williams4

Being sued Unifund

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2 hours ago, Goody_Ouchless said:

I sounds like they are just objecting to paying consumer's portion, since it is related to debt collection. If this arose out of a debt collection case, it seems a stretch to argue that it's not related to debt collection. OP may be on hook for consumer portion - $200, or whatever that is.

 

The CC agreement says "unrelated to debt collection".  So the FDCPA violation is for continuing to call after I sent them a cease and desist letter and they continued to call.  So they were calling to collect a debt, but the claim is that they were in violation of FDCPA.  So I guess it could go either way.  I am not too concerned with getting this $200 back, but I think I am going to still object and see how the arbitrator decides. 

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Right - I just meant that it looked like they wanted everything (which I guess they do, with frivolity claim,) but as for "debt collection" part, that would just be your $200.

Still the oddest consumer case that I recall. (Outside of the guy who's address was a secret, abandoned military base that the plaintiff couldn't find.)

 

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What bearing does the 3K case have, if you were sued on the 22K case, and that is the one the court compelled arbitration for?

My understanding, from re-reading, is that you were sued for 22K and court compelled arbitration and ordered you to pay your part of fee to get things started. You also opened a preemptive AAA case on the 3K account (with FDCPA claims) in order to circumvent small claims exception. In the confusion, Unifund paid their fee on the 3K case, but not on the one ordered by the court.

If that is the case, I would expect Unifund to point out the confusion, claim forgivable error and simply move their initiation fee to the correct case. I suspect their intention is to follow through in the 22K and ignore the 3K (or sue later in small claims for debt collection, as your arbitration was for FDCPA claims).

Does the original lawyer work for Unifund, by chance?

 

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2 hours ago, Goody_Ouchless said:

What bearing does the 3K case have, if you were sued on the 22K case, and that is the one the court compelled arbitration for?

My understanding, from re-reading, is that you were sued for 22K and court compelled arbitration and ordered you to pay your part of fee to get things started. You also opened a preemptive AAA case on the 3K account (with FDCPA claims) in order to circumvent small claims exception. In the confusion, Unifund paid their fee on the 3K case, but not on the one ordered by the court.

If that is the case, I would expect Unifund to point out the confusion, claim forgivable error and simply move their initiation fee to the correct case. I suspect their intention is to follow through in the 22K and ignore the 3K (or sue later in small claims for debt collection, as your arbitration was for FDCPA claims).

Does the original lawyer work for Unifund, by chance?

 

I received a dunning letter on 3k account. In my debt validation letter to them, I stated that I choose arbitration to settle any disputes. I also sent cease and desist letter, but they continued to call, and this is when I filed the fdcpa claim with aaa. I am pretty sure unifund is “expected” to participate in every arbitration case. So I can’t imagine aaa letting them say they meant to pay the 22k one and ignore the 3k one. And yes, unifund on both. 

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15 hours ago, williams4 said:

I did not think of doing it this way! Thanks for the help.  I will take this route and object to me paying back their arbitration fees (they claimed it was a frivolous claim) When I object to paying their fees should I say something along the lines of not having the initial conference hearing and I haven't even giving my official detailed claim? Or the fact that AAA rules states those are the business costs and my CC agreement states all claims are subject to arbitration, no matter what legal theory they're based on? Or both? 

Also, my CC agreement states "You may arbitrate on an individual basis Claims brought against you, including Claims to collect a debt" Is this the part of the agreement that means these can be individual claims? The case manager asked if I wanted to combine these or have them separate when I filed.  I said separate and the case manager told Unifund that these are two separate cases and they need to pay the other one and also reminded them that there is a court order on the one they have not paid.

That "individual basis" language in your contract is not a solid as I have seen with others if this is all it says about it.   Perhaps instead of quoting it, I would just say that the contract forbids it and then let the arbitrator spend his unifund paid hour to comb through and figure it out.

In my objection, I would just keep it as simple as possible.  You don't have to build your case here - after all, an arbitrator is not yet appointed (nor, would they even look at any details until after the initial conference call).  This is essentially just making sure you get your objection in within the time allowed by the rules so that it is not deemed that you waived your right to do so.  I would just state that I object to paying any fees beyond what the contract between the parties and the AAA consumer rules require and that my evidence, along with evidence collected during discovery will show my claims to not be frivolous.

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10 hours ago, williams4 said:

I received a dunning letter on 3k account. In my debt validation letter to them, I stated that I choose arbitration to settle any disputes. I also sent cease and desist letter, but they continued to call, and this is when I filed the fdcpa claim with aaa. I am pretty sure unifund is “expected” to participate in every arbitration case. So I can’t imagine aaa letting them say they meant to pay the 22k one and ignore the 3k one. And yes, unifund on both. 

Don't put it past AAA to allow them to do just that.  While arbitration works very well against JDBs due to the cost structure, and while arbitrators have become much better at more fair rulings involving consumer cases than 10 years ago, it still does not mean that AAA won't just do crazy things to accommodate the business paying their bill.  This is why I stress the importance of objecting and tying up the arbitrator with all of these side issues to deal with before you even ever get to your hearing on the actual debt.

I think @Goody_Ouchless has a good point, that AAA could easily let them apply the fees they already paid to the Court ordered case .  If they do, you just send your written objection to that (but don't expect it to change anything).  And of course, if they do that, it really won't matter much.  The same strategy will apply and they will still very likely balk and settle once they get their bigger arbitrator bill.

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21 minutes ago, fisthardcheese said:

Don't put it past AAA to allow them to do just that.  While arbitration works very well against JDBs due to the cost structure, and while arbitrators have become much better at more fair rulings involving consumer cases than 10 years ago, it still does not mean that AAA won't just do crazy things to accommodate the business paying their bill.  This is why I stress the importance of objecting and tying up the arbitrator with all of these side issues to deal with before you even ever get to your hearing on the actual debt.

I think @Goody_Ouchless has a good point, that AAA could easily let them apply the fees they already paid to the Court ordered case .  If they do, you just send your written objection to that (but don't expect it to change anything).  And of course, if they do that, it really won't matter much.  The same strategy will apply and they will still very likely balk and settle once they get their bigger arbitrator bill.

I was expecting them to combine the two cases, but I was not preparing for the possibility of them being able to drop and not participate in the 3K one since it's already paid.  But I guess regardless, even if this does happen and they try to sue in small claims, I still have the defense of compelling to arbitration since it will show I initiated and paid filing fee in arbitration?

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31 minutes ago, fisthardcheese said:

In my objection, I would just keep it as simple as possible.  You don't have to build your case here - after all, an arbitrator is not yet appointed (nor, would they even look at any details until after the initial conference call).  This is essentially just making sure you get your objection in within the time allowed by the rules so that it is not deemed that you waived your right to do so.  I would just state that I object to paying any fees beyond what the contract between the parties and the AAA consumer rules require and that my evidence, along with evidence collected during discovery will show my claims to not be frivolous.

The arbitrator has been selected on the 3K one.  I received another letter from AAA and it looks like the initial conference call will be either April 15, 16 or 17.  My objections aren't due until April 22, but I plan to have them in before the conference call so the arbitrator has the objections when we have this call. 

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43 minutes ago, fisthardcheese said:

That "individual basis" language in your contract is not a solid as I have seen with others if this is all it says about it.   Perhaps instead of quoting it, I would just say that the contract forbids it and then let the arbitrator spend his unifund paid hour to comb through and figure it out.

 

Here is another piece of the arbitration clause that may relate more to the "individual basis" The arbitrator has no authority to arbitrate any claim on a class or representative bases and may award relief only on an individual basis.  Although I see now where it's still a gray area since we are still only dealing with 2 parties, even though they are two different accounts.

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2 hours ago, williams4 said:

Here is another piece of the arbitration clause that may relate more to the "individual basis" The arbitrator has no authority to arbitrate any claim on a class or representative bases and may award relief only on an individual basis.  Although I see now where it's still a gray area since we are still only dealing with 2 parties, even though they are two different accounts.

“Arbitrate on an individual basis” means a single party.  There cannot be a class action.  

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What's getting lost here is that Unifund has told the court that it is arbitrating the case that the court ordered it to arbitrate - they have paid for one case and they believe that to be the 22K one. Have you paid your share of 22K one, as ordered by court?

 

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5 hours ago, fisthardcheese said:

...arbitration works very well against JDBs due to the cost structure

I suspect we are seeing Unifund becoming more willing to follow because they use in-house counsel, so lawyer is getting paid same whether she cleans her desk or spends all day with arbiter. With 25K in combined debt here, they will come out ahead, And by raising the specter of "frivolity," up front, they head off the possibility of someone pulling a "colt fan" and turning the proceedings into a circus. Recall the Discover/JAMS case where fees where awarded to plaintiff - calls to JAMS seemed to indicate that there are limits to Consumer Minimum Standards if it's clear arbitration was being pursed solely to raise costs.

 

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15 minutes ago, Goody_Ouchless said:

I suspect we are seeing Unifund becoming more willing to follow because they use in-house counsel, so lawyer is getting paid same whether she cleans her desk or spends all day with arbiter. With 25K in combined debt here, they will come out ahead, And by raising the specter of "frivolity," up front, they head off the possibility of someone pulling a "colt fan" and turning the proceedings into a circus. Recall the Discover/JAMS case where fees where awarded to plaintiff - calls to JAMS seemed to indicate that there are limits to Consumer Minimum Standards if it's clear arbitration was being pursed solely to raise costs.

 

As discussed in that Discover thread, the AAA Rules have much more clearer language than JAMS does, which should not allow as loose of an interpretation for the arbitrator to make regarding fees.  This is still so early in this case that I am not convinced that Unifund is deciding to pursue this case at all.  In fact, Unifund may not yet have been made aware that this is in arbitration, as it is more likely, IMO, that the attorney just paid the fee out of the amount they are allotted to spend on recovery, but when the bigger bill comes, they will have to go back and inform Unifund to get authorization to spend even more.  That is likely when we will see a shift.

46 minutes ago, Goody_Ouchless said:

What's getting lost here is that Unifund has told the court that it is arbitrating the case that the court ordered it to arbitrate - they have paid for one case and they believe that to be the 22K one. Have you paid your share of 22K one, as ordered by court?

 

AAA has billed unifund in the Court Ordered case for the full filing fee because the Card Agreement says that the business will pay.  I believe OP has done everything they should to comply with the court order thus far.  Eventually one of two things will happen.  Either AAA will close the case for non payment, which would allow OP to file a Motion for Sanctions/Dismissal in court, or the attorney will actually READ these filing and figure out they have screwed up here and then try to save face by throwing a fit to AAA about it.

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5 hours ago, williams4 said:

But I guess regardless, even if this does happen and they try to sue in small claims, I still have the defense of compelling to arbitration since it will show I initiated and paid filing fee in arbitration?

Yes.  This is what I usually expect to happen when preemptively filing against a JDB to avoid the small claims carve outs.  Your case just got complicated by an attorney not doing their job properly.

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2 minutes ago, fisthardcheese said:

In fact, Unifund may not yet have been made aware that this is in arbitration, as it is more likely, IMO, that the attorney just paid the fee out of the amount they are allotted to spend on recovery, but when the bigger bill comes, they will have to go back and inform Unifund to get authorization to spend even more.  That is likely when we will see a shift.

Lawyer is Unifund employee, so they are fully aware of what's happening. It's possible AAA screwed up if Unifund did, in fact, pay for 22K case and AAA applied those fees to wrong case. Other issue is if judge ordered OP to pay her share for case that's in court and she only paid for other case and then told court that the case in question has been paid for... I think there are enough crossed wires here for AAA to hit the "reset" button and apply Unifund's payments to the case they were intended for, at which point the 22K arbitration will play out (ultimately resulting in judgement for plaintiff.)

 

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10 minutes ago, Goody_Ouchless said:

at which point the 22K arbitration will play out (ultimately resulting in judgement for plaintiff.)

I disagree with this part.  I see nothing here to indicate this will be dealt with any different than any other JDB arbitration case.

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4 hours ago, BV80 said:

“Arbitrate on an individual basis” means a single party.  There cannot be a class action.  

So even though it states "represented basis", this refers to Creditor and multiple "different" customer accounts, correct? Even though these are two different accounts, they are both owned by me, but if these two accounts were owned by different people, then they would have to be separate?   Just making sure I am understanding this correctly.

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2 hours ago, Goody_Ouchless said:

What's getting lost here is that Unifund has told the court that it is arbitrating the case that the court ordered it to arbitrate - they have paid for one case and they believe that to be the 22K one. Have you paid your share of 22K one, as ordered by court?

 

The court granted my MTC on January 28. At the hearing, they were aware I paid my filing fee on the 3K AAA case because I sent my filing papers for the 3K case and AAA had already emailed them saying I paid the filing fee and they need to pay their part.  At the MTC hearing, she tried to get my MTC denied saying I still haven't paid my filing fee and I told the judge I was waiting for my MTC to be granted before paying. So both of us acknowledged to the judge that the filing fee for THIS case had not been paid.   Then they paid their fee on the 3K one.  After my MTC was granted is when I refiled my 22K since my MTC was granted.  AAA emailed asking me if I wanted this to be added to the other one or a separate claim.  Then AAA sent their email saying I paid my filing fee on this court ordered arbitration case and unifund now needs to pay theirs.  Unifund asked why she was receiving another bill when it had been paid.  AAA said they are two different claims, and the court ordered claim still needs to be paid.

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1 hour ago, Goody_Ouchless said:

Lawyer is Unifund employee, so they are fully aware of what's happening. It's possible AAA screwed up if Unifund did, in fact, pay for 22K case and AAA applied those fees to wrong case. Other issue is if judge ordered OP to pay her share for case that's in court and she only paid for other case and then told court that the case in question has been paid for... I think there are enough crossed wires here for AAA to hit the "reset" button and apply Unifund's payments to the case they were intended for, at which point the 22K arbitration will play out (ultimately resulting in judgement for plaintiff.)

 

 I paid the filing fee for the 3K before my MTC hearing when the court ordered me to pay my filing fee on the 22K within 60 days.   I paid the filing fee for the court ordered one within the 60 days.  AAA has told Unifund that these are two different claims and they still need to pay on the court ordered claim. 

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25 minutes ago, williams4 said:

Unifund asked why she was receiving another bill when it had been paid.  AAA said they are two different claims, and the court ordered claim still needs to be paid.

When did Unifund pay - after the MTC was granted?

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1 hour ago, fisthardcheese said:

I see nothing here to indicate this will be dealt with any different than any other JDB arbitration case.

Except that they have paid are prepared to proceed with in-house counsel. This one, to me, feels more like an OC case. I think they have done the math and are comfortable coming out ahead - especially if folks realize that they will follow. Bringing up frivolity at the beginning was a smart play, as any nonsense will be brought immediately to arbiter's attention.

 

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1 minute ago, Goody_Ouchless said:

Except that they have paid are prepared to proceed with in-house counsel. This one, to me, feels more like an OC case. I think they have done the math and are comfortable coming out ahead - especially if folks realize that they will follow. Bringing up frivolity at the beginning was a smart play, as any nonsense will be brought immediately to arbiter's attention.

 

The frivolity has me stumped.  Unifund brought the claim against me in court and I chose arbitration as a means to resolve this claim.  I am confused how they can say it is a frivolous claim if they are the ones that initiated the claim (in court) ? I am simply saying I want to resolve this in arbitration and not in court, and according to my credit card agreement I have a right to do this.

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OK, then clearly they are under the impression that they either paid for 22K case, or that both will be combined - which is probably their preference in order to get both accounts at once. When is the first arbitration hearing? 

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1 minute ago, williams4 said:

I am confused how they can say it is a frivolous claim if they are the ones that initiated the claim (in court) ?

Because they all know that the only reason anyone brings a debt collection case to arbitration is to run up the cost in order to get them to fold. We've seen cases here, and on the defunct board, where plaintiffs present these posts to try to prove that the only reason the case is being arbitrated is to skate on a valid debt. There was/is a case with Discover where arbiter apparently found that argument compelling.

I'm not saying that they hope to win the frivolity argument, but by bringing it up, the way they did, the arbiter will be on alert if you start doing things like talking slowly, repeatedly asking questions that have been answered, scheduling sessions for issues that have been decided, etc. - all the stuff that people were taught to do in arbitration against places like Amex and Discover, in order to jack up their costs. If the arbitration goes smoothly and quickly, it's not nearly as expensive as some claim, and is certainly worth their effort for a 25K judgement.

 

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