Re: Arbitration

Posted by cddfisher (205.188.209.144) on October 18, 2003 at 00:16:14:

In Reply to: Re: Arbitration posted by Why Chat on October 17, 2003 at 21:47:45:

Why Chat, except for a court or two in California virtually every decision I read on the subject upholds arbitration. I have not seen any postings on the board historically in which a claim was made that they defeated a W&A arb proceeding by fighting the right to arbitrate from the member agreement modification). Nothing in the Truth in Lending Act requires cardholder terms to be "signed" by the cardholder. the terms are binding on use of the card. The initial terms and conditions of the credit card usually contain a clause indicating that the creditor can change the terms at any time (subject to specific offers such as guaranteed interest rates, member fees etc). Once they mail those amendments, they are binding unless the cardholder opts out. If a cardholder opts out, then the creditor can close the line and allow the customer to pay the remaining balance under the then last existing terms. The same is true of arbitration. The creditors inserted the requirement and unless a cardholder opted out, the continued use of the account is acceptance of the modification. These clauses were included to avoid class actions (although again a limited court or two has stated that even class actions can exist in arbitrations). Nothing in the FDCPA relates to arbitration because it is a clause between the creditor and the customer. The principal creditor is generally not subject to the FDCPA , only a collection agent. Nothing in the FDCPA prohibits or even addresses arbitration in regard to its allowance after a creditor had added it as an amendment under the terms and conditions. I would never suggest to any person owing a claim to ignore an arbitration notice because it simply will result in an award which is easily confirmed as a judgment later. A cardholder with any valid dispute or defense should raise it in the arbitration to avoid waiving it substantively in a later action to confirm the award. If the arbitrator rules against the cardholder's defenses or assertions, at least the cardholder can have the right to show a court on confirmation the arbitrator acted capriciously and arbitrarily in failing to recognize a legitimate defense or dispute which should have precluded the arb award. This will allow a court to deny confirmation.

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