IdWrknGrl

Zwicker for Amex Complaint (Idaho) after DV requested/ignored

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Background on this case.....Multiple collection agencies began to contact me in August 2010. Finally, Zwicker and Assoc. received the file and sent their collections letter to me in October of 2010. I replied back with an immediate DV letter. I sent another one a month later and another one in February of 2011. All DV letters have been ignored despite being sent Certified/Return Receipt. In the mean time, other collection agencies have called or written letters regarding the same debt.

Complaint filed from Zwicker and served on my spouse 18 days ago. I have 20 days to respond.

Zwicker complaint alleges the following:

1. Amex is chartered in and has a principal place of business in Salt Lake City, UT. Plaintiff is suing on a debt owed to it by Defendants located in the State of Idaho.

2. Defendants at all times pertinent hereto were residents of County of XXXX, State of Idaho.

3. Plaintiff is the owner of an account ending in XXX owed by the Defendant, which principal account balance currently totals $10K with interest at the highest legal rate from and after the filing date of the complaint, with interest continuing to accrue at this rate until the date of judgement.

4. That said account was due and payable within thirty (30) days after receipt of a statement of account.

5. That Defendant is in breach of said Account Agreement by reason of their failure to make all required monthly payments in a timely fashion. As a result of such breach, Plaintiff has declared the entire amount due and payable in full.

6. That the Plaintiff, by reason of Defendant's failure to pay the account above stated, has been required to retain the services of counsel and has retained the firm of Zwicker & Associates PC to prosecute this action. Further, that should Plaintiff be successful in this action, that Defendant be responsible for Plaintiff's cost incurred herein.

Judgement they are requesting:

1. $10K together with prejudgement and post judgement interest thereon;

2. Plaintiff's reasonable attorney's fees incurred herein pursuant to applicable law;

3. For Plaintiff's costs incurred herein;

4. For such other and further relief as to the Court may appear just.

I drafted my response using the information I gathered from this board, sent a Certified copy to the Plaintiff's "attorney" (Zwicker) and went to the court to file. It was at that time that I was informed that there was a form to fill out with my answers and my Affirmative Defenses.

So far the form is easy....."List the Complaint Paragraphs you completely agree with" "List the Complaint Paragraphs you completely disagree with" "Disagree because you have too little information" etc.

I did check the box where I request that the complaint be dismissed.

Where I'm stumbling is the Affirmative Defense part. Of course, the account number, amount, my name are all wrong or incomplete. The DV letter was ignored, they refer to documents that are not attached. And it's due tomorrow by 5 pm.

I would appreciate any advice/encouragement etc that you can provide.

Edited by IdWrknGrl

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Rule 8(B). Defenses - Form of denials.

A party shall state in short and plain terms the defenses to each

claim asserted and shall admit or deny the averments upon which the

adverse party relies. If a party is without knowledge or

information sufficient to form a belief as to the truth of an

averment, the party shall so state and this has the effect of a

denial. Denials shall fairly meet the substance of the averments

denied. When a pleader intends in good faith to deny only a part or

a qualification of an averment, the pleader shall specify so much

of it as is true and material and shall deny only the remainder.

Unless the pleader intends in good faith to controvert all the

averments of the preceding pleading, the pleader may make denials

as specific denials of designated averments or paragraphs, or may

generally deny all the averments except such designated averments

or paragraphs as the pleader expressly admits; but, when the

pleader does so intend to controvert all its averments, including

averments of the grounds upon which the court's jurisdiction

depends, the pleader may do so by general denial subject to the

obligations set forth in Rule ll.

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Rule 8©. Affirmative defenses.

In pleading to a preceding pleading, a party shall set forth

affirmatively accord and satisfaction, arbitration and award,

assumption of risk, contributory or comparative negligence,

discharge in bankruptcy, duress, estoppel, failure of

consideration, fraud, illegality, injury by fellow servant, laches,

license, payment, release, res judicata, statute of frauds, statute

of limitations, waiver and any other matter constituting an

avoidance or affirmative defense. When a party has mistakenly

designated a defense as a counterclaim or a counterclaim as a

defense, the court on terms, if justice so requires, shall treat

the pleading as if there had been a proper designation.

Rule 8(d). Effect of failure to deny.

Averments in a pleading to which a responsive pleading is required,

other than those as to the amount of damage, are admitted when not

denied in the responsive pleading, except those necessary to

sustain an action for divorce. Averments in a pleading to which no

responsive pleading is required or permitted shall be taken as

denied or avoided.

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Affirmative defenses forces you to prove that defense. I would focus more on areas within the complaint that so not comply with rules of procedure or rules of evidence, where you are putting the Plaintiff on the defense right from the start. Look at Idaho laws and rules and see if the complaint even complies with Idaho requirements. The basics of an answer are the same for every state. Look at the thread I started titled "GE Money Bank is Suing My Wife". If you want an example for an answer.

I would use the DV letters as a FDCPA counter-claim asking for statutory damages of $1,000.

I am not an attorney, just here to help.

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1. Zwicker & Associates did not provide any documentation with their complaint proving they were retained by American Express Centurion Bank as its representative in this matter.

2. Plaintiff has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

3. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint 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.

4. 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.

5. Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

6. 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.

7. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or

Counterclaims at a later date 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.

I wanted to keep it neat and clean, but is that advisable?

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I would say no on #4 because CC contracts need not be expressly in writing. Oh, they'll need to show all of the terms and conditions and show that they applied to you, but there does not need to be a contract with your signature and their signature on it. When they provide some bill stuffer with new terms and you use the card, you've agreed to their terms.

For #1, you need to see how Idaho words it, but you are fundamentally saying that the law firm does not have the authority to bring the action in the name of and on behalf of the plaintiff. Is it a defense? Sure. Now you have to ask them to provide the retainer. If they object to your request on the grounds that the retainer is privileged information, they are wrong and there is case law to support this. If you are going to use this one, look to see how your states rules and statutes deal with the authority of attorneys.

For #2, you are basically stating that they don't have any admissible evidence. Somebody may come in and tell me that I'm wrong, but I believe that #2 is part of #3.

From Conley V Gibson in the US Supreme court:

...the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.

Now you need to set about proving that they aren't going to submit enough admissible evidence.

For number 5, you are saying that the alleged contract does not include the provision for attorney's fees. You are implying knowledge of the contract here, and need to be really careful.

Number 6, I don't know about, but I would love to see it work.

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Is Zwicker representing Amex or are they the plaintiff? If they are only representing Amex, then you can not use the FDCPA against them in this action, however you can use it in a seperate case against them directly. If this is the case you can either file after the conclusion of this case or take them on now.

If it was me I would file a seperate case when I file my answers since it is a slam dunk that you can file a SJ motion for pretty quickly. But then I really enjoy being in court. :)

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#1 won't work. Attorneys are assumed to represent who they say they represent.

Before using #5, I'd check my credit report. If AMEX still owns the account, their entry will merely state "charged off". That means AMEX is the Plaintiff, AMEX would not be assigned the account.

I agree with Usagi there, too. You're implying knowledge of the agreement. I don't know if this would be an affirmative defense, but you could state something like "Plaintiff has failed to provide a copy of the applicable cardmember agreement establishing that the inclusion of attorneys fees is allowed."

I'd also include "Plaintiff has failed to provide evidence sufficient upon which a claim can be granted."

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I just pulled my newest credit report.....

Amex still owns this debt despite the 6 different CA's that have contacted me about it over the last 15 months.

I'm surprised to see that Amex still owns this considering how long they have been letting it sit. I dutifully sent a letter to each and every CA that contacted me, but never received a single paper back except an apology letter from one CA and a written promise to remove their account from my credit report.

I have removed #2 and #5 from my Affirmative Defenses, thank you for the heads up.

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Look at my post for some ideas

My wife is getting sued by GE Money Bank...Want Feedback

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You can replace #5 with what BV80 suggested. At some point, you have to notify the court that they don't have a right to collect attorney's fees. Maybe the court will notice this itself, maybe it won't. Don't assume that it will.

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Take it from someone who deals a lot with Zwicker, look at the following. Usually in their complaints they don't attach anything as evidence. In most states there is probably a civil practice rule that states you must attach a copy of the contract or bill to the complaint as evidence of the breach of contract. Most of your defenses you listed don't mean much. Zwicker is a debt collection agency with a few attorneys working in offices around the country. They have a set software program that cranks out the same pleadings time after time. Typically, they don't send you a letter first with the required FDCPA language in it or label it on their complaint. So you argue violation of FDCPA and tell them they must provide verification and evidence of the debt. Always argue statute of limitations as a defense. They may not be able to prove it with a lack of evidence. Look at their credit card agreement. AMEX Bank states applicable law is State of Utah or Federal Law, which can mean a different statute of limitations. As soon as you answer their computer will kick out discovery to you to answer. Make sure you answer their Requests to Admit within the applicable time frame or they will use that against you in their Motion for Summary Judgment. Like most of the debt collector firms they don't want to go to trial and many times don't show up. They are looking for default judgments (which they get a lot), Consent judgments with the pro-se debtor, or judgment from a motion for summary judgment without a hearing. So you want to try and settle with them right after you file the answer. Good Luck

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#1 won't work. Attorneys are assumed to represent who they say they represent.

Before using #5, I'd check my credit report. If AMEX still owns the account, their entry will merely state "charged off". That means AMEX is the Plaintiff, AMEX would not be assigned the account.

I agree with Usagi there, too. You're implying knowledge of the agreement. I don't know if this would be an affirmative defense, but you could state something like "Plaintiff has failed to provide a copy of the applicable cardmember agreement establishing that the inclusion of attorneys fees is allowed."

I'd also include "Plaintiff has failed to provide evidence sufficient upon which a claim can be granted."

I am of the belief that if you can argue a good enough reason to ask for the retainer, you should ask for it. Retainers are considered facts and not privileged information in the federal court system. If they can't cough it up, you can now start claiming that they aren't authorized to take action against you. If they cough it up and it doesn't authorize them to sue, only to send dunning letters, they aren't authorized to take the action. It is almost guaranteed that the attorneys will not like having to hand it over one bit. The information that I have on the retainer between one large bank and one "high volume creditor's rights litigation firm" also shows a relationship that is more than just a standard attorney-client relationship and the law firm was given very broad discretion on how to run cases. I expect that it is going to be similar with most of the paper mills that OCs and JDBs actually do authorize to take people to court. In short, any torts against the law firm can turn into torts against the OC because the OC authorized the actions by giving broad discretion to lawyers acting in their name.

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Thanks to this forum, I was able to answer my Summons and 1st set of Interogs without too much trouble. Now, I've received a non-certified letter from Zwicker&Asshats that says that my answers don't comply with Idaho court rules and "in fact, I find them to be deliberately evasive. Please review the instructions and definitions and submit revised answers within ten days of this letter".

I've reviewed the IRCP until I'm blind. Did I miss something or are they just trying to scare me?

Here is the bulk of my Interog answers:

Interrogatory No. 1: Did you have a credit account with Plaintiff?

Response: Defendant objects on the grounds that it is overly broad and unduly burdensome to the extent it seeks documents or records that are not within the current knowledge, possession, custody or control of the Defendant. Plaintiff’s request should be accessible to Plaintiff from Plaintiff's own files, from documents or information already in Plaintiff's possession.

Answered 2-11 with the same answer:

Interrogatory No. 2: State the account number of your credit account with Plaintiff.

Interrogatory No. 3: State the approximate date you opened the credit account with Plaintiff.

Interrogatory No. 4: Did you ever use the credit account you had with Plaintiff.

Interrogatory No. 5: Did you receive monthly statements from Plaintiff for your credit account?

Interrogatory No. 6: Did you make payments to Plaintiff after you received monthly statements for your credit account?

Interrogatory No. 7: Did the monthly statements you received from Plaintiff for your credit account, itemize the charges on the credit account?

Interrogatory No. 8 : Did the monthly statements you received from Plaintiff for your credit account, itemize the payments on the credit account?

Interrogatory No. 9: State when you stopped making payments on your credit account with Plaintiff.

Interrogatory No. 10: State the amount you owed on your credit account with Plaintiff when you stopped making payments on the account.

Interrogatory No. 11: Did you ever report to Plaintiff that there was any inaccuracy in any monthly statement for your credit account?

Response: Defendant objects to the Plaintiff’s Interrogatory No. 2 as it assumes there is an account being sued upon where no account has been fully identified as of yet by the Plaintiff or their attorneys. It is burdensome to the extent it seeks documents or records that are that are not within the current knowledge, possession, custody or control of the Defendant. The Defendant cannot provide what is requested.

Without waiving his objection, the Defendant at this time reserves the right, if need be, to alter Defendant's answer.

Interrogatory No. 12: If your response to Interrogatory No. 11 is in the affirmative, describe every such inaccuracy in detail.

Response: Defendant’s answer to Interrogatory No. 11 was not in the affirmative.

Interrogatory No. 13: If your response to Interrogatory No. 11 is in the affirmative, did you report the inaccuracy to the Plaintiff in writing?

Response: Defendant’s answer to Interrogatory No. 11 was not in the affirmative.

Interrogatory No. 14: Is $X,XXX the result of your use of your credit account with Plaintiff?

Again....same thing....WHAT ACCOUNT??

Interrogatory No. 15: Unless your response to Interrogatory No. 14 is in the affirmative, state all facts on which you base any denial.

Response: : Defendant objects on the grounds that it is overly broad and unduly burdensome to the extent it seeks documents or records that are not within the current knowledge, possession, custody or control of the Defendant. Plaintiff’s request should be accessible to Plaintiff from Plaintiff's own files, from documents or information already in Plaintiff's possession.

Interrogatory No. 16: If your response to Request for Admission No. 3 is other than an unqualified admission, state, to your best belief, the balance on this account as of the date of the last payment on the account.

Response: Defendant objects to the Plaintiff’s Interrogatory No. 16 as it assumes there is an account being sued upon where no account has been fully identified as of yet by the Plaintiff or their attorneys. It is burdensome to the extent it seeks documents or records that are that are not within the current knowledge, possession, custody or control of the Defendant. The Defendant cannot provide what is requested.

Without waiving his objection, the Defendant at this time reserves the right, if need be, to alter Defendant's answer.

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You responded to all their requests by stating they were "overly broad and unduly burdensome to the extent it seeks documents or records that are not within the current knowledge, possession, custody or control of the Defendant."

Look at request #1. What's overly broad about that? It's very clear. In addition, they're not asking you for any documents.

Overly broad and unduly burdensome would apply if they asked you to provide copies of all the cc statements you ever received. That's unduly burdensome.

If they're not asking for documents, then you can't state that they're requesting documents.

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Wow. I really messed up. So an amended answer needs to be sent off ASAP. But....what in the world should I write? They have never given me any information on account number, have an incorrect address on me, and my name incorrect on the suit. They did not answer my DV request nor have they answered my own Interogs yet.

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Wow. I really messed up. So an amended answer needs to be sent off ASAP. But....what in the world should I write? They have never given me any information on account number, have an incorrect address on me, and my name incorrect on the suit. They did not answer my DV request nor have they answered my own Interogs yet.

If the account was yours, you have to answer honestly. But I understand your situation.

Did they provide an account number? How are the address and your name incorrect?

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No idea if the account even belongs to me. They only provided me with the last 3 digits and ignored all my written requests to validate the debt. They spelled my last name wrong and sent it to multiple addresses that I've never lived at before finding me in the phone book.

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No idea if the account even belongs to me. They only provided me with the last 3 digits and ignored all my written requests to validate the debt. They spelled my last name wrong and sent it to multiple addresses that I've never lived at before finding me in the phone book.

If it were me, I'd answer whichever ones I could specifically answer. Otherwise I might state:

1. At this time, Defendant does not recall an account with the Plaintiff, and no documentation has been provided by Plaintiff. However, Defendant is searching her records and will respond if any information is located.

2. Defendant is searching her records and will respond if any such information is located.

You get the idea. I'm sure others will have suggestions.

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No idea if the account even belongs to me.

Really? Are you being truthful with us? People come here all the time and say they can't remember running up ten grand on a credit card. It isn't believable, sorry. Judges think the same way. Did you ever apply for or recieve an Amex card? You can bet that Amex has information that proves you did, unless this is some address glitch or identity theft. You tell us, we have no clue. What is your defense? As for debt validation, all they have to provide is the name of the OC, their address, and the amount sought.

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