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Consumer Arbitration Agreements: 9.9.5 Documentary Submissions

Parties may be required to produce documents at the arbitration hearing itself, such as when a witness reveals the existence of a document which has not yet been produced. All pertinent and material documents should be available for the arbitrator. JAMS Rule 17(c) states:

Consumer Arbitration Agreements: 9.9.6 Use of Affidavits in the Proceeding

Arbitration forums typically allow the use of affidavits.223 JAMS Rule 22(e) states: “The Arbitrator may in his or her discretion consider witness affidavits or other recorded testimony even if the other Parties have not had the opportunity to cross-examine, but will give the evidence only such weight as he or she deems appropriate.”224 AAA Consumer Rule R-35 states: “Evidence by Affidavit and Post-Hearing Filing of Documents or Other Evidence.

Consumer Arbitration Agreements: 9.9.10 Arbitration on Written Submissions Only

Both JAMS and the AAA allow for arbitration on written submissions.239 The AAA consumer rules provide that a documents-only submission is the default procedure for claims for less than $25,000, unless a party asks for a hearing or the arbitrator decides that a hearing is necessary.240 For cases involving claims in excess of $25,000, the parties can agree to a documents-only submission if they wish.241

Consumer Arbitration Agreements: 9.12 Confirming the Arbitration Award

An arbitration award is not a binding judgment, and does not become a binding judgment until confirmed by a court. Only then does the award entitle the consumer to postjudgment remedies, such as garnishment and levy. A court will confirm an award if motion timely brought in the correct court and if there are no grounds to vacate or modify the award. The losing party cannot prevent entry of a court judgment by first paying whatever amount has been awarded in the arbitration proceeding.249

Fair Debt Collection: 4.1 Introduction

This chapter examines ten key terms that typically determine the FDCPA’s coverage: attempt to communicate, communication, connection with collection of a debt, consumer, creditor, debt, debt collector, limited-content message, person, and state. All but “connection with collection of a debt” are defined in FDCPA § 1692a or Regulation F (effective November 30, 2021).1

Fair Debt Collection: 4.2.5 “Regarding a Debt” and “About a Debt”

The FDCPA definition of communication requires that it convey “information regarding a debt.” Regulation F (effective November 30, 2021) defines “attempt to communicate” as any act to initiate a communication or other contact “about a debt.”44 This section looks at the two standards used in these related definitions and also compares them to a third standard, “in connection with collection of a debt,” which is a key term as to the FDCPA’s coverage in numerous sections of the Act.45

Fair Debt Collection: 4.3.2 Is a Required Notice in Connection with Collection?

Whether a notice required by state or federal law is in connection with collection of a debt will depend on the nature of the notice and how closely it is linked to debt collection efforts.119 The fact that a notice is required by law does not prevent the notice from being in connection with collection of a debt, if the substance of the notice relates to collection of a debt.

Fair Debt Collection: 4.3.3 Collection Litigation

The Supreme Court has ruled that collection litigation is debt collection,147 so that conduct in connection with collection litigation is also in connection with collection of a debt. Consequently, pleadings, affidavits, and other filings and actions in connection with litigation in a collection action are in connection with debt collection.148

Fair Debt Collection: 4.3.4 Foreclosures and Repossessions

In 2019, the Supreme Court clearly stated that enforcement of a security interest through even a nonjudicial foreclosure (even where no deficiency is sought) is in connection with collection of a debt: “foreclosure is a means of collecting a debt.

Fair Debt Collection: 4.3.5 Property Preservation Contractors

Servicers hire property preservation contactors to visit homes in foreclosure to confirm that the property is occupied, leave door hangers or other notices instructing the homeowner to contact the servicer, and enter the home and perform work to secure the property.

Fair Debt Collection: 4.3.6 Evictions

Persons hired before rent is past due on a residential rental property to manage the property are excluded from the definition of debt collector, even when later collecting rent or pursuing evictions.166 On the other hand, others hired after rent is overdue to collect on the rent and evict the tenant if necessary can be FDCPA debt collectors,167 and their actions seeking either eviction or collection of past due rent can be in connection with collection of a debt.

Fair Debt Collection: 4.4 Consumer, FDCPA § 1692a(3)

The term “consumer” means any natural person obligated or allegedly obligated to pay any debt.172

The definition of “consumer” in FDCPA § 1692a(3) applies to any natural person obligated or allegedly obligated on a debt. A “consumer” need not incur a debt for consumer purposes—that limit is found in the definition of “debt.”173 A consumer is just one who allegedly owes a debt.

Fair Debt Collection: 4.5 Creditor, FDCPA § 1692a(4)

The term “creditor” means any person who offers or extends credit creating a debt or to whom a debt is owed, but such term does not include any person to the extent that he receives an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.199

Fair Debt Collection: 4.6.1 Overview

The term “debt” means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.205