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David Harlow Relkin

David Relkin’s Answers

42 total


  • I have been sued by a debt collector but there is a binding arbitration cluase in the original contract. What are my options?

    I have been sued by a debt collector but there is a binding arbitration cluase in the original contract. What are my options?

    David’s Answer

    Where an arbitration clause is part of a contract, either party can, of course, waive that right and proceed to litigation. This appears to be what is happening here; however, there are many cases where the party proceeding to litigate despite such a clause is actually unaware of it. The facts that the collection agency is bringing this suit suggests that they proceeded with litigation without consulting the contract. First point, a collection agency cannot sue. They are not attorneys and do not own the receivable, so there must be an attorney representing the creditor. Second, in order for me to give you some advice without speaking specifically about your problem, the nature of your defense should be analyzed by an attorney familiar with arbitration to determine whether you want to be in arbitration: some cases are best heard by arbitrators. Without knowing more, I cannot say whether the creditor made such a determination or simply went to court without reviewing the terms of the contract. The fact remains that, if you have not "participated" (a fact dependent determination which would be made by a court) in the litigation, you may make a motion to stay the action and proceed to arbitrate. Therefore, I suggest that you consult an attorney to make the threshold determination of 1. whether you have participated in the litigation; and 2. if not, to move to compel arbitration after he or she advises you that arbitration may be more felicitous to your claim. I hope this helps at least in part the conundrum in which you find yourself.

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  • How to defend against creditor lawsuit in arbitration?

    I have an arbitration hearing in two weeks, I have submitted my response to the court system, but have not yet submitted any discovery documents, or my defense argument. I know nothing about the law, and the plaintiff's argument seems very over th...

    David’s Answer

    You seem to be unable to speak legalese--that's one good thing about this at least. When an attorney, especially one who has argued 75-100 arbitrations, we hear an Alternate Dispute Resolution Method of resolving disputes--like a proceeding in front of the AAA. You then throw us a curve ball with you mention of the Court. On top of this confusion, there are way too many unspoken issues in your question: I don't know what it is about; I don't know if it is in court, I don't know how much money is involved...etc. I don't know why you owe money or why the plaintiff may owe you money. You can call a lawyer or post again.

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  • CAN I SELL MY 25% OF A FUTURE INHERITED PROPERTY?

    MY MOTHER, 7 YEARS AGO DEEDED, WITH A BILL OF SALE, AND RECORDED EVERYTHING AT THE COURTHOUSE; A PAID FOR 15 ACRE MOBILE HOME PARK,(100 leased trailers), WITH 8 COMMERCIAL BLDGS. THAT ARE LEASED, EQUALLY TO MY BROTHER AND ME, AT HER DEATH. SHE OWN...

    David’s Answer

    An expectancy of a benefit after death is sold on a common basis. I see that you are in Alabama, so I cannot give you (being an Attorney who practices in New York and Connecticut) a very firm response, nor does this forum allow me to.
    However, you definitely need an attorney to manage the sale and document exactly what you are selling.

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  • Do I need a Real estate attorney?

    I was subletting a warehouse. The person who rented me the sublet gave me a lease and I gave him copy of all my documents..business license Ect. Proof of my general liability insurance for the bussiness Ect..and one of his tenants started a fire I...

    David’s Answer

    This is a mixed Real Estate-Litigation Matter. Warehouse leases, even more than standard commercial leases--I know this since I wrote many of them, always provide that the lessees must maintain insurance. Therefore you are at fault it you did not obtain commercial insurance; however, neither did your landlord nor the other tenant--indeed, you may even be able to make the argument that the owner had to have insurance. You are in California so I would suspect that you could take the position that these covenants, as they are called, are so standard that you can consider that they violated a duty to you.
    While I am not presently admitted in California how much is the loss? Also, you should carefully reread the sublease.

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  • Please help

    civil matter in city of buffalo ,for my wife credit card debt for 1000 ,was disposed in 2009 and now she received a letter the other day for same debt same people, is this legal?? isn't there a statue of limitations for credit card debt ,it was op...

    David’s Answer

    The letter you received must have on it a dispute clause: namely that you have thirty days to dispute or they will consider the debt valid. Keep your letter short: "This debt was paid over six years ago. Provide any evidence to the contrary or I will consider this matter closed. I have consulted an attorney and your conduct is a violation of the FDCPA." Fair Debt Collections Practices Act--you can find it on the FTC Website.
    Then get your three Credit Agency Reports from TransUnion, TRW and Equifax. You can get it online. Review the reports to find the particular credit card to see whether the amount was charged off.

    David H. Relkin

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  • I have a summones for identity theft and a fake credit card this is first time offense never been arrested do i go to jail?

    This was in nj north bronzewick in a phone store on the summons was for the amount of 1,499$

    David’s Answer

    The bottom line is whether you did the act which is the basis of the claim. Since this is a public forum, getting into the issue here would be inappropriate.
    I do a great deal of Identity theft from the other side, that is, defending the party whose personal identity has been stolen; accordingly, I am able to handle this side as well.
    If you want to discuss the matter further, go to my website DavidRelkinLaw.net.

    David H. Relkin

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  • Have a Question about filing and Answer to a Complaint and Motion to Compel Private Contractual Arbitration in New York

    I recently got sued by a Credit Card company and want to dismiss the case and move it to a private arbitrator as it is stipulated on the Creditcard Agreement, I want to file an Answer along with my Motion to Compel Private Contractual Arbitration,...

    David’s Answer

    No. What you need to do is to file what is called a motion to stay an action and compel arbitration in New York Supreme Court.
    The procedures are very specific and you should consult an attorney. I have done this at least 75 times over my career.

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  • I am starting up a cafe in New York and would like to set up an LLC solely to execute the commercial lease.

    Does this LLC have to be a domestic NY LLC or can I form in any other state? If I form an out of state LLC, would I have to foreign qualify in NY even if the LLC will just be the lessee?

    David’s Answer

    Since the LLC, in your hypothetical, is the tenant, and is doing business in New York, you are required to qualify to do business in NYS.
    Even if you had the LLC sublease to another already existing entity in NY, the LLC is still doing business in NYS.
    You may as well create the LLC in NYS unless you already have an out of state LLC, then it is less expensive to apply to do business in NY; and to hide the Name of the LLC, you can do business in another name. You file this document with the County Clerk of the County in which the real estate is.
    To minimize liability, make the general Manager a Corporation or other entity and make yourself a "limited partner" (I use the word partner since an LLC is essentially a partnership with corporate protection.
    Unless you control the Building in which you will be leasing space, the LL will require a good guy guarantee. This will be your personal exposure, that is, unless you can make the managing member (as a corporation) have sufficient assets to comfort the LL. Probably, this will be a tough negotiation since the LLC itself has no assets, only liabilities since it is a single use LLC. So, you will need to fight or put up sufficient security to protect yourself from having to sign the good guy guarantee. If you live outside NYS your gg guarantee will be better protected.
    Delicate and Strategic structuring and negotiation.

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  • Our company sells lighting fixtures to architects ,nterior designiner and design professionals. We buy ourlighting through Reps.

    I contacted one of the Reps, and asked that he send a sample to one of my accounts for s large project we were asked to assit in. The rep decided to visit my account and bring a conpeting lighting dealer along with him to try to snag the deal away...

    David’s Answer

    Since you buy through reps of other companies the only claim you can make is interference with prospective contractual relations. Yeah. It doesn't sound like the greatest claim but if you have been doing business with this rep for a while and he knew this was an important account (he obviously thought he would make more money with the other dealer) you do stand a chance. Remember Texaco?

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  • My landlord filed bankruptcy chapter 11 and he is not honest about my annual rent.

    My monthly rent was $2600 but on his rent roll to show the court is only show $2100. What should i do? I want my rent to be lower.

    David’s Answer

    Simple. File an objection to his schedule and attach to your affidavit a copy of the lease. Watch how fast he drops his bogus claim. A Bankruptcy Judge will throw him out of court.

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