CAUTION: Creeping Privitization of Judicial System


EDITOR’S NOTE: If they thought of it, you would have an arbitration clause in your mortgage deed or deed of trust. And it would name the firm providing the arbitration service — a firm they owned. Expect it in modification or settlement papers. It is already present in securities cases, credit cards and other consumer loans. It basically allows them to say that if you have a grievance, they will decide if your grievance has merit. They almost never do that. And it waives your right to go to court, waives your right to jury trial and even waives your right to equitable relief. It probably has a penalty clause for costs and attorney fees that increases the risk of any challenge to a bank or other creditor.

This is yet another example of the privatization of government functions that creates extra expense for taxpayers, elimination of consumer protection, and a general release of the civil liberties included in our constitution. The real threat, in my opinion, is that they are controlling the narrative on this, so the majority of Americans and up in favor of and even voting for measures that take away the whole reason we went to War against England for our independence. No better example of this lies in the privatization of our prison system, where now we have more people incarcerated than any other modern nation.

Why? Because the prison lobby focused on things that they could make “criminal” that would effect the largest demographics and keep the prisons full. So the taxpayers end up spending money for room and board and administration of 3 times the number of prisoners that ought to be behind bars. At an average of $40,000 per year per prisoner, the States and Federal government are going broke keeping more than 3 million people behind bars so that a few corporations can earn revenues of $100 billion per year.

Here is another example: Non-judicial foreclosure. Despite very clear provisions in the 5th and 14th amendment, there is a way for lenders in most of the states of the union to foreclose on property without  ever having to prove that they have a case against the homeowner. All they do is issue the instruction to sell and that is what happens. The burden falls on homeowner to come up with legal remedies when the statutes of the state allow and even create the presumption of validity of the foreclosure sale — all without ever having a hearing on the merits. The pretender lenders are working hard to allow non-judicial foreclosure even in the states that don’t allow for it now. This is “arbitration” at its worst — somebody (anybody) can decide that a homeowner should lose their home and that is exactly what happens regardless of the facts of the case and most importantly, regardless of whether they would be able to foreclose if they had to prove their case in a judicial forum.

Now we have the Supreme Court elevating a fictitious person, invented for the purpose of commerce — the business entity (corporation, LLC etc) to that of a natural born citizen with the right of free speech thus corrupting the election process by secret donations. And a majority of Americans either don’t care or are even for that nonsense. If a corporation has the right of free speech under the 1st Amendment of the constitution, then the Corporation is a citizen who can vote and even run for office or be appointed to the Supreme Court. What’s next? Exxon sitting on the Supreme Court? Goldman Sachs running for President?

Fortunately, I hear from all ends of the political spectrum and everyone who is thinking about it is alarmed. But few people have time or make the time to think about it. Our Republic (Government Sachs) is being stolen out from under us. The experiment will be over and the work in Philadelphia will be for naught.


The Arbitration War

NY Times Editorial

Unexpected wireless charges are a chronic affliction of life on the grid. The industry triggers more complaints from consumers than any other. AT&T Mobility, by consumer rankings, is the worst. Its performance in a case the Supreme Court heard recently has done nothing to improve that reputation.

This is the latest in the arbitration war — a battle over whether the United States will increasingly have a privatized system of justice that bars people from enforcing rights in court and, if so, what will be considered fair in that system. It would be grossly unfair for the court to let the corporation get away with what it wants to in AT&T Mobility v. Concepcion — a case that involves a small amount of money and a huge principle.

When Vincent and Liza Concepcion signed up for AT&T cellphone service, they received two new phones in exchange for making a two-year agreement. To their consternation, AT&T charged them $30.22 in sales tax for the phones. The Concepcions sued the company for fraud in Federal District Court and their case and another were consolidated as a class action.

Because of an arbitration clause in its customer agreement, AT&T insisted that the Concepcions had to submit their claim to individual arbitration. The federal district judge said no. The judge ruled that the agreement is “unconscionable” under California law — imposed by the company harshly, coerced and not consented to. The United States Court of Appeals for the Ninth Circuit forcefully upheld the decision.

The issue before the Supreme Court is the Federal Arbitration Act, which recognizes some kinds of arbitration agreements as enforceable obligations — and whether that pre-empts the California law. The court must decide if the state law applies only to arbitration agreements, and not contracts generally, or if it hinders Congressional desire to treat arbitration agreements and other contracts similarly and promote speedy resolution of claims.

California says that its law does neither and the appellate court agrees. AT&T contends that California law isn’t what the state says it is. AT&T is asking the Supreme Court to intrude on California’s sovereignty and second-guess interpretation of state law by state courts.

During the recent argument in the Supreme Court, Justice Elena Kagan asked AT&T’s lawyer, “Now, who are we to say that the state is wrong about that?” Justice Antonin Scalia asked a similar question: “Are we going to tell the State of California what it has to consider unconscionable?” When the lawyer answered yes, Justice Stephen Breyer said rhetorically: “Why, why, why?”

The lawyer’s best shot at victory was to portray California law as extreme. Unfortunately for him, courts applying law of at least 19 other states have reached the same conclusion as California, including five federal appeals courts. Under California law, an agreement isn’t enforceable if it requires a customer to submit to individual arbitration that can’t be effective. It can’t be effective, as in this case, if the payoff is so paltry that it takes away incentive to challenge fraud or deception. AT&T’s arbitration agreement supposedly assures customers “a minimum recovery of $7,500, plus double attorneys’ fees, if the arbitrator awards them more than” an offer from AT&T. Translated: AT&T can pay the claim’s value — here, $30.22 — before an arbitrator is picked.

The Ninth Circuit said this “artifice” has “the practical effect of rendering” AT&T “immune from individual claims.” AT&T’s arbitration clause is unconscionable. The Supreme Court should say so.

11 Responses

  1. Jan van Eck,

    On another post you had made a comment about a whole in America’s Wholesale Lender papers.

    Can you give a place to reference the particulars or a way to contact you? Some of us are in need of any additional info you know of.

    AWL/CountryWide loans have many issues.

  2. indio007,
    Processes like what, ones without fair trials? You put your faith in the supreme court that protects the rights of corporations as if they were actual persons but deprives regular people of all the same rights? The same court bound to uphold the same law which it cherry picks through the parts that it likes and replaces everything else with arbitrary fiat?


  3. Alexander Hamilton was wrong. Administrative processes are “due process” as well. So sayeth the Supreme Court.

  4. The A Man,
    We can actually agree on a lot, and I’d probably stand by you any day of the week. Your alright in my book.

  5. Hey Dying Truth we can agree on something.

  6. To quote Gerald Celente, “the merger of state and corporate powers is called fascism.”

  7. “It is there declared that, no man shall be disfranchised or deprived of any right, but by due process of law, or the judgment of his peers. The words “due process” have a precise technical import, and are only applicable to the process and proceedings of the courts of justice”

    Alexander Hamilton, Remarks on an Act for Regulating Elections, New York Assembly
    6 Feb. 1787 Papers 4:35

  8. The arbitration clause in contracts has been floating around for quite some time. Many people want all arbitration clauses out of any contracts. It should be ruled unconstitutional, which it is. I thought there was a movement over the last several years to abolish arbitration as a way around a US citizen’s right to due process under the Constitution. Don’t sign anything that has an arbitration clause in it. It was created to go around the end zone on your rights.

  9. It’s a Criminal Enterprise, what do expect?

  10. this is precisely why I categorically refuse to sign any Agreement that contains an arb clause. I would never forego my right to trial by jury. Better to do without than to get swept up in this arb morass. And, of course, I write an angry letter to the CEO of any outfit that proposes a credit card or other Offer with an arb clause, informing them that if I end up sitting on some jury where they are a defendant, then no matter how trivial the Complaint, I will award $50,000,000 to the plaintiffs as damages – that is known as “jury nullification” of the Jury Instructions. It should shake them, but does not seem to. I guess they do not get enough furious Letters.



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