Zwicker & Assc Amex Centurion Bk

[Kittyring]

This is the second suit filed by these guys. I lost the first as they got a default judgement on me. I did everything wrong and untimely the first time. The judge accepted Zwicker's argument that the copies of statement are sufficient to prove a contract because it had my address. No signed agreement was needed.

This is a second suit on a different AMEX account. The particulars are very similiar to the first suit. The suit is for approx $18,000. They served it by registered mail, it is the second summons and complaint they failed to serve this the first time and the first summons expired.

The summons mainly alleges a Breach of Contract, and Account Stated, and Unjustly Enriched. All that they provided was an Exhibit of the Agreement Between AMEX Credit Cardmember and AMEX Centurion Bank this is not a signed contract. They also attached an Affidavit of Account Stated, signed by an M. Turner Attrorney-In-Fact, with no other supporting documentation.

Here is the summons:

1. Plaintiff, AM-EX CENTURION, has a principal place of business located in SALT LAKE CITY, UTAH.

2. Defendant, is an individual who resides in MI.

3. The amount in controversy is less than Twenty-Five Thousand ($25,000.00) Dollars.

A. BREACH OF CONTRACT

4. Plaintiff incorporates by reference paragraphs one (1) through three (3) above as though fully set forth herein.

5. On or about 10/28/1972, entered into a contract with AM-EX CENTURION for credit services ("Contract") and AM-EX CENTURION established a credit account for , Account No. xxxxxxxxxxx. ("Account")

6. At or about the time xxxxxx received the credit card, AM-EX CENTURION provided xxxxxxx with the Cardholder Agreement which detailed xxxxxxx obligations and liabilities for all credit extended by AM-EX CENTURION. Attached as Exhibit "1" is a copy of the Cardholder Agreement xxxxxxxx was subject to at the time of default.

7. Pursuant to the terms of the Contract, AM-EX CENTURION, on various dates provided credit services to WILLIAMS in exchange for WILLIAMS's promise to pay for said services as billed on a timely basis.

8. AM-EX CENTURION has substantially and materially performed all of its

obligations pursuant to the contract for the Account.

9. As of xxxxx 2009, the Account's outstanding balance for the credit services extended to xxxxxx is $00000.

10. As of today's date, WILLIAMS fails, refuses, and/or neglects to pay AM-EX CENTURION the balance due and owing pursuant to the Account contract for the credit services previously extended.

11. xxxxxxx has materially breached the terms of the Contract. As a result, AM-EX CENTURION has been damaged in the amount of $00000.

B. ACCOUNT STATED

12. Plaintiff incorporates by reference paragraphs one (1) through eleven (11) above as though fully set forth herein.

13. The parties entered into a contract whereby AM-EX CENTURION provided credit services to xxxxxxx based upon the promise of xxxxxx to pay for same.

14. AM-EX CENTURION promptly performed all obligations pursuant to the Contract and rendered monthly statements to xxxxxx detailing the credit extended and amounts due and owing for the Account.

15. Prior to the filing of this Complaint, xxxxxxx has made no objection to said

statements or any part thereof.

16. There is presently due and owing over and above all counterclaims, the sum of $00000.

17. Despite AM-EX CENTURION's demands for payment, xxxxx has refused to

make payment on the balance due and owing for Account.

18. Pursuant to MCLA §600.2145, an Affidavit of Account Stated indicating the amount owed by xxxxx and is attached hereto and identified as Exhibit "2."

C. UNJUST ENRICHMENT

19. Plaintiff incorporates by reference paragraphs one (1) through eighteen (18) above as though fully set forth herein.

20. At the express request of xxxxxx, AM-EX CENTURION furnished credit

services to xxxxxx.

21. xxxxxx has received the use and benefit of the credit services without payment of full consideration.

22. Justice requires xxxxxx to pay for the use and benefit of the credit services furnished by AM-EX CENTURION.

23. The value of the credit services furnished to WILLIAMS which remains unpaid is $00000.

24. As a direct result of WILLIAMS's actions and/or omissions, including the failure to pay AM-EX CENTURION for the value of the credit services received,

xxxxxx has been unjustly enriched at the expense of AM-EX CENTURION.

RELIEF REQUESTED

WHEREFORE, Plaintiff requests this Honorable Court to:

A. Enter a judgment regarding Account No. 000000000000 in favor of

AMERICAN EXPRESS CENTURION BANK against xxxxxxxx,

in the sum of $00000, plus plaintiff's attorney's fees and costs to the extent permitted by applicable law; and

B. Grant such other relief as is just and appropriate under the circumstances.

I have prepared the following response:

Defendant answers the complaint as follows:

1. Admits the allegations of paragraph 1 and 2.

2. Denies having information and knowledge sufficient to form a belief about allegation in paragraph 3.

3. Denies allegations in paragraph 5 & 6: Responding Party objects to the request as vague ambiguous and as the party must speculate as to the meaning of “cardholder agreement” or the allegation of a “contract”.

4. Denies allegation in paragraph 7 calls for admission of matter the defendant has denied and is thus improper.

5. The defendant lacks information sufficient to admit or deny the allegations contained in Paragraph 8, therefore they are denied.

6. Denies allegation in paragraph 9 calls for admission of matter the defendant has denied and is thus improper.

7. The defendant lacks information sufficient to admit or deny the allegations contained in Paragraph 10, therefore they are denied.

8. Denies allegation in paragraph 11 calls for admission of matter the defendant has denied and is thus improper.

9. Denies allegation in paragraph 13 as vague and ambiguous allegation of “contract” not supported.

10. The defendant lacks information sufficient to admit or deny the allegations contained in Paragraph 14, therefore they are denied.

11. The defendant lacks information sufficient to admit or deny the allegations contained in Paragraph 15, therefore they are denied.

12. Denies allegation in paragraph 16 calls for admission of matter the defendant has denied and is thus improper.

13. Denies allegation in paragraph 17 calls for admission of matter the defendant has denied and is thus improper.

14. The defendant lacks information sufficient to admit or deny the allegations contained in Paragraph 18, therefore they are denied.

15. Denies allegation in paragraph 20 calls for admission of matter the defendant has denied and is thus improper.

16. Denies allegation in paragraph 21 calls for admission of matter the defendant has denied and is thus improper.

17. Denies allegation in paragraph 22 calls for admission of matter the defendant has denied and is thus improper.

18. Denies allegation in paragraph 23 calls for admission of matter the defendant has denied and is thus improper.

19. Denies allegation in paragraph 24 calls for admission of matter the defendant has denied and is thus improper.

FURTHERMORE, defendant DENIES every other allegation not previously admitted, denied or controverted.

AFFIRMATIVE DEFENSES

As and for a First Defense, Zwicker & Associates has not proven that they were retained by American Express as its representative in this matter.

As and for a Second Defense, Plaintiff has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

As and for a Third Defense, Plaintiff failed to state a claim upon which relief can be granted. Plaintiff’s Coplaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

As and for a Fourth Defense, Plaintiff’s Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

As and for a Fifth Defense, Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

As and for a Six Defense, Defendant alleges that the granting of the Plaintiff’s demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than Plaintiff is entitled to receive.

As and for a Seventh Defense, Plaintiff has not proven the debt is valid or the amount of the debt is accurate. The Plaintiff must prove that the principal, interest, collection costs, and attorneys fees are all correct, agreed to in your written contract, and lawfully charged. Defendant also insists that the Plaintiff come up with the contract, account statements and purchase receipts to prove the amount of the debt.

As and for an Eight Defense, Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

WHEREFORE, the defendant respectfully asks the Court for judgment:

DISMISSING the complaint herein with prejudice.

I would appreciate the wisdom of the forum readers to comment on my response to these weasels. I have heard that AMEX is extremely difficult to deal with. They appear to be driven to obtain a summary judgement in all cases.

[goodguy2]

Very good work! I am brand new at this stuff and had to do a similar answer to Zwicker last Monday. I am in AZ but I bet the laws are very similar. Keep us up to date and I will do the same.

Just guessing but from what I have seen they will move for default judgment after submitting the credit card payment history.

Not sure what the defense on this is and how you can still compel them to move to discovery and a trial date.

If it under 50,000 dollars in AZ it goes to court appointed arbitrator, which is a local lawyer who just wants it to go away and will most likely favor Zwicker. The courts here are not consumer friendly. I am trying to figure out how to send it to Jams arbitration and get it out of this court.

Do you have the original Card member agreement?

[GAMtgGuy]

This is the second suit filed by these guys. I lost the first as they got a default judgement on me. I did everything wrong and untimely the first time. The judge accepted Zwicker's argument that the copies of statement are sufficient to prove a contract because it had my address. No signed agreement was needed.

This is a second suit on a different AMEX account. The particulars are very similiar to the first suit. The suit is for approx $18,000. They served it by registered mail, it is the second summons and complaint they failed to serve this the first time and the first summons expired.

The summons mainly alleges a Breach of Contract, and Account Stated, and Unjustly Enriched. All that they provided was an Exhibit of the Agreement Between AMEX Credit Cardmember and AMEX Centurion Bank this is not a signed contract. They also attached an Affidavit of Account Stated, signed by an M. Turner Attrorney-In-Fact, with no other supporting documentation.

Here is the summons:

1. Plaintiff, AM-EX CENTURION, has a principal place of business located in SALT LAKE CITY, UTAH.

2. Defendant, is an individual who resides in MI.

3. The amount in controversy is less than Twenty-Five Thousand ($25,000.00) Dollars.

A. BREACH OF CONTRACT

4. Plaintiff incorporates by reference paragraphs one (1) through three (3) above as though fully set forth herein.

5. On or about 10/28/1972, entered into a contract with AM-EX CENTURION for credit services ("Contract") and AM-EX CENTURION established a credit account for , Account No. xxxxxxxxxxx. ("Account")

6. At or about the time xxxxxx received the credit card, AM-EX CENTURION provided xxxxxxx with the Cardholder Agreement which detailed xxxxxxx obligations and liabilities for all credit extended by AM-EX CENTURION. Attached as Exhibit "1" is a copy of the Cardholder Agreement xxxxxxxx was subject to at the time of default.

7. Pursuant to the terms of the Contract, AM-EX CENTURION, on various dates provided credit services to WILLIAMS in exchange for WILLIAMS's promise to pay for said services as billed on a timely basis.

8. AM-EX CENTURION has substantially and materially performed all of its

obligations pursuant to the contract for the Account.

9. As of xxxxx 2009, the Account's outstanding balance for the credit services extended to xxxxxx is $00000.

10. As of today's date, WILLIAMS fails, refuses, and/or neglects to pay AM-EX CENTURION the balance due and owing pursuant to the Account contract for the credit services previously extended.

11. xxxxxxx has materially breached the terms of the Contract. As a result, AM-EX CENTURION has been damaged in the amount of $00000.

As and for a Fifth Defense, Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

As and for a Six Defense, Defendant alleges that the granting of the Plaintiff’s demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than Plaintiff is entitled to receive.

As and for a Seventh Defense, Plaintiff has not proven the debt is valid or the amount of the debt is accurate. The Plaintiff must prove that the principal, interest, collection costs, and attorneys fees are all correct, agreed to in your written contract, and lawfully charged. Defendant also insists that the Plaintiff come up with the contract, account statements and purchase receipts to prove the amount of the debt.

As and for an Eight Defense, Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

WHEREFORE, the defendant respectfully asks the Court for judgment:

DISMISSING the complaint herein with prejudice.

I would appreciate the wisdom of the forum readers to comment on my response to these weasels. I have heard that AMEX is extremely difficult to deal with. They appear to be driven to obtain a summary judgement in all cases.

This is all so similar to my own case with Zwicker/Amex in Georgia. You can find it on the board here with everything I filed as well.

End result is that the judge gave them the MSJ even though I buried them with motions and answered everything by the book. I would advise you to consider the TrueQ arbitration strategy as a way to delay this and move this case from court to arbitration limbo.

The reality is that beating Amex/Zwicker in court is extremely difficult. It is completely different than the examples you see on here against various JDB's.

[Kittyring]

GAMGTGuy is right. Zwicker and AMEx are on a mission to establish as many judgments as they can. I believe that American Express Centurion Bank is trying to make their balance sheet appear better by using default judgments as a way to show a stronger asset basis. I think (or hope) they are in financial trouble with all of their aggressive credit practices. I don't have any basis for this other than that they accepted TARP money and are trying to increase their profitability.