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  1. 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?