Author Topic: Claimant required to initiate arbitration: Bennett v. GE Money (D. Minn 2013)  (Read 2505 times)

0 Members and 1 Guest are viewing this topic.

rjaguar3

  • Valued Member
  • Posts: 95
http://scholar.google.com/scholar_case?case=15778401659944526914&hl=en&lr=lang_en&as_sdt=6,31&as_vis=1&oi=scholaralrt

"Even assuming Bennett's version of events is correct, Bennett remains the purported claimant. The onus is on her, not GE, to initiate arbitration."

coltfan1972

  • Valued Member
  • Posts: 6532
  • My Shoes Cost More Than Your House
What am I missing?  The party making the claim should be the party forced to file for arbitration.   That seems just common sense.  I see it posted on this board all the time when somebody is sued on a credit card debt to force the creditor to file for arbitration as they are bringing the cause of action. 
LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).

Bruno the JDB Killer

  • BANNED
  • Posts: 14304
The agreements all say about the same thing. "if either of us..........." You know the plaintiff doesn't want to pay for arbitration, that's why we use it as a financial tactic.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

cracrap

  • Valued Member
  • Posts: 694
The problem is that the defendant is ordered to initiate arbitration in credit card suits rather than the plainitffs because they are the moving party.

I have yet to figure out why defendants do not challenge orders ordering them to initiate the plaintiffs claim.

It simply makes no sense that a defendant would have to initiate a claim against themselves.

say nope to dope...ugghh to drugs...and God bless Ronald Reagan!!!


Quote from: smurfy

this really is not a spectator sport ... you have to know what your doing ... or you will get in very hot water very quickly

cgoodwin

  • Valued Member
  • Posts: 3502
I ALWAYS initiate. I want to control the venue selection.

I know that there is contract language that allow the consumer to change the venue, but I like to keep it simple and head straight to JAMS with my claims against the collector. If they want to arbitrate for the debt, they need to file a counterclaim.
If you think this is legal advise.......
ask yourself why I wasn't smart enough to avoid this myself?!?

coltfan1972

  • Valued Member
  • Posts: 6532
  • My Shoes Cost More Than Your House
It simply makes no sense that a defendant would have to initiate a claim against themselves.

Oh that is crazy.  They might be the moving party but they did not start the lawsuit.  Whoever initiates the underlying lawsuit should be the party required to also initiate arbitration.

If not that is basically suing yourself if a defendant that did not initiate the suit is ordered to initiate arbitration.  Whoever elects arbitration should be irrelevant as it relates to who is required to initiate. 

Either party should be allowed to initiate, like cgoodwin posted, but not required of the party which did not initiate the underlying lawsuit.
LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).

BellEbutton

  • Valued Member
  • Posts: 3440
Oh that is crazy.  They might be the moving party but they did not start the lawsuit.  Whoever initiates the underlying lawsuit should be the party required to also initiate arbitration.

If not that is basically suing yourself if a defendant that did not initiate the suit is ordered to initiate arbitration.  Whoever elects arbitration should be irrelevant as it relates to who is required to initiate. 

Either party should be allowed to initiate, like cgoodwin posted, but not required of the party which did not initiate the underlying lawsuit.

I have to disagree.  The party who wants arbitration should be the one to initiate it. 

Think about it.  CAs and JDBs can request arbitration also.  If you file an FDCPA complaint against a JDB, they could motion to compel arbitration and, based on what you said, you, the plaintiff, would have to pay to initiate it.

Cgoodwin made a good point.  The one who initiates has control over the selection of the arbitration forum.   In a debt collection case, if the OC or JDB has to initiate, they are going to choose the forum that benefits them.


duh

  • Valued Member
  • Posts: 1303
The problem is that the defendant is ordered to initiate arbitration in credit card suits rather than the plainitffs because they are the moving party.



This is not a problem.

When I motioned my court the judge told me "I" had to initiate even thopugh in my court order ( written by me) I specified the plaintiff to do so.

My judge calmly told me that the Plaintiff had expressed their desires to litigate a claim against me, and if I wanted private arbitration I had to initiate.



It simply makes no sense that a defendant would have to initiate a claim against themselves.



A defendant DOES NOT initiate claims against themselves.

First, there is nothing written that says a defendant cannot just stay in court and fight things out.

But when a defendant wants arbitration it is for two reasons.

A. If a claim is initiated in AAA or JAMS it is going to cost the plaintiff much money
to receive an arbitration award if they are given one. Often far more then what the actual account is worth.

Depending on circumstances a claimant/defendant stands a better chance at a far better settlement then if they go to court with very poor defenses.

B. A claimant/defendant's role is making the claims AGAINST the respondent/plaintiff's violations along the way. Not in support of the plaintiffs claim against him/her.

This is usually what makes the settlement agreement, if one happens, far more beneficial then in a court of law.

I am not an attorney. My posts about my experiences are for entertainment and  possibly educational purposes only.

If you need legal help, you should seek legal counsel.

silverzgirl

  • Valued Member
  • Posts: 3569
I ALWAYS initiate. I want to control the venue selection.


+1. In court, they whined about the cost of JAMS. I said I would agree to AAA but since I did all the footwork in JAMS, they would have to initiate in AAA.

It was so ordered that they initiate since they chose the venue. I chose the other times, and it cost them a lot to gain so little.
“Know your enemy and know yourself and you can fight a hundred battles without disaster.”  - Sun-Tzu

I am not a lawyer, nor do I play one on TV. I once thought I was a lawyer when I was litigating in a courtroom, but turns out I just had Patron induced bed spins and dreamed it all. Take my posts with a grain of salt...and a shot of Patron. But not so much you think you are a lawyer.

JTLoh

  • Valued Member
  • Posts: 601
Judges get this wrong all the time. It isn't a big deal to initiate so if a Judge makes a mistake and orders the defendant to initiate it is probably just easier to do so. Also, in a lot of cases the defendant WANTS to initiate so they can control venue.

However, if push comes to shove (appeals) the Plaintiff would be required to initiate even if the defendant is the one electing arbitration.
I back up my opinion with this Ohio Eighth District Court of Appeals case:

“Indeed, it would be nonsensical to require a defendant to commence arbitration of a claim against himself. Thus, where a defendant properly exercises a right to arbitration, it is incumbent upon the plaintiff to pursue its claims in arbitration once a stay of the action is granted.” See Capital One Bank (USA) N.A. v. Rotman, 2012-Ohio-480.

I have yet to see the opposite opinion from a higher court.

The issue is that sometimes you have to pick your battles. So if a local judge errors by requiring a defendant to initiate is that really a battle you want to fight? Not really, if you've WON the MTC with your only hurdle being initiation, appealing isn't worth it. Doesn't mean the Judge was right though.
« Last Edit: November 13, 2013 04:28:02 PM by JTLoh »

coltfan1972

  • Valued Member
  • Posts: 6532
  • My Shoes Cost More Than Your House
If you file an FDCPA complaint against a JDB, they could motion to compel arbitration and, based on what you said, you, the plaintiff, would have to pay to initiate it.

Maybe it is because I don't use arbitration, but this sounds fine to me.  I have to pay a filing fee and then get them served if I sue them for an FDCPA violation.  If I sue I should have to pay on the front end with the anticipation I'm going to win and get my costs back.   

And I agreed with cgoodwin in my previous posts.   I think it is a good idea if you want to take control.  I'm just talking about what is deemed mandatory.  I just think the party initiating the action should be the one mandated to get the ball rolling but under no cirmustances would somebody like cgoodwin be not allowed to move first if they wanted.
LexisNexis® Legal Newsroom- 05-17-2013 | 10:11 AM --

JONESBORO, Ark. - A federal judge in Arkansas on May 15 ruled that dismissal of a consumer's lawsuit against a debt collector is not proper because although the consumer posted messages on a website "in an odious manner," valid First Amendment concerns exist (Brandon Scroggin v. Credit Bureau of Jonesboro Inc., No. 12-0128, E.D. Ark.; 2013 U.S. Dist. Lexis 69070).

JTLoh

  • Valued Member
  • Posts: 601
Maybe it is because I don't use arbitration, but this sounds fine to me.....

It is fine and they can and will do this if they have an attorney who knows what he is doing. (Rare though)

That's also why it is a good idea to file your FDCPA claims in Arb first. Once they don't follow they have waived their right to arbitration. Then file in Federal Court and you smash any MTC Arb.

kdog

  • Suspended
  • Posts: 529
I chose to be ultra aggressive and initiate from the jump. This was before AAA decided to change their rules and ceased being the rubber stamping wallabies they once were. I am a control freak, what can I say? D went JDB on me and got it back...can't even find their picture on a milk carton. The bank too big to fail has changed their names to protect the innocent in my hometown. Even their lawyer "Wackered" out on me from his 40th floor perch overlooking the southwest shores of Lake Michigan. They have figured out it is cheaper to wave the white flag than to pursue this Casper the friendly DB Ghost. Saving money, having fun, living the DB dream and doing it at their expense. I got might have enough spare change to make an initial investment in that Coltfan's Pigsfeet Barbeque Sandwich that will be test marketed in the Greater Metropolitan Jonesboro Arkansas Area Burger Kings...Time to start loading up that BK "Have it your Way" card for the Holidays.

Admin0619

  • Administrator
  • *****
  • Posts: 1444
I chose to be ultra aggressive and initiate from the jump. This was before AAA decided to change their rules and ceased being the rubber stamping wallabies they once were. I am a control freak, what can I say? D went JDB on me and got it back...can't even find their picture on a milk carton. The bank too big to fail has changed their names to protect the innocent in my hometown. Even their lawyer "Wackered" out on me from his 40th floor perch overlooking the southwest shores of Lake Michigan. They have figured out it is cheaper to wave the white flag than to pursue this Casper the friendly DB Ghost. Saving money, having fun, living the DB dream and doing it at their expense. I got might have enough spare change to make an initial investment in that Coltfan's Pigsfeet Barbeque Sandwich that will be test marketed in the Greater Metropolitan Jonesboro Arkansas Area Burger Kings...Time to start loading up that BK "Have it your Way" card for the Holidays.

Please use line breaks between the paragraphs in your post. It streamlines the advice given, therefore making the information more easily understood by those who are still learning the steps needed to defend themselves.

If you have questions about post format as outlined in our ToS, please PM an Administrator.

The path to success in matters legal is paved in honing the craft of CONCISE communication. We would be in remiss to not strive to put our members on that path.

 

credit