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€
Arbitration Law
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- Posts: 1974
- Joined: Thu Jul 13, 2006 11:19 pm
Arbitration Law
Post by David A. Szwak »
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
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
Collection Companies and BMA
Post by Guest-1632 »
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.
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.
-
- Posts: 1974
- Joined: Thu Jul 13, 2006 11:19 pm
Re: Collection Companies and BMA
Post by David A. Szwak »
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.Guest-1632 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.
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
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
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- ↳ Delta Group aka Joseph, Ortiz & Epstein, LLC
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- ↳ DMG Consulting
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- ↳ Elder, Timothy L. / Barnford, Thomas K.
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- ↳ ER Solutions
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- Debt Collection Companies and Attorneys: GGGGGG
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- ↳ GC Services
- ↳ Gemini Recoveries, Inc.
- ↳ Giove Law Office, P.C.
- ↳ Global Acceptance Credit Company (GACC)
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- ↳ General Revenue Corp.
- ↳ Goggins & Lavintman, PA
- ↳ Gulf State Credit
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- ↳ Greenberg, Grant & Richards, Inc.
- Debt Collection Companies and Attorneys: HHHHHH
- ↳ Hanna, Frederick J. & Assoc.
- ↳ Harker, John W. [CACV]
- ↳ Harrison Ross Byck, Esq.
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- ↳ Hosto and Buchan
- ↳ Household Recovery Services Corp.
- ↳ Hudson & Keyse, LLC
- ↳ Hull & Associates, P.C.
- Debt Collection Companies and Attorneys: IIIIII
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- ↳ Joseph, Ortiz & Epstein, LLC a/k/a Delta Group
- Debt Collection Companies and Attorneys: KKKKKK
- ↳ Kay, Mitchell N., P.C. [Law Offices]
- ↳ Kravitz, Schnitzer, Sloane, Johnson & Eberhardy, CHTD
- Debt Collection Companies and Attorneys: LLLLLL
- ↳ Lenahan Law Offices
- ↳ Lang, Richert & Patch
- ↳ LDG Financial Services II, LLC
- ↳ Leasecomm Corporation
- ↳ Legal Recovery Services, Inc.
- ↳ LHR, Inc.
- ↳ Love, Beal & Nixon, PC
- ↳ Lowery, Scott P., P.C. a/k/a CACH, LLC
- ↳ LTD Financial Services, L.P.
- ↳ LVNV Funding, LLC
- Debt Collection Companies and Attorneys: MMMMMM
- ↳ Magnus Services, Inc.
- ↳ Mann-Bracken, LLC
- ↳ Marauder Corporation
- ↳ McKelvey Law Office
- ↳ Meadows Law Office - Sheree Meadows
- ↳ Mel S. Harris & Associates
- ↳ Merchant's Credit Guide Co.
- ↳ Messerli & Kramer
- ↳ Midland Credit Management, Inc.
- ↳ Mims, Jerry M., Lawyer
- ↳ Moore, Gerald E. & Associates
- ↳ MRS Associates, Inc.
- ↳ Myers & Porter, Attorneys
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- ↳ NCO Financial
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- ↳ National Acceptance
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- ↳ National Attorney's Network
- ↳ National Credit Adjusters
- ↳ National Enterprise Systems
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- ↳ National Revenue Corporation
- ↳ Nationwide Capital Recovery
- ↳ Nationwide Credit, Inc.
- ↳ Neuheisel Law Firm, PC
- ↳ New Horizon Credit, Inc.
- ↳ New Vision Financial
- ↳ North Shore Agency
- ↳ North Star Capital Acquisitions, LLC
- ↳ Northeast Credit & Collections
- Debt Collection Companies and Attorneys: OOOOOO
- ↳ Omnia Credit Services
- ↳ O'Neill Management, Inc. Investigators
- ↳ Ozark Capital Corporation
- ↳ OSI/Outsourcing Solutions
- Debt Collection Companies and Attorneys: PPPPPP
- ↳ Performance Capital Management
- ↳ Pacific Coast Collections (Alliance One)
- ↳ Palisades Collections, LLC
- ↳ Penn Credit Corporation
- ↳ Phillips & Burns, LLC
- ↳ Phillips & Cohen Associates, Ltd.
- ↳ Pinnacle Asset & Capital Management Grp, LLC
- ↳ Plaza Associates
- ↳ Portfolio Exchange
- ↳ Portfolio Management of Amherst, LLC.
- ↳ Portfolio Recovery Associates, LLC
- ↳ Preferred Platinum Plan
- ↳ Prime Asset Recovery, Inc. / www.giovelawofficeexposed.com
- ↳ Pro Collect, Inc.
- Debt Collection Companies and Attorneys: QQQQQQ
- ↳ Quadrant Group LLC - The Recycle Shop
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- ↳ Ranieri, Christopher, Law Office of
- ↳ RCS Centre Corp.
- ↳ Redline Recovery Services, LLC
- ↳ Regent & Associates, P.C.
- ↳ Resurgent Capital Services / Sherman Acquisitions
- ↳ Reynolds, Jacobson & Sloane, Attorneys
- ↳ Riddle [Jessie Riddle] & Associates
- ↳ Risk Management Alternatives (RMA)
- ↳ RJM Acquisitions, LLC
- ↳ Roach, Larry, Law Offices of
- ↳ Rosenthal & Colby, Inc.
- Debt Collection Companies and Attorneys: SSSSSS
- ↳ Sherman Acquisitions
- ↳ Sagres Company, (the)
- ↳ Scherr, Harold E. , Attorney / Con-America
- ↳ Schreiber and Associates, PC.
- ↳ Shekinah, Inc.
- ↳ Sherman Financial Group/Alegis (SDB)
- ↳ Specified Credit Association
- ↳ Stanley Weinberg & Associates
- ↳ Steinbrenner, Carl A.
- ↳ Stevens & James Debt Collectors
- ↳ Sky Recovery Services
- Debt Collection Companies and Attorneys: TTTTTT
- ↳ Tabula Rasa, Inc.
- ↳ Taylor, Jay A., PC [Jay A. Taylor, Esq.]
- ↳ Titan Recovery Group
- ↳ Transcontinental Adjustment Corp.
- ↳ Trauner Cohen & Thomas f/k/a Trauner King & Cohen
- ↳ Triadvantage Credit Services
- Debt Collection Companies and Attorneys: UUUUUU
- ↳ Unifund Group Corp. a/k/a Unifund CCR Partners, LLC
- ↳ United Creditors
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- ↳ United Recovery System
- ↳ US Audit Control
- Debt Collection Companies and Attorneys: VVVVVV
- ↳ Van Ru Credit Corp.
- ↳ Varde
- ↳ Vasques, Luis, Attorney [Luis E. Vasques, Esq.]
- Debt Collection Companies and Attorneys: WWWWWW
- ↳ Wexler & Wexler, PA
- ↳ Wolpoff & Abramson, LLP
- ↳ Weltman, Weinberg & Reis
- ↳ Wendt Law Offices
- ↳ West Asset Management
- ↳ Westmoreland Agency [Capital One Bank]
- ↳ Winn and Sims, PC
- ↳ Wolf, Jack, PA [Jack Wolf, Esq.]
- ↳ Wolpoff & Abramson, LLP
- ↳ Wolter, Warren H, Attorney [Warren H. Wolter, Esq.]
- ↳ Worldwide Asset Purchasing, LLC
- ↳ Wright, Makel Ann, Esq. [Makel Ann Wright, Esq.]
- Debt Collection Companies and Attorneys: ZZZZZZ
- ↳ Zenith Acquisitions Corporation
- ↳ Zwicker & Associates, PC