Cstrong

Judge denied mtc arbitration

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I am being sued by midland funding and portfolio recovery. Both are synchrony accounts. I filed my motion for arbitration and both were denied. The lawyer from midland told the judge it would be inconvenient for them and too costly. Then she said the card agreement with the arbitration clause was not valid because they are suing on account stated. I thought I was prepared for this response and even quoted the supreme court ruling from my motion about arbitration contracts being upheld. The judge agreed with the lawyer and denied my motion.

The lawyer from portfolio recovery just quoted a few stipulations from the agreement about arbitration not being required for debt collection disputes. I argued that just because it is not required does not mean it is prohibited. The judge (same one) argued for the lawyer that the basis of the claim was for account stated and the cc agreement didn't apply. When did the judges start arguing the cases for the lawyers?

Should I just give up and let them enter a judgment? I have nothing to pay to even try to settle. It seems impossible to win when I am fighting against the lawyers and the judge. 

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I'd be looking at appeals on both. Perhaps you can consolidate both into a single appeal since your argument is identical for both.

Most jurisdictions require an appeal notice within a few days of the judgment so I wouldn't mess around if you have any inkling of going this route. 

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2 hours ago, Cstrong said:

There is no judgment yet to appeal. The motion was denied and a new pretrial date set.

Was your motion to compel based on Florida state arbitration statutes, or the FAA (or both)?  If it was based on the Florida state statutes, an immediate interlocutory appeal of the denied motion is allowed, but you probably have to act fast.

Quote

Florida’s Arbitration Code, found in Ch. 682 of the Florida Statutes, reveals the legislature’s position favoring arbitration. By statute, if a party moves to compel arbitration and arbitration is denied, an automatic, interlocutory appeal is authorized. Fla. Stat. §682.20(1)(a)

See here.

Here is an example of an appeal where the order denying the motion to compel was affirmed due to a small claims carve out.  The small claims language in the appeals case is from a Wells Fargo arbitration agreement, which has different small claims language than the asymmetrical small claims language in the synchrony agreements at issue in your case:

MasonTimothy512014AP0008APAXWS.pdf

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Thanks. I think I am just out of luck. My motion was based on FAA because that is what it said in the cc agreement. The judge said I have no right to arbitration because the cc agreement doesn't matter with an account stated claim. I don't know how to argue this. 

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The FL appeals court would only have jurisdiction to consider an appeal pursuant to Fla. Stat. §682.20(1)(a) for a denied motion to compel that was made pursuant to §682.03.

You could try the appeal anyway, but there is a chance that the appeals court would decline jurisdiction.  You could also try a motion for reconsideration with the current court just so as to get some reference to the Florida arbitration statutes into the record.  Then maybe if the motion for reconsideration is denied, you could appeal then.  You'll have to check your local rules and case law to see if this is possible.

The cc agreement doesn't matter for them to prove their claim, but it is still in full effect and it states that all claims are subject to arbitration.  The fact that they don't need to use the agreement to prove their damages doesn't necessarily mean that you can't enforce the arbitration agreement on any claim.

If you decide not to pursue an interlocutory appeal of the denied motion to compel, you can use the time between now and the end of the case to work on an appeal after judgment.

Or you can explore Midland's policy of discontinuing collection efforts for anyone who provides a statement that they have no income or assets, if that applies to your situation.  See a recent example here.

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Unfortunately the no assets doesn't apply to me. I have no income but they can attach a lien to my house for up to 20 years in FL. I don't plan on ever moving so it's not really a big deal. 

I was wondering since the judge deemed there is no enforceable contract for arbitration if I could argue that the jdb has no standing to sue since the only right they have as an assignee is in the cc agreement.

Or could I counter claim for breach of contract which would bring the agreement back into play. I know that the judge is very creditor friendly as he argued for the jdb lawyer while the lawyer just sat there and he will probably shut me down no matter what case law I present on the contrary. 

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11 minutes ago, Cstrong said:

I was wondering since the judge deemed there is no enforceable contract for arbitration if I could argue that the jdb has no standing to sue since the only right they have as an assignee is in the cc agreement.

If the court went along with the plaintiff's arguments before, why would it change tack now?

16 minutes ago, Cstrong said:

Or could I counter claim for breach of contract

The party that breaches a contract first cannot claim the other party later breached the contract. 

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3 hours ago, Cstrong said:

... I have no income ...

Being unemployed and having no income may be enough (but maybe not).  Read the policy and the entirety of the previously linked thread.  There is the possibility of offer and acceptance based on the public policy, but only if you make some attempt at acceptance.

 

3 hours ago, Cstrong said:

 I could argue that the jdb has no standing to sue since the only right they have as an assignee is in the cc agreement.

The purpose of referencing assignees in the agreement is so that the agreement language can apply to, or be enforced by, those assignees.  But the assignee in this case is apparently not interested or attempting to apply or enforce the agreement language. That would be their argument at least.  That argument may be weak or somehow incorrect.

 

3 hours ago, Cstrong said:

Or could I counter claim for breach of contract which would bring the agreement back into play. I know that the judge is very creditor friendly as he argued for the jdb lawyer while the lawyer just sat there and he will probably shut me down no matter what case law I present on the contrary. 

You could, but it probably won't do any good.  The arbitration agreement is a separate contract from the rest of the agreement.  The arbitration agreement states that any dispute between the parties is subject to arbitration.  The plaintiff isn't arguing that you've breached any part of the agreement, either the separate arbitration agreement or the whole contract, so first breach wouldn't apply to either (and it would never apply to the separate arbitration agreement unless you breached that agreement in particular).  Based on what you say about this judge, none of these arguments are likely to work with him.

The better strategy is to get the arbitration question before the appeals court as I explained previously.  By a motion for reconsideration based on §682.03, and then an interlocutory appeal –  if such is possible.  Or, perhaps FL might have something like special action jurisdiction, where the appeals court would accept jurisdiction of the denied motion to compel based on this alternative jurisdiction rather than the jurisdiction provided by §682.20(1)(a).  In Arizona, a state appeals court recently (last year) directly applied the FAA under special action jurisdiction.  It was the first time direct application of the FAA had ever been done by an Arizona state court.

If plaintiff makes a motion for summary judgment, reiterate or reassert your position that plaintiff's claims are subject to arbitration (pursuant to §682.03) as part of your opposition.

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Your judge doesn’t know what he’s talking about. Account stated and Breach of Contract are basically the same thing. What they call it is irrelevant for the most part. What matters is what the cause of action is at its core. A revolving credit card debt is usually presented as account stated simply because the underlying debt arose from a series of transactions and calling each and every one of them a breach would be cumbersome to keep track of.

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Your judge doesn’t know what he’s talking about. Account stated and Breach of Contract are basically the same thing. What they call it is irrelevant for the most part. What matters is what the cause of action is at its core. A revolving credit card debt is usually presented as account stated simply because the underlying debt arose from a series of transactions and calling each and every one of them a breach would be cumbersome to keep track of.

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Lesson can be found in many recent threads. MTC per your State's Rules of Civil Procedure and Interlocutory Appeal if denied due to collusion or ignorance. If I worked for a Debt Buyer, one of the first things I would do is post noise.

If I was King of the Jungle I'd require posting your case number and URL to your court docket. Just sayin'

 

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On 7/20/2018 at 8:09 PM, upcycleliving said:

Account stated and Breach of Contract are basically the same thing.

They aren't the same thing. Breach of contract alleges a party violated a term of a contract. Account stated is "we sent you billing statements and demand for payment of $xxx and you didn't dispute it or pay it. Therefore you owe us $xxx and we are suing to collect it."

An account stated claim is one of the easiest to prove in court, but one of the keystone elements is a lack of a dispute by the debtor.  A very simple (but timely!) dispute notice to the creditor stops an account stated claim in its tracks.

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On 7/27/2018 at 2:03 AM, Harry Seaward said:

They aren't the same thing. Breach of contract alleges a party violated a term of a contract. Account stated is "we sent you billing statements and demand for payment of $xxx and you didn't dispute it or pay it. Therefore you owe us $xxx and we are suing to collect it."

An account stated claim is one of the easiest to prove in court, but one of the keystone elements is a lack of a dispute by the debtor.  A very simple (but timely!) dispute notice to the creditor stops an account stated claim in its tracks.

@Harry Seaward What if you never receive the notice of the account from the (now) creditor? 

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1 hour ago, NotALawyer86 said:

What if you never receive the notice of the account from the (now) creditor?

Is the amount they are claiming different than the final statement you received from the original creditor?  And is the "now creditor" a JDB or is it another actual creditor, like a different bank?

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9 hours ago, Harry Seaward said:

Is the amount they are claiming different than the final statement you received from the original creditor?  And is the "now creditor" a JDB or is it another actual creditor, like a different bank?

Yes, @Harry Seaward they are actually claiming less that the final balance on the account. It is a JDB—Cavalry SPV I LLC. 

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1 hour ago, NotALawyer86 said:

they are actually claiming less that the final balance on the account. It is a JDB—Cavalry SPV I LLC. 

Same principal applies. You were provided with a statement that you never disputed. That is the essence of an Account Stated claim.

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2 minutes ago, Harry Seaward said:

Same principal applies. You were provided with a statement that you never disputed. That is the essence of an Account Stated claim.

The claim was filed as a “contract”, would that still mean this is an “account stated claim”? The “contract” is the card member agreement, which allows for arb. 

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14 minutes ago, NotALawyer86 said:

The claim was filed as a “contract

They can only advance an "account stated" claim if the complaint says "account stated". If it doesn't say that, and only says "contract" or "breach of contract", then it's a breach of contract claim. 

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5 minutes ago, Harry Seaward said:

They can only advance an "account stated" claim if the complaint says "account stated". If it doesn't say that, and only says "contract" or "breach of contract", then it's a breach of contract claim. 

Got it, which could require arb? Thank you so much @Harry Seaward for your time and responses. That is very generous of you. 

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On 9/26/2018 at 3:35 PM, Harry Seaward said:

You can use arb on any claim they bring against you. 

Ok, thank you! 

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