Re: National Arbitration Forum against me

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I disagree Steven. Maybe you should address your objections to the
courts in Vermont.

All Gary did was post a decision from that court.

So focus, man, focus.

You're acting like your head is where it's dark, warm and smelly.

On 10/17/07, Steven B. wrote:
> Ok what in thew world makes you any different than the card
> companies? In this situation there is NO grounds for a dispute. She
> freely admits to making a bad decision and judge of character. By
all
> rules she owes the money she backed him up and he bailed. So Sad So
> Sorry .. next subject ... You should not focus on how to beat NAF or
> MBNA or who ever ... The debt is hers. What you should focus on Gary
> is that based on her current situations what she has to worry about
> with award filed. Has it been confirmed? She is on disability so she
> is in the portion judgment proof. Ask her if has property that the
> creditor may be able to place a lien on... HELP her out instead of
> trying to "fight the man". It is situations like this and people
like
> you that make it hard for people like me that have legitimate
> complaints and disputes to go forward. -- Quit trying to beat the
> system and do what is right! ---- b
>
> On 9/24/07, Gary Ricin wrote:
>> Here's an interesting ruling that was sent to me by a fellow
>> CounselNetter. It is only a Vermont Superior Court Ruling, so it
>> won't be much use as precedent in other jurisdictions. But there
>> might be some interesting ideas/resources etc in here to help
>> folks fight back against these crooks.
>>
>> MBNA did not appeal this ruling and is currently being sued
>> by "Mary Smith" -- the name has been changed for privacy -- for
>> harrasment, violations of the FDCPA etc. Smith is also suing NAF,
>> Wolpoff & Abramson and the (incompetent?)lawyers who filed the
>> MBNA petition to arbitrate against Smith that was vacated in the
>> ruling below.
>>
>> Please note that Smith is a Pro Se candidate (that means that she
>> did all of the legal work herself and represented herself.
>> Also, "Pro Per") yet she took the country's biggest arbitration
>> scammers -- with billions of dollars worth of lawyers at their
>> back -- to the woodshed for a good ol' Vermont butt kicking! :-)
>>
>> If she can do it, so can you.
>>
>> Good Luck!
>>
>>
>>
>>
>> STATE OF VERMONT WINDHAM COUNTY
>>
>> MBNA AMERICA BANK NA,
>> Plaintiff,
>> v. WINDHAM SUPERIOR COURT DOCKET NO. 588-12-06
>> Wmcv "MARY SMITH,"
>>
>> Defendant.
>>
>> DENIAL OF PETITION TO CONFIRM ARBITRATION AWARD
>>
>>
>> Plaintiff-creditor MBNA filed this petition to confirm and enforce
>> an arbitration award of $7,776.85. However, MBNA failed to file
>> anything to establish the existence of a written agreement
>> containing an arbitration provision that was binding on Defendant-
>> debtor Smith. Moreover, MBNA's substitute service of the notice of
>> the arbitration on an unknown person who refused to identify
>> himself was inadequate under the arbitration rules, the civil
>> rules, and principles of due process. Additionally, the notice of
>> the arbitration award shows that it (and presumably anything else
>> sent out by the arbitrator) was sent to Smith at the wrong street
>> address. While it is true that state and federal laws reflect a
>> policy of favoring arbitration of commercial disputes and
>> upholding arbitration awards where parties to commercial
>> transactions have agreed to arbitrate, this does not mean that
>> courts should turn a blind eye to credit industry practices that
>> transgress the boundaries of due process. Accordingly, MBNA's
>> petition to confirm and enforce the award is DENIED and the award
>> is VACATED.'
>> Although the parties have presented cross-motions for summary
>> judgment, the Vermont Supreme Court has held that petitions to
>> confirm should themselves be summarily treated as motions under
>> V.R.C.P. 78. See Springfield Teachers Assn. V. Springfield School
>> Directors, 167 Vt. 180. 186 (1997). Since the Court is deciding
>> the petition without a hearing under V.R.C.P. 78(b)(2), the
>> questions are essentially the same - are there any genuine issues
>> of material fact in dispute and is it clear that one side is
>> entitled to prevail.
>>
>> Existence of the Agreement
>> While not explicitly required by the Vermont Arbitration Act, the
>> Federal Arbitration Act (FAA) specifies that an application to
>> confirm an arbitration award must be accompanied by a copy of the
>> parties' agreement to submit any dispute to arbitration. 9
>> U.S.C.A. § 13(a). Here, MBNA did not file an agreement with its
>> application. It did subsequently attach a generic credit card
>> agreement as an unauthenticated exhibit to a brief; notably, the
>> standard arbitration provision therein states that the FAA will
>> govern. Even more notable, however, is absence of admissible
>> evidence to show that Smith ever received or consented to be bound
>> by this agreement.
>>
>> At least two other courts have denied petitions to confirm awards
>> where the debtor challenged the existence of an applicable
>> agreement and MBNA failed to produce evidence of one. See MBNA
>> America Bank, N.A. v. Credit, 132 P.3d 898, 900-02 (Kan. 2006)
>> (noting a “national trend in which consumers are questioning MBNA
>> and whether arbitration agreements exist”); MBNA America Bank,
>> N.A. v. Straub, 815 N.Y.S.2d 450 (N.Y. Civ. Ct. 2006). Moreover, a
>> debtor may raise lack of an arbitration agreement as a defense to
>> a petition to confirm an arbitration award even if he or she did
>> not timely move to vacate the award. MBNA America Bank N.A v.
>> Boata, 893 A.2d 479 (Conn. Ct. App. 2006); see also Straub, 815
>> N.Y.S.2d at 455.1
>>
>> Recognizing the unusual fashion in which credit card contracts are
>> generally formed, the
>>
>>
>> ((([THIS IS A FOOTNOTE 2] MBNA would be hard-pressed to make this
>> argument in any case, since Smith denies receiving the notice of
>> the award and MBNA's own documentation shows it went to the wrong
>> address.)))
>>
>> court in Straub set out exactly the method of proof it would
>> expect of credit card companies to establish the existence of an
>> applicable agreement in these types of cases: the credit card
>> company must provide both (1) the written contract containing the
>> provision authorizing arbitration, and (2) proof that the
>> cardholder agreed to be bound by this contract, in writing or by
>> conduct. 815 N.Y.S.2d at 452. In other contexts, these two steps
>> will generally be one and the same because the existence of the
>> written agreement can be established by simply producing the
>> executed written document. With credit cards, however, the written
>> agreement on which the creditor relies will generally not be an
>> executed document, so the second step - establishing that this
>> debtor implicitly agreed to be bound by the generic written
>> agreement containing the arbitration provision - will generally
>> require an affidavit from someone who can tie the debtor in
>> question to the generic written agreement by testifying, based on
>> personal knowledge, that the debtor received the written agreement
>> and subsequently proceeded to use the credit card. 815 N.Y.S.2d at
>> 453-54.3 For a general discussion of the unique way credit card
>> agreements are made and how that impacts what must be done to
>> establish their existence, see also MBNA America Bank, N.A. v.
>> Nelson, 15 Misc.3d 1148(A), 2007 WL 1704618 (N.Y. City Civ. Ct.
>> 2007), unpublished slip op. at sect. V.B., pp. 7-11.
>> Citing David L. Thelkeld & Co. v. Metallgesellschaft, 923 F.2d 245
>> (2d Cir. 1991), MBNA claims that the holding in that case
>> justifies its extreme position that no showing of an
>>
>>
>> ((([THIS IS A FOOTNOTE 3]))) The court in Straub relied to some
>> degree on New York procedural rules, but these rules are not very
>> different from ours. More importantly, the requirements set out in
>> Straub are equally grounded in the FAA, which is fully applicable
>> to agreements in Vermont. Based on the extremely well-reasoned
>> analysis of the Straub holding, this Court finds it eminently
>> persuasive and predicts that it will be adopted by the Vermont
>> Supreme Court should the issues herein be squarely presented on
>> appeal..
>>
>>
>> applicable written agreement is necessary at all. This argument
>> takes Metallgesellsc haft beyond the reach of its ruling, which
>> did not involve the need to prove the arbitration agreement.
>> Metallgesellschaft, which was based on preemption analysis, held
>> that Vermont could not impose an additional requirement, beyond
>> those of the FAA, that there be an explicit and prominent
>> acknowledgment of the arbitration provision by the debtor,
>> separate from the debtor's agreement to be bound by the rest of
>> the contract. However, Metallgesekkschaft did not and could not
>> render unnecessary the existence of a written agreement containing
>> an arbitration provision and binding the particular debtor in
>> question, since the existence and production of such an agreement
>> is required by the FAA itself See 9 U.S.C.A. §§ 2 & 13. "Federal
>> public policy favors arbitration, but not at the price of fairness
>> and common sense." Stone v. Golden Wexler & Sarnese, P.C., 341
>> F.Supp.2d 189, 192 (E.D.N.Y. 2004).
>>
>> Based on the language of 9 U.S.C.A. § § 2 & 13 and the persuasive
>> logic of Credit and Straub, the Court concludes that MBNA's
>> petition to confirm the arbitration award must be denied based on
>> its failure to document the existence of a written agreement
>> containing an arbitration provision which can be shown to be
>> binding on Smith.
>>
>> Service
>>
>> If MBNA's failure to establish the existence of a written
>> agreement containing an arbitration provision were the only
>> problem here, the Court would simply deny the petition to confirm
>> without prejudice, allowing MBNA the opportunity to document the
>> existence of such an agreement if it could. Such an opportunity to
>> cure would be superfluous, however, because MBNA's service of the
>> notice of arbitration was insufficient under the applicable rules
>> and principles of due process, resulting in an arbitration
>> proceeding that was fundamentally flawed.
>>
>> Assuming that Smith can be shown to be bound by the generic
>> written agreement containing an arbitration provision, that
>> provision specifies that the arbitration will proceed under the
>> Code of Procedure of the National Arbitration Forum (NAF). Rule 6
>> (B) of the NAF Code lists the ways in which the notice of the
>> arbitration claim may be served. One of these ways, see Rule 6(B)
>> (4), is service in accordance with either the Federal Rules of
>> Procedure or the procedural rules of the jurisdiction in which the
>> agreement was made. Under both the Vermont Rules and the Federal
>> Rules, service may be made by leaving copies at the defendant's
>> dwelling house or usual place of abode, "with some person of
>> suitable age and discretion then residing therein." V.R.C.P. 4(d)
>> (1); see also F.R.C.P. 4(e)(2).
>>
>>
>> This was apparently what the process server tried to do in this
>> case, but the server's unsworn proof of service reveals that the
>> notice of arbitration was served on an unknown 5'7" white male at
>> Smith's address who refused to identify himself. Smith stated in
>> her Answer that she did not receive notice of the arbitration; and
>> she also submitted an affidavit from her boyfriend stating that he
>> did not receive the service and that he is 6’0” tall.
>>
>> Additionally, the arbitrators used an erroneous street address for
>> Smith, so that notices subsequently mailed out by the arbitrators,
>> including the award itself, were sent to someone else's address.
>> "An elementary and fundamental requirement of due process in any
>> proceeding which is to be accorded finality is notice reasonably
>> calculated, under all the circumstances, to apprise interested
>> parties of the pendency of the action and afford them an
>> opportunity to present their objections." Mullane v. Central
>> Hanover Bank & Trust Co., 339 U.S. 306, 314 (1950). Indeed, it is
>> to meet this minimal requirement that the papers to be served must
>> be left with a person of suitable age and discretion then residing
>> therein - otherwise, the act of leaving them with a third
>> person is not reasonably calculated to provide actual notice of
>> the pending proceeding. When, as here, an unknown person answers
>> the door and refuses to cooperate even to the point of identifying
>> himself, how can he be deemed a person of suitable age and
>> discretion then residing therein? Even more pertinently, how can
>> he be considered reasonably likely to actually pass the papers
>> along to the person who needs to receive them? The Court notes
>> that the process service company apparently recognized this
>> potential problem, because its invoice contained a warning that if
>> the papers were left with someone who refused to identify himself,
>> the client should consider whether further or alternative attempts
>> to serve should be made.
>>
>> Although the Court's scope of review on a petition to confirm an
>> arbitration award is limited, it can and should include the
>> question of whether the parties were afforded due process in the
>> arbitration proceeding. Cf. Springfield Teachers' Assoc. v.
>> Springfield School Directors, 167 Vt. 180, 184 (1997) (court does
>> not review arbitrator's decision for errors of fact or law, but
>> confines its review to whether there are statutory grounds to
>> vacate or modify, and whether the parties were afforded due
>> process). Here, the Court concludes as a matter of law based on
>> the undisputed facts that the service of the notice of arbitration
>> was not on a person of suitable age and discretion who resided in
>> Smith's home, that it was not reasonably calculated to provide
>> Smith with actual notice of the proceeding, and that it therefore
>> violated both the procedural rules and Smith's due process rights.
>> Accordingly, the arbitration award must be vacated; and if MBNA
>> chooses to pursue its claim against Smith through arbitration, it
>> will need to start the process anew.
>>
>> ORDER
>>
>> MBNA's petition to confirm and enforce an arbitration award is
>> DENIED and the award is VACATED.