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What do I do with an Affidavit of Debt(from JDB) and Account Stated(from JDB) in MO


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I am being sued in Missouri by a JDB. In the summons they attached an Affidavit of Debt( from JDB), Account Stated( from JDB) and Visa/MasterCard Agreement. How do I counter these? I go to trial in a month.

Do I need to file some type of affidavit denying it?

I have filed discovery, but have not heard back from the attorney. I did not file an answer because I was not required to. I have only found info on how to fight the affidavit if I filled an answer.

Thanks

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I don't know the specifics of how the court system works in Missouri, but in general: An affidavit from the JDB is worthless, it should be attacked as hearsay. Only an affidavit from the Original Creditor by someone with first hand knowledge is good enough.

Regarding "Account Stated", this claim by a JDB is defeatable. Go searching for "account stated", but here's the basics: "Account Stated" is a legal theory for claiming money owed. The JDB will claim that they sent you a demand for money, and when you didn't dispute it, it became an "account stated." The flaw should be obvious: If I sent you a letter claiming you owe me money, and you throw it out since it's clearly from a crackpot, can I claim you have agreed you owe me money? Of course not.

There are some requirements to establish an "account stated." First, it must be based on prior transaction between the parties. But I'm sure you didn't have any prior transactions with the JDB. Next, there must be an agreement as to the amount due. If a business you regularly do business with sends regular statements, and you don't dispute them, this can be the basis for an "account stated" cause of action. But the JDB is trying to claim the same status, without the prior business relationship. There is case history that the mere presentation of a claim cannot create an obligation.

Good luck.

DH

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My state allows account stated lawsuits, but the affidavit filed with the complaint must be from the original creditor, not the CA or JDB. The CA's and JDB's file the affidavits, but they are almost always internal documents from them that do not meet statutory requirements. Here, you are required to file an affidavit denying the CA affidavit, or a default will be entered. Attorneys who defend these cases are having success attacking the CA affidavits because they do not meet statutory requirements. If the affidavit is done correctly (ie by the original creditor), then it will probably meet the business records exception to the hearsay rule. In plain English, that means it can be used in evidence to prove the case against you.

I think you need to see if your state allows account stated lawsuits.

The CA's don't follow the rules because no one makes them. Even though the affidavits are not done correctly, most of the cases are won by default.

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Is this Gamache and Myers? No, it is not.
I think you need to see if your state allows account stated lawsuits. Where did you find this info?

admin - thanks. I will look at it.

Credithis - You should start another thread so people will see your question.

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  • 2 months later...

Regarding "Account Stated", this claim by a JDB is defeatable. Go searching for "account stated", but here's the basics: "Account Stated" is a legal theory for claiming money owed. The JDB will claim that they sent you a demand for money, and when you didn't dispute it, it became an "account stated." The flaw should be obvious: If I sent you a letter claiming you owe me money, and you throw it out since it's clearly from a crackpot, can I claim you have agreed you owe me money? Of course not.

There are some requirements to establish an "account stated." First, it must be based on prior transaction between the parties. But I'm sure you didn't have any prior transactions with the JDB. Next, there must be an agreement as to the amount due. If a business you regularly do business with sends regular statements, and you don't dispute them, this can be the basis for an "account stated" cause of action. But the JDB is trying to claim the same status, without the prior business relationship. There is case history that the mere presentation of a claim cannot create an obligation.

In my cases, the JDB is not claiming 'account stated' between debtor and JDB, but between debtor and OC.

But that's a good thing because for a charged off account that is years old, they are not going to have a witness from the OC show up to testify to the account statements.

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Seems like there is way too much thought being put into this.

Why do you not just file an answer to the complaint & pursue your discovery requests further (i.e. motion to compel)?

Seems like you're taking your eye off the ball here & focusing on the wrong part of the game. If you pursued discovery & they produce a signed contract, you're pretty much done...if they do not, you're gold.

I am in missouri as well & you should be nailing their butt to the wall on discovery instead of doing whatever it is you're doing. If they can't produce the necessary evidence in your discovery request, their case is over....understand? If they don't respond to your discovery, you file a motion to compel & the judge will grant your motion to order the plaintiff to respond. All of this hoopla is basically just leading up to the plaintiff dismissing the case on their own. This is just a poker game & they'll take it as far as you let them so you need to stop them in their tracks & get on top of your discovery situation. Until you handle that, there's not much else for you to do.

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