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Portfolio Rec a$$ - too late for Arb? (NY)

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Hello 

Just finished my 5th conference with PRA and they are now waiting for my discovery demands. During the conferences I have just sat there and only replied "I don't know what this is" when asked a question. 

I forgot about the wealth of info here (arbitration!), and am not sure what my next step should be. 

Should I send discovery demands? (Google isn't helping with DIY forms for me to do this- if anyone has direction to point me in)

Should I start arbitration? (I am very nervous I'll screw it up!)

 

1. Who is the named plaintiff in the suit? Portfolio Recovery Associates LLC

2. What is the name of the law firm handling the suit? Fosters and Garbus LLP, NY

3. How much are you being sued for? $4,515.93 

4. Who is the original creditor? Synchrony Bank

5. How do you know you are being sued? (You were served, right?)  Served

6. How were you served? (Mail, In person, Notice on door) In person

7. Was the service legal as required by your state? yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None before

9. What state and county do you live in? New York, Sullivan

10. When is the last time you paid on this account? 12/2015

11. What is the SOL on the debt? 4yrs (was served within the SOL)

12. What is the status of your case? Suit served? Motions filed?  5th pre-trial conference scheduled for September as they wait for my discovery demands

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) no

14. Did you request debt validation before the suit was filed? No 

15. How long do you have to respond to the suit? Responded denying allegations

16. What evidence did they send with the summons? none with summons, but have sense sent a packet of statement cover letters starting with a balance of $3,962, the bank cc agreement, and an unsigned affidavit of service (it is not filled in date or signatures)

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Different states have different rules.

Also, judges interpret the law differently, which is a polite way of saying judges often due whatever the heck they want, no matter what the law says.

In MOST jurisdictions, it is too late for arbitration if you have already started discovery.  Most, but not all.

There are a few jurisdictions in which arbitration is an option as long as a trial hasn't started.  And a few judges who will interpret things that way.

You could throw a Hail Mary pass, file your MTC and hope for the best.  You have nothing to lose except the time and effort you put into it.  

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14 minutes ago, BackFromTheDebt said:

Different states have different rules.

Also, judges interpret the law differently, which is a polite way of saying judges often due whatever the heck they want, no matter what the law says.

In MOST jurisdictions, it is too late for arbitration if you have already started discovery.  Most, but not all.

There are a few jurisdictions in which arbitration is an option as long as a trial hasn't started.  And a few judges who will interpret things that way.

You could throw a Hail Mary pass, file your MTC and hope for the best.  You have nothing to lose except the time and effort you put into it.  

Thank you for your response. I feel like I have a good chance because I haven't seen a judge and won't for some time-- I have only been meeting with the Clerk. 

I have tried to look up NY rules, but I haven't seen anything. Why does arbitration seem so intimidating? Have you been through it?

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4 hours ago, Tanner said:

Thank you for your response. I feel like I have a good chance because I haven't seen a judge and won't for some time-- I have only been meeting with the Clerk. 

I have tried to look up NY rules, but I haven't seen anything. Why does arbitration seem so intimidating? Have you been through it?

Yes, I have been through arbitration 4 times for 5 accounts.  1 time was settled (2 accounts) before any fees were paid.  Twice settled well into arbitration. Once was right before the hearing (a great time for settlement!), the other time was right after discovery, when the opposing counsel saw that my wild claims were actually true.  I asked him if he could explain his client's behavior.  He said no, and we settled ASAP.  I somehow came into some money, and had a vacation.  

Cap 1 and their allegedly corrupt law firm Messerli & Kramer walked away from the case, which was dismissed.  

5-0 record.

It seems intimidating because it is something completely outside your comfort zone.  I spent a long time learning the process.  I spent hundreds of hours on the process.  By that time I knew what I was doing better than many attorneys, so I wasn't intimidated anymore.  

If you follow the templates given, you should be able to handle the process.

That is, unless the judge rules you have waived your rights to arbitration by participating in discovery.  Most judges will do that.  Some won't.  

As I said, at this point an MTC is a Hail Mary pass.  If it works, you win.  If not, you lose.  

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Backfromdebt nailed it.   It is very intimidating and easy to just pass and except your spankings!  Don't do it!  This board is a God send and will give you all the information you need. Most of the people here are just awesome and will give you great insight. I personally had 9 cases ! I was able to get withdrawals on all. 3 with prejudice ( after I learned a bit more).   Arbitration, Arbitration, Arbitration!!! I see yours is Synchrony and they have the best Arbitration clause. Although you did not pursue this with them initially, it can not hurt to try now. As mentioned all states operate differently so, your results may be different. Push the Arbitration and see what happens. Any communications with debt collector , do it via CMRR. They do not want Arbitration.  AAA will not accept any case with Cavlary. 

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I have used arbitration to get these cases dismissed a couple of times now in Courts in New York. 3 to be exact. But honestly, 5 court appearances might put you in a tough spot. You can still argue it, as you have much more to gain than to lose.

However, there is case law in New York that if you participate too much in the court process you waive the right to arbitration. You might be able to get around this if you never even knew an arbitration agreement existed, and only recently got it - but 5 appearances in court is going to not be great for your side. 

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I know nothing about NY law.  However, there are some arbitration clauses that state arbitration can be invoked anytime prior to final judgement. 

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On 7/10/2020 at 2:18 PM, SJULawAlum said:

I have used arbitration to get these cases dismissed a couple of times now in Courts in New York. 3 to be exact. But honestly, 5 court appearances might put you in a tough spot. You can still argue it, as you have much more to gain than to lose.

However, there is case law in New York that if you participate too much in the court process you waive the right to arbitration. You might be able to get around this if you never even knew an arbitration agreement existed, and only recently got it - but 5 appearances in court is going to not be great for your side. 

A trial has not been set, I have only been in pre-trial conferences. Am I incorrect in thinking that these conferences are different than actual "court"? No judge is present, just the Clerk. 

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On 7/12/2020 at 7:11 AM, Impress said:

I know nothing about NY law.  However, there are some arbitration clauses that state arbitration can be invoked anytime prior to final judgement. 

The arbitration clause that is in the agreement that PRA sent me states that arbitration ca be elected at any time even after the trail has started (I can look at the exact wording in the morning).

Thank you for your responses!

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On 7/13/2020 at 10:24 PM, Tanner said:

A trial has not been set, I have only been in pre-trial conferences. Am I incorrect in thinking that these conferences are different than actual "court"? No judge is present, just the Clerk. 

Those are still considered court appearances.

You should make the motion.

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I'm currently involved in an arbitration case with the AAA.  From the information I learned here, I filed a demand against a business for something that has nothing to do with credit or debt.  Best decision ever!

Arbitration is easy for a pro se consumer to navigate.  As long as you're familiar with the arbitration rules, you should be just fine.  If you run into a problem or need help, there are lots of knowledgeable people here to give you words of advise and encouragement.

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