Dr Crandall

Dismiss vs. Stay of Court Order in MTC Arbitration

Recommended Posts

Interesting read from Penn State Law Review regarding dismiss vs. stay proceedings in Federal Circuit and State District Courts for MTC Private Contractual Arbitration and Dismiss or in the alternative to stay proceedings pending arbitration.  The 8th Circuit for which Iowa is in prefers dismissal from court per Judge's order rather than just a stay but not used all the time.

http://www.pennstatelawreview.org/115/3/115 Penn St. L. Rev. 3.539.pdf

My friend as some of you know on this site previously was looking for a card agreement is a defendant against LVNV who was finally served a petition in Iowa on April 22nd, 2019 from LVNV and who is preparing his answer to request that this case be taken out of State District Court and be decided in AAA Private arbitration. 

We are wondering what would the ramifications be if he asked the court to dismiss rather than stay jurisdiction for my friend.  (Advantages/Disadvantages of Dismiss vs. Stay)?

His motion to compel heading would be "Motion to compel private contractual arbitration and dismiss or in the alternative to stay proceedings pending arbitration." or heading would be without the and dismiss or in the alternative portion.

This came up in conversation when he asked me why the copy to the Citibank 2011 credit card agreement which they attached to the petition had the arbitration portion of the agreement up front and which was very much apparent and then the rest of the agreement behind the arb portion.  It is like LVVN was throwing the arbitration in his face as a trap, daring him to ask for arbitration.  Since the default according to LVNV happened according to them around spring 2014, they may be enticing him to use their 2011 card agreement and not his agreement which he got off the CFPB website. 

The advantage of staying the court as we see it would be if LVNV didn't respond to the court ordered arbitration with AAA then my friend would go back to the court where LVNV would face sanctions.  If in that same situation the case had been dismissed, my friend would have to refile, but maybe then he could do it in federal court since he would have to pay a new filing fee anyway if he kept in state court to rehear the case.  If he instead took that filing fee and filed in Federal Court there would be an infraction of the FDCPA that could be added to petition.

Sorry we are probably making a mountain out of a mole hill but just trying to be one step ahead of LVNV at this time.

 

 

 

Share this post


Link to post
Share on other sites
23 hours ago, Dr Crandall said:

we are probably making a mountain out of a mole hill

You are.

File an MTC and ask for a stay only.  I don't know about Iowa, but most state case laws require a stay on an MTC anyway.  Why would you want to open up more litigation at your own expense if the case is dismissed and they don't follow through with arbitration? 

23 hours ago, Dr Crandall said:

It is like LVVN was throwing the arbitration in his face as a trap, daring him to ask for arbitration.

You are giving someone who tripped and fell onto some old bones in the dirt because they are clumsy an award for being a great paleontologist.

Use the agreement they filed in court.  Why would you want to spend time arguing in court on who's arbitration agreement is the correct one when they both say you have a right to arbitrate anyway? 

I would stop attempting to create needless arguments wasting both your and the court's time and money when you can do a simple MTC with a stay and then end the case for good when they don't arbitrate.

Share this post


Link to post
Share on other sites

We were reading the card member agreement that LVNV had filed with the petition.  It was from 2011 which was 3 years before LVNV states the alleged account went into default.  When we got to part of who pays, it states "If there is a hearing, we will pay any fees of the arbitrator and arbitration firm for the first day of that hearing.  All other fees will be allocated as provided by the rules of the arbitration firm and applicable law".  It should be noted that this agreement was not on the CFPB website.

The card member agreement found on the CFPB website states:  _We'll 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.  If we prevail, we may not recover our arbitration fees, unless the arbitrator decides your Claim was frivolous".

Since the amount of debt is $13,000.00, they may take there chances in Arbitration if we were to use their card member agreement.  We think we should just stay with the CFPB CitiCard Agreement and get the affidavit stating this is the correct agreement for that time period attached to the answer.

That's why we think LVNV attorney placed the last 8 pages outlining the Arbitration portion to the front of the whole card member agreement.  Never trust the JDB attorney's.

Share this post


Link to post
Share on other sites
16 hours ago, Dr Crandall said:

We were reading the card member agreement that LVNV had filed with the petition.  It was from 2011 which was 3 years before LVNV states the alleged account went into default.  When we got to part of who pays, it states "If there is a hearing, we will pay any fees of the arbitrator and arbitration firm for the first day of that hearing.  All other fees will be allocated as provided by the rules of the arbitration firm and applicable law".  It should be noted that this agreement was not on the CFPB website.

The card member agreement found on the CFPB website states:  _We'll 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.  If we prevail, we may not recover our arbitration fees, unless the arbitrator decides your Claim was frivolous".

Since the amount of debt is $13,000.00, they may take there chances in Arbitration if we were to use their card member agreement.  We think we should just stay with the CFPB CitiCard Agreement and get the affidavit stating this is the correct agreement for that time period attached to the answer.

That's why we think LVNV attorney placed the last 8 pages outlining the Arbitration portion to the front of the whole card member agreement.  Never trust the JDB attorney's.

I think you are completely wrong and reading things into this that doesn't exist.

Both agreements mean that you will pay the AAA $200 and nothing more.

But if you want to fight over an agreement in court that's up to you.

Share this post


Link to post
Share on other sites

You must be missing the point.  He's not concerned about his fee, but how much skin LVNV will have in the Arbitration game.  For a $13,000.00 debt it might be worth it to them to carry it through Arbitration if they are charged for their fee and first day of hearing.  We're just trying to see if someone else has any experience with card agreements like this.  This forum hopefully isn't going to be too judgmental.  We use this forum for help where the folks who have no money but yet want to fight have an arrow in their quiver.  It's not about how wrong you might think he is.    I myself frankly think this is a strategy for LVNV.  Who's to say whose wrong on that.   Also, nothing was said about going the court route.  We're almost afraid to post anything on here anymore as it's like going to the woodshed and we're 59 1/2 years old.

Share this post


Link to post
Share on other sites
On 5/1/2019 at 4:45 PM, Dr Crandall said:

You must be missing the point.  He's not concerned about his fee, but how much skin LVNV will have in the Arbitration game.  For a $13,000.00 debt it might be worth it to them to carry it through Arbitration if they are charged for their fee and first day of hearing.  We're just trying to see if someone else has any experience with card agreements like this.  This forum hopefully isn't going to be too judgmental.  We use this forum for help where the folks who have no money but yet want to fight have an arrow in their quiver.  It's not about how wrong you might think he is.    I myself frankly think this is a strategy for LVNV.  Who's to say whose wrong on that.   Also, nothing was said about going the court route.  We're almost afraid to post anything on here anymore as it's like going to the woodshed and we're 59 1/2 years old.

You only "go to the woodshed" when the answer is posted and the same question is asked again and again as if you are waiting only the confirm your own preferred answer instead of the one you got.

Read the AAA consumer rules.  They pay the same regardless of the card agreement.  I don't know how to make it more clear.  LVNV isn't going to arbitrate.

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.