It is currently Fri Oct 18, 2019 1:44 pm

All times are UTC




Post new topic Reply to topic  [ 3 posts ] 
Author Message
 Post subject: Arbitration Law
PostPosted: Mon Jan 15, 2007 11:37 pm 
Offline
Site Admin

Joined: Fri Jul 14, 2006 6:19 am
Posts: 1687
Arbitration is contractual in nature, and party cannot be required to submit to arbitration any dispute which he has not agreed so to submit. In re Currency Conversion Fee Antitrust Litigation, 265 F.Supp.2d 385, 2003-2 Trade Cases P 74,099, S.D.N.Y., Jul 07, 2003.

On motion to compel arbitration, (1) court must first determine whether parties agreed to arbitrate; (2) court must then determine scope of that agreement; (3) if federal statutory claims are asserted, it must consider whether Congress intended those claims to be nonarbitrable; and (4) if court concludes that some, but not all, claims in case are arbitrable, it must then decide whether to stay balance of the proceedings pending arbitration. Id. When deciding whether parties agreed to arbitrate certain matter, including arbitrability, courts generally should apply ordinary state-law principles that govern formation of contracts. Id.

Although solicitations containing alleged TILA violations were sent to credit cardholders prior to their receipt of any cardholder or arbitration agreement, and prior to their agreement to terms of such provision, TILA claims were within scope of arbitration clause stating that "[a]ny dispute, claim, or controversy ... arising out of or relating to this Agreement, your Account, or the validity or scope of any provision of this Agreement, [shall] be resolved by binding arbitration." Truth in Lending Act, §§ 102 et seq., 15 U.S.C.A. §§ 1601 et seq. Id.]] TILA claims were arbitrable. Truth in Lending Act, §§ 102 et seq., 15 U.S.C.A. 1601 et seq. Id. Arbitration clauses were not unconscionable on ground that pre-printed forms were used; clauses were not in "fine print" and included "block-capitalized warnings" to setoff arbitration clause from rest of the agreement. Id.

Arbitration clause's alleged one-sided "carve-out" was not unconscionable under Delaware or Arizona laws. Id. Arbitration did not violate plaintiffs' Seventh Amendment right to jury trial. U.S.C.A. Const.Amend. 7. Id. Arbitration of antitrust and TILA claims did not deprive plaintiffs of any statutory right of injunctive relief, since, under governing rules of arbitration, any relief available under applicable substantive law, including injunctive relief, was available in arbitration as well. Sherman Act, §§ 1, as amended, 15
U.S.C.A. §§ 1; Truth in Lending Act, §§ 102 et seq, 15 U.S.C.A. §§ 1601 et seq.

There are several principled grounds for finding estoppel in this action. First, the alleged wrongs by Bank One and BOA Corp. are "intimately founded in and intertwined with" the underlying agreement between First USA and BOA and their respective cardholders. Bank One and BOA Corp. are being sued for their respective subsidiaries' TILA violations and conspiracy to fix the prices of currency conversion fees. Both of these claims are derivative in nature in that the alleged wrongdoers are First USA and BOA, and not Bank One and BOA Corp. Further, plaintiffs' claims against Bank One and BOA Corp. arise from the cardholder agreements. Specifically, it was plaintiffs' credit cards, which are the subject matter of the cardholder agreements, that were allegedly unlawfully charged fixed currency conversion fees. Also, the documents provided in connection with plaintiffs' credit card accounts were allegedly violative of the disclosure obligations in TILA. Effectively, the claims against Bank One and BOA Corp. are the same as those lodged against First USA and BOA, respectively. As such, they arise under the "subject matter" of the agreement. See Chase Mortgage, 2001 WL 547224, at *2; Fluor Daniel, 1999 WL 637236, at *6.â€

_________________
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


Top
 Profile  
 
PostPosted: Mon Mar 05, 2007 4:23 am 
Offline

Joined: Mon Mar 05, 2007 3:59 am
Posts: 1
If a credit card company sells the account to a collection company,
does a BMA agreement follow along from the original creditor to the collection company account relative
to my rights to not using court litigation if I never signed anything with the collection company directly?

The terms of the debt have changed at that point would be my understanding and a
new agreement would be needed to be accepted by me as the debtor? Correct?

I have no specific agreement with a collection company and have no information of the
account ever being sold to a collection company.

Doesn't a collection company have to provide notice of the purchase of the debt?
Can a collection company represent that arbitration is REQUIRED if there is no such
signed agreement?

Thanks.


Top
 Profile  
 
PostPosted: Tue Mar 06, 2007 5:10 am 
Offline
Site Admin

Joined: Fri Jul 14, 2006 6:19 am
Posts: 1687
DebtorStrength wrote:
If a credit card company sells the account to a collection company, does a BMA agreement follow along from the original creditor to the collection company account relative to my rights to not using court litigation if I never signed anything with the collection company directly?

The terms of the debt have changed at that point would be my understanding and a new agreement would be needed to be accepted by me as the debtor? Correct?

I have no specific agreement with a collection company and have no information of the account ever being sold to a collection company.

Doesn't a collection company have to provide notice of the purchase of the debt? Can a collection company represent that arbitration is REQUIRED if there is no such signed agreement? Thanks.


A CA can only take assignment of whatever rights [as assignee or merely collector-agent] the original creditor had. As to your issue, what does the contract say about assignment of the rights? My guess is that assignment language exists and no new contract is needed. Ask for validation, in writing, if you doubt the valid assignment. See validation folder in this forum.

If there is no arb, then contest it and refuse. File suit if they refuse to provide the contract after demand. Absent a signed arb, they are dead, ie., cannot request arb.

_________________
David Szwak
Chairman, Consumer Protection Section, Louisiana State Bar Association
Bodenheimer, Jones & Szwak
509 Market Street, 7th Floor
Mid South Tower
Shreveport, Louisiana 71101
318-221-6444
Fax 318-221-6555


Top
 Profile  
 
Display posts from previous:  Sort by  
Post new topic Reply to topic  [ 3 posts ] 

All times are UTC


Who is online

Users browsing this forum: No registered users and 1 guest


You cannot post new topics in this forum
You cannot reply to topics in this forum
You cannot edit your posts in this forum
You cannot delete your posts in this forum
You cannot post attachments in this forum

Search for:
Jump to:  
cron
Powered by phpBB® Forum Software © phpBB Group