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Question about claims arising "before" arbitration opt-out


stylo_guy
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Hello!

New member here with a somewhat unusual situation.

Here's the background info...

1. I have an active contract with original company (current customer), I'll just call them "OC"

2. OC has a "broad" arbitration clause in their contract (applies to "affiliates", "agents", etc)

3. Due to some OC computer error, I somehow ended up referred to their 3rd party collection agency... despite my bill being current/paid on time

4. For a few months, 3rd party collector engaged in a calling campaign sending daily calls to my cell phone

5. I did not really notice at first since the calls were showing up as "unknown" or "possible scam" on my phone, I assumed they were just more scam calls until I finally answered one out of curiosity

6. Confused and not knowing what was going on (since my OC payments are current), I sent 3rd party collector the usual "cease & desist" letters to have a paper-trail

7. 3rd party collector continued to call despite these multiple requests for them to stop calling

8. After some investigation/back and forth with OC, the issue was cleared up and the calls ceased about a week later

9. I recently re-negotiated my contract/services with OC and this time properly opted-out within the "30 days" arbitration opt-out window

 

MY QUESTION IS: because I have now "officially" opted-out of the arbitration clause, would I now be able to sue 3rd party collector in Federal court? Or would any violations of FDCPA/TCPA/etc have to happen "after" the opt-out for me to be able to pursue such a claim?

 

My problem is not really with the OC, but I would really like to somehow sue 3rd party collector (if possible) for their conduct. I documented things pretty well as far as 3rd party collector goes: I sent letters certified mail, took screenshots, and so forth.

For context, I have filed a few consumer law cases in Federal court before, and that is where I am most comfortable since that's where the big horsepower is at/highest settlements.

I have 0 experience with arbitration so would prefer to stay out of there since it's unknown to me and plus I hear the settlements/payouts are much smaller. I also hear the arbitrators are rigged and favor the company most of the time, but that's just an internet rumor I hear... again, I don't have any actual experience with arbitration at this time.

Thanks for reading, I'm interested to see what your guys thoughts on this are

 

 

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You could file your case in federal court and state that you have no contract with the Debt Collector since the debt was in error. The worst that will happen is that the court will send you to arbitration. You could also start an arbitration case against the collectors since it will only cost you $250. They will probably call you and ask what it will take to settle because otherwise it will cost them thousands of dollars for them to defend the case.

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56 minutes ago, WhoCares1000 said:

You could file your case in federal court and state that you have no contract with the Debt Collector since the debt was in error. The worst that will happen is that the court will send you to arbitration. You could also start an arbitration case against the collectors since it will only cost you $250. They will probably call you and ask what it will take to settle because otherwise it will cost them thousands of dollars for them to defend the case.

I have been carefully doing my homework on this 3rd party collector. Skimming thru some recent cases of theirs on PACER (where they were sued) they have filed "Motion to Compel Arbitration" as a defense to FDCPA and TCPA claims on more than one occasion - and the Federal courts have granted them.

No further details appear on the record, so I'm assuming the cases settled in arbitration or otherwise disappeared.

If I were to file an arbitration case against this 3rd party collector, would OC pay the arbitration fees and get "drawn into it"... or would 3rd party collector pay the fees? How does that work?

Like I said, I have no issues with the OC, just with this 3rd party company that collects on their behalf.

As far as I know, I only have an arbitration clause with the OC, but the 3rd party collector was acting as an "agent" of the OC (as they sure like to emphasize in their MTC documents). So if I went the arbitration route for my FDCPA/TCPA claims how would I meet the following requirement on the arbitration "consumer complaint" form:?

Quote

7. Send a copy of this completed form to the AAA together with:

• A clear, legible copy of the contract containing the parties’ agreement to arbitrate disputes;

Would I simply attach a copy of the OC's contract/arbitration section?? What if 3rd party collector comes back and says "we don't have a contract with you, we don't have to do that"? This arbitration stuff is confusing to me lol

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Quote

I have been carefully doing my homework on this 3rd party collector. Skimming thru some recent cases of theirs on PACER (where they were sued) they have filed "Motion to Compel Arbitration" as a defense to FDCPA and TCPA claims on more than one occasion - and the Federal courts have granted them.

No further details appear on the record, so I'm assuming the cases settled in arbitration or otherwise disappeared.

Then Arbitration is the way to go. Simply file your case with AAA.

Quote

If I were to file an arbitration case against this 3rd party collector, would OC pay the arbitration fees and get "drawn into it"... or would 3rd party collector pay the fees? How does that work?

Like I said, I have no issues with the OC, just with this 3rd party company that collects on their behalf.

Do they really want to drag what could be a multi million dollar client into a a case where they violated the law? If they did try to drag the OC into this, I would call the OC's attorney and ask them why they would do business with a company that breaks the law and them blames it on their customers.

Quote

As far as I know, I only have an arbitration clause with the OC, but the 3rd party collector was acting as an "agent" of the OC (as they sure like to emphasize in their MTC documents). So if I went the arbitration route for my FDCPA/TCPA claims how would I meet the following requirement on the arbitration "consumer complaint" form:?

Quote

7. Send a copy of this completed form to the AAA together with:

• A clear, legible copy of the contract containing the parties’ agreement to arbitrate disputes;

Would I simply attach a copy of the OC's contract/arbitration section?? What if 3rd party collector comes back and says "we don't have a contract with you, we don't have to do that"? This arbitration stuff is confusing to me lol

You send the OC's contract that they would use in court to force you into arbitration. They cannot have their cake and eat it too. They cannot say that we do not have to do arbitration with you when you file for arbitration and then say that you must do arbitration in federal court. If they refuse to do arbitration, you sue them in Federal Court and when they try to bring it up, show the judge where you filed for arbitration and they refused to go along with it. Either the judge will void the arbitration clause in that case or force them back into arbitration (and if they do, I would request the arbitration filing fees for their refusal the first time around). I know many companies are trying to use arbitration as a method to avoid litigating claims but it is not supposed to be used that way, as Uber has found to their chagrin. They have a choice, arbitrate or federal court.

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13 hours ago, stylo_guy said:

I have been carefully doing my homework on this 3rd party collector. Skimming thru some recent cases of theirs on PACER (where they were sued) they have filed "Motion to Compel Arbitration" as a defense to FDCPA and TCPA claims on more than one occasion - and the Federal courts have granted them.

Were the motions to compel filed in response to class action lawsuits?  If so, the strategy of the collector was to avoid the cost of defending against and settling a class action.  It doesn’t mean they would motion to compel arbitration for an individual claim.

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Another thought I have had. You mention that the calls came in on your cell phone. Can you prove that they used a robo dailer? If you can, then any calls that came in after they received your cease and desist letter could also result in a TCPA claim and that is per violation rather than all rolled into one. That might make your claim high enough to make arbitration worth while.

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5 hours ago, BV80 said:

Were the motions to compel filed in response to class action lawsuits?  If so, the strategy of the collector was to avoid the cost of defending against and settling a class action.  It doesn’t mean they would motion to compel arbitration for an individual claim.

I was just checking the docket again, and only 1 was a TCPA class action while the 2-3 other cases featuring an MTC where individual claims. So yes, they do apparently file MTC's on individual claims.

I also checked the other cases where there was no MTC Arbitration filed, and those were apparently "wrong number" cases where the plaintiff didn't have a contract/relationship with OC. I see that those cases were closed shortly after a "notice of voluntary dismissal" appeared, so I'm assuming they settled because that's where the docket ends.

 

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If you see that they are going to force you into arbitration, then give it to them. Again, it costs you $250 and you probably have a minimum of a $2600 claim so go for it. It will cost them 5 figures to defend against the $250 claim. Use the old contract from the OC and state that this is a 3rd party hired by the OC that you have the issue with, not the OC. More likely than not, they will try to settle before first fees are paid by them depending on the total amount of the claim.

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