Zwicker & Associates- Discover Card lawsuit

[Pattonator]

I received a notice for a small claims court pre-trial hearing next month in Florida. The attorney of record is Zwicker and Associates who claims that they represent Discover Card. I have read that Zwicker is both a junk debt buyer and an attorney. They claim to be suing on behalf of Discover but I am not sure if they are simply acting as a debt collector rather than as an attorney. If it is the former they may not have standing and likely will not have the documentation. The premise of the lawsuit is breach of contract. I submitted several affirmative defenses:
1) Lack of standing- Discover is not a Florida Bank and I'm not sure that they have truly hired Zwicker
2) Failure to state a claim upon which relief can be granted as they don't have a contract, they have not substantiated the amount, etc.
3) Failure to demonstrate that a contract between Plaintiff and Defendant has existed- they had a generic set of terms and conditions without a date, they have not stated when the contract was entered into or when they claim it was defaulted upon.
4) Amount of Damages are vague- they claim simply that there was a previous balance and don't explain what this balance is from or how any fees were calculated.

Zwicker then submitted a motion to strike by affirmative defense claiming that I was making conclusions and stated no facts. I provided further explanations to my affirmative defenses and added more:
5) Failure to serve the complaint. I still was never served with the complaint and they did not include a certificate of service.
6) Plaintiff failed to provide any factual evidence other than a single credit card statement and a generic (undated) list of terms and conditions.
7) Plaintiff failed to produce any evidence that a credit card issued by them was used by the Defendant. There is a Fl Statute on how their credit card statement is hearsay evidence (Fla. Stat. § 90.801 (c). Additionally, these billing summaries are unauthenticated. (See Fla. Stat. § 90.901).

Has anyone had success challenging Zwicker in court?

[justbroke]

Zwicker represents several major creditors here in Florida.

I'll assume that their defense to lack of service is that they didn't have your physical address so may have performed alternate service, such as service by publication. I would say that if Discover Financial Services uses Zwicker, then Zwicker "knows" what they are doing. Discover is one of the most prolific and successful creditors when it comes to lawsuits. I believe that only Bass & Associates, representing Best Buy, is as successful.

You do know that their statement would be admitted into evidence after a testimony from someone, that works for Discover (likely), testifies as to how the records are maintained. They'll then authenticate that evidence at a hearing and then it would be admitted. One of the exceptions to the hearsay rule, as you may know, is that it is a business record regular and is maintained in a certain manner. Again a person who is an archivist or works for Discover could testify as to how they maintain records, how they retrieve the defendants records, and would certify under oath that the record presented was created by the plaintiff.

I admire your tenacity, but what is the outcome that you're expecting or demanding? Delay? Settlement? Judgement in your favor with prejudice? Are you expecting to get into discovery? Slug it out, to whatever is allowed in small claims?

(I'm wondering how you received notice of the hearing but did not receive the complaint and summons.)

[Pattonator]

JustBroke- Thanks.

My ultimate goal is settlement or dismissal. I have seen several successful strategies to defeat affadvits from Discover such as that they don't have first hand knowledge of the account but the key is to demand that they appear in person in court to be cross-examined. This second strategy worked well when the courts were seeing people in person but doesn't work well with Zoom hearings. I figure that if I do drag this out with discovery and interrogatories I am costing them time and money while saying let's settle. The only settlement they have offered so far is payment in full but I can split that up into $100 or $200 per month to change the length of time that I pay.

I received notice of the complaint from a third party letter asking me to hire them as a mediator. The attorney did not serve me nor did they include a certificate of service in any of their initial filing. A week later I received a pre-trial hearing with the likelihood of mediation via Zoom for the Feb 2.

Luckily there is some great stuff available online to use as affirmative defenses. While some may get dismissed such as lack of standing very quickly they will need to work to get rid of the others.

They are pursuing the case as a breach of contract. The complaint does not have a date that the contract was entered. A date when the contract was breached. A copy of the contract. The method by which the contract was agreed, etc. I have also seen that as terms and conditions change you can push that if they change every year they are only valid for four years so anything that any charge > 4 years is outside of the statute of limitations. I also have defenses that if they charged off my card and took a tax benefit they are not as harmed as if they did not get this tax benefit.

I am not a lawyer and I don't expect to have it simply dismissed out of hand. I do expect to win on a point or two to delay things enough and to show that I am willing to fight while trying to get them to accept a settlement.

At the Feb 2 hearing we likely will meet with a mediator. For the most part I do live paycheck to paycheck and I have other debts including another legal case for 3X as much $. My point I will make with a mediator is that I don't agree with the amount that Discover is seeking and that it isn't valid. I cannot afford to pay much but I do have some stimulus money for a lump sum payment if they take a discount. If they are awarded the full amount via judgement I will just declare bankruptcy and they will get almost nothing.

[shipo]

Pattonator, if you succeed with your "settlement or dismissal" plan, are you prepared to pay the extra taxes you'll incur when you get your 1099-C from Discover? Keep in mind, the IRS is a MUCH more tenacious foe than Discover when it comes to wanting their money.

Question, why don't you simply file for either a Chapter 7 or Chapter 13 instead of engaging in all of the gymnastics of trying to dispute the money you owe?

[Pattonator]

Shipo,

Why do I want to declare bankruptcy if I can get creditors to reduce what I owe to a manageable payment? If I can settle and make it go away it is on my record for a lot less time. I have enough income that I'll still pay some on Ch 13.

I would rather owe the IRS for the % of write-off rather than paying 100% of the amount.

Patt

[justbroke]

Pattonator because technically you're already bankrupt when you're insolvent, and;

1. not all creditors will negotiate or even settle. This is especially true if you actually have property as evidenced by a LexisNexis risk report.
2. bankruptcy is the only way to guarantee an outcome and have protection from the court should an unscrupulous, or even well-intentioned creditor, violate the discharge.
3. your credit actually can recover much more quickly -- usually -- after a Chapter 7 than having a judgement and a bunch of 90+ day accounts on your report. I was at a 660 score just 6-months out from my Chapter 7 discharge. Try that with 90+ day late statuses reporting within the last 2 years... it won't happen.
4. the tax impact of 1099-C forgiveness of debt can be formidable if there is significant debt as it's taxed at your normal rate.
5. most debtors that tried debt settlement and/or management, end up filing bankruptcy. Most that went the debt management route loathe that they wasted time and money.

Bankruptcy is finality of all debt that arose prior to filing. A debtor doesn't technically declare bankruptcy, since many people are bankrupt/insolvent. A debtor simply files for bankruptcy protection. (Emphasis on "protection.") With bankruptcy, you don't need to negotiate with creditors. Creditors will get what the bankruptcy code allows, and that's all. There is no tax implications from discharged debt.

That's not to say that there aren't some successes. It's to say that only bankruptcy has finality with very strong and defended injunctions to keep everyone honest!

[shipo]

Shipo,

Why do I want to declare bankruptcy if I can get creditors to reduce what I owe to a manageable payment? If I can settle and make it go away it is on my record for a lot less time. I have enough income that I'll still pay some on Ch 13.

I would rather owe the IRS for the % of write-off rather than paying 100% of the amount.

Patt

I can think if two really good reasons:

1. Owing the IRS is not like owing a regular creditor; if they decide to, they can simply attach your bank account and *poof*, you have zero money.
2. As I understand it, just because you "successfully" negotiate a debt reduction does not in any way mean the creditor won't sell your debt to a junk debt buyer and then start the entire process all over again.

As justbroke wrote above, the only way to be 100% sure the debt is gone is to file for bankruptcy protection; pretty much anything short of paying all outstanding debt is a shell game.

[flashoflight]

Pattonator I defended against 7 debt collection lawsuits including Zwicker purely as a delay tactic before filing my 13 so I know where you're coming from. I totally understand not wanting to pay creditors 100 cents or even 50 cents in a 13 so I planned my BK so that the dividend is near zero. However, if they're trying to strike your answer and get a default judgment, you've already messed up your case right out of the gate. The wound might already be fatal. You generally cannot assert brand new affirmative defenses after you file your initial answer so you are stuck with whatever you initially filed. Based upon this Zwicker case, I think your efforts are much better spent pre-planning and filing for bankruptcy rather than pro se lawyering. Spend the stimulus on a good BK lawyer, not a settlement for Discover. Since you have other debts at least 3x larger than Discover, it makes more sense to focus on filing BK and get absolute final resolution on all your debts.

[Pattonator]

Thanks everyone for their advice. I have other reasons to avoid bankruptcy. I don't come close to qualifying for a Chapter 7 and with a Chapter 13 I will certainly have a repayment plan. My available income is due to go up substantially this year when my child support stops as my children turn 18.

My goal here is to settle these cases as if I can get them all paid off this year (which may be possible if I can get reasonable settlement offers).

The Plaintiff's motion to strike my affirmative defenses state things such as Defendant stated no facts when I specifically did. Their initial complaint did not name a single statute or case reference so I challenged this.

I did ask the court to amend my affirmative defenses which no they don't have to grant but the court is small claims and they do know that I am a pro se litigant so usually between the two there is leeway from the courts. I also could initially state that they didn't serve me until I waited to see if I received service as I only found out about the case from a third party mediator.

My hope is that at least some creditors act with some logic. I am offering settlements. It costs them money to sue money and to try to collect on a judgement. There is also a huge risk to them that they collect almost nothing if I declare bankruptcy. If they run a LexisNexis they will see likely that I live paycheck to paycheck and have a lot of debts.

After I was divorced in 2006 I had a bankruptcy that resulted from that first marriage and my Ch 7 at that time haunted me for several years when it came to buying a house and cars. I'd like to avoid that if I can with settlements.

[shipo]

Pattonator, as justbroke alluded to above, these settlements you're trying to obtain may well haunt you for seven or more years as well. Long story short, my gut tells me your efforts to avoid a bankruptcy filing will not end well.

[flashoflight]

My hope is that at least some creditors act with some logic. I am offering settlements. It costs them money to sue money and to try to collect on a judgement. There is also a huge risk to them that they collect almost nothing if I declare bankruptcy. If they run a LexisNexis they will see likely that I live paycheck to paycheck and have a lot of debts.

After I was divorced in 2006 I had a bankruptcy that resulted from that first marriage and my Ch 7 at that time haunted me for several years when it came to buying a house and cars. I'd like to avoid that if I can with settlements.

I think Zwicker is acting quite logically. You grossly overestimate how much it costs to file a lawsuit or for judgment collection actions. They file dozens or more cases in a single day. Before e-filing, they have a clerk go to the courthouse with a huge stack of cases and just put them in. If you look at the cases, they are almost identical word-for-word because it's all boilerplate. The only time they spend real attorney time is to look at your responses to see if they can strike your answer and default you. If an appearance is required, they use a substitute bargain basement attorney so no actual trial attorneys are used.

A threat of bankruptcy can cause creditors to sue you faster because it's a race to the courthouse to get first in line to collect from you before they realize you are bluffing. Zwicker is also very good at judgment collection once they win. They also would not have sued you unless they felt you were a good candidate for judgment collection.

You also don't have enough upfront money for a decent settlement offer for all of your creditors if all you have is the stimulus. The most you'll get is a payment plan and you could have gotten that in a 13 with the possibility of paying way less than 100 cents on the dollar. If you get a good settlement, you have no money for the IRS which is a supercreditor with the best debt collection powers of any creditor and pretty good immunity from discharge in BK.

With a 13, you can get an FHA mortgage after 12 on-time trustee payments and no post-petition lates. Cars are routinely approved by the trustee because you need a car to get to get to employment. BK even with 100% plan may be the best option.

By the way, the proper method of dealing with alleged improper service is to file a motion to quash service of process and schedule a hearing per local court customs. This type of motion is a waste of time and money for you since the plaintiff will just file again after proper service even if you win. Oftentimes the plaintiff's witnesses like the process server will lie and get away with it. You're not supposed to raise the issue with service of process from the answer. You didn't know that? How are you going to get a dismissal or win if you don't know stuff like this?

Of all the debt collection firms that you could have faced, Zwicker is one of the worst for debtors. They are among the best at suing and collecting from debtors. You are being outplayed badly right out of the gate with that answer. They are leagues above others like Midland and Portfolio. Just do the 13... you're wasting your time and money. Every month you delay is another month the unsecured creditors aren't paying your child support in a 13.

[Pattonator]

flashoflight thanks for your input. Again I would like to settle with Zwicker. While I do have other debts none of them are being aggressively pursued. My wife and I each have other lawsuits that were filed months ago. In both of those cases I submitted requests for discovery and in both cases they were ignored. The attorneys in each of those cases are known to try to get an initial judgement from people who ignore the initial complaint and they seem to do a piss poor job on cases that require work. We have a few accounts with Portfolio Recovery Associates who seems to be relatively easy to beat in court. I'm hoping that for the most part this will be the only thing that I have to settle. If so then I don't need to declare bankruptcy.

Bankruptcy is easy to declare for some people and not easy for others. One of the reasons that I live paycheck to paycheck is my kids do expensive sports and I have been advised by a BK attorney that depending upon the Trustee they may or may not allow any or all of these expenses.