Author Topic: Capital One /Arbitration Options  (Read 330 times)

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freedy

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Capital One /Arbitration Options
« on: December 06, 2017 07:33:56 PM »
I have a CapOne account opened in 2007. Did CapOne have Arb in the cc agreement at that time ?   Has any one gone up against CapOne lately?

It's already gone from a Collection Company over to a Collection Attorney .

I have not Validated yet


Clydesmom66

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Re: Capital One /Arbitration Options
« Reply #1 on: December 06, 2017 07:49:22 PM »
I have a CapOne account opened in 2007. Did CapOne have Arb in the cc agreement at that time ? 

Cap1 removed arbitration from their card agreements in 2010.  When did you default?  If you used the card for over 5 years after they removed it then they are going to argue that by doing so you accepted the new terms of not being able to arbitrate. 

There is a very slim chance there is a survivability clause in your original agreement but have not heard of that working lately.

Has any one gone up against CapOne lately?

LOTS of people have.  Cap1 is an aggressive OC who will sue you if you do not settle. 

What state is this in?
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

BrokeBob

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Re: Capital One /Arbitration Options
« Reply #2 on: December 06, 2017 08:52:52 PM »
You need to try to find a copy of the old Cap 1 arbitration agreement.  I used to have one, but that is long gone.  See if it had a survivability clause.  I don't think this will work, but as CM said, there is a slim chance of it working. 

Mostly, you will need to either settle or else fight them in court. 


The Litigator

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Re: Capital One /Arbitration Options
« Reply #3 on: December 07, 2017 01:58:16 PM »
You need to try to find a copy of the old Cap 1 arbitration agreement.  I used to have one, but that is long gone.  See if it had a survivability clause.  I don't think this will work, but as CM said, there is a slim chance of it working. 

Good luck arguing that one. I know a few people who have tried the "survivability defense".

The No Hassle club knows this one and already has a pre-written response for that.

Won't hurt for you to test your luck though. All that can happen is you lose that argument and get sent back to court.

If this were me, I'd choose another route here. Make sure you have a Plan B.

CleaningUp

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Re: Capital One /Arbitration Options
« Reply #4 on: December 07, 2017 03:19:37 PM »
So...tell us what their defense is...There are people here good enough to pick it apart.

The Litigator

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Re: Capital One /Arbitration Options
« Reply #5 on: December 08, 2017 03:58:15 PM »
So...tell us what their defense is...There are people here good enough to pick it apart.

That it was removed from the contract and Op isn't eligible.

The No Hassle Club has a firm they always use for arbitration. They will work with the Litigation Specialist to prove the clause was removed and then send this info to the local counsel litigating the case in civil court. Local counsel will use it to defeat the MTC.
« Last Edit: December 08, 2017 04:03:06 PM by The Litigator »

CleaningUp

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Re: Capital One /Arbitration Options
« Reply #6 on: December 08, 2017 06:49:01 PM »
Hmmm...But if the survivability clause was in a contract for someone holding an account at some point, how do you say they attack the clause that they, themselves, have written that says arbitration relief survives any subsequent changes in the contract?


The Litigator

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Re: Capital One /Arbitration Options
« Reply #7 on: December 08, 2017 07:14:00 PM »
Hmmm...But if the survivability clause was in a contract for someone holding an account at some point, how do you say they attack the clause that they, themselves, have written that says arbitration relief survives any subsequent changes in the contract?

They will say he accepted the new terms by continuing to use the card without objection.

They will also use the mailbox rule to prove he got the notice of change.

kevinmanheim

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Re: Capital One /Arbitration Options
« Reply #8 on: December 09, 2017 01:11:39 AM »
They will say he accepted the new terms by continuing to use the card without objection.

They will also use the mailbox rule to prove he got the notice of change.
If you enter into a contract that says the contract cannot ever be changed, and you didn't draft that contract, no changes to the contract can apply to you.

Basic contract law.

The problem is getting a court to understand that, when you are up against a seasoned litigation team from a big bank.

Here is the 2008 C1 agreement. Read paragraph 18. [the third paragraph 18 -- who drafted that mess?]

http://www.cardmemberagreements.org/wp-content/uploads/2012/08/2008-Capital-One-Merged-with-JAMS.pdf

« Last Edit: December 09, 2017 01:25:29 AM by kevinmanheim »

CleaningUp

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Re: Capital One /Arbitration Options
« Reply #9 on: December 09, 2017 01:48:20 AM »
My counter would be that the change of the contract is irrelevant because that is what their contract says when they assert that the right to arbitrate survives any changes in the contract.

To my knowledge, no court has yet directly addressed this question.  But I would be citing AT&T Mobility v Concepcion and its dictate that arbitration clauses are to be considered in the same way any other contractual clause would be considered to be no longer applicable.

The survivability clauses clearly state their intentions:  Arbitration as a means of dispute resolution survives any subsequent changes in the contract.  By so stating the author of the contract is intending for arbitration to be a means of dispute resolution, irrespective of what any subsequent contract might hold.

Should the author revise the contract to eliminate arbitration, then, he is intentionally setting up two classes of disputees, one class for those who are covered by the survivability clause, and another for those who entered contracts after the clause has been removed.

The author can't have it both ways; that is a clear and well-litigated part of contract law.  Plain language binds the author to arbitration if it is so desired by either party.  And plain language removes the right to litigate should either of the parties elect arbitration in the settlement of the dispute.




Bubbles

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Re: Capital One /Arbitration Options
« Reply #10 on: December 09, 2017 02:18:17 AM »
I guess if the new contract affirmatively states that henceforth arbitration does not apply, then it might be a tough sell using arbitration for disputes arising in the henceforth era.

Else, it would be logical to apply the survivability clause.

kevinmanheim

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Re: Capital One /Arbitration Options
« Reply #11 on: December 09, 2017 08:40:09 PM »
I guess if the new contract affirmatively states that henceforth arbitration does not apply, then it might be a tough sell using arbitration for disputes arising in the henceforth era.

Else, it would be logical to apply the survivability clause.

Most credit card contracts (probably all of them) say that you can't change the terms of the contract without the CC issuer's permission.

The CC issuer would go screaming to a judge if you did so. You can find real examples where a consumer tried to unilaterally amend the contract to add another arbitration forum, for example.

Why? Because you agreed with the CC issuer that the contract couldn't be changed by you.

Just like the CC issuer agreed that the arbitration clause would survive no matter what happens.

By accepting the CC agreement, the CC issuer has made a promise to you -- that the arbitration clause, which is placed there to help you, would never be taken from you.

I don't know about you, but I wouldn't have ever accepted a CC and used it if I thought, even for a moment, that I might one day be denied my SCOTUS-given right to arbitrate all disputes. 

What kind of country do we live in, if it's possible for a corporation to deny us our right to arbitrate?   I would write that into the complaint.