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Merrill Lynch Visa Signature - Arbitration rights/Collection Law Firm


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I just read this slowly, its from the Rubin & Rothman NY law collector firm : "Unless you dispute the validity of the debt, or an portion thereof, within 30 days after your receipt of this letter, we will assume the debt to be valid. If you notify us in writing within the 30 day period that the debt, or any portion thereof, is disputed, we will obtain verification of the debt or A COPY OF A JUDGEMENT AGAINST YOU and mail a copy of such verification or JUDGEMENT TO YOU. Upon your written request within the 30 day period, we will provide you with the name and address of the Original creditor, if different from the current creditor"

And than at the bottom, it says No attorney has reviewed the particular circumstances. This letter seems to be very tricky or I am just plain dumb, which I completely feel. 

Is there a judgement already? I have not received a summons or complaint that I am aware of.  I am now so unsure of how to interpret this. The charge off based on my conversation with Merill today was early 2021. 

 

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20 minutes ago, Rexedwardsmooney said:

 

So are my steps the following with R&R, the debt collecting lawyer the following:

1) Call them and ask about a settlment or DV?

I have 30 days to where "they will assume the debt to be valid"

And when I speak with them, what words should I use? I am actually nervous speaking with them.

Thank you!

A DV must be made in writing and sent within 30 days of receiving the collection letter that contains the 30-day notice.

After you send the DV, you can either wait for them to respond, or give yourself a few days to prepare what you want to say.  I know it can make one nervous, but they are people just like you.  

Let @BackFromTheDebtoffer some suggestions, as well.

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2 minutes ago, Rexedwardsmooney said:

I just read this slowly, its from the Rubin & Rothman NY law collector firm : "Unless you dispute the validity of the debt, or an portion thereof, within 30 days after your receipt of this letter, we will assume the debt to be valid. If you notify us in writing within the 30 day period that the debt, or any portion thereof, is disputed, we will obtain verification of the debt or A COPY OF A JUDGEMENT AGAINST YOU and mail a copy of such verification or JUDGEMENT TO YOU. Upon your written request within the 30 day period, we will provide you with the name and address of the Original creditor, if different from the current creditor"

And than at the bottom, it says No attorney has reviewed the particular circumstances. This letter seems to be very tricky or I am just plain dumb, which I completely feel. 

Is there a judgement already? I have not received a summons or complaint that I am aware of.  I am now so unsure of how to interpret this. The charge off based on my conversation with Merill today was early 2021. 

 

No, there is no judgment. It says “we will obtain verification of the debt OR a copy of a judgment…”   That means they will obtain one or the other.   If there’s a judgment, they would get a copy.  Otherwise, they just obtain validation. 

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7 minutes ago, BV80 said:

No, there is no judgment. It says “we will obtain verification of the debt OR a copy of a judgment…”   That means they will obtain one or the other.   If there’s a judgment, they would get a copy.  Otherwise, they just obtain validation. 

Thank you BV80. That is to me is very tricky language. Or I am just not a good reader...!!!!

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7 minutes ago, Rexedwardsmooney said:

Thank you BV80. That is to me is very tricky language. Or I am just not a good reader...!!!!

You’re just nervous and a bit overwhelmed.  Believe me, we understand because we’ve all been there.  Just take your time when reading and pay attention to how phrases and sentences are worded. 

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3 hours ago, Rexedwardsmooney said:

Thank you BV80. That is to me is very tricky language. Or I am just not a good reader...!!!!

You are new to this and quite overwhelmed.  

Understandable.

Take things one step at a time.  You need to send your DV letter within 30 days of receiving the initial correspondence.  

So you have a little time to figure things out.  

Spend some time researching.  Spend some time reading the arbitration thread on this forum.  You don't have a ton of time, but you have some time to figure things out.  

Do things one step at a time.

The first step is to do some research.

The second step is to send your DV letter while you are doing your research.  

The third step is to see what their reply is to your DV letter.

Then, you take it from there.  If you are thinking about settlement, right after they reply to your DV letter is a good time to discuss a settlement with them.  That is one of your best windows for settlement.

You best times for settlement are:

1. After they reply to your DV.  You know that they can validate.  They expect to settle at that time. It is usually cheaper to settle before they file suit than after they file suit.  So this is a good window of opportunity.

2. Right after filing in arbitration.  They know it is expensive.  They are often more likely to settle.

3. Right before the hearing.  They are moving back to in person hearings, which can be very expensive.  They may want to settle then.

 

I, personally, have settled accounts at 2 and 3.  So have others.  

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4 hours ago, nobk4me said:

Maybe I missed this . . . but when did this debt go into default?

@nobk4meBecame a Merrill client in 2005 (initial credit agreement--  I can't find) and now under Bank of America with outstanding amount of $42K. Spoke with Merrill agent (not BOA) today, and it was charged off on Feb 2021 -- IS THIS THE DATE OF DEFAULT?. Then Merrill recovery unit said they 1) Sent to ARSI for collections??? and 2) now a debt collection NEw York Law firm, Rubin & ROthman sent me a letter to dispute the validity. 

After checking my credit report per @BV80's advice (never ever seen a credit report before), I have a Cavalry SPV I, LLC of about $6500 in collections. BOA still shows an outstanding on my Credit report. 

Thank you all for your thoughts!

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2 hours ago, BackFromTheDebt said:

You are new to this and quite overwhelmed.  

Understandable.

Take things one step at a time.  You need to send your DV letter within 30 days of receiving the initial correspondence.  

So you have a little time to figure things out.  

Spend some time researching.  Spend some time reading the arbitration thread on this forum.  You don't have a ton of time, but you have some time to figure things out.  

Do things one step at a time.

The first step is to do some research.

The second step is to send your DV letter while you are doing your research.  

The third step is to see what their reply is to your DV letter.

Then, you take it from there.  If you are thinking about settlement, right after they reply to your DV letter is a good time to discuss a settlement with them.  That is one of your best windows for settlement.

You best times for settlement are:

1. After they reply to your DV.  You know that they can validate.  They expect to settle at that time. It is usually cheaper to settle before they file suit than after they file suit.  So this is a good window of opportunity.

2. Right after filing in arbitration.  They know it is expensive.  They are often more likely to settle.

3. Right before the hearing.  They are moving back to in person hearings, which can be very expensive.  They may want to settle then.

 

I, personally, have settled accounts at 2 and 3.  So have others.  

Thank you @BackFromTheDebt.. Per:

1) The third step is to see what their reply is to your DV letter.

I read @pulpfiction0experience where he sent a DV letter with arbitration language and also to cease and desist. So I am confused, what are some good examples of a DV letter? 

2) Right after filing in arbitration.  They know it is expensive.  They are often more likely to settle.

I can't find my credit agreement and terms and conditions with Merrill. I was a client in 2005. And Merrill merged with Bank of America during the financial crisis in 2008. I do have a merrill services client agreement (brokerage, trading) saying that the agreement contains a predispute arbitration clause. But I am no longer a brokerage, trading client but kept using the Merrill credit card for my failed business start up and medical expenses. From reading many thoughts and experiences on this great website, I am lost on the arbitration potential strategy. I have read that you file an MTC with arbitration as a defense in your ANSWER in NEw York if the debt collection law firm sues you. But I DONT have a credit agreement showing the ability to arbitrate to attach as an exhibit. Plus, Rubin and Rothman (R&R) seem to be BOA's lawyer? Yet, according to the letter R&R sent, none of their attorneys have review my account.

I think I am getting better at summing things up and writing my situation out while simultaneously researching has brought a little stress down. 

Thanks everyone!

 

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Do NOT send a cease and desist letter.  That stops all possible settlement negotiations.  Don't do that unless you have an extremely good reason to do so.  I have sent some, but when I had an extremely good reason to do so. 

 

I gave an example of a DV letter earlier in this thread.  That is the only good example I can think of.  

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18 hours ago, Rexedwardsmooney said:

it was charged off on Feb 2021 -- IS THIS THE DATE OF DEFAULT?

Usually charge off is about 6 months after default.  So you are within the SOL.  Do you know when the last payment was, to confirm this?

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2 minutes ago, nobk4me said:

Usually charge off is about 6 months after default.  So you are within the SOL.  Do you know when the last payment was, to confirm this?

I think my last payment was around the time of COVID. I had to preserve my money for future expenses. I was up to date on monthly payments till then for both Merill and now Cavarly (which is in collections per my credit report). Thank you for responding.

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  • 1 month later...

To @BackFromTheDebt @BV80 @nobk4me

I hope you all are having a good summer. This website is great. I just received an advertisement  letter from a law firm that I have a debt collection lawsuit. I have not been served yet. Therefore, I went to the NYC Courts website and found the summons filed on Aug 27 by RubinRothman representing Bank of America for over $41K of consumer credit card debt. Note the credit card is actually Merrill Lynch issued to me in 2005. 

If I did not go to the NYC courts website, I would not of noticed the summons. And there is no affidavit of service.  In my merrill agreement (very old), there is an arbitration with FINRA clause. I can't locate any other agreements with arbitration or survivability clauses. 

May I ask for your advice perhaps, What is the strategy? And or ability to settle?  I have to file an answer of denying. Should I lob in a shot for motion to arbitration?

Thank you 

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9 hours ago, Rexedwardsmooney said:

To @BackFromTheDebt @BV80 @nobk4me

I hope you all are having a good summer. This website is great. I just received an advertisement  letter from a law firm that I have a debt collection lawsuit. I have not been served yet. Therefore, I went to the NYC Courts website and found the summons filed on Aug 27 by RubinRothman representing Bank of America for over $41K of consumer credit card debt. Note the credit card is actually Merrill Lynch issued to me in 2005. 

If I did not go to the NYC courts website, I would not of noticed the summons. And there is no affidavit of service.  In my merrill agreement (very old), there is an arbitration with FINRA clause. I can't locate any other agreements with arbitration or survivability clauses. 

May I ask for your advice perhaps, What is the strategy? And or ability to settle?  I have to file an answer of denying. Should I lob in a shot for motion to arbitration?

Thank you 

Let me start by stating there is always an ability to settle.  Both parties just have to agree on the amount and terms of a settlement.

Read the rules of civil procedure of the court in which you are being served.  Rules usually require a party to be served both the summons and complant at their place of residence.  Alternative methods of service are used only when personal service cannot be achieved.  There is no requirement for you to file an answer until you have been served (notified).  An advertisement from a law firm is not service.

The original agreement has a FINRA arbitration provision?  This does not sound like a credit card debt.

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4 hours ago, BV80 said:

Let me start by stating there is always an ability to settle.  Both parties just have to agree on the amount and terms of a settlement.

Read the rules of civil procedure of the court in which you are being served.  Rules usually require a party to be served both the summons and complant at their place of residence.  Alternative methods of service are used only when personal service cannot be achieved.  There is no requirement for you to file an answer until you have been served (notified).  An advertisement from a law firm is not service.

The original agreement has a FINRA arbitration provision?  This does not sound like a credit card debt.

Thank you @BV80 for your thoughts.  FINRA provision came from old brokerage relationship with Merrill. This, I think, is how I received the credit card with 3% interest APR.

I am working on the answer now. 

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20 minutes ago, Rexedwardsmooney said:

Thank you @BV80 for your thoughts.  FINRA provision came from old brokerage relationship with Merrill. This, I think, is how I received the credit card with 3% interest APR.

I am working on the answer now. 

Okay.  Considering the age of the account, arbitration might be an option if you can find a BofA agreement from the date the account went into default.  Just know that if the account is still with BofA, original creditors are more likely to agree to arbitrate.  And as has been stated on this site, a bad case in court is a bad case in arbitration.  Usually, the purpose of arbitration in credit card cases is to get JDBs to drop their lawsuits.  

Regarding arbitration with FINRA, I don’t if that would still apply.  Even if it did, you want to check out FINRA’s rules regarding fees.  It might be more expensive for you than the forum(s) named in BofA’s agreement.  

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19 hours ago, Rexedwardsmooney said:

Really? What happened? How did you unfreeze the account? 

I went to their lawyer’s office and wrote a check. Then the lawyer unfroze my account. 
 

That was not a pleasant situation.  I had moved and was completely blindsided by the suit and the default judgment 

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@BackFromTheDebt @BV80

https://iapps.courts.state.ny.us/nyscef/DocumentList?docketId=rCMVQzQWGpo/cTQwUgis8A==&display=all&courtType=Suffolk County Supreme Court&resultsPageNum=1

I found this case where defendant received a judgement by the judge then appealed and won against BOA/R&R. What are your thoughts on using this exact defendant's case? And how do I use the appeal victory in my filings. Should I follow the steps?

Thank you

PS _ I been reading almost every R&R case. Someone mentioned they could be in violations of FDCPA, but I am not sure how to think about this? Any advice on this?

605041/2017 - Suffolk County Supreme Court

Short Caption: Bank Of America, N.A. - v. - Ann Ball Case Type: Other Matters - Consumer Credit (Card) Original Creditor Plaintiff
Case Status: Disposed-Court Date/Application Pending
eFiling Status:  Full Participation Recorded
Assigned Judge: Joseph A Santorelli

 

 

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1 hour ago, Rexedwardsmooney said:

@BackFromTheDebt @BV80

https://iapps.courts.state.ny.us/nyscef/DocumentList?docketId=rCMVQzQWGpo/cTQwUgis8A==&display=all&courtType=Suffolk County Supreme Court&resultsPageNum=1

I found this case where defendant received a judgement by the judge then appealed and won against BOA/R&R. What are your thoughts on using this exact defendant's case? And how do I use the appeal victory in my filings. Should I follow the steps?

Thank you

PS _ I been reading almost every R&R case. Someone mentioned they could be in violations of FDCPA, but I am not sure how to think about this? Any advice on this?

605041/2017 - Suffolk County Supreme Court

Short Caption: Bank Of America, N.A. - v. - Ann Ball Case Type: Other Matters - Consumer Credit (Card) Original Creditor Plaintiff
Case Status: Disposed-Court Date/Application Pending
eFiling Status:  Full Participation Recorded
Assigned Judge: Joseph A Santorelli

 

 

Have you been served yet?

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24 minutes ago, Rexedwardsmooney said:

@BV80 I have not been served yet. However, the summons & complaint has been filed with the court.

Watch online to make sure they don’t claim you were served if, in fact, you were not served.

That being said, research what documentation a plaintiff must include, if anything, with the complaint when suing for a debt in your courts.

The case you cited shows that proof of mailing must be provided in order to prevail on an account stated cause of action,  Right now, you don’t the cause of action.  It might be account stated, but it could also be breach of contract.  Or it could be both.  Even if they didn’t prevail on account stated, they might still prevail on breach of contract.  

The first thing to do after being served is to answer the complaint.  See what your court rules state about answering the complaint.   An answer usually consists of admitting or denying each allegation.  Then you list your affirmative defenses.  Those are defenses that show why you don’t owe the plaintiff.  The statute of limitations is an example of an affirmative defense.

You do not argue your defenses in your answer.   

For instance, if account stated is a cause of action in the lawsuit against you, they might or might not be required to provide proof of mailing with the complaint.  You need to find that out.  But considering it is required in order to prove an account stated, it is an issue you would argue in an opposition to summary judgment or at trial.  I don’t know that lack of proof of mailing would be an affirmative defense one would raise n an answer.  In fact, raising it in an answer might cause the plaintiff to provide proof of mailing.  Whether it should be included as an affirmative defense something else you need to find out.

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12 hours ago, BV80 said:

Watch online to make sure they don’t claim you were served if, in fact, you were not served.

That being said, research what documentation a plaintiff must include, if anything, with the complaint when suing for a debt in your courts.

The case you cited shows that proof of mailing must be provided in order to prevail on an account stated cause of action,  Right now, you don’t the cause of action.  It might be account stated, but it could also be breach of contract.  Or it could be both.  Even if they didn’t prevail on account stated, they might still prevail on breach of contract.  

The first thing to do after being served is to answer the complaint.  See what your court rules state about answering the complaint.   An answer usually consists of admitting or denying each allegation.  Then you list your affirmative defenses.  Those are defenses that show why you don’t owe the plaintiff.  The statute of limitations is an example of an affirmative defense.

You do not argue your defenses in your answer.   

For instance, if account stated is a cause of action in the lawsuit against you, they might or might not be required to provide proof of mailing with the complaint.  You need to find that out.  But considering it is required in order to prove an account stated, it is an issue you would argue in an opposition to summary judgment or at trial.  I don’t know that lack of proof of mailing would be an affirmative defense one would raise n an answer.  In fact, raising it in an answer might cause the plaintiff to provide proof of mailing.  Whether it should be included as an affirmative defense something else you need to find out.

@BV80I am confused. Eventhough I noticed the summons and complaint was filed via my search on the online court website, I should wait to get served? And I should not pre-empt the service and answer it now?

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14 minutes ago, Rexedwardsmooney said:

@BV80I am confused. Eventhough I noticed the summons and complaint was filed via my search on the online court website, I should wait to get served? And I should not pre-empt the service and answer it now?

See what your rules state about waiving service.  If you can waive service, when are you going to get a copy of the complaint?  How can you respond to allegations in your answer when you don’t know the allegations listed in the complaint?

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