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Sued by Zwicker for Amex - how to respond to a request for summary judgement request?


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Hello there, I have been visiting these forums for a couple months to help me with my case. Like many people, I have responded to their initial suit by denying everything, then I did a round of discovery which they responded to nothing, said everything is irrelevant, they requested discovery from me, I did the same more or less. So, stalemate until a couple weeks ago.

Now, Zwicker has filed a summary motion for judgement, a 3 page argument mostly siting other cases, and relying on an implied contract since I made payments -- I am no lawyer, but from what I understand this is one of the weak points we can use to our advantage that is, forcing Zwicker to produce an actual signed contract which they haven't -- they continue to send copies of my statement and a modern 2010 copy of the terms of the credit card which comes with each statement.

So, that's where we are I have 10 days until a month is up from when they filed this motion, so I feel like I should file a motion for summary dismissal at least rather than just wait for the judge to grant a court date.

Thus, any advice is greatly appreciated. Should I motion for dismissal, and what grounds, language, arguments should I use?

Thanks in advance

DntMessWTX

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Based on what you have stated it sounds like your almost done. I have had two cases that Zwicker was the scum that handled for AmEx. They are the lowest of liars and they just run a mill of paper that will lead to a judgment. In one case I lost. This was before I learned about using arbitration to get the this out of court. In Michigan it's cheap for them to get a judgment. Less than $300 for court and attorney fees if they don't work to hard.

You have to answer the motion for a summary judgment with why they have not presented enough detail to show that you owe what you owe and that you are liable for the debt. Also the defense that no signed agreement will get you off didn't work in Michigan. All the judge wanted to know was if the bills were sent to my address and if I resided at that address. Zwickers argument that use of the card constituted your agreement to the contract. It may be different in Texas.

In my second case we got to this same point, but I had demanded arbitration and Zwicker had refused. I had filed arbitration complaint and Zwicker was facing paying their portion of the application. Our attorney had developed a good response to their motion citing case law where they failed to show the existence of the contract based on the date they used in their filing, fact that I had demanded arbitration and they had ignored that, and finally they had not showed the court how they had calculated the amount that they alleged what owed.

The outcome of this was we reached a settlement agreement.

You should either work on a good response to their motion or get legal help to defend their motion. They don't put a lot of effort in their motions and you should be able to get motion dismissed.

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Hmmm -- so tell me to "answer" the motion for summary judgment what is the format of this answer? Is this an "answer" where I would write something up like my initial answer that denied all their statements in the original suite? OR something else? Should I answer in an integrated motion for summary dismissal?

Just trying to figure out exactly what to do both tactically and from a paperwork point of view?

THanks --

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Our attorney had developed a good response to their motion citing case law where they failed to show the existence of the contract based on the date they used in their filing, fact that I had demanded arbitration and they had ignored that, and finally they had not showed the court how they had calculated the amount that they alleged what owed.

Kittyring, can you perhaps post that response to this thread so that others might use parts of it for their own defense, or for research purposes?

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You need to file OBJECTION TO MOTION FOR SUMMARY JUDGMENT with the court, wherein you argue the elements of a contract (based on TX law) which have not been substantiated by the plaintiff's filings to date.

In TX, if there is even ONE of your arguments that the court can find merit in, the judge is obligated to deny the MSJ and you move forward to trial.

You need to review ELEMENTS OF A CONTRACT in TX law, they are very specific, and then attack based on each element with every single thing you can.

Some examples are:

1. In TX, the interest rate that was agreed to at the time the contract was formed is considered a key element of the contract. If Zwicker has not produced this information, then their claims are lacking, and you can argue this as an element of the contract that is in dispute.

2. The date the contract was entered into. In TX, Zwicker does NOT have to produce the signed original (or copy) of the agreement, but they can be forced to produce the exact date the contract was entered into. The date is a key element of a contract and if it is missing, you can argue on it.

3. The means by which the contract was offered for consideration and accepted, e.g. HOW did you enter the contract: online, in person, by mail? This is an element of the contract, and if Zwicker did not state it in their arguments then you can cite it as a missing element of the contract in dispute.

Basically, you nitpick every little detail, based on ELEMENTS OF A CONTRACT according to the TX statute. You should be able to google that easily.

You next potential weak spot with them is the contract they attached to the MSJ. What is the effective date on that contract? Is the effective date of that contract AFTER your alleged default date? If it is, then that, logically, cannot be the contract you "would have" agreed to with AMEX, because the amount in dispute was defaulted on prior to the effective date of the contract they attached.

See the loophole? If it's there, choke them with it.

Have they attached copies of the AMEX contract at any other point during your case? If so, pull those, and compare the effective date and version #'s on all the contracts they've produced to the court record. If they don't match, then argue that they have provided different contracts and it is impossible for you to know which you are being sued over, then move to dismiss.

Check their business record affidavits, especially the executed dates and by who. Are the dates the same? Are the names the same? Even better, are they the same but the contracts attached to them have different version numbers? You could go to town on them if they do that.

Also, if you're at 30+ days on your discovery and they haven't given you the answers you want, file your MOTION TO COMPEL DISCOVERY now... and I mean, ASAP. Your discovery has to be resovled before trial, usually 15-30 days before trial date depending on the court's local rules (I think TxRCP says 30 days before trial but the court can set a different deadline).

If you move to compel, and they still don't provide responses, you can move to dismiss. Stay on them.

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Thanks - as far as contracts all they have attached are "terms" sheets that are generic, no contract, nothing, and surely not the same as I allegedly executed. I like all your arguments, I think next now that I hit them with the motion to dismiss their motion for summary judgment, I will hit them with a motion to compel discovery. They responded, but for every single request said "irrelevant". I know there was a case sited on this website about how that won't work -- and you can argue that these questions are not irrelevant, but I can't seem to find the example.

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