Creditzy

AmEx filed Motion for Summary Judgement in FL against me

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I'm living in Florida.

Sept 2012: I was served with complaint by American Express for $12K owed in CC debt.

Oct 2012 I submitted an answer claiming the defendant is without knowledge regarding the allegations.

11/26/12 According to the county Clerk's website, AmEx filed:

  • Motion for Summary Judgment
  • Notice of Filing
  • Affidavit of Costs
  • Affidavit of Account

11/27/12 I received a large packet of paper including (not sure how these match up with above list exactly):

  • Plaintiff's Motion for Summary Final Judgement
  • Certification of Plaintiff's Attorney
  • Affidavit
  • Notice of Filing Affidavit in Support of Plaintiff's Motion for Summary Final Judgment
  • Exhibit A - stamped on 1st page of CC agreement
  • Exhibit B - stamped on one page of hundreds of CC statements (2007-present)

Questions:

1. Would filing a Motion to Strike the Affidavit(s) based on a technicality end the case if successful? Should I try something else?

2. Should I expect to have a trial? If so, when would it typically occur?

3. If I file bankruptcy, would this end the case? Do I need to file bankruptcy before a Final Judgment is rendered?

4. If I want to try to negotiate a lower payment to end the case who do I contact? What should I offer?

Notes:

I have a client that owes me $35K in consulting fees since 2010. He has been in prison in another country for the last year so I will probably never see any of the money he owes me... Maybe I can file a suit against him or his US company? In the mean time, I was racking up CC debt and now am nearly broke. I rent (my house just went to my wife as our divorce was finalized last week) and I own a 10 year old van.

5. What assets are at risk if I lose this case? My bank accounts? My Van? My wages? (I am currently self employed, but my 10 year old business is near death and I'll probably have to get a new job soon).

6. If I were to somehow get a judgement against my client for $35K, and AmEx gets a judgement against me for $12K, can one be used to offset the other?

Thanks for any help or guidance!

Edited by Creditzy

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"If I were to somehow get a judgement against my client for $35K, and AmEx gets a judgement against me for $12K, can one be used to offset the other?"

Answer: NO!!!

Are you not showing up for court?,if you dont they will win everything they want by default judgement.That means you will be washing dishes for these guys for years to come.

Your interest in a vehicle is exempt up to $1,000 of its value.

This means that you can protect $1,000 of the value of your vehicle from being taken by a levy to satisfy a judgment by following the correct exemption procedure. If a judgment creditor or Sheriff takes your vehicle

under a levy and the value of the vehicle is $1,000 or less, you may be entitled to the return of your vehicle.Your affidavit of exemption showing

your entitlement to an exemption must be timely filed with the Court

and the Sheriff.

Edited by racecar

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You will need to respond to plaintiffs Motion for Summary Judgment

LVNV FUNDING vs GINEVRA MOEHRLIN read this case you can beat them

NCLC | NCLC

Edited by racecar

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Racecars 20 questions

1. Who is the named plaintiff in the suit?

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for?

4. Who is the original creditor? (if not the Plaintiff)

5. How do you know you are being sued? (You were served, right?)

6. How were you served? (Mail, In person, Notice on door)

7. Was the service legal as required by your state?

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

9. What state and county do you live in?

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

11. What is the SOL on the debt?

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

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1. Who is the named plaintiff in the suit?

**American Express, FSB

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

**Zwicker & Associates, P.C.

3. How much are you being sued for?

**$12K

4. Who is the original creditor? (if not the Plaintiff)

**American Express

5. How do you know you are being sued? (You were served, right?)

**Served

6. How were you served? (Mail, In person, Notice on door)

**In person

7. Was the service legal as required by your state?

**Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

**None.

9. What state and county do you live in?

**Lee County, Florida

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

**May 2012

11. What is the SOL on the debt?

**I don't know what the Statute of Limitation on the debt is... I doubt it's expired yet.

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

**See my original post. They are suing me and my business

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

**I filed an answer to their original summons stating that I was "without knowledge regarding the allegations". I have not contacted the big 3 credit bureaus.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

**no. not sure what debt validation is...

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

**I responded to the original summons. Now they have filed a Motion for Summary Judgement. I don't know how long I have to respond or how long before I would have to go to court. Where would I find this? The Clerk's website simply lists what documents were filed. The only paperwork I've received is from the Plaintiff/Attorney/Assistant Custodian of Record. To date, I have received no paperwork from the court.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

**See original post. 2 affidavits, business card agreement (Exhibit A), CC statements from 2007-present (Exhibit B), Motion for filing Summary Judgement, Certification of Plaintiff's Attorney

Edited by Creditzy

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You will need to respond to plaintiffs Motion for Summary Judgment

LVNV FUNDING vs GINEVRA MOEHRLIN read this case you can beat them

Thanks Racecar. I followed your link and found a 3 page PDF of LVNV vs MOEHRLIN. It appears the Plaintiff's Final Judgment was denied mainly because they did not attach contracts and statements to their complaint.

However, in my case, the plaintiff attached the card holder agreement and monthly statements as Exhibits.

1. However, the agreement attached doesn't have my signature anywhere (as it's the boiler plate agreement that, I assume, is agreed to when first using the card?).

2. Also, even though marked as EXHIBIT A and EXHIBIT B, the affidavits don't refer to any Exhibits - only referring to "the document(s) attached hereto".

Would either of those be a valid defense?

Edited by Creditzy

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"the plaintiff attached the card holder agreement and monthly statements as Exhibits"Thats great we will use it against them.

American Express has a arbitration clause in the credit agreement that should make Zwicker go away,they wont want to pay for it.

Credit card agreement database search result - Consumer Financial Protection Bureau

JAMS Arbitration, Mediation, and ADR Services | Arbitration Agreement | Arbitration Clauses | Arbitration Rules

http://www.creditinfocenter.com/forums/arbitration/314030-strategy-steps-arbitration.html

read this link strategy-steps-arbitration this makes the junk debt buyer go away fast.Read it over it is easy to file.just dont engage in discovery.

Any claim shall be resolved, upon the election by

you or us, by arbitration pursuant to this

Arbitration provision and the code of procedures

of the arbitration organization to which the claim

is referred in effect at the time the claim is filed

(code), except to the extent the code conflicts

with this Agreement. Claims shall be referred to

either JAMS or the American Arbitration

Association (AAA), as selected by the party

electing to use arbitration. If our selection of

either of these organizations is unacceptable to

you, you may select the other organization within

30 days after you receive notice of our selection.

For a copy of the code, to file a claim or for other

information, contact either JAMS (1920 Main St

#300, Irvine, CA 92614 or jamsadr.com) or AAA

(335 Madison Ave, New York, NY 10017 or

adr.org).

In addition to the organizations listed above,

claims may be referred to any other arbitration

organization that is mutually agreed upon in

writing by you and us, or to an arbitration

organization or arbitrator(s) appointed pursuant

to § 5 of the Federal Arbitration Act, 9 U.S.C. §§

1-16, as it may be amended (FAA), provided that

any such organization and arbitrator(s) will

enforce the terms of the Restrictions on

Arbitration subsection set forth below.

Significance of Arbitration

IF ARBITRATION IS CHOSEN BY ANY PARTY

WITH RESPECT TO A CLAIM, NEITHER YOU

NOR WE WILL HAVE THE RIGHT TO LITIGATE

THAT CLAIM IN COURT OR HAVE A JURY

TRIAL ON THAT CLAIM. FURTHER, YOU AND

WE WILL NOT HAVE THE RIGHT TO

PARTICIPATE IN A REPRESENTATIVE

CAPACITY OR AS A MEMBER OF ANY CLASS

OF CLAIMANTS PERTAINING TO ANY CLAIM

SUBJECT TO ARBITRATION. EXCEPT AS SET

FORTH BELOW, THE ARBITRATOR’S

DECISION WILL BE FINAL AND BINDING.

NOTE THAT OTHER RIGHTS THAT YOU OR

WE WOULD HAVE IF YOU WENT TO COURT

ALSO MAY NOT BE AVAILABLE IN

ARBITRATION.

Payment of Fees

You will be responsible for paying your share, if

any, of the arbitration fees (including filing, administrative,

hearing and/or other fees), but

only up to the amount of the filing fees you

would have incurred if you had brought a claim

in the state or federal court closest to your

billing address that would have had jurisdiction.

We will be responsible for any additional arbitration

fees. At your written request, we will

consider in good faith making a temporary advance

of all or part of your share of any arbitration

fees. You will not be assessed any arbitration

fees in excess of your share if you do not

prevail in any arbitration with us.Continuation

This Arbitration provision shall survive

termination of your Account; voluntary payment

of the Account balance in full by you; any legal

proceeding by you or us to collect a debt owed

by the other; any bankruptcy by you or us; and

any sale by us of your Account (in the case of a

sale, its terms shall apply to the buyer of your

Account). If any portion of this Arbitration

provision, except as otherwise provided in the

Restrictions on Arbitration subsection, is

deemed invalid or unenforceable, it shall not

invalidate the remaining portions of this

provision.

Edited by racecar

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IN THE DISTRICT COURT OF MY COUNTY FLORIDA

Plaintiff

Banks name

Vs

Defendant

John Doe

Case Number

MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION AND DISMISS OR IN THE

ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION

COMES NOW the Defendant my name appearing Pro Se for its Motion to Compel Private Contractual Arbitration with Banks Name and as grounds thereto states the following:

1. That on or about November 28, 2012, Plaintiff filed its Complaint against Defendant.

2. Defendant moves this court to compel binding Private Arbitration with Jams based on the terms and conditions of the Banks name Credit Card Agreement (see Exhibit A, attached).

3. The parties are bound by the Banks name Credit Card Agreement. The Arbitration Agreement states among other things:

(a) YOU AND WE AGREE THAT EITHER YOU OR WE MAY, AT EITHER PARTY SOLE ELECTION REQUIRE THAT ANY CLAIM BE RESOLVED BY BINDING PRIVATE ARBITRATION.

(B) IF YOU OR WE ELECT PRIVATE ARBITRATION OF A CLAIM,NEITHER YOU NOR WE WILL HAVE THE RIGHT TO PURSUE THAT CLAIM IN COURT OR BEFORE A JUDGE OR JURY.

© YOU OR WE MAY ELECT ARBITRATION UNDER THIS ARBITRATION

PROVISION WITH RESPECT TO ANY CLAIM, EVEN IF THE CLAIM IS PART OF A LAWSUIT

BROUGHT IN COURT. YOU OR WE MAY MAKE A MOTION OR REQUEST IN COURT TO COMPEL

PRIVATE ARBITRATION OF ANY CLAIM BROUGHT AS PART OF ANY LAWSUIT.

(d) CLAIM MEANS ANY CLAIM, CONTROVERSY OR DISPUTE OF ANY KIND OR NATURE BETWEEN YOU AND US.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.

4. The Federal Arbitration Act (FAA) 9 USC Section 1-2 provides:A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration, a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract transaction, or refusal, shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

5. The Supreme Court Ruling, decided April 27, 2011, ATT MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored. "We have described this provision as reflecting both a liberal federal policy favoring arbitration,Moses H. Cone , supra, at 24, and the fundamental principle that arbitration is a matter of contract,Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010 (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ." Furthermore, "The principal purposeof the FAA is to ensure that private arbitration agreements are enforced according to their terms. Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. Animal Feeds international Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA text. Section 2 makes arbitration agreements valid, irrevocable, and enforceableas written (subject, of course, to the saving clause); requires courts to stay litigation of arbitral claims pending arbitration of those claims in accordance with the terms of the agreement; and requires courts to compel arbitration in accordance with the terms of the agreement upon the motion of either party to the agreement . "

6. The Defendant elects arbitration with jams to settle this dispute.WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration with Banks Name pursuant to the Cardmember Agreement and to dismiss Plaintiffs complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted this day 11/28/2012

my name

Defendant, pro'se

JAMS Arbitration, Mediation, and ADR Services | Rules Clauses | ADR-Rules-Procedures

http://www.jamsadr.com/files/Uploads...ion_Demand.pdf print out three

http://www.jamsadr.com/files/Uploads...submission.pdfprint out three

Banks name credit agreement (3) copies 1 for you 1 for the court 1 for the plaintiff

you need to send a letter electing arbitration to both the attorney and the creditor

us mail cmmr and send a certificate of service

This Site is only provided for entertainment purposes only and as a public resource for general information.If you need legal advice call your Attorney.

Edited by racecar

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DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINT

Comes now the Defendant, pro se, and submits the following answer to Plaintiff's complaint.

1) Defendant ADMITS he is a resident of this county, but has elected private contractual arbitration pursuant to the terms of the governing cardholder agreement, which takes away both sides litigation rights in court.

2) Defendant is without information or knowledge sufficient to form an opinion as to the truth of Plaintiff's paragraphs (2-5) and must respectfully DENY Plaintiff's remaining allegations. Defendant holds the Plaintiff to provide the strictest proof thereof.

AFFIRMATIVE DEFENSES

1) Defendant states there is an arbitration clause in the cardholder agreement that takes away both parties litigation rights if elected by either party. Defendant has already notified Plaintiff's attorney of his election to arbitrate pursuant to the terms of said agreement and has filed a motion to compel arbitration with the court. This court lacks jurisdiction and proper venue to decide this matter as Defendant has exercised the binding arbitration agreement.

2) Plaintiff failed to state a claim upon which relief can be granted. Plaintiff has brought suit against Defendant as "suit on account", but has not provided the contract or any other valid and sufficient proof of agreement on behalf of the Defendant with the Plaintiff, whether expressed or implied.

3) Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

WHEREFORE, Defendant respectfully asks the Court to dismiss this case, or stay this case pending arbitration pursuant to Capital One Bank agreement.

Respectfully submitted this day, March ____, 2012

Your Name Typed, Defendant

Your Address

VERIFICATION BY AFFIDAVITPersonally appeared before me the undersigned who on oath states that the facts set forth in this ANSWER/AFFIRMATIVE DEFENSES are true and correct to the best of his knowledge and belief.

_______________________________________

Your Name Typed Here and sign above, Defendant Pro Se

Witness my hand and official seal this the _________ day of __________, _________.

(SEAL)

____________________________________

Notary Public

My Commission expires:

____ / ____ / ________.

I CERTIFY that I mailed a copy of this ANSWER/AFFIRMATIVE DEFENSES to:

Attorney's Name Plaintiff's attorney

Attorney's Address

By: Your Name Typed, Defendant Date: March _____, 2012

This Site is only provided for entertainment purposes only and as a public resource for general information.If you need legal advice call your Attorney.

Edited by racecar

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If you want arbitration, you need to send a letter electing arbitration to both the attorney and to American Express to the address that they show in the arbitration provision.

If you want to elect and initiate, I'd send something like this. *The quotes are from a 2012 American Express agreement. Make sure to send it CMRR.

Your Name/Address

Their Name/Address

_________________, 2012

Claim or Case #_____________________

NOTICE OF ARBITRATION ELECTION

Pursuant to American Express cardholder agreement, I ELECT arbitration via JAMS to resolve all of our disputes.

As per the agreement, IF ARBITRATION IS CHOSEN BY ANY PARTY

WITH RESPECT TO A CLAIM, NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM IN COURT OR HAVE A JURY TRIAL ON THAT CLAIM.

The agreement further states,This Arbitration provision is made pursuant to

transactions involving interstate commerce and shall be governed by the FAA. The arbitration shall be governed by the applicable code, except that this Agreement shall apply if there are any conflicts.At your written request, we will consider in good faith making a temporary advance of all or part of your share of any arbitration fees.This Arbitration provision shall survive termination of your Account; voluntary payment of the Account balance in full by you; any legal proceeding by you or us to collect a debt owed by the other; any bankruptcy by you or us; and any sale by us of your Account (in the case of a sale, its terms shall apply to the buyer of your Account). If any portion of this Arbitration provision, except as otherwise provided in the Restrictions on Arbitration subsection, is deemed invalid or unenforceable, it shall not invalidate the remaining portions of this provision.

As of this notice you must dismiss or stay any and all actions in regards to the alleged debt pending the result of the Arbitration.

___________________________(Your Name Typed)

Certified Return Receipt #_________________________

This Site is only provided for entertainment purposes only and as a public resource for general information.If you need legal advice call your Attorney.

Edited by racecar

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Looks like he already answered the complaint, racecar, so arbitration probably won't be allowed. Instead he needs to focus on writing his opposition to summary judgment now.

Did you request discovery from the plaintiff or just answer the complaint?

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Racecar, from what I've seen on this site, I thought arbitration was frowned upon although I'm not sure why... But I would like to know if I still have this option or not.

sahm1998, you are correct, I answered the complaint, but did not request discovery. What is that, exactly? Their attorney sent me a large packet of papers (see original post). I assume it's a copy of what was submitted to the court??

Also, how much time do I have and how do I find out if I have a pending court date. Will the court communicate with me? I've received nothing from the court so far and looking on their web site, I don't see anything about a court date (maybe I'm missing it). Will they notify me?

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"I thought arbitration was frowned upon although I'm not sure why... But I would like to know if I still have this option or not."

Arbitration is frowned upon because people dont know about the banks secret weapon,people say it sucks and dont know why they say it sucks.It works.Do you think zwicker will want to pay for it.arbitration is very expensive.

The banks have threatened people with it for years,and it worked, people would settle real fast with the Bank and never arbitrat.Then someone on our side read the fine print in the agreement,Now banks are removing arbitration from their agreements.You have to pick what works best for you.

Answer to your question go down to the courthouse see the clerk ask for your file,read file,ask clerk when next court date is.

Edited by racecar

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Do as racer car said, do it asap.

If discovery has not been initiated you have a good chance to remove this from court.

11th Circuit (FL) has a two prong test for arbitration (which is the lowest in all district) but here is a case you can cite to it is in FL:

Google and read it.

Citibank, N.A. v. Stok & Associates, P.A., (387 Fed. Appx. 921 (11th Cir. 2010), cert .granted, 131 S. Ct. 1556 (2011 SCT).

In this case there is an opinion saying since the party (Citibank) did not utilize the court in making decision then arbitration is appropriate.

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