Velocity Suit - Help with MTC

[shadow99 0]

First, I'd like to thank everyone who's contributed so much useful information to this section of the site. It's been extremely helpful.

I have a pending court date on 3/19/2020 with Velocity Investments for a $2835 balance on a Prosper debt in Virginia.

I have not yet been served, but legal service can be as little as 1 hour before the court date here, so I don't want to get caught unprepared then told I had participated in litigation by asking for a continuance or accepting a trial date.

I've studied the main arbitration thread at the top of this section and have some questions about one part of the MTC sample.

Is item 4 paraphrased in general terms? Or is it supposed to be actual quotes from the contract? Or, is this where I make my arguments and the judge refers to that section of the contract to see if he agrees?

Sub-items a, d and e appear to be covered. I'm not sure if my contract has an issue with sub-items b & c. I'd really appreciate an opinion.

Sample: (b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

Contract: 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 (a) or under the federal arbitration act.)

My thought: Ok, except it doesn't say waive the right to trial by judge?

Sample: (c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

My question - this is not in my arbitration section. The parts that stand out to me are "even if the claim is part of a lawsuit" and "you or we may make a motion to compel private arbitration". Is this implied because the contract states that either party can elect binding arbitration?

 

[shadow99 0]

I'm attaching a copy of a current draft of my MTC with an order on the last page.

Does it look OK? Should I have included the Virginia law or left it off?

I will add a statement about serving the plaintiff's attorney if they won't accept the motion on the first date.

My understanding is that the first date is just to enter default judgments and set trial dates for disputed cases.

 

 

MTC.pdf

[shadow99 0]

Does anyone have any comments on the MTC I posted?

As an update, due to Covid-19, my case was extended until early August.

I was never served in person, but I did get the copy of the summons in the mail from the attorney plus I received the continuation notices from the court clerk. 

I have proof where I mailed a dispute request to the initial group that sent me a notice when Velocity first notified me of the debt.

They did not respond. I should have sent the same dispute request to the attorney as well at their first contact, but I was having major health problems and let things slip. I still think that phone calls then attorney contact may count as a violation? 

In addition to any comments on the MTC, should I

• Bring up the fact that I was not served in person even though my summons was stamped with "private service"?  I obviously know to be there, and they would just sue me again. I don't really have any desire for someone to hand me a piece of paper at my door that I already know about. 
• Send anything to the attorney now? Our courts are allowing requests for hearings by phone or video-conference, but the request says that all parties must agree and it's the responsibility of the requestor to get everyone to agree. He probably has to be in court anyway, so what does he care? I guess if I die from Corona, he won't collect much. 
• What about the MTC?  I know I have to serve him sometime, but the initial return date is for like a preliminary hearing. All you get to do is say whether you contest the case and then they set up an actual hearing date that they call a "contested hearing". I plan to have the motion ready along with an AAA or JAMS form filled out just in case, but don't want to be accused of waiving my right to arbitration because I went too far into the litigation process. 

I've also been catching up on posts here. This debt is for approximately $2500. Is it still a good bet they won't follow me all the way into arbitration? It sounds like more creditors are paying all the fees now and trying to win then get the fees back. 

[Robby8900 43]

On 3/7/2020 at 4:04 PM, shadow99 said:

 

 

First, I'd like to thank everyone who's contributed so much useful information to this section of the site. It's been extremely helpful.

I have a pending court date on 3/19/2020 with Velocity Investments for a $2835 balance on a Prosper debt in Virginia.

I have not yet been served, but legal service can be as little as 1 hour before the court date here, so I don't want to get caught unprepared then told I had participated in litigation by asking for a continuance or accepting a trial date.

I've studied the main arbitration thread at the top of this section and have some questions about one part of the MTC sample.

Is item 4 paraphrased in general terms? Or is it supposed to be actual quotes from the contract? Or, is this where I make my arguments and the judge refers to that section of the contract to see if he agrees?

Sub-items a, d and e appear to be covered. I'm not sure if my contract has an issue with sub-items b & c. I'd really appreciate an opinion.

Sample: (b) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

Contract: 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 (a) or under the federal arbitration act.)

My thought: Ok, except it doesn't say waive the right to trial by judge?

Sample: (c) YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT

My question - this is not in my arbitration section. The parts that stand out to me are "even if the claim is part of a lawsuit" and "you or we may make a motion to compel private arbitration". Is this implied because the contract states that either party can elect binding arbitration?

 

 IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

[BackFromTheDebt 243]

I don't know anything about the Virginia courts.  Getting in an MTC at the earliest possible time is an excellent strategy.  You need to check on any Virginia threads.  You may have to look around a bit.  

It does not appear that there is a small claims exemption.  

If a debt collector continued to collect after the DV letter, without validating, that is an FDCPA violation.  That can possibly be a counter claim.  Depends.  

The main point is to get this into arbitration, which will be far more expensive for them then the debt is worth.  

 

[shadow99 0]

My hearing is coming up.

I filed the MTC and sent copies to the attorney's office. They called me and left a message for me to return their call.

Any ideas what they want to discuss? To tell me I'm an idiot? to offer to settle? 

[BackFromTheDebt 243]

28 minutes ago, shadow99 said:

My hearing is coming up.

I filed the MTC and sent copies to the attorney's office. They called me and left a message for me to return their call.

Any ideas what they want to discuss? To tell me I'm an idiot? to offer to settle? 

The only way to find out is to call.  
 

Several possibilities:

1.  They want to try to convince you to drop your MTC.  This may involve bullying tactics.  Or it may not.  If they go this route, tell them you want all further communications to be either mail or email.  
 

2. They want to settle. If this is the case, negotiate all you want as long as you like the direction of the negotiations. Stick with your plans.  What are you willing to pay to avoid the hassle of arbitration?  You always have your MTC to fall back on.  
 

3.  They are willing to drop the case.  Get all agreements in writing before the hearing.  

[shadow99 0]

Thanks!  I'll update the thread accordingly.

[shadow99 0]

I haven't called back yet, but was looking through the docket for my court date next week.

A lot of the cases for this attorney are already showing continued to a later date.

Is that normal? Or could that indicate they won't be there on that day? and I could possibly get it dismissed for no appearance?

I know. I'll never know if I don't call. I hate calling people.

[BackFromTheDebt 243]

You know the answer to your question. 
 

Bad things could happen if you don’t call.  

[shadow99 0]

It was a waste of time. They informed me of the OC, the DC, the total amount due - all things I already knew.

Then asked me how I would like to take care of the balance.

I informed them that there was a court date next week. They again asked me how I'd like to take care of the balance.

I told them I planned to go to court and had a MTC. They asked how I'd like to proceed. I repeated myself, and they said they'd note the account.

I should have known better.

On another note, what a miserable job. If I was either a paralegal or an attorney and the best I could do was debt collection, I think I'd look into a new career. Maybe it's lucrative, but it has to be a drag. No offense meant to anyone on the board if that's your thing.

[BackFromTheDebt 243]

1 hour ago, shadow99 said:

It was a waste of time. They informed me of the OC, the DC, the total amount due - all things I already knew.

Then asked me how I would like to take care of the balance.

I informed them that there was a court date next week. They again asked me how I'd like to take care of the balance.

I told them I planned to go to court and had a MTC. They asked how I'd like to proceed. I repeated myself, and they said they'd note the account.

I should have known better.

On another note, what a miserable job. If I was either a paralegal or an attorney and the best I could do was debt collection, I think I'd look into a new career. Maybe it's lucrative, but it has to be a drag. No offense meant to anyone on the board if that's your thing.

Debt collection attorneys aren’t always the top of their law school class.  That is why they are often beatable.  

[shadow99 0]

1 hour ago, BackFromTheDebt said:

Debt collection attorneys aren’t always the top of their law school class.  That is why they are often beatable.  

That makes sense.

Most of the attorneys I've met have been very sharp. so that's how I think of them.

[shadow99 0]

What's the current opinion on AAA vs. JAMS? 

From reading the board, JAMS is more expensive, which is good, but there is some debate about whether JAMS will could make me pay the other party's fees if this goes all the way through arbitration and I lose. I did read the thread where one person had that happen and it was reversed.

I'm weighing the risk against AAA's more explicit rules so I can go to the hearing with a completed form.

 

[BackFromTheDebt 243]

57 minutes ago, shadow99 said:

What's the current opinion on AAA vs. JAMS? 

From reading the board, JAMS is more expensive, which is good, but there is some debate about whether JAMS will could make me pay the other party's fees if this goes all the way through arbitration and I lose. I did read the thread where one person had that happen and it was reversed.

I'm weighing the risk against AAA's more explicit rules so I can go to the hearing with a completed form.

 

You will almost certainly NOT have to pay their fees in JAMS.

There was one case in which a JAMS arbitrator incorrectly awarded fees to the creditor. The debtor appealed the ruling, which racked up the bills even more.  The JAMS appeal ruled in favor of the creditor for the debt, but ruled that the fees could not be awarded. 

Knowing that, I would prefer JAMS.  

[shadow99 0]

10 hours ago, BackFromTheDebt said:

You will almost certainly NOT have to pay their fees in JAMS.

There was one case in which a JAMS arbitrator incorrectly awarded fees to the creditor. The debtor appealed the ruling, which racked up the bills even more.  The JAMS appeal ruled in favor of the creditor for the debt, but ruled that the fees could not be awarded. 

Knowing that, I would prefer JAMS.

Thanks!

[shadow99 0]

I'm looking at the JAMS form.

The following is near the bottom. My arbitration clause, like most I would thing, has an option to reject arbitration by sending a letter within 30 days. I did not do that, but does that give me a problem with #3. Technically, I could have rejected, which means I wasn't required?

“Consumer arbitration” means an arbitration conducted under a pre-dispute arbitration provision contained in a contract that meets the criteria listed in paragraphs (1) through (3) below. “Consumer arbitration” excludes arbitration proceedings conducted under or arising out of public or private sector labor-relations laws, regulations, charter provisions, ordinances, statutes, or agreements. 1. The contract is with a consumer party, as defined in these standards; 2. The contract was drafted by or on behalf of the non-consumer party; and 3. The consumer party was required to accept the arbitration provision in the contract.

[LaneBlane 95]

1 hour ago, shadow99 said:

The following is near the bottom. My arbitration clause, like most I would thing, has an option to reject arbitration by sending a letter within 30 days. I did not do that, but does that give me a problem with #3. Technically, I could have rejected, which means I wasn't required?

3. The consumer party was required to accept the arbitration provision in the contract.

There's a difference between arbitration and the arbitration provision (agreement).  Your ability to opt out of arbitration within 30-days is part of the arbitration provision.

[shadow99 0]

6 minutes ago, LaneBlane said:

3. The consumer party was required to accept the arbitration provision in the contract.

There's a difference between arbitration and the arbitration provision (agreement).  Your ability to opt out of arbitration within 30-days is part of the arbitration provision.

Thank you - it seems so obvious once you point it out.

 

[LaneBlane 95]

1 hour ago, shadow99 said:

Thank you - it seems so obvious once you point it out.

 

You're very welcome.  Kudos for reading JAMS' form so carefully and asking such a good question for clarification.

[shadow99 0]

The Judge granted my MTC with a continuation date set several months out.

The attorney said he didn't object but asked for the continuation, and that was about it.

It was a fast, smooth, pain-free process.

Now to send in the JAMS application. Reading over the contract again, it says they will pay all fees up to an amount well above my consumer fee.

I believe someone here said they write a cover letter to JAMS explaining that and asking them to bill the other party for that as well.

Good idea? Worst they could do is tell me to send them a check, right?

[shadow99 0]

Update and another question.

JAMS issued the Notice of Intent to Initiate Arbitration with instructions for the respondent to pay $1500 by Nov 25.

They mentioned that I would be responsible for $250, but did not provide instructions on whether I should pay now, wait for the respondent to pay, or how to pay. They aren't processing mail at the address I sent my initial forms to, so I'm not sure where to send it - will call and ask. My contract also states that they will pay my fees up to $1000, which I pointed out in a cover letter - that seems to have been ignored.

This was also noted on the Notice of Intent:

Under appropriate circumstances, the Arbitrator may award JAMS fees and expenses against any party. JAMS agreement to render services is not only with the parties, but extends to the attorneys or other representatives of the parties in arbitration.

Should I be concerned the fees/expenses will come back to bite me?

 

[alwayswinning36 13]

Contact JAMS again and ask them if they missed that part of the contract, about paying up to $1,000 of your costs? In either case, I think the most you would have to pay, if anything is the $250. So that is the conclusion I have drawn reading what I have about JAMS, anyway.

[shadow99 0]

1 minute ago, alwayswinning36 said:

Contact JAMS again and ask them if they missed that part of the contract, about paying up to $1,000 of your costs? In either case, I think the most you would have to pay, if anything is the $250. So that is the conclusion I have drawn reading what I have about JAMS, anyway.

Thank you. I did reply to their email, but haven't received a response. I'll give them another day or two then call to ask.

I can pay the $250 - but it dawned on me that I don't know how to pay it. Normally, I would mail a check to their address, but my paperwork sat there for nearly a month. I finally checked the card and saw COVID was the signature, so that must mean no one is there. I don't want to mail a check there.

[alwayswinning36 13]

1 minute ago, shadow99 said:

Thank you. I did reply to their email, but haven't received a response. I'll give them another day or two then call to ask.

I can pay the $250 - but it dawned on me that I don't know how to pay it. Normally, I would mail a check to their address, but my paperwork sat there for nearly a month. I finally checked the card and saw COVID was the signature, so that must mean no one is there. I don't want to mail a check there.

I don't blame you there. Hopefully they will get back to you soon and tell you how to pay the fee, if you do have to pay it. I wouldn't know myself personally.