Confused about starting the arbitration process (help me out here)

[stylo_guy]

So here's the situation in a nutshell:

- I have cable/internet services thru Telecom company 

- Telecom company has arbitration provision in it's contract

- Telecom company outsources "equipment collections" to a 3rd party collection agency

- 3rd party collection agency violated FDCPA while attempting to collect cable box

- I wish to file a simple arbitration claim for the FDCPA, but not sure which entity should be named on the arbitration forms/paperwork... should my documents name Telecom company or 3rd party collector as the defendant?? I don't really have an issue with Telecom company, mainly wanting to go after this 3rd party collector

As a side-note, I've done my homework on this collection outfit over on PACER, and they themselves have moved to compel/move the cases to arbitration when they were sued in Federal court. In the court documents they explicitly cite the arbitration provision of Telecom company's contract as their defense. Just want to make sure I do this right the first time, and that all starts with the basic paperwork/who's name gets put on there.

 

[BV80]

5 hours ago, stylo_guy said:

So here's the situation in a nutshell:

- I have cable/internet services thru Telecom company 

- Telecom company has arbitration provision in it's contract

- Telecom company outsources "equipment collections" to a 3rd party collection agency

- 3rd party collection agency violated FDCPA while attempting to collect cable box

- I wish to file a simple arbitration claim for the FDCPA, but not sure which entity should be named on the arbitration forms/paperwork... should my documents name Telecom company or 3rd party collector as the defendant?? I don't really have an issue with Telecom company, mainly wanting to go after this 3rd party collector

As a side-note, I've done my homework on this collection outfit over on PACER, and they themselves have moved to compel/move the cases to arbitration when they were sued in Federal court. In the court documents they explicitly cite the arbitration provision of Telecom company's contract as their defense. Just want to make sure I do this right the first time, and that all starts with the basic paperwork/who's name gets put on there.

 

The FDCPA does not apply to Telecom because it is not a debt collector.

When did the violation occur?

What does the arbitration provision say in regard to who is bound by the provision?

 

[stylo_guy]

"The FDCPA does not apply to Telecom because it is not a debt collector."

Disagree, otherwise these lawyers wouldn't be putting FDCPA allegations in their complaints over on PACER. I'm guessing it probably does apply if it's good enough to include such allegations in federal court.

"When did the violation occur?"

Around end of last year, so still well within the "1 year" limit for filing claims.

"What does the arbitration provision say in regard to who is bound by the provision?"

This is the text from the agreement:

Quote

As used in this Arbitration Provision, “us” and “we” means [Telecom company] and any of its parents, subsidiaries, and other affiliates, each of their respective predecessors, successors, and assigns, and each of their respective officers, directors, employees, and agents; and “you” means you and any users or beneficiaries of the Services.

Over on PACER the defense attorneys for 3rd party collector literally cite being an "agent" of Telecom company under this clause in their defense documents ("Motion to Dismiss", "Motion to Compel", etc), using that as their main defense to compel arbitration/move the cases out. So they seem to be bound by it or they wouldn't be mentioning the arbitration clause as a defense.

 

[BV80]

1 hour ago, stylo_guy said:

Disagree, otherwise these lawyers wouldn't be putting FDCPA allegations in their complaints over on PACER. I'm guessing it probably does apply if it's good enough to include such allegations in federal court.

The only time the FDCPA covers original creditors is if a creditor uses “any name other than his own” that indicates a debt is being collected.  Just because an attorney puts it in an allegation doesn’t mean the court agrees.  Lawyers include things all the time that they can’t prove and courts rule against.  The allegations still must be proven in court. That’s one of the reasons appeals courts exist.  Plaintiffs file appeals because the lower court ruled against the allegations the lawyers put in the complaints.  

From the U. S. Supreme Court:

Henson v. Santander Consumer USA, Inc. (2017)

“Under the FDCPA, a creditor collecting debts on its own behalf is not a ‘debt collector.’" 15 U.S.C. § 1692a(6).  Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718, 1721 (2017).

 

From the 10th Circuit Court of Appeals which includes the Colorado federal court.

Ladouceur v. Fargo (10th Circuit Court of Appeals, 2017)

“The FDCPA governs the conduct of a ‘debt collector.’It defines such a debt collector to be ‘any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another’ or ‘any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.’ 15 U.S.C. § 1692a(6).”

The court also stated:

”The legislative history of section 1692a(6) indicates conclusively that a debt collector [under the FDCPA] does not include the consumer's creditors…”.  “Thus, the district court correctly concluded that Wells Fargo was not a debt collector as to the Ladouceurs' loans, and we need not address their remaining FDCPA arguments.”

In regard to arbitration, based upon the language in the agreement, a debt collection agency would seem to be an agent and bound by the provision.