Sued by FIA Card Services!!

[bobdobbs]

Hello,

My first time here. I've been reading through the forums and have learned a ton of useful information.

I would love to get some advice from some of group here. You guys really know this area well and I'm just learning.

I'll summarize my situation:

1. I own major equity in two corporations, both had "corporate cards" with BofA.
   
2. Business was bad. One defaulted on its card, the other made a few payments late.
   
3. BofA reported both cards (one delinquent, one late) on my personal credit and started calling me from their "collections dept." They claimed that I was the personal guarantor of both cards. I asked for proof of that and they refused to comply.
   
4. As is standard practice now, I disputed with all the CRA and sent letters to BofA demanding verification of debt and that I was guarantor.
   
5. No reply from BofA after 60 days. Second round of letters sent.
   
6. CRAs all send letters saying debt is valid.
   
7. Phoned BofA repeatedly. Finally got to someone VERY senior. They researched both accounts and said that they have NO RECORD OF ANY APPLICATION OR ANY DOCUMENT WITH MY SIGNATURE. Then they tell me it is policy to not remove anything from my credit report.
   
8. I sued BofA in small claims (two lawsuits, one for each card.) and also filed and served them with discovery. (Violating FCRA, FDCA, etc.)
   
9. I phoned the same person again and pushed more. They actually agreed to remove one of the accounts from my credit records, to stop collection, etc.
   
10. They sent me a letter saying that account #1 had been removed from all the CRA.
    
11. They send me another letter saying that they had no information for account #2.
    

At this point, It looks like I'm making good progress. Then.

1. About 4 days before the small claims hearing, they have an outside attorney postpone both cases for about 2 months.
   
2. They sue me and both corporations in civil court. All co-defendants rolled into one suit.
   

Here is where it gets interesting.

1. They don't mention the small claims lawsuit. (I'm fairly sure that violates some rule of court.)
   
2. They include a HUGE stack of Exhibits attached to the suit. Most of it is complete fluff: A copy of their cardmember agreement, a copy of a bill sent to the corporation, a copy of the business application for accepting credit cards, a copy of a business check making a payment - signed by me, and a printout of the their computer screen listing me as the guarantor.
   
3. Nothing in any of their Exhibits (other than a company check) has my signature on it.
   

I could be wrong, but it looks like they really don't have any solid evidence of my agreement to anything. My guess is that they will claim that by using the company card to make a purchase, I personally agreed to the service agreement and to guarantee the debt. This seems flimsy to me.

Additionally, I'm wondering if the Statue of Frauds applies here. From my understanding, they need a signed agreement from me to hold me responsible for a third party's debt.

Now I need to prepare and file my answer this week. I was thinking of filing a cross complaint for all their violations of FCRA, malicious prosecution, frivolous lawsuits, defamation, etc.

• For account #1, they admitted my non-responsibility and removed it from the CRA.
  
• For account #2, they admitted having no documentation.
  
• Suing me for that account after the fact might be construed as knowingly malicious or attempting to intimidate.
  

Does anybody have any insight or advice?

[trueq]

"I exercise the arbitration clause."

They only have one choice, NAF. NAF is out of credit card arbitration business.

This waives FIA from court and then they have to beg you to agreee to an alternate arbitration forum!

Read this:

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=299152

and this

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=299160

and this

http://www.debt-consolidation-credit-repair-service.com/forums/showthread.php?t=299065

Just a thought. FIA is in big trouble with me. They arbitrated in NAF (before NAF was taken down) and then sued me after they arbitrated!

(Arbitration award has expired.)

I'm suing attorneys, firm, and FIA big time!

[unusualsuspect]

Follow Trueq's advice on this one... and at the same time, move for judgment in the small claims cases.

Attorneys can't be used in small claims, their meddling is probably a MAJOR violation of court rules. Move for judgment on these cases.

By doing these things, you will start building leverage against FIA.

[Recovering Attorney]

Wait a minute!

Corporations usually cannot appear except by a lawyer.

If your action and their action are in the same court, you move to consolidate the case along with any other defense you have to them ( including, perhaps, that another action is pending).

I'd hold off on waving the arbitration flag just yet. It can be potent, but remember they will use it against you, too. You have the type of case against them I'd want in front a judge with full discovery available to you.

Read the coroporate agreement. BoA has different ones. You need to know 1) what it actually says about user liability and 2) whther the one they proffered actually applied to your company's account.

In most instances, usage is acceptance and therefore the SOF will not apply. But get yourself a legal ( non-internet) opinion.

[admin]

Not only that, but they have signatures from you and what I think is pretty good evidence.

Be careful about doing anything rashly.

[bobdobbs]

HI,

Thanks for all the replies so far, I really appreciate it.

A couple of questions:

1) Re: Arbitration. Trueq makes some VERY interesting point here.

The agreement that they included in their complaint is from 2007. It DOES have the arbitration clause. Some relevant quotes:

"Any claim or dispute (Claim) by either you or us against the other...shall , upon election be either your or us be resolved by binding arbitration."

"The arbitration shall be conducted by the National Arbitration Foundation (NAF)... If the NAF is unable or unwilling to act as arbitrator we may substitute another nationally recognized, independent arbitration organization that uses a similar code of procedure..."

I'm in Los Angeles, California. Does that limit WHEN I can elect arbitration? One thought would be to file the nice 14 page answer and cross-complaint that I prepared first. THEN, later when negotiating with their attorneys, threaten to elect arbitration. Would that fly in Los Angeles?

2) I'm claiming that the two CC accounts have nothing to do with me. Since they were business cards that I did not guarantee, then how could the cardmember agreement apply to me? I'm concerned that by exercising the arbitration clause, I've someone assented that the cardmember agreement applies to me and therefore I might be liable.

3) They also sued the corporations. Can I, as an officer of the company, file a response or does it have to come from an attorney? One thought was to have the CORPORATIONS elect for arbitration and not make that election myself. That would split this case into 2-3 separate actions (mine in court, two corps in arbitration) and make a real mess for FIA. The amount in question is $5500 for one corp and $9100 for the other.

3) The ONLY items with my signature are some company checks paying the company bill. i.e. A check from XYZ inc, drawn form the corporate banking account, paying the corporate bill. Yes, I signed the check as an officer/employee of the corporation. The bank account they were drawn on was opened with the federal tax id of the corporation. My thought was to argue that I was signing the checks as my role as a corporate employee, not as an individual. Please correct me if my logic is wrong, but my whole defense and subsequent offense is predicated on the fact that they don't have my agreement to anything. They don't have any credit card application or other agreement with my signature on it. I was hoping to throw the burden of proof on them to somehow show that I agreed to guarantee the debt of the corporation.

4) I'm wondering if their "trickery" with small claims is legal. I filed a motion with the small claims judge asking her to deny their request to re-schedule the hearing. She denied my motion and allowed the re-schedule to occur. They DID NOT notify the superior court about the small claims action. Can anyone point me to the relevant rules of court on how this works?

5) They served me by dropping the case off at the POB of the corporation. I know that is flawed, but didn't want to bother with it. I'd rather get this started. BUT, I don't know what day counts as service. How can I find out?

Thanks!!!

[trueq]

you may be better off staying in court.

"Not yours" should be a viable defense.

However, if you see yourself running into trouble, keep arbitration in mind.

Arbitration in JAMS is pretty much if you say you are a "consumer", you are a consumer.

[bobdobbs]

Thanks,

What about filing some kind of demurr or motion to dismiss based on the statue of frauds? Might be a way to checkmate them before we get to trial.

-N

[trueq]

WI law and arbitration is my thing.

[unusualsuspect]

In small claims in CA, a corporation can file suit through its officers. I'd still move for judgment against FIA or as another option, dismiss the small claims and file that as a countersuit against FIA.

[bobdobbs]

Spoke to their lawyer today. She informed me that they filed a request to join my small claims case with their civil case. She emailed me a copy of the form.

It is titled "Application and order for transfer (small claims)"

Also, they sued me as an "Unlimited" case in civil court. In California, Unlimited cases are for amounts over $25,000. The total debt they are claiming is only $14,000. Their attorney claimed that they are entitled to legal fees and that will easily put it over $25,000.

Does anyone know:

1) Is there a way to protest merging my small claims case with their civil?

2) Is there a way to move the case to the "Limited" section. (Easier for me to fight myself.)

[bobdobbs]

Anybody?

[bobdobbs]

Spoke to attorney, who is NOT representing me, but offered some good advice.

She suggested I file a demurrer based on CCP S 430.10(e) which is claims "that the pleading does not state facts sufficient to constitute a cause of action"

The logic was that they didn't include any agreement, contract, application or other document with my signature, so their Complaint was fatally flawed.

Does anybody have any experience with this. I'd love to see some sample filings, decisions, or hear some thoughts on it.

Thanks!!

-BD

[rikkivs]

In CA, you cannot demur for commont counts cause of action; the proper procedure is to request a bill of particulars via CCP 454. However, if the cause of action is breach of contract, a demurrer is appropriate. There was a gal with screen name AnnaBananaSF who did a whole thread on demurrers. If you google her screen name and this site then you will find the thread.

Also, your local law library ought to have pleadings on the books that you can copy from similar cases; provided they are winning pleadings;)

[bobdobbs]

Hi,

They sued for breach of contract, so maybe a demurrer is appropriate.

I can see their attorney's logic. See if this makes sense to you.

1) Company had corporate card

2) I allegedly guaranteed card (but no signed contract or application.)

3) Cardmember agreement says that by using card, I personally guarantee it.

4) THEREFORE, I'm responsible.

All they present for evidence is:

1) Copy of cardmember agreement

2) Copy of latest bill showing late fees (in company name.)

3) Company check, signed by me as employee, paying a past bill

4) Printout of their internal screen listing my name as guarantor.

5) That's it - Nothing more.

What, to me, is conspicuously missing are thing like:

1) Signed application

2) Signed charge slips

3) Any proof that I used the card

Thoughts?

[rikkivs]

Since they are suing under breach of contract, their pleading COULD BE fatally flawed as you have duly noted. This is because I don't know if they specified whether the contract was written, oral or implied in the complaint. If the contract was stated to be implied on the pleading, then you might not be able to demur because they have attached enough evidence to show you had some sort of financial transactions with them. Still not enough to show you were the guarantor of the card though, imho...

But if they said the contract was written in the complaint, then usually Demurrers are granted with leave to amend. In CA after a judge grants the demurrer with leave to amend, the plaintiff has ten days to respond. Sometimes they come up with a **** and bull sob story and sometimes judges fall for it and they get an extension to amend their pleadings etc.

The CA Rules of Civil Procedure state that pleadings must be interpreted liberally and in the case of a demurrer, the judge assumes everything in the complaint is true because procedural foibles are at issue not facts. Were I you, I'd get a couple of motions together and come up with a strategy that gives the plaintiffs the LEAST amount of time to amend their pleadings. Also read this from Kinsey Law firm.

Here's what I'd do:

1.Demurrer for failure to state a claim upon which relief can be granted via CA Rules of Court Rule 3.1320

2.Motion to Strike the pleadings, since they are suing under breach of contract and have darned sure NOT provided anything that shows you owe them money nor that you are the guarantor on the account. See CCP 435-437.

[bobdobbs]

Nicely put. Thank You.

Just reviewing their complaint. They never claim "contract" in their Complaint.

In the "General Allegations" section, it says,

• Defendant applied for Bank Of America credit card with FIA in the name of XYZ Corporation
  
• As the sole application for XYZ Corporate account, Defendant agreed to personally guarantee debt. See business card agreement. (They attached the generic cardmember agreement as an exhibit.)
  

Then later, as their cause of action, they state:

• Defendant breached contract of guaranty of the XYZ corporate account by failing to pay the delinquent debt of XYZ Corp.
  

So, I'm not sure the proper demurrer. They aren't claiming a specific contract, but are somehow constructing that I'm a guarantor without providing anything specific.

Thanks Again!!

Notice that nowhere do they claim a contract with with me.

[rikkivs]

Yes, they are saying that use of the card shows an implied agreement. But in order to prove breach of guaranty or contract, they still need a copy of the contract OR words specifically from the contract to explain how you breached it. They also have to attach something to show that you are the guarantor, they say that you were the sole applicant for the card and therefore you are responsible. If your company was an LLC, the debt would be absorbed by the LLC and release you of PERSONAL responsibility. I don't know if that is the case, however. At this point, these are unfamiliar waters to me. I wish you the best of luck and think you may be on the right track.

You ought to request/demand a bill of particulars itemizing the credit and debits on the account from ZERO BALANCE. Since the cause of action is breach of contract/guaranty I believe the request for such itemization via CCP 454 is proper.

[bobdobbs]

Rikkivs,

Your last post just helped out immensley.

- They claim I'm the "sole applicant". They have no application, so they can't prove that.

- They claim I agreed to cardmember terms by using the card. They have no charge slips or other proof that I ever used the card.

My understanding is that the burden of proof is on them for these two key elements. So that should be the focus of my answer!

[bobdobbs]

Update on status.

I originally sued them in small claims. They filed a civil suit, neglected to mention the small claims, but then filed a motion to merge the small claims up into their larger civil. (This is legal under CA rules.)

Interestingly, the judge for small claims denied their motion. He wants to hear the case, I get to be the Plaintiff and go after them for all their violations!

[rikkivs]

Since you were part of the company or started the company, are they suing YOU or the company? If they were suing your company, wouldn't you need to have an attorney if you were a corporation? This is where things get murky for me. But the attorney who advised you likely knows the answers to these questions.

You have brought up valid points. FIA card services haspresented absolutely nothing that indicates that you are PERSONALLY responsible for this debt. However, their evidence may have been enough to get a default judgment against you which is sad. And yes, since they initiated the suit, it is on them to PROVE their case. Were I you, I'd also get some admissions together like this:

1.Admit that you have no signed document or contract showing I am the guarantor for this alleged account.

2.Admit that you have no contract of guaranty with my signature...

You get the picture...

And I pointed you to the CA Rule of Court regarding Demurrers and now, the CA Rules of Civil Procedure will give you the meat for your Demurrer because via CCP 430.10, their pleading is demurrable because you cannot tell whether the contract was written, oral etc. Via CCP 430.10 (e)(f)&(g) you can certainly kick their tails! Hopefully, they are so incompetent that they cannot answer the demurrer in the ten day time frame and if they motion for an extension, get your objections together. After all, THEY initiated the lawsuit and would hold you to the letter of the law and get a default judgment if you slipped up!

Best wishes:)

[bobdobbs]

They are actually suing me and the corp as co-defendants. I'm just focusing on my defense for now.

I was planning on initiating discovery, but your suggestion of admissions makes a lot of sense.

As I posted previously, my original, dinky, small claims case was kept on the calendar. The judge wants to hear it. I sued them for violating a bunch of the FDCPA and Cal Civil laws. (My original goal was to get this junk off my personal report.) My guess is that I upset them with my suit, so they threw a bigger, albeit B.S. suit at me as an attempt to intimidate me.

You're spot on with the reference to CCP 430.10 It's the same one an attorney friend pointed out.

IF I win, I plan to go after them with a charge of malicious prosecution. I'm not up on the details, but I believe there are some stiff punitive damages for that.

[rikkivs]

Sounds like you have it under control. Now focus on getting the substance of your Demurrer via case law (good if it's current) together as well as the form. I have seen LOTS of documents thrown out by judges simply because they did not conform to the CA Rules of Courts' formatting requirements. So it is crucial that you make sure that your documents are formatted correctly. In addition, the opposing counsel seems pretty sloppy and you can always object to their documentation due to procedural foibles if all else fails. Usually they make plenty of these types of mistakes. Some judges that are consumer oriented bring motions and throw away documents with these mistakes on the 'courts own motion' in debt collection cases. With that in mind, make sure everything you do is above board so that opposing counsel cannot get YOU on procedural snafus:)

Like I said, since you are being sued for breach of contract, you are owed a Bill of particulars and via CCP 454, they have ten days to furnish you with one.

So you can attack this along many prongs as discussed before:

1.Demurrer via CCP 430.10 e, f and g

2.Possible Motion to strike the pleadings

3.Admissions

4.Bill of particulars via CCP 454

The cool thing about the Demurrer and the Bill of particulars is that they BOTH have ten day deadlines. Admissions also must be answered and returned to you within a short period of time. Were I you, I'd get ALL of those things off to them ASAP so that they are inconvenienced and falter getting the docs to you in the legally specified amount of time:)

The toolbox is growing:)