CONSUMER ARBITRATION IN TN

[Vinsey]

Hey y’all. This isn’t my first time getting sued by a JDB, but it is only my second so my goal is to be more knowledgeable and competent this go ‘round. I aim to heavily document this case in hopes of being a resource to my future self and others in the SE Tennessee area (since General Sessions Court does things a bit differently here.) My previous case (nearly a year ago) was dismissed without prejudice, largely based on the steps I’ll detail below and one silly mistake you can read about in my post history.

As you know, IANAL. I also don't pretend to know a damn thing outside of what I've researched and read from the Top Community Contributors here @fisthardcheese @MikeB35 @Goody_Ouchless @BV80 @Brotherskeeper @Clydesmom @Harry Seaward - forever grateful for your advice, good people! I'm posting this for others, like me, who couldn't figure out where the heck to even start. Let's git it. 

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CURRENT SUIT DETAILS:

1. Who is the named plaintiff in the suit?

Portfolio Recovery Associates, LLC

2. What is the name of the law firm handling the suit?

Weber & Olcese, PLC

3. How much are you being sued for?

$1200

4. Who is the original creditor? (If not the Plaintiff)

Synchrony Bank (Care Credit)

5. How do you know you are being sued? (You were served, right?)

Served

6. How were you served? (Mail, In person, Notice on door, etc.)

Served

7. Was the service legal as required by your state?

Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

Nothing - other than a DV request (8 months ago)

9. What state and county do you live in?

Hamilton County, TN

10. When is the last time you paid on this account? (Looking to establish if you are outside SOL)

02/2016

11. When did you open the account (Looking to establish what card agreement may be applicable)

10/2014

12. What is the SOL on the debt?

6 years

13. What is the status of your case? Suit served? Motions filed?

Served four days ago. My Sworn Denial (TN's Answer), MTC (with Affidavit, Proposed Order, and Card Agreement) are ready to be filed within the next few days

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

15. Did you request debt validation before the suit was filed?

Yes, I requested DV when they first started mailing letters requesting payment (8 months ago). They responded in a letter with their Disputes Department phone number and instructions to call if I want to receive a payment history. Their summary of information shown below that consisted of my full name, last 4 digits of SSN, and date the account opened

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

An Affidavit from PRA’s Custodian of Records and a table of information containing the following: Account Number, Record Type, Customer Type, Name, Account Address, Home Phone, Birth Date, Loan Type, Charge Off Reason Code, Account Status, Receipt Date, Contract Date, Charge Off Date, Last Payment Date, Charge Off Amount, Accrued Interest, Current Balance, Net Principal, and Net Interest.

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STEPS:

This outline is based on my experiences and research. Don't hesitate to add any helpful comments or corrections you see fit. I will revise it accordingly. These are the steps I personally will be taking now and in the future. I'm posting this because my last lawsuit took me way too long to figure out the key differences between TN's process and majority of the cases being discussed here. Plus, I understand lists better and you might, too. All documents mentioned will be attached to this post.

If you're reading this for guidance, make sure to read @fisthardcheese Arbitration Overview first for a better understanding of arbitration as a whole.

 

• STEP 1: GET SERVED

 

• STEP 2: ANSWER THE SUMMONS (MOST STATES)
• STEP 2: FILE SWORN DENIAL (TN)

1. Download Sworn Denial and fill out appropriately. The deadline is typically 30 days.
2. Make (3) copies.
3. File original with court. If your MTC is ready (Step 3), you may file at the same time.
4. Mail copy (CMRRR) to DBA's attorney.
5. Store third copy for your records.

 

• STEP 3: FILE MOTION TO COMPEL (MTC) ARBITRATION

1. Write MTC according to local court guidelines. Reference terms of arbitration in Card Agreement.
2. Include Affidavit that testifies that the included Card Agreement is a "true and correct copy of the contract that governs the account from which Plaintiff's allegations arise."
3. Include entire Card Agreement from date card was active. (Find yours here)
4. Include Proposed Order to make the judge's job easier.
5. Notarize Affidavit.
6. Make (3) copies.
7. File original with court.
8. Set hearing date for MTC.
9. Mail copy (CMRRR) to DBA's attorney.

 

• STEP 4: FILE ARBITRATION DEMAND LETTER

1. Download Demand for Arbitration form and fill out appropriately. (AAA or JAMS, whichever is stipulated in your Card Agreement.)
2. Include a Certificate of Service with the forms.
3. If Card Agreement states that "they" will pay for filing fee, include a cover letter stating that per the agreement you are asking the company to forward the consumer filing fee directly to AAA/JAMS.
4. Make (3) copies.
5. If Judge grants MTC, have Demand Form ready to file immediately.
6. Mail Demand (CMRRR) to AAA/JAMS and DBA's attorney on the same date.

 

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QUESTIONS:

Q1. Are my documents satisfactory?

I've attached the required paperwork in hopes of getting the community's feedback before I submit them. Please let me know if anything should be revised, worded better, or formatted differently.

Q2. What does the following mean for my case and MTC?

I am unsure whether I should/must include this in my MTC. On Page 3 of the Card Agreement, under Resolving a Dispute with Arbitration, the clause states:

1. If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or providers that accept the card or program sponsors if it relates to your account, except as noted below.

2. We will not require you to arbitrate: (1) any individual case in small claims court, etc; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.

3. Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage, or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.

MTC DRAFT.pdf AFFIDAVIT DRAFT.pdf PROPOSED ORDER DRAFT.pdf Synchrony Bank CareCredit Agreement 2015.pdf

[fisthardcheese]

Thank you very much for your contribution to help TN members with state specific information.  We need more people to do this, as each state can have very specific requirements (as you have learned).  This is a great post for TN defendants.

Everything you have done looks perfectly good.  The only thing I would add is to perhaps include some state specific case law in your MTC.  If you can find a TN case or a 6th Circuit case showing arbitration is an absolute right when a valid agreement exists, I would include that right above the SCOTUS case law.  Otherwise, everything looks spot-on.

12 hours ago, Vinsey said:

Q2. What does the following mean for my case and MTC?

Absolutely nothing.  You want arbitration, so these items do not apply.  If you were trying to AVOID arbitration, these sections would be used by yourself to show it isn't required of you.

[Vinsey]

Okay, gotcha. Yeah, I'll definitely be scouring the web for more case law but so far, my search has been pretty fruitless. 

[fisthardcheese]

1 hour ago, Vinsey said:

Okay, gotcha. Yeah, I'll definitely be scouring the web for more case law but so far, my search has been pretty fruitless. 

@Brotherskeeper is the case law master.  Perhaps she will stop by when she has time and drop some gold like always :D

[Brotherskeeper]

2 hours ago, fisthardcheese said:

@Brotherskeeper is the case law master.  Perhaps she will stop by when she has time and drop some gold like always

Ha!  My "superpowers" are available to all. I'll see what I can find. 

[Brotherskeeper]

MID-SOUTH MAINTENANCE INC. v. PAYCHEX INC., Tenn: Court of Appeals 2015

Appellants first argue that the parties' agreement to arbitrate is governed by the FAA because it concerns matters of interstate commerce. We agree. According to the Tennessee Supreme Court:

The FAA applies to "a written provision in any maritime transaction or a contract evidencing a transaction involving interstate commerce[^[3]] to settle by arbitration a controversy thereafter arising out of such contract or transaction." 9 U.S.C. § 2 (1994). The purpose of the FAA is "to ensure the enforceability, according to their terms, of private agreements to arbitrate." Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57, 115 S.Ct. 1212, 131 L.Ed.2d 76 (1995) (quoting Volt Info. Sci., Inc. v. Bd. of Tr. of Leland Stanford Junior Univ., 489 U.S. 468, 476, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)). Generally, arbitration "should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage." United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 582-83, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960).

Taylor v. Butler, 142 S.W.3d 277, 281 (Tenn. 2004). Although the Taylor Opinion involved an arbitration provision that expressly cited the FAA, see id. at 280, this Court has held that the FAA "governs the enforcement of any agreement to arbitrate in contracts that involve interstate commerce. Dale Supply, 2003 WL 22309461, at *3 (describing the conclusion as "incontestable") (citing Tenn. River Pulp & Paper Co. v. Eichleay Corp., 637 S.W.2d 853, 855 (Tenn. 1982) ("When a transaction clearly involves interstate commerce, the Act should apply equally in state and federal courts[.]"); Berkley v. H & R Block E. Tax Servs., Inc., 30 S.W.3d 341, 343 (Tenn. Ct. App. 2000) (applying the FAA to the arbitration agreement at issue); see also Guffy v. Toll Bros. Real Estate, No. M2003-01810-COA-R3CV, 2004 WL 2412627, at *5 (Tenn. Ct. App. Oct. 27, 2004) ("If, based on all of the relevant contract documents, the trial court determines that the parties did not expressly agree that the FAA would govern their arbitration agreement, the court must then go further and determine whether the FAA applies because the "contract evidenc[es] a transaction involving commerce," thereby bringing it within the ambit of the FAA[.]"). Because the contract in Dale Supply involved "the flow of goods, services, reports and payments between" two different states, the Court of Appeals concluded that the contract involved interstate commerce and was governed by the FAA. Dale Supply, 2003 WL 22309461, at *3 ("Since the Agreement between [the parties] involves interstate commerce, case law arising under the FAA applies to interpret the scope of the arbitration clause to determine whether [plaintiff's] tort claims. . . are arbitrable.").

[Brotherskeeper]

 

Taylor v. Butler, 142 S.W.3d 277,282 (Tenn. 1996)

As the United States Supreme Court has stated,

Arbitration under the [FAA] is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate, so too may they specify by contract the rules under which that arbitration will be conducted.

Volt Info. Sci., Inc., 489 U.S. at 479, 109 S.Ct. 1248 (citations omitted). Therefore, the question becomes "what the contract has to say about the arbitrability of petitioner's claim." Mastrobuono, 514 U.S. at 58, 115 S.Ct. 1212; see also Frizzell Const. Co. v. Gatlinburg, L.L.C., 9 S.W.3d 79, 84 (Tenn.1999).

282*282 In this case, the arbitration clause governs "all claims, demands, disputes or controversies of every kind or nature between [the parties] arising from the [sale of the vehicle]." The arbitration clause also states that arbitration shall be "conducted pursuant to the provisions of the Federal Arbitration Act, 9 U.S.C. Section 12 et seq." Furthermore, it contains the provision that the parties "agree that any question regarding whether a particular controversy is subject to arbitration shall be decided by the arbitrator."

[Vinsey]

22 hours ago, Brotherskeeper said:

 

Taylor v. Butler, 142 S.W.3d 277,282 (Tenn. 1996)

As the United States Supreme Court has stated,

Arbitration under the [FAA] is a matter of consent, not coercion, and parties are generally free to structure their arbitration agreements as they see fit. Just as they may limit by contract the issues which they will arbitrate, so too may they specify by contract the rules under which that arbitration will be conducted.

Volt Info. Sci., Inc., 489 U.S. at 479, 109 S.Ct. 1248 (citations omitted). Therefore, the question becomes "what the contract has to say about the arbitrability of petitioner's claim." Mastrobuono, 514 U.S. at 58, 115 S.Ct. 1212; see also Frizzell Const. Co. v. Gatlinburg, L.L.C., 9 S.W.3d 79, 84 (Tenn.1999).

282*282 In this case, the arbitration clause governs "all claims, demands, disputes or controversies of every kind or nature between [the parties] arising from the [sale of the vehicle]." The arbitration clause also states that arbitration shall be "conducted pursuant to the provisions of the Federal Arbitration Act, 9 U.S.C. Section 12 et seq." Furthermore, it contains the provision that the parties "agree that any question regarding whether a particular controversy is subject to arbitration shall be decided by the arbitrator."

Thank you so much for going out of your way to produce this! Where did you find it, by the way? I was searching arbitration cases on the tn.gov website, this forum, and Google.....But I always seem to not be looking in the right places. I'm gonna have to read these a few more times outside of work hours to have the brain capacity to understand them clearly first and know where to insert them into my MTC. 

[Brotherskeeper]

44 minutes ago, Vinsey said:

Where did you find it, by the way?

I used Google Scholar, selected Tennesee Courts and entered in " arbitration FAA" in the search. 

https://scholar.google.com/scholar?q=arbitration+FAA&hl=en&as_sdt=4,43

[Robby8900]

2 hours ago, Brotherskeeper said:

I used Google Scholar, selected Tennesee Courts and entered in " arbitration FAA" in the search. 

https://scholar.google.com/scholar?q=arbitration+FAA&hl=en&as_sdt=4,43

Wow! Just found a bunch of Ohio cases. Thank you.

[Vinsey]

On 10/3/2019 at 3:33 PM, Brotherskeeper said:

I used Google Scholar, selected Tennesee Courts and entered in " arbitration FAA" in the search. 

https://scholar.google.com/scholar?q=arbitration+FAA&hl=en&as_sdt=4,43

I have never heard of that before. This will probably be invaluable to me from here on out - thanks again!

[Vinsey]

Alright. If you're reading this thread, you're probably wondering what the results of my case were. You may even be hoping to find out what a court hearing looks like in this neck of the woods. I also like to know what to expect when it comes to these types of situations, so I'll detail my experience for you below. Keep in mind: my original court date and hearing for my MTC were scheduled 30 minutes apart. Would I do that again? Probably not. You'll see why in a little.

1. I arrived 30 minutes early. My hearing was set in General Sessions Court which is basically a medium-sized room with the typical court setup plus rows of chairs for free seating. A huge influx of people arrive exactly on time, so seats run out quick. The overall atmosphere is extremely lax. People watch videos silently on their phones, lawyers don't bother shooting the sh*t with their indoor voices, and denim jeans and hair bonnets are OK. I mention this so you don't think you have to go out and buy a pair of court slacks like I did.

2. Around the time of your hearing, the judge will give verbal instructions to the room for how things will proceed. First, you'll wait for your name to be called on the docket. Once it's called, you'll be following the JDB's attorney to the lobby area and wait in a line to speak to him with everyone else getting sued by that JDB that day. You'll notice that everyone else is agreeing to payment plans, signing off on it, then leaving. You'll show the attorney your summons/case number so they can locate your file in their bin of paperwork. If you've followed the above steps in this thread, they'll already know you've elected arbitration. Previously, this is where I've simply stated I have a hearing in X amount of minutes pending arbitration and went back to sit in the room. This time, the attorney immediately stated that they dismiss without prejudice, so I'm free to go.

3. Learning from my previous lawsuit, I didn't take the attorney's word for it. I went back to the court room and checked if my MTC hearing was truly dismissed. I was under the impression that the judge had to see me since I filed the MTC and was present for my hearing. The clerk to the left of the judge confirmed that my MTC hearing was still set, so I stayed. I sat and waited for my name to be called on the next docket. It was my goal to be heard, file arbitration, and take a shot at a dismissal with prejudice. Instead, my name was called and the clerk spoke to the attorney before coming over to tell me that they dismissed my case. I verified that there's no way I can have my MTC hearing heard and was told that "they dismissed your case so in the eyes of the court, your case doesn't exist."

This brings us back to the hearing dates. My spouse thinks that the MTC hearing being after the original hearing was a poor choice because it allowed the JDB's attorney to dismiss the case prematurely. If that's the deal, my learning lesson this go 'round was to schedule the MTC hearing before my original court date. We'll see how that goes next time!

Edited November 5, 2019 by Vinsey
Edited to reflect 'dismissal withOUT prejudice'

[BV80]

@Vinsey

Congratulations on the dismissal!

Your MTC hearing could have been scheduled first, but it would not have made a difference. The plaintiff can voluntarily dismiss any time before a trial. No hearing is required in order for a plaintiff to voluntarily dismiss its lawsuit. Even if your MTC hearing had been scheduled first, the plaintiff could still have dismissed before the hearing took place.

Sometimes, JDBs will dismiss as soon as a MTC is filed and before a hearing is even scheduled.
 

 

[Goody_Ouchless]

Still amazes me, even after all these years, that the only value in any of those accounts was general ignorance of the arb strategy. All of those people that agreed to pay (money they probably still don't have) could have walked away free and clear. 

[fisthardcheese]

10 hours ago, Vinsey said:

This brings us back to the hearing dates. My spouse thinks that the MTC hearing being after the original hearing was a poor choice because it allowed the JDB's attorney to dismiss the case prematurely.

This seems like you may have a misunderstanding of the arbitration strategy.  The goal is to use arbitration to get a dismissal with prejudice.  You got this up front without going through all the other hassle.  Why would you still want to proceed to a MTC hearing?  You won and it doesn't get better than a dismissal with prejudice.  You no longer owe this debt and it's forever gone.

Congrats!! Thank you again for giving all the details on your case to help others in TN too.

[Brotherskeeper]

17 hours ago, Vinsey said:

This time, the attorney immediately stated that they dismiss with prejudice, so I'm free to go.

Wow! Congratulations. A dismissal with prejudice and a nice pair of slacks. 

Thank you for leaving behind a great thread as a resource for fellow Tennesseans.  

[Vinsey]

10 hours ago, fisthardcheese said:

This seems like you may have a misunderstanding of the arbitration strategy.  The goal is to use arbitration to get a dismissal with prejudice.  You got this up front without going through all the other hassle.  Why would you still want to proceed to a MTC hearing?  You won and it doesn't get better than a dismissal with prejudice.  You no longer owe this debt and it's forever gone.

Congrats!! Thank you again for giving all the details on your case to help others in TN too.

Yep, you were right! I fudged up the with/without prejudice. My case was dismissed without prejudice which is why I wanted to be certain my MTC hearing was moot before I left.

Note: I've edited the post to be correct.

[Vinsey]

20 hours ago, BV80 said:

@Vinsey

Congratulations on the dismissal!

Your MTC hearing could have been scheduled first, but it would not have made a difference. The plaintiff can voluntarily dismiss any time before a trial. No hearing is required in order for a plaintiff to voluntarily dismiss its lawsuit. Even if your MTC hearing had been scheduled first, the plaintiff could still have dismissed before the hearing took place.

Sometimes, JDBs will dismiss as soon as a MTC is filed and before a hearing is even scheduled.
 

 

Gotcha. I wasn't sure of this, so this is good to be clear on. I had hoped there was more I could do than just kicking the can down the road, but as long as my money stays in my wallet it's a big WIN in my book.

[fisthardcheese]

On 11/5/2019 at 1:15 PM, Vinsey said:

Gotcha. I wasn't sure of this, so this is good to be clear on. I had hoped there was more I could do than just kicking the can down the road, but as long as my money stays in my wallet it's a big WIN in my book.

They aren't going to sue you again.  It's essentially dead in the water.  If you feel like poking the bear you can possibly get it off your credit reports with some wrangling and weeks of work.  Depends on how much it's worth to you.

[Vinsey]

I'm back with a bit of a curveball regarding this case. It's been a few weeks since my case has been dismissed and I still haven't received a letter of nonsuit (which I received a few days after my last case), so I called the court clerk to see if they had a copy I could pick up for my records. I was told I owe $132 in court fees for this case and that I should have been told this in court. Now, you know I certainly was not told anything of the sort that day and I went out of my way to make sure the case was truly dismissed. Has anyone else been hit with a fee like this? The clerk didn't have any more answers for me so I'm a bit stumped on who to contact about it.

[Arring]

Hi All! I'm new to this site and new to being sued. I could definitely use some help! I've been reading over the threads and it seems that requesting arbitration is the way to go. Unfortunately, my credit card agreement states the following arbitration exception. Since the suit was filed in Small Claims (General Sessions) court, should I still request arbitration? Can I request to move the suit to a different court for the purpose of arbitration? I'll be grateful for any insight!

 

Agreement to Arbitrate: You and we agree that either you or we may, without the other’s consent, require that controversies or disputes between you and us (all of which are called “Claims”), be submitted to mandatory, binding arbitration. This agreement to arbitrate is made pursuant to a transaction involving interstate commerce, and shall be governed by, and enforceable under, the Federal Arbitration Act (the “FAA”), 9 U.S.C. §1 et seq., and (to the extent State law is applicable), the laws of the State of Nevada.
For purposes of this agreement to arbitrate, “you” includes you, any co-applicant, any Authorized User (including Additional Cardholders), or anyone else connected with you or claiming through you; and “we” or “us” includes Credit One Bank, N.A., all of its parents, subsidiaries, affiliates, successors, predecessors, employees, and related persons or entities, and all third parties who are regarded as agents or representatives of us in connection with the subject matter of the claim or dispute at issue.

Covered Claims: Claims subject to arbitration include, but are not limited to, any controversies or disputes arising from or relating in any way to your Account; any transactions involving your Account; any disclosures made to you concerning your Account; any interest, charges, or fees assessed on your Account; any service(s) or programs related to your Account; and, if permitted by the rules of the arbitration forum, any collection of debt related to your Account. Claims also include controversies or disputes arising from or relating in any way to advertising, solicitations, or any application for, approval of, or establishment of your Account. Claims subject to arbitration include any controversies or disputes based on any theory of law, whether contract, tort, statute, regulation, common law, or equity, or whether they seek legal or equitable remedies. All Claims are subject to
arbitration whether they arose in the past, may currently exist, or may arise in the future. Arbitration will apply even if your Account is closed, you pay us in full any outstanding debt you owe, or you file for bankruptcy. Also, controversies or disputes about the validity, enforceability, coverage, meaning, or scope of this agreement to arbitrate or any part thereof are subject to arbitration and are for the arbitrator to decide. Any questions about what Claims are subject to arbitration shall be resolved by interpreting this agreement to arbitrate in the broadest way the law will allow it to be enforced.
Claims Not Covered: Claims (whether brought initially or by counter or cross-claim) are not subject to arbitration if they are filed by you or us in a small claims court, so long as the case remains in such court and only individual claims for relief are advanced in the case.

CURRENT SUIT DETAILS:

1. Who is the named plaintiff in the suit?

Midland Credit Management, Inc

2. What is the name of the law firm handling the suit?

Finkelstein Kern Stinberg & Cunningham, P.C. 

3. How much are you being sued for?

$1093 + post-judgement interest and costs

4. Who is the original creditor? (If not the Plaintiff)

Credit One Bank

5. How do you know you are being sued? (You were served, right?)

Served

6. How were you served? (Mail, In person, Notice on door, etc.)

In person

7. Was the service legal as required by your state?

??

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None

9. What state and county do you live in?

Shelby County, TN

10. When is the last time you paid on this account? (Looking to establish if you are outside SOL)

02/2016

11. When did you open the account (Looking to establish what card agreement may be applicable)

02/2018

12. What is the SOL on the debt?

6 years

13. What is the status of your case? Suit served? Motions filed?

Served eight days ago. 

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

15. Did you request debt validation before the suit was filed?

No

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

An Affidavit from Midland's legal specialist