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Zwicker Motions to Strike Affirmative Defenses...Help

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We are being sued by Discover (OC) through Zwicker. We answered the complaint in a timely manner, although I don't think it was the best answer but doing the best we can. This forum has been incredible, but it's still overwhelming.

It was the typical Zwicker complaint, verbatim of others on this board; and we answered with "no knowledge" on all except one that Plaintiff is a Delaware State Bank.

There were two Exhibits attached; one being the credit card agreement (Exhibit A)and one statement (Exhibit B) which was not referenced otherwise in the complaint.

We then added one Affirmative Defense, and two Defenses, which we thought was the right thing to do. Zwicker came back with the typical response that we have "three unsupported defenses".

The defenses are: 1. There is an arbitration agreement 2. The Plaintiff did not produce any validation of debt when requested and 3. The Plaintiff did not act in good faith nor in a timely manner.

We reserved the right to amend and add and our "WHEREFORE" we asked the complaint be dismissed with prejudice.

Amount being sued for is <$8K.

Quick background: We had worked out a settlement agreement and were sent papers, but they said they would advise their client and negotiate with them once payment was rec'd... and we were not comfortable with that. We asked them to review and then rec'd an offer for a totally different amount, higher, to which we again responded and again requested validation. Then came the summons.

After reading the "rules" for procedure, I believe we can elect arbitration at any time; but now I'm wondering.

Since answering their complaint, they have made a motion to strike our affirmative defenses.

I've read and re-read the threads, but I'm just not sure on this next step, and especially if we've stepped on our own toes.

It appears that what we should do first, at this point, is to send them a notice to elect arbitration. However, do we, at the same time, make a MTC Arbitration?

Again, this is all so overwhelming but wow, what a great forum. It's helped a great deal toward being able to sleep at night!

Thank you for any information you can contribute.

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Those are not valid defenses. ARB is not used as a defense, it is "elected" per the cardholder agreement, then used to dismiss the case if granted. Debt validation goes out the window once you are sued. It may form the basis for an FDCPA claim, (not sure, never did one, check with Coltfan) The good faith and timely manner is not a defense. You'd be better off to submit an amended answer if you are within the time frame. Either that, or don't bother to object, just let the defenses be stricken. They will be anyway. Each state is different when it comes to arbitration. If you get too far into litigation, the court will deny you. Florida is pretty much anti consumer from what I see on the forum; bad judges who could care less if you have a case, etc. That and Michigan.

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You said they had an agreement and a statement? Where's the bogus 'fill in the blanks' Affidavit?

Linda7 has the 'How To' thread on arbitration. Personally, I followed it exactly and just won my motion to compel arbitration (same OC as you).

I'm probably only one step ahead of you, so I don't know what comes next in preparing for arbitration. I'm going to check Linda7's latest posts as well.

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arbitration is not a defense, its an alternative forum to resolve disputes. If you want to or wanted to use arbitration, that boat may have sailed though i don't know much about arb in general. you would have to file a motion to compel arbitration.

at what point did you request validation? when zwicker first dunned you months ago, or did you request it last week?

also, the plaintiff isnt really required to work in good faith, and im a bit confused about the timely manner aspect.

the plaintiff can do whatever they want right or wrong. if they do something wrong, you have to call them on it, otherwise the court isn't going to notice it or care.

did discover include an affidavit?

how recent was the statement they sent?

when was last payment? is it outside sol?

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Wow. Thanks so much.

1. It appears I can amend a pleading ONCE as a matter of course and anytime before a responsive pleading is served.

2. There was no Affidavit, nor was a statute cited.

3. The statement they included was Jan., 2012 and last bill paid was Sept., 2011.

4. We've asked for validation a total of four times, beginning in Jan., 2012.

5. I'm re-reading Linda7's wonderful thread, but I don't seem to see exactly when I should file a MTC Arbitration if I haven't notified Plaintiff/Zwicker of my election to arbitrate.

6. As for "in good faith and timely manner"... we had an agreement but when we rec'd it, it was not what we agreed to. Then they sent us another amount, higher about a week later and did not respond to any of our inquiries, which also contained our validation requests. But, you're absolutely right... They never agreed to act in good faith. :>)

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Wow. Thanks so much.

1. It appears I can amend a pleading ONCE as a matter of course and anytime before a responsive pleading is served.

2. There was no Affidavit, nor was a statute cited.

3. The statement they included was Jan., 2012 and last bill paid was Sept., 2011.

4. We've asked for validation a total of four times, beginning in Jan., 2012.

5. I'm re-reading Linda7's wonderful thread, but I don't seem to see exactly when I should file a MTC Arbitration if I haven't notified Plaintiff/Zwicker of my election to arbitrate.

6. As for "in good faith and timely manner"... we had an agreement but when we rec'd it, it was not what we agreed to. Then they sent us another amount, higher about a week later and did not respond to any of our inquiries, which also contained our validation requests. But, you're absolutely right... They never agreed to act in good faith. :>)

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What they sent you appears to be a settlement proposal. This is not part of the lawsuit and is not usually admissible in court. They can lie and will, just to try to trick you into sending a check absent a written agreement. That check then reduces the amount you owe and they continue to sue for the rest. Never underestimate the duplicity of these people. I would NOT stand next to them in a thunderstorm, or within a hundred yards of a church. Lucifer himself will come in person for these guys.

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You definitely brought on a smile and chuckle!

So... I will not amend, same end anyway when Motion to Strike is granted. (Unless the fact there was no affidavit is of any true consequence which I didn't state in my Answer)

I will also send a letter immediately stating our election to arbitrate and I'll wait a couple of weeks and then file a MTC Arb and stay, pending arbitration. And, I'll include an Order for the motion, as I understand Judges like that. :>)

Hopefully, they will go away as others have without this hassle. If not, BK to follow and life continues.

What really bites is that we're in this mess not because we were frivolous. No, it's because we robbed Peter to pay Paul trying to ride out this economic debacle and keeping current as best we could.

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Just watch out for BK. It isn't some automatic thing and it can run up huge legal bills which are after the fact, and you cannot file again for 7 years.

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Well they did you a favor by wanting to strike those "affirmative defenses" which really are not affirmative defenses. Arbitration can somewhat be one but not the way you used it. You would have to argue that you already had binding arbitration settle the dispute and then they are coming at you again.

They did you a favor by moving to strike. I'd concede the motion and then move onto actually defending the suit.

If you demanded timely DV and they did not provide the minimum required by law, not what you demanded!!!! but required by law, then sued you, you could go after the attorney (not discover) for an FDCPA violation.

Arbitration will be a toss up. Just find out what the court you are in considers "being in default of the arbitration clause" That is fancy for saying waiting too long.

Actually some arbitration clauses say you can elect arbitration at anytime and will even go so far as to specifically lay out that even if there has already been a lawsuit started.

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