Author Topic: Bentrud v. Bowman, Heintz, Boscia & Vician, P.C. (7th Cir. July 27, 2015)  (Read 2395 times)

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rjaguar3

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Link.

Basically, the Seventh Circuit doesn't approve of the "litigating after an arbitration election is an FDCPA violation" in the particular circumstances of this case.

howucantoo

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Excellent find.

The big issue here is ;  "Bentrud did not complain of the deadline when it was first imposed. Nor did he file a motion seeking clarification of the state court order setting the deadline."
Motion for Clarification is an important motion when something is not clarified . The court could not possibly set or dictate a time line for arbitration forum to accept/deny/proceed with a case. Benturd should've objected and asked the deadline be lifted or extended until another forum is chosen.

Although, the Court did set the deadline for 30 days and then extended it another 90 days, amazingly this guy did nothing.  C1 had arbitrated in JAMS before his case and afterward as matter of fact it still does. I question why he did not initiate in JAMS ? All it would have  taken was a hearing to let the court know about C1's arbitration agreement that had JAMS listed as an alternative.

Second: for those who say electing arbitration is enough to trigger FDCPA if the other side files suit, they need to pay attention to which circuit suit is going to be filed (we can now chalk up 7th as a no go) .

 Maybe if Bentrud filed under 1692e the range of FDCPA violations would have been extended to 16 instead of the 8 under 1692f. (1692 e is more broad and maybe  citing "taking a legal action that  could have not been taken" would have been more appropriate under FDCPA's cause of action)







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kevinmanheim

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The first two sentences in that opinion sum up the appeals court's contempt for the plaintiff.

Quote
Grant E. Bentrud owes Capital One Bank, N.A. (“Capital One”), money—$10,955.20 to be exact. He amassed that debt on his credit card, and he does not dispute it here.

The plaintiff followed the court's order and initiated arb with AAA. AAA declined the case because C1, who put AAA in their contract, previously failed to pay AAA.

If I were the plaintiff, I would sue C1 for breach of contract, and initiate in JAMS.

C1 and I would be entangled in arbitration and court for a long time after this.

Flyingifr

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The first two sentences in that opinion sum up the appeals court's contempt for the plaintiff.

The plaintiff followed the court's order and initiated arb with AAA. AAA declined the case because C1, who put AAA in their contract, previously failed to pay AAA.

If I were the plaintiff, I would sue C1 for breach of contract, and initiate in JAMS.

C1 and I would be entangled in arbitration and court for a long time after this.

Good catch. The general rule on interpretation of contracts is that any vagueness in a contract be interpreted AGAINST the interests of the author. While this provision is not vague, its implementation is problematical by the ACTIONS (or INACTIONS) of the author of the contract.

My position in this case would be:

1: Capital One Bank deliberately designated AAA as the Arbitration forum for their cases. This was their choice. They could have listed a choice of any of several Arbitration companies but they chose just this one. As a Contract of Adhesion, Bentrud had no input into this decision and no alternatives under the "take it or leave it" provisions of a Contract of Adhesion.

2: AAA now refuses to accept any cases from Capital One Bank due to Capital One Bank's failure to pay AAA fees in the past.

3: Since Capital One Bank's Contract of Adhesion requires the use of an Arbitration Forum that refuses to accept Capital One cases due to the actions (or inactions) of Capital One, and the contract makes no provision for a substitute Forum, Capital One's Contract has left Capital One with NO forum to address disputes and is therefore left with no recourse against its customers who elect Arbitration pursuant to Capital One's own contract.
BTW-the Flyingifr Method does work. (quoted from Hannah on Infinite Credit, September 19, 2006)

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BellEbutton

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Quote
Maybe if Bentrud filed under 1692e the range of FDCPA violations would have been extended to 16 instead of the 8 under 1692f. (1692 e is more broad and maybe  citing "taking a legal action that  could have not been taken" would have been more appropriate under FDCPA's cause of action)

I don't know about 1692e.  Here's what the court said.

"A contrary ruling would require us to declare that adherence to an arbitration provision in a contract, even in the face of a state court order to the contrary, is essential to fair debt collection. Cf. Beler, 480 F.3d at 474.  This we will not do."

howucantoo

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I don't know about 1692e.  Here's what the court said.

"A contrary ruling would require us to declare that adherence to an arbitration provision in a contract, even in the face of a state court order to the contrary, is essential to fair debt collection. Cf. Beler, 480 F.3d at 474.  This we will not do."

I agree. FDCPA wouldn't have worked anyways, the court even said ;at the most it was a breach of contract case not FDCPA against the law firm.

Keep in mind this was in 7th district / Indian which is a very creditor friendly state. 
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Bruno the JDB Killer

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What Indian? Snow Star? What, no cowboy?
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howucantoo

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 State of Indiana.

The Indian here is going to install an arrow in between your eyes if you don't go back to your shelter.
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Bruno the JDB Killer

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Me go teepee now and load Hawken. British soldier come soon. You go Indiana and get new broom to ride to court.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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State of Indiana.

The Indian here is going to install an arrow in between your eyes if you don't go back to your shelter.

Me go teepee now and load Hawken. British soldier come soon. You go Indiana and get new broom to ride to court.


Here we go.   :vbrofl:

howucantoo

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Me go teepee now and load Hawken. British soldier come soon. You go Indiana and get new broom to ride to court.

Just don't peepee "in the case".
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cgoodwin

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The decision did state that the court would consider it a breach of contract. The challenge would be proving the damages for such a breach.
If you think this is legal advise.......
ask yourself why I wasn't smart enough to avoid this myself?!?

kevinmanheim

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The decision did state that the court would consider it a breach of contract. The challenge would be proving the damages for such a breach.
Considering that C1 doesn't appear to be re-inserting arb into their CC agreements, this issue could me moot as far as they are concerned.