Help dealing with threat of arbitration.

Yes, but who is the law firm?

The state you live in now in most cases. [/quote] And is there some way I can compel MBNA (or BOA) to send me the records from this account in their entirety, so I can verify these dates on my own?[/quote]Not under arbitration. You can do it, of course but it is highly unlikely that you will get anything except the announcement that an award has been granted against you

I'm not sure that we can give you any help other to tell you that you are going to lose unless you catch them in violation of either FDCPA or FCRA and take the lawyer to federal court. If you fail to do that you will get an award against you followed by a judgment and garnishment. Losing is almost a guarantee unless you file a federal lawsuit against them before they get the award reduced to a judgment.

 

It is very important that tell us who the lawyer is? If this is out of SOL, it's some JDB just trying to scare you. What is the SOL in your home state? All they have is fear. The MBNA contract says arbitration only. So that is what they threaten. But, if the SOL is past, there is no standing for a court to grant authorization of an arb. agreement or for an officer of the court (a collection attorney) to file a claim to do so. There is no "dispute" to which the NAF can grant relief. The money is not legally owed anymore.
In your communications you should never admit to or imply the debt is yours. Use, "This debt is in dispute." If you do, they can use that as a document against you. Are they licensed to collect in your state? If there is no contract produced, then their arbitration cannot proceed.
Also, you do not want to produce you copy of the contract unless you have to to demonstrate the Delaware SOL. Again, that has you admitting to the debt by doing that.

 

Arbitration and SOL

Arbitration is used routinely these days as a means to circumvent SOL defenses. The lawyer knows it is out of stat so he submits to NAF who will grant the reward automatically regardless of the age of the debt. Then they take it to a local court to have it reduced to a judgment. The argument is that the matter should be adjudicated in favor of the plaintiff because the issue has already been decided by another forum. RES JUDICATA. The local court has little choice but to go along with it. The defendant is basically a dead duck. The only realistic remedy might be to sue the lawyer in federal court for misrepresenting the legal status of the debt and that would have to be done as soon as the consumer has been notified that the debt has been submitted for arbitration. He would also have to notice NAF that the case has been filed in federal court. They will grant a 6 months stay of arbitration to allow the federal court to render their decision. If the federal court question has not been resolved the defendant will have to demand another stay and show that the case is still in progress in federal court. It is the only realistic way to go about it that I know of.

 

Have you Googled Lowery? If not, please do so. You'll find he is bottom feeder, scavenging old debts. It's a numbers game, scare 100 people with what he sent you and get some of them to pay.
Not only does he need to validate the debt. He needs to demonstrate a contractual connection between you and him. Even if he does send you the original, unsigned contract of adhesion from MBNA, he still needs to demonstrate who now owns the debt, and who authorized him to to collect. If he owns it, then he needs to show documentation with your name and account number on it, transferring ownership to him or his client. And, documentation is not an affidavit from a staff member attesting to the sale. Affidavits are for supporting documents not replacing them.

Failing the production of a contract and a sales document, he is guilty of UDAP, and someone like you is entitled to relief. But first, one must NOTICE him to produce these documents or to cease and desist this unfair and deceptive practice. The notice is a prerequisite to filing in court for a restraining order to prevent Lowery from confirming any arb. awards against someone in their local court. This notice must, and every communication, must be done ceritified mail, return receipt requested with the receipt number on the notice. Be sure to find out which district/state court in confirms arb. awards.

Then if and when he does proceed with the arbitration proceeding, one should notice NAF that he/she did not agree to predispute arbitration and is disputing the proceeding. One should NOT engage in any back and forth communication with NAF other than that. That is documentation of participation in arbitrating a matter. One should not admit to a debt in writing. Always use "this claim is disputed."

Once the arb. award is granted. The local atty. to whom it is assigned usually waits 90 days to file for confirmation because the Fed. Arb. Act. allows 90 days to dispute an award. After that it is a slam dunk for him. Within that window one can file for a restraining order based on their prior UDAP notice. In this case, Lowery could be served long distance. The local atty. will want no part of that suit because it is not a slam dunk/easy money for him.
Lowery does not appear to be licensed to collect debts in Oregon. Check out licenseinfo.oregon.gov

The information and materials in this document are provided for general information purposes only and are not intended to constitute legal, accounting or tax advice or opinions on any specific matters. Laws and regulations change frequently and their application can vary widely based upon the specific facts and circumstances involved. You are responsible for the applicability and accuracy of Information as it relates to your specific situation.

 

Unfortunately, until you are sued and ask for these documents under discovery, there is no obligation for him to produce most of what you have asked for.

Do some research here about validation and what documentation the collector is required to furnish.

If you're going to sue him, then these documents will be requested in discovery. But the validation he is required to produce to validate the debt is far from this level of documentation.

 

The point is you are indicating to these bottom feeders that you know what documents you are entitled to should you go to court. That you are aware of your rights and are indicating how much effort it will take to beat you in court.
Now, given the hypothetical 100 debtors this bottom feeder has contacted, should he go after you or the low hanging fruit (The debtors who do not know how to legally fight him) that he can more easily collect from?
Buying hundreds, maybe thousands, of debts for pennies on the dollar, it is a numbers game for these people. They focus on the easier marks then move on.
To avoid being an easy mark, you must notice each new debt collector contact that they need to prove their standing with you. Until they do, it is none of their business what money you do or do not, or did or did not, owe.
Hedwig mentions discovery, if you file against them, or they against you, you should include requests for admissions and documents in your filing or response to the court and to them. Compiling those discovery items is an onerous task. And, once you have exercised your right to discovery, the court cannot issue any summary judgment against you until discovery is completed. These bottom feeders do not want to actually litigate to collect your money. They will back off.

 

1st time poster in some debt trouble

I was recently served with a summons from chase legal department to take me to court for an unpaid credit card. the summons says i have to reply in writing to the court within 30 days and gives links for websites i can use to find the appropriate form but i really dont know what i need to submit. can anyone help? just in case the case is filed with the superior court county of san bernardino,california. any help is appreciated

 

If they filed a claim with the NAF, their filing papers need to show "some" documentation.
Was there a copy of the contract? A sheet of paper with the account number and balance on it? NAF has to have an agreement to arbitrate to proceed. Inform the NAF you do not agree to arbitration because no valid contract is in place. The MBNA contract of adhesion with the arbitration clause is no longer valid because it is past the state of Delaware's statute of limitations.
GET A COPY OF THE CONTRACT THEY ARE BASING THE ARB. PROCEEDING ON.

NAF will have to respond to that. If by some chance they do not and award against you.

Send a cease and desist to Lowery for collection and arbitration out of SOL, arbitrating without an agreement to arbitrate. Then file a UDAP charge against them seeking relief for not validating the debt and trying to collect beyond the statute of limitations in your local court within 90 days of the award. (or 30 days if that is the seasoning limit for arb. awards in your state.) Get a restraining order against them for collecting debts from you and confirming arb. awards against.

Also, be very careful not to write anything that has you inadvertently admitting the debt is yours. Always refer to it as the alleged or disputed debt.

Consult a local attorney on how to proceed in your local court. Get inexpensive advice from some newly shingled attorney. He may be able to earn more with proceeds from an FDCPA case against Lowery.

This content is intended to be used with an attorney, or when a debtor cannot afford an attorney, to help find an attorney and get them started.

 

WHat has happened with NAF since you last posted ?
Woofer