BENEFITS OF ARBITRATION TO THE DEBT SUIT DEFENDANT
The official rationale for the public policy preference in favor of arbitration, and ADR in general, is that is provides a more efficient and less expensive mechanism for resolution of disputes in a private setting.
Unlike
mediation, however, which will result in a resolution only upon consent of both
parties to the terms of a settlement facilitated by the mediator acting as a disinterested third party, the
arbitrator renders a decision (arbitration award) that is binding upon the
parties whether they like it or not. The arbitrators essentially performs the role of a judge, but is not a public official.
Arbitration thus bears great resemblance to a court proceeding, but it still offers a number of distinct advantages over a court proceeding. At least for one party to an arbitration clause within a contract.
Providing a benefit to customers was likely not the motivation for most credit card issuers to write arbitration provisions into account agreements. But the fact is that most such agreements still contain them, and they are equally available to both parties. Even if a credit issuer substituted a new cardmember agreement that omits arbitration to replace an earlier version, this may not cancel the right to arbitrate if the prior agreement contained an arbitration clause that was irrevocable.
Arbitration thus bears great resemblance to a court proceeding, but it still offers a number of distinct advantages over a court proceeding. At least for one party to an arbitration clause within a contract.
Providing a benefit to customers was likely not the motivation for most credit card issuers to write arbitration provisions into account agreements. But the fact is that most such agreements still contain them, and they are equally available to both parties. Even if a credit issuer substituted a new cardmember agreement that omits arbitration to replace an earlier version, this may not cancel the right to arbitrate if the prior agreement contained an arbitration clause that was irrevocable.
By filing a
debt collection suit, the bank or its assignee has already expressed a
preference for litigation over arbitration. But the defendant still has a
choice, assuming there is no dispute as to the identity of the contract that
governs the parties’ relationship (-- > existence of arbitration agreement;
-- > contract formation).
ARBITRATION
BEFORE AND AFTER INITIATION OF A DEBT COLLECTION SUIT
If the
consumer has a choice to opt for arbitration prior to a lawsuit being filed, he
or she can avoid a public record of a lawsuit having been filed in which he is
the defendant (though that may eventually also happen after an arbitration, if
the consumer loses, does not pay the debt, and the creditor files a suit to
confirm arbitration award.)
But even
when a debt collection lawsuit is already on file, the Defendant should in most
cases be able to better protect privacy by moving for arbitration because the
creditor will then have to make its case privately in arbitration, rather than
publicly in court. Court proceedings always create a public record and motions
to seal the record are virtually unheard-of in debt collection cases. So, if a debtor does not want to have a public record, arbitration would seem to be the better forum, or will at least delay the creation of a public record. These days, of course, Creditors simply file collection suits en mass and do not bother with arbitration.
Protection of Privacy Interests
If a motion
for summary judgment is filed in a credit card debt suit, it often entails
years worth of spending on credit cards becoming a matter of public record as
summary judgment exhibits. Some defendants may not care if copies of credit
card statements are filed in court, but others may not wish to have their spending
history revealed to anyone who might be interested. In many court systems, exhibits
are now accessible over the web along with pleadings and other court-filed
documents.
Additionally,
sensitive information, such as social security numbers, birth dates, income and
employment data, may make into the court’s file also (and possibly on-line),
even if such information is supposed to be redacted. Plaintiffs' attorneys and
their law office staff do not always take care to remove or blacken out protected
information. Sensitive information of this nature typically appears on credit
applications. Though not routine, some plaintiffs include an application for a
credit card among their exhibits. In other types of debt collection litigation –
such as on lines of credit and promissory notes – the inclusion of the application
for credit as a summary judgment or trial exhibit is even more common.
Discovery Burdens
The normal
rules of discovery that govern a lawsuit filed in a Texas court do not apply in
arbitration. The same is true of such matters as deadlines as they are found on
court-issued docket control orders. To
the extent a creditor’s attorney has a policy of serving a load of discovery
requests, the defendant can avoid the hassle of having to respond to it, and
would not face a motion to compel or a motion for sanctions that would
otherwise be authorized under the discovery rules.
By having the
debt matter dealt with in arbitration, the consumer can also avoid being
subpoenaed through the court system, on pain of contempt of court for
noncompliance with the subpoena.
Depositions
are rarely taken in debt collection suits. But it does happen occasionally and private
court reporters that transcribe the question-answer-session are expensive. If
the deponent loses, the cost of the deposition, which may run into the hundreds
of dollars or more, qualifies as a part of the “taxable cost” of the lawsuit,
and the looser becomes liable for it in addition to the amount of the judgment.
Grace period
to weigh options and improve settlement posture
Although
arbitration is touted as a quicker method of dispute resolution, this may not
be the case. Particularly when the creditor and the lawfirm it retains for
litigation are not set up to arbitrate cases on a large scale and in an
efficient manner.
If the diversion
to arbitration results in a delay, it may provide the defendant additional time
to earn or otherwise raise funds for a settlement, or to contemplate whether or
not to file for bankruptcy. A delay in the resolution of a debt case may be of
particular benefit to a debtor who is unemployed, but not unemployable,
assuming continued improvement in the relevant job market enhances the prospect
of improving his or her financial condition.
Additionally,
if a defendant insists on arbitration, and this causes inconvenience to the Creditor or its lawyers, the chances of settlement on more favorable terms may
improve.
Enforceability
An
arbitration award constitutes a final authoritative resolution of the case,
just like a judgment, but it is not enforceable as a judgment unless and until
it is confirmed by a court of competent jurisdiction. This requires a return
back to court and a proper motion to confirm (if a case was filed in court first and
abated) or an independent lawsuit filed for the sole purpose of confirming the
arb award and turning it into a judgment, with all the consequences such a
judgment entails, -- such as execution and recording of an abstract of judgment
in the county’s real estate records, and garnishment of bank accounts.
DISADVANTAGES OF OPTING FOR ARBITRATION OF A DEBT SUIT
The Texas
Rules of Civil Procedure and Rules of Evidence do not apply in arbitration because arbitration organizations have their own rules of procedure.
Therefore, in cases in which these rules could be invoked to secure a resolution in the defendant’s favor in court, they may not be effective in arbitration notwithstanding the applicability of the substantive law regardless of whether the case is in judicial or arbitral forum. The procedural aspects and admissibility issues are a different matter.
Therefore, in cases in which these rules could be invoked to secure a resolution in the defendant’s favor in court, they may not be effective in arbitration notwithstanding the applicability of the substantive law regardless of whether the case is in judicial or arbitral forum. The procedural aspects and admissibility issues are a different matter.
Examples
would be objections to authenticity of documents and challenges to the
competency and qualifications of affiants, particularly in the case of debt
collection suits brought by downstream debt-buyers at the end point of a chain
of assignments. Such evidentiary
objections are often successful in court in defeating a motion for summary
judgment, and may also prove effective at trial. On the other hand, many arbitrators were previously judges, and may be receptive to evidentiary arguments because have had plenty of occasion to deal issues of authenticity and admissibility while on the bench.
AVOIDING THE EFFECT OF DEEMED ADMISSIONS - "PLAN B" FALL-BACK
That said, a
motion to compel arbitration might be an alternative method to deal with deemed
admissions because the deemed admissions would not be valid as a substitute for
evidence in another proceedings.
Since the Texas Supreme Court has set the standard for withdrawing (or striking) inadvertent deemed admissions rather low, however, a move for arbitration to avoid the consequences of not having answered requests for admission in a timely fashion will often be unnecessary. Still, it may provide a Plan-B option should the trial court, contrary to expectations, rule against the defendant’s motion to strike deemed admissions, which is the proper mechanism to deal with this type of problem.
A plaintiff avoid the effects of deemed admission (i.e. its failure to answer requests for admission served on it by the Defendant’s counsel) by non-suiting the pending action and causing it to be dismissed without prejudice to re-filing it later.
But a non-suit is not an option for the defendant. Even if the Defendant had become a plaintiff by asserting a counterclaim for wrongful debt collection practices, a nonsuit by the Defendant as Counter-Plaintiff would only dispose of the counterclaim. It would not make the Creditor's claim go away.
Stated differently, the Defendant has no equivalent mechanism to terminate the lawsuit unilaterally and return the parties to their original positions. But a motion to compel arbitration might be a way to get the case into a different forum. To avoid claims of waiver, however, such a motion should not be filed late in the game. --> Waiver of the Right to Arbitrate by Litigation Conduct
Since the Texas Supreme Court has set the standard for withdrawing (or striking) inadvertent deemed admissions rather low, however, a move for arbitration to avoid the consequences of not having answered requests for admission in a timely fashion will often be unnecessary. Still, it may provide a Plan-B option should the trial court, contrary to expectations, rule against the defendant’s motion to strike deemed admissions, which is the proper mechanism to deal with this type of problem.
A plaintiff avoid the effects of deemed admission (i.e. its failure to answer requests for admission served on it by the Defendant’s counsel) by non-suiting the pending action and causing it to be dismissed without prejudice to re-filing it later.
But a non-suit is not an option for the defendant. Even if the Defendant had become a plaintiff by asserting a counterclaim for wrongful debt collection practices, a nonsuit by the Defendant as Counter-Plaintiff would only dispose of the counterclaim. It would not make the Creditor's claim go away.
Stated differently, the Defendant has no equivalent mechanism to terminate the lawsuit unilaterally and return the parties to their original positions. But a motion to compel arbitration might be a way to get the case into a different forum. To avoid claims of waiver, however, such a motion should not be filed late in the game. --> Waiver of the Right to Arbitrate by Litigation Conduct
Last updated: 12/9/2018
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