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Account Stated claim- Critical Input needed to Revise my defenses


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Hi Everyone: I have been sued by Discover Bank on an "Account Stated" basis. I received a Request to Revise my answer and defenses from Plaintiff. Here is a summary of my original defenses and what the plaintiff requested

MOSTLY TO DELETE MY DEFENSES AND THEY STATED THEIR REASONS WHY).

Here are the original defenses:

Here are the defenses:

1) St of Frauds- I stated attorneys have not proven they were retained by Discover Bank as its representative in this matter. Law firm is well known as a

debt collector. Plaintiff reply: I have not properly alleged facts to support a St of Frauds defense. Special defenses in Ct are factual allegations that are consistent with the plaintiff's allegations, but show that the plaintiff has no cause of action. Plaintiff does not have to show proof of retainer to defendant; plaintiff is bringing this action in its own right. This defense as alleged by defendant is frivolous and must be deleted.

2) Lack of legal standing. I stated- Attys have not proven that Discover

Bank is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of Discover Bank with all of the original creditor's rights and privileges intact. Full account number was not provided to defendant, leaving the defendant to guess as to whether the account was his. Plaintiff reply: defendant has failed to allege a special defense recognized under Ct Law. Refer me to the Sec. of Practice Book 10-50. Then, If defendant believes palintiff lacks standing in this action, he should have filed a motion to dismiss the action. Therefore, this defense is frivolous and must be deleted.

3) Unjust enrichment. Plaintiff has failed to provide payment and charge summary to verify the amount of damages requested. Plaintiff reply: Defendant has failed to allege any facts in support of this alleged defense.

Also, plaintiff stated, defendant is attempting to obtain discovery through the use of the "special defense." Therefore, plaintiff requests that this "special defense" be deleted.

4) Lack of privity- Plaintiff has not produced a copy of any credit card agreement establishing an obligation by the defendant. Plaintiff reply:

Defendant has alleged no facts in support of this alleged claim.Therefore, they are merely bald conclusions without any factual support, and defective.

Defendant had a credit card issued by the plaintiff which he used, the use of the credit card created an agreement each and every time. Additionally, defendant is attempting to use this "special defense" as a mechanism to obtain discovery. Therefore, plaintiff requests that this "special defense" be deleted.

5) Unclean Hands- Plaintiff has concealed defendant's legal arbitration right to waive plaintiff from this court venue by not producing a signed copy of the

alleged credit card agreement.

Plaintiff reply: Defendant has not attempted to file before the arbitration board. Defendant has not properly alleged facts to support this so called

"special defense" but instead has made a statement which is no more than a

bald conclusion. This is not a properly alleged "special defense" recognized under Ct law. Therefore, this defense must be deleted.

Furthermore, defendant is seeking information which is more readily obtained through the discovery process. Plaintiff is not required to provide a copy of the credit agreement with the complaint. Therefore, plaintiff requests that this "special defense" be deleted.

6) Plaintiff failed to state a claim upon which relief can be granted. Plaintiff reply: Ther eis no such defense here, and no facts alleged to support it. Defendant should file a motion to strike if there has indeed been a failure to state a claim. Therefore, plaintiff request that this "defense" be deleted.

7) Plaintiff or its predecessors violated the fair Debt Collection Practices Act.

Plaintiff reply: The FDCPA is not a valid "defense" to a collection action. See

Credit One v. Head, 117 Conn. App. 92, 101 n.8 (2009), cert denied 294 Conn. 907 (2009). Therefore, this defense must be deleted.

8) Defendant reserves the right to amend and/or add additional answers, defenses and/or counterclaims at a later date. Plaintiff reply: Defendant has failed to allege a special defense recognized under Ct law. See Conn practice Book 10-50. There is no such defense here. Therefore, plaintiff request that this defense be deleted.

9) Defendant reserves the right to trial by jury. Plaintiff reply: Def. failed to allege a special defense recognized under Ct law. See Conn Practice Book 10-50. There is no such defense here. Therefore, plaintiff request that this defense be deleted.

AS I STATED -THESE HAVE PRETTY MUCH BEEN WIPED OUT BY THE PLAINTIFF-- I DID GET INPUT FROM SOMEONE HERE (A LOT) AND WHEN I REVISE MY DEFENSES I AM NOW LEFT WITH THESE:

Unjust Enrichment-- Plaintiff claimed reasonable atty fees per the provisions of the credit agreement. Plaintiff has not Produced a copy of the credit agreement which I requested in Discovery-production of documents.

So the "REVISE" Unjust Enrichment defense would read:

Unjust Enrichment. Plaintiff has asked for attorney's fees but has not provided the Defendant with a copy of the credit agreement and therefore has not proven the Defendant is liable for attorney's fees.

Next Defense: Plaintiff has failed to provide an accounting of the alleged debt.

Next defense: Plaintiff has asked for contractual interest--per provisions of the credit agreement on any unpaid balances, yet Plaintiff has not provided Defendant with a copy of said credit agreement.

NEED COMMENT INPUT ON THIS QUESTION: IF PLAINTIFF IS PROCEEDING ON AN "ACCOUNT STATED " BASIS IN THE COMPLAINT, ISN'T THERE A CONTRADICTION HERE SINCE THEY ALSO REFER TO THE CREDIT AGREEMENT

REGARDING THEIR CLAIM FOR REASONABLE ATTY FEES AND THEIR CLAIM FOR

CONTRACTUAL INTEREST ON ANY UNPAID BALANCES ????

IT SEEMS THEY ARE TRYING TO GET THE BENEFIT OF BOTH BREACH OF CONTRACT AND ACCOUNT STATED AT THE SAME TIME. IS THIS POSSIBLE??

DOES ANYONE KNOW IF I AM MAKING A CORRECT ASSUMPTION BASED ON WHAT THEY ARE ASKING FOR IN THEIR COMPLAINT?

PART OF THE COMPLAINT STATED COUNT 1-- DEFAULT ON CREDIT ACCOUNT

AND COUNT II WAS BASED ON ACCOUNT STATED AND REFERRED TO THE FACT THAT STATEMENTS HAD BEEN MAILED TO DEFENDANT. DEFENDANT HELD THESE STATEMENTS FOR AN UNREASONABLE TIME WITHOUT PROTEST OR KNOWN DEFECT. THEN PLAINTIFF STATED, THE FINAL STATEMENT TRANSMITTED TO THE DEFENDANT, INDICATING A BALANCE DUE AND OWING,

WAS ACCEPTED AND HELD BY THE DEFENDANT FOR AN UNREASONABLE TIME WITHOUT PROTEST OR NOTICE OF DEFECT.

THEN PALINTIFF STATED: THE PLAINTIFF SEEKS DAMAGES FOR THE ACCOUNT STATED BALANCE.

THE BALANCE CLAIMED IS $6,362.56.

NOTE: I DENIED THEIR ALLEGATIONS IN MY ANSWER TO THEIR COMPLAINT.

SO NOW-- I NEED TO SUBMIT REVISED DEFENSES TO THEIR REQUEST TO REVISE. SO FAR, I HAVE THE THREE DEFENSES NOTED ABOVE.

THE PLAINTIFF HAS MADE REFERENCE TO THIS SECTION OF OUR PRACTICE BOOK FOR CONNECTICUT. SPECIAL DEFENSES (WHICH ARE AFFIRMATIVE

DEFENSES-JUST CALLED SPECIAL IN CT), UNDER CT LAW ARE FACTUAL ALLEGATIONS THAT ARE CONSISTENT WITH THE PLAINTIFF'S ALLEGATIONS,BUT SHOW THAT THE PLAINTIFF HAS NO CAUSE OF ACTION.

SO DOES ANYONE HAVE ANY OTHER IDEAS ABOUT SUBMITTING REVISED DEFENSES ???

NOTE: ONE DEFENSE THE PLAINTIFF REQUESTED TO BE DELETED WAS:

UNCLEAN HANDS. MY DEFENSE FOR THAT READ AS FOLLOWS:

PLAINTIFF HAS CONCEALED DEFENDANT'S LEGAL ARBITRATION RIGHT TO WAIVE PLAINTIFF FROM THIS COURT VENUE BY NOT PRODUCING A SIGNED COPY OF THE ALLEGED CREDIT CARD AGREEMENT.

PLAINTIFF RESPONDED WITH: DEFENDANT HAS NOT ATTEMPTED TO FILE BEFORE THE ARBITRATION BOARD. DEFENDANT HAS NOT PROPERLY ALLEGED

FACTS TO SUPPORT THIS SO CALLED DEFENSE BUT INSTEAD HAS MADE A STATEMENT WHICH IS NO MORE THAN A BALD CONCLUSION. THIS IS NOT A

PROPERLY ALLEGED DEFENSE RECOGNIZED UNDER CT LAW. THEREFORE,THIS DEFENSE MUST BE DELETED.

NOW IN MY DISCOVERY REQUESTS TO PLAINTIFF, THEY WOULD NOT PRODUCE A COPY OF THE CREDIT CARD AGREEMENT.

SO IS THIS DEFENSE GONE MERELY BECAUSE OF NOT FILING FOR ARB BEFORE SUIT WAS FILED ??

ALSO- WOULD THE STATUTE OF FRAUDS APPLY HERE ?? IF SO, HOW WOULD I PROPERLY STATE THE DEFENSE ?? IT APPEARS I NEED TO PROVIDE SOMETHING VERY SPECIFIC TO MY CASE HERE IN MY DEFENSE--IF IT WOULD APPLY AT ALL.

ANY OTHER DEFENSES THAT I MIGHT BE ABLE TO GET IN SINCE I NOW HAVE TO FILE "REVISED DEFENSES" ???

THANKS FOR ANY HELP AND SUGGESTIONS.

Edited by move forward
typo-placement of words
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IMHO, this is a trap you are just about to willingly jump into!!!

since when do you follow the advice of the plaintiff's lawyer.....NEVER.

me thinks they are trying to get you to change your answers to make their case easier...DONT GIVE IN.

i have never seen on these boards where a defendants answer has been changed to BENEFIT THE PLAINTIFF!!

if the judge tells you to do something, you do it......but not from the plaintiff's attorney.

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Of course they will object to your defenses. You also need to make sure the "Affirmative Defenses" are recognized in your jurisdiction.

That being said, CHANGE NOTHING. If the judge strikes your defenses, just stick with the other ones. It is how the game is played, so Game On.

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you SHOULD read the conn law 10-50 to 10-52. this does not mean you should change anything.

what you SHOULD do is understand the defenses taht you are stating. i think statute of frauds deals with contracts that need to be in writing.....etc but i would suggest you familiarize yourself with each defense that you are using.

but one thing i can say is that the fdcpa is not a defense to the complaint. but you can add counterclaims as part of your answer if they violated the fdcpa.

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Guest usctrojanalum

If you don't want to revise your defenses, you can always reject and object their request to revise. Then it will probably be brought before a judge, they will probably move the court to compel you to revise your answer, or to strike your affirmative defenses. it's a cat and mouse game really.

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  • 1 year later...

http://www.jud.ct.gov/Publications/code2000.pdf

Denise Mollica v. Edward Toohey

CREDIT ONE, LLC v. WILLIAM E. HEAD - Connecticut - Case Law | Lexisone

“Account Stated” Theory may Defeat Debtor Challenges to Amount Due

by Richard M. Leibert

Hunt Leibert — USFN Member (CT)

In Connecticut, Citibank, N.A. sued Jodie Stewart to collect sums due under a credit card agreement. It grounded its claim of recovery under the theory of recovery known as account stated, where, by contract, the debtor has a reasonable period of time in which to question all or part of the debt, after which the account stated is conclusively presumed to be the amount due.

Citibank moved for summary judgment contending that there were no material issues in genuine dispute. Attached to the motion was an affidavit from Citibank with an attached copy of the contract and the defendant’s records of charges and payments. The defendant filed an answer denying the amounts claimed due. She filed a counter affidavit expressing doubt that her payments were properly credited and that she had been improperly charged late fees.

The court noted that the Connecticut Supreme Court had discussed the account stated cause of action with approval more than 100 years earlier. The defenses to a claim based on account stated are limited to fraud or mistake.

The defendant had no evidence of fraud or mistake; rather, she claimed she should have the opportunity to challenge the plaintiff’s claims at trial. The court determined that there was no material fact in genuine dispute and entered summary judgment for both liability and damages [Citibank (South Dakota), N.A. v. Stewart, 40 Conn. L. Rptr. 337 (2006)].

Although this case concerned a credit card collection, it is interesting to ponder whether the account stated theory will apply to mortgage foreclosures where the borrower receives monthly statements of his or her account. Many times, the borrower does not challenge the debt until the foreclosure is commenced. The account stated theory may help defeat these challenges in jurisdictions where this theory has been adopted.

Edited by racecar
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