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Nana2709

How to win in arbitration

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Couple of questions guys.

1. What are the defense to use during arbitration? There's a unsigned card agreement and statements. What is a person defence? 

2. Can they do a summary judgment in arbitration?

3. How to drag out arbitration for at least a year or two. 

Against discover.

Thanks guys

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8 hours ago, Nana2709 said:

1. What are the defense to use during arbitration? There's a unsigned card agreement and statements. What is a person defence? 

You have no defense unless the account was opened fraudulently or they sued you beyond the statute of limitations, in which case you should stay in court since these kinds of defenses are processed faster and with less expense than arbitration. 

8 hours ago, Nana2709 said:

2. Can they do a summary judgment in arbitration?

They can try. It depends on the individual arbitrator. 

8 hours ago, Nana2709 said:

3. How to drag out arbitration for at least a year or two. 

Very unlikely. The only possible way is to ask for in-person hearings on every single decision the arbitrator makes. Most arbitrators will catch on to what you're up to and shut the door on it pretty quickly. Plus this kind of thing puts you into the "bad faith" camp and allows the arbitrator to stick you with the entire arbitration bill. Once you get through the 'ground level' arbitration and lose, you can start an arbitration appeal, where you will lose again. From there it goes back to court where you can argue against award confirmation, but since you already flipped the court the bird by taking your case to arbitration, the court is not suddenly going to take an interest in seeing to it that you got a fair shake in arbitration. 

Your thread is titled "how to win in arbitration". The straight answer is going against Discover, and any other OC that follows you in to arbitration, you never win a case in arbitration that you couldn't win in court. At best you buy yourself some time to file bankruptcy. 

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7 hours ago, Nana2709 said:

1. What are the defense to use during arbitration? There's a unsigned card agreement and statements. What is a person defence? 

Your defense(s) would be the same as in court.  Either you have valid defenses or you don’t.   

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1 hour ago, BV80 said:

Your defense(s) would be the same as in court.  Either you have valid defenses or you don’t.   

One exception to that, which I used to get a very nice settlement with Discover:

If your state has a longer SOL than the home state of the OC,

AND the arbitration agreement has a choice of law provision to use the home state of the OC, 

AND the SOL for the OC's home state has passed, but NOT the SOL for your home state,

THEN you can file a pre-emptive arbitration against the OC, demanding that their home state's SOL be applied.  Realize that Delaware, for example, has a relatively short SOL.  

 

Even so, Discover dragged the case until just before the hearing before agreeing to settle.  

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20 minutes ago, BackFromTheDebt said:

 

One exception to that, which I used to get a very nice settlement with Discover:

If your state has a longer SOL than the home state of the OC,

AND the arbitration agreement has a choice of law provision to use the home state of the OC, 

AND the SOL for the OC's home state has passed, but NOT the SOL for your home state,

THEN you can file a pre-emptive arbitration against the OC, demanding that their home state's SOL be applied.  Realize that Delaware, for example, has a relatively short SOL.  

 

Even so, Discover dragged the case until just before the hearing before agreeing to settle.  

Then assuming the SOL of the governing state in the agreement applies, the passing of the SOL would be the “valid defense” I referenced.  

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24 minutes ago, BV80 said:

Then assuming the SOL of the governing state in the agreement applies, the passing of the SOL would be the “valid defense” I referenced.  

I should have added ...

In cases for which the creditor's state does NOT have a borrowing statute for SOL, then the passing of the SOL is a valid defense in arbitration, but NOT court.

For my case, that was an essential difference.  I was able to win in arbitration with a defense that would have lost in court.  

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Recent discover agreements have the following language;

Quote

This Agreement is governed by applicable federal law and by Delaware law. However, in the event you default and we file a lawsuit to recover funds loaned to you, the statute of limitations of the state where the lawsuit is filed will apply, without regard to that state’s conflicts of laws principles or its “borrowing statute".

OP mentioned in another thread that discover initiated the jams case after OP sent correspondence to their attorney with a request for arbitration.  All of this apparently happened before any lawsuit was filed in OP's home state.

If this is correct, there are no competing interests (with regard to sol) of any other state.

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12 minutes ago, Pericles said:

Recent discover agreements have the following language;

OP mentioned in another thread that discover initiated the jams case after OP sent correspondence to their attorney with a request for arbitration.  All of this apparently happened before any lawsuit was filed in OP's home state.

If this is correct, there are no competing interests (with regard to sol) of any other state.

That language was added since my arbitration with Discover.  As you mentioned, this new SOL addition would not matter,  because no suit had been filed.  Just to make clear, I filed in JAMS before a suit to have a stronger claim to the Delaware SOL. 
 

My situation may not apply to the OP. 
 

For anyone reading this, if you have a defaulted Discover account which is past the shorter Delaware SOL but within your state’s SOL, it may be a wise move to file in JAMS before they file in court, and use Delaware choice of law and SOL as a defense against their counter claims for the debt. 

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1 minute ago, BackFromTheDebt said:

it may be a wise move to file in JAMS before they file in court, and use Delaware choice of law and SOL as a defense against their counter claims for the debt.

The above quoted language from the card agreement renders any 'choice of law' provisions moot in terms of SOL.

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3 minutes ago, Harry Seaward said:
 

The above quoted language from the card agreement renders any 'choice of law' provisions moot in terms of SOL.

How is that?  
I am asking for information rather than to argue. 
 

It appears the creditor state SOL only comes into play if a lawsuit has already been filed.  If no lawsuit has been filed, then why wouldn’t Delaware choice of law prevail?

 

I think different arbitrators may rule differently.  It doesn’t seem so cut and dried as you make or seem. 
 

What am I missing?

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2 hours ago, BackFromTheDebt said:

If no lawsuit has been filed, then why wouldn’t Delaware choice of law prevail?

Are you saying counterclaims in arbitration do not count as "a lawsuit filed against you"?

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8 minutes ago, Harry Seaward said:

Are you saying counterclaims in arbitration do not count as "a lawsuit filed against you"?

Assume that arbitration counterclaims are a "lawsuit".  Further assume that all of such claims originate in arbitration in the first instance, without any prior court involvement.

What state law other than Delaware could possibly apply?  How would that state jurisdiction obtain?

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11 minutes ago, Pericles said:

What state law other than Delaware could possibly apply?

 

1 hour ago, Pericles said:

the statute of limitations of the state where the lawsuit is filed will apply,

 

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5 hours ago, Harry Seaward said:

 

Just to confirm there was no actual filing of a lawsuit. I asked for arbitration- they filed,- they paid all fees and commenced- now we are here. 

 

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18 hours ago, Nana2709 said:

1. What are the defense to use during arbitration? There's a unsigned card agreement and statements. What is a person defence? 

There are only two defenses to being sued by the original creditor:  identity theft and statute of limitations. Whether or not you could convince an arbitrator that they waited too long to pursue this in court or arbitration is debatable and you should be aware probably high risk.

NO court or arbitrator is looking for signed card agreement(s) or statements.  They are acutely aware the card agreement is nothing more than a document you are given defining the terms of the account.  Your use of the card and credit consents to the terms and forms the contract.  NOT a signature.  The same with the statements.  They are merely a document informing you of the account status.  No where is your signature or theirs required.

19 hours ago, Nana2709 said:

2. Can they do a summary judgment in arbitration?

They can attempt to move the case on an expedited track yes.  

19 hours ago, Nana2709 said:

3. How to drag out arbitration for at least a year or two. 

Discover is well versed in arbitration and will know exactly how to stop any frivolous attempts to needlessly drag this out to run up their costs.  BAD plan.

The bottom line is a bad case in court is equally as bad in arbitration.  The entire point of invoking arb with Discover is to get a better settlement.  If you qualify for BK then just file.  There is no point in jumping through all these hoops to drag things out.  You are only prolonging your stress and pain.  It isn't bothering them one bit.

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19 minutes ago, Clydesmom said:

There are only two defenses to being sued by the original creditor:  identity theft and statute of limitations. Whether or not you could convince an arbitrator that they waited too long to pursue this in court or arbitration is debatable and you should be aware probably high risk.

NO court or arbitrator is looking for signed card agreement(s) or statements.  They are acutely aware the card agreement is nothing more than a document you are given defining the terms of the account.  Your use of the card and credit consents to the terms and forms the contract.  NOT a signature.  The same with the statements.  They are merely a document informing you of the account status.  No where is your signature or theirs required.

They can attempt to move the case on an expedited track yes.  

Discover is well versed in arbitration and will know exactly how to stop any frivolous attempts to needlessly drag this out to run up their costs.  BAD plan.

The bottom line is a bad case in court is equally as bad in arbitration.  The entire point of invoking arb with Discover is to get a better settlement.  If you qualify for BK then just file.  There is no point in jumping through all these hoops to drag things out.  You are only prolonging your stress and pain.  It isn't bothering them one bit.

Thank you. Like stated I need time to file. One needs to be up to date with taxes. So right now I can care less what discover thinks or knows. They want the money? Let them come for me. I plan on going all the way to appeal process. I'm not bothered or tired. I'm good. Just need some assistance while I get time to file. 

 

 

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On 11/12/2019 at 10:16 AM, Harry Seaward said:
On 11/12/2019 at 9:08 AM, Pericles said:

the statute of limitations of the state where the lawsuit is filed will apply,

 

AAA case filings, if not filed online, are mailed to new jersey.  Jams has regional offices in selected states.  Is your interpretation of  the language in the arbitration agreement that the state law (for sol) is determined by the state in which the arbitration administrator's physical location is present, assuming that such location accepted the initial filing?

So, the sol, for the example case as described in this thread, would be 4 years if the initial demand filing was mailed to a jams regional office in california?  

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1 hour ago, Pericles said:

So, the sol, for the example case as described in this thread, would be 4 years if the initial demand filing was mailed to a jams regional office in california? 

There's a lot in this sentence that is open to a lot of interpretation, which would be up to the individual arbitrator to decide. Unless there is some law or rule that says otherwise, i personally would use the SOL of the state where a lawsuit would have been filed, were i to hear this case as an arbitrator. 

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That seems like (not exactly, but functionally) making the determination based upon residency rather than "court" jurisdiction.  There is some precedent for that mode of evaluation.

Though consideration of some counterfactual ("would have been filed") is a rather tricky thing to do.  There are a lot of possible worlds.

Patent trolls and other forum shoppers typically go for "court" jurisdiction rather than residency.  That british last-week guy on hbo brought this point to light just a few days ago (SLAPP Suits @Time:12:22).  Neither the last-week guy nor the coal guy were residents of west virginia, yet there the jurisdiction was established and remained for 2+ years.

Maybe it is just somewhat difficult to fit arbitration and court into the same "lawsuit" framework.  Maybe alternatives shouldn't be lumped together for definitional purposes.

As you say, any arbitrator or other can pretty much decide any way or other about this question, and non-parties will likely not ever know how any of it was decided.

Though I really can't imagine that if a filing party filed in jam's district of columbia office, that any arbitrator would use that filing as a basis for determining the sol to be 3 years.

But I can imagine an arbitrator applying delaware law over a possible counterfactual.

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