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ttwettlaufer

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Posts posted by ttwettlaufer

  1. FYI, 

    for everybody that helped us. We got the case dismissed with prejudice.  As I had anticipated, the lawyer for midland wanted to discuss the case. So, we went into the hall and he was not only polite, but also didn't seem to care whether he won or lost the case. We stated that this was not the wife's account and that I don't allow credit cards in the house. I also stated that this account shows a last activity date of 2006, to which he responded, "hmm, my date shows 2007" so that would be in the time limit for "breach of contract". To that I said, "true, but do you have "ANY" documentation? Anything? I am sure you don't since this was never her account. Also, we feel this may either be mistaken identity or identity theft. Finally, in the 2006 time frame the wife didn't have enough credit to get a card anyway." The lawyer didn't skip a beat and said, "well, midland doesn't usually allow us to dismiss the case." I replied, "Well....', then he suddenly changed gears and said, "wait, there is a form here to dismiss the case." So, he then proceeded to explain that the form will not only dismiss the case, but, also that the wife would not be liable for anything, court costs, attorneys fees, or the debt itself. And, he also stated that the form also states "with prejudice". We all know what that means. Midland cannot bring up again. Yee, haw! (as they say here in the south). So, the wife signed and the judge dismissed the case and we were free to go.

    My take? The lawyer admitted that midland didn't give him anything and so he knew his chances of winning were slim. Add that to the fact that his "cut" of the winnings would probably not make up for the time spent arguing his side and it would just be faster and more profitable to throw our case in the circular file and try for another one. 
     

    • Like 2
  2. Racecar,

    it's small claims court. I just wanted to provide everyone as much useful information as possible.

    We will go with the SOL as our primary defense.

    If that's not enough, the I would challenge the plaintiff to provide anything that would show that there is indeed a full account number and is in fact a citibank number.

    then I would also challenge the validity of the account being associated with the wife. since she has never owned a citibank credit card as they claim.

    I don't really think this will go to far since the information that I have supplied is the only information (other than name and address) that was given in the summons.

     

    thanks to everyone

  3. Next,

    Second Cause of Action - Money had and received

     

    13. In the alternative, and without waiving the foregoing, Defendant received and used (or authorized the use of) the credit card knowing that the Issuer expected to be repaid for all  charges incurred with the card, together with interest thereon. With each use of the credit card the Issuer paid money on Defendant's behalf to the merchant with whom the credit card was used. Defendant is liable for repayment of such sums under the doctrine of money had and received. Plaintiff is the assignee of the Issuer's right to be repaid by the defendant for such money had and received.

     

    Third cause of action -account stated.

     

    14. In the alternative, and without waiving the forgoing, Plaintiff asserts that the Defendant's use of the credit card to purchase goods and services represented a periodic account, for which the Issuer rendered monthly statements to Defendant(s). To the best of Plaintiff's knowledge and belief, Defendant(s) did not dispute those statements to Issuer or Plaintiff. Plaintiff is the assignee of the Issuer's right to be repaid by the Defendant(s) for such account stated.

     

    WHEREFORE, premises considered, Plaintiff prays that the Court enter judgement against the Defendant for:

     

    A. $1630.14, for which is the balance due on the credit card;

    B. post-judgement interest at the Alabama statutory post-judgement interest rate;

    C. all costs of court; and

    D. all such other and further relief to which Plaintiff may be justly entitled.

     

    so, that's what I got. 

     

    Any comments???

  4. continuing on.....

     

    First Cause of Action - Breach of contract

     

    9. The issuance of a credit card constitutes the offer of a contract. Use of a credit card constitutes acceptance of the terms of the credit card agreement. The issuance of the credit card constitutes an offer of credit, and the use of the credit card constitutes the acceptance of the offer of credit.

     

    10. By using and/or authorizing the use of the credit card, Defendant(s) accepted the contract with the Issuer and became bound to pay for all charges incurred. Defendant(s) also became subject to all of the terms and conditions of the card agreement.

     

    11. Defendant(s) defaulted in the payment obligation on the credit card. Such a breach of contract proximately caused the Issuer damages in the amount of the balance due on the credit card account. That obligation has been assigned to Plaintiff, who is the party entitled to enforce the contract and receive payment of the credit card balance.

     

    12. Defendant is presently indebted to Plaintiff in the amount of $1630.14. Plaintiff seeks judgement for such sums, together with post-judgement interest at the Alabama statutory rate.

  5. Ok, 

    so here are the "facts" in the complaint from midland..

     

    3. CITIBANK ("issuer") issued a credit card to Defendants(s) under its account number XXXX-XXXX-XXXX-5996. Defendant(s) received and used the card and thereby became obligated to pay for the charges incurred  with the card.

     

    4. Defendant(s) defaulted on the obligation to make monthly payments on the credit card account. The entire balance on the credit card is presently due and payable in full.

     

    5. The account was assigned to the Plaintiff, who has the right to bring this action.

     

    6. The issuer mailed to Defendant(s), monthly bills reflecting, inter alia, all charges incurred with the credit card, the monthly payment due, and  the total balance due. These monthly bills were mailed to the Defendant(s) address, proper postage affixed and not returned undelivered to Issuer.

     

    7. Pursuant to the card agreement and/or applicable law, Defendant was required to notify Issuer of any disputes. Defendant's failure to submit such disputes constitutes an admission of the account balance. To the best of Plaintiff's knowledge and belief, Defendant(s) did not send to the Issuer of Plaintiff and such disputes.

     

    8. Through its undersigned attorney, Plaintiff has demanded payments from Defendant, but Defendant has not satisfied such demand. Plaintiff has performed all conditions precedent to the filing of this action, or all such conditions precedent have occurred.

  6. Flyerfan,

    I will certainly attack the SOL as best as I can.

    but, I will also do my best to point out that we haven't had a credit card in years, let alone a citibank credit card. I would pursue the identity theft angle, but the wife did't have enough credit a few years ago to get a credit card, let alone a citibank card, especially with a $1000+/- limit.

     

    I would assume that since this is small claims court, there will be a lot less formality than some of the cases I have read that are in a federal or appeals court?

  7. Ok,

    for those of you keeping an eye on this one. I just made an important discovery.

    Midland "claims" a CITIBANK credit card right?

     

    Doing some research shows that all credit cards first 6 digits are the identification number which shows the issuer and all credit cards issued by "banks or financial institutions" start those first 6 digits with either 40-49 or 50-58, however this account number starts with 85, which is not a valid credit card number!!

     

    thanks.

  8. FYI, 

    for everyone, 

    Even if I don't (for some reason) get out of this issue by the SOL.

    They can't prove anything on the account itself.

     

    the complaint says "CITIBANK" credit card - XXXX-XXXX-XXXX-5996

    but the credit report says                           - 8538-62XX-XX          (10 possible digits)       (of course the report doesn't show any "-")

     

    Can anybody tell me this.....

    1. can you honestly get a citibank credit card account from any of that information?

    2. can you establish that either of those sets of numbers belong to each other?

    3. can you establish any possible connection between either of those numbers and anybody?

     

    BTW, the credit report only has that account number listed and show it in dispute. So that has to be the account number that midland is referring to.

  9. Flyerfan,

    you are correct, they didn't file until 4/42013.

     

    Linda7, 

    I just re-read the summons and I don't actually see the words "summary judgement", they seem to just be asking for a "judgement" in their favor.

     

    I don't have time to do right now but I think that in the best interest of everyone in the world, I will violate my own (never put it on the web) rule and place an edited copy of most of the information contained in the summons.

  10. Linda7,

    also, the only thing that has been (as yet) submitted to the clerk by the plaintiff is a summons, stating breach of contract, money had and served and account stated.

    there is NO other information provided. No documents showing dates, signatures, no billing statements, nothing.

    I just don't see how they can be expecting anything other than a default judgement and they don't seem to be prepared for anything more.

  11. Flyerfan,

    it's only been a couple months, and I have been on the road. I just found this site a couple days ago. Sorry. No discovery has been done. 

     

    Linda7,

    from what I have read, credit cards are 3 years in Al. However, they are claiming "account stated" which would theoretically be 6 years.

     

    However, the date opened shows 2011 and the last activity date on the account shows 2006. 

     

    remember, this account does not have a complete number only 14 of 16 digits, we have never been contacted, and neither of us remembers and kind of credit card from citibank, especially since I don't allow credit cards.

  12. Flyerfan,

    thanks, if I could, is there a reference or a recommendation of how I would proceed, once we show up in the court room?

    I read that one guy basically followed the silence is golden rule.

    but, I am used to speak only when spoken to, (from my military days)

    I have been trying to get an idea of what may happen, but I'm cloudy on the whole thing.

    I would guess that it will have to be a "play it by ear" thing. but I am not sure.

  13. Flyerfan,

    thanks for the support. I am not afraid to do this on my own, but i'm just worried about the policy and procedure part for the court.

    I am not sure about the "account stated" part. it appears that all they have to do is say "here is a name and an account number" and "there is the defendant, gimme some money" and stating that they tried to contact us (which they haven't) and since we didn't dispute what we never got, then we automatically admit the validity of the account, and the judge would "rubber stamp" and let it go.

    that's my one real concern.

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