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need help with motion to compel


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Quick overview

Being sued by FIA Card Services N.A (The original creditor) for almost $9000.00 I got served in April. I live in Utah. The last time I made a payment was 1-30-09. I am in the Discovery stage of this case. I sent the plaintiff Interrogatories and production of documents. Plaintiff responded with account statements, an account agreement (no signatures), and an affidavit of some one who works at FIA Card Services along with several objections to the rest of my discovery. I sent my meet and confer letter and got no response. I filled a motion to compel. Plaintiff responded with opposition to motion to compel

What I need help with

To make a long story short, basically there are 3 main things that I am trying to get the plaintiff to answer through my motion to compel.

1. Show me a contract with my signature on it.

2. Show me all documents that purport to bear my signature on it

3. Show me a copy of any credit applications

The plaintiff responded with his opposition to motion to compel stating things such as “Objection, there is no requirement that the defendant sign the account agreement.” “A signed copy of a credit card application is irrelevant under Utah code annotated 25-5-4(2)(e), thus rendering defendant’s discovery requests Irrelevant.” And “a credit agreement is binding and enforceable without any signature by the party to be charged if debtor is provided with a written copy of the terms and agreement; … any use of the credit offered shall constitute acceptance of those terms…"

I have no idea where to go from here. How can he prove I owe the debt if he doesn’t have a copy of my signature on anything? Do I need to counter his opposition? Do I just wait and see what the judge decides? How do I proceed?

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Quick overview

Being sued by FIA Card Services N.A (The original creditor) for almost $9000.00 I got served in April. I live in Utah. The last time I made a payment was 1-30-09. I am in the Discovery stage of this case. I sent the plaintiff Interrogatories and production of documents. Plaintiff responded with account statements, an account agreement (no signatures), and an affidavit of some one who works at FIA Card Services along with several objections to the rest of my discovery. I sent my meet and confer letter and got no response. I filled a motion to compel. Plaintiff responded with opposition to motion to compel

What I need help with

To make a long story short, basically there are 3 main things that I am trying to get the plaintiff to answer through my motion to compel.

1. Show me a contract with my signature on it.

2. Show me all documents that purport to bear my signature on it

3. Show me a copy of any credit applications

The plaintiff responded with his opposition to motion to compel stating things such as “Objection, there is no requirement that the defendant sign the account agreement.” “A signed copy of a credit card application is irrelevant under Utah code annotated 25-5-4(2)(e), thus rendering defendant’s discovery requests Irrelevant.” And “a credit agreement is binding and enforceable without any signature by the party to be charged if debtor is provided with a written copy of the terms and agreement; … any use of the credit offered shall constitute acceptance of those terms…"

I have no idea where to go from here. How can he prove I owe the debt if he doesn’t have a copy of my signature on anything? Do I need to counter his opposition? Do I just wait and see what the judge decides? How do I proceed?

Did you fill out an application? If you didn't, they won't have a copy. There is no credit card "contract" with a signature. There's only the cardmember agreement that does not require a signature. The agreement most probably states that your use of the card indicates your acceptance of terms and conditions. That's called an implied contract.

Did you ever dispute any charges on the card?

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Is argument is directly on point. However, you need to read this case:

http://www.nclc.org/images/pdf/unreported/Haring.pdf

And determine if you really did get the T&C before you used the card. Next examine the agreement they provided to you, most have a copyright date on them, is it after you defaulted? If so it does not apply and can be stricken.

Did you request and get a FULL accounting of the account from inception to default?

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The objection and the motion should be placed on the court's calendar, in which case the judge will make a ruling. Whatever it is will be binding. You could file a motion to reargue, if there is such a thing in your state, but most likely you will get the same ruling. I always find it interesting that no evidence is ever required of these people, but if you claim you paid in full, they would demand proof.

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Your basically using the argument of statue of frauds, meaning the contract has to be written to be enforced. Generally speaking, that is not the case with a credit card case.

Personally, I think your focuising on the wrong area. There is a ton of case law that says you can enter into a contract and have a meeting of the minds by the conduct of each party.

In other words if you keep using the card, making payments on the account, they keep extending you credit, sending you statement, and there is no formal dispute, the conduct of both parties established a contract. Like a common law marriage.

The key is to pick away at the details that matter. Look for statements in the law like shall do this or shall do that, ect.. Then see if they or you complied exactly as the court or the law said they shall. Shall do something is a ton harder to wiggle out of. Conduct of the parties is open to interpertation. The court or law ruling something shall happen or take place pretty much ends the debate.

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FIA Card Services as I recall is BofA's CC company, and is in Delaware. The cardholder agreement probably states that you are agreeing to be bound by DE law, then when you try to fight they turn around and cite Utah statutes that benefit them! YOU try it, and they'll squeal that they are a national bank and are exempt from Utah law. Here is some of the Delaware law they will claim you agreed to:

CHAPTER 23. INTEREST

§ 2301. Legal rate; loans insured by Federal Housing Administration.

(a) Any lender may charge and collect from a borrower interest at any rate agreed upon in writing not in excess of 5% over the Federal Reserve discount rate including any surcharge thereon, and judgments entered after May 13, 1980, shall bear interest at the rate in the contract sued upon. Where there is no expressed contract rate, the legal rate of interest shall be 5% over the Federal Reserve discount rate including any surcharge as of the time from which interest is due; provided, that where the time from which interest is due predates April 18, 1980, the legal rate shall remain as it was at such time.

Key words....."any rate agreed upon in writing." Sounds like a contract to me. No contract, no written agreement, bingo, no 25% credit card rate. "Agreements" are not one sided documents printed up and allegedly mailed to people, which are then deemed "accepted" because you didn't return the credit card. You can do that too, you know. Print up your own cardholder agreement and say THEY agreed to the terms of it when they failed to cancel the account or accepted payment.

This is the same crap other card issuers pull. They pick and choose what laws apply to whom, when it suits their purpose. Then they claim exemption from ANY consumer protection or usury law. That gives them leave to rob the consumer blind with interest rates the consumer assumes to be legal, when they may not be. Wanna use DE law? Let's use it!

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I had previously disputed the debt and they never responded but I had lost the copies of what I had signed including my affidavit to them. I do have copies of proof of services and a witness of content using a notary as a 3ird party witness though (I do have the notaries signatures). Would that be good enough to use as a defense?

Yes I did request full accounting of the account from inception to default and he provided everything except for the signed receipts. The agreement they provided me did have the appropriate copyright date.

I guess seeing how statue of frauds does not apply to credit card cases I shouldn’t worry about rearguing the motion to compel.

I will keep the info on the interest in mind. That is very good to know.

Another question I had is that on the petition the plaintiff states a credit account number that is different then the credit account number that is being show in his discovery disclosers. Does this mean I can have his entire discovery thrown out because the account number is not shown on the pleadings?

And thank you every body for your responses.

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Does this mean I can have his entire discovery thrown out because the account number is not shown on the pleadings?

No it means your due and explanation. Most likely it will be some type of internal or accounting as the reason. No harm in changing account numbers as long as nothing is lost in the shuffle.

You can and should use technical moves but this is not criminal court where you can get the whole case tossed for a technicality.

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They did that with me, too. They used different account numbers for separate discovery requests. For the ones that didn't match the one on the complaint, I gave them straight denials and no production of documents. If it comes up in the future, my explanation is very simple.....plaintiff has made requests connected to an account which is unidentified, does not appear in the complaint, and has no relevance whatsoever to the instant action. Therefore, the responses are proper. Defendants are under no obligation to correct the mistakes of plaintiffs.

I would not ask for an explanation, nor did I. I simply answered what they put in front of me. If it was the wrong account number, wrong case, etc., too bad for them. They never mentioned it again and probably won't. Most of these idiots are the worst lawyers I've ever seen, they seem to have no clue as to how to litigate anything. I would suggest you do the same....let them stand in front of a judge and make some grand accusation, then watch the look on their face when YOU point out to the judge that the questions pertained to an account which has nothing to do with your case.

In addition to the interest angle, issuing a credit card without an application violates Regulation Z. I have the section somewhere, if you want I'll look it up. I think it's 212. I like this because it shows how little regard these CC companies have for the law, until they want to use it against you.

If I were to draft ROGs for these guys, the first one would be "state the legal basis and or statute upon which you rely for the calculation of the interest on the subject account. State the exact statute and the state of origin." That will drive them crazy, they'll have absolutely no idea what you want this for.

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