atrueparrothead

Velocity Investments may sue me

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I have (had) and account with Prosper.  Early this year, I stopped paying (I think it was March), but alerted them that I had fallen on financial difficulty.  I offered to pay less and even wanted to negotiate to try to pay them off.  They said they have no programs for this and advised me to stop paying and let my account go into collections.  I received an email that my debt was sold to Velocity Investments, LLC.  After doing research, I see that this Company will likely sue me for the balance.  When I stopped paying it was around $14,500.  

I have not received any communication yet from Velocity, but I want to get out ahead of this.  When their first letter comes, I will send a DV letter, mainly to buy time.  I do owe the debt to Prosper and I do want to pay, but I'd like to negotiate.  What do you recommend?  I have seen other threads where arbitration with JAMS is recommended.  Can you give me some direction as to how I facilitate that?  Also, what are these JAMS proceedings like provided it gets to that?

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JAMS can only be used if that is in the contract / credit agreement.

There are 4 main categories of arbitration agreements.  You need to find out which one your account is in,

1. Accounts with no arbitration agreement.  If that is the case, you have no chance whatsoever of arbitration in JAMS or anywhere else.

2. Accounts with an arbitration agreement, but the agreement doesn't apply to small claims.  Your amount is large enough this won't apply to you.

3. Accounts with an arbitration agreement, but does not use JAMS.  Most will use AAA instead.  Examples are phone carriers, etc.

4. Accounts with an arbitration agreement which includes JAMS. These are the best.

 

#2 does not apply to you.

If your account is in case 4, use JAMS.

If your account is in case 3, use AAA

If your account is in case 1, then you need another plan.

 

Your homework assignment is to find out which category your account is in.  If this is a credit card, the agreement will be in the CFPB web site. In any case, you need to know in order to work out a strategy.  Some agreements require you to notify them 30 days ahead of any plans to arbitrate.  Others do not.  You need to know.  

If they send you a letter before you have your answer, then for your DV reply, add "if there is any arbitration agreement in the underlying contract, I hereby invoke my rights under the arbitration agreement, and demand that any disputes in this account be arbitrated", or something like that.  It can't hurt you to put that in there, and it may or may not be proper notice that you intend to arbitrate.

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If the account has been sold to a JDB, forget about paying Prosper.  They are now out of the picture.

But, if the Prosper account has an arbitration clause, that would be a huge help.

Best info on arb is here:

 

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Ok, I pulled my promissory note and here is the section on arbitration:

18. Arbitration. RESOLUTION OF DISPUTES: I HAVE READ THIS PROVISION CAREFULLY, AND UNDERSTAND THAT IT LIMITS MY
RIGHTS IN THE EVENT
OF
A DISPUTE BETWEEN YOU AND ME. I UNDERSTAND THAT I HAVE THE RIGHT TO REJECT THIS PROVISION,
AS PROVIDED IN PARAGRAPH (i) BELOW
.
(a) In this Resolution of Disputes provision:
(i) "I", "me" and "my" mean the promisor under this Note
, as well as any person claiming through such promisor;
(ii) "You" and "your" mean WebBank
, any person servicing this Note for WebBank, any subsequent holders of this Note or any interest in this Note
any person servicing this Note for such subsequent holder of this
note, and each of their respective parents, subsidiaries, affiliates, predecessors,
successors
, and assigns, as well as the officers, directors, and employees of each of them; and
https://www.prosper.com/secure/account/common/agreement_view_secure.aspx?agreement_id=95761135 2/5
7/26/2019 Borrower Promissory Note
(iii) "Claim" means any dispute, claim, or controversy (whether based on contract, tort, intentional tort, constitution, statute, ordinance, common
law, or equity, whether pre
-existing, present, or future, and whether seeking monetary, injunctive, declaratory, or any other relief) arising from or
relating to this Note or the relationship between you and me (including claims arising prior to or after the date of the Note
, and claims that are
currently the subject of purported class action litigation in which I am not a member of
a certified class), and includes claims that are brought as
counterclaims
, cross claims, third party claims or otherwise, as well as disputes about the validity or enforceability of this Note or the validity or
enforceability of this Section
.
(b) Any Claim shall be resolved, upon the election of either you or me, by binding arbitration administered by the American Arbitration Association
or JAMS, under the applicable arbitration rules of the administrator in effect at the time a Claim is filed ("Rules"). Any arbitration under this
arbitration agreement will take place on an individual basis; class arbitrations and class actions are not permitted.
If I file a claim, I may
choose the administrator; if you file a claim
, you may choose the administrator, but you agree to change to the other permitted administrator at my
request (assuming that the other administrator is available)
.I can obtain the Rules and other information about initiating arbitration by contacting
the American Arbitration Association at 1633 Broadway
, 10th Floor, New York, NY 10019, www.adr.org; or by contacting JAMS at 1920 Main
Street
, Suite 300, Irvine, CA 92614, (949) 224-1810, www.jamsadr.com. Your address for serving any arbitration demand or claim is WebBank, c/o
Prosper Marketplace, Inc
., 221 Main Street, Third Floor, San Francisco, CA 94105, Attention: Legal Department.

(c) Claims will be arbitrated by a single, neutral arbitrator, who shall be a retired judge or a lawyer with at least ten years' experience. You agree not
to invoke your right to elect arbitration of an individual Claim filed by me in a small claims or similar court (if any)
, so long as the Claim is pending
on an individual basis only in such court
.
(d) You will pay all filing and administration fees charged by the administrator and arbitrator fees up to $1,000, and you will consider my request to
pay any additional arbitration costs. If an arbitrator issues an award in your favor, I will not be required to reimburse you for any fees you have
previously paid to the administrator or for which you are responsible
. If I receive an award from the arbitrator, you will reimburse me for any fees
paid by me to the administrator or arbitrator
. Each party shall bear its own attorney's, expert's and witness fees, which shall not be considered
costs of arbitration; however
, if a statute gives me the right to recover these fees, or fees paid to the administrator or arbitrator, then these statutory
rights will apply in arbitration
.
(e) Any in-person arbitration hearing will be held in the city with the federal district court closest to my residence, or in such other location as you
and we may mutually agree
. The arbitrator shall apply applicable substantive law consistent with the Federal Arbitration Act, 9 U.S.C. § 1-16, and,
if requested by either party, provide written reasoned findings of fact and conclusions of law. The arbitrator shall have the power to award any relief
authorized under applicable law
. Any appropriate court may enter judgment upon the arbitrator's award. The arbitrator's decision will be final and
binding except that: (1) any
party may exercise any appeal right under the FAA; and (2) any party may appeal any award relating to a claim for
more than $100
,000 to a three-arbitrator panel appointed by the administrator, which will reconsider de novo any aspect of the appealed award.
The panel's decision will be final and binding, except for any appeal right under the FAA. Unless applicable law provides otherwise, the appealing
party will pay the appeal's cost
, regardless of its outcome. However, you will consider any reasonable written request by me for you to bear the
cost
.
(f) YOU AND I AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN OUR INDIVIDUAL CAPACITY, AND NOT AS A
PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING
. Further, unless both you and I agree
otherwise in writing
, the arbitrator may not consolidate more than one person's claims. The arbitrator shall have no power to arbitrate any Claims
on a class action basis or Claims brought in a purported representative capacity on behalf of the general public, other borrowers, or other persons
similarly situated. The validity and effect of this paragraph (f) shall be determined exclusively by a court, and not by the administrator or any
arbitrator
.
(g) If any portion of this Section 18 is deemed invalid or unenforceable for any reason, it shall not invalidate the remaining portions of this section.
However, if paragraph (f) of this Section 18 is deemed invalid or unenforceable in whole or in part, then this entire Section 18 shall be deemed
invalid and unenforceable
. The terms of this Section 18 will prevail if there is any conflict between the Rules and this section.
(h) YOU AND I AGREE THAT, BY ENTERING INTO THIS NOTE, THE PARTIES ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR
TO PARTICIPATE IN A CLASS ACTION
. YOU AND I ACKNOWLEDGE THAT ARBITRATION WILL LIMIT OUR LEGAL RIGHTS, INCLUDING
THE RIGHT TO PARTICIPATE IN A CLASS ACTION
, THE RIGHT TO A JURY TRIAL, THE RIGHT TO CONDUCT FULL DISCOVERY, AND
THE RIGHT TO APPEAL (EXCEPT AS PERMITTED IN PARAGRAPH (e) OR UNDER THE FEDERAL ARBITRATION ACT)
.
(i) I understand that I may reject the provisions of this Section 18, in which case neither you nor I will have the right to elect arbitration. Rejection of
this Section 18 will not affect the remaining parts of this Note
. To reject this Section 18, I must send you written notice of my rejection within 30
days after the date that this Note was made
. I must include my name, address, and account number. The notice of rejection must be mailed to
WebBank, c/o Prosper Marketplace, Inc., 221 Main Street, San Francisco, CA 94105, Attention: Legal Department. This is the only way that I can
reject this Section
18
 

I bolded the section that references JAMS.  Again, I have not received anything yet from Velocity, but I know it's coming.  I will answer with a DV letter.  Should I include a statement about requesting arbitration with JAMS?  IF so, how do I facilitate that?

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It appears that the arbitration agreement limits them in small claims cases, but not you.  It is confusing.  It doesn’t matter, since your amount is rather large. 

Put in a simple sentence along the lines of:

”I hereby invoke my right under the arbitration agreement to have all disputes decided in JAMS”. 

It doesn’t have to be elegant. 

This is an excellent arbitration agreement.  It forces them to pay your arbitration fees.  It is possible that merely electing JAMS in the DV letter will scare them away.  Don’t count on it, but that has happened to some of us occasionally.  

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For this amount I can almost guarantee that they will ignore all references to JAMS and sue you anyway.  I would just read up on the arbitration thread to understand how to respond when this happens.  Forcing them by way of court order will be a good thing for you and should leverage a pretty decent settlement.  If this were me, I would be thinking somewhere in the ballpark of $0.  (But it will take some work and patience.)

I should add, since this was just recently given to Velocity, it could be a year or so before they sue.  In the meantime, I would document carefully ALL contact they have with you.  When they start to call, I would record all calls and say nothing to them except 'I revoke any permission to call my cell phone'.  Documentation will help you later. The more documentation of any violations they have (such as continued phone calls after you revoke permission) will be all the easier to leverage then later to go away for $0.

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