Billy Pilgrim

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

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20 hours ago, Clydesmom said:

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.

While Clydesmom loves to slander by continuously claiming I advocate for any bogus filings, she is wrong as usual on so many things.  First, now that an arbitrator is appointed, you must ask permission to file any amended claims.  Generally, they will allow this, especially since no initial conference call has even been made. Often I have personally, as well as suggested to others, that they ask ON the first conference call to file amended claims and it has almost always been allowed. They may still violate the FDCPA between now and the conclusion of the conference call. It would not be out of the ordinary. The conference call is when you can set the tone to let them know it won't be a cheap, easy cakewalk for them. Ask for full discovery (statements, all phone records of PRA calling you, copies of all letters PRA sent you, etc) and for the name of their witness from the OC with knowledge of your account.

The other thing Clydesmom is so brazenly incorrect about is that "we have never seen a JDB go this far into arbitration".  It is so wrong I had a little laugh.  It is common for JDBs to pay the initial filing fee and get to the initial phone conference in AAA.  PRA has been doing this quite often over the last year, in fact.  Usually the attorneys just don't understand that the bills continue to come every couple months in arbitration. They are under the assumption that the initial fee is all they pay, but eventually they fold when more bills come along.

You still have a lot of pressure and leverage at this point.  You just can't get over aggressive and give them a reason to prove that you are filing frivolous claims.

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18 hours ago, Billy Pilgrim said:

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.

Ask for a 90 day extension due to this issue.  Ask for everything under the sun.  Make them spend the time, and more importantly, the arbitrator's time to respond to all of it.

 

17 hours ago, Billy Pilgrim said:

PRA is also asking for reimbursement for their court fees ($161) in their arbitration counterclaim. 

Have you replied with your opposition to their counterclaim?  This almost looks like a potential FDCPA violation that I would like to look into in my state's case laws.  I know in my state, I have successfully claimed that asking for court costs as part of a debt claim for which no court has awarded that cost to was an FDCPA violation.  It will depend on how they asked for the fees.

 

17 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. But it can be TCPA violations if they came to your cell phone without express permission.

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7 hours ago, fisthardcheese said:

Ask for a 90 day extension due to this issue.  Ask for everything under the sun.  Make them spend the time, and more importantly, the arbitrator's time to respond to all of it.

 

Have you replied with your opposition to their counterclaim?  This almost looks like a potential FDCPA violation that I would like to look into in my state's case laws.  I know in my state, I have successfully claimed that asking for court costs as part of a debt claim for which no court has awarded that cost to was an FDCPA violation.  It will depend on how they asked for the fees.

 

No. But it can be TCPA violations if they came to your cell phone without express permission.

Thanks for the replies Fist!  I have not responded to their claim, and it's beyond the 14 day window to do so at this point.

Looking over their claims again, I noticed that not only are they asking for the court fees, they are also asking for all of the arbitration fees as well, in defiance of both AAA rules and the cardmember agreement.

This is what they said in the summary of their arb claim:

Straight from the CC agreement:

"We will pay, or reimburse you for, all fees or costs to the extent required by law or the rules of the arbitration Administrator. Whether or not required by law or such rules, if you prevail at arbitration on any Claim against us, we will reimburse you for any fees paid to the Administrator in connection with the arbitration proceedings. Under no circumstances will we seek from you payment or reimbursement of any fees that we incur in connection with arbitration"

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5 minutes ago, Billy Pilgrim said:

Thanks for the replies Fist!

Looking over their claims again, I noticed that not only are they asking for the court fees, they are also asking for all of the arbitration fees as well, in defiance of both AAA rules and the cardmember agreement.

This is what they said in the summary of their arb claim:

Straight from the CC agreement:

"We will pay, or reimburse you for, all fees or costs to the extent required by law or the rules of the arbitration Administrator. Whether or not required by law or such rules, if you prevail at arbitration on any Claim against us, we will reimburse you for any fees paid to the Administrator in connection with the arbitration proceedings. Under no circumstances will we seek from you payment or reimbursement of any fees that we incur in connection with arbitration"

@fisthardcheese

I’m thinking FDCPA violation. 

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I think what they will argue is that they won't object to it being part of an award. Walking a fine line by saying that they aren't seeking it from you, but rather from the arbiter: "Under no circumstances will we seek from you..."

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11 hours ago, Goody_Ouchless said:

I think what they will argue is that they won't object to it being part of an award. Walking a fine line by saying that they aren't seeking it from you, but rather from the arbiter: "Under no circumstances will we seek from you..."

Agreed, it's a fine line.  A line so fine it may take me an extra day of hearings and objections to sort through 😁

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3 hours ago, fisthardcheese said:

Agreed, it's a fine line.  A line so fine it may take me an extra day of hearings and objections to sort through 😁

and @Goody_Ouchless

I disagree that it’s a fine line.  “Seek” means attempt or try.  Requesting fees from the arbiter is an attempt to make the OP pay or reimburse.  

In my opinion, the only way the attorney would try that argument is if he is incredibly stupid or wants to appear to be incredibly stupid.  It’s possible the attorney didn’t read that section of the agreement which would make him incredibly stupid.  

But, if the attorney did read that section, he knows what it means, so unless he wants to appear to be an idiot or risk the arbiter or judge ask him if he’s an idiot, he won’t try that argument.

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3 hours ago, BV80 said:

he is incredibly stupid or wants to appear to be incredibly stupid

...or he knows they have no intention of following further and is trying to scare the OP be making arb look "really expensive." Basically throwing everything at the wall because he knows none of this is getting arbitrated, regardless.

 

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Thanks for all of the responses everybody!

I found a FDCPA subsection that may apply to PRA's asking of court/arb fees: https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text#807

§808(1) "The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law"

This is also mirrored in
15 U.S. Code § 1692f(1) https://www.law.cornell.edu/uscode/text/15/1692f

"The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law"


What do you guys think?



 

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4 hours ago, Goody_Ouchless said:

...or he knows they have no intention of following further and is trying to scare the OP be making arb look "really expensive." Basically throwing everything at the wall because he knows none of this is getting arbitrated, regardless.

 

Not sure if this matters, but for what it's worth the "he" is a "she".

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1692 is the FDCPA. You quoted two things from the same law. 

I would think the part that's more on point is the section that talks about taking action that can't legally be taken. Asking for fees in a lawsuit technically isn't the same as "collecting" them. 

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32 minutes ago, Harry Seaward said:

1692 is the FDCPA. You quoted two things from the same law. 

I would think the part that's more on point is the section that talks about taking action that can't legally be taken. Asking for fees in a lawsuit technically isn't the same as "collecting" them. 

Would 807(5) be what you're referring to?  (5) "The threat to take any action that cannot legally be taken or that is not intended to be taken"

The only difference is, they're not threatening to do something that isn't legal (per the CC agreement), they've actually already done it.

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2 hours ago, Harry Seaward said:

1692 is the FDCPA. You quoted two things from the same law. 

I would think the part that's more on point is the section that talks about taking action that can't legally be taken. Asking for fees in a lawsuit technically isn't the same as "collecting" them. 

It’s an attempt to collect the fees.  

The district court did not err in granting McCollough's motion for summary judgment on his claim that JRL violated the FDCPA by requesting attorney's fees in its underlying state collection complaint. McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637
F.3d 939, 950 (9th Cir. 2011.

 

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Hello everyone, just wanted to provide an update to my case

The preliminary phone hearing is scheduled for this Thursday the 21st and I am in the process of prepping for that; however, there are some other developments that may have a bearing on the case.

Back on April 22, the court judge granted PRA's motion to dismiss with prejudice (after 83 days, lol).  Now, PRA is trying to get the court case reinstated having filed (on May 12) a "Motion to Reinstate Dismissed Case" with an expedited ruling requested.  In this new motion, PRA requests that the dismissal be vacated "so that parties may proceed with arbitration".

This latest move by PRA has got me wondering....does an award for a court-ordered arbitration go back to the original court for confirmation?  And if it does, can the court deny the award on the basis of a voluntary dismissal with prejudice? Or does the case dismissal by the court (if upheld) invalidate the arbitration results to begin with? The wording in PRA's motion to reinstate would imply that a court dismissal would indeed invalidate the arbitration results, but I have no idea if this is true or not. 

There's also a secondary issue here in regards to the case reinstatement, due to the Statute of Limitations.  When PRA originally filed the case back in August, they had beat the SOL by a couple of days.  Is there any chance a reinstatement would constitute a new case for SOL purposes?  Or would the time lapse between the dismissal and granting of reinstatement untoll the SOL at all?

Anyways, I plan on opposing the motion to reinstate.  PRA claims it was due to "mistake, inadvertence, surprise, or excusable neglect" when they filed their Motion to Dismiss a good 3-4 weeks paying the AAA filing fee and arbitrator deposit.  So in my opposing motion, I'm going to claim they didn't make a mistake but rather changed their mind, and I am going to provide a "request for payment" letter from AAA to PRA dated Febuary 21st, a good three weeks after PRA's motion to dismiss.

Thanks in advance for your replies!

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So basically my question is, would the concept of Res Judica invalidate the arbitration proceedings if the case has been dismissed with prejudice by the court?

My preliminary phone hearing is tomorrow so this is something I would like to bring up to the arbitrator.  If anyone knowledgeable could answer that would be great!

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3 hours ago, Billy Pilgrim said:

So basically my question is, would the concept of Res Judica invalidate the arbitration proceedings if the case has been dismissed with prejudice by the court?

Something like that. Since there is a court order dismissing the matter with prejudice that will not have been vacated at the time of your phone hearing. it would seem that the arbitrator could not move the arbitration case ahead or schedule anything further until there is a decision on the motion to vacate. Especially since the motion to dismiss was brought by the plaintiff.

I suppose that you could argue to the arbitrator that the arbitration case should be dismissed because of the court order, but then maybe if the court vacates the dismissal order you may get stuck in court for further proceedings.

Do they elaborate on "mistake, inadvertence, surprise, or excusable neglect" in the motion to vacate?  How this goes is pretty much up to the JP.

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4 minutes ago, kittycat said:

Something like that. Since there is a court order dismissing the matter with prejudice that will not have been vacated at the time of your phone hearing. it would seem that the arbitrator could not move the arbitration case ahead or schedule anything further until there is a decision on the motion to vacate. Especially since the motion to dismiss was brought by the plaintiff.

I suppose that you could argue to the arbitrator that the arbitration case should be dismissed because of the court order, but then maybe if the court vacates the dismissal order you may get stuck in court for further proceedings.

Do they elaborate on "mistake, inadvertence, surprise, or excusable neglect" in the motion to vacate?  How this goes is pretty much up to the JP.

They did not elaborate and I filed an opposition to their motion to vacate this afternoon.  I argued that they had a deliberate change of strategy rather than having made a mistake, and included 3 exhibits.  I was able to demonstrate that they made multiple attempts to dismiss the case (they mailed me a stipulated offer to dismiss without prejudice a few days before filing their motion to dismiss with prejudice), and this was weeks before they made their initial payment to AAA.  So I feel confident their motion to vacate will be denied, though I could be wrong of course.

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On 4/16/2020 at 1:32 PM, fisthardcheese said:

Ask for a 90 day extension due to this issue.  Ask for everything under the sun.  Make them spend the time, and more importantly, the arbitrator's time to respond to all of it.

 

Have you replied with your opposition to their counterclaim?  This almost looks like a potential FDCPA violation that I would like to look into in my state's case laws.  I know in my state, I have successfully claimed that asking for court costs as part of a debt claim for which no court has awarded that cost to was an FDCPA violation.  It will depend on how they asked for the fees.

 

No. But it can be TCPA violations if they came to your cell phone without express permission.

Though I never expressly asked them to stop calling my cell, I have no recollection of ever having given PRA or the OC my cell phone number to begin with.  I do have evidence of them calling me though.

Would it be worthwhile to make a TCPA claim for the purposes of taking up arbitrator time and pressuring PRA into a favorable settlement?

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7 minutes ago, Billy Pilgrim said:

I was able to demonstrate that they made multiple attempts to dismiss the case (they mailed me a stipulated offer to dismiss without prejudice a few days before filing their motion to dismiss with prejudice), and this was weeks before they made their initial payment to AAA.

This is pretty strong evidence against any claim based on any of the four (mistake, inadvertence, surprise, or excusable neglect).

I'd like to think that your chances are good, but Arizona (JP).

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20 minutes ago, kittycat said:

This is pretty strong evidence against any claim based on any of the four (mistake, inadvertence, surprise, or excusable neglect).

I'd like to think that your chances are good, but Arizona (JP).

Well for what it's worth the judge on the court case seems pretty amenable.  He granted my motion to compel arbitration without any hassle and also granted PRA's motion to dismiss without any hassle (i.e., he could have stayed the case pending arbitration but did not).  I've heard of Arizona's bias against debtors, but the only thing my judge has done unfavorably is drag his feet in making any kind of ruling.  That being said, PRA's motion to vacate had an expedited request with it.

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On 5/18/2020 at 3:34 PM, Billy Pilgrim said:

This latest move by PRA has got me wondering....does an award for a court-ordered arbitration go back to the original court for confirmation?

Yes.

On 5/18/2020 at 3:34 PM, Billy Pilgrim said:

And if it does, can the court deny the award on the basis of a voluntary dismissal with prejudice?

No.  The award going back to court is merely the court recognizing the award and converting it to a judgment.  The arbitrator has already decided the merits and thus the award.  The court simply rubber stamps the award into a judgment so that the creditor can use wage garnishment and bank levy to collect.  If they had never filed in court and just went to arbitration the procedure would be the same to confirm the award.  They would not have to file suit.

On 5/18/2020 at 3:34 PM, Billy Pilgrim said:

Or does the case dismissal by the court (if upheld) invalidate the arbitration results to begin with?

No.

On 5/18/2020 at 3:34 PM, Billy Pilgrim said:

Is there any chance a reinstatement would constitute a new case for SOL purposes?  Or would the time lapse between the dismissal and granting of reinstatement untoll the SOL at all?

Nope.  If the case is re-instated it is like it never stopped and therefore the SOL is still tolled.  

5 hours ago, Billy Pilgrim said:

So basically my question is, would the concept of Res Judica invalidate the arbitration proceedings if the case has been dismissed with prejudice by the court?

No.  Res judicata applies to court proceedings not arbitration and means the matter was already adjudicated.  Second:  PRA voluntarily dismissed and the court rubber stamped it.  The court did not dismiss on evidence.  Therefore the case was never tried/adjudicated.  Third:  you motioned for arbitration. Your hope was that PRA would back down.  They didn't.  It doesn't mean you can use their dismissal of the court case to say you are not required to arbitrate after you asked the court to compel them to.

On 5/18/2020 at 3:34 PM, Billy Pilgrim said:

In this new motion, PRA requests that the dismissal be vacated "so that parties may proceed with arbitration".

Something about this smells.  Here is my guess.  They are hoping that statement of "reinstate the court case so we can arbitrate" flies under the radar.  They are just realizing how expensive this is going to be and my guess is they figured out too late they dismissed WITH prejudice and need that undone.  I am guessing their goal is to get the case re-instated as though it was never dismissed and then back out of arbitration in hopes of proceeding in court where it is faster and cheaper.  Again, that is only a guess.  

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On 5/18/2020 at 3:34 PM, Billy Pilgrim said:

And if it does, can the court deny the award on the basis of a voluntary dismissal with prejudice?

yes, but there is nothing stopping them from opening a new case to have their arbitration award confirmed.  Res judacata would only preclude a rehearing of a case on the merits.   Affirmation of an arbitration award is not about the merits of a case.  It would be like saying I got a judgment against you, but you argued that res judicata precluded me from going back to court to get a garnishment order to collect on my judgment.  A judgment creditor has legal remedies available to it in order to collect judgments, and having an arbitration award affirmed by a court is one of them.   (There was a response here that sort of hinted at this, but I don't think it was very clear.)

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1 hour ago, Clydesmom said:

It doesn't mean you can use their dismissal of the court case to say you are not required to arbitrate after you asked the court to compel them to.

Why not? Specifically.

Plaintiff moved to dismiss with prejudice. My understanding is that, unless otherwise stated by the court, this terminates prior orders of the court finally, including the order compelling Plaintiff to arbitrate.

Assuming that the court denies the motion to vacate the dismissal with prejudice, what's your reasoning that Billy must continue with the arbitration?

What remedy would Plaintiff have if the court denies the motion to vacate and Billy does not continue with the arbitration?  There isn't really an equivalent to a default judgment in an arbitration case, especially of the consumer variety.

PRA wouldn't be asking for an expedited motion to vacate the dismissal with prejudice, and to proceed in arbitration, if they didn't think that if the court's order of dismissal with prejudice stands, then both avenues are sunk.

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1 hour ago, Clydesmom said:

Something about this smells.  Here is my guess.  They are hoping that statement of "reinstate the court case so we can arbitrate" flies under the radar.  They are just realizing how expensive this is going to be and my guess is they figured out too late they dismissed WITH prejudice and need that undone.  I am guessing their goal is to get the case re-instated as though it was never dismissed and then back out of arbitration in hopes of proceeding in court where it is faster and cheaper.  Again, that is only a guess.  

Maybe PRA is in bad standing with AAA again?

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22 minutes ago, Billy Pilgrim said:

Maybe PRA is in bad standing with AAA again?

The "bad standing with AAA" circumstance is overridden in a particular case by a court order compelling PRA to arbitration, which happened in your case, and as far as AAA currently knows, is still in force.

When AAA does send a notice about bad standing, it is soon after the filing.  Not after there has been a court order and PRA has already paid some money.

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