Author Topic: Supreme Court Ruling on Validity of Arbitration Clauses  (Read 1515 times)

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Bruno the JDB Killer

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Re: Supreme Court Ruling on Validity of Arbitration Clauses
« Reply #15 on: May 19, 2017 06:27:35 PM »
Contracts do not state a time frame for the claimant to file a case. It just gives them the option of doing so. We are talking about "electing" to file arb, not actually doing it. Obviously, no judge is going to tolerate a demand for arb where the defendant does not follow through, hoping that he or she can stall the case and make a specious violation when the Plaintiff files suit.
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CleaningUp

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Re: Supreme Court Ruling on Validity of Arbitration Clauses
« Reply #16 on: May 19, 2017 06:45:52 PM »
Again.  A lot depends upon how the contract is written.  And, remember, any ambiguity in a contract is adjusted in the favor of the none-writing party to it.

A solid argument could be put together to make this case.  But is is not one that is immune from attack.  The onus would be on the claimant to establish that there was, indeed, and ambiguity.  Once that is established, the rest would be pro forma.

Of course, in a Mayberry court, one might have some difficulty even getting to speak on the issue.

Bruno the JDB Killer

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Re: Supreme Court Ruling on Validity of Arbitration Clauses
« Reply #17 on: May 19, 2017 08:11:05 PM »
Yes, but this goes back to court procedure and how long a judge will allow somebody to "elect" arbitration without actually filing for it. Bank contracts cannot rewrite court rules.
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CleaningUp

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Re: Supreme Court Ruling on Validity of Arbitration Clauses
« Reply #18 on: May 19, 2017 10:02:20 PM »
Once you've gotten to court and turn to "electing" arbitration, you need to make the argument that it is the creditor's obligation to file for arbitration if he wishes to pursue the matter or file for yourself.

It would seem to be to be self-defeating to hold one's breath until one turns blue on the principle of the thing.

I would make the argument,  and, at the slightest hint that the judge isn't buying it, I would do some serious bending.

Foot shooting is fine as long as it is the other guy's foot in the cross hairs.


BellEbutton

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Re: Supreme Court Ruling on Validity of Arbitration Clauses
« Reply #19 on: May 20, 2017 05:05:42 PM »
Once you've gotten to court and turn to "electing" arbitration, you need to make the argument that it is the creditor's obligation to file for arbitration if he wishes to pursue the matter or file for yourself.

It would seem to be to be self-defeating to hold one's breath until one turns blue on the principle of the thing.

I would make the argument,  and, at the slightest hint that the judge isn't buying it, I would do some serious bending.

Foot shooting is fine as long as it is the other guy's foot in the cross hairs.

Which section of the FDCPA would be violated if one elected arbitration in a DV, but the JDB files a lawsuit anyway?

BrokeBob

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Re: Supreme Court Ruling on Validity of Arbitration Clauses
« Reply #20 on: May 20, 2017 06:19:14 PM »
Which section of the FDCPA would be violated if one elected arbitration in a DV, but the JDB files a lawsuit anyway?

It's been a number of years since I used that particular violation in a court counterclaim or a JAMS claim, and I can't remember if I used a section of the FDCPA or the Wisconsin Consumer Act, but,

IIRC, there is a provision about taking collection actions, or threatening collection actions, which are not legally permitted. 

I can't tell you what would've happened if that had ever gotten to an arbitrator or judge, since every case was settled in a way I found satisfactory. 

Bruno the JDB Killer

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Re: Supreme Court Ruling on Validity of Arbitration Clauses
« Reply #21 on: May 20, 2017 07:40:12 PM »
Which section of the FDCPA would be violated if one elected arbitration in a DV, but the JDB files a lawsuit anyway?


None. The statute is clear; it has to be an action taken which is legally impermissible. The contract states (most of them anyway) that once a party to the agreement utilizes the arb clause, court is off the table. The language varies, but the message is clear.

However, if all one party does is talky talky, and doesn't file for arbitration, they have not legally fulfilled the terms of the arbitration clause and thus have no standing to sue if the creditor files after a reasonable time of no action being taken by the defendant.

We've been over this a dozen times, it is very clear. You wanted it, you "elected" it, you file for it.
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BellEbutton

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Re: Supreme Court Ruling on Validity of Arbitration Clauses
« Reply #22 on: May 20, 2017 08:05:25 PM »
Which section of the FDCPA would be violated if one elected arbitration in a DV, but the JDB files a lawsuit anyway?


None. The statute is clear; it has to be an action taken which is legally impermissible. The contract states (most of them anyway) that once a party to the agreement utilizes the arb clause, court is off the table. The language varies, but the message is clear.

However, if all one party does is talky talky, and doesn't file for arbitration, they have not legally fulfilled the terms of the arbitration clause and thus have no standing to sue if the creditor files after a reasonable time of no action being taken by the defendant.

We've been over this a dozen times, it is very clear. You wanted it, you "elected" it, you file for it.

Well, BrokeBob mentioned " taking collection actions, or threatening collection actions, which are not legally permitted."  That's 1692e.

Courts have ruled that there's a materiality requirement for that section.  In other words, it must confuse or mislead the consumer as to his next action(s).   The FAA says that if a party refuses to arbitrate, one must file a motion to compel.  I don't see where there's any confusion.

As a result, I don't think 1692e would apply.

BrokeBob

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Re: Supreme Court Ruling on Validity of Arbitration Clauses
« Reply #23 on: May 20, 2017 10:32:26 PM »
Well, BrokeBob mentioned " taking collection actions, or threatening collection actions, which are not legally permitted."  That's 1692e.

Courts have ruled that there's a materiality requirement for that section.  In other words, it must confuse or mislead the consumer as to his next action(s).   The FAA says that if a party refuses to arbitrate, one must file a motion to compel.  I don't see where there's any confusion.

As a result, I don't think 1692e would apply.

Serious question here.  Is there any case law that says filing a case in court after a consumer has elected arbitration is permissible?  Or not permissible?  If there is no case law on the subject, then this is a pretty pointless argument.  All I know is claiming a violation of 1692e has gotten me the results I wanted for settlements, but that was years ago. 

Bruno the JDB Killer

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Re: Supreme Court Ruling on Validity of Arbitration Clauses
« Reply #24 on: May 21, 2017 12:02:51 PM »
Haven't seen an exact scenario, but this is close.


October 13, 2015
Court: Debtor Cannot Use FDCPA as Enforcement Mechanism for Arbitration Provision

7th Circuit

A debt collector did not violate the Fair Debt Collection Practices Act (FDCPA) when it filed a summary judgment motion in a collection action after the debtor had sought enforcement of a credit card agreement’s arbitration provision, a federal appellate court recently held. In reaching this conclusion, the court emphasized that the “FDCPA is not an enforcement mechanism for matters governed elsewhere by state and federal law.”

In Bentrud v. Bowman, Heintz, Boscia & Vician, P.C., an Indiana law firm specializing in debt collection brought suit on behalf of its credit card issuer client against a debtor in state court. After the debt collector filed a motion for summary judgment, the debtor responded by invoking an arbitration provision contained in his credit card agreement. Granting the debtor’s election of arbitration, the state court denied summary judgment. This ruling stayed the case, but provided that the stay would “automatically” dissolve if the debtor failed to initiate arbitration within 30 days.

In an unusual turn of events, no one agreed to conduct the arbitration before the court-imposed 30-day deadline had passed. The debt collector then filed a second motion for summary judgment.

Responding to this filing, the debtor brought an action against the debt collector in the U.S. District Court for the Southern District of Indiana, arguing that the law firm’s second motion for summary judgment in state court—filed after the debtor had elected arbitration—constituted a violation of the FDCPA’s prohibition on unfair or unconscionable means of attempting to collect a debt. The district court granted the debt collector’s motion for summary judgment, and the debtor appealed to the Seventh Circuit.

The U.S. Court of Appeals for the Seventh Circuit affirmed the district court’s ruling. It noted that the FDCPA provides a list of eight illustrative violations, one of which is taking or threatening to take any “nonjudicial action” against the debtor. The Court reasoned that, in light of this illustration, “state judicial proceedings are outside the scope” of the Act. It concluded that when the debtor filed its second summary judgment motion, “it acted consistently with the state court order setting a time limit to initiate arbitration,” and thus the motion was not “an unfair or unconscionable means of attempting to collect a debt” under the FDCPA. The Seventh Circuit declined to permit the debtor to use the FDCPA as a means of enforcing the arbitration provision in his credit card agreement, emphasizing that “his remedy sounds in breach of contract, not the FDCPA.”
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BrokeBob

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Re: Supreme Court Ruling on Validity of Arbitration Clauses
« Reply #25 on: May 21, 2017 02:58:58 PM »
Interesting.

Not sure exactly the same, but similar.
I was never foolish enough to thumb my nose at the court, though.

This  case was a while after my last arbitration. If I had a similar case in the future I would claim breach of contract. 

LightBearer1307

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Re: Supreme Court Ruling on Validity of Arbitration Clauses
« Reply #26 on: May 21, 2017 05:43:57 PM »
I believe that mandatory arbitration clauses in adhesion contracts should be unenforceable as void as contrary to public policy.

In the coming years you will see restaurants with arbitration provisions and disclaimers "by entering this restaurant you agree to the terms outlined on the back of the menu" and a 12 page agreement with 7 point font on the back of the menu. If somebody puts arsenic in your soup because they hate you, or if you get super E.Coli because the cook let beef blood contaminate your salad, too bad, so sad, go to arbitration.

I believe that mandatory arbitration is a severe infringement on your right to procedural and substantive due process and that as a practical matter arbitration is generally a rubber stamp for the business interests at the expense of a wronged consumer.

It essentially amounts to the government letting private actors use a federal statute to strip other citizens of their right to petition the government for redress of grievances and to obtain a civil jury trial for their controversy.


It won't be long until the hurdle of arbitration is added to the hurdles that already exist in medical malpractice cases... Doctor was drunk and botched the delivery of your baby who is now severely disabled and you want to sue to get the expenses for a lifetime of care covered? Too bad, the hospital admission agreement has a mandatory arbitration clause...

Also the FAA should have no application in state courts... It seems only Justice Thomas sees it that way though...

Bruno the JDB Killer

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Re: Supreme Court Ruling on Validity of Arbitration Clauses
« Reply #27 on: May 21, 2017 07:54:03 PM »
I believe that mandatory arbitration clauses in adhesion contracts should be unenforceable as void as contrary to public policy.


Really? What public policy in your state or any other says private parties cannot agree to private arbitration? It's not mandatory, Plato. It's optional.


It essentially amounts to the government letting private actors use a federal statute to strip other citizens of their right to petition the government for redress of grievances and to obtain a civil jury trial for their controversy.


Show us where the average consumer who can't even read a credit card contract would come away with this brilliant legal conclusion. Then, back it up yourself. I can't wait. you are way in over your head....... best you back off now before you really embarrass yourself.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

LightBearer1307

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Re: Supreme Court Ruling on Validity of Arbitration Clauses
« Reply #28 on: May 21, 2017 10:39:10 PM »
I believe that mandatory arbitration clauses in adhesion contracts should be unenforceable as void as contrary to public policy.


Really? What public policy in your state or any other says private parties cannot agree to private arbitration? It's not mandatory, Plato. It's optional.


It essentially amounts to the government letting private actors use a federal statute to strip other citizens of their right to petition the government for redress of grievances and to obtain a civil jury trial for their controversy.


Show us where the average consumer who can't even read a credit card contract would come away with this brilliant legal conclusion. Then, back it up yourself. I can't wait. you are way in over your head....... best you back off now before you really embarrass yourself.


I guess you don't know what an adhesion contract is... When there are only 5-6 cellular providers and their terms are all identical, and the contract is "take it or leave it" and the option of "leave it and go elsewhere" is no real option because "elsewhere" includes identical binding arbitration for disputes, class action waivers, and waiver of right to litigate, there is no viable alternative, but I guess you already knew that and figured it out...

Suppose your local utility company has a contract for providing you electricity, you either take it or leave it, you don't get to strike out terms you don't like, it is not a negotiation and it is not something you have much input in.


As to your last blurb...

When you're so full of yourself that you are the most awesome person, there's nothing to be said for it and there's no point to have a discussion.

fisthardcheese

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Re: Supreme Court Ruling on Validity of Arbitration Clauses
« Reply #29 on: May 22, 2017 11:30:02 AM »
I believe that mandatory arbitration clauses in adhesion contracts should be unenforceable as void as contrary to public policy.

In the coming years you will see restaurants with arbitration provisions and disclaimers "by entering this restaurant you agree to the terms outlined on the back of the menu" and a 12 page agreement with 7 point font on the back of the menu. If somebody puts arsenic in your soup because they hate you, or if you get super E.Coli because the cook let beef blood contaminate your salad, too bad, so sad, go to arbitration.

I believe that mandatory arbitration is a severe infringement on your right to procedural and substantive due process and that as a practical matter arbitration is generally a rubber stamp for the business interests at the expense of a wronged consumer.

It essentially amounts to the government letting private actors use a federal statute to strip other citizens of their right to petition the government for redress of grievances and to obtain a civil jury trial for their controversy.


It won't be long until the hurdle of arbitration is added to the hurdles that already exist in medical malpractice cases... Doctor was drunk and botched the delivery of your baby who is now severely disabled and you want to sue to get the expenses for a lifetime of care covered? Too bad, the hospital admission agreement has a mandatory arbitration clause...

Also the FAA should have no application in state courts... It seems only Justice Thomas sees it that way though...

I find that the best remedy for this is to simply start using the arbitration provisions for any and all disputes, just as they write into those agreements.  When the companies start spending $5k to arbitrate simple billing errors or other customer service issues, they may think twice about putting arb in everything.

The 3 CRAs come to mind.  They have all very recently updated their arbitration clauses to strictly limit how and when arbitration can be used.  This came about due to the volume of sudden arbitration cases they found themselves in.   I wonder how that happened.   :vbbiggrin:
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

 

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