Author Topic: Discover bank  (Read 2055 times)

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Bruno the JDB Killer

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Re: Discover bank
« Reply #15 on: June 29, 2017 06:36:40 PM »
OP will have a long and difficult argument getting the law firm admitted as a respondent under the signatory argument. It depends on how they rule in his state or circuit. If there are legit claims against the law firm, why not just pursue them separately? JAMS is not very FDCPA / TCPA friendly. We hear that a lot here.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Gooberian00

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Re: Discover bank
« Reply #16 on: June 29, 2017 06:51:46 PM »
This is what I have now:

   
Quote
I object to the Respondent's motion to dismiss.  While it may be true that Discover was the original creditor for the alleged account, Zwicker & Associates, P.C., have engaged in the actual debt collection.  As such I ask leave to add Zwicker & Associates, P.C., as a Respondent since they are “A Law Firm Engaged in Debt Collection” and would be responsible for the very violations they are seeking to dismiss.  Alternatively, this is but one claim and should not be grounds for dismissal of arbitration that was guaranteed under the contract:

“Agreement to arbitrate. In the event of a dispute between you
and us arising under or relating to this Account, either may choose
to resolve the dispute by binding arbitration, as described below,
instead of in court.”

Maybe I should concentrate on the contract more as the decision to arbitrate shouldn't depend on any defective claim, or any claim at all?



Bruno the JDB Killer

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Re: Discover bank
« Reply #17 on: June 29, 2017 10:11:48 PM »
You should concentrate on case law about non-signatories. The original contract is between you and Discover. The court will want to see where Z was a party to that contract. What is in the contract that says they are?
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Gooberian00

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Re: Discover bank
« Reply #18 on: July 12, 2017 05:17:23 PM »
I've been given a list of 5 potential arbitrators, I can strike 2 and list the other 3 in my preference.  2 are retired judges and the others are either retired lawyers or have been doing arbitration for 20+ years.

Is it better to strike judges or would they be more fair as an arbitrator in anyone's experience?

backpack

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Re: Discover bank
« Reply #19 on: July 12, 2017 05:28:49 PM »

In my experience with JAMS retired Judges are not necessarily more fair.

I would google each name on the list. I would be looking for information that indicates whether the candidate is consumer friendly or not consumer friendly.

Gooberian00

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Re: Discover bank
« Reply #20 on: September 14, 2017 05:51:21 AM »
I have my first phone preliminary hearing through a conference call scheduled for next week.  Does anyone have any tips on how these go from first hand experience?   

The email I got from the arbitrator wants me to confer with Discover's counsel to agree to as many things on the list we are going to cover as possible, including the final evidentiary hearing (is this the in person hearing in my hometown?)

Its been a couple days, and I haven't heard from Discover's counsel.  Would it be to my benefit to try and contact them and start working on the list before the conference call?

The list to be agreed on includes discovery, subpoenas, witnesses, etc.

TM97

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Re: Discover bank
« Reply #21 on: September 14, 2017 02:34:39 PM »
I have my first phone preliminary hearing through a conference call scheduled for next week.  Does anyone have any tips on how these go from first hand experience?   

The email I got from the arbitrator wants me to confer with Discover's counsel to agree to as many things on the list we are going to cover as possible, including the final evidentiary hearing (is this the in person hearing in my hometown?)

Its been a couple days, and I haven't heard from Discover's counsel.  Would it be to my benefit to try and contact them and start working on the list before the conference call?

The list to be agreed on includes discovery, subpoenas, witnesses, etc.

My partner is doing her pre-conference call with JAMS on Discover in two weeks.  She was scheduled for today but Discover/Gurstel had a 'scheduling conflict' at the last minute. 

This seems very abnormal given what I have researched here.  You should not be doing this with Discover's counsel without the arbitrator.  That is what the pre-conference call is about - setting discovery, subpoenas, witnesses, dates, etc.  Are you doing the comprehensive or expedited arbitration? 

Here is my post about ours and the last in the thread details what we have prepared for the call based on information from these boards from others who have done such arbitrations with JAMS, Discover and others.  I am awaiting input on what I posted, but it might still be helpful. 

http://www.debtorboards.com/index.php/topic,29606.180.html

Gooberian00

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Re: Discover bank
« Reply #22 on: September 19, 2017 04:57:56 PM »
Thank so much TM, your post about how you prepared was a great help.

About the abnormal part of talking to Discover's counsel, this is the part of the letter I was emailed by the arbitrator:


Quote
I encourage you to confer with each other before the preliminary conference call to try to reach
agreement on as many items as possible, including those that involve scheduling. On the topic of
scheduling, one of my main goals for this preliminary hearing will be to schedule the date or
dates for the final evidentiary hearing. I find that having those dates in place keeps the process
moving. To that end, please try and confer with each other about dates when you and/or your
client will be available for the evidentiary hearing and please have more than one alternative so
we can compare those dates with my schedule.


It looks like the arbitrator is really trying to speed things up, maybe that helps them turn over more cases as quickly as possible.

TM97

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Re: Discover bank
« Reply #23 on: September 19, 2017 05:02:31 PM »
I am a total newbie so all I can think to ask you is are you doing the expedited or comprehensive arbitration?  If it is comprehensive, you shouldn't be rushed like this. 

I would ask why this is not being discussed in the actual preliminary call itself? 

fisthardcheese

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Re: Discover bank
« Reply #24 on: September 19, 2017 06:46:34 PM »
I would email the discover attorney and ask him what dates he is available in March to travel to [my hometown] for the hearing.  I would see if you could get an agreed date for 6 months in the future prior to the call, as the arbitrator has asked.  I would also ask Discover to provide the name of the witness they will be bringing with personal knowledge of the alleged debt and account.

I would not necessarily consider this an attempt to "speed things up", as it is to just cut through the and also to maybe see if one of the parties is going to be difficult to deal with.  I would not come off as being that party.
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)

TM97

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Re: Discover bank
« Reply #25 on: September 19, 2017 06:49:27 PM »
I would email the discover attorney and ask him what dates he is available in March to travel to [my hometown] for the hearing.  I would see if you could get an agreed date for 6 months in the future prior to the call, as the arbitrator has asked.  I would also ask Discover to provide the name of the witness they will be bringing with personal knowledge of the alleged debt and account.

I would not necessarily consider this an attempt to "speed things up", as it is to just cut through the <Removed> and also to maybe see if one of the parties is going to be difficult to deal with.  I would not come off as being that party.

That's helpful information if this come up for any future cases for us.  Thanks.

Gooberian00

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Re: Discover bank
« Reply #26 on: September 20, 2017 12:08:40 AM »
Thanks for the tips!

Quote
I would also ask Discover to provide the name of the witness they will be bringing with personal knowledge of the alleged debt and account.

That is something I cover on the conference call right?  That wouldn't be something I handled through email?

CleaningUp

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Re: Discover bank
« Reply #27 on: September 20, 2017 01:40:14 AM »
Both.

fisthardcheese

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  • They forced arbitration into your contract. Use it
Re: Discover bank
« Reply #28 on: September 20, 2017 11:25:59 AM »
Ask in the email.  If you don't get a name, you let the arbitrator know on the call that you attempted to get the name but they did not respond.  Same with setting a date.  If you don't agree on a date, let the arbitrator know you tried & give him a list of dates you are available 6 months or so out.
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)

Gooberian00

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Re: Discover bank
« Reply #29 on: September 25, 2017 05:50:14 PM »
We had the conference call last week, but not sure what to make of it.  I asked for the in person hearing to be in my hometown, and the arbitrator directed me to try and find a location for the hearing in my hometown.  Also, the arbitrator asked if I was going to call any witnesses or depose anyone.  I said I may need to depose the witness for Discover who has personal knowledge of the alleged debt.  Should I be deposing them?  Or are the questions better handled at the hearing?

We are supposed to submit our discoveries to each other within the next 30 days, and the hearing was schedule for mid November.  I asked if it wasn't usual for the hearings to be scheduled around 6 months out, but the arbitrator sided with Discover's attorney, who wouldn't even push the hearing to the week following Thanksgiving.   Discover's attorney said I was trying to stall and that the actual hearing should only take about an hour.

I thought I would have more time, but I guess the next month will be pretty busy.

Anyone have any thought or comments?

Thanks!