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.