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A lawyers advise is needed....(I sent CitiBank a Novation fo


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This a letter that i sent Citi Bank for a novation for a new contract. I need to know if this is legal and will this stand up in court. I need a lawyers view on this. They cashed the check for $10 and excepted the new contract.

Re[TAB]Notice of Final Payment - Account Number xxxx-xxxx-xxxx-xxxx

Greetings:

Thank you for accepting the enclosed final payment of ten federal reserve notes ($10) as consideration for this agreement. This notice constitutes a good faith dispute as required by state law. Your objection to this dispute will not be sustained because this notice meets all legal requirements for a novation.

Notwithstanding any other previous terms for the above stated account number,

1. You accept this payment as payment in full accord and satisfaction and you agree to each and every subsequent term stated herein, without recourse or reservation.

A. The term “disputed account” means the account number stated above.

B. The term “you” includes but is not limited to any organization or individual seeking to pursue any claim against me, the account holder for the disputed account, relating to the disputed account.

C. The term “discovery” has the same meaning as the definition appears in the rules of civil procedure.

D. The terms “competent” and “qualified” have the same meaning as the definition appears in Black’s Law Dictionary, 6th Ed.

2. You waive all claims against me, with prejudice.

3. You waive all rights to arbitration, with prejudice.

4. You admit and agree that you lent nothing to me regarding this account and that you will disclose and produce any and all records and information relating to the disputed account including but not limited to disclosure of the description of the physical location where the funds purportedly lent were held prior to my account being opened. You agree to identify the account that was debited so that my account could be opened and to explain the origination of the funds debited. You agree that you deceived me into believing that you were lending me money in order to obtain my credit application.

5. You waive all rights to protections against discovery, production and disclosure of records and information relating to the disputed account, with prejudice. You agree to produce a competent and qualified witness to be deposed and produce records, including but not limited to any custodian of records, account representative, auditor, loan originator, loan officer, accountant or other individual responsible for the accounting function and/or having access to the records relating to the disputed account. You also agree to a jury trial and to waive all rights to a non-jury trial. You also agree to waive all jurisdictional challenges to any lawsuits or counterclaims I may file against you.

6. You agree to report this account to all credit bureaus and other third parties as “paid as agreed.”

7. You agree that you owe me the balance equal to the purported credit limit on this account, plus interest and fees; however, if you agree not to pursue any claims against me, I am willing to waive my claim for the return of my deposit (credit limit). Be advised that my waiver is contingent upon your choice not to pursue any claims against me.

8. The date of last activity on this account is the date of this notice.

9. If you return this final payment, you agree to return my deposit (value of the highest credit limit). If you reject this payment and fail to return my deposit, you consent to all the terms herein and to being sued for the return of my deposit, plus interest, costs and fees.

10. You agree to comply with all terms of this agreement within thirty (30) days of receiving this notice.

11. If any provision of this agreement is found to be not enforceable by order of a court of competent jurisdiction, it shall not adversely affect any other provision of this agreement and reasonable opportunity and effort shall be taken to modify such term to become enforceable.

Best regards,

:) :)

I also did this to 2 other creditors and they also cash the checks...LOL

[Edit by Bryan on Wednesday, June 4, 2003 @ 06:21 PM]

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Not sure this is going to get you anywhere.

Unlike assignment, in which a person can transfer their rights, benefits and liabilities under a contract to another person and the original contract stays intact and party transfers rights, benefits and liabilities under a contract (the assignor) to a new party (the assignee), novation is the replacement of one contract between two parties with another contract, either between the same parties or others. For example, if I had a contract with you to cut my lawn and if John had a contract with me to cut his lawn, we could novate both contracts and replace it with a single contract wherein you agree to cut John's lawn.

Contrary to assignment, novation requires the consent of all parties. Consideration is still required for the new contract but it is usually assumed to be the discharge of the former contract.

The criteria for a successful novation is the complete acceptance of the liability by the new debtor, the acceptance of the new debtor by the creditor, and the acceptance by the outgoing creditor of the new contract as full performance of the old contract.

Michael

[Edit by ms6073 on Wednesday, May 28, 2003 @ 08:21 AM]

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