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 Posted: Sat Jul 19, 2008 1:51 pm Subject: Cash Call - Notice of Intent to Initiate Arbitration Claim |
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I received this letter today in the mail from Cash Call regarding my installment loan with them The loan was originally for $2500. The loan is about 15 monts into a 42 month reapyment schedule. July 1st was the first time I ever went over 30 days past due. The payments are due the 1st of the month.
I recently signed up with T & C's debt management plan. Cash Call accepts payments from T & C but won't do debt modification agreements with them. They will only do debt modification agreeements with the borrower directly. T & C told me that I probably wasn't past due enough at this point for them to offer a debt modification. T & C told me, and several other stories I have heard from people on this good board confirm it, that Cash Call does eventually offer debt modification agreements where they lower their outrageous 96% interest rate significantly and also lower your monthly payments.
My monthly payment is $216.55 per month on a 42 month installment loan. I'm about 1/3 of the way through the loan, but now that I'm past due, that time frame gets longer and the balance continues to accrue the 96% interest. My current payoff amount is approximately $2900. I've been making payments for over a year, and my payoff balance is $400 more than the original loan amount. 
I can only afford $108 a month, 1/2 the monthly payment. Unless I get a significant reduction in the interest rate, obviously this is not going to work in the long run (or the short run for that matter). T & C did send them a $108 payment this week, so that currently puts me at 34 days past due. I only planned on sending them $108 once a month, because that's all I can afford, so I wouldn't be making another 1/2 payment of $108 until August 8th, which probably wouldn't be disbursed to them until August 11th at the earliest.
I have repeatedly asked for a debt modification agreement to lower the interest rates and monthly payments and they kept telling me that I was not eligible. They said that I had to be current to even apply for it. T & C told me that was total crap because they have all kinds of clients who get debt modifications on their own with cash call and those people were much further behind then I am - some of them 6 months+. Then, earlier this week, I got a "debt modification agreement" proposal in the mail. At first I got excited, "they finally came around". Well, not really. Their offer was that if I paid them a full monthly payment of $216.55 by July 24th, they would bring my account current and make my next payment not due until Septemeber 1st. They would tack on the extra month to the end of the loan. There was no mention of reducing the 96% interest rate or lowering the monthly payment. Not exaclty what I was looking for and I told T & C that I have no intention of signing that. They agreed completely. Since then, T & C made the payment for $108, but I don't get paid until July 25th, and I can't afford to pay them more than $108/month anyway.
Then, I got the letter in the mail today about the intent to arbitrate. I don't know if this is a scare tactic to get me to pay, or if they really would move that quickly when I'm not even more than 60 days past due (not even more than 45 currently). I know that they are known to sue people or arbitrate with them. But I just don't know what the timeline is like. Would they really arbitrate this early? I have made my phone numbers unlisted, just to get them, some scammers from India (another interesting story, the "good luck as the situation unfold on you" jokers, and others off my back and have some peace and quiet at home. Maybe this is a reason they are moving more quickly, because they see that as being "uncooperative"? I also issued them a C & D letter a few months ago to not call me at work. They have complied with that. They do contact me via email and letters quite a bit, but they are always obvious automatically generated form letters. Any time I respond to them, the person who is supposedly "assigned to my account" never responds, and I was once told that this person does not take incoming calls and is outbound call only. This was after I personally responded to that person's email and they never respond. I just get an email back saying, "thank you for responding to our email, but we can't help you if you don't call us...". Then, when you do call and ask for that person, of course that person is never available. But the person answering the phone says "I can help you with your account", and then the collection phone games start. Many of you who have had the pleasure of talking to CC on the phone know how you get treated.
Can anyone offer their experiences with Cash Call as far as this "intent to arbitrate" letter is concerned? Any experience/advice as far as timelines? I'm at my wits end trying to deal with them. T & C told me that eventually they would ofer an interest rate reduction and lower payments, but I would likely need to get further behind for them to offer that (not that they ever reccomend that). But now, with this letter about arbitration I received today, I just don't know.
Concerned in Oregon.
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goldhelmet
Joined: 28 Mar 2008
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Shazzers
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| Posted: Sat Jul 19, 2008 2:45 pm Subject: |
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Shazzers - Here's a copy of the contract. I've bold faced the arbitration section.
Signed Document
| Quote: | Sign Time: February 21, 2007 10:51 AM
---------------------------------------------------------------------- ----------
FIRST BANK & TRUST PROMISSORY NOTE AND DISCLOSURE STATEMENT
Account No.:
Lender: First Bank & Trust
Address: 215 West 4th Avenue
Milbank, SD 57252
Date of Note: February 21, 2007
Expected Funding Date: February 21, 2007
Borrower:
Address:
LAKE OSWEGO, OR 97035
TRUTH IN LENDING ACT DISCLOSURE STATEMENT
ANNUAL PERCENTAGE RATE
The cost of my credit as a yearly rate
99.07 %
FINANCE CHARGE
The dollar amount the credit will cost me
$6,624.51
AMOUNT FINANCED
The amount of credit provided to me
$2,525.00
TOTAL OF PAYMENTS
The amount I will have paid after all payments are made as scheduled
$9,149.51
PAYMENT SCHEDULE
One payment of $272.02 on April 01, 2007.
40 monthly payments of $216.55 beginning on May 01, 2007.
One payment of $215.49 on September 01, 2010.
Late Charge: If a payment is more than 15 days late, I will be charged $15.00.
Prepayment: If I pay off this loan early, I will not have to pay any penalty. |
Please see the remainder of this document for additional information about nonpayment, default and any required repayment in full before the scheduled date.
| Quote: | ITEMIZATION OF AMOUNT FINANCED
Amount Financed: $2,525.00
Amount Paid to Borrower Directly: $2,525.00
Prepaid Finance Charge/Origination Fee: $75.00 |
In this Promissory Note & Disclosure Statement ("Note"), the words "I" and "me" mean the person signing as a borrower. "You" and "your" means First Bank & Trust, Milbank, SD, and any subsequent holder of this Note.
The Truth-in-Lending Disclosures above are part of the terms and conditions of our agreement.
| Quote: | NOTICE: CashCall, Inc. has served as the marketing agent for First Bank & Trust in this transaction; however CashCall was not responsible for and did not make any of the credit or lending decisions. All credit and lending decisions were made by First Bank & Trust, and First Bank & Trust will originate and fund this loan.
FOR VALUE RECEIVED, I promise to pay to the order of First Bank & Trust or any subsequent holder of this Note (the "Holder"), the sum of $2,600.00, together with interest calculated at 96.00 % per annum and any outstanding charges or late fees, until the full amount of this Note is paid.
I understand that my payments will be applied first to any outstanding charges or late fees, then to earned interest and finally to principal. The payment schedule described above may change in the event I do not make all payments as scheduled.
Interest is calculated on a 360/360 simple interest basis. This means that interest is calculated by dividing the annual Interest Rate by 360, multiplying that number by the outstanding principal balance, and multiplying that number by the number of days the principal balance is outstanding.
I understand that I may prepay all or any part of the principal without penalty.
I understand that I will be subject to a fee of $15 if any payment I make is returned for non-sufficient funds.
I understand that if I fail to make any payment due hereunder, the Holder of this Note shall have the right, after a 30-day grace period, to declare this Note to be immediately due and payable. I further understand that if I file for an assignment for the benefit of creditors, bankruptcy, or for relief under any provisions of the United States Bankruptcy Code, the Holder of this Note shall have the right to declare this Note to be immediately due and payable.
Except as may be provided in the "Arbitration" section of this Note, I understand that in the event that any Holder is required to employ an attorney at law to collect any amounts due under this Note, I will be required to pay the reasonable fees of such attorney to protect the interest of Holder or to take any other action required to collect the amounts due hereunder.
I agree that all payments not made within fifteen (15) days of the due date shall be subject to a late fee of $15. Any late fee assessed shall be collected by the Holder on behalf of the Holder and shall inure to the exclusive benefit of the Holder.
The origination fee included in the prepaid finance charge/origination fee disclosed above is fully earned upon loan origination and is not subject to rebate upon prepayment or acceleration of this Note.
The Holder of this Note may delay or forgo enforcing any of its rights or remedies under this Note without losing them. I hereby, to the extent allowed by law, waive any applicable statute of limitations, presentment, demand for payment, or protest and notice of dishonor. Upon any change in the terms of this Note, and unless otherwise expressly stated in writing, no party who signs this Note, whether as maker, guarantor, accommodation maker or endorser, shall be released from liability.
This Note is in original format an electronic document fully compliant with the Electronic Signatures in Global and National Commerce Act (E-SIGN) and other applicable laws and regulations, and that the one, true original Note is retained electronically by Holder on behalf of Holder. All other versions hereof, whether electronic or in tangible format, constitute facsimiles or reproductions only.
I understand that I have previously consented to receive all communications from you, including but not limited to, all required disclosures electronically.
I understand and agree that you may obtain credit reports on me on an ongoing basis as long as this loan remains in effect. I also authorize you to report information concerning my account to credit bureaus and anyone else it believes in good faith has a legitimate need for such information. I understand that late payments, missed payments, or other defaults on my account may be reflected in my credit report.
I understand that, from time to time, you may monitor telephone calls between you and me for quality assurance purposes.
GOVERNING LAW. This Note, and any claim, dispute or controversy arising from or relating to this Note, are governed by and construed in accordance with the laws of the State of South Dakota (without regard to its conflicts of law rules) and applicable federal law. The legality, enforceability, and interpretation of this Agreement and the amounts contracted for, charged, and received under this Agreement will be governed by such laws. This Agreement is entered into between you and me in South Dakota.
[b][b]ARBITRATION. PLEASE READ THIS PROVISION OF THE AGREEMENT CAREFULLY. I UNDERSTAND THAT UNLESS I EXERCISE THE RIGHT TO OPT-OUT OF ARBITRATION IN THE MANNER DESCRIBED BELOW, I AGREE THAT ANY DISPUTE WILL BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO HAVE A JURY, TO ENGAGE IN DISCOVERY (EXCEPT AS MAY BE PROVIDED IN THE ARBITRATION RULES), AND TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR INSTEAD OF A JUDGE OR JURY. ARBITRATION PROCEDURES ARE SIMPLER AND MORE LIMITED THAN COURT PROCEDURES. I ALSO AGREE ANY ARBITRATION WILL BE LIMITED TO THE DISPUTE BETWEEN MYSELF AND YOU OR THE HOLDER OF THE NOTE AND WILL NOT BE PART OF A CLASS-WIDE OR CONSOLIDATED ARBITRATION PROCEEDING.
Agreement to Arbitrate. The parties agree that any Dispute, except as provided below, will be resolved by Arbitration. This agreement is governed by the Federal Arbitration Act (FAA), 9 U.S.C.S. � 1 et seq. and the substantive law of the State of South Dakota (without applying its choice-of-law rules).
Arbitration Defined. Arbitration is a means of having an independent third party resolve a Dispute. A "Dispute" is any controversy or claim between me and First Bank & Trust or the Holder of the Note. The term Dispute is to be given its broadest possible meaning and includes, without limitation, all claims or demands (whether past, present, or future, including events that occurred prior to the opening of this Account), based on any legal or equitable theory (tort, contract, or otherwise), and regardless of the type of relief sought (i.e. money, injunctive relief, or declaratory relief). A Dispute includes, by way of example and without limitation, any claim based upon marketing or solicitations to obtain the loan and the handling of my account whether such Dispute is based on a federal or state constitution, statute, ordinance, regulation, or common law, and including any issue concerning the validity, enforceability, or scope of this arbitration agreement.
For purposes of this arbitration agreement, the term the "Holder" shall include First Bank & Trust�s employees, officers, directors, attorneys, affiliated companies, predecessors, and assigns, as well as any marketing, servicing, and collection representatives and agents.
Choice of Arbitrator. The party filing an arbitration must choose either of the following arbitration firms for initiating and pursuing an arbitration: the American Arbitration Association or the National Arbitration Forum. If I claim I have a Dispute with the Holder, but I fail to initiate an arbitration or select an arbitrator, the Holder may do so. I may obtain copies of the current rules of each of the arbitration firms and forms and instructions for initiating an arbitration by contacting them as follows:
American Arbitration Association
335 Madison Avenue, Floor 10
New York, NY 10017-4605
Website: www.adr.org
National Arbitration Forum
P.O. Box 50191
Minneapolis, MN 55405
Website: www.arbitration-forum.com
The policies and procedures of the selected arbitration firm will apply provided that these are consistent with this arbitration agreement. To the extent the arbitration firm�s rules or procedures are different than the terms of this arbitration agreement, the terms of this agreement will apply.
Cost of Arbitration. I understand that you will pay the filing fee and any costs or fees charged by the arbitrator regardless of which party initiates the arbitration. Except where otherwise provided by applicable law, each party will be responsible for its own attorneys� fees and other expenses. Unless prohibited by law, the arbitrator may award fees, costs, and reasonable attorneys� fees to the party who substantially prevails in the arbitration.
Place of Arbitration. Unless the parties agree to a different location, the arbitration will be held in the same city as the U.S. District Court closest to my then current mailing address.
Waiver of Rights. I understand that I am waiving my right to a jury trial, to have a court decide my Dispute, to participate in a class action lawsuit, and to certain discovery and other procedures that are available in a lawsuit. The arbitrator has the ability to award all remedies available by statute, at law, or in equity to the prevailing party, except that the parties agree that the arbitrator has no authority to conduct class-wide proceedings and will be restricted to resolving the individual disputes between the parties. The validity, effect, and enforceability of this waiver of class action lawsuit and class-wide arbitration is to be determined solely by a court of competent jurisdiction and not by the arbitration firm or arbitrator. If the court refuses to enforce the class-wide arbitration waiver, or if an arbitration firm or arbitrator fails or refuses to enforce the waiver of class-wide arbitration, the parties agree that the Dispute will proceed in court and will be decided by a judge, sitting without a jury, under applicable court rules and procedures.
Applicable Law and Judicial Review. The arbitrator will apply applicable federal and South Dakota substantive law and the terms of this Agreement. The arbitrator must apply the terms of this arbitration agreement, including without limitation the waiver of class-wide arbitration. The arbitrator will make written findings and the arbitrator�s award may be filed with any court having jurisdiction. The arbitration award will be supported by substantial evidence and must be consistent with this Agreement and applicable law or may be set aside by a court upon judicial review. Either party may seek judicial review of the arbitrator�s decision according to applicable law.
Other Provisions. This arbitration provision will survive: (i) termination or changes in this Agreement, the Account, or the relationship between us concerning the Account; (ii) the bankruptcy of any party; and (iii) any transfer, sale or assignment of my Note, or any amounts owed on my account, to any other person or entity.
Right to Opt Out. I understand that if I do not wish my account to be subject to this Arbitration Agreement, I must advise you in writing at P.O. Box 8040, Brookings, South Dakota 57006. I understand I must clearly print or type my name and account number and state that I reject arbitration. I understand that I must give written notice, and it is not sufficient to telephone you. I understand that you must receive my letter at the above address within sixty (60) days after the date my loan funds or my rejection of arbitration will not be effective. [/b][/b]
THIS LOAN CARRIES A VERY HIGH INTEREST RATE. YOU MAY BE ABLE TO OBTAIN CREDIT UNDER MORE FAVORABLE TERMS ELSEWHERE. EVEN THOUGH THE TERM OF THE LOAN IS 42 MONTHS, WE STRONGLY ENCOURAGE YOU TO PAY OFF THE LOAN AS SOON AS POSSIBLE. YOU HAVE THE RIGHT TO PAY OFF ALL OR ANY PORTION OF THE LOAN AT ANY TIME WITHOUT INCURRING ANY PENALTY. YOU WILL, HOWEVER, BE REQUIRED TO PAY ANY AND ALL INTEREST THAT HAS ACCRUED FROM THE FUNDING DATE UNTIL THE PAYOFF DATE.
CAUTION: IT IS IMPORTANT THAT YOU THOROUGHLY READ THIS AGREEMENT BEFORE YOU SIGN IT. YOU ARE ENTITLED TO A COPY OF THIS AGREEMENT.
I HAVE READ AND UNDERSTAND THE ARBITRATION SECTION OF THIS NOTE AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THAT SECTION.
I ATTEST THAT THE VOIDED CHECK SUBMITTED FOR APPROVAL OF MY LOAN IS FROM A LEGAL, OPEN AND ACTIVE ACCOUNT. THE CHECK IS NOT ALTERED, FORGED, STOLEN OR OBTAINED THROUGH FRAUDULENT OR ILLEGAL MEANS.
I HAVE READ ALL OF THE TERMS AND CONDITIONS OF THIS PROMISSORY NOTE AND DISCLOSURE STATEMENT AND AGREE TO BE BOUND THERETO. I UNDERSTAND AND AGREE THAT MY EXECUTION OF THIS NOTE SHALL HAVE THE SAME LEGAL FORCE AND EFFECT AS A PAPER CONTRACT.
CONSUMER COMPLAINTS -- If you have a complaint about our loan, please let us know. You can contact us at First Bank & Trust at 215 West 4th Avenue, Milbank, SD 57252, telephone (877) 289-0685; our marketing agent CashCall, Inc., at 17360 Brookhurst Street, Fountain Valley, CA 92708, telephone (866) 590-2274; or our supervisory agency, the South Dakota State Department of Banking, at 217� West Missouri Street, Pierre, SD 57501, telephone (605) 773-3421.
ELECTRONIC FUNDS AUTHORIZATION AND DISCLOSURE
I hereby authorize you to initiate electronic funds transfers ("EFTs") for withdrawal of my scheduled loan payment from my checking account on or about the FIRST day of each month. I further authorize you to adjust this withdrawal to reflect any additional fees, charges or credits to my account. I understand that you will notify me 10 days prior to any given transfer if the amount to be transferred varies by more than $50 from my regular payment amount. I also authorize you to withdraw funds from my account on additional days throughout the month in the event I am delinquent on my loan payments. I understand that this authorization and the services undertaken by you in no way alters or lessens my obligations under the loan agreement. I understand that I can cancel this authorization at any time (including prior to my first payment due date) by sending written notification to you. Cancellations must be received at least three business days prior to the applicable due date. This EFT debit authorization will remain in full force and effect until the earlier of the following occurs: (i) I satisfy all of my payment obligations under this Loan Agreement or (ii) I cancel this authorization.
In addition, I hereby authorize you and your agents to initiate a wire transfer credit to my bank account to disburse the proceeds of this Loan. I acknowledge that the origination of the wire transfer to my bank account must comply with applicable provisions of U.S. law.
I UNDERSTAND YOUR PAYMENT COLLECTION PROCEDURE AND AUTHORIZE ELECTRONIC DEBITS FROM MY BANK ACCOUNT.
Click here to print out a copy of this document for your records.
Loans made to residents of California, Idaho, New Mexico, and Utah will be underwritten and funded by CashCall. Loans made to residents of all other states (excluding Iowa, Massachusetts, Nevada, New York, New Jersey and West Virginia) will be underwritten and funded by First Bank of Delaware (Member FDIC). |
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goldhelmet
Joined: 28 Mar 2008
Posts: 73
Debtcc Points: 1281
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| Posted: Sat Jul 19, 2008 2:54 pm Subject: |
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| Quote: | Right to Opt Out. I understand that if I do not wish my account to be subject to this Arbitration Agreement, I must advise you in writing at P.O. Box 8040, Brookings, South Dakota 57006. I understand I must clearly print or type my name and account number and state that I reject arbitration. I understand that I must give written notice, and it is not sufficient to telephone you. I understand that you must receive my letter at the above address within sixty (60) days after the date my loan funds or my rejection of arbitration will not be effective.
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That's what I would do! Opt out, based on some of the articles and posts made by members of this forum, arbitration is a farce and always goes in favor of the creditor!
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Shazzers
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Joined: 05 Dec 2007
Posts: 3774
Debtcc Points: 24780
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| Posted: Sat Jul 19, 2008 2:55 pm Subject: |
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I don't think he can opt out at this point since it's been over 60 days from the date of his loan funding?
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alias1958
Joined: 31 May 2008
Posts: 965
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Shazzers
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Joined: 05 Dec 2007
Posts: 3774
Debtcc Points: 24780
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| Posted: Sat Jul 19, 2008 3:05 pm Subject: |
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Shazzers - It states that I have to do it within 60 days of the loan being funded. It doesn't appear to be an option at this point.
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goldhelmet
Joined: 28 Mar 2008
Posts: 73
Debtcc Points: 1281
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Shazzers
Moderator
Joined: 05 Dec 2007
Posts: 3774
Debtcc Points: 24780
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Shazzers
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Joined: 05 Dec 2007
Posts: 3774
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| Posted: Sun Jul 20, 2008 12:24 am Subject: |
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Does you stste allow such high interest rates? Sounds like usury to me.
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cajunbulldog
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| Posted: Sun Jul 20, 2008 6:52 am Subject: |
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The way it stands now, they are charging you roughly $6.67 per day in interest (96%/360*2500), or $200/month. Since any payments are first applied towards the unpaid accrued interest, when you send in $108 - that is not even covering all of the interest that is due; so your payments will never ever touch the principle at that rate. If they won't lower the rate, you will never pay this off by sending only $108/month.
Sometimes it is better just to let them go the legal route. Like cajun said, when they file a lawsuit, the interest stops. When they actually get a judgment, then interest starts back up at the statutory rate (usually 9-12%).
The other thing is that if they do file for suit/arbitration, they cannot charge for the remaining 27 months worth of interest -- they can only charge the interest that has actually earned on the account up to that point in time. So if they sue, then they would only sue for $2900 give or take a few days worth of interest depending when they file.
Another thing you might check into --- make sure the interest isn't compounding every month. Being backed by a bank, I don't think that they would flagrantly violate the laws -- but in a simple interest contract the interest cannot compound onto the principle. If it were, then they would be charging you interest on your unpaid interest, which they cannot do.
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DebtCruncher
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| Posted: Sun Jul 20, 2008 7:04 am Subject: |
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OK - But would I still get to pay over time - monthly payments, or is the entire amount due immediatley? If I can't pay it all immediately, then what - they garnish my wages?
If they know arbitration will result in a lowering of the interest rate to my state max, why wouldn't they just do a debt modification agreement to that effect - lowering the interest rate? Why go to arbitration if that's going to be the end result? I don't want out of the obligation. I want the terms - interest rate and monthly payment amount - lowered to a humane level. I've already payed them over $3,500 on a $2,500 loan and the principal has actually INCREASED.
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goldhelmet
Joined: 28 Mar 2008
Posts: 73
Debtcc Points: 1281
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| Posted: Mon Jul 21, 2008 8:59 am Subject: |
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Normally they let the loan be late for a while before they arbitrate or sue. The reason they do this is because they can charge you 99% interest until the loan defaults. I think making a partial payment that doesn't even cover the interest is probably the worst thing you can do. I believe that will just lenghten the time that it takes the loan to default which means it cost you that much more in interest. I personally would not send them money until the either lower the rate to the state legal rate or until they arbitrate and then sue which will then lower the rate to the state legal rate. The amount due will baloon though if they sit on it a long time which is their main strategy. The want that amount to be as large as possible before the loan defaults.
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DOLLARSandSINCE
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| Posted: Mon Jul 21, 2008 9:39 am Subject: |
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Yeah, when I was dealing with them, i got a letter that they would seek legal action if I didn't pay. Then nothing for 8 months until I answered the door to the sherrif serving a summons.
The Sherrif did tell me that he had a bunch of other CC summons to serve, and that it seemed like they waited until they had enough people in the area to sue to make it worth their while.
But all my dealings with them was through court - No arbitration for me.
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goudah2424
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