When Eleanor Schiano paid the debt owed her credit card holder, MBNA Corporation, little did she realize that the attorneys who represented MBNA in arbitration proceedings would keep the money, that the financial services company would continue to hold her responsible for the debt, that her credit would be ruined, and that the courts would stymie her efforts to redress her grievance against those who perpetrated the fraud.
I did not have to think twice about quitting my job in order to care for my elderly inlaws, who needed my help. After all, my husband had an income and our family's finances seemed secure. What I did not anticipate was that the company that employed him for 30 years would go bankrupt, that he would lose his job, and that he would be fall victim to an illness that left him temporarily disabled.
In October of 2004, my husband and I paid the arbitration award that the National Arbitration Forum (NAF) had rendered that June in favor of MBNA Corporation. We paid our entire debt of $25,000 plus another $5,000 in legal fees and arbitration costs. To raise the money, we refinanced our mortgage at a subprime rate, and had our title company forward the checks to Pressler & Pressler, the lawyers who represented that they were the attorneys for MBNA.
Our MBNA accounts, however, continued to remain delinquent, and we subsequently discovered that the lawyers never forwarded our money to its represented arbitration claimant, MBNA. What we have been going through ever since, has been a nightmare.
My attorney brought an action in U.S. District Court for the District of New Jersey (Third Circuit) against MBNA and the law firms of Pressler & Pressler (which represented MBNA in state court to enforce the arbitration award) and Wolpoff & Abramson (which represented MBNA as its counsel during arbitration), for fraud and violation of federal statutes. My attorney is a family member, working pro bono on this case. The district court judge, Jose Linares, would neither confirm nor vacate the paid arbitration award, but instead sent us back to the NAF for a second arbitration of what he deemed "related claims." In effect, it is a "do-over" arbitration that would leave my paid arbitration award vulnerable and subject to change a violation of Federal Arbitration Act (FAA) regulations.
We next filed a Petition for Writ of Mandamus and Interlocutory Appeal in the Third Circuit, appealing the district court's failure to confirm the award under the FAA. On December 30, 2005, my matter was filed, submitted and apparently decided that same day, although the order is dated February 6, 2006. And there were other irregularites with the order. For example, it was only a denial of the motion rather than the required Judgment Order. In addition, the order stated that the standing motion panel "B" (B-41) had decided the matter, but the judges listed on the order did not constitute standing motion panel "B," who at that time were Judges Rendell, Ambro, Becker or Greenberg. Instead, it listed Judges Rendell, Smith and Becker as deciding the matter. My attorney then wrote directly to Judge Smith about the aberrant order; he forwarded it back to Third Circuit clerks for review, as he was not part of panel "B."
Although motion denials are ordinarily not permitted an en banc rehearing, we filed a Petition for En Banc Rehearing. In April 2006, after nearly three months had elapsed, the Petition for Rehearing had still not been decided. My attorney contacted a lawyer who worked at the Third Circuit, Brad Baldus, regarding the aberrant December 30, 2005 order and the fact that Petition for Rehearing had never been decided. Mr. Baldus never responded in writing. On May 3, 2006, while the Petition for Rehearing was still pending, my attorney contacted George Leone, Chief of Appeals Division, Department of Justice, in Newark, New Jersey. Mr. Leone reviewed the order and apparently contacted the Third Circuit on the following day. The next day (May 5, 2006), the En Banc Petition was denied, although it was erroneously designated pro se (BPS-41 standing motion panel "B") and pro se (PS) matter. On May 8th, Mr. Leone informed my attorney that he was transferring the aberrant Third Circuit order to James Nobile, Chief of Special Prosecutions (Corruption), for review.
When my attorney contacted Mr. Nobile, he informed her that he had little knowledge of the appeals process and thus would not investigate the Third Circuit order. He did state, however, that "a crime had been committed" with regard to my missing $30,000, and that he had no choice but to refer the matter to the Federal Bureau of Investigation (FBI). In the meantime, and despite the lack of the Judgment Order (required under
Months elapsed. In September 2006, Mr. Nobile informed my attorney that he could not locate my file in the FBI, and he requested Fred Ramson, FBI supervisor in Newark, N.J. to contact either my attorney or me. Mr. Ramson, however, had no knowledge of the case. My attorney and I then proceeded to the FBI office in West Paterson, which was actually the proper jurisdiction for the matter. After a week, that office informed my attorney that the matter was now under investigation and that they could no longer discuss it. The West Paterson FBI then transferred the matter back to Fred Ramson in Newark.
More time elapsed, and still we heard nothing. We contacted U.S. Senator Menendez and U.S. Congressman Pascrell, who in turn contacted Christopher Christie's office in the U.S. Department of Justice on our behalf. We later received a letter from an assistant attorney informimg us that the Third Circuit order was "handled properly." The letter also stated that we should pursue the missing $30,000 either in civil action or with the state prosecutor. The Department of Justice, however, was apparently unaware that the West Paterson FBI had already accepted the matter for investigation, which could broaden into an investigation for fraud in the arbitration process across the country.
When our Petition for Certiorari was denied, my attorney submitted a motion for an extension of time to file a Petition for Rehearing. Because no court had yet addressed our valid legal issues, the constitutionality of the FAA itself was now in question. We sought the extension of time to allow us to proceed to district court for a clarification of the unaddressed arbitration issues.
On November 21, 2006, Justice David Souter granted a
The district court denied our motion, and my attorney filed a Petition for Writ of Mandamus to the Third Circuit Court of Appeals, DN 07-1092, requesting that court to order the district court to decide the above issues. My attorney also filed the Petition for Rehearing to the U.S. Supreme Court [PDF], as the extension of time had been exhausted. The Petition for Rehearing was denied on February 21, 2007. As of this writing, the Petition for Writ of Mandamus is still pending. I would not be surprised if it, too, will be treated in the same dismissive manner as my other complaints in this matter.
Two similar cases are currently pending in New Jersey Federal District Court, and I have made contact with other individuals who are battling the same type of fraud in other parts of the country.
While it is not yet clear exactly who is responsible for denying me the right to redress my grievance, it is abundantly evident that my constitutional rights have been violated. I believe that my case may have been tampered with in the Third Circuit and possibly the U.S. Supreme Court. Certainly, the New Jersey Department of Justice seems to have done everything possible to cover-up this case. Nevertheless, I intend to pursue the matter until until every issue is resolved and the parties involved in this obstruction of justice have been identified.
Some pertinent information has already come to light.
After I paid the arbitration award, we discovered that MBNA had charged-off the debt and sold it to a debt buyer prior to arbitration. Attorneys, by law, may not purchase debt. When debt is sold, the buyer becomes the new owner, with all financial and associated rights subject to arbitration. MBNA, as we later found out, had received about $2,500 at the time of the debt sale (ten cents on the dollar) and
According to federal law, the Federal Debt Collection Practice Act (FDCPA) mandates that any collection agency or new creditor (debt buyer) must notify the debtor of the current status of the debt. All collection efforts may no longer be in the name of the original creditor. There are specific procedures that the collection agency or debt buyer (new creditor) must follow. On the credit report, there must be a new entry for the name of the collection agency or debt buyer. Thus, there should be two entries on the credit report: one in the original creditor's name, which is no longer updated, and a second in the name of the current creditor or collection agency.
The purpose of the FDCPA is to protect against collection abuse and to make sure the debtor knows how much is really owed and to whom they are currently obligated to pay the debt.
Since a law firm cannot legally purchase debt, they use alternative means to buy debt. Actually, charged-off debt is often sold in bulk (debt buyers purchase a "pooled" portfolio of bank charged-off debt). We have discovered that Wolpoff & Abramson and/or Pressler & Pressler use alias corporation names to purchase "pooled" debt. By law, when arbitration is commenced, only the real party in interest (i.e., the party entitled to the financial claim) may state a claim as the claimant. In the present case, the law firms falsely represented that MBNA was still the current owner of the debt, and that they were hired by MBNA to arbitrate and collect the debt for that corporation. My credit report supported this, as no other entry in any other name but MBNA was ever reported.
We believe that the National Arbitration Forum knew that the debt had been sold and that MBNA was falsely named as the claimant/real party in interest. It is possible that the NAF had a beneficial relationship with the law firm of Wolpoff & Abramson. Only discovery in court would allow us to support our claim. However, the judge would not allow discovery, and instead dismissed the NAF as having arbitral immunity.
For those who are concerned with avoiding fraud, it is important to understand how we were drawn into this situation. When an arbitration award is granted, only the named party is entitled to collect the award (through court judgment, if necessary). We paid the award and all accrued interest and legal fees to MBNA. All of the documents involved in the arbitration, the court, refinancing, and correspondence always named MBNA as the current creditor/claimant/real party in interest. Since attorneys may not purchase debt, we never questioned whether documents had been falsified or whether MBNA had actually sold their interest in the debt. Everything supported this, including the MBNA arbitration award, my credit report, the law firm's own correspondence, and the court documents.
Mortgage companies have been granting subprime mortgages to parties who really do not qualify to refinance in order for debtors to pay owed debt. The law firms told my husband that, if he could not find a mortgage company to refinance our home, they would find one for him. Despite the fact that we should not have been able to refinance, the mortgage company granted us equity refinancing at the subprime variable rate. Paying MBNA was part of the agreement, and the title company gave MBNA's "attorneys" full payment for the MBNA account. The law firms falsely reported that MBNA was paid, and that the debt was satisfied in full.
The most vexing problems remain. Because MBNA is the only entry on my credit report, and because MBNA was the only named party at any time during the arbitration and debt collection, my credit cannot be fixed. If the law firms were now to enter a separate entry on my credit report with the name of the true owner, who purchased the debt, then that would be an admission of fraud. Only MBNA can fix my credit report, but MBNA no longer owns the account and, thus, has no authority to correct it. Legally, all that MBNA can report is that they never received any money from us. Even though a magistrate judge told the law firms to fix my credit report, obviously they could not. The net result is that the debt buyer (actually, the law firm's alias corporation) kept the money, my credit report remains delinquent, and the debt buyer can resell the supposedly unpaid account to a new debt buyer who after several years of adding additional interest can attempt to collect the same debt from us again. In the meantime, we cannot refinance to a
Compounding the problem, and contrary to all precedent law and the Federal Arbitration Act (which my attorney has documented), the district court judge sent us back to arbitration! Under the FAA, the judge is obligated to either confirm or vacate the arbitration award to MBNA. It must either enforce recognition of our payment to MBNA, or vacate the award for fraud. By doing neither, my constitutional rights under the Federal Arbitration Act have been violated. Instead, the judge ordered a second arbitration remand, which illegally leaves the first award subject to modification and leaves me vulnerable to thousands of dollars in legal fees, awarded to the law firms.
Should my case be properly investigated, decided by the Third Circuit, and disclosed, such mandatory rearbitration would certainly be questioned and possibly lead to a reassessment of similar cases in courts of law, with widespread implications. Perhaps billions of dollars in hedge funds that trade in credit defaults could be affected. If fraud in collection efforts is discovered, rating agencies such as Standard and Poor's might, conceviably, downgrade their rating of hedge funds, or refuse to rate them at all. Such an effect on hedge funds and/or subprime borrowing could negatively impact the US economy, which in recent years has been largely led by financial sector gains. Perhaps, it is for this reason that it was essential that my case be disposed of and silenced by legal authorities who have an obligation to accurately apply the law and investigate fraud.
March 15, 2007
Disclaimer: The statements and opinions expressed above are those of the author and do not necessarily reflect the views of Dr. Bernofsky. The text has been edited with the knowledge and permission of the author. Eleanor Schiano holds an MBA in finance and has taught at the college level. She can be contacted by email at: firstname.lastname@example.org.
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