What is "Cause of Action" and how do I find it my complaint.

[ADSOFT]

Dumb question.

I see alot of defense templates state the term, "cause of action".

What is cause of action and how do I find it in my complaint.

In my case the plantiff never supplied an account number or demand letter with the complaint.

How could he even bring the case to trial without an account number? It would open up the case for him to go out and buy some debt that owe. I think the term is called ESTOPPEL.

Also how can I defend myself if dion't even have an account number.

[jewel1325]

I don't think they have to state an account number. Just that, "An account was stated" or "on an open book account." Either of those are two separate causes of actions.

[nascar]

"Cause of action" is the event or events that gives the plaintiff a reason to sue you. In the case of a credit card debt, a plaintiff's cause of action generally arises from the consumer's alleged failure to pay the amount owed.

[ping]

depends on your RCP's; have your read these?

many states have statutory requirements regarding suits on account, and what must be pleaded and presented.

if this compliant doesn't meet those requirements sounds like you may have grounds for a motion for a more definite statement or a motion to dimiss

[Guest usctrojanalum]

A cause of action is a set of facts or an event that justifies filing a lawsuit against a party. Causes of action can be anything.. breach of contract, assault and battery.

[ADSOFT]

A cause of action is a set of facts or an event that justifies filing a lawsuit against a party. Causes of action can be anything.. breach of contract, assault and battery.

Thats what I thought, so basically we are dealing with breach of contract causese of action in credit card default lawsuits???

For Breach of contract the Elements of a case would be:

1) A contract between Plantiff and Defendent

1. A. An account number
   
2. An Agreement with assignment clause
   
3. Proof they pruchased the debt, otherwise anyone could sue me or the account could have been sold multple times, etc
   
4. A demand letter or correspondence at least specifying the account
   

2) A witness to how the contract was formed

3) An itemized bill genterated by the custodian of records?

Without any of those elements, then the plantiff could never prove that I'm OBLIGATED to pay such a debt?

What do you think about that?

I'm trying to identify the elements of Breach of Contract/Collections case to possibly file an MSJ.

[ping]

Thats what I thought, so basically we are dealing with breach of contract causese of action in credit card default lawsuits???

For Breach of contract the Elements of a case would be:

1) A contract between Plantiff and Defendent

1. A. An account number
   
2. An Agreement with assignment clause
   
3. Proof they pruchased the debt, otherwise anyone could sue me or the account could have been sold multple times, etc
   
4. A demand letter or correspondence at least specifying the account
   

2) A witness to how the contract was formed

3) An itemized bill genterated by the custodian of records?

Without any of those elements, then the plantiff could never prove that I'm OBLIGATED to pay such a debt?

What do you think about that?

I'm trying to identify the elements of Breach of Contract/Collections case to possibly file an MSJ.

if this compliant doesn't meet those requirements sounds like you may have grounds for a motion for a more definite statement or a motion to dimiss

On breach of contract claims, they have to prove there was a contract

and they can do that either by supplying a copy of a written contract, loan agreement or application. They have to show that someone " performed the contract" they lent money, you took it, etc.

or for accounts absent a signature or written agreement; copies of your statements from the merchant bank or CC Co. Use of the account is an implied contract.

Please read your states Rules of civil procedure.

you can find this online at " your " State court website - Google it.

as to filing any motions, it all depends on your RCP's

many states have statutory requirements regarding suits on account, and what must be pleaded and presented.

North Carolina for example, passed a new bill last fall; SB974 that requires all collection angencies and JDB's to submit proof of account and assisgnment /ownership when they file a complaint.

the fine for violating ranges from 500 to 4000 per violation.

you state may offer more protection than you think, and if you need to file an answer soon,

this is not the time to learn all 300 sections of "Restatement ( 2nd ) of Contracts."

[ADSOFT]

if this compliant doesn't meet those requirements sounds like you may have grounds for a motion for a more definite statement or a motion to dimiss

On breach of contract claims, they have to prove there was a contract

and they can do that either by supplying a copy of a written contract, loan agreement or application. They have to show that someone " performed the contract" they lent money, you took it, etc.

or for accounts absent a signature or written agreement; copies of your statements from the merchant bank or CC Co. Use of the account is an implied contract.

Please read your states Rules of civil procedure.

you can find this online at " your " State court website - Google it.

as to filing any motions, it all depends on your RCP's

many states have statutory requirements regarding suits on account, and what must be pleaded and presented.

North Carolina for example, passed a new bill last fall; SB974 that requires all collection angencies and JDB's to submit proof of account and assisgnment /ownership when they file a complaint.

the fine for violating ranges from 500 to 4000 per violation.

you state may offer more protection than you think, and if you need to file an answer soon,

this is not the time to learn all 300 sections of "Restatement ( 2nd ) of Contracts."

I already filled a response and answered 1st interogatories. At this point its either Bill of Particular or MSJ. The don't seem to have the elements of a contract, and why should I give them a chance to get up. They may just drop the lawsuit.

[ADSOFT]

Here is some information:

In the law, a cause of action (sometimes called a claim) is a set of facts sufficient to justify a right to sue. The phrase may refer to the legal theory upon which a plaintiff brings suit (such as breach of contract, battery, or false imprisonment).

To pursue a cause of action, a plaintiff pleads or alleges facts in a complaint, the pleading that initiates a lawsuit. A cause of action generally encompasses both the legal theory (the legal wrong the plaintiff claims to have suffered) and the remedy (the relief a court is asked to grant). Often the facts or circumstances that entitle a person to seek judicial relief may create multiple causes of action.

There are a number of specific causes of action, including: contract-based actions; statutory causes of action; torts such as assault, battery, invasion of privacy, fraud, slander, negligence, intentional infliction of emotional distress; and suits in equity such as unjust enrichment and quantum meruit.

The points a plaintiff must prove to win a given type of case are called the "elements" of that cause of action. For example, for a claim of negligence, the elements are: the (existence of a) duty, breach (of that duty), proximate cause (by that breach), and damages. If a complaint does not allege facts sufficient to support every element of a claim, the court, upon motion by the opposing party, may dismiss the complaint for failure to state a claim for which relief can be granted.

http://en.wikipedia.org/wiki/Cause_of_action

Does anyone know what the elements for breach of contract would be?

[calawyer]

One good way to find out the elements of a cause of action is to look at California Jury instructions: http://www.courtinfo.ca.gov/jury/civiljuryinstructions/documents/caci_20091215.pdf

Check 303 for breach of contract.

[ADSOFT]

One good way to find out the elements of a cause of action is to look at California Jury instructions: http://www.courtinfo.ca.gov/jury/civiljuryinstructions/documents/caci_20091215.pdf

Check 303 for breach of contract.

Thanks Calawyer I will look at that.

[annabananasf]

Did they attach a copy of the contract to the complaint? if they're suing for breach of contract, they were required to do so.... however since it sounds like you've already filed an answer, you'll need to delve into a little discovery--serve them with a request for production of documents, and you'll want to ask them for a copy of the original contract as well as any other statements or documents supporting their claims. They'll have 30 days to provide this. there are probably some samples of what you should ask for in addition to that. also send them interrogatories asking them to identify any persons with knowledge of the claims as well as the contact information. the main thing is if they fail to produce a copy of the original contract, you can probably proceed to summary judgment because they're unable to prove a contract actually exists. You can also ask them for documentation showing they own the debt, chain of custody thing.

Also for future reference (and hopefully you won't need it), when sued for breach of contract and no copy of the contract is attached to the complaint, in california you can file a demurrer (rather than an answer) -- this is a quick and easy way to shut 'em down--the court will give them one chance to amend and include a copy of the contract or the case gets tossed. I've successfully done this twice, and there are samples of the demurrer in the sticky thread.

best of luck