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2butifulkids

Help with oppositon to a motion for Summary Judgement

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I need help. I have a claim that was filed againt me by American Express Centurion Bank World financial Center New york new york.

My first mistake was when I answered the summon I did not include an affirmitive defence. Just replied with a deny to all paragraphs. I sent the answer to the court as well as the lawyer who is supposedly representing them. When sending the letter to the lawyer I also sent them (the lawyer) stating that I wanted copies of all contract and statements of anyone and anything that they would be using in this law suit. This was at the end of Nov.

Then finally on April 8th 2011 I get a letter from the court stating that there would be a Telephone scheduling conference on 5/12/2011 at 8:45 am and that I was suppose to call the # and wait for the Judge to come on the line.

On April 22 I get a package from the lawyer and in it is a letter stating that

In your response to your correspondence dated 12/14/2010 we have verified the underlying debt. Proof of same is enclosed herin with Plaintiff's summary judment pleadings. Pleas not that there hav been no debt holders other then theplaintif American Express centurion Bank, P.O. Box 981535 El Paso Tx

And then there is a copy of a letter that was drafted for The clerk of courts in My county which states

Enclosed for filing please find.

1. Plaintiffs motice of Motion andMotion for Summary judgement,

2. Plaintiffs brief in Support of Motion for Summay Judgement

3. Affidavit of (attorney )in Support of Motion for Summary Judgment

4. Affidavit >>>>>> in Support of Judgment

5. Affidavit of Non-military Service

6. Original and on copy of Finding of Fact in, Conslusions of Law, Order for Judgment and Judgment and self- addressed Stamped encelope: and

7. Our fim check in the amout of $5.00 to docket the judgement.

A hearing in this matter is scheduled before Judge_______ for 5/12/2011

And of course they are all there.

My question is how do I now reply to the Motion for Summary Judgment. I have been researching and gathering things to build my case and now it looks like I will not get to plead my case. I need help.

First My plaintiff is addressed as American Express Centurion Band New your NY. But on the letter sent to the clerk of courts it says Amex P.o. Box 981535 El Paso Tx. Then on the statements they sent me copies of it says Amex los angeles Ca. So Wich includes is attached to the affidavit in Support of Judgement. And it states that the custodian of records is and adult resident of NJ.

Second in there original summons they stated that I failed and refuse to pay the amount owed. Which is false. I never refused to pay back the amount that was owed I was making payments to a United recovery systems and those payments are reflected on the affidavit is support of Judgment. But when asked to have the names of the others involved in trying to collect this debt they lawyer stated no one had the debt but Amex.

Also on the Affidavit in support of Judgement it States after the last payment was processed by the collection agency Program completion. And there was a credit issued. Also after the program completion date the next statement says this account has been cancelled and suspended.

About 2 weeks later I recieved a call on my cell phone for another person stating that they now held the debt and would settle for a little more then half if I could by them in the next couple of days. I said that was enroled in a payment plan and that I had been making payment to them. They said that they where now handling this debt and this is what they could offer. I said that I did not have that kind of money and they preceeded to tell me that I needed to ask someone to borrow the money. A relative or maybe friends so this could be taken care of otherwise it would have to go back to being the original debt amount owed with additional interest charges. I told them that I could not ask my family or friends for the money and she asked me what I could pay. And I had told her the amount that I was paying the other collection agency and that I could continue to make those same payments. She would have to have this much and if I did not have it I needed to borrow it from someone. Finally I hung up on her because she was just being rude.

And then she just continued to call and call but I never answered. I then sent them a check for the amount that I was previously paying and stated that I would be happy to pay them this amount every month. I recieved that check back saying that they no longer had the debt and that any payments could be made to Amex directly.

Then on August 30th 2010 I get a call at work from a man stating to be from a law firm. ( but first I had to hold while they got him on the line.) He stated that he was handling this debt for Amex and that he would like to work with me to start paying on this debt. I told him sure and then he asked me for an amount which would bring this below a certain mark and I of course gave it to him. This is also stated as and agency remit. on the affidavit in support of the motion for Judgment. I never heard from him again.

So now that brings me to where I am today.

what direction should I go. Please help

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I'm not familiar with debt settlement programs. Have you checked your credit report to make sure AmEx still owns the debt. If the debt is merely charged off, they still own it. However, if AmEx's trade line states "sold/transferred", they've sold it.

Also, if you had an agreement with the debt settlement company, have they been sending your payments to AmEx? I don't understand how you would be sued it AmEx was receiving payments.

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On my credit report is does state that it is charged off. So they must still own it. Plus the last couple of pages do state that the payment are there from the collection agencies.

I did not contact any of these agencies they contacted me in lue of Amex so they said.

I am not sure why they just did not continue taking the monthly payments. And why I am all the sudden being sued either.

Edited by 2butifulkids
wanted to add more

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I will be going to court in five days and argue my case. My arguement is that I was making payments to United recovery system. With record and checks to prove it. And they stopped collecting and was contacted by an attorney. After Amex cancelled my account after Program completion. Please Help.

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Guest usctrojanalum

Do you have any legitimate defenses? From what it sounds like Amex has crossed their T's and dotted their I's.

You could try and attack the credibility of the plaintiff's witness.

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You do not have much time to act, but I will offer a few suggestions. You raise some interesting observations of the affiant being in NJ and the attached statements being from CA. You really do not have time to try a MTS.

Let me go in order:

You must submit an opposition to MSJ. To be succesful you need to raise at least one issue of material fact.

The first thing I would do when I got to court, even before the CA has a chance to speak, is to object to the supporting affidavit and the attached documents (statements). Then simply point out to the Judge the discrepencies as you noted here.

Did you ever get a chance to add affirmative defenses? Some Judges will give a pro se some leway and you may be able to slip them in during your opposition to the MSJ. You may also be able to request a continuance for the MSJ hearing and leave of the court to amend your responsive pleading to include your affirmative defense.

Just trying to give you some things to think about. Good luck.

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I did oppose the motion to summary Judgement and that is why we are going to court. The lawyer sent the msj after the scheduling conference was sent and also sent it to my exhusbands address not mine. So I did respond to it.

The telephone scheduling conference was yesterday and the judge did grant a trial because he said obviously there is an arguement. And then he asked if a half hour would be enough time and the p lawyer said that in his opinion it should only take about 15 Min. But the judge kind of ignored him and gave us the half hour.

So her are the 3 things that I am going to try for defense.

like I had said, The attorney's Summons says that they are representing Amex in New york. But when I asked for the names and contact information for the agency remittence payments that where on the statements. The attorney sent me a letter stating that there have been no other debt holders other than Amex El Paso Tx. And then all the statement that came with the sworn affidavid have the return address of American express Los angeles CA. So how can he have personal first hand knowledge it he does not even live in the same state. Also there is a C/O on my papers that where send when I asked for Validation of this debt for a Jeffe & Asher in new york. So My info was probably sent to someone else also and I have no idea who that could have been.

Next the statements that they had sent when I asked for Validation have on them a previous balance but the but the charges that are on the statements themself are minimal in comparison to the final total. They sent no validation to the previous balance.

Also I was making payments the a United recovery Center for Which I have all the documentation for. The payments where coming out every other week and where never late, After the last payment the account was marked as cancelled and stated next to the payment "program complete"

Then the next thing I know I am getting a call from someone saying that they where now representing Amex and that they would settle the debt for such an amount. First I had told them that I was already working with someone and they where already taking payments. Then they said that I had until Monday to come up with this money or I offer would go back to the original amount with interest. When I said that I did not have that kind of money they told me to borrow it from family or friends. When I told them that I could not do that they asked what I could pay and I told them I could continue to make the payments that I had already been making and she said that would not be acceptable to her client.

My confusion is if she was really representing amex. And they where taking the same amount of payments before then why would they not take them then.

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Guest usctrojanalum

Do you have anything else? Those are not really defenses. That basically almost admits that you are liable to them because you admit that you were making payments on the account. At least the judge put it down for a trial, they will have to bring a witness to testify. That is going to be key, I'd find out who the witness will be and see what their qualifications are.

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If I was making payments why did they decide to sue me for something that I was paying on. Why not just continue with collecting the payments instead of sueing me in court for attorneys fees and so forth. How is that legal. If Amex is really still the owner of this dept and they had continued taking the monthly payments. Then the account would be less not more.

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Guest usctrojanalum
If I was making payments why did they decide to sue me for something that I was paying on. Why not just continue with collecting the payments instead of sueing me in court for attorneys fees and so forth. How is that legal.

Unfortunately, Amex does not have to continue accepting monthly payments after the account is in default. What the CC companies will do is send you a final demand.

This final demand letter will request the balance be paid in full with X days (this is sometimes called an accelerator clause). If you do not pay the balance in full within that time, they have the right to sue you regardless if payments are being made or not.

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Wow I guess I am screwed then. Working my a$$ off trying to make things right and still getting sued. Funny how things work out some times.

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Guest usctrojanalum

You still have the trial, when is that set down for? Also ask the other side who their witness is going to be. The atty will tell you.

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Guest usctrojanalum

I would still go, heck maybe a witness for them does not even show up.

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I agree, you should still go.

And I would attack the affidavits. With witnesses, you can ask them specifically if they handled your records or reviewed them and how did they review them.

Did they say which witnesses would be there?

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I did not ask which whitness would be there. I think they where just hoping that the judge would grant there summary of judgment and that it would be over. I really have no idea how it is going to work or what is going to happen. The lawyer was kind of sassy when the judge did not grant the motion and said that there looks like grounds for an arguement.

Can you kind of help me in knowing what to expect and what kind of questions to ask.

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Another question I have is the sworn affidavit shows a previous balance and then a few statements that do have minimal charges and huge payments. There is no statements to prove where the previous balance came from.

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Good job in defeating their MSJ that is a huge step.:) Did you object at the conference to the affidavit? Did they include a user agreement with the affidavit? If so, is their a binding arbitration clause? Is there a state of controlling authority that is different than your own? Don't give up hope you still have a chance and that chance probably went up a little with the defeat of the MSJ. You have to develope a plan of attack and not sit on your heals. No one here can do this for you, but there are some very smart people here that will assist you with knowledge all they can.

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The weakest link to this case is the affidavit, because that is how they lay the foundation to introduce the statements. They fail to do the affidavit and attachments correctly, you object timely and you could win. It will be interesting to see if the CA goes forward. I would not be surprised if he ask for a continuance.

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Unfortunately, Amex does not have to continue accepting monthly payments after the account is in default. What the CC companies will do is send you a final demand.

This final demand letter will request the balance be paid in full with X days (this is sometimes called an accelerator clause). If you do not pay the balance in full within that time, they have the right to sue you regardless if payments are being made or not.

Its actually as pretty devious setup, you've been making payments, its in default, you can't really deny the debt as most people will tell the Judge, I've been making payments as a defense. So the plaintiff gets a default judgment and gets to hit you with court costs and attorney fees, that way they can do the debtors financial records, garnish wages, drain savings accounts and pretty much run ramshod over the debtor.

hmmmm

If it were me I would hang my hat on the implied duty of good faith and fair dealing. I'd plead that the plaintiff violated the doctrine of good faith and fair dealing, search for terms such as discretionary acceleration, lender liability, implied covenant and good faith as well as look over the uniform commercial code both state and federal and see of the lender had liability.

I'd plead that they violated the covenant of good faith by instituing a lawsuit after agreeing to take payments, that I entered the agreement in good faith and that I now considered their actions a deceptive and misleading unconciousbale method of collecting a debt and if a collection agency was involved I'd hit them with the FDCPA cross claim. That granting judgment for the plaintiff would be unjust enrichment in that the attorney gains unfairly, I'd plead that the actors are involved in a conspiracy to defraud debtors and abuse the Judicial system.

In this situation I'd stand on a soapbox and say hell yes its my debt and I was doing the right thing to take care of it and as such I aver that XXX amount is the correct amount I owe , that I'm willing to continue payments in the amount of XXX and request that the case is dismissed as moot. I'd state an amount about 10% less, I'd move that the plaintiff is denied attorney and court costs and I'd push for my FDCPA, and any other claims to be heard to try and reduce their claim even further,

but hey thats just me.

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Good job in defeating their MSJ that is a huge step.:) Did you object at the conference to the affidavit? Did they include a user agreement with the affidavit? If so, is their a binding arbitration clause? Is there a state of controlling authority that is different than your own? Don't give up hope you still have a chance and that chance probably went up a little with the defeat of the MSJ. You have to develope a plan of attack and not sit on your heals. No one here can do this for you, but there are some very smart people here that will assist you with knowledge all they can.

I don't see either one. But not always sure what I am looking for. I have never been in a court room before so I am not sure how this will play out. And when shold I object to the affidavit.

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So here is my plan. I Will be objecting to the sworn affidavit because of the address being all over the place. When should I do that. I know it should be right away but when will I be allowed to speak. I do not want to offend the judge and I certainly do not want to speak out of context. I will also be prepared to to prove that I made payments on this account and that it was cancelled after the program completion with the united. Which is stated on the last statement from amex, not closed not charged off but cancelled. Which according to webster means means to make null and void. So any implyed contrat has been cancelled by amex.

please give me all opinions please

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