Need advise on CC lawsuit (California)

[amk1022]

Hi all, I was delighted to randomly come across this resourceful forum!

Before proceeding to act on my own accord, I wanted to get some feedback and legal advice from the community before answering the lawsuit filed from the plaintiff's (FIA CARD SERVICES) attorney.

I initially answered to a court summons in the State of California for a complaint: "BREACH OF CARDHOLDER AGREEMENT".

After extensive research and purchased documentations, I was able to file my answer to the complaint with Affirmative Defense. The plaintiff's attorney then responded with "REQUEST FOR ADMISSIONS" and "SPECIALLY PREPARED INTERROGATORIES".

This is what I'm curious about:

1) Shouldn't the plaintiff have responded to my Affirmative Defense in my initial answer to summons, such as the documentation in question (agreement, original contract)?

2) Can I respond to their discovery and submit my own discovery request?

Any advice will be greatly appreciated..Thanks in advance!

[BV80]

This is what I'm curious about:

1) Shouldn't the plaintiff have responded to my Affirmative Defense in my initial answer to summons, such as the documentation in question (agreement, original contract)?

No. Those are items you request in discovery.

2) Can I respond to their discovery and submit my own discovery request?

Read CA's rules of civil procedure concerning discovery. They will inform you of the process and proper procedure.

[amk1022]

Thanks for responding.

If I list their REQUEST FOR ADMISSIONS AND INTERROGATORIES here, would the community be able to assist in ways to respond to each discovery?

Just wanted to see if that would be feasible..and of course no one would be held accountable should it negatively affect my case.

[BV80]

If I list their REQUEST FOR ADMISSIONS AND INTERROGATORIES here, would the community be able to assist in ways to respond to each discovery?

Anyone who can offer suggestions will do so. Of course, the vast majority of us are not lawyers. Any suggestions we offer are based upon our own experiences and research.

[amk1022]

Ok, sounds good. Here's what I need assistance in responding to the plaintiff.

REQUESTS FOR ADMISSIONS:

YOU ARE HEREBY REQUESTED TO ADMIT the truthfulness of each of the facts set forth below. In accordance with Sections 2033.010, et. seq. of the CA Code of Civil Procedure, you must respond under oath, within 30 days from the date of service hereof.

EACH OF THE FOLLOWING FACTS IS TRUE:

1. YOU (As used herein, "YOU" shall refer to the above-named responding party defendant, its employees, officers, directors, attorneys, agents, investigators and anyone else acting on his/her/its behalf) applied for credit card account number xxxxxxxx with Plaintiff.

2. YOU accepted Plaintiff's invitation to open credit card account number xxxxxxxx.

3. YOU received the credit card with account number xxxxxxxx from Plaintiff.

4. YOU received the AGREEMENT (as used herein, "AGREEMENT" shall refer to the

Customer Agreement and Disclosure Statement) with credit card account number xxxxxxxx.

5. The AGREEMENT provided that by using the credit card, YOU agreed to be bound by the terms therein.

6. The AGREEMENT provided that YOU pay finance charges on any overdue balance.

7. The AGREEMENT provided that YOU would pay attorney's fees and court costs in the event litigation became necessary to collect any unpaid balance.

8. YOU used the credit card to purchase goods, services, or to obtain cash advances.

9. YOU received regular monthly statements showing the charges made, payments received, and the total balance due, including any late fees and finance charges, in accordance with the terms of the AGREEMENT.

10. The AGREEMENT requires that YOU send any written notice of any disputed charge to Plaintiff within 60 days of receiving the statement bearing the disputed charge.

11. YOU did not send any written notice of dispute to Plaintiff within 60 days of receiving the statement bearing a disputed charge.

12. All payments YOU have made have been applied to this account by Plaintiff.

13. YOU did not cancel credit card account number xxxxxxx.

14. YOU did not report credit card account number xxxxxxxx lost or stolen.

15. The principal amount due set forth in the Complaint filed in this matter is correct.

16. Every statement or allegation contained in Plaintiff's Complaint is true and correct.

SPECIALLY PREPARED INTERROGATORIES:

1. If any of YOUR responses to Plaintiff's Requests for Admissions served herewith are not an unqualified admission, state the number of each such Request.

2. For each Request for Admission for which YOUR response was not an unqualified admission, state all facts upon which you base YOUR response.

3. For each Request for Admission for which YOUR response was not an unqualified admission, state the name, ADDRESS, and telephone number of all PERSONS who have knowledge of those facts.

4. For each Request for Admission for which YOUR response was not an unqualified admission, identify all DOCUMENTS (as used herein "DOCUMENT" or "DOCUMENTS" shall mean any writing as defined in the Evidence Code Section 250, et. seq., and includes the original or a copy of handwriting, typewriting, printing, photostating, photographing and every other form of recording upon any tangible thing, and form of communication or representation, including letters, words, pictures, sounds, symbols and any combination thereof) and other tangible things that support your responses.

4. For each Request for Admission for which YOUR response was not an unqualified admission, state the name, ADDRESS, and telephone number of the PERSON who has each DOCUMENT or thing that support YOUR responses.

[BV80]

A few questions:

1. Is the debt yours?

2. Is it within the SOL?

3. Is FIA Card Services the original creditor?

4. What evidence have they sent you?

[amk1022]

1. Is the debt yours?

Originally it was my account...however, they cashed in a check that outlined new terms and conditions to my favor and the debt was assigned to a third party along with that process, in which the OC was also informed of.

2. Is it within the SOL?

Sorry for being a newbie...what is a SOL?

3. Is FIA Card Services the original creditor?

I believe FIA Card Services is an entity of Bank of America that issues the credit card - so if I'm not mistaken, yes, they are the OC.

4. What evidence have they sent you?

None. Only their initial court summons and recently the discovery requests.

Edited January 11, 2011 by amk1022

[BV80]

SOL - Statute of Limitations

Originally it was my account...however, they cashed in a check that outlined new terms and conditions to my favor and the debt was assigned to a third party along with that process, in which the OC was also informed of.

Okay, this is a new one on me. Is the debt your sole responsibility?

I can say this much. If the debt is within the SOL and the charges are yours, since FIA is the OC, assuming they have supporting documents such as statements and a cardmember agreement, they probably have a good case.

I'm not saying you can't fight it, but you might want to consider settling, if possible.

[amk1022]

SOL - Statute of Limitations

Okay, this is a new one on me. Is the debt your sole responsibility?

I can say this much. If the debt is within the SOL and the charges are yours, since FIA is the OC, assuming they have supporting documents such as statements and a cardmember agreement, they probably have a good case.

I'm not saying you can't fight it, but you might want to consider settling, if possible.

I guess I'm not understanding what SOL is and if its within SOL.

[BV80]

The Statute of Limitations is the amount of time an original creditor or debt collector can take legal action against you. The SOL is based on the date of the default. If your last payment was in March, the default occurs in April. That's when the SOL clock starts ticking.

In my state, the SOL is 3 years. After 3 years from the default, a debt collector can continue to try to collect, but they cannot legally sue you. They can try, but an SOL defense can get the case dismissed.

If I'm not mistaken, the SOL for credit cards (revolving or open debt) is 4 years. If you defaulted on the debt 4 years or more before the date the lawsuit was filed, it is outside of the SOL.

[amk1022]

In that case, yes, it is within SOL.

[BV80]

1. Admitted on information

I'm not certain what you mean about a 3rd party. Since the Plaintiff has not provided statements or a cardmember agreement, you might answer the rest of the Admissions with something like this:

Defendant is without knowledge or information sufficient to form a belief and, therefore, must respectfully deny.

OR

Defendant is without knowledge or information sufficient to form a belief and, therefore, cannot admit or deny.

You'll give the reason for not admitting in Interrogatory #2.

Interrogatories

1. Requests 2-9.

2. Plaintiff has failed to provide Defendant with documentation which supports Plaintiff's claim in the Complaint.

3. I suppose you'd put your name and address.

4. None. (Too bad you can't put their name and address. They should have the documentation.)

Hopefully some more members will chime in here.

[amk1022]

Thanks a bunch BV80!

When I meant 3rd party, this was the new contract that the OC agreed to when they cashed in the check and the account was assigned to this 3rd party:

Language Used on Contract Enclosed with Check

RE: Third Party OFFER & CONSIDERATION for Addendum to

Cardmember Agreement to Account # xxxx-xxxx-xxxx-xxxxx or Cardholder's name.

This is a third party OFFER & CONSIDERATION for an addendum to the

terms of the cardmember agreement and for total administration of the

amended contract by John Doe of COMPANY NAME. The interest

rate will be reduced to 0% per annum. The principal, if any, will be payable

at a minimum rate of $10 monthly. You agree not to sell or assign this

account and rights for any claim to any third party. Any such action

constitutes forfeiture of all rights and claims including litigation. No late

charges or over limit charges will be billed. All previous late or over limit

charges will be credited to this account. You agree to not report adverse

information to any credit reporting agency. There will be no arbitration

provision to settle any dispute. Nothing shall prevent either of us from

seeking any and all remedies available in a court of law and further, shall be

governed by the laws of the state of Alaska. Violation of these terms will

constitute a material breach and a penalty of $2,500.00 shall be imposed for

each and every material breach. Any future addendums or amendments shall

also be made in writing and signed by both parties. For good consideration,

a check is enclosed. Cashing the enclosed check constitutes acceptance and

unequivocal assent to this adddendum/change/ modification/

novation/counteroffer without recourse. If you do not agree with these

terms, you must notify me in writing 30 days from the date of this notice and

return the attached check for consideration uncashed.

310 K Street Suite 200

CITY, STATE, ZIP CODE

Note:

Please be aware that the above statement and also the check, with the below

language on the back, was delivered to the correspondence address

designated by the creditor – not to the billing payment address – which is

an automated payment center. It was sent to a place where an individual

would be expected and required to read it and act upon it.

[BV80]

I've never seen anything like that before. I really don't know what to make of it.

[amk1022]

I've never seen anything like that before. I really don't know what to make of it.

LOL, not surprised there.

Refer to: Cook’s Pest Control, Inc. v. Rebar

Court: Supreme Court of Alabama (852 So.2d 730)

[rikkivs]

It makes some sense that if they cashed your check, that they would tacitly agree to the terms and conditions you outlined, or notify you otherwise and or return your check. So have you found a similar case that has traction in California to justify your approach? Did you send your note Certified Return Receipt Requested or via delivery confirmation? Calawyer will know more about this!

[rikkivs]

In a credit card or personal loan matter, lending institutions and banks routinely send out notices changing the terms and conditions of your card UNLESS you dispute within a slim amount of time. Is it that far off base for a customer to do the same? The Alabama precedent looks strong.

[amk1022]

Exactly...by the laws of this country, we have every right to give a taste of their own medicine.