Zwicker and Discover Motion for Summary Judgement

[wildfive]

Zwicker on behalf of Discover Bank sued me for approx 11k in the county of riverside, superior court of california 

They only attached one credit card statement and no contract or application.

I foolishly said i had an open account with them but denied all other actions.

I served them discovery to them on 7/23/19 (admissions, interrogatories both special and formal) and documents 

Today is 8/12/19 and was served with motion for summary judgement with all credit card statements and a declaration from someone that claims they work for discover in New Albany, Ohio.

Is there any way to fight this?

they have never sent a contract or application

their witness/the person who signed the declaration is in ohio. I thought in california, their witnesses have to be within 150 miles of jurisdiction. 

"Discover Bank" sued me

statements are for Discover It Card

exhibit A was discover cardmember agreement 

exhibit B was all the statements since origination of account

 

 

 

[wildfive]

@calawyer Can you shed any light on this for me? You have been a crucial part of my court journey, but i responded to this case before I found this forum..

HUGE THANK YOU FOR ALL YOU CONTRIBUTE> I am certain you help a lot of people. ❤️ 

Same to @ASTMedic. I have used your very smart tactics on a current case  

 

[Clydesmom]

1 hour ago, wildfive said:

they have never sent a contract or application

There is NO CONTRACT in a credit card case and the courts know it.  They will not be looking for one.  When you received the card did you sign a contract and send it back?  NO.  The card agreement and terms clearly states that by accepting the card, using it, and making payments you agree to the terms and conditions.  That is the contract.

As for the application since you admitted the account is yours they no longer need one.  The application would only be beneficial to you if you were alleging identity theft.

1 hour ago, wildfive said:

exhibit A was discover cardmember agreement 

exhibit B was all the statements since origination of account

They can win with this.  

[wildfive]

Even if the card was opened in 2012 and the cardmember agreement was dated 2014?

and thank you for your input 

 

[wildfive]

On 8/12/2019 at 7:55 PM, Clydesmom said:

They can win with this.  

Do you have any recommendations as to how I can oppose the motion for summary judgement? 

There are still outstanding issues where they did not follow the laws for collecting debt by continuing to call my employer and divulge details of debt etc. 

[wildfive]

Sorry. After looking at s lot of your posts, you mention filing MTC FOR ARBITRATION. Is is too late in the process to file one?

[Clydesmom]

52 minutes ago, wildfive said:

Even if the card was opened in 2012 and the cardmember agreement was dated 2014?

The card agreement that was in force when you defaulted is the one that is relevant.   If you defaulted after that 2014 agreement became effective it is the correct one.

50 minutes ago, wildfive said:

There are still outstanding issues where they did not follow the laws for collecting debt by continuing to call my employer and divulge details of debt etc. 

Unfortunately the FDCPA does not apply to an original creditor like Discover.  Even if the law firm did violate Discover will simply dismiss Zwicker and hire another firm forcing you to purse the violation against them separately.

43 minutes ago, wildfive said:

After looking at s lot of your posts, you mention filing MTC FOR ARBITRATION. Is is too late in the process to file one?

The worst that can happen is the court denies it but Discover will not back down from it.  They will follow you in despite the expense.

[wildfive]

16 hours ago, Clydesmom said:

Unfortunately the FDCPA does not apply to an original creditor like Discover.  Even if the law firm did violate Discover will simply dismiss Zwicker and hire another firm forcing you to purse the violation against them separately.

Just to clarify, if discover was the one calling the place of employment, they are not held under the same FDCPA laws?

 

Quote

 

The worst that can happen is the court denies it but Discover will not back down from it.  They will follow you in despite the expense.

 

@Clydesmom May I ask what you would do if you were in our circumstance? as direct as you can be so I can go at this full force 

I SINCERELY APPRECIATE YOUR KNOWLEDGE!!!

[Clydesmom]

8 hours ago, wildfive said:

Just to clarify, if discover was the one calling the place of employment, they are not held under the same FDCPA laws?

Correct.  The FDCPA applies to third party collectors NOT to the creditor that has the direct relationship.  i.e. the original creditor.  Discover is not bound by FDCPA law.

8 hours ago, wildfive said:

May I ask what you would do if you were in our circumstance?

Try for arbitration to buy time knowing it is only doing that.  Find a way to settle for a lump sum payment and make it go away.

[wildfive]

7 hours ago, Clydesmom said:

Try for arbitration to buy time knowing it is only doing that.  Find a way to settle for a lump sum payment and make it go away.

Thank you so much. That is what I leaning towards too  I sincerely appreciate your help!!!!

[wildfive]

@Clydesmom 2 more questions if I may?

Discover filed it as a short/fast track trial. Therefore, no court ordered mediation and no CMC. 

Can I still amend my response to make it a standard trial should the motion to compel get denied? Discover is NOT responding to request for admissions or any other discovery. 

Which is what you consider the best for arbitration, JAMS or AAA? Discover disclosure says you can do either 

[wildfive]

@Clydesmom I found new information regarding California rules of the courts regarding declarations.

DeclarationsUnder Penalty of Perjury, pursuant to California code of Civil Procedure $ 98 ( hereinafter "section 98 Declaration") Compl. 29 Under certain circumstances, CCP Section (* permits such declaration in lieu of direct testimony, but it requires the declarations's affiant has a current address within 150 miles of the place of trial, and that the affiant is available for service during the 20 days immediately prior to trial. 

Discovers affiant for the declaration clearly states the affiant(one who swore and signed the delcaration) was executed at New Albany, Ohio. Trial and jusridiction is in Riverside, California. 

I believe I can get the motion for summary judgement dismissed based on the facts that their declaration and ONLY supporting evidence is invalid as per the california rules of the court. 

[BV80]

6 minutes ago, wildfive said:

@Clydesmom I found new information regarding California rules of the courts regarding declarations.

DeclarationsUnder Penalty of Perjury, pursuant to California code of Civil Procedure $ 98 ( hereinafter "section 98 Declaration") Compl. 29 Under certain circumstances, CCP Section (* permits such declaration in lieu of direct testimony, but it requires the declarations's affiant has a current address within 150 miles of the place of trial, and that the affiant is available for service during the 20 days immediately prior to trial. 

Discovers affiant for the declaration clearly states the affiant(one who swore and signed the delcaration) was executed at New Albany, Ohio. Trial and jusridiction is in Riverside, California. 

I believe I can get the motion for summary judgement dismissed based on the facts that their declaration and ONLY supporting evidence is invalid as per the california rules of the court. 

CCP 98.  

A party may, in lieu of presenting direct testimony, offer the prepared testimony of revelant witnesses in the form of affidavits or declarations under penalty of perjury. The prepared testimony may include, but need not be limited to, the opinions of expert witnesses, and testimony which authenticates documentary evidence. To the extent the contents of the prepared testimony would have been admissible were the witness to testify orally thereto, the prepared testimony shall be received as evidence in the case, provided that either of the following applies:

(a) A copy has been served on the party against whom it is offered at least 30 days prior to the trial, together with a current address of the affiant that is within 150 miles of the place of trial, and the affiant is available for service of process at that place for a reasonable period of time, during the 20 days immediately prior to trial.

Was an address provided that was within 150 miles from the court?

@sadinca

@RyanEX

[wildfive]

5 minutes ago, BV80 said:

Was an address provided that was within 150 miles from the court?

They did NOT provide an address on the declaration. Only that the declaration was executed in New Albany, Ohio.

They filed several documents with their motion for summary judgement. 

1. Plaintiffs' Declaration of Kristoffer Kasson (litigation support coordinator for Discover)  WHICH WAS EXECUTED IN NEW ALBANY, OHIO

included in the declaration executed in New Albany, Ohio was exhibit A: cardmember Agreement and Exhibit B: Account records of transactions. 
2. Their evidence in support of its motion for summary judgement ( which is only the declaration and exhibits part of the declaration that was executed in New Albany, Ohio.

3. Plaintiff's statement of undisputed material facts in support of it's motion ( which were based only on the declaration mentioned above)

4. Proposed order  granting Motion for summary judgement

5. plaintiffs memorandum of points and authorities in support of its motion. 

6. motion for summary judgement with only 2 affirmative defenses. 

    a) it is an open book account based cardmember agreement provided as exhibit A of aforementioned declaration 

    b) monthly statements provided as exhibit B of aforementioned declaration. 

I REALLY APPRECIATE ALL OF YOUR HELP ❤️ 

 

[BV80]

15 minutes ago, wildfive said:

They did NOT provide an address on the declaration. Only that the declaration was executed in New Albany, Ohio.

They filed several documents with their motion for summary judgement. 

1. Plaintiffs' Declaration of Kristoffer Kasson (litigation support coordinator for Discover)  WHICH WAS EXECUTED IN NEW ALBANY, OHIO

included in the declaration executed in New Albany, Ohio was exhibit A: cardmember Agreement and Exhibit B: Account records of transactions. 
2. Their evidence in support of its motion for summary judgement ( which is only the declaration and exhibits part of the declaration that was executed in New Albany, Ohio.

3. Plaintiff's statement of undisputed material facts in support of it's motion ( which were based only on the declaration mentioned above)

4. Proposed order  granting Motion for summary judgement

5. plaintiffs memorandum of points and authorities in support of its motion. 

6. motion for summary judgement with only 2 affirmative defenses. 

    a) it is an open book account based cardmember agreement provided as exhibit A of aforementioned declaration 

    b) monthly statements provided as exhibit B of aforementioned declaration. 

I REALLY APPRECIATE ALL OF YOUR HELP ❤️ 

 

Was it a declaration “in lieu of live testimony”?

[wildfive]

29 minutes ago, BV80 said:

Was it a declaration “in lieu of live testimony”?

in lieu of direct testimony

[BV80]

8 minutes ago, wildfive said:

in lieu of direct testimony

From the CA Supreme Court:

Section 98(a) requires an affiant to provide an address within 150 miles of the place of trial at which lawful service can be made of a form of process that directs the affiant to attend trial. (Meza v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844, 866.)

[wildfive]

2 minutes ago, BV80 said:

From the CA Supreme Court:

Section 98(a) requires an affiant to provide an address within 150 miles of the place of trial at which lawful service can be made of a form of process that directs the affiant to attend trial. (Meza v. Portfolio Recovery Associates, LLC (2019) 6 Cal.5th 844, 866.)

THANK YOU! So, i include that in my motion in limine?

[BV80]

5 minutes ago, wildfive said:

THANK YOU! So, i include that in my motion in limine?

If a motion in limine is proper, yes.  It should be included in whatever you do to respond to the MSJ.

[wildfive]

12 minutes ago, BV80 said:

If a motion in limine is proper, yes.  It should be included in whatever you do to respond to the MSJ.

Thank you for all of your help 

[BackFromTheDebt]

I want to add something.

As @Clydesmom correctly pointed out, the FDCPA does NOT apply to Discover, because they are the original creditor.

However, in SOME states there are state consumer laws which DO apply to the original creditor.  (My state, for example).  

I don't know enough about the Rosenthal laws, or whatever the consumer laws are called in CA, to know if those laws apply to the OC.  Maybe they do.  You should look it up, or consult one of the California posters, about that. 

From experience, arbitration works better if you have violations against them, although this may or may not be too late for arbitration.

[wildfive]

1 hour ago, BackFromTheDebt said:

I don't know enough about the Rosenthal laws, or whatever the consumer laws are called in CA, to know if those laws apply to the OC.  Maybe they do.  You should look it up, or consult one of the California posters, about that. 

From experience, arbitration works better if you have violations against them, although this may or may not be too late for arbitration.

Thank you. I will look into Rosenthl in California. I believe it does apply, but I couldn't remember which laws to reference.

I am weighing the possibility of motion to compel arbitration. When anything new happens in the case in california, you can compel at anytime.

Filing a motion for limine, since they did not comply with the laws of the court, will exclude all of their supporting evidence. It could be a complete win and the whole case get dismissed with prejudice.

 

Reality I would prefer to buy more time to save up and settle, but the attorney refuses to return any of my calls, letter emails etc. to meet and confer or discuss settlement. 

So, since she made a mistake in not following the court rules, I kind of want to just stick it to her.

 

THIS FORUM and ALL OF THOSE THAT HELP EVERYONE OUT...INCREDIBLE ❤️ 

[wildfive]

HI All!!!!

Good news

We settled