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Breach of Contract Complaint


delta1
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Accepted service (in Florida) for my husband today from AMEX. Suing for Breach of Contract and unjust enrichment. Only attached what they refer to in the complaint as "A true and correct copy of the Agreement applicable to the account which was mailed to the Defendant is attached hereto and incorprated herein by reference".

Have no real defenses - just hard times. They state the account was breached in October 08 which is correct. My husband has been talking directly with AMEX about payment arrangements as recent as last week and was not expecting this. Just trying to by time until the holidays are over to really deal with this.

Need to submit an answer within 20 days and was wondering if the exhibit is sufficient for COA? Just your standard agreement. No statements, no accounting, no signatures or accpunt numbers on the Exhibit Agreement. Just the lawyers averments. I am pretty sure AMEX has statements since the breach is so recent - just can't figure out why they didn't attach.

Also they combined 2 accounts in one complaint - Count I & II BOC and Unjust for the Optima Revolving Card and III & IV same for the Gold Card (net 30 in full). They only attached one Agreement which appears to be for the Optima and those terms for repayment do not apply to the Gold Card. Shouldn't he have attached 2 separate Agreements?

Like I said, just trying to by time - any input is more than welcomed.

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YOU NEED TO HEAR FROM 'NASCAR' ON THIS!!!!! In a post a few weeks ago, Nascar had some great conments on how breech of contract and unjust enrichment are mutually exclusive. I don't want to over-speak and possibly mis-lead you but I'm sure he would have some valuable insight.

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breech of contract and unjust enrichment are mutually exclusive.

Yes, that's right. A plaintiff can only prevail on an unjust enrichment claim in the absence of a contract. The two examples below state that point about as clearly as it can be stated. I know you're in Florida, but this is a basic doctine followed everywhere.

The theory of unjust enrichment applies when as a matter of fact there is no legal contract . . ., but where the party sought to be charged has been conferred a benefit by the party contending an unjust enrichment which the benefited party equitably ought to return or compensate for. Tile Distribs., Inc. v. Zumpano Enters., Inc., 422 S.E.2d 906, 908 (Ga. Ct. App. 1992)

"njust enrichment is a quasi contract claim based on equitable principles." Feen v. Benefit Plan Administrators, 1999 Conn. Super. LEXIS 73, Superior Court, judicial district of New Haven at New Haven, Docket No. 406726 (January 13, 1999) (Devlin, J.). "Proof of a contract enforceable at law precludes the equitable remedy of unjust enrichment . . . at least in the absence of a breach of the contract by the defendant . . . a nonwillful breach by the plaintiff . . . or a mutual recission of the contract." (Citations omitted; internal quotation marks omitted.) Polverari v. Peatt, 29 Conn. App. 191, 199, 614 A.2d 484, cert. denied, 224 Conn. 913, 617 A.2d 166 (1992).2000 Conn. Super. LEXIS 1667, Gatt v. Waterbury, 2000 Conn. Super, LEXIX 1667, Superior Court, Judicial District of Stamford-Norwalk at Stamford, June 29, 2000
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