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Unilateral Contracts That Unfairly Favor One Party


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Hello Everybody:

Being new at this but having some sucess I would like to hear some thoughts on Unilateral Contracts.

In my data collection to find out as much as I could to figure out how big of a mess I was in I ran across several statements at other sites. The statements more of less say, "A Unilateral Contract that is so biased as to unfairly favor one party is a Contract, With other Considerations it my even be a Legal Contract. However it can not be considered an Enforceable Contract".

Has anyone found a Court Ruling (preferrabily a Federal Court) that supports this statement?

My thought is (and what do I know I'm a Custodian), by using this as a Keystone in the Defendant's attack on a Suit brought by a Credit Card company most folks here would be half way to a Slam Dunk.

What I think I have found so far is:

1. Most CC's and certainly JDB's can't produce any signed contract. Understanding that they may not have to.

2. If the Defendant has had the card a long time. The CC switched the deal on them. Maybe when the card was renewed or just because the CC wanted to.

3. Some Cards never had a signed contract. Pre Approved just call and do a balance transfer. After the Defendant does it. Then they get the particulars of the Unilateral Contract.

4. The 1st thing that anyone must have to win a Breach of Contract is proof of (proponderance or whatever) the existance of "A Enforceable Contract".

Well you can see where I'm going with this.

Bob the Custodian

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I an see where you are going but I can not understand why you would want to.

The old adage KISS (keep it simple stupid) works well.

Generally the harder a lay person digs the deeper the hole they find themselves in.

There are ample adequate defences available to deal with most credit issues that do not require clutching at straws.

Ever hear about the doctrine of proof of contract by performance for example?

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You are overreaching. By a lot. As newryman alluded to, your continued use of the credit card implies that you agreed to it's terms and conditions. Despite what you see on TV, Jedi mind tricks don't normally work on judges. Amateurs don't craft ground-breaking legal precedents in real life.

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As nascar pointed out, credit card contracts are not unilateral. One of the reasons is that you accepted the terms by using the card.

I have seen this argument in cases involving changes to the original terms and conditions. Specifically, some of the arbitration amendments from OCs.

In some instances, the amendments are so one-sided that they are considered unconscionable.

One of the elements you need to overcome is that by continuing to use your card and failing to reject the amendments in writing immediately and during the grace period specifically given to reject the changes, you accepted the new terms and thus your claim that it is a unilateral contract has little or no merit.

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Thanks Everyone:

Nuff Said. That dog won't hunt. I just threw the thought out there out of curiosity and possibilty.

However desperate times require desperate measures.

Citi's first run on their 3 against me was stopped at Dismissed with out prejudice for their failure to appear at the hearing on my Motions to Dismiss.

They did file Motions for Hearing to Reinstate. The Judge Denied their motions.

If they feel they haven't wasted enough time and money so far they could Refile and start over. If they do I can use large amounts of the Docs. I have in Word but must modify and really sharpen the edge.

They learned a lot about my abilitity and tenasnity. I didn't use everything that may have worked the first time so I have some researve. I assume if they come again they will be serious and not use their standard Boiler Plate docs. If there is a next one it will be the last one. I must win flat out or win by Dissmal. The second Dissmal will be an automatic "With Predjudice". If I lose then the only thing I can do is stall the execution and do as much damage control as I can during the Execution of Award sections. Here in Missouri there is a very real but unlikely possiability that not only will my wages be attached (I'm a working poor kinda guy), pesonal property (just junk by most standards) that is non exempt will be seized and sold. Finally if that is not enough, they could actually sell my house and leave me homeless. The house isn't a hot property or in good condition or in a good neigborhood but I do not have a morgage or other encumberance on it.

Everything I own including the shirt on my back would not satisfy their Relief Amounts let alone the Reasonable Attorney's Fees, 9% Annual on the unpaid balance and court costs.

So If I do have to fight again it will be for my very survival. A drowning man will grasp at straws. I'm not trying to be overly dramatic or paranoid here. I have a very real potential problem and want some good ideas that I can actually do on my own. I don't want to spend too much of my time or yours on "What If's" but I want wise suggestions so that I will have a plan should I need it.

Thank you all for you time and help

Bob the Custodian

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The world loves a fighter Bob just try and pick the right fights :p

In general terms Federal courts may only overrule a state court when there is a federal question, like most quasi legal questions I am cautious about claiming anything other than there is not always a 100% definitive answer as there are always odd exceptions that can turn up in jurisdiction that someone may not be aware of. For example I have no knowledge of HI state law and they could have a special HI state law that says we love federal courts so they always trump our courts no matter what anyone else says.

It pays to reasearch the applicable laws in your own jursidiction. And of course ask more specific questions on here.

Are you sure you do not have any of the affirmative defences should they decide to have another go? What about SOL? Can they prove the debt etc etc?

Good luck.

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Affirmative Denfenses: Looking by name does not give me how can I use it.

Nothing seems to be a key for the lock.

I don't know what defense it would fall under but on the 2 big dollar ones. Both have been to at least one other Debt Collector before being "Assigned" by Citi to These Guys. Both went to Collectors who not in my State or have anything to do with Law Firm in their title. Also No Response to my Dispute Letters--just died off in the wind to turn up again.

I was hoping by using Discovery on Everyone. That it would come out that the "Assigned" law firm went out and bought the 2 big ones after Citi gave them the little one. The little one went from Citi Str8 to thease guys. Then the other 2 showed up while I'm waiting for my Dispute to be Answered.

Later in the process: The 2 big ones were never answered before they filed the petition but they say they did mail "statements". I didn't get any and I don't think they can do anymore than say they did mail it. Since the Answer on the little one (only 1 of 3 Answered) was in the form of overdue Statements, but the package was sent standard cheap postage with no Proof of Delivery.

Other than something like that. I would think Failure to Assume Risk but that would only cut the relief amount down at best. Maybe somewhere in the Due Diliagence on their part.

Worry, worry, worry. Thank God it's not 1850 in London.

Thanks for your help and thoughts.

Bob the Custodian

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But if you are in a state where there are shorter SOL's for open accounts, oral debt v a longer SOL for written contracts;

you can argue that a credit card is a unilateral contract, subject to change and not written, signed contract; which makes it an open account or oral debt.

The Card member agreement offered as evidence does not satisfy this requirement; a necessary consequence of the notion that the terms of a credit card agreement may be changed by mere notice is that a credit card agreement subject to such alteration is not a “written contract” within the meaning of ( Pick your statute on contracts )because it makes it unilateral and with variable open end terms and conditions .

lifted from Pincus v Capital one

In Virginia's landmark case of Newport News Hampton & Old Point Dev.Co. v Newport News Street Ry. Co., 32 S.E. 789, 790 ( Va. 1899), the court held that "nothing must be left open for future negotiation and agreement; otherwise it cannot be enforced." On this case, the credit agreement is subject to unilateral changes by the Plaintiff, there is no duration limitation to the agreement and there exists no indication as to the credit limit or interest rate, and the agreement is not signed by the defendant. Under a Newport analysis, the agreement is an oral contract

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Thanks Ping!

That's the kinda tip I was looking for. If I can use it here in Missouri. That should kill the proof of contract by performance thing. Sorry to all who replied to this post but this stuff is new to me and I have trouble exspressing my thoughts. Anyway Ping's answer (if I can use it) is why I brought up "A Unilateral Contract is a contract but not an Enforceable Contract) approch.

I assume (out of desperation) Not Enforceable means; a court can't order judgement. I do hope that I don't have to answer their challenge a second and last time. It would be totally OKey, Dokey with me if their last Motion to Reinstate was a Save Face thing and they have spent too much time and money on these 3. Unfortunely there are Easier Pickings to be had.

It may be a moot point but I sure wish someone could come up with a sure fire slam dunk to win this type of case.

If we had a Majic Bullet --- Well that is another "What If" post.

Goes like this.

Cardholder defaulted by missing or stopping payments.

Card Company put negitive info. on Holder's Credit Report.

Negitive Credit Report caused other CC's to raise interest and lower credit line, raised minimun payments and caused other Defaults. Maybe insurance company raised premium or someone didn't get hired at a job they were otherwise qualified for cause of credit history.

CC finally sues Cardholder.

Cardholder wins case.

Cardholder Sues CC or actual damage caused by Filing a False Credit Notation.

Better yet: A Class Action Lawsuit for the above.

I live, I dream too much, today it is good to be alive.

Thanks Everyone

Bob the Custodian

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  • 8 months later...
Thanks Ping!

That's the kinda tip I was looking for. If I can use it here in Missouri. That should kill the proof of contract by performance thing.

No "Offer and acceptance" ( use of card) is proof of contract by performance.

however, it is just proof of an "implied or expressed contract" which ususally fall under the shorter open account statutes

unless you're in GA, which has 3 SOL; "Open"= shorter , "Simple" or "written"= longer.

Sorry to all who replied to this post but this stuff is new to me and I have trouble exspressing my thoughts. Anyway Ping's answer (if I can use it) is why I brought up "A Unilateral Contract is a contract but not an Enforceable Contract) approch.

I assume (out of desperation) Not Enforceable means; a court can't order judgement.

no , it means not enforcable as a "written contract" under the statutes you need to read the entire case. google it.

I do hope that I don't have to answer their challenge a second and last time. It would be totally OKey, Dokey with me if their last Motion to Reinstate was a Save Face thing and they have spent too much time and money on these 3. Unfortunely there are Easier Pickings to be had.

It may be a moot point but I sure wish someone could come up with a sure fire slam dunk to win this type of case.

If we had a Majic Bullet --- Well that is another "What If" post.

Goes like this.

Cardholder defaulted by missing or stopping payments.

Card Company put negitive info. on Holder's Credit Report.

Negitive Credit Report caused other CC's to raise interest and lower credit line, raised minimun payments and caused other Defaults. Maybe insurance company raised premium or someone didn't get hired at a job they were otherwise qualified for cause of credit history.

CC finally sues Cardholder.

Cardholder wins case.

Cardholder Sues CC or actual damage caused by Filing a False Credit Notation.

Better yet: A Class Action Lawsuit for the above.

there have already been these kind of suits and won under the FCRA.

I live, I dream too much, today it is good to be alive.

Thanks Everyone

Bob the Custodian

bob, I don't get over here that much but what is the link to your thread on your lawsuit? if it's a JDB, you have other defenses.

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