LookingforInfo2018

HELP: Portfolio Recovery in Arbitration

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14 minutes ago, LookingforInfo2018 said:

A judgement is out of the question. 

I tried to steer you toward the most likely favorable outcome, but there's no way to guarantee anything. If judgment is out of the question, I can't help you. Sorry.

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31 minutes ago, Harry Seaward said:

I tried to steer you toward the most likely favorable outcome, but there's no way to guarantee anything. If judgment is out of the question, I can't help you. Sorry.

I meant simply that if this ends in a Judgement, bankruptcy would have to be the next step.

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If arbitration is off the table, there's no magic bullet Answer you can file that's going to win this case. The Answer simply denies PRAs allegations and merely buys him a few weeks time. The next phase will likely be a Motion for Summary Judgment. If figuring out an Answer is too complicated for him, there's no way he will make it past Summary Judgment. Even if he does, he will have to go to court for a trial.

You're giving us nothing to work with here. He won't consider arbitration, won't represent himself, can't find a lawyer to represent him and can't come to a workable settlement agreement with PRA. All of those conditions add up to near certain judgment against him. Bankruptcy lawyers cost $1,000-$1,500, so I'm guessing that's not an option either. If it is an option, he should go ahead and do this now and forget about trying to defend this lawsuit. 

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17 hours ago, Harry Seaward said:

If arbitration is off the table, there's no magic bullet Answer you can file that's going to win this case. The Answer simply denies PRAs allegations and merely buys him a few weeks time. The next phase will likely be a Motion for Summary Judgment. If figuring out an Answer is too complicated for him, there's no way he will make it past Summary Judgment. Even if he does, he will have to go to court for a trial.

I've had a moment of clarity after doing a lot more research and MTC is really the only way to go about this..

" Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2019, electing arbitration with AAA and requesting dismissal of this case (see Exhibit A, attached). "

I know this may be a dumb question, but I can't find anyone explaining this.. What is the letter that should be sent and also attached as an exhibit? Is there a sample of this anywhere?

 

 

 

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND DISMISS OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION


NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about ___________, 2019, Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on ____________, 2019, electing arbitration with AAA and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement. The Arbitration Agreement states among other things:

(a) You or we may arbitrate any claim, dispute or    controversy between you and us arising out of    or    related to    your Account, a   previous related Account or    our relationship (called “Claims”).

(b) 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.

(c)  Arbitration may be requested at  any time, even where there is   a pending lawsuit, unless a   trial has begun or    a   final judgment entered. Neither you nor we waive the right to    arbitrate by filing or    serving a complaint, answer, counterclaim, motion or    discovery in    a   court lawsuit.

(d)The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statute of  limitations.


5. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

 

Respectfully submitted this day ________________, 2019


(Your name typed), Defendant, pro se

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5 hours ago, LookingforInfo2018 said:

What is the letter that should be sent and also attached as an exhibit? Is there a sample of this anywhere?

In the card agreement it says you should notify them in writing that you want to arbitrate. It's literally as simple as "per the credit card agreement, I'm hereby notifying you that I elect arbitration with AAA to settle the claims you have made against me."

Send that via certified mail to PRAs lawyer and then attach a copy of that letter to the MTC you file with the court. 

Most people file the Answer and MTC at the same time. 

Also, a copy of everything you file with the court has to be sent to PRAs lawyer. So you're sending to them a copy of the Answer and MTC with exhibits. 

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6 hours ago, Harry Seaward said:

Also, a copy of everything you file with the court has to be sent to PRAs lawyer. So you're sending to them a copy of the Answer and MTC with exhibits. 

Thank you!! As for the card agreement with your MTC, is it necessary to include the entire 10 page card agreement? Or is just the arbitration section needed?

 

I called the courthouse to double check that I had found the right Notice to Appear online, since PRA chose to 'forget' to include it in their paperwork. The clerk told me that they charge a filing fee of $35. He said you had to pay even to file an Intent to Appear.. This isn't listed anywhere, I'm proceeding assuming he's mistaken. Have you ever heard of this before?

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6 hours ago, LookingforInfo2018 said:

is it necessary to include the entire 10 page card agreement? Or is just the arbitration section needed?

You can attach just the part with the arbitration provision. 

6 hours ago, LookingforInfo2018 said:

The clerk told me that they charge a filing fee of $35. He said you had to pay even to file an Intent to Appear.. This isn't listed anywhere, I'm proceeding assuming he's mistaken. Have you ever heard of this before?

Yes, you always have to pay to answer a complaint. And $35 is very inexpensive.  Some jurisdictions charge $200 for an answer and some even require a payment for each filing, so if $35 is all you have to pay the court, you're getting off very easy. 

Just to be sure you're aware, there is a $200 filling fee for AAA that is due when you initiate. Some people have gotten away with the JDB dismissing before having to pay this fee, but most of the time PRA will wait until you pay the fee before dismissing.

I don't remember off the top of my head. Does the Synchrony agreement say anything about them paying your fees if you ask them to? If so, you should include that request in the letter you send them. 

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On 3/12/2019 at 12:25 AM, Harry Seaward said:

You can attach just the part with the arbitration provision. 

Yes, you always have to pay to answer a complaint. And $35 is very inexpensive.  Some jurisdictions charge $200 for an answer and some even require a payment for each filing, so if $35 is all you have to pay the court, you're getting off very easy. 

Just to be sure you're aware, there is a $200 filling fee for AAA that is due when you initiate. Some people have gotten away with the JDB dismissing before having to pay this fee, but most of the time PRA will wait until you pay the fee before dismissing.

I don't remember off the top of my head. Does the Synchrony agreement say anything about them paying your fees if you ask them to? If so, you should include that request in the letter you send them. 

I had no idea, thanks for filling me in on that.

Once you initiate, you must pay the fee? I thought some people had begun the process, then held off on paying. But I must've been mistaken. I've sent the answer in, I'm holding off until next week for the rest.

It states that they will cover the costs only if it's unrelated to debt collects. No such luck there.

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12 hours ago, LookingforInfo2018 said:

I thought some people had begun the process, then held off on paying

This was happening, but then JDBs started arguing that consumers were not serious about arbitration because they weren't paying the fee. There's absolutely nothing anywhere that says a consumer must pay the fee before the court orders the parties into arbitration, and in fact that line of logic seems counterintuitive to begin with. But needless to say, some courts have been persuaded, and subsequently denied the motion to compel based solely on the fact that the fee had not been paid. If that were to happen in your case, you could probably get it reversed on appeal, but that's a whole different ballgame, and it's much easier to pay the $200 arb fee up front than trying to appeal after the fact. 

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On 3/15/2019 at 12:09 PM, Harry Seaward said:

This was happening, but then JDBs started arguing that consumers were not serious about arbitration because they weren't paying the fee. There's absolutely nothing anywhere that says a consumer must pay the fee before the court orders the parties into arbitration, and in fact that line of logic seems counterintuitive to begin with. But needless to say, some courts have been persuaded, and subsequently denied the motion to compel based solely on the fact that the fee had not been paid. If that were to happen in your case, you could probably get it reversed on appeal, but that's a whole different ballgame, and it's much easier to pay the $200 arb fee up front than trying to appeal after the fact. 

We waited to see what PRA's next move was. They sent a packet with more of the same type of nonsense paperwork.

I filed the MTC today, along with sending all the documents to PRA. I was given an even sooner court date with a Motions judge. Is this normal procedure? I was under the impression they granted/denied without you needing to be present. 

Should I go ahead and file with AAA now or do I have to wait for the judge to approve it first?

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On 4/8/2019 at 3:28 PM, LookingforInfo2018 said:

We waited to see what PRA's next move was. They sent a packet with more of the same type of nonsense paperwork.

Was it labeled as Discovery?

On 4/8/2019 at 3:28 PM, LookingforInfo2018 said:

I filed the MTC today, along with sending all the documents to PRA. I was given an even sooner court date with a Motions judge. Is this normal procedure? I was under the impression they granted/denied without you needing to be present. 

Should I go ahead and file with AAA now or do I have to wait for the judge to approve it first?

Many courts schedule hearings for motions.  That's not to say that a judge can't still grant the motion prior to the hearing, but probably not.  I would be on the look out for PRA to file an opposition to your MTC.  When they do, let us know what it says and we can help you file a response to refute any opposition arguments they make.

I would not bother filing in AAA now.  I would, however, bring a copy of the AAA Demand Form to court as evidence that you are prepared to immediately file upon the granting of your MTC, just in case the judge or attorney brings this silly question up in any way.

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4 hours ago, fisthardcheese said:

Was it labeled as Discovery?

It's not labeled Discovery anywhere. It contains a request for payment before mediation, notice to attend, bill of sales and assignment, affidavit of account by OC, & certificate of conformity. A card agreement, as well as 12 statements, 5 of which show transactions while the other 7 are pre charge off. 

This image is from the Notice to Attend. Is this an actual legal and possible threat if I'm respectfully denying this is my account and therefore have no way of obtaining any card information?

 

Thank you so much! I haven't gotten any response from PRA as of yet, but there's still time if that's the route they plan on taking.

2019-04-11_23.56.24.jpg

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13 hours ago, LookingforInfo2018 said:

Is this an actual legal and possible threat if I'm respectfully denying this is my account and therefore have no way of obtaining any card information?

It's a scare tactic. They are just saying the rules permit them to ask the court for sanctions. They can try, I guess, but you can't be forced to bring what you don't have.

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@Harry Seaward@fisthardcheese

 

I was granted my MTC! My hearing was Friday. It was much easier than I had anticipated. A lawyer from PRA did actually show up, however he really didn't off up any opposition. They consented to the MTC and then asked the judge for an expiration date on filing with AAA due to "having issues with people doing this and then never filing the paperwork". The judge wasn't interested in doing that at all though, he seemed pretty amused at the whole thing.

Thanks for all of your help this far!

Should I go ahead and file electronically or wait until I get papers in the mail?

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You are acting like most of us, scared, in feared and facing an outcome that might possible derail your finances and your life. But relax, understand the process, educate your self and rely on your ability to fully understand the process you are going through and ask as many questions as you need. This board is great providing you the tools, but you must understand them in order to use them.

Have you read this thread? I'd also avoid having any phone conversations with PRA until you are fully prepared to do so. 

 

 

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On 4/29/2019 at 9:02 PM, LookingforInfo2018 said:

@Harry Seaward@fisthardcheese

 

I was granted my MTC! My hearing was Friday. It was much easier than I had anticipated. A lawyer from PRA did actually show up, however he really didn't off up any opposition. They consented to the MTC and then asked the judge for an expiration date on filing with AAA due to "having issues with people doing this and then never filing the paperwork". The judge wasn't interested in doing that at all though, he seemed pretty amused at the whole thing.

Thanks for all of your help this far!

Should I go ahead and file electronically or wait until I get papers in the mail?

Some lawyers don't fully understand the cost and process of arbitrating. They might file the original filing fee of $1,500 but there are strategies in place to prolong this process. Even if they go all the way through, and they actually win, your exposure is limited to the full amount owed, which you can then appeal and will cost them even more. Please read that thread I posted and it could help you moving forward. 

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5 hours ago, Boisvert said:

Some lawyers don't fully understand the cost and process of arbitrating.

The are 3 active cases on this board where, in the last few weeks, Midland and PRA have paid the $1,700 filing fee in two, and in a third PRA has paid the initial fee, plus the consumer's $200 fee plus an additional $1,500 on a $3,200 debt. 

For me, this pattern falls outside of the 'ignorant lawyers' explanation. In the Midland case, they are using their own in-house lawyer. I'm quite sure they know how arbitration works. We've taught them well. 

Edit: I misspoke. The lawyer for the Midland case is not in house counsel. My apologies. 

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3 hours ago, Harry Seaward said:
 

The are 3 active cases on this board where, in the last few weeks, Midland and PRA have paid the $1,700 filing fee in two, and in a third PRA has paid the initial fee, plus the consumer's $200 fee plus an additional $1,500 on a $3,200 debt. 

For me, this pattern falls outside of the 'ignorant lawyers' explanation. In the Midland case, they are using their own in-house lawyer. I'm quite sure they know how arbitration works. We've taught them well. 

xThudx

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