Amex Discovery Rec'd & Arbitration

[UpstateNY]

1. Who is the named plaintiff in the suit? Amex

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

3. How much are you being sued for? $5,700

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

5. How do you know you are being sued? (You were served, right?) Personally 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? Did DV collectins frim last year.

9. What state and county do you live in? Erie County NY

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Late 2010

11. What is the SOL on the debt? NY - 6 years not sure what Utah is

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

 

Complaint filed, served. Answered with a general denial. DId NOT elect arbitration in answer

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

14. Did you request debt validation before the suit was filed?  Yes

15. How long do you have to respond to the suit? . Did you receive an interrogatory (questionnaire) regarding the lawsuit? Discovery request recently rec'd.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Nothing sent with summons and complaint

 

 

I recently sent election of arbitration to Amex and copied lawyer. Two days after I sent my election, I rec'd RFA, POD request and ROGS. Just a coincidence as I sent the election via US Mail return receipt. Lawyer signed for it after the date of the postmark on discovery package. In the meantime I am working on my MTC Arb.

 

Although I answered the complaint but have not initiated my own discovery, therefore, under NY case law, I haven't chosen a "judiclal forum" and haven't waived arbitration. My quandry is this - how do I go about handling their discovery requests?

 

• Do I claim that I've elected arbitration therefore I object to their requests?
• Do I answer their RFA, POD and ROGS? If yes, have I now engaged in litigation and chosen the "judical forum"?

Side note - I did have another Amex Card back in the 90's (I closed it late 90's1999). Except for a couple of questions where they give the last 4 digits of the current account #, their questions don't specifically identify the current account. They never defined Account (or account) or Card (card.) so I can answer that I received a card from them, etc.

 

NY CPLR does say under penalty for unreasonable denial "Unless the court finds that there were good reasons for the denial or the refusal otherwise to admit or that the admissions sought were of no substantial importance, the order shall be made irrespective of the result of the action."

 

Thanks for your input

 

[howucan2]

Utah is 4 yrs SOL

 

I would file MTC and schedule a hearing for the motion to be heard (if your court allows, b/c sometimes judges rule on paper instead).

 

I would answer each question in this manner for example;

 

INTEROGATORY NO. 1:
State your full name, and all other names you are known by, your complete present home and employment addresses, your occupation, home and employment telephone numbers and your social security number.
 

ANSWER: OBECTION: arbitration clause has been exercised. A mutual agreement on the scope and extent of discovery per the arbitration clause and per the arbitration forum rules has not been reached. Defendant will not be answering until such an agreement is reached between the parties under the contract in arbitration.

 

 

AMEX does confuse the accounts because I had the same happen.

http://caselaw.findlaw.com/ny-civil-court/1502083.html   AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY v. ASSIH

[admin]

@howucan2 is posting good advice.  

[UpstateNY]

 

Utah is 4 yrs SOL

 

I would file MTC and schedule a hearing for the motion to be heard (if your court allows, b/c sometimes judges rule on paper instead).

 

I would answer each question in this manner for example;

 

INTEROGATORY NO. 1:

State your full name, and all other names you are known by, your complete present home and employment addresses, your occupation, home and employment telephone numbers and your social security number.

 

ANSWER: OBECTION: arbitration clause has been exercised. A mutual agreement on the scope and extent of discovery per the arbitration clause and per the arbitration forum rules has not been reached. Defendant will not be answering until such an agreement is reached between the parties under the contract in arbitration.

 

 

AMEX does confuse the accounts because I had the same happen.

http://caselaw.findlaw.com/ny-civil-court/1502083.html   AMERICAN EXPRESS TRAVEL RELATED SERVICES COMPANY v. ASSIH

 

 

I think the case you have the ink for is for NYC Court in Staten Island. If it is the same judge, his opinions tend to quote movie lines. It makes for good reading, but I digress. So are you saying to use the same wording for RFA, ROGS and POD?

[howucan2]

Yes, answer each one by objection and the phrase I used. 

 

The reason is that you exercised arbitration any move you make after you submit your MTC will basically be waiver of arbitration. Also pay close attention to discovery deadline , you don't want to miss it. You're opponent made a smart move to trip you, don't let it.

 

Right now your goal is to take away the court's jurisdiction and remove the case to arbitration.

 

The discovery will be conducted in arbitration by parties' agreement and the arbitrator will set the rules.

 

The case I posted has some good pointers, yes, it's hiliarious, but pay close attention to what killed the case for AMEX.

[UpstateNY]

Quick update.

 

Sent back discovery docs with answer as above. I put together a MTC arb and was in the process of finalizing when I got sick. I was out of commission for a little bit. I went to the county clerk's office on Tuesday to file. However, they (Amex atty) beat me to the punch. They filed for a MSJ. Looks like the OC affidavit was filled out a couple of days after they rec’d my arb election. So now I have to file an opposition to their MSJ and I believe a cross-motion for the MTC arc. The MTC is done as I just have to change it from a Motion to a Cross Motion.

 

My question is this - is the opposition and cross-motion contained in the same pleading? If yes, I haven't been able to find a sample on the site. I don't think they are two separate and distinct pleadings. I came across another credit card case where the Pro Se lost his case and appeal as he had filed for a motion when they hit him with a MSJ as opposed to a cross motion.

 

Can anyone point me in the right direction?

 

BTW, yes I know they committed a FDCPA violation and breach of contract by continuing to litigate. That is for another day. I'm sure if my response is nothing more than FDCPA violation etc., the state judge will say "That's nice. Federal court is down the street and MSJ is granted."

[UpstateNY]

Anyone have any thoughts or suggestions?

[racecar]

http://www.thelangelfirm.com/Debt-Defense-Blog/2011/June/AMEX-and-Zwicker-Associates-discontinue-case-ami.aspx good cases to read on their site.

Defendant opposes Citibank's motion for summary judgment in a credit card collection lawsuit on the grounds that (a) Citibank did not submit any evidence that a written contract existed,

http://www.jdsupra.com/legalnews/memorandum-in-opposition-to-motion-for-s-24281/ Memorandum in Opposition to Motion for Summary Judgment

By Matthew Parham hope this helps you.

[shellieh98]

Where do you find this stuff racecar--very good info for OC suits.

[UpstateNY]

http://www.thelangelfirm.com/Debt-Defense-Blog/2011/June/AMEX-and-Zwicker-Associates-discontinue-case-ami.aspx good cases to read on their site.

Defendant opposes Citibank's motion for summary judgment in a credit card collection lawsuit on the grounds that (a) Citibank did not submit any evidence that a written contract existed,

http://www.jdsupra.com/legalnews/memorandum-in-opposition-to-motion-for-s-24281/ Memorandum in Opposition to Motion for Summary Judgment

By Matthew Parham hope this helps you.

 

Thanks racecar. I've looked at a lot of cases that Jesse Langel has defended. He does bring up a good number of points in his answers. A lot of it is affirmative defenses where in a few cases, it looked liked he threw in everything but the kitchen sink. Some he has won and other not.

 

As for Parham, I was able to figure out the exact case ans was able to view all of the filings. I've sent him an email to get his take on my situation.

 

But Parham's is a striaght opposition to MSJ, he isn't looking for a MTC. What I am trying to determine is if my opposition and cross motion are submitted as one pleading or two?