THELEGEND

Can someone help me understand this case..

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Guys im working on defending myself in court through a order to compel arbitration. I was reading this case online and was hoping someone could help me understand it. Seems as though this would allow debt buyer to wiggle out of arb agreement in contract.

us-arbitration.shearman.com/siteFiles/22788/2018.07.11%20Lester%20v.%20Portfolio%20Recovery%20Associates%20LLC,%20No.%201%2018-CV-0026....pdf

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Theoretically it is persuasive authority that would seem to agree that you're right. Do think the reasoning the judge uses is a bit of a reach.

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@THELEGEND

I am not a lawyer. I read this decision as PRA's motion as Defendant-- to compel arbitration of Plaintiff's FDCPA claims-- being denied by the court because: 

"At the end of the day, Koehler’s declaration does not define “account,” nor does it state that the intent of the parties was to convey to PRA all of Synchrony’s rights and privileges under the credit agreement. The declaration also contradicts the Bill of Sale attached thereto, which purports to convey only “receivables.” PRA has cited no evidence that the right to arbitrate was transferred, or that it was Synchrony’s intent to transfer to PRA the right to arbitrate." (emphasis added by me)

"The Court disagreed, writing:

The Court finds that, even with a “healthy regard for the strong federal policy in favor of arbitration,” the [Forward Flow Receivables Purchase Agreement] did not clearly convey the right to demand individual arbitration in the instant case from[Synchrony]to Defendant. John Hancock Mut. Life Ins. Co., 151 F.3d at 137. The Agreement provides separate definitions for “Account” and “Receivable.” “Account” refers to “any credit account owned by Seller with respect to which there is a receivable.” Burger Affidavit, Ex. A § 1.1. “Receivable” refers to “any credit account receivable that is being sold to Buyer pursuant to the terms of this Agreement as such receivable exists as of the Cut-Off Date, to the extent such receivable is set forth on the applicable Notification File.” Id. The Agreement's Purchase and Sale Clause states, “Seller shall sell and Buyer shall buy all right (including the right to legally enforce, file suit, collect, settle or take any similar action with respect to such Receivable), title and interest in and to the Receivables with respect to which Buyer has received a Notification File.” Id. § 2.1. As previously noted, the effective account agreement notes that [Synchrony] may assign, transfer, or sell any or all rights associated with Plaintiff's credit account. The Agreement certainly passed the “Receivables” and associated rights from [Synchrony] to Defendant, but the Court does not find that the Agreement transferred all of the rights associated with Plaintiff's account to Defendant. Defendant received rights associated with the Receivables. Defendant acquired the right to collect the receivable, the right to bring an action to collect the receivable, etc., but the Agreement does not, on its face, convey the broad right to compel arbitration for “any dispute or claim” relating to Plaintiff's Account. Koehler Affidavit, Ex. B. The right to compel arbitration for Plaintiff's FDCPA claim is not associated with legally enforcing,filing suit, collecting, settling, or a similar action with respect to the receivable. Therefore, Defendant's motion to compel arbitration will be denied. 15 Id. at *3 (emphasis added)."

"Accordingly, on these facts, and in light of the Defendant’s underdeveloped argument on this issue, the Court HOLDS that Synchrony only transferred to PRA the right to collect Lester’s receivable. Because the right to compel arbitration for the Plaintiff's claims is not associated with legally enforcing, filing suit, collecting, settling, or a similar action with respect to the receivable, the Court cannot hold that Utah Code Ann. § 70A-9a-404, or any other (un-cited) provision of Utah law, operates to give PRA the right to arbitrate the claims in this case. The Motion is DENIED."

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16 hours ago, usctrojanalum said:

Theoretically it is persuasive authority that would seem to agree that you're right. Do think the reasoning the judge uses is a bit of a reach.

Anyway one could argue against this?So as i get the meaning that a "consumer could compel arbitration" as a defendant but Pra counldnt because of fdcpa"

 

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10 minutes ago, THELEGEND said:

Anyway one could argue against this?

Why do you want to argue against this? You are the original "you" in the account agreement, correct? You haven't given up your right to arbitration--especially if there's a survivability clause. You have disputes that are covered by the arbitration section's "what claims are covered" description/definition. If your motion to compel was granted, you would not be making their claim for them in arb, you'd be filing a arb claim demand for your disputes, right? They would have to file their own counterclaim in arb. 

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incase this lawyer tries to pull a fast one. I hear they are under handed. So i have been reading for and against arb

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2 minutes ago, THELEGEND said:

incase this lawyer tries to pull a fast one. I hear they are under handed. So i have been reading for and against arb

Which account agreement governs this account?

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28 minutes ago, THELEGEND said:

Anyway one could argue against this?So as i get the meaning that a "consumer could compel arbitration" as a defendant but Pra counldnt because of fdcpa"

 

That’s exactly what it meant.  When the consumer motions to compel,  a JDB cannot argue that the right to arbitrate was not transferred to the JDB because the JDB is not the party asserting the right.  

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30 minutes ago, BV80 said:

That’s exactly what it meant.  When the consumer motions to compel,  a JDB cannot argue that the right to arbitrate was not transferred to the JDB because the JDB is not the party asserting the right.  

got ya!!Thanks

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12 minutes ago, THELEGEND said:

synchrony account

Which one? 

Did your plaintiff attach an affidavit and bill of sale to the complaint? If so, does the affidavit state that the intent of the parties was to convey to your JDB all of Synchrony’s rights and privileges under the credit agreement? Does the bill of sale refer to "Receivables" like in the Lester v PRA case you linked? 

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no just  last card statement that shows last balance was all that was attached to complaint. Account was with paypal mastercard

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On 5/2/2019 at 4:29 PM, THELEGEND said:

Guys im working on defending myself in court through a order to compel arbitration.

Perhaps I'm late to the party and missed this. Do you have another thread on this case? If not, please explain the above statement. 

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5 hours ago, Brotherskeeper said:

Perhaps I'm late to the party and missed this. Do you have another thread on this case? If not, please explain the above statement. 

yes i explained my situation before but here is simple version. I got complaint crown asset assignee synchrony.. suing me on open and account stated. only thing attached to complaint was 2 statement from last bill. I filed a motion for arbitration and waiting.

 

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