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Laura Rowley Money & Happiness

Laura Rowley, Money & Happiness

Stacking the Deck Against Consumers

by Laura Rowley

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Posted on Thursday, October 11, 2007, 12:00AM

Irene Lieber, 61, lives in a dilapidated apartment in Brooklyn, N.Y., where she scrapes by on $759 a month in Social Security disability payments. Sometime before 2006, her MBNA credit card was stolen, and a collection agency began hounding her for charges she says she never incurred.

"I said I wanted to see the signatures -- who had signed for these purchases? And they wouldn't give me that," says Lieber. "They said, 'You're responsible, this is your credit card.' I ignored them because I thought they were nuts."

Scare Tactics

Lieber sent a letter demanding the agency cease contact -- which debt collectors must do under a 1996 federal law. But they continued to harass her and her spouse, Theodore, who was confined to a wheelchair following a stroke. Frightened by a menacing phone call, Theodore sent a payment to the collection agency.

"They made him think he had to pay because his name was on the card," Irene says, adding that the agency told him if he paid something, he would receive a full explanation of the dispute. "He said, 'They have our name; I don't want bad credit.' He was scared and depressed."

Theodore Lieber died of a heart attack in January. Shortly thereafter, his wife received a "second notice of arbitration" from the National Arbitration Forum in Minneapolis. Bewildered, Irene sought help from the Neighborhood Economic Development Advocacy Project (NEDAP) in New York.

Trapped by the Fine Print

"The second notice of arbitration didn't say who had sued her, and there was no claim attached to it," says Claudia Wilner, a NEDAP attorney. She helped Irene Lieber draft a response asking for the case to be dismissed, or that the National Arbitration Forum serve her with a claim.

Lieber heard nothing until another notice arrived, stating that MBNA had won a $46,000 judgment against her in arbitration. "Lieber never even had the opportunity to see what the claim was against her, or put in a defense," says Wilner. "They ruled against her without responding to her motion." A spokesperson for Bank of America, which owns MBNA, says, "We believe arbitration is an efficient and fair method of resolving disputes between our customers and the company," adding it could not comment on Irene Lieber's case.

Lieber isn't alone. Over the last 15 years, a variety of businesses -- credit cards, cell phones, computer equipment, car dealerships, stock brokerages, and health plans -- have inserted fine print into their contracts requiring mandatory binding arbitration in the event of a dispute with a consumer. Simply by buying the product or using the service, the consumer has waived his or her constitutional right to a court trial, and has almost no basis for an appeal. The clause is also widespread in employment contracts.

Creditors Benefit, Consumers Pay

Businesses argue that arbitration is a faster, fairer, and cheaper alternative to the courts. But opponents, including some members of Congress, call it a secretive, complex, and expensive process riddled with conflicts of interest -- and say the deck is stacked against individuals. In an examination of 19,000 binding arbitration cases in California decided by the National Arbitration Forum, watchdog group Public Citizen found that 95 percent of the decisions went against the consumer.

"I'm amazed at that statistic," says Celeste Hammond, an arbitrator, attorney, and professor at John Marshall Law School in Chicago. "I suspect the borrowers didn't know what to do next. They don't realize they should have an attorney, because arbitration has as much consequence as going to court. If they don't show up to meaningfully claim their legal rights, they're going to lose. Arbitration is not a first step -- it's the final step."

And while arbitration is supposed to be a tool for both parties, Public Citizen found that 99.4 percent of the arbitration cases involved creditors suing consumers. "It shows how impractical it is to bring an individual action in arbitration -- consumers just don't do it," says Jon Sheldon, attorney with the National Consumer Law Center.

In an email response to my questions about these findings, National Arbitration Forum managing director Roger Haydock called the Public Citizen report "a misleading presentation of anecdotes and innuendo ... [T]he outcomes of arbitration cases closely track the outcomes of similar court cases, and arbitration reduces delays and costs for all parties." Opponents of the practice claim the studies cited by the Forum are either biased or contain samples too small to be meaningful.

Arbitration Marches Ahead

Depending on the rules set by the arbitration provider, a consumer may have the right to a telephone or in-person hearing, and the ability to submit documents. The Forum's Haydock writes that his firm's "process and rules are designed to be easily understood with the consumer in mind. Legal-speak is kept to a minimum. Moreover, the Forum's simplified procedures often enable individual parties to proceed without the need to engage and pay an attorney."

Hammond found the opposite. She says when she first encountered arbitration in commercial real estate deals, she began doing research on how many other transactional attorneys like herself knew about the process. "A lot of them don't," she says. "There are all kinds of reasons for that, but it's a failing of our system that arbitration is marching ahead without anyone -- even the lawyers -- understanding it."

Arbitration foes also contend that the process can be more expensive than court, requiring hundreds of dollars in filing fees. Losers may be assigned all arbitration costs, including attorneys' fees. Los Angeles attorney Joe Ribakoff says one of his clients, an entrepreneur whose Internet business went bust, owed $20,000 in debt on credit cards. The award was doubled to $40,000 in arbitration.

Big Paydays for Arbitrators

When a case goes to arbitration, the consumer "receives a simple statement that says he owes the money -- there's no itemization of the account," says Ribakoff. "You don't know the basis of the claim; then it gets porked up with fees, and sits around and collects interest until the [company] gets a court judgment enforcing the award."

Then there's the troubling matter of bias. The Public Citizen study found that 28 California arbitrators handled nearly 9 out of 10 cases, and found in favor of the companies 95 percent of the time. Arbitrators routinely earn $400 or more an hour; top arbitrators make $1 million a year.

"Companies pick the arbitration firm, which picks the arbitrators, who get paid by the case," says John O'Donnell, senior researcher with Public Citizen and author of the report. "If you don't get cases, you don't get paid. And if an arbitrator doesn't produce results, he's not going to get the cases."

Help on the Way?

Arbitration was created long ago by commercial parties in the same industry, which chose to settle disputes through a neutral party who knew their business rather than going to court. The problem was that some courts wouldn't enforce the arbitration awards, so in 1925, Congress passed the Federal Arbitration Act to ensure the awards would be implemented. In 1983, the Supreme Court ruled that the Act had created "a liberal federal policy favoring arbitration" -- giving lower courts a mandate to uphold these agreements whenever possible.

"That's been completely extended, so that even in situations where people don't know what they're getting into, the courts have regularly decided they are bound by the arbitration award," Hammond notes. "The court says people could go to another credit card company. But all of them have the [arbitration] clauses, so there really is no consent here. The consumers have no choice."

Congressional hearings are expected next month on a bill that would increase consumer choice. The Arbitration Fairness Act of 2007, introduced in the Senate by Sen. Russ Feingold (D-Wis.) and in the House by Rep. Hank Johnson (D-Ga.), doesn't prohibit arbitration. But it requires that arbitration be freely chosen by consumers after the dispute arises -- rather than forcing people to agree to arbitration in advance through a contractual provision.

Too Late for Some

For Irene Lieber, the next likely step will be state court, where creditors seek to have arbitration awards confirmed.

But even if she can get the award dismissed, Lieber says, the damage is done. "My credit is ruined. For someone who is innocent to be found guilty -- that's what hurts the most."

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  • Yahoo! Finance User - Tuesday, October 16, 2007, 5:21PM ET  Report Abuse

    • Overall: 5/5

    My experience is that virtually no claims made by creditors can withstand a hearing in open court. Even those debts which are truly owed are almost always embellished by the creditor's attorney on the theory that by asking more than what is truly owed they will get closer to the amount actually owed. Open court, where creditor assumes the role of plaintiff and debtor that of defendant, can be the debtor's best and only friend. In that case defendant is able to interrogate plaintiff and demonstrate the injustice being carried out against him. A set of carefully constructed questions can reveal the true nature of the plaintiff's complaint which, in many cases, is highly exaggerated and made without anything in the way of proof of claim. It is not hard to understand why credit card companies demand arbitration, especially if they control the arbitration process and the arbitrators themselves share in the spoils of the awards. This form of racketeering is most egregious because it is, more often than not, played out against the most vulnerable of our citizens. A final word: go Pro Se but seek competent counsel, operating in the background, to pace you through the rules of procedure.

  • Yahoo! Finance User - Tuesday, October 16, 2007, 11:45AM ET  Report Abuse

    • Overall: 3/5

    I smell a class action lawsuit coming along....and as for the CRAs sue the crap out of them in criminal court. Violation of the FCRA is a criminal offense, I believe. Refer the case to the state attorney general. I hear NYS attorney general likes to sue these big companies...(student loan scandal hint hint). In California, the courts ruled that mandatory arbitration is illegal and therefore null and void.

  • Yahoo! Finance User - Tuesday, October 16, 2007, 11:19AM ET  Report Abuse

    • Overall: 5/5

    First of all many of the terms and any changes are on the back of the bill. It would be great if they used darker ink so that a person with perfect evesight could reat them without squinting or seeking brighter light. Just one more of theit tactics.

  • Yahoo! Finance User - Tuesday, October 16, 2007, 11:16AM ET  Report Abuse

    • Overall: 2/5

    Something doesn't add up here. If her income is $800 / month how did someone manage to rack up anywhere near $40k on her credit card? There's no way she was approved for that level of spending. I love how everyone's immediate reaction is to use government to protect people from their own stupidity. Last time I checked people are not forced against their will to own credit cards. If you don't like the terms of an agreement don't enter into it. Read the fine print and for God's sake, if your card is stolen report it immediately. That way the CC company will go after the merchant who authorized the fraudulent transactions and not you.

  • Yahoo! Finance User - Tuesday, October 16, 2007, 7:59AM ET  Report Abuse

    • Overall: 5/5

    I too have been burned by arbitration. I have even written my Congressman, Steven Lynch, who has chosen to ignor me. But the truth is that business has found a way to take away your rights and until there is enough outrage it will continue.

  • Yahoo! Finance User - Monday, October 15, 2007, 6:36PM ET  Report Abuse

    • Overall: 5/5

    This elderly woman should have reported the card stolen in the first place. And I am sure that even if she did report it stolen and charges were made illegally the credit card company and collections agency would do whatever was in their power to get their money back, even if it was the person who truly did not owe them the money! And thats exactly what they did, because they are SCUM. They took advantage of this woman who was obviously ignorant to the whole process of identity theft (and what you need to go through to get it cleared up) and in dealing with a collections agency. What the collections agency did was obviously so illegal, she could have sued them and won a hefty settlement! It's against the law for a collections agency to continuously harass a client, especially when that client sends a letter demanding that they no longer contact her. It was also very immoral of them to lie to her, stating that if she needs to pay up (regardless of whether or not this debt is actually hers) simply because her name is on the card. She was taken advantage of big time, and because of her ignorance she will have to suffer immensely. And don't get me started on the "I have to pay or else my credit will be ruined" myth, which is the dumbest myth out there. How about everybody try this simple idea for a change: save and pay for things in CASH instead of charging it to a stupid credit card! Or how about this idea that many of us do not follow: IF YOU DON'T HAVE THE MONEY, THEN DON'T BUY IT! Credit card companies know that the rates of identity theft are rising, and trust me, they will do whatever is necessary to get their money. That's also true for collections agencies, who are the scum of all scum! I don't trust them, and I will never trust them. And I never use credit cards. I could care less about my credit score because I pay cash for all of my purchases, and all of you could do this as well just buy simply living on a budget, paying down your debts so you can become debt free, and then SAVING your money so you never have to use a credit card again! And, no, I do not make a lot of money to accomplish this! As for identity theft, request that you no longer receive credit card solicitations in the mail (which individuals could steal). Shred all documents before putting them in the trash. Protect your social security card. You cannot completely get rid of the threat of identity theft, but these tactics can help.

  • Yahoo! Finance User - Monday, October 15, 2007, 4:50PM ET  Report Abuse

    • Overall: 5/5

    Ever since the passage of Bankruptcy reform in the credit card company favor, I notice a profound change in the credit card company attitude toward customer services. They know they have an upper hand and relegate customer services in the much lower priority. One year ago, I got a new Bank of America credit card, it took me 5 separate requests and follow up by phone just to obtain monthly statements from them. B of A seemed to have operation problems at that time. However, consumers get penalized nonetheless. To untangle the problem, I paid the balance by phone and then canceled my credit card. What the cusomer services promises on the phone often do not get backed up by operation. The Credit card company has grown too big and too profitable. It is every easy to get mired in their procedures, operation problems. My own solutioin is to avoid these powerful entities as much as I could. I think most American consumers don't have a choice. After many decades of intensive promotion and selling, Credit card companies no longer need US consumers. Consumers need the credit card companies. Individual consumers don't have leverage.

  • Yahoo! Finance User - Monday, October 15, 2007, 4:22PM ET  Report Abuse

    • Overall: 5/5

    The fundamental problem is that the law permits companies to write contracts and pursue action that subvert due process. Agreements that deny consumers their legal rights should become illegal. Similarly, using credit collectors and credit reporting agencies as means to extort money from consumers should be de-legalized.

  • Yahoo! Finance User - Monday, October 15, 2007, 2:53PM ET  Report Abuse

    • Overall: 5/5

    It is the fault of Citzens of this country who keep eleting these folks to congress and senate. Everyone of these bums should be thrown out in the new elections, as these bums who we elect are in the pockets of the big companies. We are the ones who elect them, then they turn on us like dogs, in favor of big donors. If these people's elected officials had any concious they would be working for us not for big companies. Then on top we have these useless judges all over the country, who keep shafting us the consumers with their rulings against us. we are the ones paying their salaries. They are in for public service not the other way around working for Big Corporations. So till we start voting for right people, we will keep seeing injustices in every aspects of our lives. Look at jails filled up because of privitization, envoirnment degradation all over the country, bad air and water all over the country, plundering our precious resources and treasury monies to cronies and lately few of them have been jailed and the list goes on and on. So listen up citizens. Elect people who really care about the voters. We keep electing people who have been in congress and senate for years and have dismal voting record, when it comes to protecting us the citizens. i say VOTE ALL THESE BUMS OUT IN NEXT ELECTION, EVERYONE OF THEM. AND DO IT AGAIN AND AGAIN. TILL THEY UNDERSTAND A CLEAR MESSAGE. WE ARE SENDING THEM TO REPRESENT US, NOT THE BIG GLOBAL CORPORATIONS.

  • Yahoo! Finance User - Monday, October 15, 2007, 2:43PM ET  Report Abuse

    • Overall: 5/5

    This article tells the truth about a national scandal. I'm a consumer lawyer, and we are absolutely inundated with complaints from consumers who have been harmed by the National Arbitration Forum's justice-for-sale kangaroo system. I've repeatedly seen identity theft victims who have had big judgments entered against them by NAF, I've seen people with zombie debts that are far past the statute of limitations have huge awards entered by NAF. NAF advertises itself to banks as a way to help them make more money and to stop consumer lawsuits against banks. Their system is a national disgrace, and this is one of the few courageous pieces of journalism I've seen where a reporter has delved into the details to tell this story. This is some superb reporting, and the story it tells is TRUE.

  • Yahoo! Finance User - Monday, October 15, 2007, 9:41AM ET  Report Abuse

    • Overall: 4/5

    This is the type of article that we should be seeing from Yahoo Finance! "Experts." Penelope Trunk and Kiyosaki take heed.

  • Yahoo! Finance User - Monday, October 15, 2007, 8:19AM ET  Report Abuse

    • Overall: 4/5

    "I ignored them because I thought they were nuts"??? "they" might be nuts but Irene was foolish. I can't muster up much sympathy for her.

  • Yahoo! Finance User - Monday, October 15, 2007, 6:34AM ET  Report Abuse

    • Overall: 1/5

    You described the problem, but did not state what the couple should have done. For example, if they had their card stolen, did they notify the card company?

  • Yahoo! Finance User - Sunday, October 14, 2007, 7:38PM ET  Report Abuse

    • Overall: 5/5

    I gave a 5 star because the article unearthed a situation not many of us are probably aware of vis-a-vis mandatory arbitration. But after reading some of the other commenters, I have second thoughts about my rating since so many of the Bolsheviks among us take a story like this as justification for their loony conspiracy theories. Look, folks, there is a pendulum to just about everything, and the credit system pendulum swings between laxity in the credit system where fraudulent borrowers can just about walk away from their debts with little repercussion, to what we have now, in which we seem to have gone too far on the side of strictness and lack of due process for consumers. But, because our system does work, ye old pendulum will surely go back the other way, and indeed, probably too far.

  • Yahoo! Finance User - Sunday, October 14, 2007, 5:05PM ET  Report Abuse

    • Overall: 4/5

    Sounds like cases are arbitrated by people sympathetic to the crooks. Banks and Republicans better watch out, if the consumer is put at too much of a disadvantage, they will stop buying AND vote for the other guy come next year. Think I'm joking?

  • Yahoo! Finance User - Sunday, October 14, 2007, 9:51AM ET  Report Abuse

    • Overall: 5/5

    Ms. Rowley, this needs to be put to ALL candidates for POTUS, so as to be highlighted repeatedly far and wide. This is outrageous. It's implications are clearly disastrous for consumers per what happened to the Liebers. I trust this bill flies through Congress and is quickly signed by the POTUS. It's things such as this that should receive the breadth, depth and frequency of coverage that Anna Nicole, Britney, OJ, Paris, etc., etc., get. When one contemplates the, so referred to as, shadow banking system and the financial industry in general, and then comes across stories such as this, there is no wonder why people's confidence is so easily shaken, in a system which, to a significant degree, is based on people's confidence. There needs to be far more transparency and immediacy to quickly expose such violence ------ OK, non-physical ----- but still violence. The Liebers' case is exhibit A. It's clear that they were violated. As I said above, this is outrageous!

  • Yahoo! Finance User - Sunday, October 14, 2007, 8:09AM ET  Report Abuse

    • Overall: 5/5

    Credit card reform is needed.The arbitration clauses should be eliminated.No one has time to read pages of fine print.And changes to the terms should be better regulated.Some cards are amending the agreement every other month it seems.I dont have time for that either....And you can decline the changes by canceling your card...but THEY HAVE YOUR CREDIT RATING AS A HOSTAGE!

  • Yahoo! Finance User - Saturday, October 13, 2007, 11:43AM ET  Report Abuse

    • Overall: 4/5

    The deck is totally stacked against the consumer. The credit card companies contribute to the campaigns of congressmen, so whose side do you think they will really be on. The real crime here occurs when a persons identity is stolen. The credit card companies and the collection agencies will not provide proof that the card holder charged anything. The cc copmies and collection agencies will not provide copies of charge slips with signatures, unless the consumer retains an attorney. Without the use of an attorney, the consumer is totally screwed.

  • Yahoo! Finance User - Saturday, October 13, 2007, 9:55AM ET  Report Abuse

    • Overall: 2/5

    a good lawyer can get you off. the whole system is based on the hope that people will not fight back. Of course, then your lawyer gets to hassle you for his fees.

  • Yahoo! Finance User - Saturday, October 13, 2007, 9:16AM ET  Report Abuse

    • Overall: 4/5

    There is a balance. Some consumers are simply profligate spenders. On the other hand, many credit card issuers have stacked the deck against their customers. This is what happens when neither the issuers nor their customers want to take personal responsiblity for their actions. The issuers should take the artifice out of their lending agreements and clearly disclose universal default and other "innovative" contract provisions. Card users should get a grib on their spending and debt accumulation and immediately report in writing to card issuers unauthorized purchases appearing on their monthly statements.

  • Yahoo! Finance User - Friday, October 12, 2007, 10:13PM ET  Report Abuse

    • Overall: 5/5

    Insightful article giving an overview on arbitration. Arbitration is likely to remain a growth industry and provides a great example of the exploitive nature of credit card companies in particular (although they were just the pioneers) .Laura Rowley consistently generates informative articles worth reading, an unusual trait among internet writers.

  • Yahoo! Finance User - Friday, October 12, 2007, 9:19PM ET  Report Abuse

    • Overall: 5/5

    Our 11% Congress should get off their collective butts and HELP protect the American consumer.

  • Yahoo! Finance User - Friday, October 12, 2007, 9:19PM ET  Report Abuse

    • Overall: 5/5

    Excellent article. Enormous informative and downright scary in its content. No wonder some "arbitrators" are making a million dollars. The credit industry needs a significant revamp, but congress is too busy squabbling and paying out the Iraqi contractors.

  • Yahoo! Finance User - Friday, October 12, 2007, 7:13PM ET  Report Abuse

    • Overall: 3/5

    for the previous comment -- you do realize that even though if you do not use any credit cards, an identity thief could still take one out in your name and put you into debt, leaving you responsible...

  • Yahoo! Finance User - Friday, October 12, 2007, 5:49PM ET  Report Abuse

    • Overall: 1/5

    One star for the article because I have to. Negative 5 stars for the comments. Are you people serious? Even if her card was still in her wallet and just the information was stolen, she would still get monthly statements! We just aren't presented with nearly enought facts to make a judgment in this case. Quit complaining about credit card companies wanting you to pay the money you owe them. If you don't like them, stop using their product. Pay for things with cash or check. For those Gen x'ers who can't stay off the internet, use online bill pay linked to your bank account and only keep small amounts of money in that account. Stop blaming the credit card companies and start spending less. They are a business, business want to make money, you can't make money by letting people get away with not paying. People are so addicted to spending money that they feel that they have to use credit cards and then when it comes time to pay and the card companies have to get aggressive to collect and feelings get hurt, a bunch of people start whining on message boards like this. Even worse, articles are written about a sob story where some of the facts are presented in such a way as to compel the reader to feel for the "victim" and then the people feel justified in their whining.

  • Yahoo! Finance User - Friday, October 12, 2007, 5:38PM ET  Report Abuse

    • Overall: 5/5

    Arbitration as a business practice is absolutely despicable. No wonder so many average people have the attitude of "stickin' it to The Man". Russ Feingold has the right idea - regulate an "industry" (that, apparently, is what arbitration has become) that refuses to play fair with consumers. With the sort of cases Ms. Rowley describes, I'd like to see arbitration made illegal completely. This is no answer to an overburdened court system!

  • Yahoo! Finance User - Friday, October 12, 2007, 5:02PM ET  Report Abuse

    • Overall: 5/5

    Great article. It's alarming to realize how much these companies try to hurt consumers.

  • Yahoo! Finance User - Friday, October 12, 2007, 4:36PM ET  Report Abuse

    • Overall: 4/5

    The lack of federal regulation of credit cards is frightening. My husband worked for a state banking agency (which has no jurisdiction over credit card companies) and said he saw so many cases where the credit card companies basically could get away with anything they wanted to. Consumers have very few rights when it comes down to a battle with the cc companies.

  • Yahoo! Finance User - Friday, October 12, 2007, 4:14PM ET  Report Abuse

    • Overall: 1/5

    As a former COO of a charged-off debt management firm, I disagree with most of this article. While it is true that the arbitration forums typically side with the party that is paying their bills, the consumer is always allowed due process. In addition, not ALL credit card agreements require mandatory binding arbitration. MBNA was the pioneer in this area. From a consumer standpoint, I find it particularly amusing that Ms. Rowley omitted one of the primary drivers behind arbitration - the avoidance of consumer class action proceedings against the issuers - which is ultimately the biggest coux for the credit card issuers.

  • Yahoo! Finance User - Friday, October 12, 2007, 3:45PM ET  Report Abuse

    • Overall: 3/5

    We know that loansharks will be loansharks, even if they sponsor the Olympic Games. It is their nature. What is really sad here is that Congress is responsible for letting the sharks out of their cages. The US Congress is a real bargain, as far as the sharks are concerned.

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