Subject: Arbitration Dismissed with Prejudice
Question: QUESTION: An account with MBNA was sent to wolpoff & Abramson. There was a clause in my agreement that any matters would be determined by binding arbitration. Last year, September 2006, an order was entered in my favor. It was dismissed with prejudice. Now Nco Financial is trying to collect on this same debt. I thought once it was dismissed with prejudice, it could not be brought up again. Please inform. any info will be greatly appreciated!
ANSWER: Yes, they can bring it up again but if they do you need to do the same things all over again to get it dismissed a second time. You also need to inform NAF that the case was already dismissed in an earlier decision. Then they will probably try to sue you in local court.
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QUESTION: Thank you for your answer, however, I am still confused as to why they are able to pursue this matter again, being that it was dismissed with prejudice. I thought it could only be brought up again if it was dismissed without prejudice. Also, I am a bit concerned about the part about them suing me in local court. The agreement I had with MBNA clearly states that any matter would be handled through arbitration, I received another copy of this agreement when the claim was initially sent to arbitration. It seems that they are not holding to their own agreement.
Answer: Sorry, I missed the part about it having been dismissed with prejudice. But who ruled that is was dismissed with prejudice? In any event, if they bring it back up it will be up to you to plead the res judicata issue with the trier of fact. If you don't bring it up with a properly prepared res judicata defense then don't expect anybody else to bring it up. They can sue you in local court regardless of how the arbitration forum ruled. You can also raise the res judicata issue in local court and hope the judge will listen to it.
Yes, the agreement does clearly state that any matter would be handled through arbitration but is the purchaser of a credit card debt also bound by the terms and conditions of the original contract? If they are then they all break the contract every time they bring a case in local court without taking it to arbitration first then having the local courts reduce it to a judgment.
If they break one portion of the contract does the rest of the contract still remain in full force and effect? If they must obey all terms and conditions of the agreement and the agreement says that the laws of the company's home state are the laws that control all litigation then how can local courts in other states ignore that and use the laws and rules of procedure in their state instead?
Are the terms and conditions of the agreement between the parties also bestowed upon the purchaser of a credit card agreement upon cancellation of the agreement by the bank or does the purchaser of debt even have the right to sue upon the terms of the contract?
Is the named plaintiff in the case the true party of first interest in the case of is he a 3rd party debt collector hiding behind the skirts of the original creditor? Has the plaintiff named all the indispensable parties to the case?
What about the fact that the total amount of money that has been loaned out between all the banks and credit card companies is such an unimaginably huge amount of money that it may very well exceed all the money in circulation at any given time? If it isn't that much then it certainly is somewhere close. So how can that be? Where does all that money come from? It certainly don't come from out of thin air as so many self styled Internet "experts" would have their students believe. It also isn't supplied by the Federal Reserve or the Bilderburgers or the Rothchilds or the Kennedy's or even the IMF. Then on top of the money loaned by credit card companies you have all the money loaned out to homeowners and all the money loaned to businesses and to buy all those nice new cars and trucks.
If you stop to think about it that is a couple of oceans full of cash and a few mountains of debt that has gone sour. So where does all that cash come from? If it don't come from the credit card companies own pockets and they don't borrow it from the Federal Reserve or the U.S. Treasury then where does it come from and who is really left holding the bag and not named as plaintiff or co-plaintiff in the case against you?
These and many more such questions are the things that creditwrench students learn about and how to use their knowledge to win. On top of that, each and every case is individual in nature although they all seem similar. Different attorneys make different mistakes in different cases and if they hope to defeat the Plaintiff they must either have the knowledge and experience to be able to analyze each and every document they file and that the Plaintiff files to spot those mistakes and use them to their best advantage if they can. Most attorneys never reach the level of expertise that is required to spot all the mistakes made by their opponents and if possible use them to the advantage of their clients.
One way to be able to do that is to have a library of good books and research resources to draw on. Resources such as Pacer which is the national data base of U.S. Court cases, the National Consumer Law Library, Shepard's case Law. West Law and many more. There are indispensable books such as Connor's Rules of Procedure and Connor's Rules of Evidence for federal and each of the 50 states. Then there are law libraries to draw on. Almost all of these resources cost big bucks so even attorneys don't use all of them but it seems that folks somehow expect to go to a free message board and get all the expertise they need for free, but it simply can't work that way.
So while I am willing to give lots of free information and help I simply can't just give it all away for free because I have big bills to pay too.
But let me finish with your statement that it seems that they are not holding to their own agreement. I have to agree with you but the answer is that they never do and creditwrench students learn all about that and how to hold their feet to the fire.
You can learn much more by visiting my message board at http://consumers.creditwrench.com or by calling me at 405-616-7901 or by visiting my web site at http://www.creditwrench.com