@Lynn

Pending Arbitration with 1st Portfolio

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In August, I was served by JDB, First Portfolio debt for just under $5000. I did file an appearance but was not required by the courts in my city to file an answer as part of my appearance. Just after filing my appearance I receive a call from the Law firm representing the JBD (not even the original creditor, BC of  DEL) asking if I wanted to settle a few weeks before the 1st court date. The rep basically told me their offer was $5400 and they could settled it back agreeing to set up a payment plan. To which, I did not agree ( figured I'd take my chance in court). Prior to my court date, I read some information about arbitration and so I decided to try and find the terms and conditions for the original CC, however, they terms and conditions were not available for the year my account was allegedly opened and so I could not get it. However, during my court appearance, I told the judge that I want to Compel to arbitration. Last week, I received a copy of a motion that was sent to the court (Motion to Order Defendant to File an Answer to the Compliant and for  Leave to Issue Limited Written Discovery. To which the judge asked how I wanted to proceed and if I wanted to provide them with the information they were requesting, I stated NO, I did not want to comply with the lawyers request and the judge missed that part so I didn't have to file an answer. The judge then stated that the Plaintiff attorney needed to send him an order that would allow him to get the case moved to arbitration. I'm not certain who is used for arbitration here in CC Illinois, but I was told I would be notified by the court via a post card when the case was assigned to an arbitrator. The Law firm for the plaintiff contacted me again to day about a settlement of $5400, which I stated I can't agree to anything definitely not that amount, he said what might you be able to do...whatever I did would have to be lowered that what he mentioned. I reemphasis that I could not agree to anything as their is a pending case. At the end I told them to send me their best offer in writing and we ended the conversation. MY question is should I continue to talk with them or should I continue with arbitration and see if they become more agreeable? 

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It sounds like you will be going to a court-sponsored arbitration. Which you don't want and which is not what is being addressed in this forum. What you want is private contractual arbitration with either AAA or JAMS.  The reason behind this strategy is these arb forums are expensive, which makes it too costly for JDBs to bother with. They would rather drop the case and move on to easier prey. 

Try to find a card agreement for a year when the account was active.  It doesn't have to be the year you opened the account.  Then file a formal Motion to Compel Arbitration with the court, stressing that you want private contractual arbitration.

 

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Your arbitration agreement or card agreement in entirety wouldn't be the one in place at the time the account was opened. It would be the one that was in effect at the time the account was charged off. You can find the agreement that was in effect at that time (of charge off) at the CFPB website and searching the card agreements. I would find and review that agreement and if arbitration is stated and there isn't a small claims exception I would file an answer to the case, as the court said you now must, and file a motion to compel arbitration providing a copy of the card agreement (again the one in effect at charge off) to the court. I personally would use the defense of lack of subject matter jurisdiction and/or improper venue and cite the arbitration agreement. However, I am in Texas. There are some helpful resources such as question sites you could go to. Some may be free, and some may be paid where you can ask a legal question and pay either a monthly or single use fee. It is often much cheaper than a consultation with an attorney. You could also try consulting with a consumer protection attorney in your area over the phone, however, most of them if not all will almost certainly not really answer your question without you paying them in their office for a face to face consultation. If BC of DEL denotes Barclays of Delaware there is an arbitration agreement, however, there is also a "justice court" exemption I believe. Justice court would translate to small claims, usually. So potentially if this holds true in your case arbitration isn't going to do anything for you. This doesn't necessarily mean that it would do absolutely nothing for you. It would at the very least buy you a little bit of time. It is unlikely the motion to compel would be ruled on either way without a hearing in court.

As far as discussing the debt with the collector I would limit any negotiating. I am not sure of your states laws specifically but in some states if you "acknowledge" the debt at all, including agreeing to any payment terms, etc. you are acknowledging the debt and that could potentially start the clock on the statute of limitations all over again. If you have said to the collector, or attorney for the plaintiff or whomever only what you have indicated here it doesn't seem like anything you said would be an acknowledgment. Further if you do agree to any terms to settle the debt you may want to find out if it will be an agreed judgment or if they will dismiss the case in court. Agreed judgment can still be shown on your credit report. Some cheerleaders will say "agreed judgment is a good mark", what you want to focus on is the judgment part. That is what future creditors will be looking at.

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Thank you@alwayswinning36- I will try and locate the card agreement online. When I was last in court the judge asked the attorney to submit an a motion so that he could move the case along to arbitration, however, I am not certain if it is court appointed arbitration of a private arbitration. I tried asking questions with the clerk of the court but they were less than helpful and kept telling me their is no private arbitration. I want to get my case of the the Illinois court and into private arbitration but am not certain as to how to proceed. Can you help?

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57 minutes ago, @Lynn said:

Thank you@alwayswinning36- I will try and locate the card agreement online. When I was last in court the judge asked the attorney to submit an a motion so that he could move the case along to arbitration, however, I am not certain if it is court appointed arbitration of a private arbitration. I tried asking questions with the clerk of the court but they were less than helpful and kept telling me their is no private arbitration. I want to get my case of the the Illinois court and into private arbitration but am not certain as to how to proceed. Can you help?

So you never filed a motion to compel arbitration and the plaintiff didn't ask for arbitration under the terms of the agreement? You will have to research the laws of the Court that your case if filed in. Court clerks are generally restricted from providing any information that could be construed as "legal advice", which includes sometimes even answering a simple yes or no question you may ask. I agree with earlier post, you definitely want to go the route of the arbitration as applicable in the agreement. This may result in you having to file an answer as well as a motion to compel arbitration. I am not familiar with the laws in Illinois, but you may already be outside of your time to do either file your answer or a motion to compel.

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My apologies for the delay and thank you for the assistance. In Illinois there is court appointed arbitration which I did not know this during my last court date, so when the  judge asked what I wanted to do, I stated that I wanted to file a motion to compel to arbitration.  The judge mentioned that there was nothing that I needed to do, and he directed the attorney for the JDB to file a motion that would allow him to get the case on its way to arbitration. Again, I did not realize that this was court appointed by the Illinois circuit courts. At this point, I'd like to file a motion to Compel to private contractual Arbitration via JAMS OR AAA as advised by another forum member. However, in this case, no where in the lawsuit do they mention BCD, but a statement from another company was included with a balance. My concern in filing the compel to arbitration without a terms and agreement statement that shows the original debt owner supported arbitration. What would you recommend in this case? I would like to file this motion before the attorney for the JBD does and see if I can force this to private arbitration....any help would be greatly appreciated

 

 

 

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On 10/30/2020 at 10:11 AM, nobk4me said:

It sounds like you will be going to a court-sponsored arbitration. Which you don't want and which is not what is being addressed in this forum. What you want is private contractual arbitration with either AAA or JAMS.  The reason behind this strategy is these arb forums are expensive, which makes it too costly for JDBs to bother with. They would rather drop the case and move on to easier prey. 

Try to find a card agreement for a year when the account was active.  It doesn't have to be the year you opened the account.  Then file a formal Motion to Compel Arbitration with the court, stressing that you want private contractual arbitration.

 

My apologies for the delay and thank you for the assistance. In Illinois there is court appointed arbitration which I did not know this during my last court date, so when the  judge asked what I wanted to do, I stated that I wanted to file a motion to compel to arbitration.  The judge mentioned that there was nothing that I needed to do, and he directed the attorney for the JDB to file a motion that would allow him to get the case on its way to arbitration. Again, I did not realize that this was court appointed by the Illinois circuit courts. At this point, I would like to file a motion to Compel to private contractual Arbitration via JAMS OR AAA as advised.  However, in this case, no where in the lawsuit do they mention BCD, but a statement from another company was included with a balance. My concern in filing the compel to arbitration without a terms and agreement statement that shows the original debt owner supported arbitration. What would you recommend in this case? I would like to file this motion before the attorney for the JBD does and see if I can force this to private arbitration....any help would be greatly appreciated

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