Author Topic: JDB refused arb did they violated Fed Arb Act??  (Read 792 times)

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trueq

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Re: JDB refused arb did they violated Fed Arb Act??
« Reply #15 on: February 16, 2017 07:51:05 PM »
Case Law
(directly from my winning brief on issue):

Demanding payment in violation of court orders is a violation of the federal Fair Debt Collection Practices Act because it misrepresents the legal status of the debt. Turner v. J.V.D.B. & Assoc. Inc., 330 F.3d 991, 994-95 (7th Cir. 2003).

Demands made for money due when a stay is in place are “false” demands that violate federal law. Randolph v. IMBS, Inc., 368 F.3d 726, 728 (7th Cir. 2004).

Clearly, the 7th Circuit is more nuanced on the matter.   What matters is: is debtor complying with stay and JDB not?   That is the situation I'm addressing.

If both parties are ignoring court stay to arbitrate, like this Indiana case....that is a different matter.   I actually agree with Indiana case because the debtor ignored stay to arbitrate as well.


My free speech is not legal advice.  If you need legal advice, you need to talk to a lawyer.

Litigation Defense record
Arbitration record:   9 wins * 0 loses
Court Record:         2 wins * 2 judgments (1 of the 2 judgments has been vacated, other judgment upheld on appeal, marked "satisfied", because I wrote a check.)

The one bank that beat me in court, I now have a $2200 limit credit card from them again.
Redemption is always possible.

Bruno the JDB Killer

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Re: JDB refused arb did they violated Fed Arb Act??
« Reply #16 on: February 16, 2017 08:30:02 PM »
Turner is inapposite.

"Stephen P. Turner sued a debt collector, J.V.D.B. Associates, Incorporated, alleging that J.V.D.B. violated the Fair Debt Collection Practices Act, 15 U.S.C. §§ 1692e and f, by attempting to collect a $97.80 debt that had been discharged in bankruptcy. The district court granted summary judgment to J.V.D.B. on the ground that the debt collector was unaware of Turner's bankruptcy as a matter of law. For the reasons set forth below, we reverse and remand as to § 1692e and affirm as to § 1692f."

Randolph, too.

"A demand for immediate payment while a debtor is in bankruptcy (or after the debt's discharge) is "false" in the sense that it asserts that money is due, although, because of the automatic stay ( 11 U.S.C. § 362) or the discharge injunction ( 11 U.S.C. § 524), it is not. 3A debt collector's false statement is presumptively wrongful under the Fair Debt Collection Practices Act, see 15 U.S.C. § 1692e(2)(A), even if the speaker is ignorant of the truth; but a debt collector that exercises care to avoid making false statements has a defense under § 1692k(c). 2Two recent decisions of this circuit arising out of postbankruptcy demands for immediate payment illustrate how these provisions of the FDCPA work. Turner v. J.V.D.B. Associates, Inc., 330 F.3d 991 (7th Cir. 2003); Hyman v. Tate, 362 F.3d 965 (7th Cir. 2004)."


Neither case has anything to do with arbitration. The case I cited does, it is clearly on point.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

trueq

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Re: JDB refused arb did they violated Fed Arb Act??
« Reply #17 on: February 17, 2017 06:31:31 PM »
Discharge in bankruptcy is a COURT ORDER being violated if collector is violating the bankruptcy court order.
My free speech is not legal advice.  If you need legal advice, you need to talk to a lawyer.

Litigation Defense record
Arbitration record:   9 wins * 0 loses
Court Record:         2 wins * 2 judgments (1 of the 2 judgments has been vacated, other judgment upheld on appeal, marked "satisfied", because I wrote a check.)

The one bank that beat me in court, I now have a $2200 limit credit card from them again.
Redemption is always possible.

Bruno the JDB Killer

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Re: JDB refused arb did they violated Fed Arb Act??
« Reply #18 on: February 17, 2017 08:56:13 PM »
The difference is that a BK court order violation is considered an attempt to collect a debt. A refusal to arbitrate per a court order is not; it is a procedural violation. Again, there is absolutely no case law that states this as a violation of the FDCPA. As the Court stated,

“state judicial proceedings are outside the scope” of the Act.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

trueq

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Re: JDB refused arb did they violated Fed Arb Act??
« Reply #19 on: February 18, 2017 05:23:28 PM »
Bruno,

That means matter is unsettled in the aggregate.

I have won on the issue, ON THE MERITS, as an FDCPA violation.

It's best to sue it.  99 times in 100 it gets settled out before trial on merits occurs.
My free speech is not legal advice.  If you need legal advice, you need to talk to a lawyer.

Litigation Defense record
Arbitration record:   9 wins * 0 loses
Court Record:         2 wins * 2 judgments (1 of the 2 judgments has been vacated, other judgment upheld on appeal, marked "satisfied", because I wrote a check.)

The one bank that beat me in court, I now have a $2200 limit credit card from them again.
Redemption is always possible.

Jane007

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Re: JDB refused arb did they violated Fed Arb Act??
« Reply #20 on: February 18, 2017 10:02:28 PM »
Filing a lawsuit for a time-barred debt violates state law.
This is not clearly the case is every state.  For caselaw, arguments, and examples, see the amicus curiae briefs for the petitioner in Midland Funding, LLC v. Johnson. For caselaw, arguments, and examples in the state of California, see this article, this powerpoint presentation and this summary.

Arbitration laws state that when a party refuses to arbitrate, the other party must file a MTC with the court.
Must?  Do you mean to say that the other party has violated the law if they don't file a compel motion?

... the lawsuit may make a consumer feel he has no choice but to settle.   In a lawsuit,  the defense of the {SOL} is waived if not raised.  In the event of a default judgment, the consumer must motion to set it aside.
All of these arguments can be effectively made for either scenario (time-barred or arbitration).

BellEbutton

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Re: JDB refused arb did they violated Fed Arb Act??
« Reply #21 on: February 19, 2017 04:17:16 AM »
This is not clearly the case is every state.  For caselaw, arguments, and examples, see the amicus curiae briefs for the petitioner in Midland Funding, LLC v. Johnson. For caselaw, arguments, and examples in the state of California, see this article, this powerpoint presentation and this summary.


Whether it violates state law or not, filing a lawsuit on a time-barred debt for which the consumer must answer and defend is unfair.   The consumer is having to take steps he would not normally have to take.

Quote
Must?  Do you mean to say that the other party has violated the law if they don't file a compel motion?

Where did I even hint that the other party has violated the law if they don't file a MTC?   In this thread, it was claimed that failure to obey a court order is an FDCPA violation.  How else are you going to get a court order to arbitrate if you don't file a MTC?





« Last Edit: February 19, 2017 05:24:22 AM by BellEbutton »