Arbitration award needs to be confirmed- Asking for feedback

[StarTet]

Hello Everyone:

I am new to this board and thought this was the most appropriate place for me to post this. Please re-direct me if I'm in error.

I'm writing to see how to proceed with an arbitration award I obtained against MBNA. Since May of this year my award was submitted to a group on the east coast that provided the service of having the award confirmed by a federal judge. They further provided the service of collecting on that confirmed arbitration award. Despite however effective they use to be in this process, as of 2 weeks ago I was informed that suddenly the federal judge who formerly was confirming these awards was now refusing to do so.

Further, the service admitted that the lawyer whom they had been using all along was not answering their phone calls or any of their attempts at contact. Therefore, they do not know where the original arbitration awards are. They don't know if they were confiscated by the judge or if the now invisible lawyer knows where they are or how they can be returned to over 1200 clients.

So...here's my problem and my question: Can I use a certified copy of that original arbitration award and petition the court of my jurisdiction to confirm it?

I'm new at do-it-yourself-law and am unable to afford an attorney (like they would even understand what we're trying to do!). So I would like to know how a common person should properly do it. It is my understanding that in order to confirm an award, the petition must be filed in either the jurisdiction of MBNA, the arbitration company or my own. Is this true? MBNA is in Delaware, the arbitration company is in New York state somewhere and I live in Placer County. If I file it in my county, must I go to the county seat or can I go locally our branch?

I noticed that there is a website from the State of California that has do-it-your-self forms, one of which is a “Petition to Confirm, Correct, or Vacate Contractual Arbitration Award (Alternative Dispute Resolution)� Is this where I might begin?

I believe there is a statute of limitations on confirming awards of one year and I was awarded mine on February 7th of this year. So I need to get cracking. But I’ve never done this before and trying to find codes of civil procedure is like finding needles in haystacks. I just don’t know where to begin and so I am turning to this forum in the hopes that some have traveled this road already, especially in California.

I’m doing this to further protect myself from MBNA or their ghouls at Wolpoff & Abramson. At present, they (Wolpoff & Abramson) have tried three times to send me some kind of certified notification. The last two via certified mail at the post office. I have a PO Box so when I saw the notice to go to the counter and retrieve it, I ignored it until the USPS returned it to W&A. What I am thinking is that they are trying to inform me that they are suing me and this is their attempt at serving process. So as long as they can’t prove I was served, they can’t proceed. What do you think?

I wonder if my arbitration award, if confirmed, would help my defense if/when they come after me. Since MBNA supposedly must charge off my account after six months that must have taken place somewhere around this summer. So does that make Wolpoff a third party debt collector? If so, I have no obligation to enter into a business relationship with them and it’s my understanding that they quite limited in what they can do.

Anyway, I need to know how to proceed so I can improve my chances of success and it seems that I need to confirm my award. Thank you all who can offer filing instructions and other suggestions.

All the best,

StarTet

if you know the court that "the judge" was in, call them and ask how to confirm an award and/or where to find the rules governing that procedure.

be careful with ignoring the certified mail - check your local rules on service and perfection of service. if indeed they are attempting to notify/serve you of a suite then a judge may give them a "third strike" ruling. meaning that if they attempted to mail to you through rule-provided methods several times and you didn't respond and they can prove you still get mail at that address, you may be outta luck. again, check your local rules...

jon

[Bird]

StarTet:
"I'm writing to see how to proceed with an arbitration award I obtained against MBNA. Since May of this year my award was submitted to a group on the east coast that provided the service of having the award confirmed by a federal judge. They further provided the service of collecting on that confirmed arbitration award. Despite however effective they use to be in this process, as of 2 weeks ago I was informed that suddenly the federal judge who formerly was confirming these awards was now refusing to do so."

Who initiated the arbitration? You say the group you sent the award to also provides the service of collecting on the award. Were you awarded monetary compensation?

[StarTet]

Thank you Jon and Bird:

Bird: I initiated the arbitration procedure against MBNA with Fidelity Arbitration Associates out of New York. I won by default, they did not respond to it. The damages I claimed were $12,800 approx, the amount I could prove by my check register that I sent them over the years. So yes, I was awarded compensation.

Jmunson:I felt uneasy about ignoring the letter but it has already been 3 times. The first hunch I had was a call from DHL that they could not find my unit number in my apartment building and they wanted to know where I lived. It was left on my answering machine and I never called them back. I used the tracking number they porvided and checked on line and found it was from Wolpoff & Abramson.

The other two attempts were at the post office. Question: How do I find the local rules of proper service?

Secondly, why did you put the judge in quotes? Why would getting the rules governing that procedure help me now? It was already attempted there and they may have my name there on file.. Would n't it be better to confirm the judgment here locally? Perhaps there is less suspicion of common folk submitting their own arbitration awards here in the mountains?

In any event, I need to begin this process soon. And thank you for taking the time to respond. I think this forum is my last life line before they get me.

StarTet

look in the annotated code governing the court that is attempting to get you into the suite. that'll tell you the service method. here in maryland, up to certain amounts (small claims court) can be served by mail, and reasonable attempts to mail to last known address can be considered served.

the reason i put "the judge" in quotes is two-fold: 1) the arbitration co. you used sounds a little fishy, most cccs would respect a "real" arbitration co. and honor the award, etc.; 2) no name was provided.

knowing the rules sooner rather than later is always better. i know from experience. too bad there's no HS course on court procedure...

jon

Starnet-

Are you stil fighting MBNA? I do it every day. You did somthing that got me thinking, and that is getting an award against them first. If you havnt already forund out the DHL and certified letters were Arbitration notices. PLEASE PLEASE contact me anyone can with. I am at krice@debtstopper.net

Greetings to all:

posted some info about an upcoming Discover and MBNA case, which at the time no one could really help me with. ended up, submitting a brief for discover case that won, as i had obtained an arbitration award with a smaller company that has since been included with a list of others that banks are claiming "frauds", although "sag" was run by an attorney, so who knows?

in any event - won discover b/c brief was geared towards showing how they did not follow the laws of procedure - did not object to arbitration, did not dispute jurisdiction, did not file for a motion to vacate my award etc.

mbna is a slightly different situation - after i received my award, they initiated a proceedings with naf. i sent a letter objecting but they of course went ahead and got their award and have now submitted it for confirmation in my local court house.


plan on using the same brief that won with discover, along with pointing out that i had my award before mbna. am expecting them to come back with info that includes "sag" as a fraudulent arbitration company but need some help with the following.

the law states that an arbitration award cannot be challenged after the fact but am not sure if this includes alleged companies that are frauds, are there any citations that would support even a mcdonald's award that anyone knows about?

would also like to locate some information as to how the banks are rapidly lumping all arbitration companies into the same category as a way to close them down so they can maintain their control over the monopoly game?

hoping there is someone here with this knowledge and i would very much appreciate your help!

Fireopal

[wisper]

Does a provision exist in the terms and conditions, that the state and the arbitrator are theirs to select?
Since arb is defined that there are *parties* for which arb is arranged, it isn't logical that a single party could get anywhere.
ar·bi·tra·tion (är'bĭ-trā'shən)
n.
The process by which the parties to a dispute submit their differences to the judgment of an impartial person or group appointed by mutual consent or statutory provision.

The last arb I was involved in, the arbitrator ( who was a volunteer for the courts) explained up front, her job was to follow through on the inputs from *both sides* to determine whether or not there could be some adminisrative mutual agreement, and if so, then the court would be spared time and the parties spared costs. BUT, both parties had to concurr, or she would have to let the court know that a hearing and possible court case would be in order.
We were also told that if we did come to a mutual agreement, she would record it and it would be binding on the parties.

I guess I would move the court to throw out any arb you were not a party to. You said, "mbna is a slightly different situation - after i received my award, they initiated a proceedings with naf. i sent a letter objecting but they of course went ahead and got their award and have now submitted it for confirmation in my local court house."

How could they go for an arb after you already had proof of judgement in your favor? Who did you send your letter to? How? Can you prove it? It looks like they would be appealing a judgement, and if they are talking arb as opposed to court, sounds like the details in your process missed something!

[MADDOG]

Fireopal,

I did some research on whether or not you must confirm your Arbitration Award within a year. Here's the link, and the important excerpts that I found instructive are reprinted below (you can use the link to read the whole thing). My take on this info is that you do not HAVE to confirm your Award for it to hold water, and that if you want to do so after a year, you still can -

http://library.findlaw.com/2004/Feb/24/133304.html

The Basics of Confirming, Vacating, Modifying and Correcting an Arbitration Award Under the Federal Arbitration Act
(bold emphasis mine)

...While providing a scheme for the summary disposition of arbitration awards, courts have characterized the FAA as a supplement to the common law remedies available for the confirmation of arbitration awards.

...Section 9 of the FAA provides for the confirmation of arbitration awards. The FAA requires that a party seeking confirmation of an arbitration award must (1) provide in their agreement that a court may enter judgment; (2) apply to the court specified in the parties' agreement for the entry of a judgment on the award or, if no court is specified in the agreement, then apply to the district court within which the award was made or any district court for which venue is proper; [7] (3) file the request for confirmation within one year after the award is made; and (4) serve the adverse party with notice of the application for confirmation. [8]

...A confirmation proceeding under Section 9 is intended to be summary: confirmation can only be denied if an award has been corrected, vacated or modified in accordance with the FAA. [9] The summary procedure used to confirm an award is modeled after federal motion practice. [10] A court's judgment confirming an arbitration award must reflect what would have happened had the parties immediately complied with the award instead of going to court. [11]

2. One-Year Statute of Limitations Under Section 9 of the Federal Arbitration Act

...Several circuits have reached different conclusions as to whether the one-year limitation provided in Section 9 of the FAA is a bar to the confirmation of an arbitration award under the FAA when the action is filed more than a year after the award has been rendered.

...the court noted that the FAA supplemented rather than extinguished any previously existing remedies at law or equity providing for the enforcement of arbitration awards. [23]

...The court also noted, "[b]ecause remedies do exist outside the FAA's framework to enforce Sverdrup's award, reading Section 9 as a strict statute of limitations would be an exercise in futility. . . . To obtain their awards, individuals who prevailed in arbitration and failed to confirm within the one-year time limit would simply resort to filing actions at law. Contrary to the purposes of the FAA, this would inevitably lead to inefficiency, delay and court congestion." [24]

...The Second Circuit and District of Columbia have held that the one-year provision of Section 9 is a limitation for obtaining confirmation under the FAA, but the failure to file within one year is not otherwise a bar to recovering at law or in equity. The District of Columbia, in Consolidated Rail Corp. v. Delaware & Hudson Railway Co., [25] rejected the Sverdrup reasoning. The district court ruled that it was the intent of the statute and Congress for a party to use the Section 9 summary confirmation process only if it does so within one year after the arbitration, because Section 9 was meant to supplement and not preclude other remedies. Consequently, confirmation under Section 9 is not mandatory and a party is not prevented from using either state law or common law procedures to confirm an award. [26] In reaching its decision, the district court also considered the Second Circuit's decision in SeeTransport Wiking Trader Schiffarhtsesellschaft MBH & Co. v. Navimpex Centrala Navala, [27] in which the Second Circuit construed Section 207 of Title 9, a similar provision that governs international arbitrations. [28] The Second Circuit indicated that the time period provided by Section 207 was a statute of limitations despite the fact that it used the word "may."

Subsequent to its decision in SeeTransport, the Second Circuit specifically addressed the one-year limitation provision provided in Section 9 in Photopaint Technologies, LLC v. Smartlens Corp. [29] The Photopaint court ruled that the word "may" in Section 9 is "permissive, but only within the scope of the proceeding adverbial phrase: Ô[a]t any time within one year after the award is made.'" The Second Circuit then held that Section 9 of the FAA imposes a one-year statute of limitations on the filing of a motion to confirm an arbitration award under the FAA. [30] In reaching its decision, the Second Circuit pointed out its earlier decision in the SeeTransport case and noted that, while it was construing a different provision, the language of the two sections, Section 207, construed by the SeeTransport case, and the language of Section 9 were substantially similar such that SeeTransport could not be distinguished. [31]

It appears that Stare Decisis is not clear-cut here! It also appears that one does not HAVE to confirm the award at all... that confirmation is simply a remedy available when the prevailing party has not been satisfied by the losing party; NOT that without confirmation the award lacks merit.

It looks to me as if the award stands unless vacated, whether it has been confirmed or not, and that the one year rule has not been settled by agreement in the earlier case law anyway. One could certainly argue long and hard about it, right? Read that whole link and see if you agree.

[MADDOG]

Same link - http://library.findlaw.com/2004/Feb/24/133304.html

1. Requirement that the Parties' Agreement Provides for the Entry of Judgment by a Court

The Second Circuit, in Varley v. Tarrytown Assoc., Inc.,[14] held that the district court was without jurisdiction to confirm an award because the parties' agreement did not explicitly provide for the entry of an order by a court. [15] The agreement at issue in Varley had no explicit language that a judgment could be entered by the court and, while the arbitration clause was sufficient to incorporate the rules of the American Arbitration Association ("AAA"), [16] there was nothing in the applicable version of the AAA rules that indicated that the parties had thereby consented to the entry of judgment upon an award. Consequently, for a judgment to be effective, the parties had to agree that a judgment could be entered upon the entry of an award. [17]

Well ... doesn't it appear that the Arbitration Award has to be permitted to stand without confirmation in court, then??? Looks that way to me!

These Arbitration Awards that we have against the CC companies basically cancel out their claim of debt against us, and unless objected to or vacated within the specified time allowed, they should hold sway even if not confirmed. I think I'd argue that point if it comes right down to it.