Account stated case in Georgia, has anyone beat this

[LostMind]

Since there seems to several of us in Georgia having the pleasure of dealing with Zwicker I thought I would post information I found from a case here in Georgia.

This is from a Plaintiffs Pre-trial order and I thought it might give some insight into what we may face at trial becuase this is their whole case spelled out.

I will leave out non essential info.

4. plaintiffs brief and succinct outline of the case and contentions:

a. P establised account in name of D

b. D made charges on account

c. P sent statements to D who did not object

d. D is indebted to P for $xxxxx

5. The issues are as foillows

a. Whether D is indebted to P in the amount of $xxxxxx

6. If this case is based on a contract, either oral or written, the terms of the contract are as follows (or, the contract is attached as an Exhibit to this order): Per Hill v. American Express 289 Ga. App. 576 (2008), the mere issuance of a credit card to a consumer is to be considered an offer and the contract is not made entire unless the consumer retains the card and then uses it. By the terms of the aforementioned agreement, and upon the Defendants use of the card, a written contract was entered into between the P and D on or about 00-00-2011. D used the card. D breached said agreement by defaulting on their CC. D's default resulted in damage to to P. The terms of the agreement provided, in essence, that D would pay P for all charges made on this account.

9. The following is a list of all docs and physical evidence that will be tendered at the trial by the P or D.

a. By the P: Card member agreement, available CC statements, Affidavit of damages.

12. a list of witnesses P may have present at trail: xxxxxxxxxxxxx, custodian of record for bank xxxxxxxxx

End

Edited October 24, 2010 by LostMind
removed stray smiley

[Guest usctrojanalum]

That Hill v Amex case is really really bad for consumers in Georgia. Basically all Amex has to do is show that one made charges and a few payments and the defendant is smoked.

[SECLG]

The Hill opinion only addressed the issue of whether the applicable statute of limitations in Georgia is 4 years, as on an open account, or 6 years, as on a written contract. Our Court of Appeals held that the latter applies because use of a credit card constitutes a simple written contract.

Hill does not obviate the creditor's burden to prove the terms of the contract. If you push them, they will try to do that with a cardholder agreement which bears no indication that it is the actual agreement which applies to your specific account or bears your signature. (I've seen them proffer a cardholder agreement with an effective date long after the date of delinquency.) They can, however, offer proof of the terms through an in-court witness.

Think about this... the mere acceptance and use of the card does not prove the base finance rate, default finance rate, late fees, etc.

I have never, I mean NEVER, seen Zwicker bring a witness to court. Do not be intimidated by Zwicker's attorney. They probably cannot prove their case.

Zwicker will most likely be represented in court by a non-Zwicker attorney whom they contract through an outfit called Lawyers on Demand. The contract attorney is little more than a warm body whom Zwicker sends to court to collect a default judgment if you fail to apear. The contract lawyer will NOT be prepared for trial and will likely dismiss the case if you hold firm and proceed to trial.

Edited October 24, 2010 by SECLG

[Massive]

The Hill opinion only addressed whether the applicable statute of limitations is Georgia's 4 years, as on an open account, or 6 years, as on a written contract. Our Court of Appeals held that the latter applies because use of a credit card constitutes a simple written contract.

Hill does not obviate the creditor's burden to prove the terms of the contract. They will try to do that with a cardholder agreement which bears no indication that it is the agreement which applies to your specific account or bears your signature. They can, however, offer that proof through an in-court witness.

On that matter, I have never, I mean NEVER, seen Zwicker bring a witness to court. Do not be intimidated by Zwicker's attorney. They probably cannot prove their case.

Zwicker will most likely be represented in court by a non-Zwicker attorney whom they contract through an outfit called Lawyers on Demand. The contract lawyer will NOT be prepared and will likely dismiss the case if you hold firm and proceed to trial.

Those witnesses are all blow on paper until it's time for trial.

[Massive]

That Hill v Amex case is really really bad for consumers in Georgia. Basically all Amex has to do is show that one made charges and a few payments and the defendant is smoked.

They'd need more than that to secure a judgment if contested in any court of competent jurisdiction.

[LostMind]

I think it is Davis v. Discover that really applys but Hanna uses that so Zwicker just wants to be different maybe. I wonder if the judges know the difference?

[A] contract was effected in this case when the plaintiff issued its credit card to the defendant to be accepted by [him] in accordance with the terms and conditions therein set forth, or at [his] option to be rejected by [him]. Such rejection need take the form of returning the card, or simply its non-use. The issuance of the card to the defendant amounted to a mere offer on plaintiff's part, and the contract became entire when defendant retained the card and thereafter made use of it. The card itself then constituted a formal and binding contract.

(Citation omitted.) Davis v. Discover Bank, 277 Ga. App. 864, 865 (627 SE2d 819) (2006).

My assumption is they still need to prove the existence of an account that the Defendant used.

[LostMind]

SECLG, I just figured out who you are but I wont post it just in case, I would assume you would have made your name more cryptic if you did not want anyone to know but its still not my place to do that .

Glad I'm able to contact you now, look for an email from me soon.

Added: your on the same road as Hanna over there on the MONEY side of town.

Edited October 24, 2010 by LostMind

[Linda7]

SECLG - I sure wish you had the option to receive pm's.

[GenX99]

SECLG, I just figured out who you are but I wont post it just in case, I would assume you would have made your name more cryptic if you did not want anyone to know but its still not my place to do that .

Glad I'm able to contact you now, look for an email from me soon.

Added: your on the same road as Hanna over there on the MONEY side of town.

I did too over a week ago: ) I wrote an email through his site but no response or call which makes me wonder if this is a legit poster. However I must say "no interest" has been my experience with every NACA lawyer so far in GA.

[GenX99]

SECLG - I sure wish you had the option to receive pm's.

Yep, seems weird huh?

[LostMind]

Yep, seems weird huh?

This has to do with forum rules that don't allow access to PM until someone has 15 posts I believe.