Account Stated and Lack of Standing

[Rexedwardsmooney]

I have been studying the robotic nature of debt collection lawyers for original creditors.

In NY, the debt collection law firms always use the same affiant/employee of the OC. And when I try to google the affiant, there is nothing present on Linkedin or other sites. Odd given today's social media.

1) These law debt collecting law firms of OCs usually win on Account stated ("AS"). Due to my novice nature, I am trying to poke holes in AS. I read that AS is cause of action. And a cause of action is a condition under which 1 party can sue another. In a credit card case, default occurs when we miss payments. We are not responsible for paying the whole amount hence the interest that is charged. So should not the credit card lawsuits be based on missing the payment and NOT THE whole amount due? The creditor has right to sue for money owed? Owed is interest and the whole balance? So on default, the payment of the full balance is accelerated? So I am asking -Can the Account stated theory be only applied for the MINIMUM owed and not full balance? Is there a way to use this theory or is it just silly?

 

2) Lack of Standing - Chase Manhattan Bank ("Chase") acquired JPMorgan ("JPM") in 2000 in a stock deal. Chase and JPM remained wholly owned subsidiaries. But in credit card lawsuits, JPM is listed at the entity suing. 

Stock swap or stock purchase mergers don't not transfer contracts. Only asset acquisitions. 

New York law bars parent corporations from bringing direct suits aimed at vindicating injuries suffered by their subsidiaries.” Id.,citing NAF Holdings, LLC v. Li & Fung (Trading) Ltd., No. 10 Civ. 5762(PAE), 2013 WL 489020, at *7 (S.D.N.Y. Feb.8, 2013). As noted by the Federal Appeals Court for New York (the Second Circuit), a corporate subsidiary is a “separate corporation,” and the parent company thus does not have any inherent “standing to assert [the subsidiary's] legal rights.” Hudson Optical Corp. v. Cabot Safety Corp., No. 97–9046, 1998 WL 642471, at *3 (2d Cir. Mar.25, 1998) (summary order).

Each corporation is a separate legal entity. It must enter into contracts on its own name and it must sue or be sued in its own name

https://www.jonathancooperlaw.com/library/subsidiarys-breach-of-contract.cfm

So in an Original creditor lawsuit, doesn't the OC like Chase have to show an assignment of contract to JPM? Corporations set up subsidiaries to protect them from liabilities so they should not be able to be enriched????

I think of this like real estate and corporate bankruptcies. So hence, why doesn't corporate credit law apply to consumer debt law? Debt is debt and there is a borrower and creditor...

The Affiant in the affidavit is usually from JPM. Chase and JPM employees are not the same.

I am still working through my case but noticed many of my friends at startups are going through debt cases too.... 

Sorry for my dumb questions and thoughts.

 

 

[texasrocker]

It would never hold up in court.  By acceptance and use of the card you are binding yourself to their card agreement which lays out the terms and conditions. The whole amount becomes due usually after three consecutive payments are missed. 

[BV80]

11 hours ago, Rexedwardsmooney said:

In NY, the debt collection law firms always use the same affiant/employee of the OC. And when I try to google the affiant, there is nothing present on Linkedin or other sites. Odd given today's social media.

You can raise that issue, but not everyone puts their information out there.  If you were to information on the affiant, how would you verify its authenticity?  If you want to verify the identity of the affiant and challenge her employment status or the knowledge she expressed in the affidavit, you might want to look into conducting a deposition. 

 

11 hours ago, Rexedwardsmooney said:

These law debt collecting law firms of OCs usually win on Account stated ("AS"). Due to my novice nature, I am trying to poke holes in AS. I read that AS is cause of action. And a cause of action is a condition under which 1 party can sue another. In a credit card case, default occurs when we miss payments. We are not responsible for paying the whole amount hence the interest that is charged. So should not the credit card lawsuits be based on missing the payment and NOT THE whole amount due? The creditor has right to sue for money owed? Owed is interest and the whole balance? So on default, the payment of the full balance is accelerated? So I am asking -Can the Account stated theory be only applied for the MINIMUM owed and not full balance? Is there a way to use this theory or is it just silly?

 

Yes, an account is in default when payments are missed.  However, you must look at the status of the account.  Making a missed payment or two on an account that is still open would bring the account back to a current status, and you could continue to use the account.  Once an account is closed, it can never be brought back to a current status.  You can never use it again.  When the account is closed, the full balance is owed.

 

12 hours ago, Rexedwardsmooney said:

Stock swap or stock purchase mergers don't not transfer contracts. Only asset acquisitions. 

New York law bars parent corporations from bringing direct suits aimed at vindicating injuries suffered by their subsidiaries.” Id.,citing NAF Holdings, LLC v. Li & Fung (Trading) Ltd., No. 10 Civ. 5762(PAE), 2013 WL 489020, at *7 (S.D.N.Y. Feb.8, 2013). As noted by the Federal Appeals Court for New York (the Second Circuit), a corporate subsidiary is a “separate corporation,” and the parent company thus does not have any inherent “standing to assert [the subsidiary's] legal rights.” Hudson Optical Corp. v. Cabot Safety Corp., No. 97–9046, 1998 WL 642471, at *3 (2d Cir. Mar.25, 1998) (summary order).

Each corporation is a separate legal entity. It must enter into contracts on its own name and it must sue or be sued in its own name

https://www.jonathancooperlaw.com/library/subsidiarys-breach-of-contract.cfm

So in an Original creditor lawsuit, doesn't the OC like Chase have to show an assignment of contract to JPM? Corporations set up subsidiaries to protect them from liabilities so they should not be able to be enriched????

I think of this like real estate and corporate bankruptcies. So hence, why doesn't corporate credit law apply to consumer debt law? Debt is debt and there is a borrower and creditor...

The Affiant in the affidavit is usually from JPM. Chase and JPM employees are not the same.

I am still working through my case but noticed many of my friends at startups are going through debt cases too.... 

Sorry for my dumb questions and thoughts.

Your questions and thoughts are not dumb.

Quick question:  Is the plaintiff listed as “JPMorgan” only?  Or as “JPMorgan Chase”?

[Rexedwardsmooney]

7 hours ago, BV80 said:

You can raise that issue, but not everyone puts their information out there.  If you were to information on the affiant, how would you verify its authenticity?  If you want to verify the identity of the affiant and challenge her employment status or the knowledge she expressed in the affidavit, you might want to look into conducting a deposition. 

 

Yes, an account is in default when payments are missed.  However, you must look at the status of the account.  Making a missed payment or two on an account that is still open would bring the account back to a current status, and you could continue to use the account.  Once an account is closed, it can never be brought back to a current status.  You can never use it again.  When the account is closed, the full balance is owed.

 

Your questions and thoughts are not dumb.

Quick question:  Is the plaintiff listed as “JPMorgan” only?  Or as “JPMorgan Chase”?

It is JPMorgan per my friend. My issue is BOA/Merrill. So we have been doing combined research on this. There is no assignment from chase to JPM in his CC agreement. 

So as mentioned above, how can one entity, such as JPM which is a subidiary, file or sue on behalf of another entity, Chase? This is baffling to both of us but debt defense lawyers say try proving it. Corporate debt lawyers say there is a clear distinction unless there is an assignment. If I were to do business with CHase, I can't sue JPM. .....

 

 

[BV80]

1 hour ago, Rexedwardsmooney said:

It is JPMorgan per my friend. My issue is BOA/Merrill. So we have been doing combined research on this. There is no assignment from chase to JPM in his CC agreement. 

So as mentioned above, how can one entity, such as JPM which is a subidiary, file or sue on behalf of another entity, Chase? This is baffling to both of us but debt defense lawyers say try proving it. Corporate debt lawyers say there is a clear distinction unless there is an assignment. If I were to do business with CHase, I can't sue JPM. .....

 

 

You can raise the issue of standing, but if this is a credit card, I would also look up NY credit card rulings in which standing for OCs was an issue.  Read the rulings to see why it was an issue and how the courts ruled.  

[Rexedwardsmooney]

On 10/20/2021 at 4:14 PM, BV80 said:

You can raise the issue of standing, but if this is a credit card, I would also look up NY credit card rulings in which standing for OCs was an issue.  Read the rulings to see why it was an issue and how the courts ruled.  

@BV80 @BackFromTheDebt

 

Happy Holidays.

So I am still studying lack of standing and been looking for evidence to support my theory.

This link, https://investor.bankofamerica.com/fixed-income/corporate-structure shows that Merrill and BOA N.A (Bank of America National Association) are two distinct subsidiaries. Merill is a not under BOA NA, the plaintiff.

I am thinking of a motion to dismiss on lack of standing before the plaintiff files an MSJ.  I noticed once plaintiff files, MSJ, its tough to beat. I was thinking of an offensive strategy which would push me to file a motion and then request RJI.  

I asked for discovery and they only sent me account statements. The statements show merrill and not BOA. I guess I can use this in my motion to dismiss?

Additionally, They did not answer my discovery requests for contract and amendment. Is there a motion I can file for incomplete discovery?

What are your thoughts?

Thank you for your advice and time.

 

 

[BackFromTheDebt]

You can try for a dismissal.  It may or may not work.  

In discovery, did you ask the question as to whether BOA and ML were separate subsidiaries of BAML?

[Rexedwardsmooney]

1 hour ago, BackFromTheDebt said:

You can try for a dismissal.  It may or may not work.  

In discovery, did you ask the question as to whether BOA and ML were separate subsidiaries of BAML?

Regarding, discovery, I asked for 10 items and they only sent over ML account statements. 

I asked for plaintiff's acquisition of the alleged debt and assignment or transfers. ML merged with BOA but stayed as its own subsidiary as per the org and corporate structure chart. Hence, I did not directly ask if BOA and ML were separate subsidiaries. But according to their SEC filings they are.

What is the thinking in asking in discovery if BOA and ML were separate subs when they admited they are in public filings? 

Also, is this a piece of evidentary evidence?

Thank you

 

[BV80]

4 hours ago, Rexedwardsmooney said:

I asked for discovery and they only sent me account statements. The statements show merrill and not BOA. I guess I can use this in my motion to dismiss?

Yes, I would use that.  Then you would wait to see if they respond to the MTD and what evidence they might include.  

4 hours ago, Rexedwardsmooney said:

Additionally, They did not answer my discovery requests for contract and amendment. Is there a motion I can file for incomplete discovery?

 

Just because you request them doesn’t mean they are relevant.  More than likely, you would need to file a Motion to Compel Discovery of those items.  You would need to show why those items are relevant to your defense or the proof of their claims.  Check your rules on compelling discovery.

[Rexedwardsmooney]

19 hours ago, BV80 said:

Yes, I would use that.  Then you would wait to see if they respond to the MTD and what evidence they might include.  

Just because you request them doesn’t mean they are relevant.  More than likely, you would need to file a Motion to Compel Discovery of those items.  You would need to show why those items are relevant to your defense or the proof of their claims.  Check your rules on compelling discovery.

@BV80 @BackFromTheDebtThank you. So now, how do I write a motion to dismiss for NY Courts? Any templates or examples I can study or copy?

[BV80]

On 12/30/2021 at 3:46 PM, Rexedwardsmooney said:

@BV80 @BackFromTheDebtThank you. So now, how do I write a motion to dismiss for NY Courts? Any templates or examples I can study or copy?

There’s no template.  Study your rules on motion practice.  I do know that you need to base your motion on the proper rule.  In my state, it would be Rule 12(b).  You’d also need support for your motion which would be evidence and case law (court  precedent).

[Rexedwardsmooney]

@BV80 @BackFromTheDebt

1) Arbitration Survivability with BOA - https://www.nclc.org/images/pdf/arbitration/testimonysept09-exhibit5.pdf

2) Arbitration via SEC Document - 

Hope 2022 is off to a good start. I am still researching and studying BOA. What do you think of the above links?

Thank you

 

[BV80]

2 hours ago, Rexedwardsmooney said:

@BV80 @BackFromTheDebt

1) Arbitration Survivability with BOA - https://www.nclc.org/images/pdf/arbitration/testimonysept09-exhibit5.pdf

2) Arbitration via SEC Document - 

Hope 2022 is off to a good start. I am still researching and studying BOA. What do you think of the above links?

Thank you

 

I cannot open the SEC docs because it’s not a valid link.

Were you a BOA customer before mid-2008?

[Rexedwardsmooney]

3 hours ago, BV80 said:

I cannot open the SEC docs because it’s not a valid link.

Were you a BOA customer before mid-2008?

https://www.sec.gov/Archives/edgar/data/936988/000156761915001589/s001138x1_ex4-1.htm

 

Yes, I was a customer with merrill visa pre 2008

[BV80]

11 hours ago, Rexedwardsmooney said:

https://www.sec.gov/Archives/edgar/data/936988/000156761915001589/s001138x1_ex4-1.htm

 

Yes, I was a customer with merrill visa pre 2008

If I remember correctly, BOA acquired Merrill in 2009.  According to the 1st BOA doc about survivability, arbitration was removed from the agreement in 2008.  You need to find out exactly when you become a BOA consumer.

I don’t understand the relevance of the SEC doc.

[BackFromTheDebt]

Did the ML account have an arbitration agreement?

 

If so, was there a survivability clause?

[Rexedwardsmooney]

On 2/9/2022 at 9:44 AM, BackFromTheDebt said:

Did the ML account have an arbitration agreement?

 

If so, was there a survivability clause?

It does with FINRA.

[BackFromTheDebt]

12 hours ago, Rexedwardsmooney said:

It does with FINRA.

What is FINRA?

[BV80]

41 minutes ago, BackFromTheDebt said:

What is FINRA?

Financial Industry Regulatory Authority

https://www.finra.org/#/

“FINRA is authorized by Congress to protect America’s investors by making sure the broker-dealer industry operates fairly and honestly. We oversee more than 624,000 brokers across the country—and analyze billions of daily market events.”