Arbitration Question in AZ regarding lawsuit by PRA

[antonz]

So after research I see that my best course of action against PRA in Arizona is arbitration as allowed by the card agreement from Citibank. The Citibank Agreement specifically states " If arbitration is chosen by any party, neither you nor we will have the right to litigate that Claim in court or have a jury trial  on that Claim. "

Now when filing my Motion to Compel Arbitration should I request a stay of proceedings or seek dismissal as the agreement states arbitration ends any legal recourse in the courts?

[Harry Seaward]

The court retains overall jurisdiction, in that once the arbitrator hypothetically makes a finding, the winner would go back to the same court to confirm the award. We've seen a few people get their cases dismissed with a MTD/MTC combo, but things get complicated if the court denies it and you have to appeal (i.e. which was denied?  MTD or MTC?) and a request for a stay is more legally correct. Even that's not necessary because ARS 12-1502 has an automatic stay built in when a party request arbitration.

[antonz]

Thank you for the response. One other question. Should I ask that they be compelled to initiate Arbitration or should I leave it to myself to initiate it. I see some advice suggesting that I should request the legal expert aka the Opposite sides Attorney be the one to file as I am not a law expert. The Card member agreement does state that they will not initiate  to collect a debt unless I choose to arbitrate

[Harry Seaward]

Usually the one making the demand is responsible for initiating. You can ask the court to order them to initiate for the reasons you laid out, but i would expect the request to be denied, and plan on initiating yourself. 

Also, some courts here do their own thing with arbitration so I would keep things as absolutely as simple as possible. Make the request "I'm asking this court to order the parties into arbitration because the agreement provides for that." Attach the agreement, and I also recommend an affidavit swearing it's the correct agreement for the account. If PRA objects, then you can get into the weeds with caselaw/rules specific to their objections.

[Thomas2]

Do a search of the Justice Court you are in to see if they regularly push court ordered mediation.  Those Justice Courts tend to deny MTC arbitrations and you will have to go through a costly and lengthy appeals process.  You can do a Change of Judge for Right but it is a random Justice Court choice so that has to be a personal call.  It worked well for me in a recent case to change judges.  

Fisthardcheese has an excellent thread on arbitration with a template you should use. 

The SCOTUS rulings and FAA information is applicable to any state, and I have started adding a section specifically for Arizona.  I reference the RUAA and UAA citing ARS 12-1501 & ARS 12-1502 and ARS 12-3006 & ARS 12-3007.   Doing that also served me well in a recent case.  

I definitely agree with Harry about attaching a sworn affidavit.  I have seen folks here not do that and it becomes a hassle later.  

Some will disagree with me here but I have found it advantageous to immediately send the arbitration demand letters and file the arbitration with either AAA or JAMS as I am preparing my Answer and MTC.  You can file electronically and you do not have to pay at the time of filing, but you will be provided an immediate case # which can then be given to the court in your MTC.   

[Harry Seaward]

1 hour ago, thomasp said:

and file the arbitration with either AAA or JAMS as I am preparing my Answer and MTC.

I have no objection to filing/initiating arbitration at this point, but I strongly caution against alleging claims of your own (see below).  When the form or whatever asks what your claims are, just say you want to arbitrate PRA's claims against you.

Also, I would go with AAA.  Their rules are crystal clear that, as long as you don't bring your own claims, you can never be hit with any costs or fees beyond the initial $200 filing fee.  JAMS rules are, at best, ambiguous on the subject.

[Thomas2]

3 minutes ago, Harry Seaward said:

I have no objection to filing/initiating arbitration at this point, but I strongly caution against alleging claims of your own (see below).  When the form or whatever asks what your claims are, just say you want to arbitrate PRA's claims against you.

Also, I would go with AAA.  Their rules are crystal clear that, as long as you don't bring your own claims, you can never be hit with any costs or fees beyond the initial $200 filing fee.  JAMS rules are, at best, ambiguous on the subject.

I always put down that I am disputing the alleged debt in a Justice Court case and state that a formal complaint will be forthcoming when the arbitration gets under way.  That has been fine with both venues in my experience so yeah, we are in sync there.  

I agree.  Though I have seen that some changes are occurring recently with AAA that I may detail in a new thread.  Recent communications from JAMS in another case of mine suggests that they are not as ambiguous as suspected.  

[Goody_Ouchless]

3 hours ago, thomasp said:

Do a search of the Justice Court you are in to see if they regularly push court ordered mediation.  Those Justice Courts tend to deny MTC arbitrations

Is there evidence of this? I never sought Arb, but in courts where there was "mediation," it was early in the process and treated like a formality.

[Harry Seaward]

1 hour ago, thomasp said:

Recent communications from JAMS in another case of mine suggests that they are not as ambiguous as suspected.

But still no official outcome at this point? I'd not roll the dice if it were my own case. Especially when the alternative is bulletproof. 

[Harry Seaward]

20 minutes ago, Goody_Ouchless said:

Is there evidence of this? I never sought Arb, but in courts where there was "mediation," it was early in the process and treated like a formality

Not to say it's never happened that a court pushed mediation and then denied arbitration, but I can't think of a logical link between the two, and would chalk it up to a coincidence more than anything.

[Thomas2]

I have had a half a dozen cases now in three different Justice Courts.  Out of the three, the one that is on auto-pilot and schedules mediation immediately upon acceptance of the Answer and my MTC, my MTC's were denied.  Thankfully, I was already in settlement discussions with the JDB since I had opened cases with AAA and JAMS so I was not forced to appeal.  Perhaps it is just coincidence but it was certain enough for me in my own experience that I now request a Change of Judge for Right when a case appears in that Court.  I suspect that the logical link is that some of these courts are not presided by judges but rather by Justices of the Peace with minimal legal training and the clerks are on auto-pilot when it comes to dealing with the slew of debt lawsuits that come through in any given month.    

AAA is not always an option depending upon the CMA.  If there is an option, then yes, go with AAA first.  But even then there can be some gotcha's depending upon the JDB and their relationship with AAA.  I am experiencing one such issue right now with a case.    

[Harry Seaward]

7 hours ago, thomasp said:

Out of the three, the one that is on auto-pilot and schedules mediation immediately upon acceptance of the Answer and my MTC, my MTC's were denied. 

Did you ever have a debt collection case with that judge without a MTC? What I was saying is that there are certain JP that always use meditation in debt collection cases, and sometimes those same judges will never rule on anything in the consumer's favor. The fact you used a MTC there is likely irrelevant to the fact that you would have ended up in mediation or with a judgment against you regardless of any actions you took. 

7 hours ago, thomasp said:

Thankfully, I was already in settlement discussions with the JDB since I had opened cases with AAA and JAMS so I was not forced to appeal.

Just to be clear for the sake of @antonz, court ordered mediation doesn't mean you have to make a deal with the JDB. It's merely an attempt to get the parties to speak to each other to try to work out a settlement. The parties can walk in knowing they won't settle, and spend 20 minutes talking about football, for all the court cares. You go back to court and tell the judge you couldn't reach a deal. Sometimes the judges will try to give a guilt trip, but the message there is the judge really wants nothing to do with hearing the case and should be delighted to move the case to an alternate dispute resolution method, such as private arbitration.

7 hours ago, thomasp said:

But even then there can be some gotcha's depending upon the JDB and their relationship with AAA.  I am experiencing one such issue right now with a case.

The AAA rules couldn't be clearer on this issue, so if they aren't following their own rules and demonstrating a bias toward the other party, you need to have that issue addressed immediately.

[Thomas2]

3 hours ago, Harry Seaward said:

Did you ever have a debt collection case with that judge without a MTC? What I was saying is that there are certain JP that always use meditation in debt collection cases, and sometimes those same judges will never rule on anything in the consumer's favor. The fact you used a MTC there is likely irrelevant to the fact that you would have ended up in mediation or with a judgment against you regardless of any actions you took. 

Just to be clear for the sake of @antonz, court ordered mediation doesn't mean you have to make a deal with the JDB. It's merely an attempt to get the parties to speak to each other to try to work out a settlement. The parties can walk in knowing they won't settle, and spend 20 minutes talking about football, for all the court cares. You go back to court and tell the judge you couldn't reach a deal. Sometimes the judges will try to give a guilt trip, but the message there is the judge really wants nothing to do with hearing the case and should be delighted to move the case to an alternate dispute resolution method, such as private arbitration.

The AAA rules couldn't be clearer on this issue, so if they aren't following their own rules and demonstrating a bias toward the other party, you need to have that issue addressed immediately.

Possibly but it is really just speculation on both of our parts.  

This is true about mediation.  I only had to attend one and I simply told the opposing counsel that I had filed an MTC arbitration and that this was not the proper venue to resolve our dispute.  He pushed a little but then it was over.  Prior to our first court appearance, we worked out a settlement.  

This is not about them not following their own rules.  Once I have a better sense of what is going on, I will start a topic for discussion.  I don't want to take this OP off-topic.  

[Harry Seaward]

45 minutes ago, thomasp said:

Possibly but it is really just speculation on both of our parts.

Of course, but I'm not speculating based on a single personal experience. I'm amalgamating dozens of reports of nearly identical experiences. None of which are my own, by the way, so that rules out personal bias as a factor. 

45 minutes ago, thomasp said:

Once I have a better sense of what is going on, I will start a topic for discussion.

This is appreciated because it's confusing that you now seem to be backpedaling on your earlier implication that they aren't following the fee structure rules and/or colluding with JDBs.

 

[Thomas2]

6 hours ago, Harry Seaward said:

Of course, but I'm not speculating based on a single personal experience. I'm amalgamating dozens of reports of nearly identical experiences. None of which are my own, by the way, so that rules out personal bias as a factor. 

This is appreciated because it's confusing that you now seem to be backpedaling on your earlier implication that they aren't following the fee structure rules and/or colluding with JDBs.

 

Subjective experiences are important in these fights because each case, court, judge, and state are different.  What I have experienced has influenced my dealings with these cases and the actions taken have been positive for me.  Had I followed a less 'personally biased' approach suggested by others here or elsewhere, I would not have been as successful as I have been.   We must always balance the subjective and the objective.   

I am hardly backpedaling.  You are making an assumption about JAMS based solely on two cases where fees have become an issue and you are doing the same about AAA because you think there are no issues.  I am experiencing one now and it is confusing, and instead of detailing it and working through it here, I will wait and share it in another thread so it may be helpful to others and not distracting from this particular OP. 

[Harry Seaward]

12 minutes ago, thomasp said:

I would not have been as successful as I have been

How can you know this?

16 minutes ago, thomasp said:

You are making an assumption about JAMS based solely on two cases

This is incorrect. I have spoken with JAMS and read their rules. The rules are absolutely ambiguous. That is a fact. The representative I spoke with at jams was considerably less ambiguous. She was pretty certain costs and fees could be reallocated back to the consumer. I know you have your own version of this, but the fact that two people can have diametrically opposing interpretations of the same set of facts is, by definition, ambiguity.

22 minutes ago, thomasp said:

you are doing the same about AAA because you think there are no issues.

Also incorrect. I'm reading AAA rules that expressly state that costs and fees cannot be reallocated back to the consumer except in a case where a the arbitrator finds the consumer brought frivolous or harassing claims. (If the consumer never brings their own claims, no fees can be reallocated.)

26 minutes ago, thomasp said:

I will wait and share it in another thread so it may be helpful to others and not distracting from this particular OP. 

Yes, you said this already. Please do starting now. 

[Thomas2]

7 hours ago, Harry Seaward said:

How can you know this?

This is incorrect. I have spoken with JAMS and read their rules. The rules are absolutely ambiguous. That is a fact. The representative I spoke with at jams was considerably less ambiguous. She was pretty certain costs and fees could be reallocated back to the consumer. I know you have your own version of this, but the fact that two people can have diametrically opposing interpretations of the same set of facts is, by definition, ambiguity.

Also incorrect. I'm reading AAA rules that expressly state that costs and fees cannot be reallocated back to the consumer except in a case where a the arbitrator finds the consumer brought frivolous or harassing claims. (If the consumer never brings their own claims, no fees can be reallocated.)

Yes, you said this already. Please do starting now. 

I am not going to go back and forth with you again over this.  I have spoken to other CM"s who stated otherwise, and my appeal has started.  The wording on costs in the appeal letter to both parties was anything but ambiguous.  

I said there were issues with AAA, certain JDB's, and costs.  I was not talking about reallocation.  It does, however, impact the 'arbitration strategy'.  I choose not to discuss the details at this time as the issue is ongoing.  Once resolved, then I will communicate it here for the benefit of others.  

[Harry Seaward]

3 hours ago, thomasp said:

The wording on costs in the appeal letter to both parties was anything but ambiguous. 

If this were true, there would be no need for an appeal. JAMS would simply reverse the obvious error.

3 hours ago, thomasp said:

I said there were issues with AAA, certain JDB's, and costs.

Yes, I know. The AAA has rules that govern their costs,  and the FAA and various government agencies prohibit colluding, or taking sides. If any funny business is going on it needs to be reported because it's not allowed.

3 hours ago, thomasp said:

I am not going to go back and forth with you again over this.

Again, I appreciate the intent, but you keep doing it. Please stop in this thread. You have your own thread - if you want to continue the discussion, do it there.

[Thomas2]

For the OP, I do think it is important for him to research the JDB's standing with AAA if he is going the arbitration route.  It is not always as straight-forward with some JDB's as it is with others, and it has nothing to do with collusion.  It has to do with the JDB's standing and status.  

[Harry Seaward]

2 hours ago, thomasp said:

It has to do with the JDB's standing and status.  

We've talked several times on this site about AAA refusing to accept cases because JDBs are delinquent in their fees, if that's what you're referring to. It hasn't come up in a long time so I assumed they got current.

The simple solution is to use JAMS. The JAMS fee discussion is essentially moot in OP's case since JDBs don't follow into arbitration regardless. As I originally said, I like the lower consumer fee and the security blanket of the more explicit fee rules, but if AAA won't take the case, go with Plan B.

[Goody_Ouchless]

6 hours ago, thomasp said:

I said there were issues with AAA, certain JDB's, and costs.  I was not talking about reallocation.  It does, however, impact the 'arbitration strategy'.  I choose not to discuss the details at this time as the issue is ongoing.  Once resolved, then I will communicate it here for the benefit of others.  

Since I have no tolerance for ambiguity, let's try to figure it out now. It sounds like @thomasp is referring to a form letter that I think we saw AAA send out in a previous case. I believe the letter said something to the effect that since the plaintiff was in "bad standing" regarding fees, AAA would not handle the case and essentially tossed it back to the jurisdiction of the court. I recall at the time thinking that. depending on the judge, such verbiage would circumvent arbitration and lead the judge to say "well we tried that, now let's resume the case here."