Billy Pilgrim

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

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13 hours ago, kittycat said:

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.

What is this understanding based on?

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Just got done with the preliminary telephone hearing with PRA and the arbitrator.  It went well for the most part, but not as well as I would have liked.

The arbitrator agreed to my request to avoid the "documents only" track, and we have an all-day Zoom conference scheduled for August. The arbitrator also stated they are willing to consider Statute of Limitation issues, which also works in my favor.

However, the arbitrator has also agreed to humor PRA's request for the recovery of court costs and has scheduled a "Post-Hearing Submission Regarding Attorneys' Fees and Costs".  Upon close reading of the AAA consumer fee schedule, I found the following section which states "Arbitrator compensation, expenses. and administrative fees  are not subject to reallocation by the arbitrator(s) except as may be required by applicable law or upon the arbitrator’s determination that a claim or counterclaim was filed for purposes of harassment or is patently frivolous."

So apparently AAA's rules are *NOT* iron-clad when it comes to reallocating fees back to the consumer.  In cases of obviously frivolous claims, they can indeed be reallocated.

So I'm going to avoid any claim which can be interpreted as frivolous.  Which means I'm just going to claim the FDCPA violation (asking for fees when expressly prohibited by the credit card agreement) and the SOL claim.  Hopefully these issues combined with the Dismissal With Prejudice issue will give me leverage for a favorable settlement.

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On another note, the arbitrator stated that any court related issues are not germane to the arbitration.  However, I feel the court issues are ammunition in my favor.  If the Dismissal With Prejudice gets upheld, they are potentially going to incur hassle chasing after any award, which is more leverage for a settlement.

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Don't get too hung up on the costs issue.  The arbitrator allowed it as a POST-hearing issue.  This means they still must foot a bill for a full day's hearing at the very least.   Also this is still early.  Most settlements occur at this time, after the initial phone conference.  The attorney now knows that you aren't a push over and you at least have the ability to get some of your issues granted by the arbitrator.  It is a perfect time to offer a mutual walk away settlement. 

If all else fails, in your unique case here, you still have a chance to run up their costs AFTER the hearing because they thought they would scare you with the costs argument.  Even after the hearing is over, there will be another filing that you can object to and make your case on why it is not proper and against AAA rules to relocate expenses. That exchange alone will costs more arbitrator time which they must pay for up front before the arbitrator decides on if you should have to re-pay it.  The chances are pretty low (but not 0% obviously), and that is still leverage you can use for a settlement leading up to or even after a hearing.

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15 hours ago, Billy Pilgrim said:

On another note, the arbitrator stated that any court related issues are not germane to the arbitration.

The motion to dismiss with prejudice seems like textbook retraxit to me. Especially since PRA filed it with the court in mid February, before paying the case management fee and before AAA sent the initiation email on March 9.

The Retraxit Trap

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16 hours ago, Billy Pilgrim said:

In cases of obviously frivolous claims, they can indeed be reallocated.

Yes, of course.  This has also been addressed here many times.

1 hour ago, kittycat said:

The motion to dismiss with prejudice seems like textbook retraxit to me.

It's certainly worth arguing, but invoking a contractual arbitration clause is not the same as a "suit".  This is what I think the arbitrator was getting at when he said court proceedings aren't relevant to arbitration proceedings.

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On 5/22/2020 at 5:30 AM, fisthardcheese said:
 

Don't get too hung up on the costs issue.  The arbitrator allowed it as a POST-hearing issue.  This means they still must foot a bill for a full day's hearing at the very least.   Also this is still early.  Most settlements occur at this time, after the initial phone conference.  The attorney now knows that you aren't a push over and you at least have the ability to get some of your issues granted by the arbitrator.  It is a perfect time to offer a mutual walk away settlement.

I’m trying not to focus on the cost issue, but the PRA attorney who is currently in charge of the case strikes me as being a bit rogue.  They were assigned to the case as soon as it went to arbitration, and the first thing they did after the initial payment was to ask AAA for recovery of the arbitration costs, even before seeing any of my claims.  And they are also going against PRA policy by asking for claims,  as one of their big-wigs sent a memo to AAA in March promising to pay all of their arbitration costs (which the Arbitrator knows about and commented on to PRA before allowing the post-trial hearing).  It seems like this particular attorney (initials SP) wants to take a longshot and see if it’s at all possible to recover arbitration fees, and my case is the guinea pig.  And if this is the case, they are more than willing to see the process through.

So my concern isn’t so much that I’m going to get stuck with their arbitration fees, it’s more that PRA isn’t going to be reasonable and be willing to settle.  Although I'm still going to try and settle with them as soon as I file my claims.

I can't help but wonder... has anyone ever had over heard of a JDB seeking arbitration cost reimbursement from the get-go in an AAA case?

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On 5/22/2020 at 5:30 AM, fisthardcheese said:
If all else fails, in your unique case here, you still have a chance to run up their costs AFTER the hearing because they thought they would scare you with the costs argument.  Even after the hearing is over, there will be another filing that you can object to and make your case on why it is not proper and against AAA rules to relocate expenses. That exchange alone will costs more arbitrator time which they must pay for up front before the arbitrator decides on if you should have to re-pay it.  The chances are pretty low (but not 0% obviously), and that is still leverage you can use for a settlement leading up to or even after a hearing.

Not to mention if they participate in the post-hearing action, it’s also a sueable offense that I can try in court to the tune of a $1000 FDCPA violation.   I do realize there’s a very small chance the fees can be reallocated but I’m not going to do anything to help them.  So no questionable claims (such as TCPA)  will be filed on my part, only the SOL and FDCPA claims, which I feel are strong.

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On 5/22/2020 at 6:22 AM, kittycat said:

The motion to dismiss with prejudice seems like textbook retraxit to me. Especially since PRA filed it with the court in mid February, before paying the case management fee and before AAA sent the initiation email on March 9.

The Retraxit Trap

Thank you for the link Kitty Kat!  Retraxit looks like a good argument to make in court, which is where we might end up given the attitude of the PRA attorney now in charge of the case.

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On 5/21/2020 at 1:41 AM, kittycat said:

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.

It is because the OP is the party who motioned to compel arbitration.   If a dismissal of any kind ended all chances at court, parties would MTC and then never arbitrate.  PRA could refile in court and point out that the OP never commenced the arbitration proceedings he claimed he wanted.  

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On 5/21/2020 at 5:53 PM, Billy Pilgrim said:

If the Dismissal With Prejudice gets upheld, they are potentially going to incur hassle chasing after any award, which is more leverage for a settlement.

No, they are not.  From the Federal Arbitration Act:

If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made.

The dismissal does not deprive the court of jurisdiction to confirm an award.  The FAA provides that jurisdiction.

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15 hours ago, BV80 said:

No, they are not.  From the Federal Arbitration Act:

If no court is specified in the agreement of the parties, then such application may be made to the United States court in and for the district within which such award was made.

The dismissal does not deprive the court of jurisdiction to confirm an award.  The FAA provides that jurisdiction.

It appears that the credit card agreement specifies either a Delaware or Arizona court.  From the arbitration section of the CC agreement:

"Alternatively, you and we may pursue a Claim within the jurisdiction of the Justice of the Peace Court in Delaware, or the equivalent court in your home jurisdiction, provided that the action remains in that court, is made on behalf of or against you only and is not made part of a class action, private attorney general action or other representative or collective action."

It would appear to me that a court has been specified, so the condition stated above (before the bolded part) is not met. However I'm not sure if the dismissal, if upheld, would invalidate that specification.

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17 hours ago, BV80 said:

It is because the OP is the party who motioned to compel arbitration.   If a dismissal of any kind ended all chances at court, parties would MTC and then never arbitrate.  PRA could refile in court and point out that the OP never commenced the arbitration proceedings he claimed he wanted.  



I see what you are saying here, but I posted this exact question to AVVO, which was answered by 3 attorneys who all said the same thing:  namely, that a voluntary dismissal with prejudice invalidates a court order to arbitrate.  https://www.avvo.com/legal-answers/if-my-case-is-dismissed-with-prejudice--do-i-have--4847884.html

However I am stuck in arbitration, since the motion to dismiss wasn't granted until after PRA paid their fees and the arbitrator had been assigned.

 

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9 hours ago, Billy Pilgrim said:

It appears that the credit card agreement specifies either a Delaware or Arizona court.  From the arbitration section of the CC agreement:

"Alternatively, you and we may pursue a Claim within the jurisdiction of the Justice of the Peace Court in Delaware, or the equivalent court in your home jurisdiction, provided that the action remains in that court, is made on behalf of or against you only and is not made part of a class action, private attorney general action or other representative or collective action."

It would appear to me that a court has been specified, so the condition stated above (before the bolded part) is not met. However I'm not sure if the dismissal, if upheld, would invalidate that specification.

Here is the first part of the previously cited section.

If the parties in their agreement have agreed that a judgment of the court shall be entered upon the award made pursuant to the arbitration, and shall specify the court, then at any time within one year after the award is made any party to the arbitration may apply to the court so specified for an order confirming the award, and thereupon the court must grant such an order unless the award is vacated, modified, or corrected as prescribed in sections 10 and 11 of this title. 

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9 hours ago, Billy Pilgrim said:



I see what you are saying here, but I posted this exact question to AVVO, which was answered by 3 attorneys who all said the same thing:  namely, that a voluntary dismissal with prejudice invalidates a court order to arbitrate.  https://www.avvo.com/legal-answers/if-my-case-is-dismissed-with-prejudice--do-i-have--4847884.html

However I am stuck in arbitration, since the motion to dismiss wasn't granted until after PRA paid their fees and the arbitrator had been assigned.

 

The attorneys are incorrect.  A dismissal with prejudice does not invalidate an arbitration provision or an order to arbitrate. PRA’s voluntary dismissal with prejudice may prevent them from filing another lawsuit on the merits of the debt, BUT it does not prevent arbitration.   It just means the court can’t hear their claims on the merits.

In addition, it does NOT prevent them from filing with the same court to confirm an arbitration award,  

Since the Federal Arbitration Act is federal last and governs the agreement, here is federal case law.  

The FAA directs the Court to stay an action pending arbitration; however, the Court's ability to dismiss a case is not limited when all issues raised in the complaint are arbitrable. See, e.g., Choice Hotels Int'l, Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707, 709-10 (4th Cir. 2001) (concluding "dismissal is a proper remedy when all of the issues presented in a lawsuit are arbitrable") (citation omitted); Green v. Ameritech Corp., 200 F.3d 967, 973 (6th Cir. 2000)Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992) ("The weight of authority clearly supports dismissal of the case when all of the issues raised in the district court must be submitted to arbitration.").

In the Ninth Circuit, courts have discretion under Section 3 to either stay or dismiss claims that are subject to an arbitration agreement. See Sparling v. Hoffman Constr. Co.,864 F.2d 635, 638 (9th Cir. 1988).

Referring to the Supreme Court of the United States:

In Green Tree, the district court had ordered the parties to arbitrate their dispute and dismissed the underlying claims with prejudice. The Supreme Court acknowledged that the parties could bring a separate proceeding to confirm, vacate or modify any award made in the arbitration, but held that the district court's order was final and appealable because it disposed of the entire action then pending before the district court. See  Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000).

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I still want to know what would happen if OP told AAA the he wished to withdraw dispute and close the case. Does AAA let PRA keep the case alive, or are we back to square one? 

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3 minutes ago, Goody_Ouchless said:

I still want to know what would happen if OP told AAA the he wished to withdraw dispute and close the case. Does AAA let PRA keep the case alive, or are we back to square one? 

I’m not sure, but I would think PRA might have to start its own claim in arbitration.  

If PRA had not voluntarily dismissed with prejudice, it might be able to reinstate in court.  The order to arbitrate applies to both parties.  In the event the OP dismissed the claim in arbitration, PRA might be have been able to claim he violated the court order.   

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I'm thinking that PRA would argue "we're already here, and this isn't about any claims brought against us, so let's keep this case going." They would also scream FRIVOLITY in order to recoup.

Very interesting to see what happens when the bills start piling up. 

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3 minutes ago, Goody_Ouchless said:

I'm thinking that PRA would argue "we're already here, and this isn't about any claims brought against us, so let's keep this case going."

Good point.  

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Which is kind of what happened in the Unifund case in Indiana. Two cases got mixed up and mistakenly mingled, but in the end the arbiter basically concluded that the two cases were about CC debt disputes between the same two parties, so he just ruled on everything, essentially using common sense.

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On 5/28/2020 at 5:42 AM, BV80 said:

It is because the OP is the party who motioned to compel arbitration.   If a dismissal of any kind ended all chances at court, parties would MTC and then never arbitrate.  PRA could refile in court and point out that the OP never commenced the arbitration proceedings he claimed he wanted.  

This is not a dismissal of any kind, it is a dismissal of a particular kind:

 

Quote

Retraxit is defined as “equivalent to a verdict and judgment on the merits of the case and bars another suit for the same cause between same parties.” Black’s Law Dictionary (5th ed. 1979).

Filing a dismissal with prejudice, even though there was no trial, has the same force as having a court render a final judgment on the merits as to the rights of the parties and their privies, and as to them, constitutes an absolute bar to a subsequent action involving the same claim or cause of action.

The corollary is that filing a dismissal without prejudice is not an absolute bar to a subsequent action involving the same parties.

 

6 hours ago, BV80 said:

The attorneys are incorrect.  A dismissal with prejudice does not invalidate an arbitration provision or an order to arbitrate. PRA’s voluntary dismissal with prejudice may prevent them from filing another lawsuit on the merits of the debt, BUT it does not prevent arbitration.   It just means the court can’t hear their claims on the merits.

If you accept that the filing of a dismissal with prejudice is retraxit, and has the same force as having a count render a final judgement on the merits, which in turn constitutes an absolute bar to a subsequent action involving the same claim(s) or cause of action, then how would you distinguish any other final judgment on the merits from preventing a party from pursing the same claims in arbitration after that final judgment?

All court orders prior to the final judgment are interim orders that are subject to revision prior to final judgment.  The final judgment usually extinguishes the prior orders unless they are restated again in the final judgment.  For example, had the court granted a motion by the defendant to compel discovery prior to the court granting the plaintiff's motion to dismiss the claims with prejudice, the defendant would not likely be able to still seek enforcement of that discovery order after final judgment.

My view is that order granting the motion to compel was a interim order that was not incorporated into the final judgment, and therefore was extinguished when the final judgment on the merits was rendered.  I believe that this is especially true since the plaintiff's motion to dismiss with prejudice was filed subsequent to the court's decision on the compel motion, and there was no motion pending before the court about arbitration when the plaintiff later filed the motion to dismiss with prejudice

 

5 hours ago, BV80 said:

The FAA directs the Court to stay an action pending arbitration; however, the Court's ability to dismiss a case is not limited when all issues raised in the complaint are arbitrable. See, e.g., Choice Hotels Int'l, Inc. v. BSR Tropicana Resort, Inc., 252 F.3d 707, 709-10 (4th Cir. 2001) (concluding "dismissal is a proper remedy when all of the issues presented in a lawsuit are arbitrable") (citation omitted); Green v. Ameritech Corp., 200 F.3d 967, 973 (6th Cir. 2000)Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992) ("The weight of authority clearly supports dismissal of the case when all of the issues raised in the district court must be submitted to arbitration.").

In the Ninth Circuit, courts have discretion under Section 3 to either stay or dismiss claims that are subject to an arbitration agreement. See Sparling v. Hoffman Constr. Co.,864 F.2d 635, 638 (9th Cir. 1988).

Referring to the Supreme Court of the United States:

In Green Tree, the district court had ordered the parties to arbitrate their dispute and dismissed the underlying claims with prejudice. The Supreme Court acknowledged that the parties could bring a separate proceeding to confirm, vacate or modify any award made in the arbitration, but held that the district court's order was final and appealable because it disposed of the entire action then pending before the district court. See  Green Tree Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000).

What appears to distinguish the above cases from Billy's case is that the court's dismissal order was intertwined with it's decision ordering arbitration.

In other words, the motion before the court, respective to the rendered order, was the compel motion.  The court (in essence, of its own motion) was deciding how to dispense with any remaining issues in the case given that it was ordering arbitration as its primary decision in regard to the compel motion.

That is not what happened in Billy's case.  I don't know what the court ordered at the time it granted the compel motion in regard to any stay or other disposition of the court case.  But at that time, there was no motion before the court from the plaintiff asking the court to dismiss the plaintiff's claims with prejudice.

It was subsequent to all of that the plaintiff filed the motion to dismiss with prejudice.  If you don't accept the tenets of retraxit (the the motion to dismiss with prejudice was a public renunciation in open court of an alleged claim of action and had the effect of forever estopping the plaintiff of raising the same cause of action), then what effect do you believe that such a motion has?

What is missing in the above cases is a subsequent public renunciation in open court of the alleged claim of action in the form of a separate and subsequent motion to dismiss with prejudice that was entirely unconnected to any pending motion, response, or reply in regard to the motion to compel arbitration.

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38 minutes ago, kittycat said:

This is not a dismissal of any kind, it is a dismissal of a particular kind:

Any kind of dismissal including with prejudice.

A dismissal with prejudice dismisses the case in court.  It does not does not nullify the arbitration provision and the ability to use that forum.  In the event of a motion to compel arbitration by the plaintiff, it would have to be determined if it waived its right to arbitrate.  

I already stated that PRA’s voluntary dismissal with prejudice has ended their chances in court.  In this case, the OP and PRA are already in arbitration.  The dismissal can’t undo that.  

 

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1 minute ago, BV80 said:

Any kind of dismissal including with prejudice.

A dismissal with prejudice dismisses the case in court.  It does not does not nullify the arbitration provision and the ability to use that forum.  

I already stated that PRA’s voluntary dismissal with prejudice has ended their chances in court.  However, they still have the option to arbitrate.  

The OP and PRA are already in arbitration.   The dismissal can’t undo that.

Of course it doesn't "nullify" the arbitration provision.  For other claims.

What has been dismissed in court is not as much the "case", but the claims.  What you seem to be saying is that PRA can make a public renunciation in open court of the alleged claim(s), have a court render final judgment and adjudication of those particular claim(s), and all PRA loses is access to the courts?  PRA is not estopped from pursing (or continuing pursuit of) the very same claims for which they have just made a public renunciation?

And if the arbitration case continues to the end, two separate forums (the court and the arbitration forum) may have each, fully and independently, rendered inconsistent final determinations about identical claims.

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6 minutes ago, kittycat said:

Of course it doesn't "nullify" the arbitration provision.  For other claims.

What has been dismissed in court is not as much the "case", but the claims.  What you seem to be saying is that PRA can make a public renunciation in open court of the alleged claim(s), have a court render final judgment and adjudication of those particular claim(s), and all PRA loses is access to the courts?  PRA is not estopped from pursing (or continuing pursuit of) the very same claims for which they have just made a public renunciation?

And if the arbitration case continues to the end, two separate forums (the court and the arbitration forum) may have each, fully and independently, rendered inconsistent final determinations about identical claims.

Read the edit I made before you posted.

Usually, when a court dismisses with prejudice, litigation has been ongoing.  Therefore, after a dismissal, a party cannot then demand arbitration because it waited too long and engaged in litigation.   

If PRA were to file its own MTC arbitration, it might need to be determined if PRA waived its right to arbitrate by voluntarily dismissing with prejudice before substantially engaging in litigation.  That would be for the court to decide.  

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41 minutes ago, BV80 said:

If PRA were to file its own MTC arbitration, it might need to be determined if PRA waived its right to arbitrate by voluntarily dismissing with prejudice before substantially engaging in litigation.  That would be for the court to decide.  

All that would matter is an evaluation of waiver?  It wouldn't matter that the very same claims had already been finally adjudicated in a form equivalent to a bench or jury trial?

It might be useful for Billy to describe the history of events in the arbitration filing/case  I'm assuming that Billy is the claimant, and filed with either no claims or vague claims.  And that respondent PRA filed counterclaims (in the arbitration case) some time subsequent.  I'm wondering if the respondent's counterclaims where filed after they filed the motion to dismiss with prejudice.

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