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Opposition to MSJ on Discover Card FL Resident


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My DH is going to send his answer off tomorrow for the MSJ filed by Zakheim and Assoc, lawyers for Discover Card.

The lawyers filed under open account and account stated. An affadavit from DFS Services with his name and account number signed by Yvette Benner, dated 1/2009 was the only admission for the credit card account.

Should anything else be added or any wording changed to file the opposition? Thanks for your comments.

Comes now the defendant, XXXXXXXXX, pro se, and files Opposition to this Motion for Summary Judgment in response to Motion for Summary Judgment filed herein by Plaintiff, Discover Bank, as follows:

COUNT I – OPEN ACCOUNT

1. Defendant alleges the Plaintiff has not attached a copy of the account, showing items, time of accrual of each, and amount of each, as required, pursuant to Fla.R.Civ.P 1.932. “An itemized copy of the account must be attached to the complaint to state a valid claim; a statement of a lump sum balance dues is insufficient.” H & H Design Builders, Inc v. Travelers’ Indemnity Co., 639 So.2d 697 (Fla. App. 5 Dist. 1994)

2. Defendant alleges the affidavit attached is hearsay, as the affiant is an employee of DFS Services LLC, and not a direct employee of Discover Bank, the plaintiff, and is inadmissible as evidence due to having no foundation as no detailed accounts accompanied the affidavit. The affidavit is insufficient to meet even the minimal requirements necessary for a default judgment.

3. Defendant alleges no copy of the original contract signed by both parties has been admitted into evidence. “One party cannot unilaterally create a liability on an open account when no contract (either oral or written) exists out of which a debtor-creditor relationship could arise.” Cherokee Oil Co. v. Union Oil Co. of California, 706 F.Supp. 826 (M.D. Fla. 1989) affirmed 901 F.2d 1114.

4. Court lacks subject matter jurisdiction due to Plaintiff’s pleadings being insufficient and there being no competent fact witness in the record.

COUNT II – ACCOUNT STATED

1. Defendant alleges the Plaintiff has not provided a copy of the original signed contract. “Failure to respond to demand for payment does not create obligation for account stated absent contractual agreement creating such liability.” Page Avjet Corp. v. Cosgrove Aircraft Sers., Inc. 546 So. 2dd 16, 18 (Fla. 3d DCA 1989).

“Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.” Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. App. 2 Dist. 1975)

2. The Plaintiff has not proven ownership of the account and therefore has no standing to sue.

3. The Plaintiff has not proven the right to sue in the state of Florida.

4. Defendant alleges the affidavit attached is hearsay, as the affiant is an employee of DFS Services LLC, and not a direct employee of Discover Bank, the plaintiff, and is inadmissible as evidence due to having no foundation as no detailed accounts accompanied the affidavit. The affidavit is insufficient to meet even the minimal requirements necessary for a default judgment.

5. Court lacks subject matter jurisdiction due to Plaintiff’s pleadings being insufficient and there being no competent fact witness in the record.

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You attacked the OPEN ACCOUNT cause of action nicely your defenses won't work for account stated. Only defenses 1 and 4 are valid against Account Stated. You have to show that you had no prior course of business with this company, that you objected either in writing or verbally upon receiving invoices from them, and that you have not agreed to any amount due with them, fixed or otherwise. Say those things, and you've attacked the legs of account stated.

You might also say that (if you never objected) your silence and refusal to pay were clear objections to the bill...that might work too;)

Best Wishes;)

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I would add any "allegations" in there claim against you that mention anything they didn't provide like the members card agreement and statements,.

I would check in there complaint see if they made allegations based on those items.

reciting there allegations and then stating that they didnt provide the items, will shred there whole complaint.

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That "Affidavit of Indebtedness" is a total fraud.

How could a fine upstanding company like Discover Bank possibly submit any fraudulent paperwork? lolol

It would not surprise me. After seeing all the sham shenanigans being done in civil court to get default judgements it is ridiculous.

One thing I have forgotten to mention through all of this, Zakheim calls 4-5 days a week. We don't answer, but I assume it is to try to get a settlement before the hearing. That makes us think they do not have this MSJ in the bag.

Edited by BoscoMama
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How could a fine upstanding company like Discover Bank possibly submit any fraudulent paperwork? lolol

It would not surprise me. After seeing all the sham shenanigans being done in civil court to get default judgements it is ridiculous.

One thing I have forgotten to mention through all of this, Zakheim calls 4-5 days a week. We don't answer, but I assume it is to try to get a settlement before the hearing. That makes us think they do not have this MSJ in the bag.

They called me too during my case. They were offering settlements. Even offered to settle before trial. I thought they didn't have a case too. My judge was very creditor friendly and I lost with a handful of statements as evidence.

Good luck - I hope you have a better outcome! :)

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Another thing BoscoMama look at the ridiculous date on that "Affidavit" yet the "Affidavit" states as if the action has already been filed if you look at it closely. It is a total deception and needs to be addressed to the judge which should result in a dismissal WITH PREJUDICE.

Freddy01, you got the screw job alright.

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Does it make a difference that Discover has charged off this account as of 8/2010?

Yes it means they totally wrote it off and received bad debt insurance payments. How posters on this board don't believe taking a massive write off on your corporate taxes doesn't result in a financial gain is unbelievable to me. But they have a right to their own belief system. That is another reason why that "Affidavit" is manure.

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Yes it means they totally wrote it off and received bad debt insurance payments. How posters on this board don't believe taking a massive write off on your corporate taxes doesn't result in a financial gain is unbelievable to me. But they have a right to their own belief system. That is another reason why that "Affidavit" is manure.

I think the OP was asking if there was actionable cause - and I would further submit 'unjust enrichment' on a 'charge off' is a far stretch by itself. I would suggest that the OP is better served looking for a more plausible defense in her original complaint. I would still suggest attacking the affidavit.

I would however, include 'unjust enrichment' in my answer for many reasons if not in part for the same reasons Massive explains here.

“Charging off, or writing off, does not cancel out the debt. It simply means they have accepted it as a loss and have filed it away as such. However, the account can still be sold or assigned to a CA for collection. When a CA purchases the debt, depending on what exactly they purchase, they gain the right to collect just as the OC did.”

Edited by FL4answer58
sp
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Accounts actually terminate at charge off and from a legal sense Banks after having totally written off the debt on its corporate taxes AND received bad debt insurance payments from an insurance policy (which they all have by the way) really have no legal standing to sell the "account" to a junk debt buyer. I learned these "legal secrets" from a consumer who paid an arbitration award in the tens of thousands allegedly to MBNA when in fact the law firm kept all the money even though the Arbitration listed MBNA as the "Plaintiff" The SEC admitted to the consumer that she had figured out how all this securitization in terms of credit card debt actually worked but she could never prove it. She's had the FBI and DOJ at her house throughout the years. Why don't you cash in an insurance policy on a $100,000.00 diamond ring you allegedly lost and then magically find it and sell it and see what happens to you. lol The credit industry and Federal Reserve System and the unknowing consumer.

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Accounts actually terminate at charge off and from a legal sense Banks after having totally written off the debt on its corporate taxes AND received bad debt insurance payments from an insurance policy (which they all have by the way) really have no legal standing to sell the "account" to a junk debt buyer.

Has this argument ever been confirmed in a court of law. If so, please cite the case that applies for review.

I mean no disrespect - I'd just like to learn more...

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Why don't you cash in an insurance policy on a $100,000.00 diamond ring you allegedly lost and then magically find it and sell it and see what happens to you. lol The credit industry and Federal Reserve System and the unknowing consumer.

I feel the same way. There is no way its legal.

I think that many local judges are ignorant in that part of the law.

We are scared of what we dont know.

There is NO way I or any institution can legally sue on a debt 1) tax right off, 2) Insurance claim, 3) Sold for collections. They pull of at least 2 of these in conjunction with a law suit.

I have had a itch to ask these questions to someone at the IRS for a while.

I think the IRS could turn into are best ally.

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Guest usctrojanalum

Sigh, Massive again ITT knows very little about what he speaks of. Bad debt insurance? Yes it does exist. However, Banks do not get "payments" as you allude to. When debt gets written off as bad Banks are allowed to BORROW a percentage against the total debt that is written off (usually this % is about 50ish or so). They have to pay this back and they are prohibited from borrowing up to 100% for risk management purposes.

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Sigh, Massive again ITT knows very little about what he speaks of. Bad debt insurance? Yes it does exist. However, Banks do not get "payments" as you allude to. When debt gets written off as bad Banks are allowed to BORROW a percentage against the total debt that is written off (usually this % is about 50ish or so). They have to pay this back and they are prohibited from borrowing up to 100% for risk management purposes.

Thanks for the clarification on the insurance end USC.

But i know for a fact that the bad debt wright off is used to offset losses for tax purposes. I have known a couple of upper level CPA's who have told many things that companies get away with.

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Guest usctrojanalum

But i know for a fact that the bad debt wright off is used to offset losses for tax purposes. I have known a couple of upper level CPA's who have told many things that companies get away with.

Yes, this does happen and I will no dispute that it does or try to defend it.

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