Consumer complaint received 2023-09-04
Company: Capital Management Services, LP
State: FL
Product: Credit reporting or other personal consumer reports
Sub-product: Credit reporting
Issue: Incorrect information on your report
Sub-issue: Account information incorrect

Complaint:
To : XXXX XXXX XXXX Cc : Capital Management Services, L.P. Reference # XXXX. Thank you for your prompt response to my recent CFPB filing where you included the attached Arbitration Clause which I requested. Pursuant to it, I ELECT to have any Claim by either of us resolved exclusively by arbitration with the American Arbitration Association ( AAA ). In bold and capital letters print, you wrote and we further agreed in the recap summary : ARBITRATION WITH RESPECT TO A CLAIM IS BINDING AND NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURTALL CLAIMS MUST BE RESOLVED THROUGH ARBITRATION. The Clause provides that if either of us willfully violates the Clause, even after my election, by filing prohibited litigation, such as in a state or federal court : If any Claim is advanced in a court, arbitration may be elected under this provision instead. This means that effectively due to my election you must file an arbitration demand with AAA and pay all fees so any litigation would be null and void as a mere ministerial filing of a demand with fee payment would NOW effectively be assumed and concluded that the Claim is NOW in Arbitration making litigation barred as a Claim can not be litigated and arbitrated in 2 separate forums when you have agreed to arbitrate as the sole forum. So if you frivolously sue me in a court, after my election today, the Clause anticipates that I would file a Motion to Compel Binding Forced Private Arbitration with AAA which would AUTOMATICALLY STAY any litigation under Florida Statutes ( FS ) Section 682.03 ( 6 ) which specifically provides that once a motion to compel arbitration has been filed, the court must STAY any judicial proceeding that involves a claim alleged to be subject to Arbitration until the Court renders a final decision on arbitrability of the dispute. Any decision on a Motion to Compel Arbitration is an appealable decision which, if appealed which I would do if denied, would further Automatically STAY the case pending Appeal for at least 12-24 months. See US Supreme Court No 22-105 XX/XX/XXXX decision in COINBASE v Bielski . If I am improperly sued in a state court and you do not agree to arbitrate, I would file a Petition in the United States District Court for the Middle District of Florida XXXX Division to Compel Arbitration with AAA. Under the Federal Arbitration Act, a party aggrieved by the alleged failure, negligent or refusal of another to arbitrate under a written agreement for arbitration may petition any U.S. district court for an order directing that such arbitration proceed in the manner provided for in such agreement. I would easily be successful in any expected federal court action if I am improperly sued and you refuse to arbitrate. While I could file for arbitration with the AAA, I want to avoid stupid litigation if I pay the initial {$220.00} fee and you litigate in federal court that you should pay the fee costing {$50000.00} in attorney and other fees for no reason other than to harass. So if you want to collect your disputed Claim you must file a Demand For Arbitration Consumer Arbitration Rules with AAA and pay all fees including those of the Arbitrator which easily will be ultimately over {$25000.00} which will not be recoverable from me including your attorney fees even if you prevail which is impossible due to my Claims against you for multiple statutory FCRA willful violation plus punitive damages far exceeding your dispute Claim. Your arbitration terms of service incorporates by reference the AAA Rules that expressly delegates arbitrability determinations to an arbitrator and the agreement clearly and unmistakably evidences the parties intent to empower an arbitrator, rather than a court or judge, to resolve questions of arbitrability. See AIRBNB V DOE, Florida Supreme Court # SC20-1167 decided XX/XX/XXXX. Therefore, once an arbitration agreement is presented to a court, the court is powerless to consider arbitrability as such has been delegated to the arbitrator. Due to your arbitration provisions, courts are powerless to act and they are automatically stayed if I move to compel arbitration. Dont waste your money with court filing fees and attorney fees as you will alienate the court and waste resources only to find court actions forced into arbitration with AAA . That is why court actions are automatically stated to prevent a complete waste of time as arbitration agreements must be enforced. Besides, court decisions are clear that Florida does not have a Small Claims Court, but a mixture of rules so again dont embarrass your attorneys by asking them to frivolously litigate. Lets arbitrate!!! File with the AAA and pay its huge fees. Never expect AAA fees to be recouped. Never expect a return of attorney fees. I will automatically appeal any decision of a court, state or federal, that does not compel arbitration and provide me relief from frivolous conduct such as Federal Rule 11. If you sue me in state court, you will certainly see a motion To Compel Arbitration, staying it, PLUS a federal court Petition to compel arbitration PLUS a Demand for Arbitration by me with the AAA requiring you to pay all fees PLUS federal claims for FCRA and FDCPA violations both in federal court and AAA. By virtue of my election in this document and previous documents, it is indisputable that the Claim and Dispute is already with the AAA absent a mere ministerial 2 page demand by you with your payment of AAA fees. So court litigation is completely barred and any such filing will be considered frivolous willful conduct punishable under the FCRA and FDCPA punishable with a dismissal with prejudice of any court claim. If you are stupid and just want to harass me, you should expect years of litigation in multiple state and federal courts, including the US Court of Appeals PLUS no court would enforce any AAA award against me due to your conduct including FCRA and FDCPA violations. In SAUNDERS v Branch Banking, 526 F.3d 142 ( 4th Cir. XXXX ), the jury awarded Saunders {$1000.00} in statutory damages and {$80000.00} in punitive damages for FCRA violations for failing to report the ongoing dispute. Using the multiple of 80 upheld, if I am awarded {$5000.00} in statutory damages I expect {$400000.00} in punitive damages applying the 80 multiple. Moreover, the Saunders jury found that the underlying debt was extinguished and uncollectible due to conduct far less than yours. This means that your Disputed Claim must be extinguished due to your FCRA violations PLUS I have huge claims for multiple ongoing statutory and punitive damages. My FCRA violations against you are DEEMED WILLFUL, providing a {$1000.00} statutory damage per violation based on on the CFPBs XX/XX/XXXX Fair Credit Reporting : Facially False Data advisory opinion of Director XXXX XXXX which stated : A violation is willful when it is inconsistent with authoritive guidance from a relevant agency. Therefore, every FCRA must be considered WILLFUL subjecting you to liability under 15 U.S.C. Section 1681n for willful noncompliance in addition to Section 1681o for negligent noncompliance. Federal courts would have federal question jurisdiction under 28 U.S.C. Section 1331 as they have jurisdiction to enforce liability under 15 U.S.C. Sections 1681p and 1692 ( k ) without regard to the amount in controversy. At a minimum, I can only settle a claim if you agree to absolute confidentiality of settlement PLUS the permanent removal of Claims from every credit reporting agency which will not disclose or imply settlement. Any written settlement must also include general releases of all parties to forever end the possibility of future litigation. While judges, mediators and arbitrators always try hard to force settlement, I am always open at any time to settle a dispute under fair terms based on developments. If you sell a claim to a debt buyer, your liability will not end but it may increase and arbitration will still be required and enforced ending up more complicated with more parties. In summary, the ball is in your court on how you wish to resolve the dispute which may be best taking the tax deduction and walking away without selling the toxic claim. I will not be the first to seek relief but, as listed above, I will aggressively counter any and all efforts to collect your disputed claim in litigation and/or arbitration. Dont waste $ XXXX in your shareholders money for AAA arbitration fees and your attorney fees to try unsuccessfully to collect {$0.00} owed knowing that I am owed potentially huge statutory and punitive damages. In light of my cease and desist demand which continues forever as I will never withdraw it, I can not communicate with you but I invite you to make a one time permissible exception for you to WRiTE me in the CFPB portal about what non-binding exact terms you may consider to resolve all claims. I hope this CFPB complaint will make my position clear about forum resolution options which exclusively require arbitration with the AAA. If this is not enough, I am a XXXX year old male in poor health with a short time more to live and I am judgment proof as my entire income is from Social Security, exempt from garnishment, and I have no other income or assets and I need treatment abroad and residency abroad. Serving me abroad will not comply with FS 2.516 and will only result in any attempted service to be return as unserved. I hope this informs you of the situation so you do the right thing.

Company public response: Company has responded to the consumer and the CFPB and chooses not to provide a public response
Company response to consumer: Closed with explanation