Final brief for Arbitration (any help appreciated)

[Percyb]

Hello, 

@BrotherskeeperHere is the rough draft that I have so far.  My mind is boggled and I feel like a fish out of water.  Please ignore grammar and typos.  My family member is going to read through it and correct all that for me.  

I left off the info about the funny font ones because he said "they were never mailed to consumer" and the judge told me to take his word for it that it said it. I figured in the long run it wasn't something I needed to try and hang my hat on so to speak.  I tried to reiterate the law support violations and the testimony of records custodian.  I cited the cases but wasn't sure if I should be copy and pasting the pertinent parts or not.  Any feedback is welcome.  I tried to include the cases we discussed.  I have the font bigger just because I am working on a smaller screen makes it easier for me to see.  

 

edit.  Will rewrite thanks ? 

Edited June 24, 2021 by Percyb
Rework

[Brotherskeeper]

@Percyb When is the deadline to submit this? Your arguments should be be very clear. The court case citations are used to support the specific facts and elements of your arguments. Have you looked at an attorney prepared trial brief for guidance? Did you receive a copy of PRA's brief? I know this is very difficult and stressful. 

[Percyb]

@Brotherskeeper no. They haven’t.  I have a few days left.  

[Brotherskeeper]

@Percyb The details of your case are spread out in different threads. Below is what you wrote about your recent JAMS hearing. 

https://www.creditinfocenter.com/community/topic/334617-jams-hearing-update…/?tab=comments#comment-1399086 

1.)  "Attorney and custodian both said last payment date was December (3 days before they received ownership) answered no to never calling Oc to find out what the payment was.  The means of the payment.  The two funny font statements custodian claimed were never mailed to customer.  I still can’t see on the paper where they claimed it was written in those statements.   The judge said he could see it and told me just to take his word for it.  Then ruled the BOS admissible."  

2.)  "The judge did seems to understand our claims against the FDCPA and WCA violations.   The judge refused to let the attorney question it because he said attorney wasn’t allow to testify.   Essentially they placed over a dozen collection calls after the law suit was filed.   Luckily the attorney documented all the calls in discovery and couldn’t dispute them.   They tried to say it was them not there client that was responsible for the calls and the judge said nope your extension of your client."

3.)  "The terms and conditions state the finance charges and they were different then what was on the bills.    The lawyer tried to say that default interest rates change and who knows when it changed in this case.  I was like like the terms do not state interest rate can change in default.   If the interest rate in the terms agreed to is different then they should have questioned it, is my position.  It’s like classic robo suit. Filed and hope you win on a default judgement. "    

 

In paragraph 1, PRA claims to have purchased a  portfolio pool of accounts from Synchrony Bank that included your Mastercard account. At the time of the sale, your account was not in default, as your last payment was made 3 days before PRA took ownership, and no payment had been missed. At some later point in time, Synchrony Bank sent PRA documentation that your account was now in default. Two "funny font" statements reflect that last payment, the missed payment and the final balance owed, but those statements were never mailed to you? Based on the testimony of the PRA custodian of records. the arbitrator accepted those statements as admissible evidence of the last payment, the default of the account and the balance owed? The arbitrator accepted as admissible evidence the bill of sale that included your Mastercard account--even though it was not in default at the time of the sale? 

a.) Who created the "funny font" statements?

b.) When were they created?

c.) What was their purpose?

d.) Why were those statements never mailed to you?

e.) What evidence is there for the answers to the above questions? Where in the record is this evidence found? 

 

( Caveat: I am not an attorney. I do not know or understand many of the details of this case.) It appears to me that your strongest arguments are the more than a dozen collection calls and the disparity between the cardmember agreement's stated interest rate and the rate shown on the billing statements.

If you can state in your Brief the specific facts, cite the federal laws/WI state consumer laws that were violated, and support each violation with a fact and a citation to admissible evidence in the arb record, plus any court case rulings, you should prevail.  If PRA's ownership of your Mastercard account is not in dispute, then you will have to argue over the amount claimed as owed. If all payments made by you were credited by Synchrony, and you have no admissible evidence of a legitmate dispute from your side, then you will have to argue that the interest rate PRA is attempting to collect is not supported by the cardmember agreement PRA claims applies to your account. If you can't dispute the principal balance amount, then the amount of interest/fees they can legally claim is the ground to fight on. How far back in the monthly statements PRA submitted does the discrepancy in interest rate appear? You stated there is no default rate in the agreement's terms and conditions that retroactively applies to the pre-default balance. Is the cardmember agreement wrong or are the billing statements wrong? (A contract is a contract. A monthly billing statement is a snapshot in time.)  Absent another admissible Synchrony document demonstrating why the interest rate as charged on the billing statements is allowed, there is a dispute over the correct amount of interest. The arbitrator must decide which interest rate will apply. This rate will determine what amount he can award PRA, if he finds that PRA is entitled to collect from you. 

[Brotherskeeper]

@Percyb In your rough draft: 

Pg. 3:  "Attorney **** claimed that violations to the WCA were caused by her firm and not Portfolio Recovery Associates LLC. Per the case cited above, the Debt Collector is liable for their agents violations. Making them fully liable for FDCPA violations and WCA Violations."

1.) Did the attorney actually admit to violating the WCA during the hearing? Or, did she argue that if any violations of the WCA occurred, her firm--not Respondent PRA-- should be held responsible/liable? 

2.)  What specific WCA violations did you allege? 

 

Pg. 6:  "Wisconsin Chapter 427 Consumer Transactions
• 427.104(g) Communicate with the customer or a person related to the customer with such frequency or at such unusual hours or in such
• 427.104(h) Engage in other conduct which can reasonably be expected to threaten or harass the customer or a person related to the customer;
• https://docs.legis.wisconsin.gov/statutes/statutes/427.pdf
The documentation provided via discovery shows the Respondent making a total of 12 calls in an attempt to collect the debt after the Respondent had filed a case in Wisconsin Court. The respondent by filing the case in court and having the claimant served a summons stated to the court that Respondent had standing to bring the case and ask for a favorable judicial decision in the case. At the same time placing calls to the Claimants number to collect upon the debt that was before the court. Calls were meant to hurt, harass and harm the Claimant causing more emotional distress as Claimant was already dealing with the law suit and then harassing phone calls on top of the suit. "

1.)  Over what time period did these 12 calls occur? Were these calls before 8 am or after 9 pm? Were multiple calls placed too frequently? 

2.) What evidence do you have that these calls were "meant to hurt, harass and harm" you? 

3.) What evidence did you present to demonstrate how you were hurt, harassed and harmed? 

4.) Is it a strict violation of the WCA to place collection calls after a lawsuit is filed in Wisconsin court for the same debt? 

 

[Brotherskeeper]

@Percyb PRA has a conflict between their evidentiary exhibit copy of the account agreement's interest rate and the interest rate actually charged on the monthly billing statements submitted as evidence. The attorney offered an opinion not supported in the evidentiary record that this could be explained as a default rate. You stated that there is not a term in the account agreement that covers a default rate. Does Utah law allow for this? The arbitrator has to decide if he will allow an interest rate that is NOT expressly authorized by the agreement for account number xxxx placed in evidence by PRA. 

5 USCS § 1692f

1692f. Unfair practices
A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

[Brotherskeeper]

@Percyb @LaneBlane Do these clauses appear in the SC Synchrony Mastercard Account Agreement submitted by PRA?

"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."

"12. SURVIVAL. This Arbitration section shall survive the repayment of all amounts owed, the termination, cancellation or suspension of the Agreement
or your account or credit privileges, any legal proceeding, and any bankruptcy by you, to the extent consistent with applicable bankruptcy law. If this
Arbitration section conflicts with the applicable arbitration rules or the other provisions of the Agreement, this Arbitration section shall govern." 

[Percyb]

6 minutes ago, Brotherskeeper said:

@Percyb @LaneBlane Do these clauses appear in the SC Synchrony Mastercard Account Agreement submitted by PRA?

"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."

"12. SURVIVAL. This Arbitration section shall survive the repayment of all amounts owed, the termination, cancellation or suspension of the Agreement
or your account or credit privileges, any legal proceeding, and any bankruptcy by you, to the extent consistent with applicable bankruptcy law. If this
Arbitration section conflicts with the applicable arbitration rules or the other provisions of the Agreement, this Arbitration section shall govern." 

@Brotherskeeper no it says that as long as it’s  believed the claim is in good faith they will pay all fees for the arbitration.  And if you prevail attorneys cost will be paid … I can post the actual verbiage a bit later today