Jump to content

Holy Crap!! Zwicker/AMEX throwing the book at us>


Pumaz
 Share

Recommended Posts

Got summons in MI from Zwicker/Amex

Looks like they are learning so I am posting info so you can see what to expect and I welcome suggestions as I form my response.

COMPLAINT

quote(MCR 2.113©(2)(a)

Plaintiff, amex, by and through it's attournys, Z&A, P.C. for it's complaint about againts xxx ("XXX"), states as follows.

PARTIES

1. Plaintiff, amex, has a principal place of business located in SALT LAKE CITY, UTAH.

2. Defendant, XXX, is an individual who resides in XXX, MI. (which we dont, we moved)

3. The amount in controversyis less than Twenty-five Thousand Dollars.

A.
BREACH OF CONTRACT

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

5. On or about 8/11/2005, XXX entered into a contract with amex for credit services ("Contract") and amex established a credit account for XXX, Account No. XXXXXXXXXXXXXXXXXX. ("Account")

6. At or about the time XXX received the credit card, amex provided XXX with a Cardholder Agreement which detailed XXX's obligations and liabilities for all credit extended by amex. Attached as Exhibit "1" is a copy of the cardholder agreement XXX was subject to at the time of default.

7. Pursuant to the terms of the Contract, amex, on various dates provided credit services to XXX in exchange for XXX'x promise to pay for said services as billed on a timely basis.

8. amex has substantially and materially performed all of its obligations pursuant to the contract for the Account.

9. As of 8/4/2010 the Account's outstanding balance for the credit services extended to XXX is $xxxx.xx.

10. As of today's date, XXX fails, refuses, and/or neglects to pay amex the balance due and owning pursuant to the Account contract for the credit services previously extended.

11. XXX has materially breached the terms of the Contract. As a result, amex, has been damaged in the ammount of $xxxx.xx.

B. ACCOUNT STATED

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

13. The parties entered into a contract whereby amex provided credit services to XXX based upon the promise of XXX to pay for same.

14. Amex promptly performed all obligations pursuant to the Contract and rendered monthly statements to XXX detailing the credit extended and the amounts due and owing for the Account.

15. Prior to the filing of this Complaint, XXX made no objection to said statements or any part thereof.

16. There is presently dur and owning over and above all counterclaims, the sum of $xxxx.xx.

17 Despite amex's demands for payment, XXX 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 XXX 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 fully set forth herein.

20. At the express request of XXX, amex furnished credit services to XXX.

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

22. Justice requires XXX to pay for the use and benefit of the credit servcies furnished by amex.

23. The value of the credit services furnished to XXX which remains unpaid is $xxxx.xx.

24. As a direct result of XXX's actions and/or omissions, including failure to pay amex for the value of the credit services received, XXX has been unjustly enriched at the expense of amex.

RELIEF REQUESTED

WHEREFORE, Plantiff requests this Honorable Court to:

A. Enter a judgement regarding Account No. XXXXXXXXXXXXXX in favor of amex against XXX, in the sum of $xxxx.xx, plus plaintiffs attourney'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.

Exhibit 1 - Copy of Contract (no signature)

Exhibit 2 - Affidavit of Account Stated (basically a notarized final statement)

Needless to say I feel a bit overwhelmed by the 3 pronged attack. Our goal is to get a settlement for 30%-50% of the amount owed.

Please use this info to your advantage in the escalating battle against creditors and again I welcome any informed advise.

Link to comment
Share on other sites

This just looks like one of those complaints where you state anything and hope something sticks. I find it funny that creditor attorneys do this then complain when the defendant does the same thing.

You have your homework to do. I suggest reading up on the threads that discuss how to make up a legal answer to the complaint and look into the Michigan Judicial Code for how the court works. Being that this is $25,000, I am betting that you are in regular court so everything will be prim and proper.

At the end of your answer, you will do affirmative defenses. If the address they put on the answer is not your address and results in the case being in a different court (usually based on county), then your first one would be lack of juridstiction (and you would deny paragraph 2 on the residence part). Then I would file a motion for dismissal immediately on the grounds of lack of juridstiction. That will probably give you more time to research your case and cost the plaintiff more money as they would then have to refile in the court that has juridstiction.

Please note, if you are the same county as your old address, then simply deny paragraph 2 for the residence but do not bother with lack of juridstiction. This would be considered a non-critical error by the courts and hence, would be ignored.

There are also other affirmative defenses you can use such as unjust enrichment (yes, you can use this too). Research is your best friend.

Finally, get ready for discovery. It will be done as you are in formal court. Learn how to do it. You primarily want to attack the contract and account stated part of the claim because success in either of those claims automatically proves the 3rd claim (and lack of success would probably doom the 3rd claim). You definitely want to request a signed contract, copies of bills which prove account stated in Michigan (each state is different, some states allow 3 bills to prove it, other want to see 12 months of bills, and others require proof of the account from 0 balance). You also want to send a interrogatories and requests for admission to the affiant. Keep those brief and to the point following civil procedure.

Also, go the courthouse and see if you cannot find any cases with the plaintiff where the plaintiff lost. If the defendant had an attorney, grab those cases and follow what those attorneys did.

Good luck.

Link to comment
Share on other sites

LostMind, would you please explain?

I am in Ga and "unjust enrichment" is in my Complaint.

Williams v. Mohawk Industries, Inc., Court of Appeals, 11th Circuit 2006

"In Georgia, "njust enrichment is an equitable concept and applies when as a matter of fact there is no legal contract . . . ." St. Paul Mercury Ins. Co. v. Meeks, 508 S.E. 2d 646, 648 (Ga. 1998)"

If I have misinterpreted this please let me know.

Link to comment
Share on other sites

You have your homework to do. I suggest reading up on the threads that discuss how to make up a legal answer to the complaint and look into the Michigan Judicial Code for how the court works. Being that this is $25,000, I am betting that you are in regular court so everything will be prim and proper.

Good luck.

Thanks for the reply. Although the amount is under $25,000. About $8,000.

Also, you mentioned going to the courthouse to research. Do I just go to records and have them search for plaintiff=Zwicker/AMEX? Then I assume I pay a nominal fee for any records I'm interested in... (excellent idea by the way):wink:

Edited by Pumaz
Link to comment
Share on other sites

Looking at the small claims limits, you are still in regular court which means the formal process (which is better for you to attack the affidavit for account stated).

You would probably do a computer search like you mentioned and then pay for the case records you want. Don't worry too much about the cost because you will find that about 95% of the cases end up being default judgments. Don't worry too much because 90% of the people do not answer leading to a default judgment and then about 50% of those who answer do so in such a way that leads to a default judgment. Weed those out and you should have a good set of pleadings. You may have to look in other counties however to find good pleadings too but if you keep searching, you should find what you need (and you may find a good lawyer whom you can retain should things get out of hand for you).

Link to comment
Share on other sites

Thanks for the reply. Although the amount is under $25,000. About $8,000.

Also, you mentioned going to the courthouse to research. Do I just go to records and have them search for plaintiff=Zwicker/AMEX? Then I assume I pay a nominal fee for any records I'm interested in... (excellent idea by the way):wink:

You don't owe American Express any money, they have been using securitization schemes since I believe 1996 and I think they started another Issuance Trust in I believe 2005. Google: American Express Master Credit Card Trust. I'd use unjust enrichment against them due to the fact they realized a gain when they sold receivables from your account to the trust. Do that and watch Zwicker squirm. lol That's a defense all consumer's should use when sued by these Law Firms purportedly at the behest of Credit Card Companies.

Link to comment
Share on other sites

Yup, that's a standard Z complaint. I'd suggest while preparing your answer you research the affidavit required to counter the account stated. It's in the MCLA 600's I believe. Also, you can skip the online record search thing, if and unless your case is in the only district court in MI that offers online access ie: Eastpointe). However, you could still go to the courthouse but expect to be met with resistance from the court clerks, their gonna want a case number, and won't be real friendly if you ask them to take a look at all prior court filings/cases regarding amex...I read your original post and DO SEE that they attached a contract as an exhibit...What Contract did they attach? There should be a date on it near the bottom corner...Does it match your records? Also, Discovery is not a for sure with those bozos, they frequently utilize a unique concept which is doing nothing...Other than that get your post count up so you can send and receive PM's...I kinda remember 15 being a magical number for some reason...I think I spent some time in the wine forum....

Edited by maggie22
typos
Link to comment
Share on other sites

You don't owe American Express any money, they have been using securitization schemes since I believe 1996 and I think they started another Issuance Trust in I believe 2005. Google: American Express Master Credit Card Trust. I'd use unjust enrichment against them due to the fact they realized a gain when they sold receivables from your account to the trust. Do that and watch Zwicker squirm. lol That's a defense all consumer's should use when sued by these Law Firms purportedly at the behest of Credit Card Companies.

This sounds either brilliant:idea: or reason to get laughed out of court :oops:. Of course I appreciate all advise, would love it if another knowledgable person could second this as a possible affirmative or counterclaim.

Link to comment
Share on other sites

This sounds either brilliant:idea: or reason to get laughed out of court :oops:. Of course I appreciate all advise, would love it if another knowledgable person could second this as a possible affirmative or counterclaim.

This is a real defense. In fact, I think it is the defense that will, pleaded properly, break their backs. I haven't used it yet, but plan to in the future.

It's like the "produce the note" strategy for mortgages.

But it will take a lot of research to plead it well, and it is a complex issue.

Here is a video explaining how securitization works for credit cards:

http://www.paymentsnews.com/2008/11/how-credit-card.html

Link to comment
Share on other sites

This sounds either brilliant:idea: or reason to get laughed out of court :oops:. Of course I appreciate all advise, would love it if another knowledgable person could second this as a possible affirmative or counterclaim.

I always use 'unjust enrichment' on JDB's. And it can be used on OC as well. Its common to see it used in affirmative defenses on contract. What if the OC can't account for all card use and puchase statements, or can't prove the agreed upon interest rates with changes, or any contractual changes, or pove additional fees and costs, ...all unjust enrichment.

Affirmative defenses:

JDB,

Plaintiff admits to purchasing the defaulted debt allegedly owned by the defendant, causing Plaintiff’s injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

OC,

Defendant alleges that the granting of Plaintiff’s demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money then Plaintiff is entitled to receive or has proven on the alleged debt for collection.

----------------------------------------------------------------------

The law of Unjust Enrichment (or restitution) is a fundamental part of our laws. The basic doctrine prescribes that “a person who has been unjustly enriched at the expense of another is required to make restitution to the other”.

Private law scholars have spent enormous energy delineating the boundaries. If, for example a debt collector buys a debt for pennies on the dollar and then claims injury on the full amount through assignment; in a paradigm, the injury is now reversed – the debt collector has unjust enrichment for a claim above and beyond the actual harm – the small amount the debt buyer purchased for the debt at pennies. The debt buyer is not the real party of interest – but caused its own harm through which it gambles it own risks in purchase.

To better understand the complexities of unjust enrichment and its diverse use I suggest this book:

Unjust enrichment: a study of private law and public values

By Ḥanokh Dagan

http://books.google.com/books?hl=en&lr=&id=mwxLXaiPSK8C&oi=fnd&pg=PP17&dq=Affirmative+defense+unjust+enrichment&ots=w7WIxRnvaO&sig=uV2P2KrHi2NIbTHArMsUNj45HWM#v=onepage&q=Affirmative%20defense%20unjust%20enrichment&f=false

Edited by FL4answer58
Link to comment
Share on other sites

You don't owe American Express any money, they have been using securitization schemes since I believe 1996 and I think they started another Issuance Trust in I believe 2005. Google: American Express Master Credit Card Trust. I'd use unjust enrichment against them due to the fact they realized a gain when they sold receivables from your account to the trust. Do that and watch Zwicker squirm. lol That's a defense all consumer's should use when sued by these Law Firms purportedly at the behest of Credit Card Companies.

MASSIVE, does this concept apply to Chase, Citi, and/or Discover?

Link to comment
Share on other sites

This sounds either brilliant:idea: or reason to get laughed out of court :oops:. Of course I appreciate all advise, would love it if another knowledgable person could second this as a possible affirmative or counterclaim.

Shame on you!! Citibank sued a friend twice within the last 6 months and their "Law Firm" ran scared both times. Laughed out of court my a$$. They used the same scheme in Mortgages as well as credit card debt. Anybody reading this that wants to continue to bow down to these fraudsters go ahead. I've used these tactics and helped many consumers.

Link to comment
Share on other sites

Shame on you!! Citibank sued a friend twice within the last 6 months and their "Law Firm" ran scared both times. Laughed out of court my a$$. They used the same scheme in Mortgages as well as credit card debt. Anybody reading this that wants to continue to bow down to these fraudsters go ahead. I've used these tactics and helped many consumers.

I didn't mean to offend. I am just trying to get good advise that will hold up... this is the internet after all and everyone knows that you can sometimes get info that will do nothing but get you on a judge's SH** list. I understand the concept and like I said it sounds brilliant, but like any responsible person I was seeking a second opinion.

Thanks again for the advise I truly appreciate it. I'll be posting my response soon and would love some feedback on that as well.

Link to comment
Share on other sites

Massive -

Not to hijack this thread at all, but I am very curious about the securitization defense you mention, especially about your friend and Citi. I am currently being sued by Citi and have filed my answers/counterclaim, requests for admission, interrogatories, production of docs and a MTD. Any insight on this would be appreciated by me and I am sure other individuals.

Thanks,

DB

Link to comment
Share on other sites

You don't owe American Express any money, they have been using securitization schemes since I believe 1996 and I think they started another Issuance Trust in I believe 2005. Google: American Express Master Credit Card Trust. I'd use unjust enrichment against them due to the fact they realized a gain when they sold receivables from your account to the trust. Do that and watch Zwicker squirm. lol That's a defense all consumer's should use when sued by these Law Firms purportedly at the behest of Credit Card Companies.

I'm sorry - but this is not a defense. This is a conspiracy theory - It's sort of like saying you don't need to pay taxes because it's unconstitutional.

I don't know anyone who's won with it in court. If I'm wrong - please show me some case law.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.