Amex lawsuit again corporation and me personally (California)

[caligirl420]

Hello, I'm being sued by Amex lawyers for the business card debt. The lawsuit is against me personally and against the company I owe (two defendants listed on the case). I plan to file Chap.7 personal bankruptcy, but for personal reasons I would like to delay this filing for about a month or two. 

As you can see from my answers below, the company was served via our registered agent and I was not served at all.

 

Here are several questions I have so far:

A. Can Amex get a default judgement in this case if I personally was not served (only the corporation)? 

B. Can they get a default judgement against the corporation but not against me (since I was not served)?

C. Will they continue their attempts to serve me personally considering that they filed the declaration of non-service?

D. Does the 30-day clock for default judgement start ticking from the day the corp. was served or do both of the defendants (the corp. and me) need to be served for them to get a default judgement?

 

 

 

 

1. Who is the named plaintiff in the suit? American Express

 

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) I would prefer not to list it here

 

3. How much are you being sued for? $75K

 

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?) Registered agent of the company was served

 

6. How were you served? (Mail, In person, Notice on door) The lawsuit is against me and the corporation I owe. The corporation was served via its registered agent; I was not served yet.

 

7. Was the service legal as required by your state?  I guess it is 'yes' for the corp and 'no' for me.

 

8. What was your correspondence (if any) with the people suing you before you think you were being sued? Only a couple of phone conversations and letters from Amex requesting payment.

 

9. What state and county do you live in? CA

 

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 4 months ago

 

11. What is the SOL on the debt? To find out: 4 years

 

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).

 

According to the court's website, there is a declaration of non service filed 2 days ago for me AND

proof of service filed for the company same day.

 

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) NO

 

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

 

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? 

- The lawsuit was filed end of August

- Corporation was served 08/28

- Proof of service for the company was filed with the court Sept 10th

- Declaration of non-service for me personally was filed with the court Sept 10th

 

 

 

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

Statement and card agreement

[willingtocope]

Need to clarify a couple of things:

 

First, I assume you meant to say "...the company I OWN..." rather than "...the company I owe...".

 

Second, was your company incorporated?

 

Third, did you personally guarantee the account?

[caligirl420]

Need to clarify a couple of things:

 

First, I assume you meant to say "...the company I OWN..." rather than "...the company I owe...".

 

Second, was your company incorporated?

 

Third, did you personally guarantee the account?

 

 

1) yes, thank you for the pointing this out: "the company I owe" (I'm the owner)

2) the company is a C-corp

3) this is a business card, but I did guarantee it personally.

[willingtocope]

Okay, honestly I'm not sure if the fact that they haven't served you personally yet puts a halt to things.  My guess is no, since they went ahead and filed the paperwork.

 

Have you contacted a BK lawyer yet?  If so, you might want to ask him/her.  If not, you probably want to move ahead quickly.

[racecar]

 elect arbitration its in the credit agreement

https://www.americanexpress.com/us/content/cardmember-agreements/all-us.html#this credit agreements

 

http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/ strategy and steps of arbitration

 

The best part is

If arbitration is chosen by any party, neither

you nor we will have the right to litigate that

claim in court or have a jury trial on that

claim.

 

 

 

 

 

You or we may elect to resolve any claim by

individual arbitration. Claims are decided by a

neutral arbitrator.

If arbitration is chosen by any party, 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

pertaining to any claim subject to arbitration.

Arbitration procedures are generally simpler

than the rules that apply in court, and

discovery is more limited. The arbitrator's

decisions are as enforceable as any court

by a court. Except as set forth below,

the arbitrator's decision will be final and

binding. Other rights you or we would

have in court may also not be available in

arbitration.

Initiating Arbitration

Before beginning arbitration, you or we must

first send a claim notice. Claims will be

referred to either JAMS or AAA, as selected

by the party electing arbitration. Claims will be

resolved pursuant to this Arbitration provision

and the selected organization's rules in effect

when the claim is filed, except where those

rules conflict with this Agreement. If we

choose the organization, you may select the

other within 30 days after receiving notice of

our selection. Contact JAMS or AAA to begin

an arbitration or for other information. Claims

also may be referred to another arbitration

organization if you and we agree in writing or

to an arbitrator appointed pursuant to section 5

of the Federal Arbitration Act, 9 U.S.C. §§ 1-16

(FAA).

We will not elect arbitration for any claim you

file in small claims court, so long as the claim

is individual and pending only in that court.

You or we may otherwise elect to arbitrate any

claim at any time unless it has been filed in

court and trial has begun or final judgment has

been entered. Either you or we may delay

enforcing or not exercise rights under this

Arbitration provision, including the right to

arbitrate a claim, without waiving the right to

exercise or enforce those rights.

Limitations on Arbitration

If either party elects to resolve a claim by

arbitration, that claim will be arbitrated

on an individual basis. There will be

no right or authority for any claims to

be arbitrated on a class action basis or

on bases involving claims brought in a

purported representative capacity on behalf

of the general public, other cardmembers

or other persons similarly situated.

 

 

[willingtocope]

@racecar Is the arbitration clause in the "business" card agreement?

[racecar]

yes

[caligirl420]

@racecar

Thank you for the advice. I spent quite some time yesterday reading about arbitration and cannot quite understand if it will do any good in my case. 

My plan was to file for personal bankruptcy and right now I'm just trying win additional time for that purpose (to delay bankruptcy for a couple of months). So I was planning to file a general denial to avoid default judgment and file for BK later on.

• Do you think I'd be able to win some time with arbitration?
• Will I be able to file for bankruptcy even when the arbitration is initiated?
• Are there any additional advantages in arbitration in comparison to the general denial in MY case (with BK ahead)?

p.s. As I understood from the discussion you linked to, the main purpose of going to arbitration for me would be to try to scare off the credit card company with high arbitration fees, which I don't think will work well in my case since the debt is pretty hight.

[racecar]

yes

yes

yes

Arbitration can cost them a lot of money they may not want to spend.

I have seen some go as high as 150.000.00 put up a fight with lots of discovery and motions you may scare them away.

My guess American express sold of the debt after they deemed it uncollectible.

Debt buyers or debt buying law firms will file in the name of the original creditor.

This is why you will need lots of discovery to find this information out.

[sillymonkey]

Amex has a JAMS clause. If their contracts are similar, there will also be a 3 panel appeal clause so you can get even more time with an appeal (while costing them more time & $$). You can def. get time for your case. Mine's taking about 5-6 months for it to get to the Hearing. However, my arbitrator made sure to pick a date that everyone could make. YMMV.

If you appeal, it will draw it out even longer.

For that amount, Amex will follow you to arb and pay quickly.

The only downside for you is you might lose your Rosenthal Act for CA where OCs have to follow CA rules. More likely that not, the arb will allow UT law to apply (possibly to the whole case). I'm arguing both CO & UT law for my end for parts outside the alleged contract because he didn't quite specify how he was going to apply UT law. YMMV

 

How many CAs contacted you? Did they use Zwicker? What is the interest rate on the CC? The Amex arb clause clearly states that debt collectors are included in the arb clause so you should be able to pull them in as well. They will fight that but if you argue it well, it should be allowed. YMMV.

 

Did you keep all your collection paperwork etc? Believe it or not, some of these collection mills have a ton of violations.

 

This OC will fold if you put enough pressure on all of them (many complaints, motions, objections). Of course, the bigger the alleged debt, the more pressure you'll need to add.

[sillymonkey]

Be careful. The above only applies for consumer debt. Yours is a business card. If you used the card mostly for household then it should qualify as consumer use (and FDCPA applies). This OC doesn't seem to care but JAMS will. Thread carefully