Author Topic: Arbitration and the Award of Fees. Help me understand.  (Read 1452 times)

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fisthardcheese

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Re: Arbitration and the Award of Fees. Help me understand.
« Reply #15 on: July 16, 2017 03:43:02 PM »
Thanks TrueQ.
That's a very reasoned answer.
It's about what I suspected. That there is some risk in this, however remote, but it exists.

I will note that absent someone furnishing a rule, provision or something concrete in:re the fees being "capped at $250", it seems that every single post before the most recent was COMPLETELY INCORRECT.

With this mindset and the notion that you must have an absolute answer when there are no absolutes in law and especially in arbitration, then you are destined to fail in your case.  Hopefully you can change your approach before the other side mops the floor with you.
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)

trueq

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Re: Arbitration and the Award of Fees. Help me understand.
« Reply #16 on: July 16, 2017 10:30:02 PM »
Thanks TrueQ.
That's a very reasoned answer.
It's about what I suspected. That there is some risk in this, however remote, but it exists.

I will note that absent someone furnishing a rule, provision or something concrete in:re the fees being "capped at $250", it seems that every single post before the most recent was COMPLETELY INCORRECT.

I don't believe they were incorrect.

The rule is consumer portion of arbitration fees capped at $250.   

The contract sounds like loser does not pay the arbitration fees and lawyer costs of winner, so that is another safety valve.

So they are correct on those points.

There is a remote chance other lawyer will ignore the rules and file for costs/sanctions against you if they ever get to point of winning arbitration (which we all agree a full fruition arbitration is less than a 1% chance).   There is an even remoter chance the arbitrator may ignore the rules as well in granting such a motion.   (arbitration almost anything goes)    So we are talking 1% of 1% of 1% of those 3 things aligning.    You would have to be the most incompetent litigator ever to let all those 3 things align against you before just settling it out.

That is the VERY REMOTE risk.   Barely worth mentioning in a sentence in my opinion.

I don't think that has happened to anyone here, not even close.  (There was a court case where a DB'r got racked for sanctions and costs in Federal Court, but many of us here even thought he went way to far and it did not involve arbitration).   I did some very risky things compared to you in arbitration and never got close to their scenario depsite vigorous arbitrations.   That includes an arbitration where other side spent $150,000+ in legal fees against me pro se'.   That one never even made it to the JAMS hearing.

I think the previous posters were also correct, I just offered a perspective entertaining your worst fear which you were looking for someone to indulge to its conclusion.

I don't agree you should be guided by your worst fear here, but I indulged it anyway to show how really foolish it is if you can just Ch. 7 (nuke it) it out in the end.

If you cannot Ch.7 in the end of worst case scenario, and want to be guided by a foolish fear, then pick up phone, call other lawyer, and settle it out now.

« Last Edit: July 16, 2017 10:40:56 PM by trueq »
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.

backpack

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Re: Arbitration and the Award of Fees. Help me understand.
« Reply #17 on: July 18, 2017 02:04:42 AM »
After re-reading thread, I can still see OP's confusion.

There are veterans here that I believe are perfectly capable of bringing a dead roach to a restaurant to get a free meal. They live for this stuff and never paid "full price" in their lives. The rest of us would likely chose a Root Canal over having a conference call with an arbitrator and Amex lawyers.

Another vital point is what TrueQ is always correct to mention - no one really knows the possible consequences of something like a sham arbitration (one undertaken with no counter-claims and purely meant to run up costs), so make sure BK7 is ready to go in case of a tragic outcome.

There are two online forums where all of these things are discussed. It would verge on legal malpractice if Discover and Amex did not have someone dedicated to matching posters with cases. All they have to do is follow every one of those all the way before Arbitration against an OC becomes a sure-fire way to pay the max.

Is the state of consumer rights as cacapoopoo as you say? 

Not to over generalize ... yet my experience is that one person's "full price" can be another person's freebie, depending on where those people stand socially and economically.

Bruno the JDB Killer

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Re: Arbitration and the Award of Fees. Help me understand.
« Reply #18 on: July 18, 2017 08:19:58 PM »
That's because the level of education needs to be higher. You can't just say "me want arbitration" and expect them to fold. Those days are over. Anybody who loses an MTC based upon the Delaware Small Claims argument doesn't know what they are doing.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

backpack

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Re: Arbitration and the Award of Fees. Help me understand.
« Reply #19 on: July 18, 2017 08:52:09 PM »
Klaxon: Now I understand. And, yeah, even as a noob I can see things are not as easy as they once were. I don't like dealing with OCs and their attorneys... not at all. They probably don't like dealing with me either. I try to pretend I'm Kevin or fist or even Bruno (god forgive me).  There is a post on here somewhere where Kevin said something like enjoying these arb/court battles is like a pig that enjoys rolling around in mud. lol

Harry Seaward

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Re: Arbitration and the Award of Fees. Help me understand.
« Reply #20 on: July 18, 2017 09:10:13 PM »
Anybody who loses an MTC based upon the Delaware Small Claims argument doesn't know what they are doing.
People that come here looking for advice obviously "don't know what they are doing", and I have yet to a see a repeatable winning strategy for overcoming the "or your state's equivalent court" qualifier.

And you do know that no one can force a court to rule in their favor, right?

BrokeBob

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Re: Arbitration and the Award of Fees. Help me understand.
« Reply #21 on: July 18, 2017 10:03:18 PM »

There are two online forums where all of these things are discussed. It would verge on legal malpractice if Discover and Amex did not have someone dedicated to matching posters with cases. All they have to do is follow every one of those all the way before Arbitration against an OC becomes a sure-fire way to pay the max.

This sort of thing has been going on for a long time.

There have been some well known situations where attorneys have linked posts on this forum to posters. 

Attorneys all over the Midwest know who TrueQ is.  Some of them spent many thousands of dollars to find his secret identity.   It took me about 15 minutes with Google.  Thing is, TrueQ hasn't written anything on this forum he needs to regret. 


And we don't need to rehash the Coltfan saga.

What many of us do: 

Change or hide some details of our cases to make it a little harder to track down.

Post something on a different forum with a different username so when we are deposed, we can state that we posted something about this case on THAT forum.  I did that once.  They were trying to get me to say a forum with credit and information in the title was all about suing creditors.  I said the forum was about credit repair.  And I was correct, and I answered the question 100% truthfully. 

BellEbutton

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Re: Arbitration and the Award of Fees. Help me understand.
« Reply #22 on: July 19, 2017 03:50:09 AM »
Anybody who loses an MTC based upon the Delaware Small Claims argument doesn't know what they are doing.

Really?   And how would you fight it? 




Bruno the JDB Killer

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Re: Arbitration and the Award of Fees. Help me understand.
« Reply #23 on: July 19, 2017 12:56:40 PM »
With the plain language of the arbitration clause. It is not worded as a bar to arbitration like Credit One's or Citibank's. The wording is vague and non-specific. I would argue contra preferentum.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BellEbutton

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Re: Arbitration and the Award of Fees. Help me understand.
« Reply #24 on: July 19, 2017 06:36:26 PM »
With the plain language of the arbitration clause. It is not worded as a bar to arbitration like Credit One's or Citibank's. The wording is vague and non-specific. I would argue contra preferentum.

I don't see what's ambiguous or confusing about "Alternatively, you and we may pursue a Claim within the jurisdiction of the Justice of the Peace Court in Delaware, or the equivalent court in your home jurisdiction."

That's pretty plain to me.

Bruno the JDB Killer

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Re: Arbitration and the Award of Fees. Help me understand.
« Reply #25 on: July 19, 2017 07:13:48 PM »
within the jurisdiction of the Justice of the Peace Court in Delaware


They have no jurisdiction over non residents.


or the equivalent court in your home jurisdiction.


There may not be one.


Alternatively, you and we may pursue a Claim


Then again, you and we may not pursue a claim if one of us decides not to and takes you up on your arbitration clause.


"May" is permissive, not mandatory.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

Harry Seaward

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Re: Arbitration and the Award of Fees. Help me understand.
« Reply #26 on: July 19, 2017 07:50:54 PM »
within the jurisdiction of the Justice of the Peace Court in Delaware


They have no jurisdiction over non residents.
Yes, so this is irrelevant to the discussion here.


Quote
or the equivalent court in your home jurisdiction.


There may not be one.
But if there is?  How would one that "knows what they are doing" argue the agreement doesn't apply?

Quote
Alternatively, you and we may pursue a Claim


Then again, you and we may not pursue a claim if one of us decides not to and takes you up on your arbitration clause.


"May" is permissive, not mandatory.
Yes, this one is permissive and as you mentioned, other issuers use more forceful language that outright bars arbitration in cases where a lawsuit was filed in "small claims" court.  But what you said was "Anybody who loses an MTC based upon the Delaware Small Claims argument doesn't know what they are doing."
a.) how would you get around the more forceful barring language? and
b.) how would you force a court to rule in your favor if it finds the 'permissive' agreement persuasively in favor of denying a MTC?

BellEbutton

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Re: Arbitration and the Award of Fees. Help me understand.
« Reply #27 on: July 19, 2017 09:02:32 PM »
within the jurisdiction of the Justice of the Peace Court in Delaware


They have no jurisdiction over non residents.



The language does not imply that the DE court has jurisdiction over non-residents.  Notice that the next phrase is "or the equivalent court in your home jurisdiction."

Note, the agreement also includes the following:

Further, you and we agree not to seek to enforce this arbitration provision, or otherwise commence arbitration based on the same claims in any action brought before the Small Claims Court.


trueq

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Re: Arbitration and the Award of Fees. Help me understand.
« Reply #28 on: July 20, 2017 12:23:36 AM »
This sort of thing has been going on for a long time.

There have been some well known situations where attorneys have linked posts on this forum to posters. 

Attorneys all over the Midwest know who TrueQ is.  Some of them spent many thousands of dollars to find his secret identity.   It took me about 15 minutes with Google.  Thing is, TrueQ hasn't written anything on this forum he needs to regret. 


And we don't need to rehash the Coltfan saga.

What many of us do: 

Change or hide some details of our cases to make it a little harder to track down.

Post something on a different forum with a different username so when we are deposed, we can state that we posted something about this case on THAT forum.  I did that once.  They were trying to get me to say a forum with credit and information in the title was all about suing creditors.  I said the forum was about credit repair.  And I was correct, and I answered the question 100% truthfully.

The fact that these lawyers in Midwest know me is a good thing.

I love talking about my posts here, especially in depositions.

It makes for a nice break in the day.
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: Arbitration and the Award of Fees. Help me understand.
« Reply #29 on: July 20, 2017 12:16:14 PM »
"Alternatively, you and we may pursue a Claim within the jurisdiction of the Justice of the Peace Court in Delaware, or the equivalent court in your home jurisdiction."



That's you AND we, not you OR we. You and we ain't gonna happen, because I would not agree to it.


Further, you and we agree not to seek to enforce this arbitration provision, or otherwise commence arbitration based on the same claims in any action brought before the Small Claims Court.


This is all they really needed to say. Moot, however, since OP is from Florida and the debt is $5500.

"A small claims case is a legal action filed in county court to settle minor legal disputes among parties where the dollar amount involved is $5,000 or less, excluding costs, interest, and attorneys' fees."

http://www.flcourts.org/resources-and-services/family-courts/family-law-self-help-information/small-claims.stml
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

 

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