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Help understanding how to respond in opposition to Plaintiff's (P.R.A) undisputed material facts and memorandum. Cause of action in Plt's Complaint is clearly account stated theory. Plt has admitted in discovery they are suing on the theory of account stated, therefore do not have to provide proof of a contract. Plt filed their MSJ, looks to me like breach of contract. Any advice? Plt's Undisputed Material Facts 1. Defendant executed a contract in favor of CapOne and thereafter used or authorized the use of the credit card to obtain credit from the Plaintiff for the purpose of obtaining goods, services and or cash advances 2. CapOne sent written periodic statements to Defendant which reflected each transaction, including purchases and cash advances, finance charges, late charges and payments made. See attachments and Affidavit. (12 months worth of statements account open for 5 years, oc affiant does not produce testimony about the statements debt buyer affiant does not produce testimony about these statements) 3. Defendant failed to make payments to CapOne pursuant to the terms of the contract. Said payments are now delinquent in the amount of $5555.555. See OC Affidavit ( the only oc affidavit is a "affidavit of assignment" does not mention anything about a contract or agreement) 4. Defendant has failed to make payments to Plaintiff pursuant to the terms of the contract, Defendant owes Plaintiff $5555.55 In my reply I understand I basically counter everything here citing to proof on the record and providing a declaration or affidavit. In my argument section should I still argue my position defending against account stated? Advise for counter response to these a-holes Plt's Memorandum In this case there is no genuine issue of material fact. Plt has established in this memorandum and the accompanying affidavits facts which are material to this case. Defendant entered into a contract with CapOne, establishing a credit account. Thereafter, Defendant used said account to obtain good, services. Periodic written statements where sent to Defendant. Defendant then failed to make payments pursuant to the terms of the contract. Plt is entitled judgement as a matter of law. Is this not sounding like a breach of contract MSJ?
PRA's Motion for Summary Judgment Denied. The ruling was based on my opposition successfully establishing a disputed material fact ( and valid objections). I filed a sworn declaration claiming the bank failed to provide monthly statements, specifically a final statement. The declaration nailed it. Now where may the path lead? I wasn't really prepared for anything other than appeal process. Is a pro se defendant better off fighting JDB in a court trial? or perhaps my chances are better if I file my own motion for summary judgment? What are some case killers to watch out for? Any must know info or motions to request? Thanks forum u r priceless! Sound unbiased knowledge
Strategy Collectively discover the processes needed to win the case Develop the paperwork and understanding of each process and paperwork to execute. Provide feedback to establish if the developed process works or doesn't ____________________________________________________________________________ From my experience, most creditors are unable to come up with the original contract with the cardholder, so in order for them to win they must use a method, called the Account Stated Doctrine, to prove the agreement was implied. This method requires them to show the Court that the cardholder recognized the debt by making payments and never disputed the amount of debt printed on the received bank statements. To sustain an action for Account Stated, Plaintiff must establish the following elements: (1) transactions between the parties give rise to indebtedness of one to the other; (2) an agreement, express or implied, between the parties fixes an amount due; an (3) the one to be charged makes a promise, express or implied, to pay the indebtedness. If Plaintiff fails to offer evidence of one element then it cannot recover under the theory. Example 1: When no payments were made, then the Account Stated Doctrine does not work since mutual acceptance cannot be proved. his was established when the cardholder submitted an affidavit denying: (1) personal knowledge of the account; (2) applied for or accepted the credit card; and (3) agreed to pay any amount. Example 2: 1. Complaint fails to give an account stated showing Defendant’s assent to the alleged amount due. Where there is a cause of action on an account stated, “the account must be rendered, and the other party must accept, agree to, or acquiesce in the correctness of the account. Such assent may be either express or implied from the parties’ actions and dealings with one another. Plaintiff’s Complaint does not allege the account number listed on the statements is the credit card account belonging to Defendant. Complaint does not even allege these monthly statements were ever mailed to Defendant.These statements, along with the bare allegations made in the Complaint, do not sufficiently establish Defendant acquiesced to the amounts Plaintiff alleges are due. Plaintiff’s Complaint does not plead sufficient facts to demonstrate an account stated. Note: The bank must prove Defendant agreed with the amount owed. In Example 2, Defendant's affidavit questioned whether it was the correct account and said they never received. When payments were made, the approaches above don't work and this is where most people end up. With even one payment made, all the Bank needs to do is get a person with first-hand knowledge to testify by telephone to back up the bank statements as valid evidence and they win. Therefore the strategy needs to focus on striking the evidence they want to use, such as affidavit, bank statements. Any suggestions?