Racinghart03

DV Sent back by Collections Attorney for Cavalry Portfolio..What Next?

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3 minutes ago, BV80 said:
 

What does it say about “How Arbitration Works”?

@BV80

"PLEASE READ THIS PROVISION OF THE AGREEMENT CAREFULLY. This section provides that disputes may be resolved by binding arbitration. Arbitration replaces the right to go to court, have a jury trial or initiate or participate in a class action. In arbitration, disputes are resolved by an arbitrator, not a judge or jury. Arbitration procedures are simpler and more limited than in court. This arbitration provision is governed by the Federal Arbitration Act (FAA), and shall be interpreted in the broadest way the law will allow. Covered claims • You or we may arbitrate any claim, dispute or controversy between you and us arising out of or related to your Account, a previous related Account or our relationship (called “Claims”). • If arbitration is chosen by any party, neither you nor we will have the right to litigate that Claim in court or have a jury trial on that Claim. Except as stated below, all Claims are subject to arbitration, no matter what legal theory they’re based on or what remedy (damages, or injunctive or declaratory relief) they seek, including Claims based on contract, tort (including intentional tort), fraud, agency, your or our negligence, statutory or regulatory provisions, or any other sources of law; Claims made as counterclaims, cross-claims, third-party claims, interpleaders or otherwise; Claims made regarding past, present or future conduct; and Claims made independently or with other claims. This also includes Claims made by or against anyone connected with us or you or claiming through us or you, or by someone making a claim through us or you, such as a co-applicant, Authorized User, employee, agent, representative or an affiliated/parent/subsidiary company. Arbitration limits • Individual Claims filed in a small claims court are not subject to arbitration, as long as the matter stays in small claims court. • We won’t initiate arbitration to collect a debt from you unless you choose to arbitrate or assert a Claim against us. If you assert a Claim against us, we can choose to arbitrate, including actions to collect a debt from you. You may arbitrate on an individual basis Claims brought against you, including Claims to collect a debt. • Claims brought as part of a class action, private attorney general or other representative action can be arbitrated only on an individual basis. The arbitrator has no authority to arbitrate any claim on a class or representative basis and may award relief only on an individual basis. If arbitration is chosen by any party, neither you nor we may pursue a Claim as part of a class action or other representative action. Claims of 2 or more persons may not be combined in the same arbitration. However, applicants, co-applicants, Authorized Users on a single Account and/or related Accounts or corporate affiliates are here considered as one person. How arbitration works • Arbitration shall be conducted by the American Arbitration Association (“AAA”) according to this arbitration provision and the applicable AAA arbitration rules in effect when the claim is filed (“AAA Rules”), except where those rules conflict with this arbitration provision. You can obtain copies of the AAA Rules at the AAA’s website (www.adr.org) or by calling 800-778-7879. You or we may choose to have a hearing, appear at any hearing by phone or other electronic means, and/or be represented by counsel. Any in-person hearing will be held in the same city as the U.S. District Court closest to your billing address. • Arbitration may be requested at any time, even where there is a pending lawsuit, unless a trial has begun or a final judgment entered. Neither you nor we waive the right to arbitrate by filing or serving a complaint, answer, counterclaim, motion or discovery in a court lawsuit. To choose arbitration, a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to the AAA. • The arbitration shall be conducted by a single arbitrator in accord with this arbitration provision and the AAA Rules, which may limit discovery. The arbitrator shall not apply any federal or state rules of civil procedure for discovery, but the arbitrator shall honor claims of privilege recognized at law and shall take reasonable steps to protect Account information and other confidential information of either party if requested to do so. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statute of limitations, and may award damages or other relief under applicable law. • The arbitrator shall make any award in writing and, if requested by you or us, may provide a brief statement of the reasons for the award. An arbitration award shall decide the rights and obligations only of the parties named in the arbitration, and shall not have any bearing on any other person or dispute. Paying for arbitration fees • We’ll pay your share of the arbitration fee for an arbitration of Claims of $75,000 or less if they are unrelated to debt collection. Otherwise, arbitration fees will be allocated according to the applicable AAA Rules. If we prevail, we may not recover our arbitration fees, unless the arbitrator decides your Claim was frivolous. All parties are responsible for their own attorney’s fees, expert fees and any other expenses, unless the arbitrator awards such fees or expenses to you or us based on applicable law. The final award • Any award by an arbitrator is final unless a party appeals it in writing to the AAA within 30 days of notice of the award. The arbitration appeal shall be determined by a panel of 3 arbitrators. The panel will consider all facts and legal issues anew based on the same evidence presented in the prior arbitration, and will make decisions based on a majority vote. Arbitration fees for the arbitration appeal shall be allocated according to the applicable AAA Rules. An award by a panel on appeal is final. A final award is subject to judicial review as provided by applicable law."

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38 minutes ago, Racinghart03 said:

@BV80 Sorry for the novel. 

No problem.  😀

It includes the following:

Arbitration may be requested at any time, even where there is a pending lawsuit, unless a trial has begun or a final judgment entered.

To choose arbitration, a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to the AAA.

 Notice what it says one must do in order to choose arbitration.  You have not filed a claim with the arbitration forum.  A motion to compel arbitration is done when the other party has refused to arbitrate.  See 9 U.S.C. § 4.  Filing a lawsuit may be considered a refusal.  So far, the steps needed to choose arbitration according to the arbitration provision have not been done.  Also, § 4 allows a party to refuse to arbitrate.  Those are the reasons why it would be difficult to claim an FDCPA violation.  

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1 minute ago, BV80 said:

No problem.  😀

It includes the following:

Arbitration may be requested at any time, even where there is a pending lawsuit, unless a trial has begun or a final judgment entered.

To choose arbitration, a party may file a motion to compel arbitration in a pending matter and/or commence arbitration by submitting the required AAA forms and requisite filing fees to the AAA.

 Notice what it says one must do in order to choose arbitration.  You have not filed a claim with the arbitration forum.  A motion to compel arbitration is done when the other party has refused to arbitrate.  See 9 U.S.C. § 4.  Filing a lawsuit may be considered a refusal.  

§ 4 allows a party to refuse to arbitrate.  That’s why it would be difficult to claim an FDCPA violation.  

Understood @BV80. So it seems I hold the course. File the MTC before the complaint defaults. There is a part of me that wishes I initiated before but that is water under the bridge. I think based on what @fisthardcheese suggests, the whole arb thing is really to put a financial burden on the JDB so they settle for a lesser price. I am assuming if I file the MTC...I need to initiate the arb. So on what grounds would I do that? And once that is determined I need a list of ways to drag out the arb case as long as possible. 

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26 minutes ago, Racinghart03 said:
 

Understood @BV80. So it seems I hold the course. File the MTC before the complaint defaults. There is a part of me that wishes I initiated before but that is water under the bridge. I think based on what @fisthardcheese suggests, the whole arb thing is really to put a financial burden on the JDB so they settle for a lesser price. I am assuming if I file the MTC...I need to initiate the arb. So on what grounds would I do that? And once that is determined I need a list of ways to drag out the arb case as long as possible. 

The only way a default can occur is if you are served but do not answer within the required amount of time.  I’ll let @fisthardcheeseanswer your questions about filing and a MTC.  

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10 minutes ago, BV80 said:

The only way a default can occur is if you are served but do not answer within the required amount of time.  I’ll let @fisthardcheeseanswer your questions about filing and a MTC.  

Thank you @BV80. On a side bar, I try and pay all the help you guys/gals have given forward. I don't know any of you personally but I make specific attempts to do things for other remembering the gratitude I have for all the help I have gotten. I find the more you give in life, the more you get. My life was a real mess back when all this came about and I am aware this is reminder to be thankful for all the lessons that have come from that era of my life. Gratitude breeds things to be grateful for. I hope you all get back a little something for the selfless time you give. I will keep you all posted. I am sure this pile of poop will be in my mailbox any day! CANT WAIT!!

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38 minutes ago, Racinghart03 said:

Thank you @BV80. On a side bar, I try and pay all the help you guys/gals have given forward. I don't know any of you personally but I make specific attempts to do things for other remembering the gratitude I have for all the help I have gotten. I find the more you give in life, the more you get. My life was a real mess back when all this came about and I am aware this is reminder to be thankful for all the lessons that have come from that era of my life. Gratitude breeds things to be grateful for. I hope you all get back a little something for the selfless time you give. I will keep you all posted. I am sure this pile of poop will be in my mailbox any day! CANT WAIT!!

You’re very kind.  We all post here because we’ve been through what you’re going through.  Paying it forward can include any act of kindness whether it’s helping people here, elsewhere, donating to a charity, etc.  

Helping people like you makes this worthwhile for all of us. 

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8 minutes ago, BV80 said:

You’re very kind.  We all post here because we’ve been through what you’re going through.  Paying it forward can include any act of kindness whether it’s helping people here, elsewhere, donating to a charity, etc.  

Helping people like you makes this worthwhile for all of us. 

@BV80🙂

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On 6/17/2020 at 1:40 PM, Racinghart03 said:
 
 

Understood @BV80. So it seems I hold the course. File the MTC before the complaint defaults. There is a part of me that wishes I initiated before but that is water under the bridge. I think based on what @fisthardcheese suggests, the whole arb thing is really to put a financial burden on the JDB so they settle for a lesser price. I am assuming if I file the MTC...I need to initiate the arb. So on what grounds would I do that? And once that is determined I need a list of ways to drag out the arb case as long as possible. 

First thing - Just assume now you WILL have to appear in court at least once if not a few times.  Preparing for that now rather than hoping to avoid it will make it easier for you later.  If you show up to court prepared, it will be less nerve wracking and you will do a better job presenting your side.

Do NOT file in AAA now.  Wait until the court rules on your Motion to Compel.  The only thing that matters currently is court.  You have been sued. Deal with that lawsuit in court FIRST.  You already know how to do this - you file an answer the denies all allegations and states you have an affirmative defense of improper venue.  Then at the same time you file the Motion to Compel.

As far as violations, ignoring a request to arbitrate is not an established violation backed by case law.  What I have always said is that if I have NO OTHER violations at the time I must file in arbitration, I will use this argument as a single FDCPA violation in order to file my AAA case upon.  Arbitration is not court, so they will not toss your case out without a hearing.  You can make a sound argument that they are in violation of the contract OR that they took an improper action to collect a debt after you invoked arbitration.  It doesn't mean you will prevail on that argument, however, the entire point is that they will have to pay the $6k to AAA to have the hearing  The cost is your leverage, not your FDCPA claim.   However, this is still very early in your case. Attorneys can easily violate the FDCPA between now and the judge granting your MTC. So you don't know yet what kind of violations you may have to file your AAA case with until it's time to do so.

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11 hours ago, fisthardcheese said:

First thing - Just assume now you WILL have to appear in court at least once if not a few times.  Preparing for that now rather than hoping to avoid it will make it easier for you later.  If you show up to court prepared, it will be less nerve wracking and you will do a better job presenting your side.

Do NOT file in AAA now.  Wait until the court rules on your Motion to Compel.  The only thing that matters currently is court.  You have been sued. Deal with that lawsuit in court FIRST.  You already know how to do this - you file an answer the denies all allegations and states you have an affirmative defense of improper venue.  Then at the same time you file the Motion to Compel.

As far as violations, ignoring a request to arbitrate is not an established violation backed by case law.  What I have always said is that if I have NO OTHER violations at the time I must file in arbitration, I will use this argument as a single FDCPA violation in order to file my AAA case upon.  Arbitration is not court, so they will not toss your case out without a hearing.  You can make a sound argument that they are in violation of the contract OR that they took an improper action to collect a debt after you invoked arbitration.  It doesn't mean you will prevail on that argument, however, the entire point is that they will have to pay the $6k to AAA to have the hearing  The cost is your leverage, not your FDCPA claim.   However, this is still very early in your case. Attorneys can easily violate the FDCPA between now and the judge granting your MTC. So you don't know yet what kind of violations you may have to file your AAA case with until it's time to do so.

Thank  you as always @fisthardcheese. I am ready. I will use your conceptual MTC and the order as well. I will NOT cut and paste. I will just use the framework of it, and apply it to my case. I have already registered with the court for easy uploading of my documents so that is done. I also made sure there were no special things to be considered when submitting the docs. The site is pretty informative and easy to follow. The main thing was to get set up with an "account" for all things judicial. So from here, I will handle the MTC this weekend and file a week or so before the case would default. I think that should be enough time. I can worry about the grounds for arb once I am granted the MTC. I am still thinking the JDB thinks I will just ignore the complaint and get a default judgement. He is mistaken. Not happening. 

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@fisthardcheese So I am just about done with my MTC. I have pulled direct verbiage from the card member agreement the JDB sent over and replaced what the template has. My question is, can I use the same case example you have on the example MTC or should I use something else? What is on there now seems relative, it is just a bit dated. I also double checked the clause from the FAA section 1-2 and the verbiage there seems unchanged. Is it ok to use that section unedited as well? Thanks! 

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@Racinghart03 Here's a recent NJ Supreme Court decision: 

Goffe v. Foulke Mgmt. Corp., 238 N.J. 191, 207 (2019).

 

"In applying the Federal Arbitration Act (FAA), 9 U.S.C. §§ 1 to 16, the United States Supreme Court has provided substantial guidance on the question of whether arbitration should be compelled in situations such as we address in this case.

The FAA constitutes the supreme law of the land regarding arbitration. Southland Corp. v. Keating, 465 U.S. 1, 10, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984) ("In enacting [section two of the FAA], Congress declared a national policy favoring arbitration and withdrew the power of the states to require a judicial forum for the resolution of claims which the contracting parties agreed to resolve by arbitration."). Reflecting the "fundamental principle that arbitration is a matter of contract," Rent-A-Center, 561 U.S. at 67, 130 S.Ct. 2772, section two of the FAA provides:

A written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract. . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
[9 U.S.C. § 2.]

Thus, Congress intended "to place arbitration agreements upon the same footing as other contracts." Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991). It is the FAA's "principal purpose" to "`ensur[e] that private arbitration agreements are enforced according to their terms.'" AT & T Mobility LLC v. Concepcion, 563 U.S. 333, 344, 131 S.Ct. 1740, 179 L.Ed.2d 742 (2011) (alteration in original) (quoting Volt Info. Scis., Inc. v. Bd. of Trs., 489 U.S. 468, 478, 109 S.Ct. 1248, 103 L.Ed.2d 488 (1989)). To make that so, the FAA provides remedies. First, section three provides that a party may request a stay of an in-court action of "any issue referable to arbitration under an agreement in writing for such arbitration." 9 U.S.C. § 3. And, section four provides a federal remedy for a party "aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration," and directs the federal court to order arbitration once it is satisfied that an agreement for arbitration has been made and has not been honored. 9 U.S.C. § 4.

New Jersey case law acknowledges the preeminence of the national policy established by Congress through the FAA as well as the Supreme Court's holdings interpreting and implementing that policy. See, e.g., Morgan, 225 N.J. at 304-06, 137 A.3d 1168; Martindale v. Sandvik, Inc., 173 N.J. 76, 84-85, 800 A.2d 872 (2002). Hence, in this matter, as in others, we look to the Supreme Court's decisions to guide us in the enforcement of arbitration agreements according to their terms. . . "

 

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