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Credit card contract


goldie
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:)++Hi all! I have questions:?:. I am not being sued yet by my other creditors, but I am already doing my research so that I won't be stupid like my first suit where judgment was granted against me:oops:.

For every affirmative defense, the defendant has to be ready to defend/explain at the trial, I suppose. So my question is . . . if I were to pick Statute of Frauds as one of my affirmative defenses against the original creditor who is the plaintiff, then I should know if all credit card contracts fall within a class of contracts or agreements that are required to be in writing?

I am very sure that I have not signed any credit card contract with the original creditor. Then what about the monthly statements that the original creditor can come up with? Do statements carry weight in a lawsuit?

Please enlighten me:!: Thanks in advance.

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:)++Hi all! I have questions:?:. I am not being sued yet by my other creditors, but I am already doing my research so that I won't be stupid like my first suit where judgment was granted against me:oops:.

For every affirmative defense, the defendant has to be ready to defend/explain at the trial, I suppose. So my question is . . . if I were to pick Statute of Frauds as one of my affirmative defenses against the original creditor who is the plaintiff, then I should know if all credit card contracts fall within a class of contracts or agreements that are required to be in writing?

I am very sure that I have not signed any credit card contract with the original creditor. Then what about the monthly statements that the original creditor can come up with? Do statements carry weight in a lawsuit?

Please enlighten me:!: Thanks in advance.

If you didn't sign anything; how did you obtain the credit card(s) or are you saying that this isn't your debt(s)?

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I received something (an offer) in the mail from the credit card company and had options to either reply by mail or call their 1-800 number and referencing a set of number mentioned in the letter. I opted by calling the credit card company. I gave the reference number and they interviewed me. When I got the card, I called in to activate the card.

That is how I got the credit card.

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I received something (an offer) in the mail from the credit card company and had options to either reply by mail or call their 1-800 number and referencing a set of number mentioned in the letter. I opted by calling the credit card company. I gave the reference number and they interviewed me. When I got the card, I called in to activate the card.

That is how I got the credit card.

There doesn't always have to be a piece of paper with a signature on it to constitute a legal, binding contract.

You applied for the card (over the phone), I assume you then got the card, activated the card and used it (probably made a payment or two as well I would assume). If you are trying to say that the statute of frauds applies here because you didn't sign a piece of paper then I would suggest that you are barking up the wrong tree with that one.

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Thanks for clarifying. I should not claim Statute of Fraud as one of my affirmative defenses when the plaintiff is the original creditor. It should only be claimed when the plaintiff is a third party (collection agency or JDB) who bought my account from the original creditor. Hoping it would be so.

Now, there is another affirmative defense that I am having difficulty understanding. From some of my readings, most of the defendants were claiming Accord and Satisfaction as one of their affirmative defense. Here is an example:

“Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits”.

However, as I was doing my research I found these (please see below). The Law does not state about a third party making payments. So why does almost everybody claiming Accord and Satisfaction as affirmative defense. One has to remember that the defendant bears the burden of proving it. The defendant did not make the payment, it was the third party. Somehow, this one does not click at all to me unless, you have something to say that will convince me otherwise.

1) Copied from the court form:

Attachment 4 - AFFIRMATIVE DEFENSES

Check all boxes that apply to your case

• Accord and Satisfaction

You may use this defense if you and the plaintiff agreed to settle the claim for a lower amount than the lawsuit is asking for and you have paid the lower amount.

2) Copied from uslaw.com:

In contract law, accord and satisfaction is the purchase of the release from a debt obligation. The payment is typically less than what is owed and is not paid by the actual performance of the original obligation. The accord is the agreement to discharge the obligation and the satisfaction is the legal "consideration" which binds the parties to the agreement.

If a person is sued over an alleged debt they bear the burden of proving the affirmative defense of accord and satisfaction.

Accord and satisfaction is a settlement of an unliquidated debt. For example, a builder is contracted to build a homeowner a garage for $35,000. The contract called for $17,500 prior to starting construction, to disburse $10,000 during various stages of construction, and to make a final payment of $7,500 at completion. At completion, the homeowner complained about inferior work quality and refused to make the final payment. After a mutual settlement agreement, the builder accepted $4,000 as full payment. Thereby, a new contract was formed by offer, acceptance, and consideration. The consideration is that for a $3,500 savings, the homeowner gives up that which he is entitled, a well-constructed garage. The builder gives up his right to full price to avoid suit for inferior performance. When accord and settlement has occurred, the homeowner and builder have given up his right to sue for more money under this settlement agreement.

The accord agreement must be transacted on a new agreement. it must therefore have the essential terms of a contract, (parties, subject matter, time for performance, and consideration). If there is a breach of the accord there will be no "satisfaction" which will give rise to a breach of accord. In this instance the non-offending party has the right to sue under either the original contract or the accord agreement.

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