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Hello,

I’ve been a long time lurker, but this my first time posting. I was sued by American Express Centurion Bank represented by Zwicker on February 23rd, but served to me on May 15th. The suit is for $12k. I filed a general denial answer and counterclaim against Amex. It has now been 21 days since I filed the answer and counterclaim. On June 19th Zwicker transferred the case to Suttell and Hammer who sent me a new dunning letter along with the change of counsel motion. 

I was planning on filing a motion for summary judgement on my counterclaim on Monday and a request for dismissal of plaintiffs case without prejudice. 

I have several questions:

1. Is the change of counsel a delay tactic? Why would they change law firms so close to when their answer to counterclaim was due?

2. Suttell and hammer currently represents Discover card in a case against me. I sent a request for debt validation to them. Haven’t heard back yet. Since I have virtually no assets wouldn’t this be a severe conflict of interest for both clients of Suttell? They would be fighting over the same small amount of assets. 

Any help and advice would be greatly appreciated! 

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48 minutes ago, BoiseGuy said:

Hello,

I’ve been a long time lurker, but this my first time posting. I was sued by American Express Centurion Bank represented by Zwicker on February 23rd, but served to me on May 15th. The suit is for $12k. I filed a general denial answer and counterclaim against Amex. It has now been 21 days since I filed the answer and counterclaim. On June 19th Zwicker transferred the case to Suttell and Hammer who sent me a new dunning letter along with the change of counsel motion. 

I was planning on filing a motion for summary judgement on my counterclaim on Monday and a request for dismissal of plaintiffs case without prejudice. 

I have several questions:

1. Is the change of counsel a delay tactic? Why would they change law firms so close to when their answer to counterclaim was due?

2. Suttell and hammer currently represents Discover card in a case against me. I sent a request for debt validation to them. Haven’t heard back yet. Since I have virtually no assets wouldn’t this be a severe conflict of interest for both clients of Suttell? They would be fighting over the same small amount of assets. 

Any help and advice would be greatly appreciated! 

 What is the basis of your counterclaim? 

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Change of counsel probably happened because you answered their complaint. We experienced same thing - sued by an out-of-state firm which then moved case to a local firm once they saw it wasn't going to be a default judgement.

I don't see a conflict of interest - same thing, again, happened to us where a single firm was handling multiple cases against us. Their though process is, most likely, that you may have no assets now, but with a judgement they can garnish wages, levy bank accounts, take you future lottery windfall, etc.

As you may have seen in other threads, fighting Amex and Discover are losing propositions. They used to absorb large arbitration bills in order to collect a small amount of money - and now they are even trying to recoup arbitration fees. Unfortunately best bet in these cases is to settle or file bankruptcy.

 

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34 minutes ago, BV80 said:

 What is the basis of your counterclaim

1. Fraudulent credit furnishing by American Express. I had 5 accounts with American Express and all accounts had fraudulent payment history placed on them after I defaulted on a business Amex card for $900. They dropped my credit score by 300 points on their merits alone. 

2. Defamation of character by Paul Zwicker in a CFPB filing against a complaint I made. 

3. Filing suit during the period of debt validation without providing debt validation. 

4. The process server caused damage to my house and trespassed even after being asked to leave. Zwicker wouldn’t provide the name of the process server so I could file a police report against the process server. So I am holding Amex liable for vicarious liability. 

5. Voicemails left by zwicker without a mini Miranda. 

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16 minutes ago, Goody_Ouchless said:

As you may have seen in other threads, fighting Amex and Discover are losing propositions. They used to absorb large arbitration bills in order to collect a small amount of money - and now they are even trying to recoup arbitration fees. Unfortunately best bet in these cases is to settle or file bankruptcy.

That’s my intention ultimately. 

I also am going to make Amex pay a lot to get their judgement. They allowed a customer of theirs to chargeback $4400 of product and keep it. That fiasco cost me $7500 between the chargeback and product cost. Small businesses can’t absorb fraud the way a big business can. But fraud is super rampant and these credit card companies want to let their customers steal from merchants but expect those same merchants to be able to pay them still. 

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28 minutes ago, BoiseGuy said:

1. Fraudulent credit furnishing by American Express. I had 5 accounts with American Express and all accounts had fraudulent payment history placed on them after I defaulted on a business Amex card for $900. They dropped my credit score by 300 points on their merits alone. 

2. Defamation of character by Paul Zwicker in a CFPB filing against a complaint I made. 

3. Filing suit during the period of debt validation without providing debt validation. 

4. The process server caused damage to my house and trespassed even after being asked to leave. Zwicker wouldn’t provide the name of the process server so I could file a police report against the process server. So I am holding Amex liable for vicarious liability. 

5. Voicemails left by zwicker without a mini Miranda. 

 Defamation of character how? 

 When did you send a request for debt validation?    To whom did you send it? 

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18 minutes ago, BV80 said:

Defamation of character how? 

 When did you send a request for debt validation?    To whom did you send it? 

I filed a complaint with the CFPB about the process server zwicker and associates hired. I simply wanted them to provide the name of the process server so I could file a police report. They refused. They also didn’t file the affidavit of service until after the answer was required. 

The guy kicked my storm door and wailed on it so long that a neighbor came to see what his problem was. He also tried to open my door and leered into the cracks of the blinds. The dude was scary and clearly crazy. Probably a wannabe dog the bounty hunter. Paul zwicker himself signed the document sent to the CFPB where he perjured himself to the bureau about the entire incident. Since the CFPB is a public database and he included my name on the document I am attempting to hold Amex liable for their attorneys assigned helps malfeasance. 

Zwicker checked my credit report on January 15th, and sent a Dunning letter on the 16th. I received in on January 23rd and replied with priority mail with tracking on January 24th received by zwicker on January 27th. They filed suit on February 23rd. They finally sent a package of Amex statements in May. But filed the suit untimely because of the debt validation request. 

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24 minutes ago, BoiseGuy said:

I filed a complaint with the CFPB about the process server zwicker and associates hired. I simply wanted them to provide the name of the process server so I could file a police report. They refused. They also didn’t file the affidavit of service until after the answer was required. 

The guy kicked my storm door and wailed on it so long that a neighbor came to see what his problem was. He also tried to open my door and leered into the cracks of the blinds. The dude was scary and clearly crazy. Probably a wannabe dog the bounty hunter. Paul zwicker himself signed the document sent to the CFPB where he perjured himself to the bureau about the entire incident. Since the CFPB is a public database and he included my name on the document I am attempting to hold Amex liable for their attorneys assigned helps malfeasance. 

Zwicker checked my credit report on January 15th, and sent a Dunning letter on the 16th. I received in on January 23rd and replied with priority mail with tracking on January 24th received by zwicker on January 27th. They filed suit on February 23rd. They finally sent a package of Amex statements in May. But filed the suit untimely because of the debt validation request. 

Did the dunning letter contain the 30-day notice?

You really need to contact an attorney.

1.  You'd have to show that you have a private right of action for anything Zwicker filed with the CFPB. 

2.  &ou need to show by law or court ruling that AmEx can be held liable for the process server's actions.

3   Do you have estimates for the cost of the damage caused by the process server.

4.  You need to read your state's trespass laws.  If the process server was authorized to serve you, he didn't trespass.

5.  Any FDCPA violations committed by Zwicker is not part of a counterclaim in this debt collection lawsuit because Zwicker is not a party to the lawsuit, and AmEx is not bound by the FDCPA.  Those claims would probably have to be a separate action against Zwicker.

Call an attorney.

 

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6 hours ago, BoiseGuy said:

1. Is the change of counsel a delay tactic? Why would they change law firms so close to when their answer to counterclaim was due?

No it isn't a delaying tactic at all.  They changed counsel because you filed a counter claim stating misconduct on the part of the former firm.  That negates the counter claim now that they changed attorneys.

.................................

6 hours ago, BoiseGuy said:

2. Suttell and hammer currently represents Discover card in a case against me. I sent a request for debt validation to them. Haven’t heard back yet. Since I have virtually no assets wouldn’t this be a severe conflict of interest for both clients of Suttell? They would be fighting over the same small amount of assets. 

It would only be a conflict of interest if they had represented YOU in legal matters.  Yours is not the first case we have seen where a law firm is representing more than one creditor against the same Defendant.  It is not a conflict of interest for the clients either.  The client decides whether to pursue you for the judgement or not, not the law firm.

5 hours ago, BoiseGuy said:

1. Fraudulent credit furnishing by American Express. I had 5 accounts with American Express and all accounts had fraudulent payment history placed on them after I defaulted on a business Amex card for $900. They dropped my credit score by 300 points on their merits alone. 

2. Defamation of character by Paul Zwicker in a CFPB filing against a complaint I made. 

3. Filing suit during the period of debt validation without providing debt validation. 

4. The process server caused damage to my house and trespassed even after being asked to leave. Zwicker wouldn’t provide the name of the process server so I could file a police report against the process server. So I am holding Amex liable for vicarious liability. 

5. Voicemails left by zwicker without a mini Miranda. 

1.  Fraud is a criminal charge and you cannot pursue this in a civil case.  Depending on what they did it may not be fraud at all.  

2.  Not going to fly.  Once you made a complaint to a PUBLIC agency your identity was no longer private.  Not to mention that the CFPB was the wrong agency to file a complaint about the process server's conduct with.  Defamation of character is not a defense to this suit and this part of your counter claim is likely a MAJOR reason that AMEX got a new firm.  

3.  They don't have to prove that you RECEIVED their validation response (which does not include statements) they only have to show a copy of a response and they walk on this.

4.  Not even close on this one in my opinion.  AMEX is not responsible for the process server's actions and if they were within the bounds of ID law you have no claim.  This part of your counter claim is the other major reason that AMEX changed counsel.

5.  If you were already in litigation with AMEX and representing yourself pro-se then voicemails left regarding the case do not require the mini-miranda.

All of this is moot now that AMEX hired a new firm.  Your counter claim(s) will be dismissed.   If there is ANY claim against Zwicker you will have to pursue that separately from this case now.

5 hours ago, BoiseGuy said:

They allowed a customer of theirs to chargeback $4400 of product and keep it. That fiasco cost me $7500 between the chargeback and product cost. Small businesses can’t absorb fraud the way a big business can. But fraud is super rampant and these credit card companies want to let their customers steal from merchants but expect those same merchants to be able to pay them still. 

This is your other major problem.  Unlike consumer debt business accounts are not subject to the FDCPA either.  Second:  if you try to run the expense up with arbitration it will get very expensive for YOU as well.  Consumer rules do not apply to business accounts and the costs are split equally among the parties and if you lose AMEX can be awarded those costs as well. 

5 hours ago, BoiseGuy said:

I also am going to make Amex pay a lot to get their judgement.

Keep in mind that running up the costs and losing the case ultimately gets tagged to YOU.

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@BoiseGuy

To add to what @Clydesmomstated, fraud requires that you prove intent.  You'd have to prove AmEx meant to deceive you.

In regard to the chargeback, was the customer asked to return the product to you?  What is stated in your agreement with AmEx about customers who fail to return products?

And, as Clydesmom pointed out, this is a business debt, so the FDCPA is not applicable, and you cannot hold Zwicker liable.

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On 6/22/2018 at 10:20 PM, Clydesmom said:

No it isn't a delaying tactic at all.  They changed counsel because you filed a counter claim stating misconduct on the part of the former firm.  That negates the counter claim now that they changed attorneys.

.................................

It would only be a conflict of interest if they had represented YOU in legal matters.  Yours is not the first case we have seen where a law firm is representing more than one creditor against the same Defendant.  It is not a conflict of interest for the clients either.  The client decides whether to pursue you for the judgement or not, not the law firm.

1.  Fraud is a criminal charge and you cannot pursue this in a civil case.  Depending on what they did it may not be fraud at all.  

2.  Not going to fly.  Once you made a complaint to a PUBLIC agency your identity was no longer private.  Not to mention that the CFPB was the wrong agency to file a complaint about the process server's conduct with.  Defamation of character is not a defense to this suit and this part of your counter claim is likely a MAJOR reason that AMEX got a new firm.  

3.  They don't have to prove that you RECEIVED their validation response (which does not include statements) they only have to show a copy of a response and they walk on this.

4.  Not even close on this one in my opinion.  AMEX is not responsible for the process server's actions and if they were within the bounds of ID law you have no claim.  This part of your counter claim is the other major reason that AMEX changed counsel.

5.  If you were already in litigation with AMEX and representing yourself pro-se then voicemails left regarding the case do not require the mini-miranda.

All of this is moot now that AMEX hired a new firm.  Your counter claim(s) will be dismissed.   If there is ANY claim against Zwicker you will have to pursue that separately from this case now.

This is your other major problem.  Unlike consumer debt business accounts are not subject to the FDCPA either.  Second:  if you try to run the expense up with arbitration it will get very expensive for YOU as well.  Consumer rules do not apply to business accounts and the costs are split equally among the parties and if you lose AMEX can be awarded those costs as well. 

Keep in mind that running up the costs and losing the case ultimately gets tagged to YOU.

Fortunately this is a personal debt. My debt for a business was low enough that I don’t think they will ever sue for it. If they do, the business will settle it.

My current strategy is filing a petition for writ for quo warranto as American Express centurion bank no longer exists. They filed a lawsuit under a fraudulent corporate existence. They filed for dissolution in May of 2018. Before I was served even. In Idaho the model act has been upheld in the past. The requirement to pay fees to the state to be considered a corporation is law in Idaho. They are dead as far as common law is concerned. I am hoping the district court will find them incapable of holding corporation status by estoppel. Since case law seems to favor actual corporations versus fraudulent ones in some states including Idaho. I am going to make the pond scum at sutter do some actual law work. Something they don’t actually do on a regular basis. Amex failed to pay $20 to the state of Utah to uphold their bank status as a corporation. No reason not to keep appealing the writ as far as I can go. 

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19 hours ago, BV80 said:

In regard to the chargeback, was the customer asked to return the product to you?  What is stated in your agreement with AmEx about customers who fail to return products?

That would be nice wouldn’t it? No. credit card companies are disgusting. They steal from merchants constantly. We have no rights to defend against chargebacks at all. Even if we send everything it comes down to some goon in India deciding against you. Don’t ever believe anyone that says a credit card company is liable for any fraudulent charges. They aren’t ever. The merchant is always liable. The credit card companies authorize purchases freely without vetting anything. Even if you can show verified drivers licenses, IP addresses etc they still pin it on the merchant because they have got to keep up their criminal enterprise for shareholders. There are services that try and insure merchants but they charge as much as 3% on top of credit card processing fees of 3-5% While Amex has a cost of $779M on revenue of $35B in 2017. They basically pay nothing for revenue and everything they receive is profit. They did this through purchasing political capital over the years. 

 For a very small merchant getting 7-10% margins is normal before expenses. So after processing  fees 5% is normal. And super small businesses have amazingly high bureaucratic costs because every possible organization in government wants to waste your time filling out surveys and filing taxes in terribly programmed proprietary systems that never seem to work ever while charging massive penalties for any lateness. 

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12 hours ago, BoiseGuy said:

Fortunately this is a personal debt. My debt for a business was low enough that I don’t think they will ever sue for it. If they do, the business will settle it.

This is confusing because when I asked your basis for your counterclaim, you stated:

1. Fraudulent credit furnishing by American Express. I had 5 accounts with American Express and all accounts had fraudulent payment history placed on them after I defaulted on a business Amex card for $900. They dropped my credit score by 300 points on their merits alone. 

So, the business debt has nothing to do with this lawsuit.   What may have taken place with other accounts has nothing to do with this lawsuitl]

12 hours ago, BoiseGuy said:

My current strategy is filing a petition for writ for quo warranto as American Express centurion bank no longer exists. They filed a lawsuit under a fraudulent corporate existence. They filed for dissolution in May of 2018. Before I was served even.

They filed last month?   Was the lawsuit filed first?  I take it you defaulted before they filed for dissolution.  Where is the information on the dissolution?

12 hours ago, BoiseGuy said:

No. credit card companies are disgusting. They steal from merchants constantly. We have no rights to defend against chargebacks at all. Even if we send everything it comes down to some goon in India deciding against you. Don’t ever believe anyone that says a credit card company is liable for any fraudulent charges. They aren’t ever. The merchant is always liable. The credit card companies authorize purchases freely without vetting anything. Even if you can show verified drivers licenses, IP addresses etc they still pin it on the merchant because they have got to keep up their criminal enterprise for shareholders. There are services that try and insure merchants but they charge as much as 3% on top of credit card processing fees of 3-5% While Amex has a cost of $779M on revenue of $35B in 2017. They basically pay nothing for revenue and everything they receive is profit. They did this through purchasing political capital over the years. 

They may be disgusting, but you chose to utilize their services, didn't you?   Business owners usually understand that not all people are honest.   They understand that there are risks to owning a business. 

If the person who purchased a product from you refused to return it, it was up to you to get it back (unless your agreement with AmEx stated differently).  You could have filed a lawsuit against the purchaser..  Chances are, AmEx was strictly the method of payment.  It was not responsible for the product.

In regard to "vetting", credit card banks issue cards based upon credit worthiness.  It is not their job to determine a person's honesty.  As I stated, there are risks to owning a business.

You're angry because you defaulted on debts and you want someone to blame.  It was the same for me when I had financial issues.  I blamed the credit card companies.  I later realized it wasn't their fault; it was mine.  I CHOSE to use the cards and knew the possible consequences if I ever failed to pay the balances. 

In regard to the FDCPA, AmEx is not liable.  Any claim you have against Zwicker is a separate issue and lawsuit.

Again, you need an attorney.

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