Michael Fuller, Oregon Bar No. 09357 Special …...DEBTOR’S MOTION FOR RELIEF FROM THIS COURT’S MARCH 8, 2016 ORDER ON MOTION TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE, DEBTOR’S

DEBTOR’S MOTION FOR RELIEF FROM THIS COURT’S MARCH 8, 2016 ORDER ON MOTION TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE, DEBTOR’S MOTION TO SET ASIDE OR RECONSIDER - Page 1 of 5

Olsen Daines PC US Bancorp Tower 111 SW 5th Ave., Suite 3150 Portland, Oregon 97204

Michael Fuller, Oregon Bar No. 09357 Special Counsel for Debtor Olsen Daines PC US Bancorp Tower 111 SW 5th Ave., Suite 3150 Portland, Oregon 97204 [email protected] Direct 503-201-4570

UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF OREGON In re Stephanie Banks Debtor.

Case No. 14−35264−rld13 DEBTOR’S MOTION FOR RELIEF FROM THIS COURT’S MARCH 8, 2016 ORDER ON MOTION TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE, DEBTOR’S MOTION TO SET ASIDE OR RECONSIDER Oral Argument Requested

LBR 7007-1 CONFERENCE CERTIFICATION

The parties made a good-faith effort through telephone conference on March 8, 2016 to

resolve this dispute and have been unable to do so.

MOTION

Under 11 U.S.C. § 105 and FRBP 7052 by reference to FRCP 52 and FRBP 9023 by

reference to FRCP 59 and FRBP 9024 by reference to FRCP 60, and this Court’s inherent and

equitable power, debtor moves for relief from this Court’s March 8, 2016 order [Doc. 50]

Case 14-35264-rld13 Doc 52 Filed 03/08/16



compelling arbitration, or in the alternative, moves for amended or additional findings, or in the

alternative, moves to set aside the March 8, 2016 order, or in the alternative, moves to reconsider

the March 8, 2016 order, because Ad Astra and Rapid Cash’s promise to accommodate debtor by

paying her non-waivable arbitration filing fee was illusory.

UNDISPUTED FACTS

In order to initiate arbitration, the AAA requires debtor to pay a $200 nonrefundable

filing fee. Banks decl. ¶ 2; Exhibit 2. Debtor intends to seek waiver of the filing fee after

arbitration is commenced but cannot initiate arbitration until the fee is paid. Id. Debtor is a

cancer patient, unable to work full-time, and all her disposable income is committed to her

monthly chapter 13 plan payments. Id. As a result, debtor is unable to pay or obtain waiver of the

arbitration filing fee. Id. On March 1, 2016, debtor requested Ad Astra and Rapid Cash to

confirm their intent to cover her arbitration fees if the AAA would not waive them. Banks decl. ¶

3; Exhibit 1. On March 8, 2016, Ad Astra and Rapid Cash rejected debtor’s request. Id. As of the

date of this motion, debtor cannot afford to initiate arbitration to vindicate her automatic stay

claim. Id.




ARGUMENT

FRBP 7052, 9023 and 9024 and this Court’s inherent and equitable power allow it to

grant debtor relief from its March 8, 2016 order based on newly discovered evidence, fraud on

the Court, or “any other reason that justifies relief”, or to make amended or additional findings.

See, e.g., In re Thomas, No. 13-35761-rld13, 2014 Bankr. LEXIS 1479 (U.S. Bankr. D. Or. Apr.

7, 2014).

This Court’s March 8, 2016 order was premised on the presumption that “The arbitration

provisions of the Agreement, by their terms, provide accommodations for claimants of limited

means, such as Ms. Banks, to pursue individual claims in arbitration in a cost effective manner,

even pro se, and no evidence has been presented to establish that those accommodations are

illusory.” Doc. 47, pg. 20, Memorandum Opinion.

At the time the order was entered, no evidence suggested Ad Astra and Rapid Cash

would not “consider any good faith request” to cover debtor’s arbitration fees if the fees could

not be waived. In light of Ad Astra and Rapid Cash’s subsequent March 8, 2016 email rejecting

debtor’s good faith request to cover her arbitration fees if the fees could not be waived, this

Court should reconsider its order compelling this matter to arbitration.




CONCLUSION

For all the reasons above, debtor respectfully requests relief from this Court’s March 8,

2016 order [Doc. 50]. Debtor files this motion according to FRBP 8002(b) and reincorporates all

arguments and evidence contained in her response brief filed January 12, 2016 [Doc. 39], oral

argument heard January 25, 2016, and her supplemental brief filed February 2, 2016 [Doc. 46].

DATED: March 8, 2016 RESPECTFULLY SUBMITTED,

/s/ Michael Fuller Michael Fuller, Oregon Bar No. 09357 Special Counsel for Debtor Olsen Daines PC US Bancorp Tower 111 SW 5th Ave., Suite 3150 Portland, Oregon 97204 [email protected] Direct 503-201-4570




CERTIFICATE OF SERVICE

I certify that on the date below I caused this document and all attachments to be served on the following persons by ECF: Ad Astra and Rapid Cash c/o attorney Michael Farrell [email protected] DATED: March 8, 2016 /s/ Michael Fuller

Michael Fuller, Oregon Bar No. 09357 Special Counsel for Debtor Olsen Daines PC US Bancorp Tower 111 SW 5th Ave., Suite 3150 Portland, Oregon 97204 [email protected] Direct 503-201-4570


UNITED STATES BANKRUPTCY COURT

FOR THE DISTRICT OF OREGON

Case No. 14-35264-rld13 Inre

DECLARATION OF STEPHANIE BANKS Stephanie Banks

Debtor. IN SUPPORT OF DEBTOR'S MOTION FOR RELIEF FROM THIS COURT'S FEBRUARY 26, 2016 ORDER ON MOTION TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE, DEBTOR'S MOTION TO SET ASIDE OR RECONSIDER

DECLARATION

I, Stephanie Banks, declare the following under penalty of perjury to be used as evidence

in court:

1. I know the facts I am testifying about based on my personal knowledge.

2. In order to initiate arbitration, the AAA requires me to pay a $200 nonrefundable filing

fee. The document attached as Exhibit 2 is a true and correct copy of the AAA's rules

governing costs of arbitration effective January 1, 2016. I intend to seek waiver of the

filing fee after arbitration is commenced but cannot initiate arbitration until the fee is

paid. I am a cancer patient, unable to work full-time, and all my disposable income is

committed to making my monthly chapter 13 plan payments. As a result, I am unable to

pay or obtain waiver of the arbitration filing fee.

3. On March 1, 2016, through my special counsel, I requested Ad Astra and Rapid Cash to

confirm their intent to cover my arbitration fees if the AAA would not waive them. The

email attached as Exhibit 2 is a true and correct redacted copy of my March 1, 2016

DECLARATION OF STEPHANIE BANKS - Page 1 of 2


request, and Ad Astra and Rapid Cash's March 8, 2016 response rejecting my request. As

of the date of this declaration, I cannot afford to initiate arbitration to vindicate my

automatic stay claim.

4. Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true

and correct.

DATED: March ' , 2016

0~-J~Lr-·Stephan~ J

DECLARATION OF STEPHANIE BANKS-Page 2 of2


Michael Fuller <[email protected]>

RE: In re Banks; My Client AARS (1435264rld13) 1 message

Newman, Patrick D. <[email protected]> Tue, Mar 8, 2016 at 7:18 AMTo: Michael Fuller <[email protected]>Cc: "[email protected]" <[email protected]>, "Tom Purcell ([email protected])"<[email protected]>, "Baker, Tiffany M." <[email protected]>, "[email protected]"<[email protected]>, "Yaneli M. Silva" <[email protected]>, "Michael Farrell([email protected])" <[email protected]>, "Newman, Patrick D." <[email protected]>

RULE 408 SETTLEMENT COMMUNICATION

Thank you, Michael. The following is my understanding of how this matter has progressed to date. Please correct any misapprehensions I may have.

(1) On September 17, 2015, Ms. Banks filed a motion for a contempt order with thebankruptcy court for the District of Oregon without following the Pre‑Dispute ResolutionProcess outlined in the arbitration agreement (a copy of which is attached for your reference);

(2) On October 17, 2015, Plaintiff rejected the very reasonable offer of byAARS and Speedy Cash to resolve this matter and demanded AARS and SpeedyCash;

(3) In the same email, Plaintiff suggested that she intended to depose Rule 30(b)(6)representatives of both AARS and Speedy Cash, and that she was ʺshopping experts to testifyas to emotional harm;ʺ

(4) AARS and Speedy Cash responded to Ms. Banksʹ contempt motion. In their response,they admitted that a collection letter was sent to Banks post‑petition. In email correspondencewith Plaintiff, my predecessor, Issa Moe, clearly stated that ʺ[w]e agree on the standard fordetermining whether a violation occurred.ʺ Plaintiff reduced her demand ;

(5) Because Ms. Banks continued to demand an exorbitant amount of money from AARSand Speedy Cash to settle and continued to insist that 30(b)(6) depositions and writtendiscovery be had in a case where the material elements of her claim were not in dispute,AARS and Speedy Cash moved for a protective order and to stay discovery and furtherelected to enforce their right under the loan agreement to arbitrate the matter;

Exhibit 1 - Page 1 of 3Case 14-35264-rld13 Doc 52 Filed 03/08/16

(6) Ms. Banks elected to oppose the election of AARS and Speedy Cash to exercise theirrights pursuant to what was ultimately found by the Court to be a clearly‑enforceablearbitration agreement. Her legal arguments included her alleged inability to find counselwilling to represent her in arbitration. It is also my understanding that Ms. Banksʹ counselrepresented to the Court during oral argument that Ms. Banks had no intention of pursuingarbitration should the Court rule in favor of AARS and Speedy Cash on the motion to compel.

The arbitration agreement provides, in relevant part, that AARS and Speedy Cash ʺwill consider anygood faith request you make for us to pay the administratorʹs or arbitratorʹs filing, administrative, hearingand/or other fees if you cannot obtain a waiver of such fees from the administrator and we will not seekor accept reimbursement of any such fees we agree to pay.ʺ Both AARS and Speedy Cash take thisprovision seriously.

AARS and Speedy Cash must reject Ms. Banksʹ request for reimbursement of her arbitration fees pursuantto the agreement. My clients do not believe that the steps taken in the prior litigation can be described asʺgood faith.ʺ Ms. Banks opened with an incredibly high, disproportionate demand. To place pressure onAARS and Speedy Cash to settle on that number, she insisted on conducting disproportionate levels ofdiscovery in a case where no serious contest existed as to the material elements of her § 362 claim. WhenAARS and Speedy Cash moved to stay discovery and compel arbitration, Ms. Banks fought the motiontooth‑and‑nail, despite her clear agreement to be bound by the clearly‑valid arbitration agreement. Insupport of that opposition, Ms. Banks suggested that she could find no attorney to represent her inarbitration, and indeed went so far as to state to the Court that she did not intend to pursue arbitrationshould the court grant the motion to compel.

Notwithstanding those representations, Ms. Banks has now stated her intention to initiate arbitration andhas evidently located counsel to represent her in those proceedings. Ms. Banksʹ chosen litigation strategyhas forced AARS and Speedy Cash to incur completely unnecessary legal fees. AARS and Speedy Cashmade good faith efforts to settle this matter at the very beginning; Ms. Banks elected to turn this into aprotracted piece of litigation. Nothing about how this case has been litigated to date evinces good faith. Accordingly, AARS and Speedy Cash reject Ms. Banksʹ request.

In the interest of settling this matter short of further proceedings, AARS and Speedy Cash offer Ms. Banks full and final resolution of her § 362 claim. That figure represents compensation to Ms. Banks

for the stay violation and accounts for her reasonable attorneysʹ fees expended in litigating this matter. This offer is both generous and fair. We hope Ms. Banks will find it acceptable.

We look forward to hearing from you.


Patrick D. Newman Attorney

(612) 8775264

From: Michael Fuller [mailto:[email protected]] Sent: Tuesday, March 01, 2016 12:49 PM To: Michael Farrell ([email protected]) Cc: [email protected]; Tom Purcell ([email protected]); Baker, Tiffany M.; Newman,Patrick D.; [email protected]; Yaneli M. Silva Subject: Re: In re Banks; My Client AARS (1435264rld13)

Hey Michael,

My client intends to initiate arbitration of her § 362(k) claim with the AAA. She intends to request waiver of herarbitration fees, as she is a cancer patient, unable to work fulltime, and all her disposable income is committed toher monthly chapter 13 plan payments.

Before she initiates arbitration, please confirm that your clients will agree to cover her arbitration fees if the AAAwill not waive them.

Thanks,

Michael Fuller

Partner

Olsen Daines PC

US Bancorp Tower

5032014570

On Sat, Jan 30, 2016 at 12:10 PM, Newman, Patrick D. <[email protected]> wrote:

Thank you. I have not heard back from client. If I do prior to COB on Monday I will let you know.

Have a nice weekend.


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Costs of Arbitration (including AAA Administrative Fees)*

Arbitrator compensation is not included as part of the administrative fees charged by the AAA. Arbitrator compensation is based on a rate established by the AAA as set forth below. If a Preliminary Management Hearing is held by the arbitrator, the arbitrator is entitled to one-half the arbitration compensation rate for a full hearing day or a documents-only hearing. Once evidentiary hearings are held, the arbitrator is entitled to the full-day rate of compensation. The business shall pay the arbitrator’s compensation unless the consumer, post dispute, voluntarily elects to pay a portion of the arbitrator’s compensation. Arbitrator compensation, expenses as defined in sections (v) and (vii) below, and administrative fees (which include Filing and Hearing Fees) are not subject to reallocation by the arbitrator(s) except as may be required by applicable law or upon the arbitrator’s determination that a claim or counterclaim was filed for purposes of harassment or is patently frivolous.

* Pursuant to Section 1284.3 of the California Code of Civil Procedure, consumers with a gross monthly income of less than 300% of the federal poverty guidelines are entitled to a waiver of arbitration fees and costs, exclusive of arbitrator fees. This law applies to all consumer agreements subject to the California Arbitration Act, and to all consumer arbitrations conducted in California. If you believe that you meet these requirements, you must submit to the AAA a declaration under oath regarding your monthly income and the number of persons in your household. Please contact the AAA at 1-800-778-7879, if you have any questions regarding the waiver of administrative fees. (Effective January 1, 2003)

CONSUMER ARBITRATION RULESCosts of ArbitrationAmended and Effective January 1, 2016

Party Desk ArbitrationIn-Person or Telephonic Hearing –

Single ArbitratorIn-Person or Telephonic Hearing –

Three Or More Arbitrators

Consumer Filing Fee—$200 (nonrefundable) Filing Fee—$200 (nonrefundable) Filing Fee—$200 (nonrefundable)

BusinessFiling Fee—$1,700

Arbitrator Compensation—$750 per case

Filing Fee—$1,700

Hearing Fee—$500

Arbitrator Compensation—$1,500 per hearing day

Filing Fee—$2,200

Hearing Fee—$500

Arbitrator Compensation—$1,500 per hearing day per arbitrator

(i) Filing Fees

In cases before a single arbitrator, a nonrefundable filing fee capped in the amount of $200 is payable in full by the consumer when a case is filed, unless the parties’ agreement provides that the consumer pay less. A partially refundable fee in the amount of $1,700 is payable in full by the business, unless the parties’ agreement provides that the business pay more. This fee is due from the business once the consumer has met the filing requirements.

In cases before three or more arbitrators, a nonrefundable filing fee capped in the amount of $200 is payable in full by the consumer when a case is filed, unless the parties’ agreement provides that the consumer pay less. A partially refundable fee in the amount of $2,200 is payable in full by the business, unless the parties’ agreement provides that the business pay more. This fee is due from the business once the consumer has met the filing requirements.


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ADMINISTRATIVE FEE SCHEDULES (CONT.)

There shall be no filing fee charged for a counterclaim.

The AAA reserves the right to assess additional administrative fees for services performed by the AAA beyond those provided for in these Rules and which may be required by the parties’ agreement or stipulation.

(ii) Neutral Arbitrator’s Compensation

Arbitrators serving on a case with an in-person or telephonic hearing will receive compensation at a rate of $1,500 per day.

Arbitrators serving on a case with a desk arbitration/documents-only hearing will receive compensation at a rate of $750 per case.

The AAA reserves the right to raise the daily or per-case arbitrator compensation rate because of the complexity of the case or for processes and procedures beyond those provided for in these Rules and which may be required by the parties’ requests, agreement, or stipulation (1) at the time of the AAA’s initiation of the case; (2) upon the addition of a new party; (3) when a change of claim is made and, if necessary, approved by the arbitrator(s); (4) or if circumstances arise during the course of the case due to the complexity of issues and submissions by the parties. Any determination by the AAA on compensation rates is in the sole discretion of the AAA and such decision is final and binding on the parties and arbitrator.

(iii) Refund Schedule

Once the claimant has met the filing requirements, refunds to the business will be calculated as follows:

• if the case is settled or withdrawn within 30 calendar days, 50% of the filing fee will be refunded to the business.

However, no refund of the filing fee will be made once an arbitrator has been appointed and no refunds will be made on awarded cases. The date the claimant’s filing requirements are met is the date used to calculate any refund of filing fees. If the matter is settled or withdrawn prior to receipt of filing fees from the business, the AAA will bill the business in accordance with this refund schedule.

(iv) Hearing Fees

For telephonic hearings or in-person hearings held, an additional administrative fee of $500 is payable by the business.

There is no AAA hearing fee for the initial Administrative Conference (see R-10).

(v) Hearing Room Rental

The hearing fees described above do not cover the rental of hearing rooms. The AAA maintains rental hearing rooms in most offices for the convenience of the parties. Check with the administrator for availability and rates. Hearing room rental fees will be borne by the business.

(vi) Abeyance Fee

Parties on cases held as inactive for one year will be assessed an annual abeyance fee of $300. If a party refuses to pay the assessed fee, the opposing party or parties may pay the entire fee on behalf of all parties, otherwise the matter will be administratively closed. All filing requirements, including payment of filing fees, must be met before a matter may be placed in abeyance.


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ADMINISTRATIVE FEE SCHEDULES (CONT.)

(vii) Expenses

All expenses of the arbitrator, including required travel and other expenses, and any AAA expenses, as well as the costs relating to proof and witnesses produced at the direction of the arbitrator, shall be borne by the business.

(viii) Consumer Clause Review and Registry Fee

Please note that all fees described below are nonrefundable.

For businesses submitting a clause, the cost of reviewing the clause and maintaining that clause on the Registry is $500. A yearly Registry fee of $500 will be charged to maintain each clause on the Registry for each calendar year thereafter.

If the AAA receives a demand for consumer arbitration from an arbitration clause that was not previously submitted to the AAA for review and placement on the Registry, the business will incur an additional $250 fee to conduct an expedited review of the clause.

Any subsequent changes, additions, deletions, or amendments to currently registered arbitration agreement must be resubmitted for review and a review fee of $500 will assessed at that time.


Documents

Michael Fuller, Oregon Bar No. 09357 Special …...DEBTOR’S MOTION FOR RELIEF FROM THIS COURT’S MARCH 8, 2016 ORDER ON MOTION TO COMPEL ARBITRATION, OR IN THE ALTERNATIVE, DEBTOR’S