in the link below) that says if an agreement is valid that arbitration MUST be the resolution method.  I would point out to the judge that PRA has not objected to the validity of the card agreement and that having previous card agreements that are no longer in use by the bank should be irrelevant.  I would look at your full card agreement and see if it says anywhere on it that this agreement replaced any previous agreement.  If you can find that, then that is my proof that any agreement before this one is irrelevant, as this was the only governing agreement in affect at the time of the alleged action that this court case arises from (i.e. a default).

[SkyStillSunny]

UPDATE:

Went to my court date, and the attorney for PRA told the judge that I didn't want to mediate, so we had to go to trial. He didn't offer to dismiss after I told him that I still wanted to handle through arbitration. When we saw the judge, the attorney presented his case and talked about the debt, how I owed it, and that I had the account for 10 years, and that there was proof that it was my account. He submitted his evidence, then the judge asked if I had anything to say, in which I just said that I'd like to submit my MTC arbitration, and that I had a copy of my agreement when the "said account" was active. The judge gave my MTC to the attorney and asked if he had any objections to the evidence, and the attorney said YES! He then said that he had no idea where that agreement came from and that I printed it off the internet and that it was not admissable! That I needed the correct agreement for the year that the account went into default. But HA, I did have that agreement too. The only agreement that I was missing was when the account was last active (which was in 2015, and this is not available in the consumer agreement db -- how does everyone else find those agreements for 2015)?

However, I did have 4 different agreements and told the judge exactly where I found them and that every year since the account was opened until this year, that there WAS an arbitration clause. He took 10 minutes to read it over, and then finally said that he was going to grant a stay and that I had 90 days to file for arbitration and that he did not want to see us back in court and that I'd better send the court an update on the status of the arbitration or that he would find for the plaintiff and grant him the judgement in the full amount of the claim.

So now I guess I'll be starting the process for arbitration, and send that update to the court. I asked what I needed to do to give the court an update, and he said "you sure knew how to file a MTC, so you can figure that out". Had a feeling that he was annoyed that he had no other choice but to grant me the stay instead of finding for the plaintiff. 

Does anyone know how to send the court an update on the arbitration filings? Do I send them evidence that I filed with a case number, and that's it? Just trying to make sure that the judge doesn't automatically give PRA a judgement!

[BackFromTheDebt]

28 minutes ago, SkyStillSunny said:

UPDATE:

Went to my court date, and the attorney for PRA told the judge that I didn't want to mediate, so we had to go to trial. He didn't offer to dismiss after I told him that I still wanted to handle through arbitration. When we saw the judge, the attorney presented his case and talked about the debt, how I owed it, and that I had the account for 10 years, and that there was proof that it was my account. He submitted his evidence, then the judge asked if I had anything to say, in which I just said that I'd like to submit my MTC arbitration, and that I had a copy of my agreement when the "said account" was active. The judge gave my MTC to the attorney and asked if he had any objections to the evidence, and the attorney said YES! He then said that he had no idea where that agreement came from and that I printed it off the internet and that it was not admissable! That I needed the correct agreement for the year that the account went into default. But HA, I did have that agreement too. The only agreement that I was missing was when the account was last active (which was in 2015, and this is not available in the consumer agreement db -- how does everyone else find those agreements for 2015)?

However, I did have 4 different agreements and told the judge exactly where I found them and that every year since the account was opened until this year, that there WAS an arbitration clause. He took 10 minutes to read it over, and then finally said that he was going to grant a stay and that I had 90 days to file for arbitration and that he did not want to see us back in court and that I'd better send the court an update on the status of the arbitration or that he would find for the plaintiff and grant him the judgement in the full amount of the claim.

So now I guess I'll be starting the process for arbitration, and send that update to the court. I asked what I needed to do to give the court an update, and he said "you sure knew how to file a MTC, so you can figure that out". Had a feeling that he was annoyed that he had no other choice but to grant me the stay instead of finding for the plaintiff. 

Does anyone know how to send the court an update on the arbitration filings? Do I send them evidence that I filed with a case number, and that's it? Just trying to make sure that the judge doesn't automatically give PRA a judgement!

You seem to have the right idea.

When you file, send a copy to the court.

When you get confirmation from AAA, make a copy and send it to the court.  

When the case either joined by PRA, or more likely closed due to lack of payment, send that to the court.

If and when the case is closed due to lack of payment, file a motion for dismissal with prejudice.

 

[Brotherskeeper]

@SkyStillSunny You came prepared to argue, stood up against a licensed attorney and an annoyed judge, and prevailed on your motion. Well done! 

[Harry Seaward]

2 hours ago, BackFromTheDebt said:

He took 10 minutes to read it over, and then finally said that he was going to grant a stay

Bravo!!!

2 hours ago, BackFromTheDebt said:

Does anyone know how to send the court an update on the arbitration filings?

I would file a notice with the court when you start your arbitration case and pay the fee.  The notice will look like a motion you would file.  One paragraph is sufficient.  You shouldn't need to file anything else since I'm certain PRA will dismiss once AAA contacts them to pay their $1,700 fee.

[BackFromTheDebt]

3 minutes ago, Harry Seaward said:

Bravo!!!

I would file a notice with the court when you start your arbitration case and pay the fee.  The notice will look like a motion you would file.  One paragraph is sufficient.  You shouldn't need to file anything else since I'm certain PRA will dismiss once AAA contacts them to pay their $1,700 fee.

You quoted the wrong person in your post.

[Harry Seaward]

sorry

[fisthardcheese]

4 hours ago, SkyStillSunny said:

"you sure knew how to file a MTC, so you can figure that out"

Typical. LOL! 

Great job in court.  You did everything you were supposed to!

If this were me, I would do as @Harry Seaward suggests above and file a NOTICE with the court.  If it were me, I would file in in person with the clerk.  The notice will be formatted similar to your MTC with "NOTICE OF ARBITRATION FILING" or something similar as a header.  You can google court notice filings for a better template.  A short paragraph stating that you filed in JAMS on XX date and sent notice to the attorney.  I would attach copies of my CMRRR to JAMS as evidence, along with copies of my JAMS demand form.  I may even wait 30 days (since the judge gave you 90) and also attach a copy of the letter from JAMS confirming receipt of your demand.

I would save copies of everything I file with the court as well (ask the court clerk to stamp your copies and take them home with you).  I would make sure to bring my stamped copies of the notice to my next court date in 90 days.  I would expect to have to attend this next date and that PRA will not dismiss until you show up to court on this next hearing date.

 

[SkyStillSunny]

Sorry to revive this old topic, but I wanted to update you on the AAA filing. I did file, and the attached is what I got back from AAA. Looks like they won't work w/ PRA. I was expecting to get a dismissal from PRA, but it's been a few months and I've heard nothing from them. Is there anything I should proceed further with this? I never sent in the check (that the filing requires) based on information from here. I'm wondering if PRA can still proceed w/ this case when AAA refuses to arbitrate with them? Does this make sense to anyone? Thank you!

AAAresponse to PRA.pdf

[fisthardcheese]

22 hours ago, SkyStillSunny said:

Sorry to revive this old topic, but I wanted to update you on the AAA filing. I did file, and the attached is what I got back from AAA. Looks like they won't work w/ PRA. I was expecting to get a dismissal from PRA, but it's been a few months and I've heard nothing from them. Is there anything I should proceed further with this? I never sent in the check (that the filing requires) based on information from here. I'm wondering if PRA can still proceed w/ this case when AAA refuses to arbitrate with them? Does this make sense to anyone? Thank you!

AAAresponse to PRA.pdf

What's the status of your court case?

If it is still stayed pending arbitration then I would type up a Motion for Sanctions.  I would list the history of the case to remind the judge of all the steps so far and that he ordered the parties to arbitrate.  I would show that I filed, with my proof and that PRA did not do what they needed to do to stay in good standing with AAA and include a copy of this letter. I would state that, therefore, PRA has violated the court's order to arbitrate.  I would request that as part of the sanctions, the court dismiss the case with prejudice.

But before I file it, I would just send a copy to the attorney with a settlement agreement.  I would state that they are currently in violation of the court's order to arbitrate and you intend to file the attached motion for sanctions, however, as a courtesy you will hold off on filing the motion for 10 days and offer a mutual dismissal with prejudice to settle this case.  If they don't agree or don't respond in the 10 days, I would file my motion.

[LonnaT]

On 10/16/2018 at 3:31 PM, SkyStillSunny said:

Sorry to revive this old topic, but I wanted to update you on the AAA filing. I did file, and the attached is what I got back from AAA. Looks like they won't work w/ PRA. I was expecting to get a dismissal from PRA, but it's been a few months and I've heard nothing from them. Is there anything I should proceed further with this? I never sent in the check (that the filing requires) based on information from here. I'm wondering if PRA can still proceed w/ this case when AAA refuses to arbitrate with them? Does this make sense to anyone? Thank you!

AAAresponse to PRA.pdf

Can you keep us updated on what happens, especially if you follow fist's advice above? I'm now worried the same could happen to me because I just filed an AAA case against [].

Wonder if I'll have to go the JAMS route...

[SkyStillSunny]

Ok @FLnative, will keep you updated. I am going to see if I can find out the status of the case first. 

I remember when I said I wanted to arbitrate, the judge told me I'd have 90 days to settle this with arbitration and that if I didn't then he was going to find for the plaintiff and grant them their judgement. Now that AAA won't arbitrate with PRA, I just wonder if they have any grounds to say, well you didn't settle this with arbitration so I'm giving the plaintiff their settlement. I just didn't get a good feeling from the judge, and seemed like he was annoyed that he had to grant me the opportunity to arbitrate. At any rate, I'll keep you updated. Thanks for the advice @fisthardcheese. We'll see what happens.