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Plaintiff dismissed case w/o prejudice


Bugsy
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1 hour ago, Bugsy said:

I guess I should start preparing my defense. I did actually owe the debt not sure I have any violations against midland . Anyone got any ideas?

Reread Fisthardcheese's pinned arbitration thread. Here's a FDCPA checklist to see if you may have any plausible violations:

https://lawpoint.com/wp-content/uploads/2020/02/FDCPA-Violations-Checklist-and-Cheat-Sheet.pdf  Check the NJ consumer laws to see if you might have plausible violations there as well. 

Philip Stern is a consumer attorney in NJ. His website has links to his written motions and trial briefs that cite NJ law and cases. He posts winning and losing case documents.  http://www.philipstern.com/index.html

Go over every single piece of paper Midland has given you to see if you can find any discrepancies or red flags or break in the chain of assignment. You're going to have to argue this as you would in court. You will have to demonstrate that there is a legitimate dispute as you would in court. 

This post has a link to an article on how evidence rules are relaxed in arbitration: 

 

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7 hours ago, Percyb said:

Just as a side note just got the final brief last night from respondent and they want full lawyer fees and arbitration cost.   

Can you post a copy of your arbitration agreement?  Does it say anything about payment of arbitration costs and attorneys fees?  I'm also curious to know which consumer arbitration rule they believe entitles them to these expenses.

 

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On 6/25/2021 at 5:40 PM, LaneBlane said:

Can you post a copy of your arbitration agreement?  Does it say anything about payment of arbitration costs and attorneys fees?  I'm also curious to know which consumer arbitration rule they believe entitles them to these expenses.

 

I went settled with PayPal JDB the contract states:

9.     The arbitrator may award any damages or other relief or remedies that would apply under applicable law to an individual action brought in court, including, without limitation, punitive damages (governed by the Constitutional standards employed by the courts) and injunctive, equitable and declaratory relief (but only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim). The parties will bear the fees and costs of their attorneys, witnesses and experts. However, the arbitrator will have the authority to award fees and costs of attorneys, witnesses and experts to the extent permitted by the Agreement, the administrator’s rules or applicable law.

The agreement also states:

11. GOVERNING LAW. This Arbitration section is governed by the FAA. Utah law shall apply to the extent state law is relevant under the FAA, unless otherwise stated herein. The arbitrator’s award will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award. The arbitration award and any judgment confirming it will apply only to the specific case and cannot be used in any other case except to enforce the award.

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2 hours ago, Bulldoger said:

The parties will bear the fees and costs of their attorneys, witnesses and experts. However, the arbitrator will have the authority to award fees and costs of attorneys, witnesses and experts to the extent permitted by the Agreement, the administrator’s rules or applicable law.

When it comes to arbitration costs and attorneys' fees the consumer arbitration rules should take precedence.  Does anyone know if a JDB has argued that a particular section of the consumer rules permit an arbitrator to award fees and costs?   This would be nice to know for future cases.

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5 hours ago, LaneBlane said:

When it comes to arbitration costs and attorneys' fees the consumer arbitration rules should take precedence.  Does anyone know if a JDB has argued that a particular section of the consumer rules permit an arbitrator to award fees and costs?   This would be nice to know for future cases.

From JAMS:

Rule 24

(f) The Award of the Arbitrator may allocate Arbitration fees and Arbitrator compensation and expenses, unless such an allocation is expressly prohibited by the Parties' Agreement. (Such a prohibition may not limit the power of the Arbitrator to allocate Arbitration fees and Arbitrator compensation and expenses pursuant to Rule 31(c).)

(g) The Award of the Arbitrator may allocate attorneys' fees and expenses and interest (at such rate and from such date as the Arbitrator may deem appropriate) if provided by the Parties' Agreement or allowed by applicable law. When the Arbitrator is authorized to award attorneys' fees and must determine the reasonable amount of such fees, he or she may consider whether the failure of a Party to cooperate reasonably in the discovery process and/or comply with the Arbitrator's discovery orders caused delay to the proceeding or additional costs to the other Parties.

If I remember correctly, in consumer arbitration claims, fees are allocated only in the event the arbitrator finds the claim(s) were frivolous or brought in bad faith.  For instance, some on this site used to advocate that consumers “drive up” the arbitration costs of the banks or JDBs by taking extra time, making numerous filings, etc.  That could be considered to be bad faith   

 

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On 6/27/2021 at 7:07 AM, BV80 said:

If I remember correctly, in consumer arbitration claims, fees are allocated only in the event the arbitrator finds the claim(s) were frivolous or brought in bad faith.  For instance, some on this site used to advocate that consumers “drive up” the arbitration costs of the banks or JDBs by taking extra time, making numerous filings, etc.  That could be considered to be bad faith   

Thanks for the info, BV80.

When I was going through arbitration with a JDB several years ago the consumer rules didn't include anything about an arbitrator being able to award fees and expenses.  This must be new.

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  • 3 months later...

Just giving an update, we ultimately decided on a settlement which was significantly less than what they claimed I owed. I’m wondering if they’re just refunded arbitration costs since we settled at much less than even the original fee to start the arbitration. 

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4 hours ago, Bugsy said:

Just giving an update, we ultimately decided on a settlement which was significantly less than what they claimed I owed. I’m wondering if they’re just refunded arbitration costs since we settled at much less than even the original fee to start the arbitration. 

I think they get their unspent retainer back but still they lost out.  Good job more wins the better maybe we can get back to where JDB fold once arbitration is awarded.   

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