How do I dispute a Equitable Estoppel, Unjust Enrichment and Promissory Estoppel

[JoeSS870]

I live in FL and I'm being sued by a JDB Main Street Acquisition Group any ways as I have stated in other post. I was served and in the process of answering to there complaints.

In the JDB complaint, they clam Equitable Estoppel, Unjust Enrichment and Promissory Estoppel. I know in my answer I'm suppose to admit or deny the allegations of which the JDB claims in their complaint as well as an affirmative defense.

I was wondering, r how I should defend again the Equitable Estoppel, Unjust Enrichment and Promissory Estoppel? I know that the JDB needs to provide information that they are the debit holders of this debit. But what are the two Estoppels and Unjust Enrichment about? I want to know because I want to get my information together to defend myself.

[usagi555]

I can't directly answer your question without some serious research, but I've been thinking that Unjust Enrichment claims from a JDB give you the perfect reason to force them to tell you how much they purchased the debt for. They are basically claiming that they suffered injury because you were unjustly enriched at their expense.

Coltfan and others are going to come in and tell you to focus on the standing issue no matter what counts they have included, and I agree. I'm just thinking that you can have fun making them uncomfortable.

Edited December 26, 2011 by usagi555

[Coltfan1972]

Coltfan and others are going to come in and tell you to focus on the standing issue no matter what counts they have included.

Saved me the time. Thanks!

The problem with them telling you how much they allegedly paid is, at the end of the day it does not matter if they paid one cent or ninty-nine cents on the dollar. Yes, you can cause them a little more aggravation (all for that), but it's irrelevant in the big picture.

They claim they own a debt that is in default. Other than fraud (which you would be able to exclude arguing standing) or you not owing the alleged debt, all the other stuff is just smoke and mirrors.

[legaleagle]

Equitable Estoppel is a legal principle that bars a party from denying or alleging a certain fact owing to that party's previous conduct, allegation, or denial. I don't know where they are going with this, you should post the complaint. Type it, no images please. This is usually a special defense, not a cause of action you would find in a complaint.

The doctrine of promissory estoppel serves the purpose of enforcing a contract between two parties when the contract is otherwise unenforceable. Again, I have no idea what they are trying to do. This also sounds like a defense, not a cause of action. I've never seen a card company sue somebody and charge them with "promissory estoppel." You have to charge them with a reognizable cause of action........breach of contract, account stated, something along those lines.

Unjust Enrichment is a cause of action, it generally means that you obtained a "benefit" (cash advances, goods) at their expense and retained it "unjustly" (by not paying them as agreed.) Just deny it. If they can't prove you owe the debt to them, then nobody has been unjustly enriched.

I've never seen a JDB try to use this estoppel stuff. It is interesting to the extent that this is a type of contract law theory for unenforceable contracts. They may be trying to back door the system in anticipation of not being able to provide contracts proving assignment. It may depend on Florida law requirements. Maybe somebody from FLA can comment further, or Nascar, he's not too far away and knows FLA law.

My final thought is that this is a typical JDB law firm full of incompetent attorneys who let assistants do all the work. I have yet to see really top notch work come out of one of these firms.

[nascar]

I'd really like to see the complaint, but this looks like the work of certain firm whom, a couple of years ago, were filing complaints alleging they purchased only the receivables and therefore, terms of the contract (such as arbitration, etc.) did not apply to them.

Taken at face value, my first impression is that you're being sued by a junk buyer who knows they have no proof and are angling for a purely equitable remedy.

[JoeSS870]

Here is the Complaint I'll just give the sections which I mentioned with are the Equitable Estoppel, Unjust Enrichment and Promissory Estoppel.

PLAINTIFF ( MAINSTREET ACQUISITION CORP., ASSIGNEE OF HSBC BANK NEVADA NA

DEFENDANT ( ME)

JURISDICTION

1. This is a cause of action for equitable relief pursuant to Florida Statue 34.01 (4), which the County Court has subject matter jurisdiction.

INTRODUCTION FACTS

2. The Plaintiff, at all times material hereto is a entity formed and organized and existing under and by virtue of the laws of the United States, transacting business by and through the instrumentality of interstate commerce, which is the business of purchasing past due receivables from other creditors. That the Plaintiff is the current owner or the underlying past due debt described below which it purchased, which was previously owned by the Plaintiff's predecessor in the interest HSBC BANK NEVADA NA Ameritech Gold MasterCard, (who shall hereinafter be referred to as the Assignor or the Plaintiffs predecessor in interest). The Plaintiff purchased only the intangible right of the debt in issue that is the right to receive the contractual payments due from the Defendant, that is the chose in action to collect the damages which was incidental to any other arrangements between the Plaintiff's predecessor in interest and the Defendant.

3. The Defendant is otherwise over the age of eighteen (18) and a resident of NASSAU County, State of Florida

4. All actions material hereto occurred in NASSAU County in the State of Florida.

5. The Defendant requested the issuance of credit from the Plaintiff's predecessor in interest, the Assignor named hereinabove on or about 10/17/2001.

6. Upon having received the request for the issuance of credit, the Plaintiff's predecessor in interest issued credit to the Defendant, subject to terms of repayment among other conditions. The Defendant was in privity of with the Plaintiff's predecessor in interest with respect to the foregoing understanding and not the Plaintiff. The Plaintiff was not a party to that agreement for the extension of credit between the Defendant and the Plaintiff's predecessor in interest nor did the Plaintiff extend any credit to the Defendant, nor was the Plaintiff as intended third party beneficiary of the parties agreement.

7. The Defendant procured the benefits in issue from the Plaintiff's predecessor in interest as result of the foregoing extension of credit, which same was induced to extend by virtue of the Defendant's promise to repay the foregoing debt per their understanding.

8. The Defendant promised to repay the unpaid principal and interest extended to same or others by the Plaintiff's predecessor in interest for money paid or received by same and the Defendant failed to do so and went into default on or about 06/30/2009. At no time did the Defendant object to repaying the unpaid principal and interest due tot he Plaintiff's predecessor in interest or subsequent thereto to the Plaintiff or dispute same.

9. The documentation if any to the extent it exists to support the understanding between the Plaintiff's predecessor in interest and the Defendant is in the possession of the Defendant and the Assignor and will be produced through discovery if necessary. By virtue of being in default the Plaintiff's predecessor in interest demanded payment in full from the Defendant and although due demand was made by the Plaintiff's predecessor in interest ( and after default by the Plaintiff after purchase of the debt), the Defendant failed and refused to pay same to either the Plaintiff or the Plaintiff's predecessor in interest.

10. The chose in action, that is the unpaid principal given to the Defendant or others and accrued interest due as the default date (that is the right to collect the past due payments which was incidental to the performance obligations of the agreement between the parties that is the Plaintiff's predecessor in interest and the Defendant herein) that was originally owned by the Plaintiff's predecessor in interest was sold to the Plaintiff in the above cause after same was in default, and the Defendant did not dispute same and the Plaintiff is now the owner of the chose in action in issue that is the past due debt receivable owed by the Defendant. As a result of the chose in action ( for the right to collect the payments due that is defaulted debt in issue) being sold to the Plaintiff all of the unpaid principal and interest is due to the Plaintiff in this cause in accordance with composite exhibit attached hereto and incorporated herein by reference.

COUNT I - EQUITABLE ACTION FOR PROMISSORY ESTOPPEL

11. Paragraphs 1 through and including paragraph 10 hereinabove are hereby incorporated herein by reference as if fully set out herein.

12. The Plaintiff's predecessor in interest conferred upon the Defendant(s) a benefit, which was in fact appreciated by the Defendant(s) and requested by the same.

13. The Defendant(s) accepted the benefits bestowed upon same by the Plaintiff's predecessor in interest which would lead a reasonable man to believe that the Defendant(s) not only accepted the benefits conferred upon same, but that under the circumstances the Defendant(s) promised to re-pay the Plaintiff's predecessor in interest.

14. That by virtue of the circumstances surrounding the request for funds made upon the Plaintiff's predecessor in interest, the Defendant(s) knowingly requested the funds in issue from the Plaintiff's predecessor in interest and/or knowingly and voluntarily accepted the benefits bestowed upon same by the Plaintiff's predecessor in interest.

15. It would be inequitable for this Court to allow the Defendant(s) to retain the benefits of the funds bequeathed upon same or allow the Defendant(s) to retain the value of the funds in issue without re-paying the Plaintiff the value of same or be unjustly enriched at the Plaintiff's expense by virtue of the Defendant promise to repay same.

COUNT II - EQUITABLE ACTION FOR ESTOPPEL IN PAIS (EQUITABLE ESTOPPEL)

16. Paragraphs 1 through and including paragraph 10 hereinabove are hereby incorporated herein by reference as if fully set out herein.

17. The Plaintiff's predecessor in interest conferred upon the Defendant(s) a benefit, which was in fact appreciated by the Defendant(s) and requested by same.

18. The Defendant(s) accepted the benefits bestowed upon same by the Plaintiff's predecessor in interest which would lead a reasonable man to believe that the Defendant(s) not only accepted the benefits conferred upon the same, but that under the circumstances the Defendant(s) assented to re-pay the Plaintiff's predecessor in interest which was supported by their voluntary conduct in not disputing the debt in issue.

19. Subsequent thereto the Plaintiff purchased the debt in issue and was led to believe that the Defendant did not dispute the debt with the Plaintiff's predecessor in interest. Numerous demands were made upon the Defendant to pay same ( by the Assignor as the Plaintiff has been led to believe) and also the Plaintiff in issue were not due and further by virtue of their voluntary conduct by not disputing that the debt in issue were not due the Plaintiff acting in good faith relied upon such conduct and precipitated the above cause of action in order to recover on the sums do.

20. It would be inequitable for this Court to allow Defendant(s) to retain the benefits of the funds bequeathed upon same or allow the Defendant(s) to retain the value of the funds in issue without re-paying the Plaintiff the value of same by virtue of the Defendants conduct which suggested to the Plaintiff that the debt was due.

COUNT III - CAUSE OF ACTION FOR INDEBITATUS AND/OR GENERAL ASSUMPSIT FOR MONEY HAD AND MONEY RECIEVED

21. Paragraphs 1 through and including paragraph 10 hereinabove are hereby incorporated herein by reference as if fully set out herein.

22. The Plaintiff's predecessor in interest conferred upon the Defendant(s) a monetary benefit, which was in fact appreciated by the Defendant(s).

23. The Defendant(s) accepted the benefits bestowed upon same by the Plaintiff's predecessor in interest which would lead a reasonable man to believe that the Defendant(s) not only accepted the benefits conferred upon same, but that under circumstances the Defendant(s) assented to re-pay the Plaintiff's predecessor in interest. Although due demand was made the Defendant failed and refused to pay same.

24. It would be inequitable for this Court to allow the Defendant(s) to retain the benefits of the funds bequeathed upon same or to be unjustly enriched at the expense of the Plaintiff's predecessor in interest and/or the Plaintiff or allow the Defendant(s) to retain the value of the funds in issue without re-paying the Plaintiff the value of same.

[JoeSS870]

COUNT IV - EQUITABLE CAUSE OF ACTION FOR UNJUST ENRICHMENT

25. Paragraphs 1 through and including paragraph 10 hereinabove are hereby incorporated herein by reference as if fully set out herein.

26. The Plaintiff's predecessor in interest conferred upon the Defendant(s) a monetary benefit, which was in fact appreciated by the Defendant(s).

27. The Defendant(s) accepted the benefits bestowed upon the same by the Plaintiff's predecessor in interest which would lead a reasonable man to believe that he Defendant(s) not only accepted the benefits conferred upon same, but that under the circumstances the Defendant(s) assented to re-pay the Plaintiff's predecessor in interest.

28. That by virtue of the circumstances surrounding the request for funds made upon the Plaintiff's predecessor in interest, the Defendant(s) knowingly requested the funds in issue from the Plaintiff's predecessor in interest and/or knowingly and voluntarily accepted the benefits bestowed upon the same by the Plaintiff's predecessor in interest.

29. It would be inequitable for this Court to allow the Defendant(s) to retain the benefits of the funds bequeathed upon same or to be unjustly enriched at the expense of the Plaintiff's predecessor in interest and/or the Plaintiff or allow the Defendant(s) to retain the value of the funds in issue without re-paying the Plaintiff the value of same.

COUNT V - MONEY HAD and MONEY RECEIVED

30. The Plaintiff re-alleges and re-avers paragraphs 1 through and including 10 hereinabove as if fully set out herein.

31. The Defendant(s) owes the Plaintiff the sum $XXXX.XX, that is due with interest since on or about 06/30/2009, for the money paid by the Plaintiff's predecessor in interest to the Defendant(s) or other parties on their behalf, or for money received by the Defendant or other parties on their behalf at the request of same.

WHEREFORE, all premises considered, the Plaintiff herein demands that this Honorable Court enter a judgment against the Defendant in the amount of $7317.30, including but not limited to, court costs and deferred interest on the foregoing sum at the statutory rate allowed by law.

[JoeSS870]

Everyone I have posted the complaint which was served to me. I included the introduction and all of the counts, which the JDB (Main Street) are claiming. Sorry for the length, that how long this thing is. I think this is the longest one I've been served. I seriously think they make it long, hoping a lot of people won't try anything and get a default judgement. It seems the longer the complaint the more of a threat it seems.

[JoeSS870]

Taken at face value, my first impression is that you're being sued by a junk buyer who knows they have no proof and are angling for a purely equitable remedy.

I agree with you nascar, I've looked up Main Street Acquisition Corp and all the post I've seen say they are a junk buyer. I don't want to get too ahead of myself, but also believe they have no proof.

Isn't it true or sometimes true anyways that 90 -99 % percent of the time junk buyer (JDB)?

[1stStep]

Main Street is a well known JDB...that being the case, attack standing to sue. You could also attack unjust enrichment by going after what they paid for the account (as was posted above).

Since this appears to be a CC debt, check and see if there's an arbitration clause in the cardholder agreement. FL is one of those states that requires you to demand it pretty early in the process - so weigh your options accordingly.

[Coltfan1972]

Looks like a long and drawn out way to say. We bought this account from HSBC and at the time the Defendant owed XXX. Now we own the account so the Defendant owes us XXXX since we now the legal owners.

It's the junk debt buyer version of the three page debt validation letter, full of worthless statments and demands.

I do love this though-

The Defendant(s) accepted the benefits bestowed upon same by the Plaintiff's predecessor in interest which would lead a reasonable man to believe

Your Honor, I will not insult you by calling you an unreasonable man, as the Plaintiff is attempting to do simply if you do not see things in the light most favorable to the Plaintiff.

Also it is not unreasonable, nor would it make Your Honor an unreasonable man, in asking you follow the well established century year old contract law which requires the party praying for relief to provide and prove their standing to even sue the other party.

While the Plaintiff is asserting that this court would be unreasonable and/or Your Honor would be considered an "unreasonable man" if you did not accept all of the Plaintiffs; self-serving, hearsay statements based on no personal first hand knowledge of the facts, the fact the Defendant, by their own admission, did not originate the alleged account (emphasis on the number of times Looks like a long and drawn out way to say. We bought this account from HSBC and at the time the Defendant owed XXX. Now we own the account so the Defendant owes us XXXX since we now the legal owners.

It's the junk debt buyer version of the three page debt validation letter, full of worthless statments and demands.

I do love this though-

The Defendant(s) accepted the benefits bestowed upon same by the Plaintiff's predecessor in interest which would lead a reasonable man to believe

Your Honor, I will not insult you by calling you an unreasonable man, as the Plaintiff is attempting to do simply if you do not see things in the light most favorable to the Plaintiff.

Also it is not unreasonable, nor would it make Your Honor an unreasonable man, in asking you follow the well established century year old contract law which requires the party praying for relief to provide and prove their standing to even sue the other party.

While the Plaintiff is asserting that this court would be unreasonable and/or Your Honor would be considered an "unreasonable man" if you did not accept all of the Plaintiffs; self-serving, hearsay statements based on no personal first hand knowledge of the facts, the fact the Defendant, by their own admission did not originate the alleged account (emphasis on the number of times the Plaintiff uses (Predecessor in interest), the Defendant submits only an unreasonable (or possibly foolish) man would accept at face value hearsay statements and deem those as fact, as the Plaintiff is asking Your Honor to do.

The Defendant is well aware the court and Your Honor are neither unreasonable and/or foolish.

To the contrary, the Defendant is confident the court and Your Honor are both reasonable and fair. As such, will allow this dispute to be settled by trial in front of 12 reasonable, not only men, but men and women.

I live for moments when the other side opens a door like that for me.

[legaleagle]

I still don't see where estoppel etc are causes of action. I think a motion to strike, challenging the legal sufficiency of the pleading, would go a long way to get rid of this mess. This thing is so long it can't have been drafted by a lawyer. Not one with a brain, anyway.

The Plaintiff purchased only the intangible right of the debt in issue that is the right to receive the contractual payments due from the Defendant,

This part is interesting, this sounds like one of the investors who got into a bad deal with JDB and now thinks he's the plaintiff. I'd pick that apart just based on the language.

[nascar]

Deny this as you would any other junk buyer lawsuit.

The claim the original contract was entered into in 2001. If it is indeed yours, when did it go delinquent?

[JoeSS870]

Nascar the contract went delinquent in June of 2009.

So from you guys opinion, what should my next move be when I file my answer?

If I file a motion to strike, I'm with legaleagle I would like to challenge the legal sufficiency of the pleading. But what do I need to strike specifically.

Also when should I file a request for production of documents and assessment

I believe there is an arbitration clause in the cardholder agreement. I think I still have mine, but I'm not positive. If not does anyone know where I can find a cardholder agreement for a HSBC BANK NEVADA NA Ameritech Gold MasterCard from 2001?

[1stStep]

You'd want to strike anything having to do with equitable estoppel, etc.

You'd probably find the agreement by doing an internet search...

[JoeSS870]

Also two other thing I forgot to ask.

What are the benefits of an arbitration ?

Can I put everything I want to strike into one motion right?

[1stStep]

Arbitration (in the card holder agreement) is quite expensive to undertake. Most of the agreements call for JAMS to be the forum. My understanding is that is costs about $2k to get the case filed, and $400 to $500 per hour for the arbiter. The beauty of this is that the creditor (OC or JBD) generally foots the bill and may not be able to pass the cost onto you if you lose.

I've read that cases taken all the way to the hearing cost about $5k or more to get to that point. If the alleged debt is below $5k, then this is a cost effective way of tying them up.

[Coltfan1972]

Arbitration forces them to legitimately do a cost comparison on what they will gain if they win. It does not change the facts and if you have a bad case for court, you have that same bad case for arbitration.

Be careful in Florida with arbitration. If you even get within a mile of the courthouse you can be in default of the arbitration clause. So be careful in going too far in litigation if you want arbitration.

Generally speaking, arbitration uses the rules of procedure the courts use. However, the arbitrator can set the rules. I'd never use arbitration against a junk debt buyer, however, I can't say it would not be successful against a junk debt buyer.

If I'm facing a junk debt buyer, your not about to take the strict rules of procedure and evidence. I want the guaranteed protection the rules of procedure and evidence give me. I don't want to take a chance that an arbitrator might come up with some crazy rule or ruling allowing evidence they would never get admitted in court.

Either way you need to read the Florida Rules of Civil Procedure. It will answer your questions on when and how you do certain things, especially discovery.

http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/10C69DF6FF15185085256B29004BF823/$FILE/Civil.pdf?OpenElement

[nascar]

I believe there is an arbitration clause in the cardholder agreement. I think I still have mine, but I'm not positive. If not does anyone know where I can find a cardholder agreement for a HSBC BANK NEVADA NA Ameritech Gold MasterCard from 2001?

The Cardmember Agreement in effect in 2009 is the one that would apply.

[nascar]

If I file a motion to strike, I'm with legaleagle I would like to challenge the legal sufficiency of the pleading. But what do I need to strike specifically.

You're not going to get any traction with a motion to strike (Rule 1.140(f)) unless something in the complaint is "redundant, immaterial, impertinent, or scandalous."

If you want to challenge the sufficiency of the complaint, you'll file a motion to dismiss under one of the grounds set out in Rule 1.140(d). ((1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties.)

If none of those apply to you, you'll want to focus on your answer and affirmative defenses. Also, look into filing a counterclaim - not only under FDCPA, but under Chapter 559 as well.

Because this is a proceeding in equity, all those affirmative defenses we're otherwise encouraged not to use are at your disposal. (Unclean hands, etc.) Click here for a comprehensive list. Make sure you understand them and they apply to your case before using any of them. Many will not.

Finally, the "reasonable man" is the standard which court use to evaluate the actions of parties in a given set of circumstances. The term isn't used by accident or to sound "lawyerlike." You'll usually find it used in negligence claims, but our plaintiff here obvioiusly believes he needs to allege the standard in his equity action as well.

[JoeSS870]

Any ideas on which affirmative defences would be useful in this claim. I've heard lack of standing could be use, but others I'm not so certain about.

[legaleagle]

COUNT I - EQUITABLE ACTION FOR PROMISSORY ESTOPPEL

11. Paragraphs 1 through and including paragraph 10 hereinabove are hereby incorporated herein by reference as if fully set out herein.

12. The Plaintiff's predecessor in interest conferred upon the Defendant(s) a benefit, which was in fact appreciated by the Defendant(s) and requested by the same.

13. The Defendant(s) accepted the benefits bestowed upon same by the Plaintiff's predecessor in interest which would lead a reasonable man to believe that the Defendant(s) not only accepted the benefits conferred upon same, but that under the circumstances the Defendant(s) promised to re-pay the Plaintiff's predecessor in interest.

14. That by virtue of the circumstances surrounding the request for funds made upon the Plaintiff's predecessor in interest, the Defendant(s) knowingly requested the funds in issue from the Plaintiff's predecessor in interest and/or knowingly and voluntarily accepted the benefits bestowed upon same by the Plaintiff's predecessor in interest.

15. It would be inequitable for this Court to allow the Defendant(s) to retain the benefits of the funds bequeathed upon same or allow the Defendant(s) to retain the value of the funds in issue without re-paying the Plaintiff the value of same or be unjustly enriched at the Plaintiff's expense by virtue of the Defendant promise to repay same.

This clearly sounds in unjust enrichment, it even uses the terminology I see in all legal definitions of UE. The second count is nearly identical and is therefore repetitious. Counts three and five repeat each other. This fits the requirement Nascar mentioned:

(f) Motion to Strike. A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.

Make them submit a new complaint, then ask for a more definite statement of the new one explaining the fact that no mention of estoppel is made in the remaining counts although it is used in the headings. Also make them explain how estoppel is a cause of action.

[JoeSS870]

Thanks legaleagle for your input.

Motion to Strike. A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.

Is there a specific format I need to follow for a Motion to Strike redundant?

How should I word it ?

[legaleagle]

PLAINTIFF'S MOTION TO STRIKE

This is from the US district court, I should think your court would accept this format. Just change it to suit your case.

[nascar]

Thanks legaleagle for your input.

Motion to Strike. A party may move to strike or the court may strike redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.

Is there a specific format I need to follow for a Motion to Strike redundant?

How should I word it ?

I wish you luck with your motion, but I believe your efforts should be concentrated elsewhere.