LegalTender

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  1. I have some general questions regarding arbitration terms. My Discover CC sent me notice of changes to my account. (My accounts has no balance, but I want to understand the changes. They are also increasing late fees and returned payment fees by 33%. Seems like the banks will likely experience a huge wave of CC defaults all over again and the increased fees will only contribute to that). (bolded text is wording from the Discover's notice) "Dated Feb. 21, 2020. The following is a summary of changes that are being made to your Account terms. These changes will take effect on June 1, 2020" "we are removing JAMS as a forum for arbitration." (the venue must be AAA) Well, that seems to suck because I know JAMS was the preferred arb venue for customers in CC debt, in fact I once invoked JAMS in a Motion to Compel which resulted in the creditor withdrawing the lawsuit. Remind me what the negatives are regarding using AAA as a venue? "If you wish to begin arbitration against us but you cannot afford to pay the AAA's or arbitrator's costs, we will advance those costs if you ask us in writing ... If you lose the arbitration, the arbitrator will decide whether you must reimburse us for money we advanced for you for the arbitration. If you win the arbitration, we will not ask for reimbursement of money we advanced'. What does this mean for a mutual walkaway? Customer responsible for arb costs? "Survival of this Agreement. This arbitration agreement shall survive: - any bankruptcy by you; " Not sure what that means? \ "You Have the Right to Reject Arbitration for this Account. You may reject the arbitration agreement but only if we receive from you a written notice of rejection within 30 days of your receipt of the Card after your Account is opened. You must send the notice of rejection to: Discover, P.O. Box 30938, Salt Lake City, UT 84130-0938. Your rejection notice must include your name, address, phone number, Account number and personal signature. No one else may sign the rejection notice for you. Your rejection notice must not be sent with any other correspondence. Rejection of arbitration will not affect your other rights or responsibilities under this Agreement. If you reject arbitration, neither you nor we will be subject to the arbitration agreement for this Account. Rejection of arbitration for this Account will not constitute rejection of any prior or future arbitration agreement between you and us." Not sure what is meant by "within 30 days of receipt of the card after your account is opened." Account is over a decade old. Frankly, I'm not familiar with previous arb account terms, if any, but I'm going to look them up (for ex. was JAMS was one of the approved venue?). If I write in to reject the terms, what the deadline to do that by and what is the result: will they close my account? Thanks for any insight. I sense that in the upcoming years, or even decade, consumers will be invoking their rights a lot more frequently.
  2. What leads you to believe that AmEx would they be more likely to settle now during their civil suit, than after it goes into arb? In any case, what have I got to lose by going the arb route? I can't find the downside vs. a civil trial. I'm collection proof and if ever there's a judgement entered against me I'll file for BK.
  3. That's why I'm asking. I'm not versed in this area of the law. (There used to be online posters very informed regarding NYS law but they've seemed to have vanished). I'm drawing a blank as what my JAMS complaint can include. I'm not even sure if it's the place to include my defenses against what AmEx is alleging in their civil suit, or if it's inappropriate for that to be included in my complaint (vs. for example in my opposition answer to whatever counterclaims AmEx eventually files in my JAMS case. Can anyone point me to some samples wording (or sample JAMS complaints) regarding: NATURE OF DISPUTE / CLAIMS & RELIEF SOUGHT BY CLAIMANT?
  4. Thanks for any help in how to proceed. I see that earlier this month AmEx has filed a civil lawsuit in NYS/NYC to collect an alleged CC debt on approx. $7k, but they have not yet served me. I visited the court clerk and made a copy of AmEx's complaint. In the past AmEx has sent me letters offering to settle for payment of 60% of the alleged debt, but my only communication to AmEx was a couple years ago when I sent Nationwide Credit a DV letter (via CM/RR; I also CC’d AmEx CM/RR) disputing the debt and electing private contractual arbitration with JAMS to resolve any dispute. When filling out the JAMS complaint what recommended for: NATURE OF DISPUTE / CLAIMS & RELIEF SOUGHT BY CLAIMANT? What sort of wording do I use? I’m completely unclear what the JAMS complaint should include. Do I just dispute that the debt exists, the amount, the interest, and that AmEx owns it, and force them to prove it? Can I just put some generic content and amend my complaint at a later date? I want to initiate the complaint ASAP so that I can use the JAMS documentation as an exhibit in my MTC in the court case. Time is of the essence. Also, I’m not up to speed regarding violations. If after notifying AmEx that I’ve elected JAMS arb as the method to resolve this dispute it would seem that AmEx has waived it’s right to litigate in court based on the arb clause in the cardholder agreement. Is the fact that they subsequently filed a NYS civil lawsuit a violation?
  5. I see. What you say makes sense. I've also received advice to pre-emptively file an arb case, so as to avoid the effort and expense of having to file an answer/motion/etc. in court in the event Midland sues. One perspective is that Midland is very aggressive and prefers to initiate litigation. But I see your point. I guess I can just wait around to either receive arb papers if Midland initiates arb or receive a summons if they file a lawsuit. One concern is that I was scheduling to be out of town four 3-4 months shortly. If a lawsuit is filed, it's easy to find that out by frequently checking the online court database, and I can then make arrangements to respond. If Midland files an arb case, is there a requirement that I be served notice (ex. via a process server)? I'm in NYC. PS: In my dispute letter I used term 'elect' arbitration with JAMS rather than 'demand'. I hope that's sufficient.
  6. Harry, perhaps I'm missing something regarding arbitration claimants. My understanding was that after receiving a dunning letter from a JDB claiming a CC debt, insofar as a debtor disputes the alleged debt claim, there is a dispute. Ih a situation where the OC has an arb clause in its cardholder agreement, my understanding is that in order to resolve such a dispute, a debtor can file with, and initiate, arbitration as a means of resolving the dispute. I was under the impression that this is one standard template for proceeding. Am I misunderstanding things? In order for a debtor to initiate/file a case with arbitration, must the debtor have a separate claim in the form of a collection violation of some type?
  7. OK, I sent out a 'DV' letter to Midland (MCM). It's actually not a DV letter proper, as Clydesmom has written that the requirements of DV are stating who owns the debt, name of OC, and amount. This info was included in the Notification Letter that Midland MCM sent me. My letter to them disputed their claim of the alleged debt and I wrote that I elect to settle the dispute via arbitration with JAMS pursuant to the terms of the OC's contract. Is it actually necessary for me to file arbitration with JAMS to lock in my claim for the arbitration option? By asking this, I'm not speaking only in terms of convenience, but to understand the bigger legal picture. That is, is MCM files a lawsuit in NYS after receiving my letter, does my letter of election (and/or subsequent demand for arb with JAMS in my answer to the summons) forestall a trail from going forward?
  8. When you write that a debtor electing arbitration in a DV letter is meaningless, do you mean that if that after receipt of such a letter the JDB subsequently sues the debtor, then the debtor - practically speaking - has, 1. )no legal right to stop the JDB's legal proceedings and direct the dispute into arbitration? 2.) no solid legal basis for a FDCPA (and/or state) violation?
  9. The CFPB sample letters do not have wording to include when electing arbitration. “Before writing your letter electing arbitration, look for a copy of the contractual agreement entered into between you and the creditor. Look in the dispute resolution part of the agreement for the provision on arbitration, particularly for the mention of JAMS. Make mention in the letter of this provision, and your election of arbitration via JAMS. Failure to make this specification could allow the creditor to initiate arbitration in AAA instead of JAMS, which is far better for the creditor than for you. Also, be sure to mention that, pursuant to the card member agreement, you are requesting the advance of fees to initiate arbitration.” Does anyone here agree with this advice? Should I quote sections of the cardmember agreement in my DV (there's so many Citibank agreements and non I've found for my specific card)? Should I request advance fees to initiate arbitration? Is there a template for this particular sort of DV letter floating around? If one quotes the cardmemeber agreement, does this sort of indirectly amount to an admission by the consumer that she’s entered into a contractual agreement with the OC? Would it complicate a defence at a later date in which an alleged debtor denies having entered into an agreement with the OC?
  10. SOL: it's not an issue at present as there's three more years left. I'm just trying do things in accordance with the timing required buy the statute. Also, as this is a new statute, it remains to be seen how it will be enforced, technicalities in interpreting the language of the statute, loop holes, etc.
  11. http://www.dfs.ny.gov/legal/regulations/adoptions/dfsf23t.pdf § 1.4 Substantiation of consumer debts. (a) If a consumer disputes, orally or in writing, the validity of a charged-off debt or the right of the debt collector to collect on a charged-off debt, the debt collector must inform the consumer that the consumer may request substantiation of the debt, unless the debt collector has already provided the consumer the information required in this section. The debt collector may treat such dispute as a request for substantiation, or: (1) If the consumer disputes the debt orally, the debt collector must: (i) make reasonable efforts to inform the consumer, in the conversation in which the dispute was communicated, how the consumer can make a written request for substantiation of the debt in writing; and (ii) within 14 days of the consumer disputing the debt, provide the consumer clear and conspicuous written instructions on how to request substantiation of the debt; or (2) If the consumer disputes the debt in writing, within 21 days of the debt collector receiving that writing, the debt collector must provide the consumer clear and conspicuous written instructions on how to request substantiation of the debt. ( b ) A debt collector must provide the consumer written substantiation of a charged-off debt within 60 days of receiving a request for substantiation of the debt and must cease collection of the debt until written substantiation has been provided to the consumer. A debt collector must substantiate a charged-off debt pursuant to this section only once during the period that the debt collector owns or has the right to collect the debt. © Substantiation of a charged-off debt shall include a copy of a judgment against the consumer or: (1) the signed contract or signed application that created the debt or, if no signed contract or application exists, a copy of a document provided to the alleged debtor while the account was active, demonstrating that the debt was incurred by the debtor. For a revolving credit account, the most recent monthly statement recording a purchase transaction, payment or balance transfer shall be deemed sufficient to satisfy this requirement; (2) the charge-off account statement, or equivalent document, issued by the original creditor to the consumer; (3) a statement describing the complete chain of title from the original creditor to the present creditor, including the date of each assignment, sale, and transfer; and (4) records reflecting the amount and date of any prior settlement agreement reached in connection with the debt pursuant to section 1.5 of this Part. (d) If a consumer requests substantiation of a charged-off debt pursuant to section 1.4(a) of this Part, the debt collector must retain the following documentation until the debt is discharged, sold, or transferred: (1) evidence of the consumer’s request for substantiation; and (2) all documents the debt collector provided in response to the request. § 1.7 Effective date. This Part shall become effective 90 days after publication in the State Register, except that sections 1.2( b ) and 1.4 of this Part shall become effective 270 days after publication in the State Register. ...and... -------- New York State Department of Financial Services Andrew M. Cuomo, Governor Benjamin M. Lawsky, Superintendent I, Benjamin M. Lawsky, Superintendent of Financial Services, do hereby certify that the foregoing is a new Part 1 of Title 23 of the Official Compilation of Codes, Rules, and Regulations of the State of New York, entitled “Debt Collection By Third-Party Debt Collectors and Debt Buyers”, signed by me on November 14, 2014 pursuant to the authority granted by Sections 202, 302 and 408 of the Financial Services Law, to take effect upon publication in the State Register. Pursuant to the provision of the State Administrative Procedure Act, prior notice of the proposed rule was published in the State Register on August 21, 2013 and a revised proposed rule was published in the State Register on July 16, 2014. No other publication or prior notice is required by statute. ------ I'm not sure about the language above, if 11/14/2014 constitutes the actual date of publication? Is signing date the same as publication date? Need to be a lawyer to figure out the nuances of the language. Anyway, 270 days after 11/14/2014 is 8/11/2015. I need to get my DV letter out ASAP. ------ From another website, unverified source: http://www.insidearm.com/daily/credit-card-accounts-receivable/charge-off/new-york-adopts-new-statewide-regulations-on-debt-collection/ Debt Validation Requirements If a consumer disputes a debt orally, the debt collector must make reasonable efforts to inform the consumer, in the conversation in which the dispute was communicated, how the consumer can make a “written request for substantiation” of the debt in writing and provide the consumer with such instructions in writing within 14 days. Once a debt substantiation request is received, the debt collector has 60 days to provide written validation, during which time all collection efforts must cease. The written substantiation must include a copy of a judgment against the consumer or the original –or a copy of – signed contract, an account statement provided by the original creditor, a statement describing the complete chain of title of the account, and any records pertaining to previous settlement offers. In order to give debt collectors time to gather the documentation required, the requirements for debt substantiation and account-specific disclosures will go into effect August 30, 2015. PS: I'm not sure why the smiley faces are being inserted into the text.
  12. I thought the new substantiation statute in NYC becomes effective on August 31st? If I request substantiation before that date, Midland can ignore the request. Shouldn't I wait for the statute to become active before demanding that they provide substantiation?
  13. I'm confused. On this page: http://www.creditinfocenter.com/legal/credit-card-arbitration.shtml ... opposite conclusions are found: "Benefit of Going to Court Instead of Electing Arbitration California is the only state that requires arbitration companies to publish the results of arbitration cases. So while by no means representative of the U.S. arbitration cases as a whole, it's important to note: the majority of arbitration cases find in favor of creditors. The decision is set in stone, unless you can prove fraud or a significant conflict of interest on the part of the arbitrator. On the contrary, the benefit of going to court is the opportunity to appeal the decision." ??
  14. Does anyone have a link to a good DV letter template and, if necessary, any suggested modifications for use in my case?
  15. "Or you would answer the suit with a motion to dismiss arb election, then in JAMS use the counter claim." Do you mean answer the suit with a motion to dismiss the lawsuit (not to dismiss JAMS election)? If I'm understanding things correctly (and I very likely am misunderstanding) it seems that the JAMS vs. AAA arbitration venue is part of the strategy in electing arbitration, the higher JAMS costs used strategically as a disincentive. Is this so for NYC? Practically speaking, if this holds true then is it necessary for me to initiate JAMS arb (not merely elect it in my DV letter) to preempt Midland from initiating arb with AAA? Or am I misunderstanding this altogether? To be clear, in my DV letter do I elect 'arbitration' or do I specifically elect 'JAMS arbitration'? Do I have the right and the power to chose the venue just by 'electing' it in my DV letter, or is some further follow-up necessary? The other issue is, taking into account the new legal reforms and statutes in NYC/NYS, do the courts now favour the debtor and grant her an abundance of rights, including regarding evidence, non of which the the debtor will have recourse to in Arb? If I send in my DV letter electing Arb, is there an 'out' for me with respect to arb, if for example I consult with an attorney(s) and the prevailing wisdom in NYC regarding a pro-se winning against a JDB is to take the fight to court?