Thursday, August 8, 2013

Arbitration vs Litigation - PROs and CONs in credit card collection context


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, the arbitrator renders a decision (arbitration award) that is binding upon the parties whether they like it or not.  Arbitration thus bears greater resemblance to a court proceeding, but it still offers a number of distinct advantages over a court proceeding.  
Providing a benefit to nonpaying 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 irrevocable arbitration clause.

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).


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.

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. Plaintiff’s attorneys and their law office staff does 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.


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 (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.


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.

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.  


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 the problem.

A plaintiff can also 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 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 (counter) plaintiff by asserting a counterclaim, a non-suit as to the counterclaim would not make the Plaintiff's claim go away. Stated differently, the defendant has not equivalent mechanism to terminate the lawsuit unilaterally and return the parties to their original positions.  

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