Author Topic: Filing a MTC Arb after a Defendant files a MTD  (Read 5084 times)

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excelsior

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Re: Filing a MTC Arb after a Defendant files a MTD
« Reply #15 on: February 17, 2015 07:45:46 PM »

Bruno the JDB Killer

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Re: Filing a MTC Arb after a Defendant files a MTD
« Reply #16 on: February 17, 2015 08:06:04 PM »
Let's say that the issue is this:  JDB pulled CR but did not have assignment from any creditor to pull and owns no account. 




I remember researching this. There is a section of the FCRA that allows pulls for "investment purposes." A JDB can make a pull to determine if any of the account holders in the portfolio are worth pursuing in collections.

n a suit brought by the consumer strictly on the basis of the violations of the FDCPA and state consumer protection laws, the contract is, in no way, germane to the suit.

Hmmm. Is it? These contracts are drafted in such broad language so as to include any dispute arising from the contract or any actions of any party, etc. as a result of such dispute. When they violate state or federal law in the course of their contractual collections activity, they risk being sued. The contract does not indemnify them against this. It would be absurd to claim that it did, considering that the contract is the instrument that allowed them to pursue collections in the first place.
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shellawella

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Re: Filing a MTC Arb after a Defendant files a MTD
« Reply #17 on: February 17, 2015 08:34:33 PM »
Quote
Note, too, that the creditor in and FDCPA suit is not allowed to counterclaim for the underlying debt, so why should the creditor be able to claim a binding contractual obligation for something on which he has no right to claim?

Don't want to hijack, but care to elaborate on this?

What if consumer files FDCPA suit against CA along with claims against OC, then OC files within the FDCPA suit trying to confirm an award ("debt")?
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shellawella

Bruno the JDB Killer

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Re: Filing a MTC Arb after a Defendant files a MTD
« Reply #18 on: February 17, 2015 09:39:16 PM »
You cannot sue an OC under the FDCPA, so this scenario would probably not happen.  An award from arbitration is separate, you would have a natural defense of res judicata. That would not be a valid counterclaim since they already won. they wouldn't even need it. The CA has no authority to counterclaim for the OC's award.
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shellawella

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Re: Filing a MTC Arb after a Defendant files a MTD
« Reply #19 on: February 17, 2015 10:18:06 PM »
Bruno, take time to read what I wrote, then respond.

Consumer files suit against CA(FDCPA) and OC(tort), OC counters to confirm an award IN the consumers suit.
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cgoodwin

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Re: Filing a MTC Arb after a Defendant files a MTD
« Reply #20 on: February 18, 2015 12:41:06 AM »
This happened in my district when a debt collector filed MTC.

http://scholar.google.com/scholar_case?case=17806761913762576412&q=cach+llc+in+illinois&hl=en&as_sdt=2,14

Nice find, but it would not apply in the OP situation.  The reason that the MTC was denied in McGinnis v. JOHN C. BONEWICZ, PC, was because the Bonewicz was acting as a  collection agency and the language of the arbitration agreements definition of "We" did not include collection agencies.  In the OP's situation, it is a JDB.  Since a JDB buys the debt, they step into the shoes of the original party to the contract so therefore would become the "We" and could successfully compel arbitration.

The court took the extra step to affirm that the FDCPA claim WOULD be arbitratable if Bonewicz was able compel arbitration under the contract terms.

So yes, FDCPA violations are subject to arbitration even according to your cite.
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howucantoo

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Re: Filing a MTC Arb after a Defendant files a MTD
« Reply #21 on: February 18, 2015 01:19:14 AM »
Okay.

Here is the second one  ;)

Webb et al vs Midland t al. NDIL
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cgoodwin

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Re: Filing a MTC Arb after a Defendant files a MTD
« Reply #22 on: February 18, 2015 01:38:44 AM »
Okay.

Here is the second one  ;)

Webb et al vs Midland t al. NDIL

This is great case law for chain of custody.  The MTC was denied because Midland could not prove that they were properly assigned the debt.  Since the chain of custody was broken, there was no proof of agreement, therefore no arbitration agreement.
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howucantoo

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Re: Filing a MTC Arb after a Defendant files a MTD
« Reply #23 on: February 18, 2015 02:44:39 AM »
Post #14 :

Let's say that the issue is this:  JDB pulled CR but did not have assignment from any creditor to pull and owns no account.

JDB has no assignment .
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cgoodwin

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Re: Filing a MTC Arb after a Defendant files a MTD
« Reply #24 on: February 18, 2015 03:38:31 AM »
Post #14 :

Let's say that the issue is this:  JDB pulled CR but did not have assignment from any creditor to pull and owns no account.

JDB has no assignment .

But in Post #14 OP is saying the Plaintiff consumer WANTS arbitration of the FDCPA claim and is the party compelling it, not the JDB.
If you think this is legal advise.......
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excelsior

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Re: Filing a MTC Arb after a Defendant files a MTD
« Reply #25 on: February 18, 2015 04:26:27 AM »
Hi all,
I am trying to see all the angles on this, so CU's point about objecting to a JDB's MTC ARB was helpful.  Given the Court's past, it seems that ARB might be the better venue from a cost standpoint (costing JDB more money).

For this particular hypothetical, JDB cannot prove assignment.  What CU and howucantoo raise is a very good point:  consumer may not be able to MTC ARB either because technically JDB may not fall under the umbrella of OC's contract.  If a JDB did MTC ARB, it would be interesting to object (driving cost up), knowing Court would grant anyways, and then file with JAMS.  Double whammy. 

I think Bruno's idea of voluntary dismissal is interesting too because it pulls the rug out from the court, guaranteeing they can't railroad the consumer with a full dismissal. 

Bruno the JDB Killer

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Re: Filing a MTC Arb after a Defendant files a MTD
« Reply #26 on: February 18, 2015 02:31:31 PM »
Post #14 :

Let's say that the issue is this:  JDB pulled CR but did not have assignment from any creditor to pull and owns no account.

JDB has no assignment .



They don't need one.

(E) intends to use the information, as a potential investor or servicer, or current insurer, in connection with a valuation of, or an assessment of the credit or prepayment risks associated with, an existing credit obligation;
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

 

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