Author Topic: Zwicker/AMEX ignores Arbitration and Files Lawsuit  (Read 941 times)

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suedbyamex

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Zwicker/AMEX ignores Arbitration and Files Lawsuit
« on: August 16, 2012 06:15:29 AM »
Hi All,

I just received a summons yesterday from Amex represented by Zwicker and I need some help in clarifying my options. Feel free to reply with comments/suggestions on my situation described below.  Any help is very much appreciated.

Zwicker has ignored my DV letters requesting original agreement, et al, and electing arbitration. Interestingly enough, they dated their court filing paperwork the same day they received my certified mail notice electing arbitration. Also, attached to their complaint/summons is a form titled ďUniform Counsel Certification FormĒ which certifies that in accordance with Rule 5 of the SJC Uniform Rules of Dispute Resolution (Rule 1:18), they have consulted with their client regarding the dispute resolution options. Has anyone ever seen this form before? They must have done this in anticipation of having to oppose an arbitration motion.

I could forgo the arbitration battle and just let the case proceed on the merits. Their complaint is clearly suing on breach of contract (and unjust enrichment, ironicallyÖ) but I am pretty confident that they will never come up with the contract or original application. Also, the alleged account is a business account, yet they are trying to sue me personally. Any account statements they submit will have a business name on them making it difficult to prove Iím personally liable. Note, that their complaint had no supporting documents attached, not even a single account statement.

However, based on what Iíve been reading, I donít see a real downside to pursuing arbitration. I know itís giving up my right to litigation, but wouldnít I be able to invoke the same defenses in arbitration as in court? How could AAA (if they even took the case) or JAMS ever rule in favor of Amex/Zwicker without an original application or agreement? And how could they dismiss account statements with a business name on them, and make me personally liable without any real proof? Also, there are several options available if an egregious decision ever did make it through. Amex arbitration clause allows for an appeal of the arbitration decision; and if that fails, the court confirmation can be contested, and then that decision can be appealed as well. 

If I file a MTD/C with a generic copy of an Amex agreement showing the arbitration clause, will the court accept that as sufficient proof that the same arbitration clause exists in the original agreement? I read that an affidavit should be submitted testifying that the agreement is the one governing the account. How can I testify to that when the alleged account is not mine and I donít have any knowledge of the account? Any ideas ?

I will need to counter the ďimpossibilityĒ defense that Zwicker will inevitably raise to strike the arbitration clause. Should I file with JAMS pro-actively and attach to my MTD/C? Or is it better to just testify that Iíve spoken to JAMS and they will accept this case. If the court upholds the motion to strike that clause, perhaps that is when the court should be informed that AAA does accept court ordered filings, which would mean it is no longer an impossibility.

I have found an older Amex arbitration clause specifying AAA or NAF with no other options. There are also newer ones dated 2012 where arbitration clause specifies JAMS or AAA. I could try to attach the newer copy to the MTD/C but Zwicker could counter that with an older one to justify their impossibility claim. That would leave only AAA as an available forum. I heard that AAA may take on consumer initiated claims. Has anyone had any experience with this?
 
The amount being sued for is 34k, so Zwicker will probably be fighting this one to the end. Case is being held in Mass. superior court which has different rules to follow regarding the filing of motions, etc..(rule 9A). For instance, you canít just file your motion right away, you have to send it to opposing counsel and they have a certain amount of time to file a response, and then the movant files the motion and response together. This may not allow sufficient time for the MTD to be filed before the answer deadline. Iíll have to look at best way to do this - MTC with stay, after filing answer may be the way to go. Or see if I can rush the MTD and get it out by Friday and/or motion for an extension, which is dicey.

Thanks for reviewing my case. I welcome your comments/suggestions.

deepkimchee

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Re: Zwicker/AMEX ignores Arbitration and Files Lawsuit
« Reply #1 on: August 16, 2012 07:27:11 AM »
You post is very long, so I focused in on only one issue.  The Business v Personal account issue.

Being sued personally would be better in JAMS.  Most AMEX contracts state that if JAMS is used  in consumer cases you only pay 250.00, period.  This clause will cost  AMEX thousands to fight you.  Extremely important leverage in itself.

Being sued as a business means you pay 50% of JAMS, this usually isn't feasible.  Also, if you are an incorporated business, you can not defend your corporation pro se, therefore costing you plenty of $$.

The plus side of being sued as a business, is that if you didn't not personally guarantee this card, (highly unlikely) they can get a judgment for your business alone and you personally are off the hook.

I found myself in this dilemma with AMEX, with my corporate business card.  My biggest fear was that they were going to claim this was a business card and all my pro se work would have been worthless.  Had this been the case an attorney and JAMS would have been too expensive and they would have won instantly.

I know there are other issues you are concerened about.  Other should be along soon to give their 2 cents.


I refuse to let a piece of paper intimidate me

My statements are educated/non-educated guesses, not legal advice

suedbyamex

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  • Posts: 162
Re: Zwicker/AMEX ignores Arbitration and Files Lawsuit
« Reply #2 on: August 16, 2012 02:24:27 PM »

Hi All, Sorry for the long post previously, Iím new to the forum. Hereís a condensed summary below; any suggestions/comments very much appreciated:

Zwicker has filed suit ignoring my arbitration election and will most likely motion to strike arbitration clause in response to my MTD. To counter that, should I proactively file for JAMS and attach JAMS filing confirmation to MTD? Or just testify in affidavit that I contacted JAMS and they will accept filing?

I will attach generic Amex agreement to MTD referencing the arbitration clause (Zwicker has not provided agreement). Is this sufficient for the courts to approve my election of arbitration? Or do I need to testify in affidavit that the generic contract governed the alleged account? If that is the case, it contradicts my claim that alleged account is not mine and I donít have any knowledge of it. Any ideas on how I can position the affidavit testimony?

To counter Zwickerís motion to strike arbitration, should I consider AAA instead of JAMS? If I establish that AAA will take filing if court-ordered or consumer initiated, that contradicts the ďimpossibilityĒ defense Zwicker will argue for in their motion to strike arbitration clause. AAA is in all versions of Amex contracts whereas Jams is only in recent versions.

Has anyone seen before the ďUniform Counsel Certification FormĒ that Zwicker attached to complaint/summons? (see second paragraph below for further detail)

To arbitrate or not to arbitrate? Merits of case seem favorable to defendant. Does arbitration forum offer same defense opportunities I would have in court?  (3rd and 4th paragraph below)

(Further details in original version of this post below).

--------------------

Hi All,

I just received a summons yesterday from Amex represented by Zwicker and I need some help in clarifying my options. Feel free to reply with comments/suggestions on my situation described below.  Any help is very much appreciated.

Zwicker has ignored my DV letters requesting original agreement, et al, and electing arbitration. Interestingly enough, they dated their court filing paperwork the same day they received my certified mail notice electing arbitration. Also, attached to their complaint/summons is a form titled ďUniform Counsel Certification FormĒ which certifies that in accordance with Rule 5 of the SJC Uniform Rules of Dispute Resolution (Rule 1:18), they have consulted with their client regarding the dispute resolution options. Has anyone ever seen this form before? They must have done this in anticipation of having to oppose an arbitration motion.

I could forgo the arbitration battle and just let the case proceed on the merits. Their complaint is clearly suing on breach of contract (and unjust enrichment, ironicallyÖ) but I am pretty confident that they will never come up with the contract or original application. Also, the alleged account is a business account, yet they are trying to sue me personally. Any account statements they submit will have a business name on them making it difficult to prove Iím personally liable. Note, that their complaint had no supporting documents attached, not even a single account statement.

However, based on what Iíve been reading, I donít see a real downside to pursuing arbitration. I know itís giving up my right to litigation, but wouldnít I be able to invoke the same defenses in arbitration as in court? How could AAA (if they even took the case) or JAMS ever rule in favor of Amex/Zwicker without an original application or agreement? And how could they dismiss account statements with a business name on them, and make me personally liable without any real proof? Also, there are several options available if an egregious decision ever did make it through. Amex arbitration clause allows for an appeal of the arbitration decision; and if that fails, the court confirmation can be contested, and then that decision can be appealed as well. 

If I file a MTD/C with a generic copy of an Amex agreement showing the arbitration clause, will the court accept that as sufficient proof that the same arbitration clause exists in the original agreement? I read that an affidavit should be submitted testifying that the agreement is the one governing the account. How can I testify to that when the alleged account is not mine and I donít have any knowledge of the account? Any ideas ?

I will need to counter the ďimpossibilityĒ defense that Zwicker will inevitably raise to strike the arbitration clause. Should I file with JAMS pro-actively and attach to my MTD/C? Or is it better to just testify that Iíve spoken to JAMS and they will accept this case. If the court upholds the motion to strike that clause, perhaps that is when the court should be informed that AAA does accept court ordered filings, which would mean it is no longer an impossibility.

I have found an older Amex arbitration clause specifying AAA or NAF with no other options. There are also newer ones dated 2012 where arbitration clause specifies JAMS or AAA. I could try to attach the newer copy to the MTD/C but Zwicker could counter that with an older one to justify their impossibility claim. That would leave only AAA as an available forum. I heard that AAA may take on consumer initiated claims. Has anyone had any experience with this?
 
The amount being sued for is 34k, so Zwicker will probably be fighting this one to the end. Case is being held in Mass. superior court which has different rules to follow regarding the filing of motions, etc..(rule 9A). For instance, you canít just file your motion right away, you have to send it to opposing counsel and they have a certain amount of time to file a response, and then the movant files the motion and response together. This may not allow sufficient time for the MTD to be filed before the answer deadline. Iíll have to look at best way to do this - MTC with stay, after filing answer may be the way to go. Or see if I can rush the MTD and get it out by Friday and/or motion for an extension, which is dicey.

Thanks for reviewing my case. I welcome your comments/suggestions.


suedbyamex

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  • Posts: 162
Re: Zwicker/AMEX ignores Arbitration and Files Lawsuit
« Reply #3 on: August 16, 2012 02:28:05 PM »
Thanks for your response deepkimchee. Sorry for the longer than normal post. Iím new to the forum so I appreciate you bringing that to my attention. I tried to resumbit a condensed version of the original post (as an inserted comment.)

Regarding bus. vs personal. They are suing me personally at my personal address and there is no business name listed on the complaint. When they provide account statements however, this is when the business name will show up. Without the original agreement, they will never be able offer any proof that this account was personally guaranteed by me personally.

kevinmanheim

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Re: Zwicker/AMEX ignores Arbitration and Files Lawsuit
« Reply #4 on: August 16, 2012 03:42:10 PM »
This poster who started this thread has his moments of brilliance --

http://www.debtorboards.com/index.php?topic=18888.msg150913

deepkimchee

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  • Posts: 600
Re: Zwicker/AMEX ignores Arbitration and Files Lawsuit
« Reply #5 on: August 17, 2012 11:01:16 PM »
If you used the card with your signature that is all the proof they need.
I refuse to let a piece of paper intimidate me

My statements are educated/non-educated guesses, not legal advice

 

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