kmapro

Served by Zwicker for a Synchrony Bank (Care Credit) account

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Location: Georgia

Long story short...I/We had an emergent situation where we had to have some dental work done. Seeing as how Care Credit so conveniently places their advertisements in locations where insurance may not cover medically related items...we/I signed up. I ended up falling on hard times and this bill fell behind - was not my choice and I was not happy about it, but sh*t happens...

Anyway, I started getting calls from the collection department at Synchrony Bank (originally GE Capital), who is the holding entity (if that's what you call them) for Care Credit. Their collection department was ruthless!! I was getting phone calls at 6:30 AM....10:30 PM....weekends (including Sunday) and even got a call on CHRISTMAS DAY 2013. Initially I was answering the calls and just making a payment when I could...then it got to where I was just ignoring the calls all together.

Finally, early in 2014, I answered one of their calls and told them that I no longer wanted to be contacted by telephone. If they wanted to contact me, they could do it through the mail service. Believe it or not, this worked for the phone calls...and unfortunately, it worked for the mailings too. To the best of my knowledge, i never heard back from them. And...out of sight...out of mind - I eventually forgot about this account.

Then, on December 29th, 2015, I have a Sheriff deputy at my door handing my wife a summons (in my name) and it is some company called Zwicker and Associates - a collection company with "lawyers". They were suing me "On behalf of Synchrony Bank" for the delinquent Care Credit account. A total of $28XX.XX plus legal fees, etc.

I have never been sued by anyone. And, again, TO THE BEST OF MY KNOWLEDGE, I have never even received any type of notice from this Zwicker & Associates prior to being served with this summons. However, since being served, I get a call from their office every other day...which I ignore. Is/Can this be considered harassment?

I even called Synchrony Bank/CareCredit to make sure that they still "owned" the debt and that they did not sell it off to this Zwicker place. I was told that they still own it, but I am not sure.

I have been doing a lot of research on this and I am preparing to enter my answer this weekend...i have until the 28th to have it delivered. Here is the list of "Complaints on account and contract":

1. Plaintiff is a federally chartered savings bank with a principal place of business located in Draper, UT. Plaintiff changed its name from GE Capital Retail Bank effective June 2, 2014 - Lack of Knowledge

2. The Defendant(s) is/are a resident of this state and county subject to the jurisdiction of this court - True

3. The plaintiff established a credit account in the name of the defendant(s). The credit account is identified as Care Credit account number ending in XXXX - claiming Lack of Knowledge because I don't know what my account number is/was

4. An agreement was entered into between Plaintiff and Defendant(s). (See attached record of terms and conditions, Exhibit "A"). Defendant(s) agreed to pay and was obligated to pay the Plaintiff for all extended credit on Defendant(s)'s account. Pursuant to the parties' agreement, plaintiff transmitted to Defendant(s) a monthly billing statement for the account, and Defendant(s) was/were obligated to pay the minimum payment due as set forth on that statement on a monthly basis. (see attached record of account statement, Exhibit "B"). - not sure how to answer this one

5. The Defendant(s) incurred charges on the account - again, not sure how to answer

6. The Defendant(s) has. have defaulted on the repayment terms of said agreement and is indebted to the Plaintiff in the amount of $2960.34 - Lack of Knowledge as I haven't seen a statement in quite some time now

7. Demand was made upon the Defendant(s) for the amount due and owing on the account. Despite such demand, the Defendant(s) has/have failed and refused, and continues to fail and refuse, to pay the amounts due and owing on the account. The Defendant(s)'s failure and refusal to pay the debt, and the amounts due and owing on the account have inured to the benefit and enrichment of the Defendant(s). - False!! I never "refused" to pay anything and they have no proof that my "refusal" of payment has, in any way, shape or form, benefited or enriched my life. They have absolutely no idea what I/we have been going through and this is complete hearsay on their part

8. The Plaintiff has made numerous requests for payment, and the Defendant(s) has/have refused to pay the Plaintiff; whereby, the Defendant(s) has/have been unjustly enriched - Is this not just a repeat of #7?? Again, FALSE...I NEVER refused to pay AND I have not been "unjustly enriched" due to not paying...that is absurd.

Their "Exhibit A" is, in fact, the cardholder agreement, but it is not complete. It is Section II (Rates, Fees and Payment Information) and Section III (Standard provisions - which includes Arbitration (I honestly don't even know what this is)). Neither of which contain my signature

Their "Exhibit B" is one page from the, apparent, last bill hat was sent to me - again, i never recall seeing this - this bill shows a "CHARGE OFF ACCOUNT-PRINCIPALS of $1,313.00 CR" and a "CHARGE OFF ACCOUNT "FINANCE CHARGES" $1,547.34 CR"

So, I feel a little embarrassed that I am trying to fight this small of a charge when I see others on here battling for $20k plus.....but my credit is already trashed and I am still barely holding my head above water. I can't afford garnishment of wages. This already shows as a charge-off on my credit report..I don't want to add a 'Judgement" on top of that.

What should I do?

Remember, I said that this Zwicker place has tried to contact me a minimum of 3 times since I have received the summons. I haven't answered any of the calls, but I am assuming that they want to discuss a settlement....should I give this consideration?

Any help would be gratefully appreciated as I need to either talk to Zwicker and discuss a settlement and/or I need to submit my answer. Should I submit an answer and make the statement that I have entered into an agreement with Zwicker (if that's what happens)?.......

 

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A wicker us a collection law firm, not a junk debt buyer, so I would say syncrony still owns the account.

Since they furnished the account agreement, you could motion to dismiss, and motion to compel arbitration.

 

now since it is their agreement, they might just go to Arb.  On the other hand if you stay in court, you would probably lose anyway.

 

they have arbitration agreements because it protects them from class action lawsuits, not because they want arbitration for every time they bring suit against someone.  It will cost them more to arbitrate than the suit is worth, so they may just let it go.

we don't care how you got to thus place, we're just here to try and suggest ways to get out of it the cheapest way possible.

arbitration with JAMS is where I would go with it.  I would just dispute the debt in its entirety, then if they follow you into JAMS, you can get into things like the ridiculous interest they have charged, a full accounting, etc.. One hearing at a time.  

There are many sample motions floating around.  I would not file an answer, but instead file a motion to dismiss, and motion to compel priviate contractual arbitration.  If the motion gets denied (it shouldn't) you will have additional time to answer.

 

JAMS Arb is capped to the consumer at 250.00.  So if you go this route, the most it will cost you is 250.00.  They on the other hand will have to pay their fees, and the rest of your fees to go.

to file they will be in it 550.00 to file, ( based on the old fee schedule, I hear the prices went up, but I haven't checked.  It may be closer to 900.00 if rumors are true)

then they will have to pay 500. To pick the arbitrator, then 2k pluse for the first hearing, and about that for each additional hearing.

you are entilited to hearings in your home town, and they have to pay the arbitrators cost to go there. It can get very expensive for them.

 

 

 

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Call me dumb, but I don't really know what arbitration is and what it involves. So, while I get the just of what you are saying, I am at a complete loss over the whole nomenclature.

 

If I am understanding correctly, I should file a motion to dismiss and a motion to compel private contractual arbitration. And I am doing this because, all-in-all, it will cost them more than what the original is worth to start with. That being said, the best case would be for them to dismiss.

 

However, can they still fight me on this and take me to court? If I lose at that point, won't that cost (or arbitration) be passed on to me? Like I said, I don't understand arbitration and just need to know what I am getting in to.

Thank you for the input though and I am trying to understand...I promise.

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Arbitration is just another forum that is an alternative to court.  Actually I think it is easier, the rules are more relaxed.  

Read your agreement.  They say they will pay your fees if you ask.  They will also not ask for the costs for arbitration if you are acting in good faith. 

Your claims could be all the things you stated above, haggle about the insurious interest they have charged, et all, so it would not be a case that is not of good faith.

if you go to court, you will probably lose.  If you go to Arb, you will probably lose. But many original creditors are hesitant on small amounts to go to Arb, it's just not good business sense.  The arbitrator would be the one to figure out how much you owe based on the evidence, etc.

you can read about jams on their website, and you would be doing jams for consumers.  You don't want streamlined rules of you can help it.

 

your other alternatives are to file an answer, fight it the old fashioned way, or file an answer, fight it a bit then settle.  You can always settle in jams too.  The further you get into JAMS  or litigation, the better your odds are at a lower settlement amount.  If you ask to settle now, I bet you won't get much more than 80% of the debt.  You could probably get them to 30, or even 20% by fighting back.

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Arbitration is a good strategy, since this is still with the OC.  Synchrony has a nice JAMS clause.

In addition to using arbitration to make their suit go away ..... If you really got calls from them before 8am and after 9pm, then I would be digging out my phone bill records to find those calls as proof and RUNNING to a consumer attorney.   I would file a counter suit against their collection agents who did that to you.

In fact, some attorney's will help you out and take on your FDCPA case as a reverse contingency, meaning that they will sue the collection agents and use your future potential $1k award from that as payment towards fighting Synchrony in court for you, if you wanted to go that route.  In the end you really end up with nothing, but you get the case dropped so if that's all you want, it's an option (if you can find an attorney who will agree to that.  Skarr & Feagle have done similar deals in the past if you wanted to check with them).

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On 1/23/2016 at 8:43 AM, shellieh98 said:

I think the calls were over a year ago, and FDCPA doesn't apply to original creditors...unless it was a hired collection agency.

TCPA applies, if an auto dialer was used.

Either way, arbitration should take care of the suit.

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On 1/22/2016 at 5:37 PM, shellieh98 said:

Arbitration is just another forum that is an alternative to court.  Actually I think it is easier, the rules are more relaxed.  

Read your agreement.  They say they will pay your fees if you ask.  They will also not ask for the costs for arbitration if you are acting in good faith. 

Your claims could be all the things you stated above, haggle about the insurious interest they have charged, et all, so it would not be a case that is not of good faith.

if you go to court, you will probably lose.  If you go to Arb, you will probably lose. But many original creditors are hesitant on small amounts to go to Arb, it's just not good business sense.  The arbitrator would be the one to figure out how much you owe based on the evidence, etc.

you can read about jams on their website, and you would be doing jams for consumers.  You don't want streamlined rules of you can help it.

 

your other alternatives are to file an answer, fight it the old fashioned way, or file an answer, fight it a bit then settle.  You can always settle in jams too.  The further you get into JAMS  or litigation, the better your odds are at a lower settlement amount.  If you ask to settle now, I bet you won't get much more than 80% of the debt.  You could probably get them to 30, or even 20% by fighting back.

^^This is great advise.  Just to add to it, if it was me with a nice JAMS clause like Synchorny has, I would expect to have a settlement agreement with the bank for a mutual dismissal (or a "mutual walk away") where I get out of the deal owing nothing and the agree to drop all further collection activity and refuse to sell off the debt.  That's the kind of leverage a JAMS arbitration can get you, because they bank does not want to keep throwing $3k - $5k PER DAY for hearings just so they can win and maybe collect $3k from you.  They would rather cut their losses and not get into it any deeper.

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OK, so, I called Zwicker to find out more information and see what they were all about. Remember, I haven't talked to these people yet, so I wanted to find out where their minds were at. I also wanted to see what kind of options they were offering. I inquired about settlements and payment arrangements.

Just to find out, I asked what kind of settlement they would consider and what kind of monthly payback they were expecting. I was quickly corrected by her saying that I was talking about two different things: a settlement was a lump sum and could not be done in payments...yet I have seen where others have managed to settle their disputes and make monthly payments.

"You" (don't remember who said it) were right about the settlement they were willing to offer...realistically, they did not want to budge at all. They were offering for me to pay in $1000 lump sum and the rest on monthly payments close to $50/month. This just won't work for me, so i never agreed to anything and hung up the phone.

On 1/22/2016 at 2:07 PM, shellieh98 said:

There are many sample motions floating around.  I would not file an answer, but instead file a motion to dismiss, and motion to compel priviate contractual arbitration.  If the motion gets denied (it shouldn't) you will have additional time to answer.

So, who do I file the motion to dismiss with? Does this go to the court (obviously) AND to Zwicker? 

And...same question applies to the motion to "compel private contractual arbitration"?

I am also assuming that this all has to be done before the 30 day time period of being served??

The arbitration clause is with Synchrony Bank - not Zwicker...does that matter?

How do I get these started? Sorry, I need answers quickly because my 30 days is up on Friday and I am scheduled for a surgical procedure on Thursday...need this taken care of ASAP...

Thank you for all of your help.

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OK - I have called the office of the Superior Court here in my county. They do not have any types of forms and they can't tell me where to go to obtain any kind of forms for these.

I think someone said I could find sample forms on the internet and can just follow those. Any idea where I could find them??

I also inquired as to whether or not I should also submit an answer - she was not very clear with the answer. So, should I submit an answer stating that I am finling a motion to dismiss and a motion to compel private contractual arbitration?

 

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Here is a sample motion that you could file.

You file it with the court, along with a copy of the card  agreement.

You send a copy of both to the attorney for the plaintiff.

Zwicker is the attorney for synchrony, so your good there.

 

 

IN THE COURT OF xxxxxxxx COUNTY

STATE OF xxxxxxxxxx

xxxxxxxxx(“Plaintiff”) vs.

xxxx (“Defendant”) CASE NO. xxxxxxxx

 MOTION TO DISMISS, OR IN THE ALTERNATIVE, TO STAY THE PROCEEDINGS PENDING ARBITRATION, and PETITION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION 

NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about xxxxx xx, 2015, Plaintiff filed its Complaint against Defendant. Defendant denied Complaint.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on or about xxxxxxxx xx, 2016, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).  only if you send a letter, other wise, delete.

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached). change that to exhibit A if you didn't include the letter.

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

(a) ANY CLAIM OR DISPUTE SHALL UPON ELECTION BY EITHER YOU OR US, BE RESOLVED BY BINDING ARBITRATION.

( b THE ARBITRATOR SHALL RESOLVE ANY CLAIMS, INCLUDING THE APPLICABILITY OF THIS ARBITRATION AND LITIGATION SECTION OF THE VALIDITY OF THE AGREEMENT OR ANY PRIOR AGREEMENT.   this a and b is the part that needs to match your agreement exactly in wording.  The FAA stuff below leave as is.

5. 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”.

6. The Supreme Court Ruling, decided April 27, 2011, AT&T 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 purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

7. The Defendant elects arbitration to settle this dispute.

WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted this day xxxxxxx xx, 2016

_______________________________

xxxxxxxxxxxx

ORDER TO DISMISS OR STAY CASE AND COMPEL PRIVATE/CONTRACTUAL ARBITRATION

Case No. xxxxxxx : COURT OF XXXXXXX COUNTY

PLAINTIFF

VS.

xxxxxxxxxx

The foregoing Motion having come before the Court and having been duly considered, it is hereby ORDERED:

GRANTED / DENIED

This _____ day of _________________, 2016

By: ________________________

Judge of the xxxxxxx County Court

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no you do not submit an answer with a motion to dismiss.  You file this.  Ask the clerk when you file if you must schedule a hearing for your motion.  If not, then you just wait.  If so, schedule the motion, and send notice of the motion to the attorney of the plaintiff.  

If you don't need to schedule a motion, you wait until the court rules on it.  If you schedule a hearing, you go to the hearing and the judge will rule on your motion.  

go to the JAMS website and start reading up on the JAMS procedure.  It will not cost you more than 250.00 in JAMS, the plaintiff will have to cover all of the other costs. When the judge grants your compel, open a case with JAMS, then wait to see what the other side will do.  If they go forward, then we will go from there.

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Thank you so much shellieh98.

OK, so I am not filing two separate motions (one for dismissal and then one for arbitration), I am simply filing one motion for dismissal with a request for arbitration...

I am sorry, but I have a few more questions...

1. If I remove #2 (as you stated), do I need to mention the request for JAMS at some other point? I haven't sent a letter requesting arbitration and do not have intent to, given the time frame I am under. 1(b - if you will)...Will this hurt me if I do not send in the request to the attorney for arbitration or will the motion be sufficient enough? I will have to do some research on the JAMS part - because I have absolutely NO idea what that means.

2. OK, I get that all of the "xxxxxxxx" are places where I fill in information. However, just under #7 (above) there is line and then a row of "xxxxxxxxxxxx". Am I supposed to put something there or was that just a space filler?

3. After filing the motion for dismissal and request for arbitration, I should send a copy to the attorney as well. I am assuming that this should be sent certified mail and it must arrive before the end of day on Friday (This Friday makes my 30th day since being served)

In reviewing the options here, I have several different outcomes that I could be facing; 

A) The attorney/Synchrony will decide to just drop the case as it will end up costing them more than what they could gain by proceeding (This would be the optimal outcome)

B)- As we get closer to actual arbitration, it is possible that the suing party (attorney and/or Synchrony) will be willing to settle for pennies on the dollar. Since the motion for dismissal has bought some time, it might be more feasible to pay the lump sum for a settlement at that time. (This outcome is not terrible, not as good as A, but not terrible)

C) The suing party decides to take this to arbitration. Now, I am out the $250.00 for JAMS and I lose in arbitration...so, I am back where I started plus being out the $250.00. (This is the absolute worst case scenario (from what I know) - BUT, I have had time to save up some money to go toward all of this and may not be too bad off)

I am aware that there are other options out there, I am just touching on the main ones.....My main goal is to keep them out of my paycheck (garnishment) and out of my bank account and/or tax returns...if I can do this AND get them to dismiss, I will be oh so happy!!!

As I have mentioned, I have never been sued by anyone...my wife has and I was the one who talked with the collection service regarding the case (after my wife gave consent of course) and I ended up caving (lack of knowledge on how this all worked) and have been paying that back for about 2 years now.

I am learning and trying t take all the mental notes that I can. THANK YOU AGAIN for all the help and guidance...

 

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Kmapro, are you able to give us an update on how your case went? 

I just received a summons today for the exact same thing. 

Wondering if the arbitration filing and Jams worked for you or if you have any other advice. 

Thank you! 

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