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Found 20 results

  1. Hello thanks in advance for any help.. from what I have read 'account stated' sounds like it is going to be a little more difficult to deal with as it sort of does not require as much evidence and I am struggling to find much info on it. 1. Who is the named plaintiff in the suit? Midland Funding 2. What is the name of the law firm handling the suit? not sure just has a bunch of lawyers listed.. a google search seems to point to Encore Capital Group.. idk 3. How much are you being sued for? about $2800 4. Who is the original creditor? Synchrony 5. How do you know you are being sued? served 6. How were you served? In person 7. Was the service legal as required by your state? yes 8. What was your correspondence (if any) with the people suing you before you think you were being sued? They may have sent mail and called. Probably never responded because I may have thought it was junk mail/scam calls. 9. What state and county do you live in? California, Orange County 10. When is the last time you paid on this account? Oct 2014 11. When did you open the account ? Sept 2013 12. What is the SOL on the debt? 4 years 13. What is the status of your case? suit served 14. Have you disputed the debt with the credit bureaus? I disputed collection agency twice through credit karma (on Apr 2017 and Dec 2017). 15. Did you request debt validation before the suit was filed? No 16. How long do you have to respond to the suit? Case Management Conference set for Sept 2018. I have filed a general denial. The only cause of action is ‘accounts stated’. No interrogatory questionnaire received. 17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Exhibit A - Bill of Sale, Purchase Price Reconciliation/Funding Instructions, Affidavit of Sale of Account by Original Creditor, Blanket Certificate of Conformity for Notary, Certificate of a Federal Savings Association Title Change, then a page with the electronic record with the basic account info (name, address, phone #, Charge off amount, current balance, Last payment date, etc) Exhibit B - copy of welcome letter from MCM letting them know my account had a ‘new home’ and a statement with payment options dated Nov 2016 Exhibit C - Credit Card statement from OC showing last payment Exhibit D - Credit Card statement from OC showing final balance Exhibit E - Notice of Legal Placement from MCM I am thinking I need to amend my answer.. I had done some research prior to responding but for some reason was under the impression I was sued for breach of contract so I filed my answer accordingly thinking that the burden of proof would be on the plaintiff to prove it was my debt with some sort of signed contract but after filing I re-read the complaint and saw that the cause of action was 'accounts stated'.. I dont believe the affirmative defenses I listed apply.. and I am not sure which ones would apply to my situation. so the question # 1 - How would I amend my answer? is there a certain form? What are possible affirmative defenses for 'account stated' ? I h/ave previously disputed this debt through credit karma a few months after they had allegedly sent the statement (exhibit B.) and then again a few months later. without a contract bearing my signature where is the proof I even owed the OC let alone the JDB.. question # 2 - how do you fight this particular cause of action? how do I legally argue that my silence does not mean acceptance of the debt or imply that I agreed to anything really? how I do I shift the burden back onto them and make them prove that I owe them anything? . question # 3 - This was a joint account but I am the only one listed as defendant to this case.. does that matter in any way, shape, or form? any info, good defenses, etc is much appreciated. thank you
  2. I'm debating whether to defend a small claims suit for $4321 for an Account Stated Claim with a law firm claiming to represent Discover Bank, or at my final hearing next week motion to compel Arbitration. The law firm filed into the case the credit card agreement with the Arbitration clause, however, I can defend the Account Stated claim by disproving their element that we agreed to the claim's balance of $4321, citing a dispute letter I sent the firm disputing the amount. Which strategy would possibly be more successful?
  3. 1. Named Plaintiff: Portfolio Recovery 2. Law firm handling suit: N/A. 4 individual lawyers and bar numbers are listed, with no firm name. I'm not positive that they are not simply employees of Portfolio? Names are Emily Pierce, Jordan Cook, Lori Williams, and Kristen Brinkerhoff. 3. What is the amount of the suit: More than $1,000, but less than $1,500. 4. Who was the original creditor: Capital One. 5. How do you know you're being sued: ... I was served with papers on Sunday, 30 April 2017. 6. How were you served: In person. 7. Was the service legal as required by the state: I believe so. 8. What pre-existing correspondence did you have with plaintiff: I'm not aware of any. 9. What state and county do you live in: California. County is a relatively small one, rural-ish, so I'm not sure I should name it. It might make things too identifiable for PRA. 10. When was the last payment made on the account: according to plaintiff's complaint, the most recent payment on the account in question was <3 years ago. 11. SOL on the debt is 4 years. 12. I'm not entirely certain what the status of the case genuinely is at this time. My county does not appear to have case info online other than the immediate court calendar. I was served yesterday, and I was too busy today with work, chemo, and radiation to be able to go to the courthouse. (Yes, this is exactly one extra set of stress that I did not need right now.) 13. I have not disputed the debt with any credit bureaus, the original creditor, or the collection agency. I was rather surprised when I got served yesterday. 14. I did not request debt validation--again, this was all quite a surprise to me yesterday. 15(a). I have 30 days to respond to the suit. 15(b). Claims will be described below. 15(c). No interrogatory was received. 16. There were two exhibits attached to the summons and complaint. Each exhibit purported to be a credit card statement from Capital One. Neither included a complete account number, only the last four digits. Exhibit A purported to show the final payment received by the original creditor, as well as a few small purchases. Exhibit B purported to be a statement from a year later. It purports to show a past due balance and a minimum payment, and has a payment coupon attached, but there is nothing that identifies it obviously as a final settlement. There is an additional page to the purported statement in Exhibit B which notes that the account has been charged off and gives a phone number to call for more information, but there is no account number or other information on this sheet which would tend to indicate that it is associated with any particular account or statement. Verbage of the complaint is as follows: It seems as though, since this is exclusively an Account Stated issue, there's no point in doing a BOP. That said, it looks like it still could be a useful attack. I've never seen either one of the exhibits they've attached to the complaint, and so far as I know, nobody makes a habit of sending their credit card statements by CMRRR, so it seems that there's really no way for PRA to prove that I ever assented, implicitly or explicitly, as to the accuracy of the original creditor's account as stated. Therefore, BOP might still prove useful? It seems additionally useful in forcing PRA to prove that I provided assent, implicitly or explicitly, to the accuracy of their account as stated. I have absolutely no recollection of ever seeing any account statement from PRA, and I certainly can't assent to the accuracy of something I've never seen. What are y'all's thoughts on this? Since this isn't a verified complaint, there's no reason to admit to anything, even my own name, right? Just use the general denial and head for discovery? Also, one potential wrinkle: I did have an account with Capital One that was active from 2010 until 2016 when it was paid off, but... it was a car loan. Would documentation from that be subject to discovery by PRA in the present litigation? Anything else I need to be thinking about right now? (Aside from the obvious of getting the CCP96 and CCP98 stuff that I can tear up with the data from previous cases discussed here, and aside from the equally obvious not being late with my answer and also the whole deal about maybe trying not to die.)
  4. Lots of case law and statutes. Limit is 9% interest on account stated if they can prove it. Author is a Missouri Consumer Atty. http://www.lsmo.org/sites/lsmo.org/files/Account Stated CLE slideshow 10-22.pdf
  5. I was just served a summons by Calvary SPV. I know I need to answer but there are many discrepancies in their complaint. They allege that they have previously made demand for payment which they have not. They state they have purchased an account from capital one. To prove the purchase of the debt they have some sort of bill of sale(I have attached a copy) The bill of sale has NO INFO whatsoever to state that they purchased an account with my name and in fact they have "whited out" quite a bit of information. They do attach a copy of an old bill with my name from capital one but the amount that the bill they attached is less than the amount they say I owe. The complaint itself has no court date. But when I go to the court's website I see the following information with regards to a court date{02/01/2019 at 08:30 AM OSC 3.740 COLLECTIONSDEFAULT JUDGMENT} Does this mean my court date isn't until 3 years away? I am not sure if this is important or not but on the court website they have my middle name incorrect. My middle name starts with the same letter as the incorrect name they have on file with the court. On the complaint they just have my middle initial. Any assistance anyone can provide would be most appreciated
  6. Hello to the best forum on the planet! I was referred here by a friend and have been reading the awesome stories and advice given here. Tho I feel completely overwhelmed I have a glimmer of hope if I can get my head around all this stuff! I am taking this in chunks as it's the only way I can digest it all. Below are my answers to Racecar's questions. I have just a couple of questions for my first steps. I do believe I can file a General Denial (thanks AST Medic for that awesome thread)..but want to make sure my complaint is not verified. There is the first page of the summons; the complaint; exhibit; civil case coversheet (6 pages) with a signature by attny for Declaration of Assignment; and another signature on one of the civil case cover sheets that has Limited checked. Am I good with General Denial PLD-050? Should I have affirmative defenses? I don't have the good SOL to use but should I use Lack of Standing? I'm getting different views on that as I read this forum. Also I know the POS rules say a relative that's not involved in the case can sign, but want to make sure a spouse can sign. I'm just being crazy nuts on details sorry. Ok..hoping someone out there will read this…thanks in advance..here I go. Oh, and what is anyone's experience with Calvary/Winn Law Grp? 1. Who is the named plaintiff in the suit? Calvery SPV I, LLC (edit * I originally thought this was the 6th JDB but the past correspondences were from 5 different collection agencies of the OC, so I guess Calvary is the first JDB) 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Winn Law Grp 3. How much are you being sued for? Just under $5,000 4. Who is the original creditor? (if not the Plaintiff) Capital One Bank 5. How do you know you are being sued? (You were served, right?) Yes 6. How were you served? (Mail, In person, Notice on door) Left Summons on Porch 7. Was the service legal as required by your state? Not sure but hear this is how it happens alot...not worth fighting 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None 9. What state and county do you live in? California, Los Angeles 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Dec 2011 11. What is the SOL on the debt? 4 years 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Suit served..have 30 days to answer 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 30 days to respond; 1.Account Stated (in the body of the cause of action it says “account stated in writing) 2. Money Lent (on the bottom if the pages it says “Complaint for Common Counts” 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Exihibit “A” ~ 1 credit card statement w/ 2 small transactions and a payment..that’s it
  7. Please Help, Suit filed by Portfolio Recovery Asignee of Citibank NA The Home Depot Filed as Civil Citation in Justice Court - State of Texas Amount of suit is just under $2,000.00 Count One is for Breach of Contract which states that the issuance of a card constitutes the offer of a contract. Defendant accepted by using and / or authorizing use. Issuer performed obligations by reimbursing. Defendant breached contract by defaulting on the payment, violating the aforementioned "written contract" Count Two is account stated. This was a credit card. Can account stated be used on a credit card? Count two states Plaintiff is entitled to recover because transactions between plaintiff and defendant gave rise to an indebtedness, there existed an agreement between the plaintiff and defendant which established the amount due to plaintiff, and the defendant promised to pay the indebtedness. Prayer requests response and appearance resulting in judgement for damages, just under 2k, court costs, and all other relief entitled. The affidavit states that the custodian for Portfolio is - Competent to testify in the matters contained herein - An authorized employee of PRA, and is familiar with the policies and practices, as well as the books and records of ACCOUNT ASSIGNEE with respect to the matters stated herein. The affidavit is based on their personal knowledge of ACCOUNT ASSIGNEE'S RECORD KEEPING SYSTEM and their review of the business records of the original creditor, including a review of the business records transferred to account asignee. - According to the business records, the account and all proceeds are now owned by ACCOUNT ASSIGNEE, having been sold, transferred and assigned by the seller on (xx/xx/2013). Affidavit states all power and authority has been assigned to account assignee. - According to records transferred, defendant breached terms of the account in the amount of $x,xxx.xx with respect to account ending in xxxx as of xx/xx/2012. - Affidavit states amount due, once again. - Affirms defendant is not a minor or service member. Signed and Notarized Bill of Sale is included, which makes no mention of account number, original creditor, plaintiff, and date of sale does not coincide with date on affidavit. Only one account statement is included, with account number blacked out, other than last 4 of card. Statement does not list any payment, last payment, etc. Only information is the "New Balance," which is the amount being pursued. One page of statement includes generic verbiage regarding account. No information that would indicate how balance was accrued, interest rate changes, last payment, or any payment, etc. Paperwork is very ambigous. Any assistance is greatly appreciated. I am looking for assistance regarding a proper response. Do I need to request permission to request discovery? How should I respond? Is it possible for breach of contract and Account stated? This is a credit card account. Should I bring into question SOL? Also, should I question custodians knowledge of original creditors policies and procedures, as well as their personal knowledge of account and history of how interest was calculated? Do I bring into question their mention of this being an "Account Stated?" as well as the mention of a "Written Contract?" Furthermore, Can I use defense that Sale date on affidavit does not coincide with "Bill of Sale" that was included. The bill of sale, as stated above, makes no mention of any personal information in regards to the account, original creditor, defendant, amount, etc. Sorry for the information being a bit scrambled. I am attempting to include all that seems relevant without posting verbatim, and am rushing through this as I have 14 days to respond, and only discovered this website yesterday. Any help, again, is greatly appreciated, and I can provide addtl' information as needed. Thank you all in advance, and I look forward to being of assistance in any way I can in the future on this site.
  8. Hello All - Anyway ever have a Bank fail to submit an Affidavit in the Complaint and Motion for Summary Judgement and then just magically produce a new one dated that week and served that day to Defendent in Court? I did. I have been watching this forum for help as I have decided to fight BIG BANK Discover over a credit card debt. I think I have zeroed in on something but need some case law. 1) They filed the Complaint in October, 2014 using an account stated theory with 1 statement attached for a 10 year account. 2) I filed an answer but not an affidavit. I didn't know that I needed to. But I did find some case law disputing that, but the REAL gangbuster is they neither did they. 3) Then they moved for Sumary Disposition, and I responded with genuine issues of material fact, but in the Motion, they explicitly said twice that they had properly filed and Affidavit to the Complaint and that it was also attached to this Motion. Yet, their exhibit summary did not contain it listed and it wasn't there. 4) The Judge offered them two weeks, and the lawyer shot back one. This was on a Friday when on that next Monday both Michigan and Ohio were shut down, including Courts due to a blizzard. The next Friday was the new hearing. I amended my Response with more time and served them on Wednedsay. On Thursday I went to the court to see if they filed anything yet, and they had filed an Affadavit DATED that previous Monday February 2nd, 2015 not October 2014 when they filed the Complaint. It was the standard Robo Affidavit where Discover Bank has its factory in Franklin Ohio by an Abigail Paton of Discover Financial Products (4 entities removed from Discover Financial Services with which the alleged contract was made). I googled and saw Ms. Patton has signed Affidavits as far away as SanDiego. 5) I prepared a Motion to strike that night. Plaintiffs waited to serve me until the actual hearing, and I served them back my pre-paid Motion. Their lawyer got out his law book and started fliiping through it. I asked the Judge to Move to Strike, and he said he would Strike but then asked the Plaintiff if they would just re-file again and he said yes, so the judge changed his mind and said he would give me more time. I said I didn't need it but he seemed like he wanted my motion in writing. I pointed out that the affidavit they neglected to submit with the Complaint affected their account stated theory, and they have failed to produce 4 years of statements, an orginal agreement with terms on it, so there is no way to determine the amount. The six years I did get had 2 purchases totoalling $700 yet I paid $15,000 (or 1700% interest) as far as what they could prove. He "gave me" 2 more weeks but their lawyer was too busy so it ended up being six weeks. QUESTION: Can the Bank claim they filed an affidavit with a Complaint dated in October 2014 and then again in a January 2015 Motion to dismiss and then when compelled to produce the Affidavit because I showed up (unlike 90% who don't bother) and produce an Affidavit dated the next business day (Monday - blizzard Day) 2015 and use it like it just fell behind a file cabinet and they found it? That would certainly make it cheaper for Banks to eliminate the paperwork until someone demands it. You can't swear in legal proceedings that you did something - have someone with knowledge review your records (even though sehe failed to attach them as required) before filing the Complaint, and wait unti the second hearing for a Summay Disposition to creat a new Affidavit. I know there is a problem there, but can't find the Michigan law or case law to cite for the next hearing. Please help - you scholare are fabulous!
  9. My husband has JP court tomorrow in Texas to defend himself in a lawsuit. He was served with the Plaintiff's Original Petition and attached is one statement showing the balance, previous balance, late fee and interest charged. Filed a General Denial and there has been no discovery or contact from Midland Funding. He is due in court tomorrow morning and I have researched this forum and am aware of the defenses of proof a valid contract exists, proof of standing (ownership/assignment), proof that the claim is not barred by the statute of limitations. However not sure how things will proceed in court. Prepared to object to any documents they try to admit to the court. Can someone tell me how the court proceedings in the JP Court goes and if he will need to state his defense in the beginning. He is being sued on Breach of Contract and Account Stated and I have researched this as well. If anyone in Texas could provide more detail as to what will happen in the JP Court and what to expect. Thank you.
  10. Help! Court is coming up next month. I received a "Declaration of Plaintiff in Lieu of Testimony at Trial" and an exhibit which includes a bill of sale, affidavit of sale of individual account, and 17 pages of account summaries. These only include one page of the statements. These do not date back to when the account was opened. What should I do at this point? PLEASE HELP! This is an account stated suit. Thanks!!
  11. I'm new here. I was served by PRA on 4/19, case was filed on 3/27/14 in Florida. Two counts listed: Account Stated & Unjust Enrichment. They submitted page 1 of a credit card statement from Sept 9, 2010 to Oct. 10, 2010 with a min payment due of $1,953. I don't have any paperwork. I pulled my CR and the last payment was on 2/24/2010 on both PRA account information and OC. I am going to file my answers and affirm the SOL defense plus others. My question is, when would I file a motion to dismiss based on the SOL?
  12. Hi, I have requested a BOP from Cach, LLC once with my response and they stated BOP is not applicable so I sent a second request with note that defendant, myself, will move to court for an order requiring a further response or, in the alternative, an order precluding plaintiff from offering any such evidence at trial. They responded: In light of the foregoing, please be advised that we will not provide further responses to your request; however, Plaintiff will provide all available documentation in response to the discovery propounded pursuant to the Civil Discovery Act. Three questions: #1 Since the cause of action is "Breach of Contract" and "Account Stated" should I file for a MTC BOP? #2 I received their Discovery executed on May 3rd 2013 but have not answered yet or sent my own Discovery to them. What would you suggest my next move be? #3 I was recently diagnosed with a very rare disease Idiopathic Intracranial Hypertension (pressure in brain with unknown cause or cure) causing me much pain, seizures and vision problems. Might be needing a surgery and all of this is just to much to handle at once. Do I have any rights to put this lawsuit on hold pending my health crisis? Much help needed to keep the fight in me against CACH, LLC. Thanks!
  13. 1. Who is the named plaintiff in the suit? Citibank 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Silverman & Borenstein 3. How much are you being sued for? ~ 6k 4. Who is the original creditor? (if not the Plaintiff) OC 5. How do you know you are being sued? (You were served, right?) Served 6. How were you served? (Mail, In person, Notice on door) Personally 7. Was the service legal as required by your state? Yes Process Service Requirements by State - Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? Received dunning letter; timely sent validation letter; received a response giving me the name and address of the creditor. 9. What state and county do you live in? colorado . La Plata 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Never - but attached statement has a date within SOL 11. What is the SOL on the debt? To find out: - It's within SOL Statute of Limitations on Debts 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Served about 10 days ago. There isn't a case file yet, but clerk said they usually file electronically a few days before the response date (June 10). 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) I recently sent a dispute to Equifax. Still waiting to get Trans and Exp via mail. 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. Yes and they responded with the name and address of the creditor. 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? I must file by June 10. Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They attached an affidavit and a statement. The affidavit looks to be robo signed. Should I attach a redacted version?
  14. Hello everyone, I am being sued for CC debt by Midland and need some help (even after reading bmc100's thread and tons others), it mostly pertains to the answer. I want to thank you in advance for your help! I would love to put together a form for every step of my Michigan suit, so others could simply enter their information and tune some of the responses to their particular case. Hopefully that would lift some burden off anyone sued in the future. I have attached the entire complaint (edited of course) and listed a google drive location below where you can view it Link: Removed until fully edited Basically I'm not sure if this is account stated or breach of contract. I'm leaning towards breach of contract, but I'm not sure. Complaint: 1. The plaintiff is the owner of the within credit card account through Purchase, bearing account number XXXXX. 2. By use of the account, the defendant became bound by the terms in the credit card agreement. The existence is established in the exhibit attached hereto as Exhibit A. 3. The plaintiff has exercised its rights pursuant to the terms of said agreement to accelerate the time for payment of the entire balance due and owing by the defendant to the plaintiff. 4. That there is now due and owing to the plaintiff by the defendant, the sum of $1500ish on said credit card agreement. 5. Although demand has been made upon the defendant to liquidate the balance due and owing, the defendant failed to do so. I don't see an affidavit in here dated even close to the summons date. If none, do I file a MTD or MSJ? I’d like to just get a PTD at a reasonable price so it is removed from reporting. If it is breach of contract, did they need to attach the contract? They one have the front and back of a statement! If it is account stated, Here are my current Answers and Defenses: 1. Denied: Responding Party objects to this request on the ground that it is vague, ambiguous and unintelligible in that Responding Party has to speculate as to the meaning of "the credit card" and "the account." 2. Denied: This request calls for admission of matter defendant has denied and thus it is improper. 3. Denied: This request calls for admission of matter defendant has denied and thus it is improper. 4. Denied: This request calls for admission of matter defendant has denied and thus it is improper. 5. Denied: This request calls for admission of matter defendant has denied and thus it is improper. AFFIRMATIVE DEFENSES (Should I use this? Do I need to list a defense for each complaint item?) As and for a Defense The plaintiff has failed to provide legal evidence that they are legally entitled to collect the debt. I will add the certificate of service. If it is Breach of Contract, I really haven't seen any answers. So i could use some help. Questions Summarized Breach of contract or Account Stated? ACCOUNT STATED Is there an affidavit? NO Should I file an Answer, MSD, or MSJ? Is my answer good and complete? Or should I just use an Affirmative Defense? Should I attach an affidavit? 1. Who is the named plaintiff in the suit? Midland Fundling LLC 2. What is the name of the law firm handling the suit? Weltman 3. How much are you being sued for? $1500ish 4. Who is the original creditor? Midland Fundling LLC 5. How do you know you are being sued? Summons 6. How were you served? In person, at home 7. Was the service legal as required by your state? Yes 8. What was your correspondence with the plantiff before you think you were being sued? Calls I think, but I'm not sure. 9. What state and county do you live in? Michigan 10. When is the last time you paid on this account? I don't recall 11. What is the SOL on the debt? SOL is 6 years I think, the debt is not older than 3 years. 12. What is the status of your case? Suit served? Motions filed? I have until Friday to file an answer o MTD. 13. Have you disputed the debt with the credit bureaus? No 14. Did you request debt validation before the suit was filed? No 15. How long do you have to respond to the suit? I have until Friday to file an answer or MTD. 16. What evidence did they send with the summons? The entire complaint is on a google drive that is viewable in PDF here: Removed until fully edited Again, I thank all of you in advance for your help and comments. I apologize if there is a thread that I missed, I have been searching this site for a little over 2 weeks.
  15. I am being sued by a JDB. I simply cannot tell if it is for account stated or other. I was hoping if I put more info here I could get some input? The JDB did not attach any documentation to the complaint. they state I entered into a credit card agreement on such-and-yay date. they state I purchased goods with the line of credit they state I defaulted under the agreement despite demands by oc they state the oc charged off the balance they state the oc sold the blance to the JDB they state I owe the JDB How do I determine this then? Thanks so much
  16. I just recently sent a last minute BOP (7/26/13 they received 7/30/13) and received a response of "Our Office received your Demand for Bill of Particulars dated July 26, 2013. Per CCP 2024.40(a), your request is untimely and therefore no response will be provided . Please note, Plaintiff did supply 117 pages of billing statements in response for your request for production of documents on November 30, 2012. " I am sending them a meet and confer notice stating " On July 26th, 2013, Defendant served its request for a Bill of Particulars on Plaintiff. Pursuant to CCP section 454, Plaintiff has ten days to respond or it will "be precluded from giving evidence thereof. " As described below, plaintiffs’ response is entirely deficient. Plaintiff has not provided an itemization of the account showing all items and details of the account on which the cause of action for unjust enrichment by goods sold and delivered, money had and received, and /or money lent or paid of plaintiff’s complaint is based, including the date of each transaction, a description of the services, materials or goods supplied or other considerations rendered, the price or charge made for each item, and all payments or credits that have been made to the account including details of interest calculation or fees charged at issue in this litigation. Such basic information is required to prove plaintiff’s claim. Plaintiff should have such information readily at hand. If not, it is difficult to understand how plaintiff acquired a good faith basis to file the lawsuit. Please serve a full response on or before August 9, 2013. If Plaintiff fails to do so, Defendant will move the Court for an order requiring a further response or, in the alternative, an order-precluding Plaintiff from offering any such evidence at trial." Problem is that my trial date is August 12, 2013. Background of my case is as follows: 1. Who is the named plaintiff in the suit? Capital One Bank (USA), N.A. 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Michael Boulanger, ESQ Law Offices of Patenaude & Felix, A.P.C. 3. How much are you being sued for? $2882.29 4. Cause of Action: Common Counts " because an account was stated in action between plantiff and defendant in which it was agreed that defendant was indebted to plaintiff." "This cause of action is based upon account number XXX for the sum by which Defendant has been unjustly enriched by virtue of Defendant and/or accepting benefits bestowed. It is inequitable for defendant to retain said benefits without repaying Plaintiff the value thereof." 5. How do you know you are being sued? (You were served, right?) Serviced at my front door 6. How were you served? (Mail, In person, Notice on door) In Person 7. Was the service legal as required by your state? Yes 8. What was your correspondence (if any) with the people suing you before you think you were being sued? They may have sent notice however I was in the process of changing addresses and do not recall a letter, received summons at new address. 9. What state and county do you live in? San Joaquin County, CA 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 7/4/2011 11. What is the SOL on the debt? 4 years 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Court date for 8/12/13 at Superior Court of CA, County of San Joaquin I filed/sent an Answer, Request for production of documents (12 Items) which they sent Credit card statements back to Aug 2008 (it had a beg bal of $2,642.92 at that time) and a Customer Agreement Copyrighted 2010, Case Management Statement (12/3/12), Bill of Particulars (7/26/13), going to send Meet & Confer (8/5/2013), I have not a trial brief. They Sent Summons 5/11/12, CMS, Production of Docs 11/30/12, Meet & Confer 7/30/13 (regarding BOP), Trial Notice 7/8/13. Need advice on Filing motion to Precluding Plaintiff from offering any such evidence at trial (not sure if filing it on 8/9/13 is ok), Also trial prep and defenses for account stated.
  17. I am doing more research into defenses against account stated causes of action; Some I am thinking of; 1. That it can be equally implied that failure to make a payment can be evidence that a billing statement was NOT sent to a party. 2. That an account stated that is implied by failure to dispute a billing statement is a non written contract and subject to the 2 year SOL in CA. and the shorter time in other states. 3. That the FCBA does not state that failure to dispute implies ascent to the billing amount. 4. That objecting to billing statements after recieving them in discovery constitutes a written dispute if it is alleged in the answer that you denied the claim that billing statements were sent to you. 5. That the shorter 2 year time would mean there is no duty to pay a debt a third paty alleges after a failure to dispute 6. that suing on an account stated theory after the two years SOL would constitute a FDCPA or state equivalent. 7. That just because a billing statement is addressed to someone does not mean that the addressee is a party or the debtor for a particular account. Billing statements lack significant identifying information. Also we need to look into how the billing statements are made what process and data are combined to make a statement. 8. That the use of discovery sanctions will be helpful in any suit, as pro pers cannot get legal fees the court would have to entertain exclusion of evidence in certain areas. 9. show that the account stated is not valid in credit card cases. 10. Show that credit card transactions are not accounts for purposes of but an extension of contractual conduct by the parties. and we must refute stuff like this:
  18. My name is nowhere on the account they are suing over! My 2nd (continued) pre-trial is scheduled for the end of Feb. I am pro se and I want to have it dismissed without going to trial if there is any way possible. I cannot believe there is no way to do so when he can provide NOTHING with my name on it. I don't believe they could get this far with it! Guess I am naive. I have answered the forum's suggested questions below. I have been researching many threads (esp FSUgirl07 since she is also in FL dealing with a JDB), but I haven't run into any where they actually have the wrong name. Hope you all are willing to help me out - your responses have been amazing. Thx. If you are inquiring about a lawsuit in which you are the defendant (ie you are being sued), you need to answer the following questions (as much as possible): 1. Who is the named plaintiff in the suit? CAM1 LLC dba CAM1 LLC of Georgia 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Law Offices of Andreu, Palma & Andreu,PL of Miami, FL 3. How much are you being sued for? about $4800.00 plus int. and atty fees 4. Who is the original creditor? (if not the Plaintiff) US Bank National Association ND 5. How do you know you are being sued? (You were served, right?) Served at home to husband. 6. How were you served? (Mail, In person, Notice on door) In person to husband 7. Was the service legal as required by your state? Yes 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None 9. What state and county do you live in? Pinellas County Florida 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Never 11. What is the SOL on the debt? 5 years 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Attended pre-trial conference as per summons. Explained it was not my card. Showed atty statements with the account number he identified in my (adult) daughter's name. 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Disputed with OC through a letter from my attorney in which he told them to cease and disist ,disputed with one credit bureau verbally. 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. NO 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? i attended the pre-trial as per the summons. No written answer is required in FL. First cause of Action: Account Stated. 2nd cause of action - Unjust Enrichment. I told court officer it was not my cc. She asked if I wanted to see the judge, I agreed. Attny & I went before the judge. I told her it was not my card. I showed her my copy of dispute to US Bank as well as their response which included cc statements from 3/10/06 to 3/10/10 - ALL addressed to my daughter (same last name at the time). Judge noticed the lack of account number. Judge directed attny to send me copy of cc application with my signature and copies of statements with my name on them within 30 days. I have not received them - he has untl 2/6. But the atty sent me notice and copies of 2 Bills of Sale and Assignment of Assets referring to each of the assets identified in a list as Exhibit A. Of course, the list was not attached to my notice. (He also sent me requests for Production, Admissions and Interrogatories. I have been writing an objection to his requests for discovery because I am pro se and he is not allowed to initiate discovery without permission of the court, unless I have already done so. I have a second (continued) pre-trial end of February. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. No evidence sent with summons. There was not even an account number on the paperwork, but I knew which account they were referring to from prior collection attempts from a number of different collection companies. ABSOLUTELY NOTHING - I FIND IT ASTOUNDING
  19. I am wondering if there is a case where somebody has won a motion to compel in regards to a BOP where there is both account stated AND breach of contract.
  20. Got summons in MI from Zwicker/Amex Looks like they are learning so I am posting info so you can see what to expect and I welcome suggestions as I form my response. COMPLAINT quote(MCR 2.113©(2)(a) Plaintiff, amex, by and through it's attournys, Z&A, P.C. for it's complaint about againts xxx ("XXX"), states as follows. PARTIES 1. Plaintiff, amex, has a principal place of business located in SALT LAKE CITY, UTAH. 2. Defendant, XXX, is an individual who resides in XXX, MI. (which we dont, we moved) 3. The amount in controversyis less than Twenty-five Thousand Dollars. A. BREACH OF CONTRACT 4. Plaintiff incorporates by reference paragraphs one (1) through three (3) above as fully set forth herein. 5. On or about 8/11/2005, XXX entered into a contract with amex for credit services ("Contract") and amex established a credit account for XXX, Account No. XXXXXXXXXXXXXXXXXX. ("Account") 6. At or about the time XXX received the credit card, amex provided XXX with a Cardholder Agreement which detailed XXX's obligations and liabilities for all credit extended by amex. Attached as Exhibit "1" is a copy of the cardholder agreement XXX was subject to at the time of default. 7. Pursuant to the terms of the Contract, amex, on various dates provided credit services to XXX in exchange for XXX'x promise to pay for said services as billed on a timely basis. 8. amex has substantially and materially performed all of its obligations pursuant to the contract for the Account. 9. As of 8/4/2010 the Account's outstanding balance for the credit services extended to XXX is $xxxx.xx. 10. As of today's date, XXX fails, refuses, and/or neglects to pay amex the balance due and owning pursuant to the Account contract for the credit services previously extended. 11. XXX has materially breached the terms of the Contract. As a result, amex, has been damaged in the ammount of $xxxx.xx. B. ACCOUNT STATED 12. Plaintiff incorporates by reference paragraphs one (1) through eleven (11) above as fully set forth herein. 13. The parties entered into a contract whereby amex provided credit services to XXX based upon the promise of XXX to pay for same. 14. Amex promptly performed all obligations pursuant to the Contract and rendered monthly statements to XXX detailing the credit extended and the amounts due and owing for the Account. 15. Prior to the filing of this Complaint, XXX made no objection to said statements or any part thereof. 16. There is presently dur and owning over and above all counterclaims, the sum of $xxxx.xx. 17 Despite amex's demands for payment, XXX has refused to make payment on the balance due and owing for Account. 18. Pursuant to MCLA 600.2145, an Affidavit of Account Stated indicating the amount owed by XXX and is attached hereto and identified as Exhibit "2". C. UNJUST ENRICHMENT 19. Plaintiff incorporates by reference paragraphs one (1) through eighteen (18) above as fully set forth herein. 20. At the express request of XXX, amex furnished credit services to XXX. 21. XXX has received the use and benefit of the credit services without payment of full consideration. 22. Justice requires XXX to pay for the use and benefit of the credit servcies furnished by amex. 23. The value of the credit services furnished to XXX which remains unpaid is $xxxx.xx. 24. As a direct result of XXX's actions and/or omissions, including failure to pay amex for the value of the credit services received, XXX has been unjustly enriched at the expense of amex. RELIEF REQUESTED WHEREFORE, Plantiff requests this Honorable Court to: A. Enter a judgement regarding Account No. XXXXXXXXXXXXXX in favor of amex against XXX, in the sum of $xxxx.xx, plus plaintiffs attourney's fees and costs to the extent permitted by applicable law; and B. Grant such other relief as is just and appropriate under the circumstances. Exhibit 1 - Copy of Contract (no signature) Exhibit 2 - Affidavit of Account Stated (basically a notarized final statement) Needless to say I feel a bit overwhelmed by the 3 pronged attack. Our goal is to get a settlement for 30%-50% of the amount owed. Please use this info to your advantage in the escalating battle against creditors and again I welcome any informed advise.