Being sued by American Express in SC

[Phillio9]

Hello all,

I was served yesterday and have 30 days to reply. However, there was no sheet attached with questions. The court case listed online says ‘pending/adr’ (alternative dispute resolution?) Does that mean they already opened arbitration because I was considering jams. Thank you in advance. Also, the attorney is located in a different city and my response is to requested to him, not a court. I can’t find any court info (State of SC court of common pleas). Something seems odd. Please advise. 

 1. Who is the named plaintiff in the suit?

American Express national bank/centurion 

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

parnell and Parnell 

3. How much are you being sued for?

$5300

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?) served and posted online

6. How were you served? (Mail, In person, Notice on door)

At home

7. Was the service legal as required by your state?

I’m  not sure but it did not require a signature

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

nothing yet  Maybe motion to compel arbitration

9. What state and county do you live in?

Horry county SC

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) like 2 years ago  so still in sol

11. When did you open the account (looking to establish what card agreement may be applicable)? 2015

12. What is the SOL on the debt? 3 years. 

 

[BackFromTheDebt]

Please edit this to take out the case number. 
 

It appears the ADR mentioned is a court sponsored mediation.  
 

The gist of it is this:  AmEx almost always wins.  They always have the evidence and if you take them into JAMS they will fight to the bitter end.
 

I say almost always because I am the only one I know of who beat AmEx, but that was an extremely rare case and can’t be extrapolated.  Even so I had to fight like heck. 
 

Unless this was identity theft you will lose.  You need to arrange a settlement.  The point of mediation is to arrange a settlement.   

[Phillio9]

Ok, thanks. So, you feel it’s unlikely that if I elect jams and they have to pay a good bit that they will keep fighting? I  was hoping they might not think it’s worth it. ??‍♀️

[BackFromTheDebt]

AmEx will take arbitration to the bitter end unless you can come up with some good reason for them not to. 
 

In SOME situations going into JAMS will convince an OC to settle for more favorable terms for the debtor, but only when the debtor has shown a willingness and ability to take the case to the bitter end.  
 

Filing an MTC wouldn’t hurt and might possibly help a little bit. 
 

Your goal is to settle on favorable terms for you.  AmEx will almost never walk away with nothing. 
 

Here are some of the windows for settlement:

Between the time you file your answer and MTC and when mediation starts.  
 

During mediation.  If you can’t reach a mediated settlement, then insist on arbitration. 
 

Between the time arbitration is filed and AmEx pays their first bill.  (I negotiated a settlement with a different OC in this window). 
 

Between the time AmEx gets the bill for the hearing and when they pay the bill.  (I negotiated a settlement with yet another OC in this window). 

[Phillio9]

Back from the debt-

im not sure how to respond. There wasn’t an attached answer sheet in which to respond. Should I reply with a notice of arbitration election, copy of cardmember agreement and MTC arbitration? What would you do?

[BackFromTheDebt]

I don’t know how they do things in SC courts.  
 

Some jurisdictions have forms to fill out to answer. Others do not. 
 

If your jurisdiction doesn’t, you need to write up a document.  Make it look a lot like the complaint with the case number and plaintiff and defendant names.  You could just type in that you deny all allegations. 
 

As for the MTC, look up the arbitration threads here.  There are many examples of MTCs people have filed.  
 

Again, don’t ever expect AmEx to roll over.  They will take the case to the end of arbitration. Spending zillions to get back thousands won’t bother them. 
 

You need to give them some reason not to.  In some cases arbitration puts enough pressure on them that they will agree to a settlement they normally wouldn’t agree to, but only if you handle arbitration correctly.  You may need to come here often for advice and suggestions. But no legal advice.  We can’t give you that. 

[Bulldoger]

Did I read the action correctly that the first hearing is a mediation hearing in January 13, 2022.  So 7 months to workout a settlement.  I would file an answer with arbitration as a affirmative defense but not file the MTC until after talking with plaintiff attorney and before the January 13, 2022 date.  In the meantime work with attorney on a settlement and having case dismissed prior to Jan 2022 court date. 

[BackFromTheDebt]

1 hour ago, Bulldoger said:

Did I read the action correctly that the first hearing is a mediation hearing in January 13, 2022.  So 7 months to workout a settlement.  I would file an answer with arbitration as a affirmative defense but not file the MTC until after talking with plaintiff attorney and before the January 13, 2022 date.  In the meantime work with attorney on a settlement and having case dismissed prior to Jan 2022 court date. 

There is a serious danger to that. 
 

Courts have often ruled that the defendants waived their rights to arbitration by participating in the court case.  It varies among different jurisdictions.  The thing is, 7 months from now the courts may decide the OP waived rights to arbitration by waiting for 7 months.  
 

In many cases the courts send the parties to mediation no matter what.  If that is the case, the OP still has 7 months to work out a settlement.  

[Bulldoger]

My understanding is that settlement talks are outside of court and can not be used in the case so it doesn't hurt to try to settle.  But your right if after answer AMEX files discovery then OP has to file MTC rather than participate in Discovery or possibly lose chance at MTC leverage.  My concern is that once AMEX starts paying JAMS fees then they have skin in the game and will rather see it through than settle at all. 

[Clydesmom]

On 6/20/2021 at 5:03 PM, Phillio9 said:

So, you feel it’s unlikely that if I elect jams and they have to pay a good bit that they will keep fighting? I  was hoping they might not think it’s worth it

AMEX is one of the top 3 creditors that doesn't give a hoot and will follow JAMS all the way through to the bitter end regardless of cost including appeals.  ALL electing arbitration does is buy you more time to settle.  A bad case in court is equally bad in arbitration and AMEX does not back down.

On 6/20/2021 at 4:28 PM, Phillio9 said:

Also, the attorney is located in a different city and my response is to requested to him, not a court.

You file your answer with the court and always copy anything filed to the attorney.  You need to read the rules of civil procedure for your court.

On 6/20/2021 at 4:28 PM, Phillio9 said:

The court case listed online says ‘pending/adr’ (alternative dispute resolution?) Does that mean they already opened arbitration because I was considering jams.

No it isn't JAMS.  It is court ordered mediation and a lot of states are making this mandatory (at your expense and the plaintiff) to try and get cases off the docket.  Your argument there is the same as court you want arbitration in JAMS.   DO NOT be the least bit surprised if you file a MTC and AMEX says no problem and goes straight there.

[BV80]

@BackFromTheDebt

@Bulldoger

Waiver is usually determined based upon prejudice and unfairness to the other party.  In SC, and I think most states, it’s not simply the amount of time a lawsuit has been active that matters but the amount and type of litigation that has taken place.

For instance, the SC Supreme Court in Evans v. Accent Manufactured Homes, Inc., 352 S.C. 544, 548, 575 S.E.2d 74, 75-76 (Ct.App.2003) ruled that “a nineteen-month period in which the parties exchanged written interrogatories and requests to produce and the party requesting arbitration took two depositions demonstrated waiver.”

In Rhodes v. Benson Chrysler-Plymouth, Inc., 374 S.C. 122, 127, 647 S.E.2d 249, 251-52 (Ct.App.2007), the SC Court of Appeals decided that “a ten-month period in which parties exchanged written interrogatories and requests to produce and took five depositions was sufficient to demonstrate waiver.” 

However, in Toler's Cove Homeowners a$$'n, Inc. v. Trident Constr. Co., 355 S.C. 605, 612, 586 S.E.2d 581, 585 (2003), the SC Supreme Court held that “a thirteen-month period in which discovery was limited in nature, the parties had not availed themselves of the court's assistance, and respondent had not held any depositions did not demonstrate waiver.”

Notice the difference in the actions constituted waiver vs. those actions that did not constitute waiver.  It was the type of actions, not the lapse of time, that determined waiver.  It’s very possible that lapse of time can make a big difference in some states, but it’s mainly the nature of the litigation that has occurred.  Courts are looking for litigation that prejudices the opposing party.

 

[Phillio9]

Thanks everyone- you guys are the best! I’m going to file my answer tomorrow. I’m prolly going to file mtc arb right after. I expect a settlement but want it to be 2k if possible. I’m pretty stretched right now. Idk what to expect from them. 

[BackFromTheDebt]

4 hours ago, Phillio9 said:

Thanks everyone- you guys are the best! I’m going to file my answer tomorrow. I’m prolly going to file mtc arb right after. I expect a settlement but want it to be 2k if possible. I’m pretty stretched right now. Idk what to expect from them. 

I honestly don’t know what your best course of action is for a settlement. Is it to put $ pressure on them with an MTC or the time pressure with the 7 month delay?  I don’t know. 
 

Hopefully filing an MTC soon and then nothing scheduled until the mediation will give both kinds of pressure.  

[Phillio9]

Thank you- I will keep you posted. I sent my answer to the court denying everything. I’ll wait for next action and then mtc arb. 

[Phillio9]

Update:

we have an upcoming court date due to adr sanctions. I reached out to Parnell and we agreed on a settlement offer. I asked for a documentation outlying the terms and agreement as expected in a typical settlement agreement. They sent me a generic letter with no mention of the pending court case or guarantee of dismal once payment received. I asked for a revision simply stating that they will dismiss the case once payment is given (by specific date). They would not do that. I’m pissed for wasting my time. I’m going to court now and hope the judge will understand that they refuse to act in good faith. 
Question- this is a sanctions hearing. Am I innocent until proven guilty? They are suing me so shouldn’t the judge act harsher towards them for not arranging mediation?

At this point, I’m looking into filing demand forms with JAMS and presenting it at court. What should I do? Thanks

[Bulldoger]

55 minutes ago, Phillio9 said:

I reached out to Parnell and we agreed on a settlement offer.

you did this verbally? if done by emails or followed p with emails summarizing what occurred you have a record of what was agreed. 

The attorney can be disbarred if they don't follow through with what was  agreed. 

post redacted copy of what they sent. 

 

[Bulldoger]

1 hour ago, Phillio9 said:

due to adr sanctions

what do you mean buy this?  who are you being sanctioned? 

[Phillio9]

13 minutes ago, Bulldoger said:

you did this verbally? if done by emails or followed p with emails summarizing what occurred you have a record of what was agreed. 

The attorney can be disbarred if they don't follow through with what was  agreed. 

post redacted copy of what they sent. 

 

I have a written agreement but it is very short and offers me no real closure. Did I mentioned they filed 2 separate court cases on my 1 Amex account. Yeah, one has my full legal name and the other has my middle initial. This makes me uneasy. 

[Phillio9]

12 minutes ago, Bulldoger said:

what do you mean buy this?  who are you being sanctioned? 

We’re going to court for adr sanctions because neither party sought mediation. There were 2 parties listed and then later became inactive. Naturally, I’m the one being sued so I just waited to see if they pursued it. They did not. Now we both have to show up for court to see the judge. 

[Bulldoger]

2 hours ago, Phillio9 said:

I have a written agreement but it is very short and offers me no real closure. Did I mentioned they filed 2 separate court cases on my 1 Amex account. Yeah, one has my full legal name and the other has my middle initial. This makes me uneasy. 

Did one of them get dismissed? They can't sue you twice on one debt.