Allegation: Capital One is time-barred by the Statute of Limitations and therefore the November 7, 2011 Counterclaim in JAMS should be dismissed.
Claimant asserts that the Statute of Limitations should fall under the 2-year catch-all for Virginia. If the forum determines that the two year catch-all does not apply, the 3-year Statute of Limitations shall apply. Respondent references the Virginia Attorney General’s opinion as it relates to written contracts. Respondent fails to point out the footnote that states “If, however, a court were to hold that one or more essential contractual items were missing from the writings, or that parol evidence was required to fully establish a missing term, it would conclude that the requirements of 8.01-246(2) were not met, and apply the three year statute of limitations for unwritten contracts.
Futhermore, it also states that courts in other jurisdictions have followed this approach in credit card cases. Portfolio Acquisitions, LLC v. Feltman (parol evidence needed to establish all essential terms and conditions of agreement and the relationship between parties). Colorado National Bank of Denver v. Story (signed credit card application and billing statements, in and of themselves, do not establish written contract). Jenkins v. Gen. Collection Co. (credit card company failed to produce receipts signed by cardholder).
Additionally, Claimant refers the forum to recent Florida court cases involving the Respondent, Capital One v. Pincus and Capital One v. Gregorich, where the Statute of Limitations has been held to 3 years.
Claimant asserts that the start of the Statute of Limitations begins to run on the first date of delinquency. The last payment was made on August 9, 2008, therefore the first date of delinquency would be August 10, 2008. If the forum finds that the three year Statute of Limitations applies, Claimant points out that although the Claimant’s Demand for Arbitration was typed on August 6, 2011, it was not mailed until August 9, 2011, and was not received by JAMS on or before August 10, 2011. Additionally, it was not received by the Respondent until August 11, 2008 (Exhibit 32). Therefore, Claimant contends that the Statute of Limitations had expired.
Furthermore, on August 23, 2011, Veda Jablan, Business Manager for JAMS, sent out a Notice of Intent to Initiate Arbitration. Along with this Notice of Intent to Initiate Arbitration, Ms. Jablan included an invoice to Claimant for the $250 filing fee. In any court in the country, a case is not filed until the fees are paid.
Respondent quotes the Florida tolling statute as being tolled with “The pendency of any arbitral proceeding pertaining to a dispute that is the subject of the action”. Claimant asserts that the arbitration initiation she made was not the subject of the action. Respondent’s action in court was to collect a debt. Claimant’s arbitration was not to collect a debt, therefore it is not the subject of the action and cannot be tolled as pending.
Furthermore, the arbitration could not be considered “pending” as the Respondent asserts under the Florida tolling statutes until payment was received. Additionally, if the Respondent refused to pay their portion of the JAMS fees, the arbitration would not have moved forward and would have been dismissed at some point, therefore indicating that it cannot be considered “pending” until the fees are paid and arbitration has commenced. In Capital One’s Response to Claimant’s Allegations and Statement of Claims, Respondent’s footnote 42 references Glantzis v. State Auto. Mut. Ins. Co. In reading that case, the court says the operative event is the demand for arbitration, particularly when “State Auto accepted in writing the appellant’s demand to arbitrate and the parties proceeded to pick arbitrators”.
In our case before JAMS, the Respondent did not accept the demand and failed to proceed along those lines until payment was made which was at almost 3 months after the statute of limitations ran out, and after the case was dismissed from local court, therefore time-barring the Respondent from filing their November 7, 2011 Counterclaim.
Respondent alleges they did not attempt to deprive Claimant of the right to arbitrate, and were not aware of the payment until at least October 5, 2011. Aside from the attempt to toll the Statute of Limitations with unclean hands by filing a suit in court after receipt of Claimant’s request to invoke the arbitration clause if one existed, Claimant provided proof of payment to the court at the pre-trial hearing September 30, 2011. Respondent’s representative, Zakheim & LaVrar, appeared by telephone at this hearing. Judge Walker informed them that proof of payment has been provided to her and asked how much longer they needed to pay their fees. They indicated 20 days. Judge Walker set the next hearing for October 28, 2011, giving 28 days. At the October 29, 2011 hearing, Judge Walker dismissed the case due to the Plaintiff failing to pay their arbitration fees. If Respondent was not trying to deprive the right of the Claimant, the Respondent should have paid their fees well in advance of the October 28, 2011 hearing. If there is a communication problem between Respondent and Zakheim & LaVrar, that is not Claimant’s problem. Additionally, even if Respondent was informed of proof of payment on October 5, 2011, they had 23 days until the hearing to pay their fees which they failed to do.
Respondent claims that documents were sent for filing on May 12, 2011, 3 days before Claimant mailed her letter of election of arbitration. What the Respondent fails to note is that the documents were sent to a third party for filing on May 12, 2011, not to the local court (Exhibit 54). At any time between receipt of the Claimant’s letter invoking the arbitration agreement and the date that the case was filed (a full 5 days), the case could have been stopped from being filed with the court, or could have been immediately filed in arbitration. Therefore, Claimant again asserts that the case was filed with “unclean hands”.
No law will allow the Respondent to re-file as their own contract has made the ability to re-file impossible by removing the right to court upon an election of arbitration. They were aware I elected arbitration and the arbitration clause states “if you or we elect arbitration of a claim, neither you nor we will have a right to pursue that claim in court or before a judge or jury..”. If they were to re-file it would be a malicious abuse of process. They had no right to court since arbitration was elected. The Respondent cannot claim the fruit of a poisoned tree by filing in court after election of arbitration.
Allegation: Respondent violated Florida 501.204 deceptive and unfair trade practices by filing suit in small claims after election of arbitration by Claimant.
Respondent alleges they are exempt from FDUTPA because they are a national bank. Indeed Florida Statute Section 501.212(4)(c) excludes any person or activity regulated under laws administered by banks and savings and loan associations regulated by federal agencies. Claimant asserts that Respondent is to be held liable under the respondeat superior clause in the arbitration agreement, which states “for which we may be directly or indirectly liable under any theory, including responeat superior or agency”. Nothing in FDUTPA suggests that bank subsidiaries, affiliates or agents are necessarily exempt from FDUTPA. See State, Office of Attorney Gen., Dep’t of Legal Affairs v. Commerce Commercial Leasing, LLC, 946 So. 2d 1253, 1257-58 (Fla. 1st DCA 2007); Fed. Trade Comm’n v. Am. Standard Credit Sys., Inc., 874 F. Supp. 1080 (C.D. Cal. 1994) (holding that statutory exemption of banks from Federal Trade Commission’s jurisdiction to prevent unfair or deceptive trade practices did not extend to banks’ agents if agents were not subject to extensive federal administrative controls that had been imposed on banks). Claimant states that a bank acting directly would be exempt from FDUTPA liability. However, if the same act was done by a bank agent, the bank could be vicariously liable under FDUTPA. Additionally, although Capital One claims not to be a “debt collector”, Zakheim & LaVrar, P.A. as well as Meredith Critzer both acted as debt collectors for Capital One.
Additionally, Capital One states that it is a national bank, however the status of Capital One as an FDIC insured bank cannot be determined by a review of the allegations in their Complaint alone. Fla. Office of the AG, Dep't of Legal Affairs v. Commerce Commercial Leasing, LLC, 946 So. 2d 1253, 1257 (Fla. 1st DCA 2007). Therefore, the claim of exemption should be denied.
Allegation: Respondent violated FDCPA 1692e(5), threat to take action that cannot be legally taken or actions that are not intended to be taken, by threatening to file counterclaim which would include “attorneys fees and any fees associated with arbitrating your claim”.
General Assertion by Claimant that applies to all of the FDCPA claims within this document:
Claimant alleges that defendant violated the federal Fair Debt Collection Practices Act (FDCPA). In 1977, Congress enacted the FDCPA "to eliminate abusive debt collection practices by debt collectors, to insure that those debt collectors who refrain from using abusive debt collection practices are not competitively disadvantaged, and to promote consistent State action to protect consumers against debt collection abuses." 15 U.S.C. § 1692(e). The FDCPA prohibits, inter alia, debt collectors from using "any false, deceptive, or misleading representation or means in connection with the collection of any debt." Id. § 1692e. The FDCPA provides for a civil cause of action to enforce its provisions, with debt collectors who violate the Act liable for actual damages, statutory damages up to $1,000, and reasonable attorney's fees and costs. 15 U.S.C. § 1692k(a)(1)-(3)).
A "debt collector" is defined as any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts, or who regularly collects or attempts to collect, directly or indirectly, debts owed or due or asserted to be owed or due another. Notwithstanding the exclusion provided by clause (F) of the last sentence of this paragraph, the term includes any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts.
Claimant asserts that Zakheim & LaVrar acted as a debt collector, not only by filing a case in small claims court, but by also calling the Claimant on at least two occasions after the case was filed to attempt to negotiate a settlement. Additionally, Meredith Critzer acted as a debt collector when asserting that “Capital One has been very successful in arbitration to date”, and would “file a counterclaim which would include attorneys fees and any fees associated with arbitrating your claim”. Claimant asserts that Capital One can be held liable for these violations under the respondeat superior section of the Arbitration Agreement.
Allegation: Respondent violated FDCPA 1692(f)(1), attempting to collect an amount not authorized by the agreement which created the alleged debt (or) permitted by law, by “seeking an award granting Capital One all fees and costs associated with the underlying arbitration fees and any fees associated with arbitrating your claim” in the Counterclaim.
Claimant reiterates the General Assertion by Claimant above and asserts that the Arbitration Agreement does not allow for these fees and costs. Respondent asserts that an earlier portion of the Customer Agreement does allow for the fees and costs. A contract is ambiguous when it is uncertain what the intent of the parties was and the contract is capable of more than one reasonable interpretation. Courts abide by the rule that an ambiguous contract is interpreted against the party who drafted it.
Allegation: Respondent is held liable under the respondeat superior section of the arbitration agreement for violation of Florida Statute 559.72(9), asserting the existence of some other legal right when that person knows such legal right does not exists, as the agreement, by threatening to file counterclaim which would include “attorneys fees and any fees associated with arbitrating your claim”.
Claimant reiterates the General Assertion by Claimant above and asserts that the Arbitration Agreement does not allow for these fees and costs. Respondent asserts that an earlier portion of the Customer Agreement does allow for the fees and costs. A contract is ambiguous when it is uncertain what the intent of the parties was and the contract is capable of more than one reasonable interpretation. Courts abide by the rule that an ambiguous contract is interpreted against the party who drafted it.
Allegation: Respondent is held liable under respondeat superior section of the arbitration agreement for violation of Florida Statute 559.72(9), asserting the existence of some other legal right when that person knows such legal right does not exists, as the agreement, by “seeking an award granting Capital One all fees and costs associated with the underlying arbitration fees and any fees associated with arbitrating your claim” in the Counterclaim.
Claimant reiterates the General Assertion by Claimant above and asserts that the Arbitration Agreement does not allow for these fees and costs. Respondent asserts that an earlier portion of the Customer Agreement does allow for the fees and costs. A contract is ambiguous when it is uncertain what the intent of the parties was and the contract is capable of more than one reasonable interpretation. Courts abide by the rule that an ambiguous contract is interpreted against the party who drafted it.
Allegation: Respondent is held liable under respondeat superior section of the arbitration agreement for violation of FDCPA 1692(e)10, using any false representation or deceptive means to collect a debt or obtain information about a consumer, by threatening to file a counterclaim which would include “attorneys fees and any fees associated with arbitrating your claim”.
Claimant reiterates the General Assertion by Claimant above and asserts that the Arbitration Agreement does not allow for these fees and costs. Respondent asserts that an earlier portion of the Customer Agreement does allow for the fees and costs. A contract is ambiguous when it is uncertain what the intent of the parties was and the contract is capable of more than one reasonable interpretation. Courts abide by the rule that an ambiguous contract is interpreted against the party who drafted it.
Allegation: Respondent is held liable under respondeat superior section of the arbitration agreement for violation of FDCPA 1692(e)10, using any false representation or deceptive means to collect a debt or obtain information about a consumer, by “seeking an award granting Capital One all fees and costs associated with the underlying arbitration fees and any fees associated with arbitrating your claim” in the Counterclaim.
Claimant reiterates the General Assertion by Claimant above and asserts that the Arbitration Agreement does not allow for these fees and costs. Respondent asserts that an earlier portion of the Customer Agreement does allow for the fees and costs. A contract is ambiguous when it is uncertain what the intent of the parties was and the contract is capable of more than one reasonable interpretation. Courts abide by the rule that an ambiguous contract is interpreted against the party who drafted it.
Allegation: Respondent violated Federal Trade Commission Act 5, 15 USC, 45, deceptive and unfair practices by filing suit in small claims after election of arbitration by Claimant.
Respondent asserts that the Claimant’s allegation related to the FTC Act fails because national banks are excluded from the Act. The claim under the FTC must be heard by the forum because the contract states that all disputes must be heard and ruled on by an arbitrator. This includes FTC allegations. Capital One wrote the contract and it was a contract of adherence. It must be in a manner construed which benefits the non-author. Again, Claimant contends that Capital One should be held liable under the respondeat superior clause in the arbitration agreement.
Claimant would like to point out that Exhibit A provided by the Respondent, which shows a JAMS decision which includes an award for attorney’s fees and arbitration costs is not published material and therefore should not be considered by the forum.
