Re: Wolpoff and Abramson Arbitration

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...First thing I'd do is check the statute of lmitations in
your geogrpahic location. Even at this stage, the court
might disallow he "award" if he or she believes that it is
no longer a legally enforceable debt.

Failing that, you should expect that the Motion to Confirm
and Arbitration Award will be decided on summarily by the
judge, whether you show up to the Motion hearing or not.
That means that the judge will give the thumbs up or down
there and then. It's quite possible that creditor's attorney
will even have been required to type up the confirmation of
the "award" before coming to court.

So, above all, stay involved and SHOW UP.

However, you do have a period of time -- probably 15 to 20
days, depending on where you are in the country -- to
respond to the motion.

If you still have time left to do so, (actually, even if you
don't)I would respond with a vehement denial that you were
ever properly served the notice of arbitration hearng. (I'm
assuming you didn't get it.)

The Court can not get involved in the actual arbitration
hearing itself, but it does have jurisdiction -- authority --
over the mechanics of the process, such as service of notice.

Another common weakness of these Motions to Confirm an
Arbitration Award is that, contrary to the Federal
Arbitration Act (FAA), many of the creditors filing them do
not possess the original agreement to arbitrate any disputes
that arise between the account holder and the creditor.

The FAA states that the agreement to arbitrate MUST
accompany the Motion to Confirm an Arbitration award.
However, the creditor can get around this if, as you
apparently did, the consumer didn't complain about the
arbitration award within the 30 days that Federal laws
allows them to do so.

Since it's a credit card debt, there probably exists a
generic contract (a "credit card terms and conditions" kind
of thing), which you may or may not have physically signed,
depending on how you enrolled with the credit card.

The agreement that you "signed" to arbitrate disputes
between you and the lender was probably attached to this
contract of adhesion. This means that it's attached to
another contract as part of the (usually) boilerplate
wording of the contract and that it is, most likely, a take-
it-or-leave it contract.

If you didn't physically sign anything, you will
have "agreed" to the arbitration and the other terms of the
credit card agreement generally the first time you used your
card. (Your "signature" would have been by conduct: i.e. if
you used the card then, by default, you agreed to the terms
of the credit card agreement, including the arbitration
clause.

I would strongly advise you to go back in these postings and
look at the Vermont decision to vacate that I posted a
couple weeks ago.

Unless you're in Vermont, you won't be able to use the
decision as precedent. However, the judge cites some
decisions that you will find very useful in preparing your
adverse response to the Motion to Confirm an Arbitration
Award.

One thing I noticed which, if you don't mind, I'll
repsectfully point out:

All of the communications that you seem to have written to
the credit card company seem to reinforce the notion that
you owe this credit company money.

If that's the way you feel, then that's fine. But, at the
end of the day, it is the credit card company that has to
prove that you owe them money. The last thing I'd want to do
if I were you is to make this any easier for them.

At this point, it's probably too late in your case to do
much about this, since you're so far along in the process.
However, even now, it can't hurt to stand up for yourself
rather than assume that you've somehow done something wrong,
which is for them to prove and not for you to assume.

To summarise, then:

1. Write a response to the Motion to Confirm an Arbitration
Award stating spefically that service of notice of
arbitration hearing was insufficient and that such
deficiency warrants vacation of the "award."

2. In your response (respectfully) demand that the creditor
affirmatively associate you with the contract that the
creditor is alleging you signed. Even at this late stage,
the Court might well agree with you that the creditor should
show that you agreed to arbitrate the dispute, either via
the prodution of credit card statements showing that you
used the card and that the card was actually yours, or by
producing an affidavit (sworn statement) by someone who is
familiar with your alleged agreement to the contract.

Another, less likely, defense is that the arbitration award
itself is deficient, either by way of not being properly
sworn -- nobody actually swears to anything on the National
Arbotration Forum's "awards," rather, there is a third
person statement that "The person below..." or "The
undersigned..." affirms that the award is genuine.

Again, the NAF award has a signature from a dude named
Kalinas who testifies that all of the points of the "award"
(which he will not even have read) are accurate, including
(usually) that the notice of hearing and award were properly
served. Clearly, in your case, the notice of arbitration
hearing was not properly served, since you weren't living at
the place where it was allegedly sent.

Remember, you can challenge service of the notice in the
court.

Personally, I would throw the lot at them and see if either
anything sticks or you scare them off.

The only certainty here is that, if you do nothing, you will
owe these criminals not only what you borrowed plus fair
interest, but also a crap load of fees etc that you would
never had agreed to have paid per an arbitration agreement
if you had ever had a choice over the matter.

I also think that you are way beyond the point where you
should enter into any agreement to pay the creditor anything
as a compromise. (BEsides, this will reset the statute of
limitations on the debt, which, if you haven't paid anything
in years, might well have expired.)

Again, please take the time to read the Vermont decision I
posted.

Good luck.

Let us know what happens...

On 10/22/07, Val Vigil wrote:
> Please help. I am a resident physician (make very little
> money working >80 hours per week as a physician in
> training in the hospital) with a large debt, and VERY
> little legal knowledge. I defaulted on credit card
> payments for the first time in 2003, when my "special"
> interest rate shot from 2.5&37; to 18&37;(total debt
around
> 28,000). I contacted the company ahead of time but of
> course the answer was " you actually have to default on
> payments before anyone can help you". Ridiculous! Anyhow,
> since that time I have been periodically recieving demands
> for payment in full, and have mailed MULTIPLE letters
> pleading for payment plans, to no avail. I moved a year
> ago, and apparently during that time they filed an ??
> arbitration?? which was of course uncontested since I
> didn't know it was going on. Now I have been served papers
> to show up in court for a "petition to confirm arbitration
> award". Can someone please help me understand what is
> going on and the smartest way to handle it? I have no
> access to a lump sum of money for this debt. ??
> I would really appreciate some good advice. Cannot afford
> legal assistance, don't even know if it would help.
> Val Vigil vvigil@stanford.edu