Arguments against my arbitration request

[shadow99]

I'd prefer not to say the who & where at this time in case the opposing attorney is watching. I don't mind sharing in PM if anyone is curious. I will update after it's over. 

So far, I have had 3 court dates with another approaching. 

After agreeing to arbitration on the 3 previous dates, they are now trying to fight it. 

In my state, the judge would only grant the MTC if they refused. They agreed each time, so it kept getting continued. 

In their response:

1. I only mentioned my claim (fair credit violations) and not theirs. Should I sue myself?

2. I included what they think is a third-party. It's actually the junk-debt buyer's first collection agency who ignored my request for validation. The attorney doesn't think they are related. 

3. I didn't file any counter claims for the fair credit violations or provide details. Wouldn't that be engaging in litigation? 

4. They claim the arbitration costs are excessive in relation to the amount in question, and they referenced a Utah state law (I am not in Utah but original creditor was. Contract says that This Note is governed by federal law and, to the extent that state law applies, the laws of the State of Utah) that says a contract provision may be unenforceable due to either procedural or substantial unconscionability.     This means they're trying to break their own contract???  This also seems to be the argument that the debtor makes when it's outside of consumer debt - not the creditor who wrote the contract. 

They also cited a previous case that's not a consumer case, but the party opposing the arbitration successfully claimed a hardship that allowed them to relocate the arbitration closer to them. So, I guess the JDB & attorney are going to claim financial hardship, that I can afford to move the arbitration out of state but they can't, and that the inequality of bargaining power is in my favor - and they have the absence of meaningful choice. 

Any thoughts? 

 

 

[Brotherskeeper]

@shadow69 Have you posted the arbitration clause of your agreement in another thread? 

https://www.beankinney.com/media/publication/390_Compelling and Staying Arbitration in Virginia _00986602xAC2B5_.pdf

INTERSECTION OF THE FAA AND VIRGINIA LAW

Although the FAA preempts state law to the extent that state law contradicts federal law, Virginia state courts apply state contract law to determine whether the parties have entered into an arbitration agreement (see Amchem Prods., 563 S.E.2d at 743 (in determining whether a contractual dispute is arbitrable, court applies Virginia substantive contract law); Mission Residential, LLC v. Triple Net Props., LLC, 654 S.E.2d 888, 890 (Va. 2008)).

If an agreement falls under the FAA, the state court applies the federal standard for arbitrability when determining whether to compel or stay arbitration, rather than evaluating these threshold questions under state law (see Southland v. Keating Corp., 465 U.S. 1, 12-13 (1984); see also Practice Note, Compelling and Enjoining Arbitration in US Federal Courts: Arbitrability (6-574-8707)). For a further discussion of various states’ procedural rules relating to arbitration, see Practice Note, Choosing an Arbitral Seat in the US (1-501-0913).

THRESHOLD ISSUES FOR THE COURT TO DECIDE

When deciding an application to stay or compel arbitration, the Virginia state court may not rule on the merits of the claims underlying the arbitration (Va. Code Ann. § 8.01-581.02(E)). The court instead plays a gatekeeping role that is limited to determining whether:

• A valid arbitration agreement exists (see Valid Arbitration Agreement).
• The arbitration agreement covers the parties’ dispute (see Scope of Arbitration Agreement).

(See Waterfront Marine Constr. v. N. End 49ers Sandbridge Bulkhead Groups A, B, and C, 468 S.E.2d 894, 898 (Va. 1996); see also BG Group PLC v. Argentina, 134 S. Ct. 1198, 1206-07 (2014).)

[shadow99]

Hi @brotherskeeper - I think I posted it in an earlier thread. 

Thank you for the information and links. I'm going to start putting together my arguments for court over the next few days and go over them daily so I don't miss things. 

Compared to what some people describe, our court is extremely casual at this point in the process. I'll be able to just verbally argue the points without filing anything. And, if that's not the case, I should easily get it continued since I received the information very late and the other side has already had at least 3. 

If nothing else, this entire experience has been very eye opening. I have seen a lot of people try to argue their case now, and no one else has mentioned arbitration. 

 

Reading over my contract, the arbitration part has this phrase so I think that overrules the other clause about Utah law for the rest of the contract. 

j) You and I acknowledge and agree that the arbitration agreement set forth in this Section 18 is made pursuant to a transaction involving interstate commerce, and thus the Federal Arbitration Act shall govern the interpretation and enforcement of this Section 18. This Section 18 shall survive the termination of this Note and the repayment of any or all amounts borrowed thereunder.

 

After thinking it over, I think this is a last ditch effort on their part. At the last court date, the judge gave their representative a bit of a whupping for not understanding arbitration and not having the power to make a decision. They had me sitting in the courtroom waiting for him to call the real attorney until I finally said I wasn't going to wait any more. They could dismiss or continue. 

[BV80]

13 hours ago, shadow99 said:

1. I only mentioned my claim (fair credit violations) and not theirs. Should I sue myself?

It doesn’t matter if the claims are yours or theirs.  Closely study the language in the arbitration provision.  What does it say about disputes and types of disputes.  Does it say that a dispute about your account cannot be arbitrated?

13 hours ago, shadow99 said:

2. I included what they think is a third-party. It's actually the junk-debt buyer's first collection agency who ignored my request for validation. The attorney doesn't think they are related. 

How did the CA ignore your request for validation?  For instance, did you send a timely request within 30 days of receiving the 30 day notice?  If so, did the CA continue collection efforts after receiving a timely request?  How long ago did this occur?

 

13 hours ago, shadow99 said:

4. They claim the arbitration costs are excessive in relation to the amount in question, and they referenced a Utah state law (I am not in Utah but original creditor was. Contract says that This Note is governed by federal law and, to the extent that state law applies, the laws of the State of Utah) that says a contract provision may be unenforceable due to either procedural or substantial unconscionability.     This means they're trying to break their own contract???  This also seems to be the argument that the debtor makes when it's outside of consumer debt - not the creditor who wrote the contract. 

See if your courts have made rulings regarding assignees stepping into the shoes of the creditors.  In other words, the creditor included  the arbitration provision in the agreement.  The JDB stepped into the shoes of the creditor.  So, they cannot rescind that to which they agreed when the allegedly purchased the account.  

[Brotherskeeper]

5 hours ago, BV80 said:

Closely study the language in the arbitration provision.  What does it say about disputes and types of disputes.  Does it say that a dispute about your account cannot be arbitrated?

^^This is what I was getting at. What does your arb provision say about the kinds of disputes that arb covers. You and the plaintiff may have different account disputes that are covered by the agreement's arb section. This part of the arb provision defines the "scope" of what disputes can be heard in arb. Your judge, according to Virginia Code and the FAA, will decide 1.) if there is a valid arb agreement (he already has) and, 2.) whether the disputes are covered or excluded by the agreement's arb provision.  You need to have the VA code, the FAA provision and the agreement's arb provision to quote from. 

[Brotherskeeper]

@shadow99 Is this the correct arb provision language from your other thread's MTC with attached agreement as Exhibit A? 

"3. The parties are bound by the Borrower Promissory Note. The Arbitration Agreement (Section 18) states among other things:

(a.) Any Claim shall be resolved, upon the election of either you or me, by binding arbitration administered by the American Arbitration Association or JAMS

(b) You and I agree that, by entering into this note, the parties are each waiving the right to a trial.

(c) Claim means any claim, controversy or dispute of any kind or nature between you and us.

(d) "You" and "your" mean WebBank, any person servicing this Note for WebBank, any subsequent holders of this Note or any interest in this Note, any person servicing this Note for such subsequent holder of this Note, and each of their respective parents, subsidiaries, affiliates, predecessors, successors, and assigns, as well as the officers, directors, and employees of each of them."

 

If I understand your previous thread, your motion to stay the case was granted (verbally from the bench) by your judge but your motion to compel plaintiff to arbitrate was not granted, but not denied either. This was because your plaintiff had no objection to arbitration until recently when plaintiff found our how much arb was going to cost them in JAMS. You have no signed court order to compel them to submit to JAMS. They are now trying to throw up arguments against your motion to compel arb to see what may stick with the judge.

19 hours ago, shadow99 said:

This Note is governed by federal law and, to the extent that state law applies, the laws of the State of Utah) that says a contract provision may be unenforceable due to either procedural or substantial unconscionability. 

It's already costing them a lot in court costs to mmake appearances to ask for repeated continuances. It will continue to cost them to remain in court.  It's costing you, too, to have to keep appearing. This argument is addressed in that legal white paper (with link in the above post) under Valid Arbitration Agreement on page 2. Plaintiff has the burden to prove the unconscionability of the agreement. What do the JAMS rules and/or your loan contract say about whether the arbitrator can award fees and costs back to prevailing party, especially if the arbitrator were to find your claims were frivilous? If this is allowed, plaintiff's costs won't be an issue. 

[shadow99]

13 hours ago, BV80 said:

It doesn’t matter if the claims are yours or theirs.  Closely study the language in the arbitration provision.  What does it say about disputes and types of disputes.  Does it say that a dispute about your account cannot be arbitrated?

@BV80 - the provision says any dispute. It does not say that anything is excluded from arbitration. 

 

13 hours ago, BV80 said:

How did the CA ignore your request for validation?  For instance, did you send a timely request within 30 days of receiving the 30 day notice?  If so, did the CA continue collection efforts after receiving a timely request?  How long ago did this occur?

I sent the request within 30 days of receiving the notice. They did not respond to it, but did continue to call. Then, the lawsuit happened. Right before that, the attorney's office was calling without identifying themselves and leaving messages that they were submitting the amount due for garnishment. I got the notice of the suit within 2 weeks of the phone calls. 

 

13 hours ago, BV80 said:

See if your courts have made rulings regarding assignees stepping into the shoes of the creditors.  In other words, the creditor included  the arbitration provision in the agreement.  The JDB stepped into the shoes of the creditor.  So, they cannot rescind that to which they agreed when the allegedly purchased the account.

Their objection did not try to say that the arbitration clause did not apply - only that I did not properly file with JAMS so that I've failed to properly elect arbitration and that the fees are unconscionable. They also have taken case citations out of context in which the debtor could not afford to pay unspecified fees and the ones I've read thoroughly still resulted in arbitration being ordered. But - thanks for that suggestion. It's a new idea for me.  I'll have to figure out how to find that information. 

 

6 hours ago, Brotherskeeper said:

 Is this the correct arb provision language from your other thread's MTC with attached agreement as Exhibit A? 

@brotherskeeper - that is correct. 

On the first court date, the attorney in court agreed to arbitration. Virginia law only says that the judge should order arbitration if the opposing party refuses. They have not refused until now, so this is the first real opportunity to get the motion. 

 

6 hours ago, Brotherskeeper said:

What do the JAMS rules and/or your loan contract say about whether the arbitrator can award fees and costs back to prevailing party, especially if the arbitrator were to find your claims were frivilous?

The contract states that if they win, they will not ask me to reimburse them for their fees. If I win, they will reimburse me for mine. 

Also, the contract mentions Utah law outside of the arbitration clause, but within the arbitration clause it says the following. I think I can successfully argue using the following that Utah law does not apply. 

You and I acknowledge and agree that the arbitration agreement set forth in this Section 18 is made pursuant to a transaction involving interstate commerce, and thus the Federal Arbitration Act shall govern the interpretation and enforcement of this Section 18. This Section 18 shall survive the termination of this Note and the repayment of any or all amounts borrowed thereunder.

 

In any account, I don't think the lawyer knows what they're doing. In their argument about the cost, they go from unaffordable (I dare say that they can afford it) to not cost effective (because the fees will exceed what is owed) to unconscionable and unenforceable. They have also grossly inflated the JAMS administration fees in an attempt to make it seem worse. Until they get to the arbitrator fees, they're saying they estimate it to be $4750 plus another $1750 for them to counter & a potential $3000 for a 3-way suit. It's really just my other $1500 plus $1750 if they need to file the countersuit.  $3250 is still more than I owe, but they're trying to make it out to be a potential $9500 before they get to the arbitrator. I agree they're throwing stuff out there to see what sticks. 

 

 

 

[kittycat]

2 hours ago, shadow99 said:

Also, the contract mentions Utah law outside of the arbitration clause, but within the arbitration clause it says the following. I think I can successfully argue using the following that Utah law does not apply.

You and I acknowledge and agree that the arbitration agreement set forth in this Section 18 is made pursuant to a transaction involving interstate commerce, and thus the Federal Arbitration Act shall govern the interpretation and enforcement of this Section 18. This Section 18 shall survive the termination of this Note and the repayment of any or all amounts borrowed thereunder.

As others have mentioned, usually state law, not federal law, provides the standard for unconscionability.

Although you're correct that the potentially applicable state law is usually also within the arbitration clause itself.  Something like this:

Quote

This Arbitration section of your Agreement is governed by the Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the FAA.

Even if language about state law is missing from the arbitration clause, state law is probably the only law that can be applied to an argument about the costliness of arbitration (that the arbitration agreement is substantively unconscionable).

You're also correct that the debt buyer is effectively the "drafting party" for the purpose of any challenges to the adhesion contract language.  It is unusual for the drafting party to claim that the contract that they drafted is substantively unconscionable and then to ask the court to "save us from ourselves".

Quote

"substantive unconscionability occurs where a contract has "terms so one-sided as to oppress or unfairly surprise an innocent party, an overall imbalance in the obligations and rights imposed by the bargain, and significant cost-price disparity."

The drafting party of an adhesion contract is rarely an innocent party that can claim innocence, one-sidedness (against the drafting party!), or complain about the cost structure that they devised.

Of course, the debt buyer can argue that they aren't literally the drafting party, they just bought the thing.  But they bought all of the obligations.

In Lester v PRA (see here), PRA argued for the application of UTAH CODE ANN. § 70A-9a-404, which provides that, subject to exceptions not relevant here, "the rights of an assignee are subject to . . . all terms of the agreement between the account debtor and assignor and any defense or claim in recoupment arising from the transaction that gave rise to the contract[.]" UTAH CODE ANN. § 70A-9a-404(a).

You don't mention what utah law or cases are cited by the debt buyer in your case.

Is there any delegation or severability language in the arbitration agreement?

[BV80]

@shadow99

It is well settled that an assignee of a contract obtains his rights from the assignor and, thus, "stands in the shoes" of the assignor and acquires the same rights and liabilities as if he had been an original party to the contract. See Union Recovery Ltd. Partnership v. Horton, 252 Va. 418, 423, 477 S.E.2d 521, 523 (1996).

 

[shadow99]

7 hours ago, kittycat said:

You don't mention what utah law or cases are cited by the debt buyer in your case.

Is there any delegation or severability language in the arbitration agreement?

I don't think so. In fact, it states that the arbitration clause survives the rest of the contract. I'm sure they were trying to protect themselves from class action suits. 

I have not read them all, but these are the cases they've cited:

Raasch v NCR Corp, 254 F Supp 2d 847, 851 (S.D. Ohio 2003) - I have not read this one yet. They used it to back up this statement:  treat the facts in ruling a summary judgment motion … in light most favorable to the non-moving party

Green Tree Financial Corp Alabama v Randolph, 531 US 79, 90, 148, L Ed 2d 373, 121 S Ct 513(2000)  - in this one, the cost of arbitration was not addressed in the contract, so the debtor (who had purchased a mobile home) was claiming it put them at risk. I believe it still went to arbitration. They used it for this statement:  party bears the burden of of showing likelihood of incurring such costs

College Park Pentecostal Holiness Church v General Steel Corp, 847 F Supp 2d 807, 813 (D. Md. 2012) - A church was suing their contractor so they were the debtor. They said they could not AFFORD the cost of arbitration and had to submit their financials to prove it. I believe it still went to arbitration, but the venue was moved from Colorado to Maryland to help contain their costs. They were backing up this statement: Prohibitive cost may be found to be unconscionable under the state law applicable to the agreement.

Knight Adjustment Bureau V Lewis, 210 UT App 40, 228 P.3d 754, 756 - I have not read this one yet. They used it to back up this statement: To determine substantive unconscionability, the agreement is reviewed for the relative fairness of the obligations assumed in its terms.

They're argument goes from unaffordable - I believe they can afford it. 

To excessive cost in relation to the amount in question.  I'm not sure it rises to that level. I agree that it's not cost effective for them. That was the point. But, I'm not sure it's excessive.  

To unconscionable.  Which I still don't agree with. It's 1500 for my filing, 1750 if they need to file a counterclaim plus arbitrator fees & expenses which the contract limits to $1000.  So, that's $4250 vs just under $3000.  Also, I read that unconscionable also has to involve unequal bargaining strength, etc. and I obviously do not have more bargaining strength than they do. 

I will try to redact their document later and post it. Those of you who are experience with this might find it interesting. 

[shadow99]

5 hours ago, BV80 said:

@shadow99

It is well settled that an assignee of a contract obtains his rights from the assignor and, thus, "stands in the shoes" of the assignor and acquires the same rights and liabilities as if he had been an original party to the contract. See Union Recovery Ltd. Partnership v. Horton, 252 Va. 418, 423, 477 S.E.2d 521, 523 (1996).

 

@BV80Thank you! Thank you! Thank you!  I was searching Google Scholar last night for hours after your suggestion and just couldn't find it. 

You are a lifesaver!  

[shadow99]

I've attached a copy of their opposition. 

Response & Opposition redacted 2.pdf

[BackFromTheDebt]

I read their hand waving argument. 

My legal terminology is rusty, but I think this is what is called a contract of adhesion, meaning the consumer didn't have an opportunity to negotiate the contract.  It was take it or leave it.  Contracts of adhesion are to be interpreted in a manner favorable to the consumer.  

The OC put in the arbitration provision because in the aggregate the provision is beneficial to the OC.  In some individual cases the provision may benefit the consumer, rather than the creditor, but the OC decided they were willing to pay that price to accrue the benefits.  And when the JDB bought the contract, they took on the obligations as well as the benefits of the arbitration provision.  

In a nutshell, the JDB wants the judge to unilaterally rewrite the contract after the fact because in this particular case a provision put in the contract of adhesion to protect the creditors is inconvenient to the creditor.  Despite the fact that such a rewriting of the contract would violate rulings by the US Supreme Court.  

I came from a legal family.  One thing my father drilled into me is that judges tend to follow contracts.  From what the OP said, the judge in this case seems to be losing patience with the Plaintiff's attorney's antics.  Well, in the vast, vast majority of the time, the judge will throw out the Plaintiff's arguments and enforce the contract. 

[shadow99]

2 hours ago, BackFromTheDebt said:

the judge in this case seems to be losing patience with the Plaintiff's attorney's antics

It's been a different judge and attorney each time, but I remind them that we've been through this before. I think I might get one of the previous judges again when I go back. They can't have but so many to put in the rotation. 

Last time, I asked for the MTC to be granted. They said I need to pay the fees. I said I've paid, here's my receipt. 

After passing the receipt around, the attorney says, that's not a full payment. The defendant needs to pay $1500 more. 

I pull out the demand for arbitration which has all the rules and explain that in consumer arbitration, the creditor pays the remainder of the fees. It's also in the contract that they pay ALL fees. (I could demand my $250 back at some point.)

The attorney is dumbfounded after the judge reads the paperwork, agrees, then explains the wording to him. He says, I'm not part of the firm, I'll have to call them and ask them what to do. And, they left me sitting there so long, I finally asked the judge if I could leave and check back for a continuance date since they were ill prepared. She agreed and let me go. That may have been a mistake, but it's OK.  Hopefully, it'll all work out find on the pending date. 

This time, I'll be prepared with a simple argument - the contract says I can elect arbitration, I have been electing, they are refusing, VA law says if they refuse, the court SHALL grant the MTC without weighing the merits of the case. It's their contract, etc. 

If they want to argue their opposition, I can argue back on most of it, so that's OK too. 

Luckily, this court seems very casual, so I don't think I'll get in trouble by not being experienced. The judges actually take the time to explain the rules of court to many of the defendants who show up. I am, however, learning a lot. 

Another question for you guys. When you cite a court case in court, should you have it printed out and with you in court?  Or do judges and lawyers have this stuff committed to memory?

 

[BackFromTheDebt]

38 minutes ago, shadow99 said:

 

Another question for you guys. When you cite a court case in court, should you have it printed out and with you in court?  Or do judges and lawyers have this stuff committed to memory?

 

No judge has every case committed to memory.  The purpose of a written citation is so the judge can look up the case if needed.  Most of the time that will be in the law books or whatever in chambers.  I once had a case in which a magistrate had online law books and would look up cases cited online during the trial.  That was a somewhat informal procedure.  

One thing to keep in mind -- if a previous judge in this case made a ruling, and the opposing attorney is asking the new judge to rule the opposite, then make sure to point out to the new judge that a previous judge in the case already made a ruling on the subject, and what the ruling was.  

[shadow99]

58 minutes ago, BackFromTheDebt said:

One thing to keep in mind -- if a previous judge in this case made a ruling, and the opposing attorney is asking the new judge to rule the opposite, then make sure to point out to the new judge that a previous judge in the case already made a ruling on the subject, and what the ruling was.  

Thank you. So far, all the judges have done is listen and continue.

I point out that this has came up in front of Judge A, B & C and the plaintiff agreed to arbitration without objection on those dates. 

[kittycat]

7 hours ago, shadow99 said:

 

12 hours ago, BV80 said:

@shadow99

It is well settled that an assignee of a contract obtains his rights from the assignor and, thus, "stands in the shoes" of the assignor and acquires the same rights and liabilities as if he had been an original party to the contract. See Union Recovery Ltd. Partnership v. Horton, 252 Va. 418, 423, 477 S.E.2d 521, 523 (1996).

 

@BV80Thank you! Thank you! Thank you!  I was searching Google Scholar last night for hours after your suggestion and just couldn't find it. 

You are a lifesaver!  

That case is fine if virginia state law is applicable to the agreement.  If you find a utah case, you can argue in the alternative.

 

[BV80]

27 minutes ago, kittycat said:

That case is fine if virginia state law is applicable to the agreement.  If you find a utah case, you can argue in the alternative.

 

The OP would have BOTH VA and UT law to support his claim.  The judge would have no excuse to deny the MTC based upon an assignee vs. original creditor.

[kittycat]

25 minutes ago, BV80 said:

The OP would have BOTH VA and UT law to support his claim.

Would have both from what, just Union Recovery (National Bank)?

 

13 hours ago, BV80 said:

It is well settled that an assignee of a contract obtains his rights from the assignor and, thus, "stands in the shoes" of the assignor and acquires the same rights and liabilities as if he had been an original party to the contract. See Union Recovery Ltd. Partnership v. Horton, 252 Va. 418, 423, 477 S.E.2d 521, 523 (1996).

 Where did you pull that quote from?  I read that section beginning with; "It is well established law in Virginia..." 

 

35 minutes ago, BV80 said:

The judge would have no excuse to deny the MTC based upon an assignee vs. original creditor.

The debt buyer doesn't exactly make that argument.  Their substantive unconscionability argument doesn't depend on the rights and liabilities of the assignee.

But the substantive unconscionability argument is weaker when it comes from the party that drafted the agreement.

The OP would be making the arguments about the effect of the assignment in the first instance, in order to weaken the plaintiff's substantive unconscionability argument.

Whether the choice of law language in the agreement applies would determine which state law provides the standard for the unconscionability argument.

[shadow99]

These show 16 about Utah law applying and 18, the arbitration clause. 

Thanks for the feedback and discussion. I'm digesting it all. 

[BV80]

26 minutes ago, kittycat said:

Would have both from what, just Union Recovery (National Bank)?

He would UT code which you cited in your post in Lester v. PRA.and VA case law from the VA Supreme Court.  

 

26 minutes ago, kittycat said:

Where did you pull that quote from?  I read that section beginning with; "It is well established law in Virginia.

It was “pulled” from a VA Court of Appeals case citing Union.  Considering the referenced case law is from VA, it is well established in VA.  That’s why it was cited “See Union Recovery...” and provided the exact page where the “well establshed” ruling was made.

26 minutes ago, kittycat said:

The debt buyer doesn't exactly make that argument.  Their substantive unconscionability argument doesn't depend on the rights and liabilities of the assignee.

I didn’t claim they did make that argument.  It was simply to make sure the judge is well-informed as to responsibilities of assignees of contracts.  And it does help the argument that an assignee which steps into the shoes of an OC is stepping into the shoes of the drafter of the arbitration provision.  By purchasing the account and stepping into the shoes of the creditor which drafted the arbitration provision,  they agreed to the terms of the cardmember agreement, as well as, the arbitration provision.

[shadow99]

This is interesting to me. 

They cite Knight Adjustment Bureau V Lewis, 210 UT App 40, 228 P.3d 754, 756 - to back up this statement: To determine substantive unconscionability, the agreement is reviewed for the relative fairness of the obligations assumed in its terms.

In that case, the lower court changed awarded the case to the Plaintiff, but lowered the interest rate from 21% to 10% on the defaulted loan for Lewis because the judge said it was "outrageous", which someone later equated to unconscionable. The plaintiff then appealed to get the interest rate raised back to 21% per the contract on the judgment and won.  So, by Utah law, it was not unconscionable. 

For citations, what actually happens in the case doesn't matter? Just phrases taken out of context?

There is this quote from the case:

Unconscionability "include[s] an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party."

I think that they had a meaningful choice. They had the choice to buy or not buy the debt. 

[BV80]

33 minutes ago, shadow99 said:

This is interesting to me. 

They cite Knight Adjustment Bureau V Lewis, 210 UT App 40, 228 P.3d 754, 756 - to back up this statement: To determine substantive unconscionability, the agreement is reviewed for the relative fairness of the obligations assumed in its terms.

In that case, the lower court changed awarded the case to the Plaintiff, but lowered the interest rate from 21% to 10% on the defaulted loan for Lewis because the judge said it was "outrageous", which someone later equated to unconscionable. The plaintiff then appealed to get the interest rate raised back to 21% per the contract on the judgment and won.  So, by Utah law, it was not unconscionable. 

For citations, what actually happens in the case doesn't matter? Just phrases taken out of context?

There is this quote from the case:

Unconscionability "include[s] an absence of meaningful choice on the part of one of the parties together with contract terms which are unreasonably favorable to the other party."

I think that they had a meaningful choice. They had the choice to buy or not buy the debt. 

Read the case law cited in Knight Adjustment Bureau, particularly Sosa v. Paolos and Cantamar, LLC v. Champagne.  

[shadow99]

2 hours ago, BV80 said:

Read the case law cited in Knight Adjustment Bureau, particularly Sosa v. Paolos and Cantamar, LLC v. Champagne.  

From that, was I supposed to pick up on procedural and substantive unconscionability?  

I can't see how they could claim procedural unconscionability since the side that wrote the contract would be in the stronger bargaining position and have more negotiating power. For substantive unconscionability, at the time the contract was created, it would have been one-sided towards the original creditor. I still don't think it's one sided toward me or oppressive to the JDB.  

Under the substantive unconscionability prong, we "focus[] on the contents of the agreement." Id. (quotations and citation omitted). "Even if a contract term is unreasonable or more advantageous to one party, the contract, without more, is not unconscionable." Id. Instead, the terms must be "'so one-sided as to oppress or unfairly surprise an innocent party or . . . there exists an overall imbalance in the obligations and rights imposed by the bargain . . . according to the mores and business practices of the time and place.'" Id. (second omission in original) (quoting Sosa, 924 P.2d at 361).

I like this quote too:

Courts will not "assume the paternalistic role of declaring that one who has freely bound himself need not perform because the bargain is not favorable." Bekins, 664 P.2d at 459

I'll have to read through it all several times. I'm sure they wouldn't expect me to cite Utah law if it came to that. Although I feel like I'm going down the rabbit hole now. 

 

[shadow99]

After reading a a bunch of cases, laws, definitions, etc, I think this will be my strategy. What do you guys think?

I will trust that the judge knows the law and will apply it. So far, that has been my observation in court.  So, I will keep it simple, but have printouts & notes as backup if I need to go there. 

1. I am electing arbitration and respectfully ask for the MTC to be granted per the contract. If the other party refuses, Virginia law states that the MTC should be granted without consideration of the merits. After agreeing in court with no objections or response 3 times, they are now refusing. 

2. The duplicate case part is just bogus. (I won't say that in court). I don't think I have to duplicate the case to properly elect arbitration. The contract allows for any dispute to go to arbitration, so I could have a case for the violations. 

3. The plaintiff is the assignee so they have stepped into the shoes of the OC. In a contract of adhesion, the party who wrote the contract (the OC) would be the one with the strongest bargaining power. Unconscionability involves extremely unjust or one-sided terms that favor the party with the strongest bargaining power. To be unconscionable, the contract must have been so when it was written. If it's a good bargain/deal/agreement when it was written, it does not become unconscionable later because it becomes a bad deal to either party.