Need Help, PRA followed me into Arb in AZ after dropping court case (attn: Harry Seaward)

[Billy Pilgrim]

Hello, I was sued last September by PRA in Arizona for slightly over $2K for a Barclay's Card account.  MTC Arbitration was granted by the Justice Court in December, and I went ahead and filed an arbitration case with AAA (per the CC agreement) this January 24th.  After a couple of requests by AAA to PRA in Febuary for the $300 filing fee and $2500 arbitrator's deposit, PRA paid up the $2800 and I received the initiation email from AAA on March 9.  Currently AAA is awaiting an "Initial List of People, Firms, Companies, and/or Groups Involved in the Arbitration" form from both parties due the 16th.  PRA has not paid the $1400 case management fee as of yet.

Here's the catch: after I filed the arbitration case on Jan 24th, PRA went ahead and filed a motion to dismiss the case WITH PREJUDICE in Court Feb 11th, and the motion has been granted and the court case dismissed.  My copy of the motion got temporarily lost in the mail (by me), and when I saw it the other day a light bulb went off in my head.  Can't I simply drop the arbitration case at this point and walk away from the matter with my hands clean?

I saw a post by Harry Seaward in another thread (2nd post down) stating that the court retains jurisdiction in AZ after a granted MTC (per ARS 12-1502 ) to confirm the arbitrator's award.  But does this apply when the plaintiff drops the case and the court dismisses it? My hunch is that it doesn't matter and the court matters are finished, though I could be wrong. Here is the thread referenced: https://www.creditinfocenter.com/community/topic/330238-arbitration-question-in-az-regarding-lawsuit-by-pra

Thanks in advance for your replies and all of the help received thus far on this great forum!

 

 

[Harry Seaward]

Did you allege claims against PRA, or only that you want their claims resolved via arbitration? 

[Billy Pilgrim]

Thanks for your response Harry!

No claims alleged against PRA, I just indicated that I wanted their claims resolved.

I put down "consumer credit dispute" on the arbitration demand form.

[Harry Seaward]

@fisthardcheese

[fisthardcheese]

Sounds like you shot yourself in the foot to me.  I would never try to close a court case with the arbitration ongoing from my granted MTC.  You just killed your own leverage.  Now you are stuck.  If you drop the arbitration, PRA will go back to the court and say you have violated the court order to arbitrate and you wont get a shot to do it again.

[Harry Seaward]

@Billy Pilgrim i see that you edited your original post after i replied to it. Didn't you originally say they had paid something like $2,800 in arb fees? 

[kittycat]

3 hours ago, fisthardcheese said:

Sounds like you shot yourself in the foot to me.  I would never try to close a court case with the arbitration ongoing from my granted MTC.  You just killed your own leverage.  Now you are stuck.  If you drop the arbitration, PRA will go back to the court and say you have violated the court order to arbitrate and you wont get a shot to do it again.

How did Billy shoot his own foot off if PRA filed the motion to dismiss with prejudice?

Billy, how did PRA word their motion to dismiss? Is there any reference to the arbitration order or case in any way?

[Billy Pilgrim]

6 hours ago, Harry Seaward said:

@Billy Pilgrim i see that you edited your original post after i replied to it. Didn't you originally say they had paid something like $2,800 in arb fees? 

Harry, I edited my post to remove the exact amount of the lawsuit (in the off-chance PRA maybe reading these boards) which I amended to show the approximate amount, which is slighlty over $2K. 

They've paid the $300 filing fee and the $2500 arbitrator deposit.  If my understanding is correct, aren't most of those payments refundable?  I have a hunch they may have paid up to see if they can scare/pressure me into some kind of settlement, thought I could be wrong.

[Harry Seaward]

14 minutes ago, Billy Pilgrim said:

They've paid the $300 filing fee and the $2500 arbitrator deposit.

Yeah, i see it now. Sorry. 

I don't know if the fees are refundable, although that would make sense because we've been seeing several JDBs pay the fees and then later dismiss their lawsuits. 

[Billy Pilgrim]

5 hours ago, kittycat said:

How did Billy shoot his own foot off if PRA filed the motion to dismiss with prejudice?

Billy, how did PRA word their motion to dismiss? Is there any reference to the arbitration order or case in any way?

Kittycat, on the motion to dismiss there's no reference to the court case or arbitration case.  There's only the standard notice about responding within 10 days, and below that they wrote "plaintiff, by and through undersigned counsel, pursuant to Rules 144(d) and 144(f) of the Justice Rules of Civil Procedure, moves this court for its order dismissing the above-captioned matter with prejudice."

The rules 144(d) and (f) are here, they're just instructions on how to dismiss a case: https://govt.westlaw.com/azrules/Document/N000BE0B00DE011E28A628CD7CECCD897?viewType=FullText&originationContext=documenttoc&transitionType=CategoryPageItem&contextData=(sc.Default)

 

[Billy Pilgrim]

26 minutes ago, Harry Seaward said:

Yeah, i see it now. Sorry. 

I don't know if the fees are refundable, although that would make sense because we've been seeing several JDBs pay the fees and then later dismiss their lawsuits. 

It appears the $300 filing fee paid by PRA is non-refundable (it used to be partially refundable, but they've changed it as of 9/1/18): https://www.adr.org/sites/default/files/Consumer_Fee_Schedule_0.pdf.

The $2500 deposit appears to be refundable: "Arbitrators are paid for the time they spend resolving disputes . The business makes deposits as outlined in the fee schedule in the Costs of Arbitration section of these Rules . Unused deposits are refunded at the end of the case ." https://www.adr.org/sites/default/files/Consumer_Rules_Web_0.pdf

[Billy Pilgrim]

9 hours ago, fisthardcheese said:

Sounds like you shot yourself in the foot to me.  I would never try to close a court case with the arbitration ongoing from my granted MTC.  You just killed your own leverage.  Now you are stuck.  If you drop the arbitration, PRA will go back to the court and say you have violated the court order to arbitrate and you wont get a shot to do it again.

PRA dismissed the court case themselves, with prejudice.

[fisthardcheese]

On 3/16/2020 at 4:53 PM, Billy Pilgrim said:

PRA dismissed the court case themselves, with prejudice.

Sorry, I misread and thought it was your motion to dismiss.

In this case, I would just start doing everything I could to get the arbitration case closed.  Did you file an claims against them in arbitration?  If so, you can just send an email to settle the arbitration case with a mutual dismissal and release of all claims.

[Billy Pilgrim]

Just wanted to give an update and make a correction.  When I started this thread I had misread the online court case history and erroneously thought the Judge had granted PRA's motion to dismiss with prejudice, but they had not.  As of today, 2 months later, they still haven't ruled on their motion.  The justice court here in AZ allows the judge 60 days to rule on a motion and they are allowed to go over that; the judge had taken 73 days to grant my motion to compel arbitration.

As of April 8th the arbitrator has been assigned, PRA has new internal lawyers on the case, and the Case Management fee of $1400 has not been paid.  Yesterday I made them an offer to settle the arbitration case.

[Billy Pilgrim]

On 3/24/2020 at 3:44 AM, fisthardcheese said:

Sorry, I misread and thought it was your motion to dismiss.

In this case, I would just start doing everything I could to get the arbitration case closed.  Did you file an claims against them in arbitration?  If so, you can just send an email to settle the arbitration case with a mutual dismissal and release of all claims.

No claims filed at this time.  I made them a settlement offer based on verbiage you had suggested in another thread ("In the interest of further time and expense, I am willing to offer a mutual dismissal with prejudice of all actions relating to AAA Case XXX").

Both sides are still technically under a court order to arbitrate (see above post - judge still hasn't granted the MTD with prejudice); so in case this is their motivation for following me into arbitration to this point, I didn't offer them any settlement amount.  We will see if they are playing hardball or not based on how they respond to the offer.  Obviously I hope they accept it.

[Billy Pilgrim]

Well, PRA rejected my mutual walkaway offer without a counteroffer so I’m in the process of gathering claims against them. 
 
I think I may have a couple of valid claims, a SOL claim and a 1681s-2(a)(1)(a) FCRA violation for listing themselves as the OC on my credit report.

I’m also considering other claims, such as unjust enrichment due to them seeking compensation above what their actual damages were (i.e. paying pennies on the dollar for the account), and another FCRA violation, 1681-2(a)(7) due to them never notifying me of their intention to report the debt to the credit reporting agencies.

My goal in this is to pressure them for a settlement (I’m willing to pay them a small portion of the debt) before they pay the $1400 case management fee (which is due the 28th).  However, I messed up by waiting until the arbitrator was selected before looking into claims, so now I have to ask permission.  Does anyone know if the arbitrator ever rejects the adding of claims?  I’ve read in this forum that the case administrator/arbitrator may ask for claims during the preliminary hearing, but I would like to get mine in before then.  Or would it be best to just wait until the preliminary hearing?

[Clydesmom]

3 hours ago, Billy Pilgrim said:

a SOL claim

Applies to lawsuits not arbitration.  The arbitrator can and probably will ignore it.

3 hours ago, Billy Pilgrim said:

1681s-2(a)(1)(a) FCRA violation for listing themselves as the OC on my credit report.

Once they purchased the debt they are the original creditor and can be listed that way on their own trade line.  Basic contract law.  PRA has been doing this WAY too long to fall in to that trap.

There is also no requirement they inform you before they report.  You are misinterpreting the statute.  You also need to read the terms of the card agreement.  It states in there that the account information can be reported to the bureau(s).  Under basic contract law PRA gets that right as well.

3 hours ago, Billy Pilgrim said:

unjust enrichment due to them seeking compensation above what their actual damages were (i.e. paying pennies on the dollar for the account)

ZERO basis for this and the arbitrator and Judges all know this.  Basic contract law:  PRA gets ALL rights and responsibilities that Barclays had and that includes the right to collect the entire balance you owed when they bought the account.

I think @Goody_Ouchlessgave this example on someone else's thread:  if you bought a house for $200,000 and you want to sell it later because home values are sky rocketing should you be required to sell it for what you paid for it at a loss or are you allowed to make a profit on your investment?  PRA may have paid pennies on the dollar but legally they can collect the entire balance and reap the profit when they do actually collect.  The courts and arbitrators are acutely aware that the JDB industry is a high risk game of never getting paid on a defaulted account.

3 hours ago, Billy Pilgrim said:

My goal in this is to pressure them for a settlement (I’m willing to pay them a small portion of the debt) before they pay the $1400 case management fee (which is due the 28th).  However, I messed up by waiting until the arbitrator was selected before looking into claims

I think you have lost your leverage.  You jumped too soon with the mutual walk away offer was the bigger mess up in my opinion.  While @fisthardcheeseadvocates listing claims even if they are bogus in the hopes it exerts pressure this may not work in your case.  Typically PRA has folded and not even gone this far.  Yours is a first for fist and this site.  A JDB paying the fees and hanging in there this far has not been seen before.  Listing claims without a legal basis MIGHT pressure them to settle.  It also might tick them off and make them dig in harder.  Only you can weigh the risks.

[BV80]

12 hours ago, Billy Pilgrim said:

I’m also considering other claims, such as unjust enrichment due to them seeking compensation above what their actual damages were (i.e. paying pennies on the dollar for the account), and another FCRA violation, 1681-2(a)(7) due to them never notifying me of their intention to report the debt to the credit reporting agencies.

As has been pointed out, a debt buyer who is able to prove it owns an account is legally allowed to claim the full amount that was due when it purchased the account.  

Think about it.  If debt buyers could only claim the purchase amount, they would not make a profit.  What law says a business cannot make a profit?   In addition, some consumers would intentionally default on debts in the hope that their debts would be purchased by debt buyers simply so that they would not owe the full balance.  

[Billy Pilgrim]

2 hours ago, Clydesmom said:

I think you have lost your leverage.  You jumped too soon with the mutual walk away offer was the bigger mess up in my opinion.  While @fisthardcheeseadvocates listing claims even if they are bogus in the hopes it exerts pressure this may not work in your case.  Typically PRA has folded and not even gone this far.  Yours is a first for fist and this site.  A JDB paying the fees and hanging in there this far has not been seen before.  Listing claims without a legal basis MIGHT pressure them to settle.  It also might tick them off and make them dig in harder.  Only you can weigh the risks.

My leverage has already been damaged due to the Covid-19 situation effectively reducing or eliminating my chances of getting an in-person hearing, the validity of my claims notwithstanding.  PRA is only obligated for $300 at this point so I was merely offering the mutual walk away as an option for them to limit their losses since if the case goes to hearing they are obligated for $2200 ($300 filing fee + $1400 case mgmt fee + $500 hearing fee), plus whatever the arbitrator's fee is.  The debt is only for $2170.  I'm not sure I'm losing leverage or "tipping my hand" with the offer as they haven't seen what claims I may have.

How would my leverage have been greater if PRA pays the $1400 case filing fee?  How exactly have I lost my leverage with the offer?  From my vantage point, it seems reasonable as opposed to an admission of weakness.

For all I know they may be reading these boards and looking to make examples out of debtors, lol.  There seems to be a recent trend of JDB's following into arb from what I've read on the forum.  At the very least, I imagine they aren't worried about to having to travel for any hearing, for the time being.

[Billy Pilgrim]

I forgot to mention in the above post, PRA is also asking for reimbursement for their court fees ($161) in their arbitration counterclaim.  Not sure if that's something the arbitrator would consider, but it perhaps gives some insight into their current mindset.  So they've gone from filing a motion to dismiss with prejudice 2 months ago to wanting court fees in arbitration.  If the judge had granted the dismissal in a timely manner, I'd be out of this mess.  C'est la vie.

[Billy Pilgrim]

I've noticed the PRA has called me several times without leaving voicemail.

In her abritration thread from 2012, Linda7 infers that this is a possible claim:

https://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/?do=findComment&comment=1180587

"Respondent Northland is in violation of the FDCPA by their three phone calls to Caprio's answering machine in violation of FDCPA 1692d(6) 'Except as provided in section 804, the placement of telephone calls without meaningful disclosure of the caller's identity.'"

Do you guys think making phone calls without leaving voice messages is a FDCPA potential claim as Linda7 indicates?

[Billy Pilgrim]

3 hours ago, Clydesmom said:

 

Once they purchased the debt they are the original creditor and can be listed that way on their own trade line.  Basic contract law.  PRA has been doing this WAY too long to fall in to that trap.

 

 

The problem with this line of thinking is that the $2170 debt is listed twice (once by Barclays, once by PRA) and someone reading my CR could get the impression two separate debts went unpaid, when it was just one debt that transferred ownership. 

[Clydesmom]

3 hours ago, Billy Pilgrim said:

The problem with this line of thinking is that the $2170 debt is listed twice (once by Barclays, once by PRA) and someone reading my CR could get the impression two separate debts went unpaid, when it was just one debt that transferred ownership. 

You aren't the only consumer to be angry that the same debt can be listed twice but it is legal.  The Barclays trade line will read 0 balance and list the status as "Sold to another creditor".  It is one debt but can appear multiple times. 

[BV80]

5 hours ago, Billy Pilgrim said:

Do you guys think making phone calls without leaving voice messages is a FDCPA potential claim as Linda7 indicates?

No.  They are not required to leave a message. If they do leave a message, they must identify themselves. 

[T]he Act does not guarantee a debt collector the right to leave answering machine messages. Edwards v. Niagara Credit Solutions, Inc., 584 F.3d 1350 1354 (11th Cir.2009).

If debt collectors don’t have the right to leave a message, then not leaving one is not a violation. 

[Clydesmom]

11 hours ago, Billy Pilgrim said:

I've noticed the PRA has called me several times without leaving voicemail.

How do you know it was PRA if they didn't speak to you or leave a voice mail?  You cannot use Wiki or Google entries as evidence the call came from PRA.  With the amount of scam phone calls going on these days spoofing of phone numbers is common place.  The burden of proof that it was even them who called is on you.

11 hours ago, Billy Pilgrim said:

Do you guys think making phone calls without leaving voice messages is a FDCPA potential claim as Linda7 indicates?

No.  In addition to what @BV80 said you have another problem.  There is still a court case open against you and you are representing yourself pro-se in that and this arbitration.  If you had a lawyer PRA would be required to speak to your attorney.  Since you do not they can and will call you in attempts to discuss the case(s) in the same way they would with representing counsel.  Any actions they take in regards to communication about the suit or arb is not a violation.