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2015 Legal Climate: Midland and New York

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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?

 

You may find some answers here. The statute of limitations may be a consideration for you in whether to elect arb or not in a DV letter.

http://www.creditinfocenter.com/legal/credit-card-arbitration.shtml

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"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? 

 

No you answer the suit with a petition to compel arb, motion to dismiss or in the alternative stay case pending arb.

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? 

Initiating yourself is the safest route to keep AAA, except you will have no problem here, AAA will not arb with midland at the moment, it appears they don't pay their bills, so AAA cut them off.

 

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?

You elect JAMS

 

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?

Can't say, but if you play by the rules, and know the rules, the court needs to follow them. A rouge judge is always possible, but you appeal those kind of cases.

 

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?

If you elect arb in your DV that should be the proper forum. I seriously doubt midland will say "ok, see you in JAMS". It is more likely a senerios they will file in court anyway.

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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?

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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?

 

I got this link a few minutes ago. I skimmed it to see if it cautions a NY consumer that aspects of this guide are not in effect now. Maybe you can find it upon a more careful reading.

http://www1.nyc.gov/assets/dca/downloads/pdf/consumers/Consumers-Debt-Collection-Guide-English.pdf

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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.

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@LegalTender

Smiley is a "b" in (). If you add a space before and after like this ( b ) or italicize the b (b), it should work. Also, ( c ) or (c) instead of ©.

 

I have no clue as to what is going to happen in NY for debt validation between now and Aug. 30. I would probably call the NY consumer number listed in the debt collection booklet and ask. At some point you will have to take a leap of best guess to preserve your rights. It's my understanding that you are trying to stretch out this process to hit the SOL. If I were doing this right now, I'd follow the advice of the consumer booklet which is on the NY Gov. site right now. Let the JDB say they don't have to follow that right now. They've had a long time to get ready for this day, and they even got an extension. YMMV.

 

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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. 

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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?


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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? 

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You don't have anything to "lock in". Midland is the claimant.  You're telling them that if they want to pursue their claims you demand, per the contract, that they pursue their claims via arbitration.

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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? 

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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? 

Yes, they claim you owe them money, but you don't know they are ever going to do anything to enforce it.  Why go through all of the hassle and expense of launching a JAMS case?  I just don't see the gain there.  If all you're interested in is making sure they know you want to use JAMS, simply sending them a certified letter telling them you want them to take you to JAMS if they want their money is sufficient.  That would stand up in any court as proof that you demanded JAMS to have the dispute resolved.  It may be that if you are eventually sued, the court will order you to initiate since you are the one that made the demand, but the way I see it, you're putting the cart before the horse.  Plus, IMO, you'd likely have an FDCPA violation since most card agreements with arbitration clauses say that an arbitration demand removes the parties rights to litigate.

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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. 

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my first job out of college was that of a process server - if you are going to be out of town for an extended period of time definitely keep an eye on eCourts. They will send a process server to your residence.  However, if they show up 3 times and no one answers they are allowed to tape the summons to your door and follow up with additional mailings. 

 

Might make sense to retain an attorney who can accept service on your behalf and then file an answer. 

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