AAA Administrative Closure of case - What to do now?

[ShaunTheDon]

I suppose I should start with the background details before I get to my questions on what to do now.

I was sued by UNIFUND as a JDB from an old Barclays debt.  I filed a MTC and received the following order granting my motion:

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ORDER ON DEFENDANT'S  MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO  STAY PROCEEDING PENDING ARBITRATION  

THIS CAUSE having come before the Court upon Defendant's Motion to Compel Private/Contractual Arbitration and to Stay Proceeding Pending Arbitration and the Court having reviewed the file, and being otherwise fully advised in the premises, it is therefore ORDERED AND ADJUDGED that Defendant's Motion is GRANTED as follows: 

1. This case is stayed pending arbitration and the court reserves jurisdiction to consider either parties application for confirmation of the judgment of the arbitrator(s). 

2. The non-jury trial presently scheduled for December 20, 2019 at 9:30 AM is hereby continued. 

3. Defendant shall, within 30 days, initiate the filing of Arbitration with the American Arbitration Association (AAA) and shall remit the proper allocated portion of the arbitration fee pursuant to the Barclays Bank Delaware Cardmember Agreement. 

4. Should the Defendant fail to file said arbitration claim within 30 days of the date or this Order, the stay in this action shall be lifted without further hearing with this matter to proceed in state court. 

ORDERED at St Lucie County, Florida 
December 11, 2019 

JUDGR DARRYL EISENHOWER 

---------------------------------------

I filed the Arbitration through AAA as required by the credit card agreement and paid the $200 fee.  I didn't mention the debt but rather potential "state and federal consumer debt collection law violations" and waited about 2 weeks without hearing anything from AAA.  Finally, I received the following via email:

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Dear Parties:
Claimant has filed with us a demand for arbitration. We note that the arbitration clause provides for arbitration by
the American Arbitration Association (“AAA”).

Prior to the filing of this arbitration, the business failed to comply with the AAA’s policies regarding consumer
claims. Accordingly, we must decline to administer this claim and any other claims between Unifund CCR, LLC
and its consumers at this time. These policies can be found on our web site, www.adr.org, in the Consumer Due
Process Protocol (“Protocol”) and the Consumer Arbitration Rules (“Consumer Rules”), including the Costs of
Arbitration.

Accordingly, we have administratively closed our file and will refund any payment received by the filing party.
According to R-1(d) of the Consumer Rules, should the AAA decline to administer an arbitration, either party
may choose to submit its dispute to the appropriate court for resolution.

If you believe we have declined this matter in error, please email ConsumerFiling@adr.org .

Pursuant to the AAA’s current policy, in the normal course of our administration, the AAA may maintain certain
electronic case documents in our electronic records system. Such electronic documents may not constitute a
complete case file. Other than certain types of electronic case documents that the AAA maintains indefinitely,
electronic case documents will be destroyed 3 months after the date of this letter.

If Unifund CCR, LLC advises the AAA in the future of its intention to comply with the AAA’s Consumer
Arbitration Rules and if applicable, resolves any outstanding payment obligations, the AAA may consider at its
sole discretion, accepting newly filed consumer cases going forward. Therefore, if Unifund CCR, LLC wishes for
the AAA to consider accepting consumer disputes going forward, the business must, at a minimum, register its
clause on the Consumer Clause Registry on our website, www.adr.org/clauseregistry. Upon completion of the
registration process and confirmation from the AAA that the business is now active on the Consumer Clause
Registry, the business is responsible for informing all parties that Claimant may re-file their claim.
---------------------------------------

My question is now what did I do?

My reading of the letter seems to indicate that Unifund didn't pay its first portion of the arbitration fee and AAA dismissed it, but I note that "either party may choose to submit its dispute to the appropriate court" which worries me.  My paranoid brain immediately goes to this being a way to stop the arbitration/settlement route for defeating these JDMs.  Has anyone else found themselves in this situation?

Do I go back to the court and file a motion to dismiss as the JDM didn't follow the court order and/or due to the JDB not effectively showing up?
Should I refile the arbitration and add the info about the alleged debt even though that should have been a counterclaim by the JDM?
Should I contact the JDM and see if they'd like to settle?  I had not done so yet as there was no info from AAA yet.  I figured I'd start at the 60 days from demand for answer which is the first $1400-1500 payment date.

Any guidance here would be great, since I'm completely clueless as to how to handle this.

 

[BV80]

@ShaunTheDon

Dis you send a copy of the court’s order to arbitrate to AAA?

[ShaunTheDon]

3 minutes ago, BV80 said:

@ShaunTheDon

Dis you send a copy of the court’s order to arbitrate to AAA?

Yes.  I did send AAA a copy.

[BV80]

37 minutes ago, ShaunTheDon said:

Yes.  I did send AAA a copy.

Calling @fisthardcheese

[Brotherskeeper]

@ShaunTheDon By any chance, does your Barclay's Cardmember Agreement include this language? 

"This arbitration agreement applies to all Claims now in existence or that may arise in the future, and it survives the termination of the Cardmember Agreement and the Account relationship, including your payment in full, and your filing of bankruptcy. Nothing in this Agreement shall be construed to prevent any party’s use of (or advancement of any claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or property interests for contractual debts now or hereafter owed by either party to the other under this Agreement.

ARBITRATION WITH RESPECT TO A CLAIM IS BINDING AND NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT. IN ARBITRATION YOU AND WE WILL NOT HAVE THE RIGHTS THAT ARE PROVIDED IN COURT INCLUDING THE RIGHT TO A TRIAL BY JUDGE OR JURY AND THE RIGHT TO PARTICIPATE OR BE REPRESENTED IN PROCEEDINGS BROUGHT BY OTHERS SUCH AS CLASS ACTIONS OR SIMILAR PROCEEDINGS. IN ADDITION, THE RIGHT TO DISCOVERY AND THE RIGHT TO APPEAL ARE ALSO LIMITED OR ELIMINATED BY ARBITRATION. ALL OF THESE RIGHTS ARE WAIVED AND ALL CLAIMS MUST BE RESOLVED THROUGH ARBITRATION."

[ShaunTheDon]

36 minutes ago, Brotherskeeper said:

@ShaunTheDon By any chance, does your Barclay's Cardmember Agreement include this language? 

"This arbitration agreement applies to all Claims now in existence or that may arise in the future, and it survives the termination of the Cardmember Agreement and the Account relationship, including your payment in full, and your filing of bankruptcy. Nothing in this Agreement shall be construed to prevent any party’s use of (or advancement of any claims, defenses, or offsets in) bankruptcy or repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security or property interests for contractual debts now or hereafter owed by either party to the other under this Agreement.

ARBITRATION WITH RESPECT TO A CLAIM IS BINDING AND NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT. IN ARBITRATION YOU AND WE WILL NOT HAVE THE RIGHTS THAT ARE PROVIDED IN COURT INCLUDING THE RIGHT TO A TRIAL BY JUDGE OR JURY AND THE RIGHT TO PARTICIPATE OR BE REPRESENTED IN PROCEEDINGS BROUGHT BY OTHERS SUCH AS CLASS ACTIONS OR SIMILAR PROCEEDINGS. IN ADDITION, THE RIGHT TO DISCOVERY AND THE RIGHT TO APPEAL ARE ALSO LIMITED OR ELIMINATED BY ARBITRATION. ALL OF THESE RIGHTS ARE WAIVED AND ALL CLAIMS MUST BE RESOLVED THROUGH ARBITRATION."

It does have that exact verbiage.  I can see how I would argue in another MTC or MTD if the JDB were to push the issue back into court, but I'm not sure of the correct move assuming the JDM does nothing.  The court case is simply on a stay, so I don't think its over unless the court dismisses, AAA delivers a verdict or the JDM settles.

Also, I'm not sure we really ever entered arbitration as AAA declined to administer the claim due to the business not following procedure.  From the later text in the letter, they mention specifically the fee schedule.  The weird part is that the business can still "defend itself" from a claim under AAA's rules.  

I'll definitely be contacting AAA in order to determine the exact procedures that the JDB failed to follow, but even armed with that I'll still be at a loss as to how to proceed. 

[BV80]

4 minutes ago, ShaunTheDon said:

It does have that exact verbiage.  I can see how I would argue in another MTC or MTD if the JDB were to push the issue back into court, but I'm not sure of the correct move assuming the JDM does nothing.  The court case is simply on a stay, so I don't think its over unless the court dismisses, AAA delivers a verdict or the JDM settles.

Also, I'm not sure we really ever entered arbitration as AAA declined to administer the claim due to the business not following procedure.  From the later text in the letter, they mention specifically the fee schedule.  The weird part is that the business can still "defend itself" from a claim under AAA's rules.  

I'll definitely be contacting AAA in order to determine the exact procedures that the JDB failed to follow, but even armed with that I'll still be at a loss as to how to proceed. 

I notified fisthardcheese for you.  As far as I know, AAA is supposed to honor a court order.

[Brotherskeeper]

3 hours ago, ShaunTheDon said:

3. Defendant shall, within 30 days, initiate the filing of Arbitration with the American Arbitration Association (AAA) and shall remit the proper allocated portion of the arbitration fee pursuant to the Barclays Bank Delaware Cardmember Agreement. 

4. Should the Defendant fail to file said arbitration claim within 30 days of the date or this Order, the stay in this action shall be lifted without further hearing with this matter to proceed in state court. 

(I am not a lawyer.) If you initiated the filing of your arb demand with AAA within 30 days of the December 11, 2019 court order, and paid the proper AAA fee, then you have complied with the terms of #3. 

#4 of the court order states that the stay shall be lifted without further hearing if you should fail to follow the terms of #3. The court order is silent on what happens to the stay if the plaintiff fails to comply with its AAA requirments. Because you did not fail to follow the terms of #3, as I understand #4, a motion and/or hearing to lift the stay in this action would be required.  

[ShaunTheDon]

52 minutes ago, Brotherskeeper said:

1 hour ago, BV80 said:

I notified fisthardcheese for you.  As far as I know, AAA is supposed to honor a court order.

Thank you!  I thought the same thing...I mean AAA would be in contempt for declining...Unless them declining is tantamount to a dismissal.

 

[ShaunTheDon]

54 minutes ago, Brotherskeeper said:

Because you did not fail to follow the terms of #3, as I understand #4, a motion and/or hearing to lift the stay in this action would be required.  

I assume you mean a motion from the JDB to lift the stay as I followed the court's order.  I don't want to return to court unless my MTD is iron clad, which it isn't yet.  The only problem from my perspective of the JDB just letting this sit, is that the SOL clock is stopped.  Also, the case being in limbo is a bit disconcerting for me.

[Brotherskeeper]

 

17 minutes ago, ShaunTheDon said:

I mean AAA would be in contempt for declining...Unless them declining is tantamount to a dismissal.

AAA is not in contempt of your court order for declining to arbitrate with Unifund as a party. Unifund's prior actions have not been in compliance with AAA's consumer rules and policies. 

5 hours ago, ShaunTheDon said:

Prior to the filing of this arbitration, the business failed to comply with the AAA’s policies regarding consumer
claims. Accordingly, we must decline to administer this claim and any other claims between Unifund CCR, LLC
and its consumers at this time.

 

5 hours ago, ShaunTheDon said:

If Unifund CCR, LLC advises the AAA in the future of its intention to comply with the AAA’s Consumer
Arbitration Rules and if applicable, resolves any outstanding payment obligations, the AAA may consider at its
sole discretion, accepting newly filed consumer cases going forward. Therefore, if Unifund CCR, LLC wishes for
the AAA to consider accepting consumer disputes going forward, the business must, at a minimum, register its
clause on the Consumer Clause Registry on our website, www.adr.org/clauseregistry. Upon completion of the
registration process and confirmation from the AAA that the business is now active on the Consumer Clause
Registry, the business is responsible for informing all parties that Claimant may re-file their claim.

If Unifund advises AAA of its intention to follow AAA's consumer rules, resolves any outstanding payment obligations to AAA and registers its arbitration clause on AAA's Consumer Clause Registry, then at AAA's discretion, AAA may accept cases with Unifund. It would be Unifund's responsibility to inform you as Claimant to refile your claim. 

We need to find out why AAA has declined your case despite your having a have a court order. 

[ShaunTheDon]

52 minutes ago, Brotherskeeper said:

If Unifund advises AAA of its intention to follow AAA's consumer rules, resolves any outstanding payment obligations to AAA and registers its arbitration clause on AAA's Consumer Clause Registry, then at AAA's discretion, AAA may accept cases with Unifund. It would be Unifund's responsibility to inform you as Claimant to refile your claim. 

We need to find out why AAA has declined your case despite your having a have a court order. 

I didn't catch that last part about the registry when I read the letter.  That creates an odd dilemma as my arbitration clause was transferred to Unifund through Barclays and I as a claimant have the right to arbitrate and the business the right to defend themselves...A conversation with AAA is definitely needed. 

[fisthardcheese]

Reply to the AAA email closing the case and CC the unifund attorney.  Send another copy of the court order.  State that this action is by order of St Lucie County Court of Florida and ask that AAA re-open the file to administer the court ordered arbitration.

Wait to see their response.

My guess is that they only saw the name and ignored the rest of your papers, not seeing the court order perhaps.  It has generally been AAA's policy to administer cases under court orders even if they would normally reject a particular JDB.  If they still fail to administer the case, then we will need to formulate some way to inform the court and perhaps ask permission to use JAMS.

[ShaunTheDon]

1 hour ago, fisthardcheese said:

Reply to the AAA email closing the case and CC the unifund attorney.  Send another copy of the court order.  State that this action is by order of St Lucie County Court of Florida and ask that AAA re-open the file to administer the court ordered arbitration.

Wait to see their response.

My guess is that they only saw the name and ignored the rest of your papers, not seeing the court order perhaps.  It has generally been AAA's policy to administer cases under court orders even if they would normally reject a particular JDB.  If they still fail to administer the case, then we will need to formulate some way to inform the court and perhaps ask permission to use JAMS.

Thank you!  I'll send the response now.  Hopefully they will get back to me in less than the 1.5 weeks it took them to do this.

[ShaunTheDon]

4 hours ago, fisthardcheese said:

Reply to the AAA email closing the case and CC the unifund attorney.  Send another copy of the court order.  State that this action is by order of St Lucie County Court of Florida and ask that AAA re-open the file to administer the court ordered arbitration.

Wait to see their response.

My guess is that they only saw the name and ignored the rest of your papers, not seeing the court order perhaps.  It has generally been AAA's policy to administer cases under court orders even if they would normally reject a particular JDB.  If they still fail to administer the case, then we will need to formulate some way to inform the court and perhaps ask permission to use JAMS.

@fisthardcheeseYou were exactly right! THANK YOU!! AAA sent this an hour or so ago

---------------------------------
Dear Parties:
Please disregard the correspondence dated January 24, 2020. This case was closed in error and has been
reopened. We apologize for any inconvenience.

The claimant has filed with us a demand for arbitration. The American Arbitration Association (“AAA”) has
determined that this arbitration arises out of a consumer agreement and, as such, the Consumer Arbitration Rules
(“Consumer Rules”) apply to this dispute. The Consumer Rules may be found on our website at www.adr.org.

We are in receipt of a court order compelling arbitration. Accordingly, we are proceeding on that basis.

Under the Consumer Rules, the consumer pays a filing fee of $200 and the business pays a filing fee of $300. We
have received the consumer’s $200 portion of the filing fee. So that the filing requirements are complete, the
business is requested to submit filing fees of $300 and the arbitrator’s compensation deposit of $2,500,
totaling $2,800.

Please make the check payable to the American Arbitration Association and include a reference to the case
number. Checks should be mailed to 1101 Laurel Oak Road, Suite 100, Voorhees, NJ 08043. In the event that
payment is being made by a third party, such as an insurance company, please request that payment be sent
directly to the business’ representative. The business’ representative should then forward payment to the AAA in
accordance with the foregoing instructions.

The requested payment should be received no later than February 10, 2020 and the AAA may decline to
administer this dispute if the business does not timely respond. It should be noted that the consumer’s satisfaction
of the filing requirements triggers the business’ obligation to promptly pay its share of the filing fees under the
rules and the business may owe all or a portion of the filing fees even if the matter is settled or withdrawn. The
AAA will refund any overpayments received from the consumer with the filing.

No answering statement or counterclaim is due at this time and the parties will be notified of the applicable
deadlines upon satisfaction of all the filing requirements.

Please note all communication for this matter will be in writing, if you have any questions please feel free to send
us an e-mail.
---------------------------------

Now to send them the offer of $0.  The amount they owe AAA is almost the exact amount they want from me

Thanks also to @BV80 and @Brotherskeeper for the help as well!  

[ShaunTheDon]

- realized I asked this in another thread

 

[fisthardcheese]

When emailing a settlement offer, I like to keep it simple.  I will tell them in the interest of further time and expense, I am willing to offer a mutual dismissal with prejudice of all actions relating to XX account.  I would also state that my offer expires on Feb 9th.  This gives them an alternative out before payment is due to AAA on the 10th.