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Zwicker and Citibank ordered to pay attorney fees!


SECLG
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In January, 2010, Zwicker & Associates sued my client on a Citibank card. Long before she hired me, my client did a great deal of research and crafted her own responses to Zwicker's discovery demands and Request for Admissions. (I DO NOT recommend lay people try to tangle with a debt collection attorney. However, in this case, it actually contributed to the good result.) My client's responses were such that Zwicker probably would have won a Motion for Summary Judgment. But, for some reason, they did not. In fact, they took no further action on the case until it was set for a non-jury trial on August 9, 2010.

The client became nervous as the trial date approached, and so she hired me one week before trial. We appeared in the Fayette County (GA) State Court and announced "ready to proceed". Representing Citibank was not a Zwicker attorney, but an independent attorney Zwicker hired through a California outfit called "Attorneys on Demand". The hired gun sheepishly admitted to the Court that the Zwicker firm informed him that Citibank had no intention of sending a witness and that he was under instructions from Zwicker to dismiss the case without prejudice if the defendant showed up with an attorney. I voiced my annoyance to the judge about the cowardly debt collection attorneys who file suits knowing that they can't meet their burden of proof. Faced with the age-old idiom of "Fish or cut bait", the collection attorneys choose to jump off the boat. The judge grinned and suggested I file an appropriate motion.

My Motion for Attorney Fees was heard today. The judge expressed great concern that Citibank, through Zwicker, did nothing in the case since March, 2010, and further, that Citibank maintained the action when it never intended to send a witness to court. The judge found that were it not for Citibank's improper conduct, the defendant would not have been compelled to hire me. Citibank "unnecessarily expanded the proceedings by improper conduct". The judge awarded as follows:

$500 to compensate my client for having to hire me to defend a baseless lawsuit.

$750 to compensate me for preparing the Motion for Attorney Fees.

$1,200 for my court time and travel time today and for preparing the Order and Judgment.

It was a great day for the little guy! 8-)

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In January, 2010, Zwicker & Associates sued my client on a Citibank card. Long before she hired me, my client did a great deal of research and crafted her own responses to Zwicker's discovery demands and Request for Admissions. (I DO NOT recommend lay people try to tangle with a debt collection attorney. However, in this case, it actually contributed to the good result.) My client's responses were such that Zwicker probably would have won a Motion for Summary Judgment. But, for some reason, they did not. In fact, they took no further action on the case until it was set for a non-jury trial on August 9, 2010.

The client became nervous as the trial date approached, and so she hired me one week before trial. We appeared in the Fayette County (GA) State Court and announced "ready to proceed". Representing Citibank was not a Zwicker attorney, but an independent attorney Zwicker hired through a California outfit called "Attorneys on Demand". The hired gun sheepishly admitted to the Court that the Zwicker firm informed him that Citibank had no intention of sending a witness and that he was under instructions from Zwicker to dismiss the case without prejudice if the defendant showed up with an attorney. I voiced my annoyance to the judge about the cowardly debt collection attorneys who file suits knowing that they can't meet their burden of proof. Faced with the age-old idiom of "Fish or cut bait", the collection attorneys choose to jump off the boat. The judge grinned and suggested I file an appropriate motion.

My Motion for Attorney Fees was heard today. The judge expressed great concern that Citibank, through Zwicker, did nothing in the case since March, 2010, and further, that Citibank maintained the action when it never intended to send a witness to court. The judge found that were it not for Citibank's improper conduct, the defendant would not have been compelled to hire me. Citibank "unnecessarily expanded the proceedings by improper conduct". The judge awarded as follows:

$500 to compensate my client for having to hire me to defend a baseless lawsuit.

$750 to compensate me for preparing the Motion for Attorney Fees.

$1,200 for my court time and travel time today and for preparing the Order and Judgment.

It was a great day for the little guy! 8-)

Thank you for posting this.

I must make a comment or two.

I believe if it were possible a lot of us, if not all would much prefer

to hire an attorney rather then appear in court pro se.

But there is a problem in that it is extremely difficult to find

attorneys to handle cases like ours.

I, myself, do know of one and when I described my case to him,

which is a seemingly original creditor who hired a local collection agency

attorney to sue me, he wanted no parts.

Yet, when i told him Palisades collection has bout accounts of mine, as well as Asset Acceptance... then he was interested... if they sue.

But, there is another problem... Of those who wish to hire an attorney, not everyone can afford that luxury.

Those of us who have found ourselves in this unfortunate situation

generally do not have the money it would take.

But, I have sent you a PM...

And thanks for telling us about this...

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This is very interesting.

Maybe some of the members could use this approach:

1) Answer the Complaint

2) File your Discovery and Interrogatories

1. Contract

2. Itemized bill

3. Proof of ownership

4. Witnesses.

5. etc: There are a ton of discovery templates on the site

3) Once you have all your evidence get an attorney to represent you. What could it cost to have an attorney represent you at trial after doing all the leg work.

It might not be the answer for everyone but, for some people it might be. Especially if you are dealing with a large settlement amount.

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SECLG,

If I understand correctly, Zwicker was suing on behalf of Citi so this lawsuit came about for the OC and not a CA or JDB? If this is the case, is it possible for you to elaborate a little more on why the delay for Citi to proceed?

I am currently being sued by Citi and have asked for all the documents with my signature to be provided including contract etc. Of course, they responded saying that is not necessary or cumbersome or irrelevant and are going for the old "account stated" with an affidavit and copy of one statement. They ignored all my requests.

What did your client do to make Citi halt in their tracks? Any advice would be helpful. As DongII stated, finding an attorney to handle these cases is very difficult especially if you live in a small state like I do - VT.

Any help would be very beneficial.

Thanks,

DB

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This is very interesting.

Maybe some of the members could use this approach:

1) Answer the Complaint

2) File your Discovery and Interrogatories

1. Contract

2. Itemized bill

3. Proof of ownership

4. Witnesses.

5. etc: There are a ton of discovery templates on the site

3) Once you have all your evidence get an attorney to represent you. What could it cost to have an attorney represent you at trial after doing all the leg work.

It might not be the answer for everyone but, for some people it might be. Especially if you are dealing with a large settlement amount.

I like it!!! :D

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This is great! Isn't this what Citi and many other OCs do, that is hire outside attys?

Maybe more of us could find attys to help us after we do most of the leg work and get the court to order their fees covered!

db1928,

All of my requests have also been ignored with Citi and their hired gun. This is what they're used to:

filing a crap load of suits in hopes that 100% (although probably 99%) don't even bother to answer the complaints= EZ SJ! I think I actually saw this in my state's website for the Justice courts! If a defendant doesn't answer, the court assumes the Plaintiff is right and does not have to prove a thing!

Answer! Then they need to actually prove their case? In my case, I choose Arbitration so I then MTC private arb as I think it would not be worth it for them to pay all the fees associated with it!

Where exactly are you at in your case?

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SECLG,

If I understand correctly, Zwicker was suing on behalf of Citi so this lawsuit came about for the OC and not a CA or JDB? If this is the case, is it possible for you to elaborate a little more on why the delay for Citi to proceed?

Correct. The Plaintiff was Citibank South Dakota, N.A.

I don't know why Zwicker attorneys didn't do anything with the case other than that the entire operation is disorganized and most of the attorneys are incompetent.

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SECLG

What "evidence" did Citi/Zwicker provide in their summons? I ask as maybe this was a reason for their inability to proceed.

for me, the Citi/lawyer provided one month statement along with an affidavit from the custodian of records for an affiliate of Citi. No card holder agreement, no signed application, nothing else. They are going for the "account stated" offense.

I asked for productions of docs with all my signatures on them, iterrogatories and admissions. They denied or objected saying irrelevant or too cumbersome etc.

I then MTD based on the Truth & Lending act that they did not provide a signed contract or anything with my signature on it as well as claiming their affidavits are hearsay. Nothing has happened yet. I am impatiently waiting. Many have said I have no chance to win in court and that I should file for arbitration. I am on the fence as I would love to have it end now, in court with a dismissal w/prejudice.

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The only document attached to the complaint was an internally generated account statement from Zwicker's own collection management software. (Collection Master, I think).

The Zwicker firm usually cuts and runs when a defense attorney shows up. Hence, the basis for my Motion for Attorney Fees.

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In Georgia, an affidavit from a custodian of records stating the content of said records is inadmissible. The records must actually be presented to the court. The affidavit can only be used to authenticate the records.

I've had good luck with the argument that an account statement does not mean the defendant is obligated. At the most, all it shows is that the defendant was billed.

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Is there a specific way to argue this? Should I object to the affidavit? In my MTD, I mention that the affidavits are hearsay and reference case law in VT. I actually had a lawyer assist me with this. Is there anything else I should do?

As of right now the judge has not decided on adding a Sears Mastercard to the original complaint and that was a month and half ago. Should I wait and see what is done with my MTD? Others keep telling me that I should immediately file for arbitration because court is too unpredictable.

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SECLG,

What are your thoughts on OC presenting a copy of a statement and an affidavit from a custodian of records for their offense of account stated? How does one defend against something like that?

If no agreement/contract is presented they probobly don't have a case.

What is the amount?

I would send them a BOP: Bill of Particulars.

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when do you send BOP?

At any time, but there is a 15day turn around time, 10 days if you take it to them personally.

So if you have less than 15 days to answer it's too late unless you call the plaintiff and get an extension. You might be able to get enough time to send them a BOP.

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Sorry on the road all day today! The alleged debt is low 5 figures for one card and high 4 figures for another card.

I have already sent my discovery requests to them which they answred saying not relevant or to cumbersome blah, blah blah. I also filed a MTD based on no signed contract and affidavits being hearsay.

Would a BOP still be relevant and helpful right now? How do I file, with the court and the attorney?

Thanks.

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SECLG, is it appropriate in Georgia for the Plaintiff Attorney to send "courtesy copies" of a Motion and order directly to the Judges office for his signature when the 30 day countdown had just begun? The reason I know about this is I just saw in a friends paperwork that they must have been sent the wrong package from the attorney because the one they received was certainly meant for the Judge.

If this practice is acceptable then is it also OK for a Pro se to do the same?

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I know of a couple of attorneys out here in Calif. They offered to represent me at trial.

You can also look to see what NACA has to offer.

What should you pay an attorney to represent you at trail btw. ?

It would be hard to get an attoprney just to show up for trial if you havent prepared the case correctly but if handled correctly $500 is probably reasonable, but there should be many flat fee options like perhaps the attorney helps you represent yourself and then substitutes in for trial, but you are still looking at $1,500 which doesnt make a lot of sense if the debt is under 10k. Certainly anything between 10k and 25k it is worth 2k to have an attorney handle everything.

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SECLG, I am curious as to your answer to LostMind's question!

I am pro se against Chase/Zwicker and they sent a motion with an order to the judge that stipulated very unfair changes to the contract terms. I worked very hard drafting an excellent opposition with help from members here and filed/mailed it in 10 days only to find out the judge had already signed Zwicker's order in 3 days of receipt. Ga Uniform Rule 6.2 states any opposing material should be filed within 30 days but I never had that opportunity!

Any thoughts on this?

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Some judges actually require you send a courtesy copy. But, there is no specific law on the subject. Contact the judge's law clerk or judicial assistant and ask.

Thank you for the info.

I'm looking forward to you getting enough posts so I can PM you my contact information to maybe talk about representing a friend.

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Some judges actually require you send a courtesy copy. But, there is no specific law on the subject. Contact the judge's law clerk or judicial assistant and ask.

Also can a judge sign an order at any time after a motion is submitted if they requested that their motion be decided upon briefs without oral hearing (Rule 6.3 of the Uniform Rules) ? And what if a judge signs two conflicting motions?

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