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thazallfolks
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Two years and two months ago, I showed up for court after being sued by Portfolio Recovery Associates for a Providian card from 2000 or so. They had no paperwork, asked for and were given a continuance.

This week I received a summons to appear for trial on the same deal.

Any paperwork that I may have had I threw away after a year. So, I have nothing. Remember this is after two years and two months.

The debt is no longer on my CR.

They filed suit for "account stated" so they would have longer SOL.

Please let me know if more info is needed. That is, if I can remember.

Any suggestions appreciated.

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  • 2 weeks later...
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Account stated has a very specific definition in Alabama case law, it must be a "new agreement to pay" (implied or explicit) and NOT simply collecting under the original agreement or instrument. Attack that for all you got. If you blow account stated out of the water, it has to be accepted as open and therefore subject to the regular SOL.

http://www.birminghambar.org/data/SlipOpinions/CivApp/2020728.htm

"An account stated is a post-transaction agreement. It is not founded on the original liability, but is a new agreement between parties to an original account that the statement of the account with the balance struck is correct and that the debtor will pay that amount. It is as if a promissory note had been given for the balance due.

"A prima facie case on an account stated is made when the plaintiff proves (1) a statement of the account between the parties is balanced and rendered to the debtor; (2) there is a meeting of the minds as to the correctness of the statement; and (3) the debtor admits liability. The debtor's admission to the correctness of the statement and to his liability thereon can be express or implied. An account rendered, and not objected to within a reasonable time becomes an account stated, and failure to object will be regarded as an admission of correctness of the account."

University of South Alabama v. Bracy, 466 So. 2d 148, 150 (Ala. Civ. App. 1985)(citations omitted).

The first element in establishing a cause of action for an account stated requires that a statement of the account be "balanced and rendered" to the debtor. In Car Center, Inc. v. Home Indemnity Co., 519 So. 2d 1319, 1323 (Ala. 1988), our supreme court held that a creditor had not proven a "rendering of the statement of the account" when the creditor had "no competent testimony concerning the actual mailing of the statement." The court noted that the affidavits submitted by the plaintiff in that case did not provide facts describing the plaintiff's mailing procedures or indicate that the affiant had knowledge of the plaintiff's mailing procedures. Id. at 1323.

In the instant case, there is no evidence indicating that Cavalry properly rendered the statement of the account to Ayers. The affidavit attached to Cavalry's motion for a summary judgment does not indicate that the affiant had any knowledge of the mailing procedures used with regard to sending Ayers a statement of her account. The affidavit stated, in pertinent part:

Check out www.alabamaconsumerlawblog.com and even ask for a phone consult. They are very helpful.

Edited by ALVA
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I don't wish to beat up on the OP here as almost everyone is guilty of throwing out documents we perhaps should not have but this should be a bit of a lesson to folks...

When it comes to debts/financial obligations; most especially when there is any sort of "collections" involved and most especially when there has/may be court action involved NEVER THROW OUT ANYTHING that sheds light on the debt, when it was established, paid off, agreements made, etc.

I realize that there are some who feel that "testimony" about what happened/what you remember is "enough" or just as good but IMAHO, nothing beats legitimate, on point/original documentation.

When in doubt; keep it.

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While I agree with Nashville that it's a lesson learned, it seems that a 2000 credit card would be easy enough to argue. Since the burden of proof lies on them, beat the hell out of their affiant's credibility. Ask whether or not she/he had knowledge of how Providian kept records, and how the records were transferred, and how the records were put in Porftolio's database, and whether or not she/he was a worker of both Providian and Portfolio and can testify to the accuracy of the affidavit. Basically you'll end up using the Chain of Custody defense method by questioning the credibility of the records. ANd a motion to strike the affidavit wouldnt' hurt either.

Just my 10 cents.

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I never had any communication with these guys until I received the court summons 2 years ago. So, I never had the chance to ask for proof of the debt. When I showed up for court, the lawyer for them told me that they had no evidence at all. That is why he asked for a continuance.

I sent them a letter after that day reqesting all paperwork/documents they had regarding this case. I sent it CM/RRQ and got the green card back. Never received anything from them. Of course, I dont have the card anymore.

In the above post it says that if I do not oblect to the correctness of the debt then it is considered a "meeting of the minds" and considered account stated. I never received anything from these clowns. Wont they have to prove that I received their letters by showing that I signed for them?

Thanks for your help.

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Find out what happened to the original suit - was it dismissed with or without Prejudice. If With Prejudice then you file an Answer claiming "Res Judicata" (meaning it has already been decided by a Court) and a counterclaim for the FDCPA violation of misrepresenting the legal character of the debt.

If Without Prejudice you file an Answer claiming the SOL defense and get the proof from their records in Discovery and file the same counterclaim.

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A continuance that was indefinite? Check your court records, it may have been dismissed for lack of prosecution or for going dormant or some other technicality. I don't think most courts let things just sit for years on end.

Wont they have to prove that I received their letters by showing that I signed for them?

No, they won't have to prove it. If mailing a "rendering of the statement" or whatever is part of their regular business practice, then they don't have to prove you received it, only provide evidence that they probably sent it which you have to try to counter. You can attack any witness to their mailing practices etc. Attack the accuracy of their address records (that's how I won against account stated) if you've moved anytime between then and now or attack the entire theory.

Notice also it is supposed to be a "new agreement", so collections efforts for the original debt can be evidence against account stated.

Edited by ALVA
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I am no lawyer, but it seems to me (and an attorney has agreed with me) that if a new agreement was reached either by your spcific action or your failure to dispute the rendering, collections efforts would center on that. If, for example, you sign up on a hardship program for reduced interest and account freezing, that's a new agreement...if they went to collect, they would try to collect based on the new terms, not the original terms.

In the case of a jdb it would be an agreement with the new debt owner, not your original CC, and collections efforts should state something to the effect of "We sent you an account rendering and statement and you failed to dispute it so you need to pay as implicitly agreed blah blah".

Midland's only collection activity, in my case, was to send a CC offer that would absorb the debt from the old card, and it mentioned the card by name. Had I made a new promise to pay Midland, they would be dunning me for that, not the original card terms. That, coupled with the fact that they had tried to serve me at a 3 year old address thereby casting doubt that they sent me any kind of rendering, falsified the account stated claim. They had to go with open account and I won.

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