BitsyM

Debt Verification Letter and Card Agreement

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All of a sudden, nearing the SOL on all old debt, I have started receiving letters from collection agencies.

The one that I have a question about, if someone could answer, or point me in the right direction, is the following-

Received a letter from Tate and Kirlin Associates, Inc.  The letter states "the acount has been listed with our offices for collection.  This communication is from a debt collector ands is an attempt to collect a debt.  Any information....."  (redacted letter attached)

 

My question relates to the original creditor being listed as Capital One.  This is from what I believe was a Neiman Marcus credit card.  I believe that this account was opened in 2009 or 2010 before Capital One had anything to do with the card.  When I checked the CFPB website, I was able to find a 2012 card agreement for Capital One/ Neiman Marcus card that contains arbitration clause that has since been removed from their agreement.

 

Should I respond to them with an arbitration election and a debt verification letter?  Would they then be in violation if they attempted to sue and I had already sent them a letter stating that if this was a valid debt, that I wanted to arbitrate?

 

I know that I read something on this forum pertaining to this type of situation, but I have been focused on another matter and can't remember where I read the information.

 

If anyone can offer suggestions or advise me on where I can find some similar examples, I would be most appreciative.

Tate & Kirlin Associates Letter_Redacted.pdf Neiman Marcus Card Agreement.pdf

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@BitsyM One down, and more to go! I believe sending a written notice of dispute within 30 days of receipt to the collection agency is smart because it preserves your rights. As a Michigan resident, you're entitled by law (MCL 339.918(2)) to receive the number and amount of previous payments made as a part of the verification response. I don't believe that it's necessary to include any language about arbitration "election" in the notice to the collection agency. @fisthardcheese has recommended filing an arb demand pre-emptively if a JDB is poised to file a lawsuit on a credit card with an arb provision***with a small claims court exception. Read his pinned thread on arbitration.   

339.918 Communication with consumer; notice; effect of disputing validity of debt; verification of debt; failure to dispute validity of debt.

(2) If the consumer notifies the collection agency in writing, within 30 days after receiving the written notice, that the debt, or any portion of the debt, is disputed, collection of the debt or any disputed portion of the debt shall cease until the collection agency obtains verification of the debt and a copy of the verification or judgment is mailed to the consumer by the collection agency. Verification of the debt or any disputed portion of the debt shall include the number and amount of previously made payments and the name and address of the orginal creditor, if different from the current creditor, or a copy of the judgment against the debtor.

 

Edited by Brotherskeeper
To correct incorrect information

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@BitsyM Here are some interesting snippets from the agreement you posted. Do you recall getting any advance notice for a change of terms in the Neiman's account agreement?

"CHANGE OF TERMS We may change this Agreement as allowed by applicable law. This may include changing, adding, or removing terms. We may do this in response to the legal, business, competitive environment or other reasons not listed here. We may increase the Interest rate on existing balances in limited circumstances. Changes to some terms may require at least 45 days advance notice, and we will tell you in the notice if you have the right to reject a change. We cannot change certain terms during the first year of your Account."

[snip]

"APPLICABLE LAWS This Agreement is governed by the Commonwealth of Virginia law and federal law. We make our credit decisions and extend credit to you under this Agreement from the Commonwealth of Virginia. This Agreement is: 

• entered into in the Commonwealth of Virginia; and 

• maintained in the Commonwealth of Virginia. This is true whether or not you use your card in the Commonwealth of Virginia."

If the arbitrator uses Virginia law § 8.01-246. Personal actions based on contracts.

"2. In actions on any contract which is not otherwise specified and which is in writing and signed by the party to be charged thereby, or by his agent, within five years whether such writing be under seal or not; [snip]

4. In actions upon any unwritten contract, express or implied, within three years."

 

"Claims Unless you have exercised your right to opt out of this arbitration provision, as set forth in the paragraph below captioned “Opt Out of Arbitration,” this arbitration provision shall apply to any Claim (defined below) by or against us, or you or any other Covered Person (defined below). You agree any claim, dispute, or controversy (whether based upon contract; tort, intentional or otherwise; constitution; statute; common law; or equity and whether preexisting, present or future), including initial claims, counterclaims, cross-claims and third party claims, arising from or relating to (a) this Agreement, the application, your Account, any debt cancellation or debt suspension product, any fraud prevention, identity protection or other account enhancement products, any transaction or activity involving any payment or failure to make payment on your Account, or any solicitation, advertisement, promotion, or oral or written statements related to this Agreement or your Account or any of the foregoing, or (b) the relationships which result from this Agreement and your relationship with any Covered Person in connection with the matters set forth in subsection (a) of this paragraph (any of the foregoing a “Claim”), shall be resolved, upon the election of you, us, or any other Covered Person described below, by binding arbitration pursuant to this arbitration provision and the applicable rules or procedures of the arbitration administrator (the “Administrator”) selected at the time the Claim is filed or received by a party to the Claim. However, “Claim” does not include any dispute or controversy about the validity, enforceability, coverage or scope of this arbitration provision or any part thereof (including, without limitation, the paragraph below captioned “Parties to Arbitration and Class Action Waiver” and/or this sentence); all such disputes or controversies are for a court and not an arbitrator to decide. However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide."

@fisthardcheese @Harry Seaward If the OP were to assert in a MTC that the posted 2012 Neiman's agreement, as a whole (with the arb clause), was the valid contract while the account was still in good standing, and the JDB argued that the 2012 contract as a whole was not the valid or enforceable one, could this be argued as a dispute for the arbitrator to decide? 

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@Brotherskeeper- I don't remember.  I was in a complete mental and physical free-fall between approximately 2010 and 2014.  I can't confirm any mail received.  Divorce, inter-state move, and overall head in the sand mentality.  

 

But, I did have a file that was from a bunch of statements that I had provided to my attorney during my divorce that had a Neiman Marcus bill.  That was what I used to figure out what the letter from Tate and Kirlin was referencing.  

 

I do not have anything saved regarding an "opt out", or any "change of terms" notice.

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15 minutes ago, BitsyM said:

I do not have anything saved regarding an "opt out", or any "change of terms" notice.

Good. You have no recollection of receiving any changes to the contract that would preclude arbitration. 

If you don't mind my asking, what state were you living in when the Neiman's account was opened? Where were you living when the last payment was made? Looking to see if another state's statute of limitations might have expired before Michigan became your legal domicile. 

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5 hours ago, Brotherskeeper said:

If I remember correctly, @fisthardcheese has recommended filing an arb demand pre-emptively if a JDB is poised to file a lawsuit on a credit card without an arb provision. Read his pinned thread or search for Capital One. 

You can't use arbitration at all.  Cap1 has no agreement to arbitrate, so they can not be forced to do so at any time, either before or during a lawsuit.

These types of cases are ones that you hope you have some kind of counterclaims to use in court or try to settle the best you can to avoid a judgement.

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8 hours ago, BitsyM said:

Should I respond to them with an arbitration election and a debt verification letter?

Cap1 removed arbitration as an option about a decade ago.  They cannot be compelled to arbitrate the case.

8 hours ago, BitsyM said:

Would they then be in violation if they attempted to sue and I had already sent them a letter stating that if this was a valid debt, that I wanted to arbitrate?

No they would not be in violation  "Electing" arbitration is meaningless.  There is no case law stating that suing a consumer after they elect arbitration is a violation of the FDCPA.  The second problem is the FDCPA does not apply to original creditors.

 

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31 minutes ago, fisthardcheese said:

You can't use arbitration at all.  Cap1 has no agreement to arbitrate, so they can not be forced to do so at any time, either before or during a lawsuit.

Okay, thank you. I stand corrected. :oops: I think I confused this with a card with the small claims exception to arb. Sorry. 

So, if BitsyM can't argue that the 2012 Capital One backed Neiman's agreement with the arb clause in it (as posted above) is the applicable agreement, then arb is off of the table?

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@Brotherskeeper I was in St.Louis, MO from 2000-2015.  

 

I think the SOL for Missouri is 5 years.  (But, I’m using Google for my info, so unsure on the accuracy of my info)

 

 Last payment was allegedly in 2014.

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1 hour ago, Brotherskeeper said:

So, if BitsyM can't argue that the 2012 Capital One backed Neiman's agreement with the arb clause in it (as posted above) is the applicable agreement, then arb is off of the table?

Exactly.  That agreement may be too old.  They need the one from the year they defaulted.  That is the one that governs the account in question.

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So, I think that my current plan of action will be to send a debt validation letter to Tate & Kirlin, in order to be within the 30 days from their letter.  I’ll then figure out my next step once I receive a response.

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2 hours ago, BitsyM said:

So, I think that my current plan of action will be to send a debt validation letter to Tate & Kirlin, in order to be within the 30 days from their letter.  I’ll then figure out my next step once I receive a response.

If you include the MCL 339.918(2) requirement, you may get a better idea of how much account info this JDB has. 

 

12 hours ago, Brotherskeeper said:

Verification of the debt or any disputed portion of the debt shall include the number and amount of previously made payments and the name and address of the original creditor,

If they don't provide the above information, they haven't verified the debt under Michigan law. (IANAL)

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5 hours ago, BitsyM said:

And hunt down the 2014 card agreement.  

When was the last time you actually made a charge to the card?  If you have a 2012 agreement that does include arbitration and you never USED the card once they updated the agreement to remove arbitration, then you may have a good argument that in fact arbitration does apply. 

Heck, I still might give it a shot because they would have to show that you actually used the account at a time when there was no arbitration in the agreement in order to counter your argument that arbitration should apply.  They may or may not be able to prove that.

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9 hours ago, Brotherskeeper said:

If you include the MCL 339.918(2) requirement, you may get a better idea of how much account info this JDB has. 

If they don't provide the above information, they haven't verified the debt under Michigan law. (IANAL)

 

6 hours ago, fisthardcheese said:

Heck, I still might give it a shot because they would have to show that you actually used the account at a time when there was no arbitration in the agreement in order to counter your argument that arbitration should apply.  They may or may not be able to prove that

If this JDB's collection agency complies with Michigan's debt verification requirements, perhaps BitsyM will receive copies of monthly account statements from the 2012-2014 period showing any charges or payments, before she has to make a decision on using arb.  If they don't provide the number and amount of previously made payments in their verification response, she's at least racked up a Michigan violation. (IANAL)

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@fisthardcheese If I had to guess, the last time that I would have made a purchase would have been in 2013.

@Brotherskeeper I'm redrafting my letter now.  I didn't want it to look like a cut and paste job where I just included a bunch of crap that doesn't even apply to debt verification requirements, but I am going to follow your advice and include include the MCL 339.918(2) requirement.  I plan on mailing via CMRRR today.  Would you mind taking a look at my draft when you have a moment and letting me know if I should make any revisions?

 

Thank you all for your input.  I really appreciate it.  The help that I have received from this forum has really helped to alleviate my anxiety.

 

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@BitsyM Here is the relevant 15 USC 1692g text:

§ 809.  Validation of debts

"(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(b) Disputed debts
If the consumer notifies the debt collector in writing within the thirty-day period described in subsection (a) of this section that the debt, or any portion thereof, is disputed, or that the consumer requests the name and address of the original creditor, the debt collector shall cease collection of the debt, or any disputed portion thereof, until the debt collector obtains verification of the debt or a copy of a judgment, or the name and address of the original creditor, and a copy of such verification or judgment, or name and address of the original creditor, is mailed to the consumer by the debt collector. Collection activities and communications that do not otherwise violate this subchapter may continue during the 30-day period referred to in subsection (a) unless the consumer has notified the debt collector in writing that the debt, or any portion of the debt, is disputed or that the consumer requests the name and address of the original creditor. Any collection activities and communication during the 30-day period may not overshadow or be inconsistent with the disclosure of the consumer’s right to dispute the debt or request the name and address of the original creditor."

(IANAL) My suggestions are to include "Sent via USPS Certified Mail, Return Receipt Requested #______________" either under the RE: Bureaus Investment Group Portfolio NO 115 LLC  Account#:  123465 or under your signature. If you've picked up an extra green card from the post office (good to have extras for just this reason) type in the CMRRR number or write the number in by hand. Make a copy for your records of the signed letter exactly as it appears when you sealed in the envelope. I think your letter is too wordy.

"I received your letter on XXXX, XX, 2019. (Make certain this date is within 30 days of the date of this dispute letter.) I dispute the above referenced account and request verification per the FDCPA and MCL 339.918(2). All correspondence should be sent to the above address. (Not necessary unless they have the incorrect address for you.) 

Sincerely,

BitsyM

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"To Whom it may concern,

I dispute the alleged debt in the above reference. Please validate.

Regards,"

Don't forget to save a scanned copy of your letter after you sign it so you have proof of WHAT you sent them.

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