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I won against Discover Card!!!


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I received a summons back in 2009. I responded timely with 22 defenses and than i requested discovery of the plaintiff. (Most of which they didn't respond to.) After about a year Discover Attorney filed a motion for summary judgement.that All i really want to say is you all should have been there to see how i embarrassed that lawyer in a court room of lawyers. It was too funny.

The main thing i had to do was simply prove that there was still some material facts still in dispute. I waited until 4days before the court date before i sent in my response to the attorney and the judge. The plaintiff's attorney got up with his pitiful case and flawed evidence he was sweating as he spoke to the judge. (LOL)

Then i got up with my response and stated basically a few points

1. There is no written contract that proves that the plaintiff is entitled to receive what they are asking for. The is no proof that they have the right to charge what interest they are asking for and how can this court reward a claim when there is no proof that they are entitled to collect.

I ask for a signed contract in the discovery but they objected and the silly lawyer even got up and stated that there was no signed contract and i certainly mention to the judge that he admitted that no written contract was available only a card member agreement. Well the member agreement legally by itself does not list the interest rates nor the amount of an account.

The lawyer mention that they had an internet application with my name address ss# dob and my mothers maiden name. My response was that application can be made by the average hacker in Microsoft word and a copy of a person name date of birth social security number does not constitute an agreement.

When i file an answer i listed the statue of frauds as many of the defense, that require the plaintiff to prove that the account was not open by an act of fraud. which the incompetent lawyer could not do.

2. Inproper plaintiff

Most credit card companies sell their account receivable to raise cash just like the mortgage companies did with the mortgages that led to the market crash of 2008. I presented a Discover bank prospectus proving this and told the judge that this allege account may have been sold and Discover Bank may not be the owner of this account and they should be force the prove otherwise in order to receive a judgement.

When i sat down she allowed the attorney to get up again. (LOL) WHEN THIS ATTORNEY GOT UP THE SECOND TIME HE WAS SWEATING LIKE WE WERE OUTSIDE PLAYING A GAME A BASKETBALL IN THE MIDDLE OF THE DESERT. :mrgreen:

He was mad and nervous and made a claim that was not true and i wanted to get up and rebut it but the judge would not allow me so i smiled because i knew she was going to rule in my favor.

They judge than stated the the motion for summary judgement was denied and she made the plaintiff's attorney prepare the order. LOL

I still have to go to trial but i got a few more tricks up my sleeves and i know i am going to win. I hope this encourage somebody that fell like they are fighting a giant stay in the fight you can win.

Oh yea i am not an attorney and this information should not be used as legal advise.

To all you greedy debt collecting Lawyers all i have to say is 8-)

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Guest usctrojanalum

Attorney is inexperienced and dumb, Discover does not need a contract with your signature on it to prove that you had a business relationship with them. Use of a credit card is acceptance of it's terms. All they would need to do is provide statements with proof that you made payment on those statements, with a witness from the OC to authenticate the statements and the payments. (which is still sometimes a lot of evidence to come up with)

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I'm convinced you either don't know the law or you are here trying to discourage us from fighting Big banks, I did a tremendous amount of research of case studies to prepare my case. And you are flat out wrong the i had supreme court ruling in my response that stated "the amount demanded in the bill may not be the amount agreed to." Therefore the Federal Lending laws require all of that to be in a written agreement. RESEARCH PAYS OFF

You have to prove i agreed to 22% and 3% thats law...

And I am not an attorney so don't take this as legal advice

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Guest usctrojanalum
I'm convinced you either don't know the law

Just one actual case law for example,

Hill v. American Express, GA App. Ct., 2008

"[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."

If you need more, I can PM them to you. I know of about 30 decisions where it is ruled that the use of a credit card is acceptance of its terms.

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Use of the card tho doesn't prove the amount owed. Or that you are the person that used it. They should have to prove every amount charged on the card and that it adds up to whatever they are asking for and be able to account for every dollar. Otherwise unscrupulous creditors could make up any amount and try to collect. They should have to show signatures and if they are charging a certain amount of interest that that amount is stated in the contract. They can't just use any old interest rate and claim you owe that.

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First requisite of debt is the existence of obligation. Ernst v. Jessie L. Riddle PC, MD La 1997.

Davis v. Discover Bank, 277 Ga App. 864

Davis did not deny use of card but that Davis did not sign a contract.

The Federal Truth in Lending Act requires material terms of a credit card relationship to be set forth in a written agreement. Federal Law mandates comprehensive disclosures of these terms when the account is opened and when the account is amended.

The precise content and format of the disclosure that must be made in connection with every credit card application is dictated in great detail by 1607 of the Act and the implementing regulation found at 12 C.F.R. 225.5 The basic terms for which disclosure is required include:

• The annual percentage (%) rate applicable to the purchase, cash advances and balance transfer made using the account.

• The manner in which variable rates are determined.

• The amount of annual fees or other fees for the issuance or availability of that card.

• The amounts of the minimum finance charges and transaction charges.

• The existence and duration of a grace period, if any.

• The name of the balance calculation method and the amount of cash advances fees, late payment fees, over the limit fees and balance transfer fees 12 C.F.R. 225.5a(B)

The Act defined the manner and the timing of such disclosures regardless of the manner in which the credit card offer is made, whether it is made by mail, telephone, in a catalog, magazine or other publication or over the internet. 15 U.S.C § 1637© (1)-(7).

Additional disclosure are required in monthly statements, 12 C.F.R. 226.7, when the term of the agreement are changed, 12 C.F.R 226.9 © and before the card renewal date, 12 C.F.R. 226.9 (e).

Because these disclosures are required to be in writing and integrated into the account opening process regardless of how the account is opened the disclosed terms become defacto terms of the card agreement.

Title 15 U.S.C. § 1642 (Issuance of Credit Cards) prohibits the gratuitous issuance of a credit card. A credit card is to be issued only in response to an application or request. Any such application or request is governed by the disclosure provisions of Title 15 U.S.C § 1637 (Open end Consumer credit plans.)

I worked for a bank and whenever they open a credit card they used this standard and kept a signed copy of the contract.

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drwhitfield007,

Congratulations on fighting off the summary judgment. Being prepared is the biggest part of the battle.

But, be cautioned, this was just the second round. (The first was answering). The trial will be different from a summary judgement hearing. In a summary judgement hearing, you only have to find ONE genuine issue that still needs to be determined. In trial the standard is what is more likely than less likely.

While I disagree with usctrojanalum on some issues, I agree with him on this one. If you are basing your defense on no signature, you are fighting a losing battle. You can make the argument of incomplete agreement since the fee and interest disclosure was not included, but not that you did not agree because they cannot provide your signature on the application if you used and signed the charge slips later.

As far as the Securitization issue, let us know how that works out. The jury is still out (pardon the pun) on whether this will become a real issue for the CC issuers like the mortgage companies.

Keep up the fight!

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if the use of a credit card is acceptance of its terms.

than were are the terms of the agreement ex. Interest rate

On the monthly statements they send each month.

In my research I recall seeing plenty of cases in MI where simple authorized usage of the credit card and/or failure to timely object to balances or interest rates listed on monthly statements was all the OC plaintiff needed to show to be victorious.

That being said. Congrats on winning the MSJ. If that attorney was really clueless then I wouldn't be surprised if they send another goon to deal with the trial!

Edited by SingleDadJames
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drwhitfield007,

usctrojanalum is not trying to rain on your parade, simply stating the truth. You didn't mention what was stated in the complaint. If they said you entered into contract, then yes, they have to provide a contract. Otherwise, just using the card is enough and they don't need a contract.

You do have a very good point in stating that how can they prove the interest rate if they don't have a contract, that little item attracted my attention.

I'll be very interested to know what happens in court.

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IANAL but . . .

I can see where lack of a signed contract would be a deciding factor if identity theft or fraud were alledged, but I do believe that using the card and all that extra fine-print paperwork in the monthly statement is sufficient. After all, I believe all 50 states and Federal law allow for oral contracts to be binding and there is certainly nothing signed in those cases.

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If just using the card is enough what makes it enough legallyor lawfully?

If I let you use my vehicle and leave a note on the dash that says you will put gas in it every month for a year. Do you have to put gas in it. you used it right.

There is no agreement to enter into a contract with TWO signitures both parties.

We have heard about "produce the original contract with the debtors signiture", but what about the creditors signiture?

Four elements of a contract

• A meeting of the minds between the parties demonstrating they both understand and agree to the essentials of the deal

• Consideration (something of value exchanged by each of the parties, such as cash, goods or a promise to do something)

• An agreement to enter into the contract (typically evidenced by both parties signing a written contract, although oral contracts can be valid too in some situations)

• The legal competence of each party, meaning the parties are not minors and are of sound mind

There may be simple asnwers to this but I'm new to this and trying to learn as much as I can.

Thank you for any information anyone here could give.

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If just using the card is enough what makes it enough legallyor lawfully?

If I let you use my vehicle and leave a note on the dash that says you will put gas in it every month for a year. Do you have to put gas in it. you used it right.

There is no agreement to enter into a contract with TWO signitures both parties.

We have heard about "produce the original contract with the debtors signiture", but what about the creditors signiture?

Four elements of a contract

• A meeting of the minds between the parties demonstrating they both understand and agree to the essentials of the deal

• Consideration (something of value exchanged by each of the parties, such as cash, goods or a promise to do something)

• An agreement to enter into the contract (typically evidenced by both parties signing a written contract, although oral contracts can be valid too in some situations)

• The legal competence of each party, meaning the parties are not minors and are of sound mind

There may be simple asnwers to this but I'm new to this and trying to learn as much as I can.

Thank you for any information anyone here could give.

Is there anyone on this site who can answer my above questions?

Admin can you?

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Where is the proof that the guy used the card for the amount the plaintiff is stating? Proof of interest rates? If there is no contract and proof of what they can charge you in interest and no proof that you charged all the items then how can they win. I don't think its right if the other side can win by just showing you used the card by providing a few statements. They should have to prove that you owe the whole amount stated and that the interest rates and penalties were allowed from the original contract and that what they are asking for adds up. Otherwise a creditor or a debt collector could just claim you owe any old amount and collect against people. I hope they have to prove you owe every penny they are asking for.

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Is there anyone on this site who can answer my above questions?

Admin can you?

Everytime somone uses the card they provide their signature to authorize the credit usage. You're giving your signature to say you agree that in exchange of credit card company paying the merchant you will pay the credit card company that charge and whatever other charges the credit card company charges for repayment of that amount (interest, late fees, penalties etc).

Why is everyone always looking so hard for a loop hole so they can use a credit line jack up thousands of dollars to the creditor and then say I'm not gonna pay you because even though I asked for the card and agreed to the terms I'm not gonna pay you cause you made a mistake in not having me sign a contract?

If a siganture was required by law to make it legal for the credit card companies to collect a debt from you they would require a signature. Otherwise they would lose millions of dollars and go out of business when people didn't pay and affirmed their only defense as "no sig" no pay? If their internet and telephone agreements weren't legally binding do you really think they would use them.

We're talking about a multibillion dollar industry here.

This is why winning against an OC is so damn hard. JDB's are easier because they don't have the proofs usually provided to them when they buy the debt from the CC company..

I will say this though. With the american people and the politicians finally catching on to what these JDB companies are doing.. They will soon start getting statements and other proofs necessary when they buy these debts from CC companies in the future. It may cost em a little more than a few pennies on the dollar to purchase these debts in the future but if they have to spend more to work with the new laws that may go into effect they will.

Eventually they will shore up the holes that make it possible for people to get out of legitimate debt in the future.

I apologize in advance for those of you who I offended with my rack up debt and try to get out of it comment. Not everyone does this. There is a fair percentage of people who do though. And yes, I've been there before too and had a small charge off from a credit card and a bunch of medical bills I didn't pay that went to collections. That's why I came here in an effort to learn about this stuff and try and clean up my credit.

Edited by Hal Jordan
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Chiquita has a good point that even if they're suing under account stated, there has to be documentation as to the terms and conditions under which the parties entered into such an agreement. If we're talking about credit card debt account stated is used but is rarely appropriate for such a suit simply because the amounts are never really fixed and if the Defendant objected in the past, the amounts were not agreed upon either.

Hal you ought to look at some primers I've posted in the past on Texas collections law. Although I'm in California many of these details are applicable in my state. One is that given the unilateral contracts between creditors and debtors, it is often difficult to show the terms and conditions under which the agreement took place. And since the creditors send out changes to terms and conditions every few months, then universal defaults came around, it is truly a mess to figure out how much someone owes. Are the finance charges that accrue daily based upon purchases or late fees? Is the balance namely comprised of fees and late charges and interest on those or are the fees related to purchases the debtor made? How much has the debtor paid back? What were the interest rates on the card when debtor made these purchases? And the list goes on and on and on. This is far more complex than many lawyers seem to understand which is why it is feasible to beat an OC and not just because they flubbed on their local rules of civil procedure;)

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Everytime somone uses the card they provide their signature to authorize the credit usage. You're giving your signature to say you agree that in exchange of credit card company paying the merchant you will pay the credit card company that charge and whatever other charges the credit card company charges for repayment of that amount (interest, late fees, penalties etc).

Why is everyone always looking so hard for a loop hole so they can use a credit line jack up thousands of dollars to the creditor and then say I'm not gonna pay you because even though I asked for the card and agreed to the terms I'm not gonna pay you cause you made a mistake in not having me sign a contract?

If a siganture was required by law to make it legal for the credit card companies to collect a debt from you they would require a signature. Otherwise they would lose millions of dollars and go out of business when people didn't pay and affirmed their only defense as "no sig" no pay? If their internet and telephone agreements weren't legally binding do you really think they would use them.

We're talking about a multibillion dollar industry here.

This is why winning against an OC is so damn hard. JDB's are easier because they don't have the proofs usually provided to them when they buy the debt from the CC company..

I will say this though. With the american people and the politicians finally catching on to what these JDB companies are doing.. They will soon start getting statements and other proofs necessary when they buy these debts from CC companies in the future. It may cost em a little more than a few pennies on the dollar to purchase these debts in the future but if they have to spend more to work with the new laws that may go into effect they will.

Eventually they will shore up the holes that make it possible for people to get out of legitimate debt in the future.

I apologize in advance for those of you who I offended with my rack up debt and try to get out of it comment. Not everyone does this. There is a fair percentage of people who do though. And yes, I've been there before too and had a small charge off from a credit card and a bunch of medical bills I didn't pay that went to collections. That's why I came here in an effort to learn about this stuff and try and clean up my credit.

I will say one reason people are looking for loop holes, is the fact they just watched the bank use loop holes and get bailed out with our money. 1-2.7 trillion depending on what figures you go by.

Heres a bailout that would have worked. Take the bailout money divide it up by all the mortgages out there send it to the people and tell them to pay off all of or as many as the money would cover (1 figure was $250,000 per mortgage) what ever else was left save or spend. Let's see that would bail out the banks and the people and the economy.

And you wander why people want a loop hole?

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In order to comply with the Truth In Lending Act (TILA), 15 U.S.C § 1642, the original lender must have a signed request or application, or in the absence of such writing, there must be a record detailing the date and circumstances of the request or application of credit. 15 U.S.C. § 1642. The Plaintiff’s complaint does not comply with these requirements.

Further under Federal Law, “n any action by a card issuer to enforce liability for the use of the credit card, the burden of proof is upon the card issuer to show that the use was authorized for, then the burden of proof is upon the card issuer to show that the conditions of liability for the unauthorized use of credit card , as set forth in subsection (a) of this section, have been met.” 15 U.S.C. § 1643(B).

If the Truth in lending act states that there needs to be a application, authorized use, conditions of liability and unauthorized use in order to collect on a claim

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In order to comply with the Truth In Lending Act (TILA), 15 U.S.C §§ 1642, the original lender must have a signed request or application, or in the absence of such writing, there must be a record detailing the date and circumstances of the request or application of credit. 15 U.S.C. § 1642. The Plaintiff’s complaint does not comply with these requirements.

I must be missing something. Where is the highlighted part referenced in § 1642?

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