Trying to find Oregon laws on Account Stated and Affidavit of Debts

[1moreX]

Does someone here know Oregon laws? I'm having a hard time locating laws or case laws in Oregon on account stated and affidavit of debt. Can someone please direct me to some good resources? I am in the middle of a lawsuit with Capital One (debt collector: Patenaude & Felix). I have answered and sent affirmative defenses, asked for documentation and admissions and sent interrogatories (which I found out was a mistake). I just finished striking plaintiff's affidavit. They have photocopies of account statement, but with no transactions. I have read many posts on the site but am still a little confused about how to defend myself during Oregon's Mandatory Arbitration, and need more specific information on understanding Oregon laws. Someone please rescue me! Thanks!

[BV80]

Does someone here know Oregon laws? I'm having a hard time locating laws or case laws in Oregon on account stated and affidavit of debt. Can someone please direct me to some good resources? I am in the middle of a lawsuit with Capital One (debt collector: Patenaude & Felix). I have answered and sent affirmative defenses, asked for documentation and admissions and sent interrogatories (which I found out was a mistake). I just finished striking plaintiff's affidavit. They have photocopies of account statement, but with no transactions. I have read many posts on the site but am still a little confused about how to defend myself during Oregon's Mandatory Arbitration, and need more specific information on understanding Oregon laws. Someone please rescue me! Thanks!

If Cap1 is the Plaintiff, Patenaude & Felix is the firm representing them. They may be a debt collection law firm, but they're still attorneys. Just to be certain, check Cap1's entry on your credit report to see if the account has merely been charged off, or if it's been "sold/transferred". If it's only been charged off, Cap1 still owns the account.

I couldn't find case law related to an affidavit of debt, but here's one based on account stated:

"It is necessary for a plaintiff claiming an account stated to establish an agreement to pay a particular amount of money calculated on the basis of previous monetary transactions of the parties." Tri-County Ins., Inc. v. Marsh, 45 Or.App. 219, 223, 608 P.2d 190, 193 (1980).

Since the cc statements showed no transactions, perhaps the above will help.

[legaleagle]

http://www.leg.state.or.us/ors/orcpors.htm

These are the rules of civil procedure. Account stated is a theory of litigation, I've never found it in any annotated code. (statutes) Check my posts, I put up a ton of case law on this. They moved my stuff to the case law sticky. Just do a search for my posts and you'll see some. Otherwise, use Google Scholar, advanced tab, you can choose your state. Just put account stated in the exact wording section, you'll get plenty. Here's my link, this covers the entire country, more than you'll need.

credit card "account stated" - Google Scholar

[1moreX]

The summons stated that the account was charged off April 21, 2009. But I will check my credit report just to make sure. Thanks for the case law on account stated. I can use that. If Capital One IS the plaintiff, then I'm in big doo doo, cause I filed a motion to strike the affidavit!

[1moreX]

I will check out the sites you recommended! I appreciate the help!

[First Timer]

The summons stated that the account was charged off April 21, 2009. But I will check my credit report just to make sure. Thanks for the case law on account stated. I can use that. If Capital One IS the plaintiff, then I'm in big doo doo, cause I filed a motion to strike the affidavit!

The suit will state that cap 1 is who is suing you. Their name has to be in the names on the case. Amotion to strike doesn't even get considered until evidence is introduced and accepted by the court. The mistake may be giving the plaintiff a heads up on how you intend to attack their evidence. I made this mistake myself. You are better to prepare to attack it at introduction and try to exclude it. If it is entered, then after you have admitted your own evidence, or evidence has been offered in testimony that s sufficient to support a motion to strike, then attack and get it struck.

[First Timer]

Further, Account Stated can be difficult to defeat from the OC if they produce evidence of the elements of AS. If they are the OC, they don't need an affidavit to state they are genuine records - the existence of the account as evidenced by statements is sufficient to establish the existence of a debt. The final statement is evidence of review and agreement and the cardmember agreement represent the agreement to pay.

If they can establish the elements, they don't have to produce anything else to prove it.

I found a whitepaper that was written for the FTC that explains many of the issues of fighting credit card debt and explaining what the creditor needs to do and why certain defense don't work.

[First Timer]

I need a couple more posts to post the link to the FTC whitepaper

[First Timer]

Last one

[First Timer]

http://www.ftc.gov/os/comments/debtcollectroundtable3/545921-00017.pdf

[inthesticks]

Businesses are motivated to keep records accurately and are unlikely to falsify records upon which they depend.

I've read this in court opinions, too. Really? Then how do you explain the plaintiff (ostensibly the OC) in my case producing a "business record" that their affiant swore was "made in the regular course of business" but had a 20 year old address on it? Not too accurate, that.

[First Timer]

I've read this in court opinions, too. Really? Then how do you explain the plaintiff (ostensibly the OC) in my case producing a "business record" that their affiant swore was "made in the regular course of business" but had a 20 year old address on it? Not too accurate, that.

In Account stated, the plaintiff must show that a statement, or rendering of the amount due was sent, and either objected to, or accepted without response. However, the address on the document is 20 years old and the defendant has testified never receiving it. Just as the law must presume that when a statement is sent to a proper address and not responded to that it was received, the court must then also presume that when the address is incorrect and the defendant testifies under oath that they did not receive it, that the address it was sent to was incorrect and the defendant never received it. Without proof evidence to support that an accounting was sent and received, there is no basis for a claim under account stated.

[1moreX]

The suit will state that cap 1 is who is suing you. Their name has to be in the names on the case. Amotion to strike doesn't even get considered until evidence is introduced and accepted by the court. The mistake may be giving the plaintiff a heads up on how you intend to attack their evidence. I made this mistake myself. You are better to prepare to attack it at introduction and try to exclude it. If it is entered, then after you have admitted your own evidence, or evidence has been offered in testimony that s sufficient to support a motion to strike, then attack and get it struck.

No documentation was sent with the summons. I answered with and also sent admissions and request for documents. They sent back 1) a photocopy of a "Customer Agreement." No signature...not even my name anywhere on it. 2) Four quarterly statements. None of which showed any activity. Just interest charges and balances. 3) They sent an Affidavit from someone with no title; but claimed to have "authority" from Capital One.

I'm not sure what you mean by "You are better to prepare to attack it at introduction"

[1moreX]

In Account stated, the plaintiff must show that a statement, or rendering of the amount due was sent, and either objected to, or accepted without response. However, the address on the document is 20 years old and the defendant has testified never receiving it. Just as the law must presume that when a statement is sent to a proper address and not responded to that it was received, the court must then also presume that when the address is incorrect and the defendant testifies under oath that they did not receive it, that the address it was sent to was incorrect and the defendant never received it. Without proof evidence to support that an accounting was sent and received, there is no basis for a claim under account stated.

I get applications from credit card companies all the time. I don't open them. I just throw them out. They may have sent statements; but how would I have known? If mail doesn't pertain to me, I throw it out, just like everyone else. If I never saw this statements, how can I accept them or object to them???

[legaleagle]

You can defeat account stated, but you have to do your homework and hope you get the right judge. Some of them would rule against you if you had a video of somebody stealing the card out of your mailbox. You'll see this in the cases I posted. You have to defeat the elements of account stated. If you can defeat even one, you have a shot.

[BV80]

Further, Account Stated can be difficult to defeat from the OC if they produce evidence of the elements of AS. If they are the OC, they don't need an affidavit to state they are genuine records - the existence of the account as evidenced by statements is sufficient to establish the existence of a debt. The final statement is evidence of review and agreement and the cardmember agreement represent the agreement to pay.

If they can establish the elements, they don't have to produce anything else to prove it.

I found a whitepaper that was written for the FTC that explains many of the issues of fighting credit card debt and explaining what the creditor needs to do and why certain defense don't work.

I disagree with the highlighted statement. Rule of evidence regarding hearsay and business records state that in order for documents to be subject to the hearsay exception, either a live witness must be available to attest to their authenticity, OR there must be an affidavit from a person with knowledge. Being an OC doesn't exempt a Plaintiff from that requirement.

Edited January 22, 2012 by BV80

[First Timer]

I disagree with the highlighted statement. Rule of evidence regarding hearsay and business records state that in order for documents to be subject to the hearsay exception, either a live witness must be available to attest to their authenticity, OR there must be an affidavit from a person with knowledge. Being an OC doesn't exempt a Plaintiff from that requirement.

You are right, there needs to be validation. My mistake.

Edited January 22, 2012 by First Timer

[First Timer]

I get applications from credit card companies all the time. I don't open them. I just throw them out. They may have sent statements; but how would I have known? If mail doesn't pertain to me, I throw it out, just like everyone else. If I never saw this statements, how can I accept them or object to them???

Failure to open doesn't mean you didn't receive it. It just means you didn't open it. Again this is where presumption comes in. The bank mails a statement as part of their regular business practice and mails it. The US mail is generally reliable, so it is presumed that you received it. That doesn't mean it is fair, but otherwise all a defendant would have to do is to say they never got a statement. If the statement has your name and your proper address, they will presume it was mailed and received. What you do with it if you don't respond doesn't matter.

Read section 6 of the this whitepaper : http://www.ftc.gov/os/comments/debtcollectroundtable3/545921-00017.pdf

[1moreX]

You can defeat account stated, but you have to do your homework and hope you get the right judge. Some of them would rule against you if you had a video of somebody stealing the card out of your mailbox. You'll see this in the cases I posted. You have to defeat the elements of account stated. If you can defeat even one, you have a shot.

What do you mean by "elements?"

[First Timer]

What do you mean by "elements?"

"The essential elements of an account stated are: (1) previous transactions between the parties establishing the relationship of debtor and creditor; (2) an agreement between the parties, express or implied, on the amount due from the debtor to the creditor; (3) a promise by the debtor, express or implied, to pay the amount due." (Zinn v. Fred R. Bright Co. (1969) 271 Cal.App.2d 597, 600 [76 Cal.Rptr. 663], internal citations omitted.)

This is from California, but the states are similar.

[1moreX]

Thank you everyone for your input!

[drummer55]

I disagree with the highlighted statement. Rule of evidence regarding hearsay and business records state that in order for documents to be subject to the hearsay exception, either a live witness must be available to attest to their authenticity, OR there must be an affidavit from a person with knowledge. Being an OC doesn't exempt a Plaintiff from that requirement.

thats a problem I'm having here in oregon.... finding out where it says the above for my state. Maybe I'm just tired and missing it....it is after 2am

.

[Torden]

The US mail is generally reliable, so it is presumed that you received it.

I disagree with the statement that it is generally reliable. I've conducted tests that have exposed a particular systemic type of failure. It's called misdelivery. It happens nearly 1% of the time. Further, delivery in error placed back into the system almost always is never re-delivered. Disposition is unknown.

Of course it can depend on what error rate one considers to be unreliable. But we do have certified mail service for one or more reasons and I argue that one of those reasons is because it is known and acceptable that general mail is unreliable.

[My~Cuz~n~Vinny~]

I disagree with the statement that it is generally reliable. I've conducted tests that have exposed a particular systemic type of failure. It's called misdelivery. It happens nearly 1% of the time. Further, delivery in error placed back into the system almost always is never re-delivered. Disposition is unknown.

Of course it can depend on what error rate one considers to be unreliable. But we do have certified mail service for one or more reasons and I argue that one of those reasons is because it is known and acceptable that general mail is unreliable.

I totally agree with that! I might have some GAO fact sheets on the subject. I will take a look.

Is there a certified notice of credit revocation been given the consumer establishing the closing of an account before the charge off and if it is in fact a closed account, open account and dates of any notices?

All of the default conditions in their contracts are focused on failures on the part of the customer, and none seem to relate to failures on the part of the OC.

At the end of the default clause, the contract states that the OC “may close the account and demand immediate payment of the total balance. Evidently it did not seem important enough for the OC to provide any written demand notice ,of any such demand, that a subject account was allegedly even in default as result of an alleged agreement.

By law there is nothing that says they have to certify an article of mail by signature. However I think it shows lack of due diligence in expectations to seek relief on the petition to the court on basis of the complaint. Not as a defense ,but as to the reasonable due diligence in pursuit of a claim to a court of law. I am scouring case law now for lack of due diligence. Especially related to mail fraud and documentation of timely notifications supporting the plaintiffs claim of an unreasonable amount of time.

Unreasonable amount of time works both ways.

[My~Cuz~n~Vinny~]

thats a problem I'm having here in oregon.... finding out where it says the above for my state. Maybe I'm just tired and missing it....it is after 2am

.

I have the same problem sometimes. I read so much my eyes get blurry and my mind is beleaguered. I read right over what I was trying to find. Maybe someone from Oregon can help ya. I will see if I can help....

I am a newbie at civil court as well.