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Being sued by GE Cap Fulton Friedman and Gullace


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1. Who is suing you? Fulton, Friedman & Gullace representing GE Capital Retail Bank

2. For how much? 4000

3. Who is the original creditor? GE Capital

4. How do you know you are being sued? served papers at house

5. How were you served? Were you served? some lady came to the door and would only give the papers to my husband (he is the one being sued)

6. What was your correspondence with the people suing you before you think you were being sued? daily phone calls of recordings. Last letter received over a year ago - November 2010

7. Where do you live? Texas

8. When is the last time you paid on this account? 06/2009

9. What is the status of your case ? I don't know

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now. No

12. Does your summons require a response in writing? Did you receive an interrogatory (questionnaire) regarding the lawsuit? Must respond within 10 days

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits? Notice to Defendant, Plaintiff's Original Petition, Affidavit of Account Balance and Non-Military Status, copy of credit card statement with last payment date and charge off, credit card application, Certificate of Written Discovery and Plaintiff's Request for Admissions.

14. What is the SOL on the debt? 4 years in TX

*********************************************

First page is the Notice to the Defendant informing my husband that he is being sued and has 10 days to respond.

Next is the Plaintiff's Original Petition asking "judgment against the defendant for the amount of the charge off, costs of court, prejudgment interests, post-judgment interest at a rate allowable by law, and such other and further relief, legal or equitable as this Court deems appropriate."

Next is Exhibit A : Affidavit of Account Balance signed by an illegible signature that is supposed to be Angeli Stewart, Recovery Liaison Spe******t; a credit card statement with the last payment date in June of 2009, statement showing charge off in December 2009, and two copies of signed credit card application.

Next is Certificate of Written Discovery stating "Discovery Served: Plaintiff's Request for Disclosures and Plaintiff's Request for Admissions.

Last is the Plaintiff's Request for Admissions:

Admit or Deny the following:

1. Admit defendant entered an agreement whereby the Plaintiff or plaintiffs original assignor extended credit to defendant on the account.

2. Admit defendant, or another with permission of the defendant, accepted the credit extended for the purchase of goods, wares, merchandise services, or for cash advances.

3. Admit the prices charged for the goods, wares... referred to in request 2 were the prices agreed to by defendant, or another with permission of defendant.

4. Admit defendant received periodic account statements summarizing the accounts billing

5. Admit defendant promised to pay plaintiff or plaintiffs original assignor on the account.

6. Admit defendant made payments to plaintiff or plaintiffs original assignor on the account.

7. Admit the is an unpaid balance on the account due and owing from the defendant to plaintiff

8. Admit the balance due and owing o plaintiff from defendant on the account, after all offsets, payments, claims, and credits is at least $xxxxxx

9. Admit that more than thirty days ago, plaintiff presented to defendant a demand for payment of the outstanding balance stated in request 8

10. Admit defendant has failed to pay the balance due plaintiff on the account

11. Admit that due to defendants nonpayment of the account, plaintiff has obtained the lawfirm representing plaintiff herein to file suit on the account

12. admit the debt, the subject of this suit, is just, due, and unpaid.

13. Admit defendant has no documents which support any defense in this case.

Request for production No. 1

If your response to No. 13 is anything other than admit, produce all documents which support your defense.

14. Admit defendant has no offset, credit, or claim against plaintiff

15. Admit defendant consents to this court's jurisdiction

Plaintiff's Request for Discloure: Pursuant to Rule 194, you are requested to disclose within 50 days of service the information described in Rule 194.2 (a) - (f). (i) and (l) of the Texas Rules of Civil Procedure.

_____________________________________

Now what? I have found a lot of helpful things on this site but I am worried that I might screw something up. Help please?

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They use Utah as their state and choice of law..My wife just wrapped up a suit against GE Capital....Sued for $4500 and settled for $1000. Though I thought she could have won that case at trial...it still worked out in her favor.

Was there an affidavit attached to the complaint? If so, who was the affiant?

Second, was the credit card issued through a retail store?

You are lucky you live in TX, it is a very friendly consumer state with lots of caselaw to back your arguments.

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They use Utah as their state and choice of law..My wife just wrapped up a suit against GE Capital....Sued for $4500 and settled for $1000. Though I thought she could have won that case at trial...it still worked out in her favor.

Was there an affidavit attached to the complaint? If so, who was the affiant?

Second, was the credit card issued through a retail store?

You are lucky you live in TX, it is a very friendly consumer state with lots of caselaw to back your arguments.

Affidavit of Account Balance & Non-Military Status

State of Georgia

:SS

County of Fulton

lots of legalese numbered 1 - 8.

signed with a scribble over a line that says Recovery Liaison Special-ist - Affiant Date 04/19/2011

The top of the paper has blank lines with: In _________ Court _______Judicial (Circuit/District)

And, yes, the card was issued by Wal-Mart. We got into a bind in 2009 and tried to reach settlements with our cards. This one must have dropped through the cracks.

Edited by burgandy98
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In their complaint, look to see if one of the claims they made was account stated. Under Texas law, that is not a valid cause of action...the only thing they can really use is Breach of Contract.

If they want to prove that, they need any and all of the terms and conditions, modifications, addendums...etc to prove a breach of contract.

Part of the reason most pro se defendants lose in Court is due to the fact that they do not write their pleadings correctly and they do not know the rules of procedure and evidence. If you want a favorable outcome, instead of them getting you on the hook for every penny they claim...get to know the rules and applicable laws in TX. Here is a good piece to read that was written by a TX attorney:

http://www.txconsumerlawyers.org/papers/defending_credit_card_cases_2009_04.pdf

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One of the items they enclosed was the original store credit card application dated 11/25/2001. I was reading the small print and saw in all caps and bold letters: I also understand that the agreement contains an arbitration provision which may substantially limit my rights in the event of a dispute, including my right to litigate in court or have a jury trial, discovery and appeal rights, and the right to participate as a representative or member of a class action.

What I found interesting is that at no point in the small print was there ever anything about repaying credit card charges, interest rate, etc. I guess that was on a different piece of paper that they didn't send. It does say they will pull a credit report to determine creditworthiness. There is also a line stating that "I acknowledge that under the agreement, I grant you a security interest in goods purchased on the account."

The original contract also states; "By signing this application, I ask that Monogram Credit Card Bank of Georgia issue me a card....." Does that mean that GE Capital bank is not the OC?

Is any of this helpful?

Edited by burgandy98
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Somewhere along the line GE acquired Monogram. I could not find exactly when that happened, but there were business articles that GE wanted to significantly expand their retail charge card portfolio.

To find the arbitration agreement, it would be in the last applicable agreement that would have been sent when the account was still in usage.

Did the application have your signature on it?

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In their complaint, look to see if one of the claims they made was account stated. Under Texas law, that is not a valid cause of action...the only thing they can really use is Breach of Contract.

Not true. I've seen a hundred cases lost in Texas on account stated. Every court says it is the accepted method. I think you are confusing this with "sworn account," which is not proper in TX for credit card cases.

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In their complaint, look to see if one of the claims they made was account stated. Under Texas law, that is not a valid cause of action...the only thing they can really use is Breach of Contract.

Not true. I've seen a hundred cases lost in Texas on account stated. Every court says it is the accepted method. I think you are confusing this with "sworn account," which is not proper in TX for credit card cases.

Legal you are correct, I misread..Account Stated is a valid claim...you would have to challenge the account stated claim..Sworn Account is not a valid claim.

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Y'all are talking so far over my head right now.

The Plaintiff's Original Petition includes:

I. Discovery -Plaintiff requests discovery be conducted at Level 1 (TRCP 190.2).

II. Account Stated

III. Quantum Meruit

IV. Money had and received

V. Breach of Contract

VI. Promissory Note

VII. Conditions Precedent

I was hoping to mail out everything tomorrow. What all should I be mailing?

Edited by burgandy98
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Legal you are correct

This is all you have to know, chisel it in stone. Just kidding. BMC100 has a vast amount of knowledge, he is one of our best posters when it comes to Michigan law. I defer to him every time in that state.

As for YOU, bad dude, post the complaint! We can't help you answer something we never saw. They covered every possible angle from the little you did post. Fear not, OCs can be beaten, it's just a little harder. Some of them have lawyers who actually graduated and passed the bar exam the first time. Rare, but possible.

Monogram is probably some division of GE or some company authorized to issue cards on their behalf. This kind of parsing goes nowhere. What is your defense to this case? Tell us and we'll help you.

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Plaintiff's Original Petition

I. Discovery

Plaintiff requests discovery be conducted at Level 1 (TRCP 190.2).

II. Account Stated

In the usual course of business, GE Capital Retail Bank extended credit to XXXXXXXX in a series of transactions on a credit account which gave rise to an indebtedness to one another for the purchase of goods, wares, merchandise, services, or for cash advances. The parties entered into an agreement, expressed or implied, by which XXXXXXXX or one duly authorized accepted, used, and derived benefit from the transactions to pay such indebtedness established by the credit account. "Exhibit A" represents the evidence of the balance due as liquidated damages resulting from XXXXXX in the use of the credit account.

III. Quantum Meruit

GE Capital Retail Bank provided valuable services to XXXXXX through the extension of credit. XXXXX accepted the services for the purchase of goods. GE reasonably notified XXXXX expected payment for the services. XXXXX's failure to honor payment obligations created a balance due and owing to as shown in "Exhibit A."

IV. Money Had and Received

XXXXX obtained money from GE through an extension of credit for the purchase of goods, etc. XXXX obtained such by fraud, duress, or undue advantage by failing to pay the balance due and owing "Exhibit A" represents the evidence of the balance due as liquidated damages resulting from xxx in the use of the credit account.

V. Breach of Contract

GE and xxxx entered into an agreement for an extension of credit to xxxxx for the use in the purchase of goods, etc. GE performed. xxxxx failed to perform by failing to pay the balance due and owing. "Exhibit A" represents the evidence of the balance due as liquidated damages resulting from xxxx in the use of the account.

VI. Promissory Note

GE is the maker and the legal owner and holder of the note. xxx is the maker of the note and a balance remains due and owing as evidence by "Exhibit A."

VII. Conditions Precedent

All conditions precedent have been performed or have occurred under Texas Rules of Civil Procedure 54.

VII. Prayer

Plaintiff GE prays judgment against defendant be granted for $4050, costs of court, prejudgment interests, post-judgment interest at a rate allowable by law, and such other and further relief, legal or equitable as this Court deems appropriate.

________________________

I have no idea what my defense should be. The original credit card application is an agreement between us and Monogram Credit Card Bank of Georgia. According to Google, the servicing arm for the private label credit cards for GE Money was known as Monogram Credit Card Bank of Georgia (MCCBG) so it doesn't look like they sold the debt to a JDB. What are my possibilities for a defense?

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You are being sued by the original creditor, GE Capital. You can Google the company, but I doubt it will result in anything. They are probably owned or are authorized by GE. This kind of stuff goes nowhere. This is a straight forward, well written complaint. They covered every possibility. I think your only option is to try for arbitration per the credit card agreement, otherwise you are dead on arrival. You are asking us what your defense is? That's your decision, not ours. We have no clue as to what you feel your defense should be.

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You are asking us what your defense is? That's your decision, not ours. We have no clue as to what you feel your defense should be.

I am asking because I don't think that my defense can very well be "I don't have the money to pay it. I didn't have the money in 2009 and I don't have it now." Their idea of a payment plan is $1000 a month and there have been no offers of settling for a lower amount on the balance. I can't dispute the validity of the debt or their right to collect it. I am not a lawyer and absolutely do not understand any legal talk. All I am hoping for now is that I answer their complaint and this thing drags out past the SOL. I came to this board looking for help and feel more confused than I did when I got here. I am not saying you haven't tried to help me -- I just feel completely ignorant.

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Here is what I have so far. Any suggestions are appreciated. I am sure I need to change #1 because they did enclose a signed contract.

____________________________________________

Comes now the Defendant, xxxxxx Pro Se and files his Answer in the above-entitled matter and in support thereof states as follows:

Notice is given that defendant answers the complaint of GE Capital Retail Bank and denies any and all claims unless expressly admitted herein and defendant further states the following:

1. Admit defendant entered an agreement whereby the Plaintiff or plaintiffs original assignor extended credit to defendant on the account.

Objection. Paragraph 1 calls for a legal conclusion as to the existence of a contract between the parties. The plaintiff's failed to attach the contract pled by the plaintiff. Without waiving objection, defendant states: Defendant lacks information and belief in the truth of plaintiff's averments and therefore denies the claim in Paragraph 1. Defendant demands strict proof thereof.

2. Admit defendant, or another with permission of the defendant, accepted the credit extended for the purchase of goods, wares, merchandise services, or for cash advances.

Deny. Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

3. Admit the prices charged for the goods, wares... referred to in request 2 were the prices agreed to by defendant, or another with permission of defendant.

Deny. This request calls for admission of matter defendant has denied and thus it is improper.

4. Admit defendant received periodic account statements summarizing the accounts billing

Deny. This request calls for admission of matter defendant has denied and thus it is improper.

5. Admit defendant promised to pay plaintiff on the account.

Deny. This request calls for admission of matter defendant has denied and thus it is improper.

6. Admit defendant made payments to plaintiff on the account.

Deny. This request calls for admission of matter defendant has denied and thus it is improper.

7. Admit the is an unpaid balance on the account due and owing from the defendant to plaintiff

Deny. This request calls for admission of matter defendant has denied and thus it is improper.

8. Admit the balance due and owing to plaintiff from defendant on the account, after all offsets, payments, claims, and credits is at least $4050.71.

Deny. This request calls for admission of matter defendant has denied and thus it is improper.

9. Admit that more than thirty days ago, plaintiff presented to defendant a demand for payment of the outstanding balance stated in request 8

Deny. This request calls for admission of matter defendant has denied and thus it is improper.

10. Admit defendant has failed to pay the balance due plaintiff on the account

Deny. This request calls for admission of matter defendant has denied and thus it is improper.

11. Admit that due to defendants nonpayment of the account, plaintiff has obtained the law firm representing plaintiff herein to file suit on the account

Deny. This request calls for admission of matter defendant has denied and thus it is improper.

12. Admit the debt, the subject of this suit, is just, due, and unpaid.

Deny. This request calls for admission of matter defendant has denied and thus it is improper.

13. Admit defendant has no documents which support any defense in this cause.

Deny. This request calls for admission of matter defendant has denied and thus it is improper.

Request for production 1

If your response to Admission No. 13 is anything other than admit, produce all documents which support your defense.

14. Admit defendant has no offset, credit, or claim against plaintiff

Objection. Paragraph 4 is vague and ambiguous as stated, additionally it requests information protected by the Attorney Work Product privilege. Pleading is ongoing. Defendant reserves the right to amend the answer to add claims, or offsets at any time. Defendant therefore denies paragraph 14 as stated and Request for Production 1 as stated.

15. Admit defendant consents to this court's jurisdiction

Objection Paragraph 15 calls for a legal conclusion and defendant is not an attorney. Without waving objection, defendant states: Defendant lacks information and belief in the truth of plaintiff's averments and therefore denies the claim in Paragraph 15. Defendant demands strict proof thereof.

Defendant prays that the Court deny Plaintiff's Complaint and for all other relief just and proper in the premises.

Edited by burgandy98
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Affidavit of Account Balance

Before me, the undersigned authority personally appeared and personally known by me, this day, Angeli Stewart and who after being duly sworn deposed and says as follows:

1. I am a competent person over eighteen years if age. I am an employee of General Electric Capital Corporation ("GE Capital"), which is an authorized servicer for certain credit accounts issued by GE Money Bank, and I am authorized to make this Affidavit.

2. The scope of my job responsibilities includes the performance of collection and recovery services. In the performance of my duties for GE Capital, I am familiar with the manner and method by which GE Capital creates and maintains its normal business records, including computer records of its credit accounts held under the name of GE Money Bank.

3. To the best of my knowledge of GE Capital's business records and practices for servicing of its credit accounts, the contents of this Affidavit are true and correct. If called upon and sworn to testify hereto I could and would do so competently testify thereto.

4 In the ordinary course of business GE Capital maintains or has access to copies of credit agreements and or card applications entered into between GE Money Bank and it's customers enabling such customers to open and use credit accounts with GE Money bank. I have reviewed form agreements for credit programs for which GE Capital refers accounts to attorneys for collection litigation each of which provide that the creditor is entitled to recover to the extent permitted by applicable law, its reasonable attorneys fees and costs incurred in any action to enforce it's rights under the agreement

5. GE Capital maintains as a regular practice of business, computer records of activity on GE Money bank revolving credit accounts including purchases made payments received, amounts owing n such accounts, credits, and offsets. It is the regular practice of GE Capital's business that entries may be made in such computer records only by individuals having personal knowledge (from examining account documentation) of the information reflected therein and that such entries are made at or near the time the events reflected in them occurred. It is also the regular business practice of GE Capital's business to send monthly statements to the account holders of GE Money Bank credit card accounts reflecting the purchases made, payments received and amounts owing on such accounts.

6. As of the date of this affidavit, GE Capital's computer records for this account reflect an unpaid balance of $4050.71.

7. Demand as been made to the Defendant more than 30 days prior herto for payment of the unpaid balance on this account but payment has not been made.

I declare under the penalty of perjury that the foregoing is true and correct.

Recovery Liaison Special-ist - Affiant

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This is the perfect account to take into arbitration - so file an answer, then a motion to compel contractual arbitration per the cardholder agreement.

Ok. I have been searching for a template or guideline to help with this. It seems like in other similar cases the plaintiff does not have a signed contract. They do have one in my case. Any suggestions on where I can find something to help me along? I am running out of time and feeling totally defeated.

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Objection. Paragraph 1 calls for a legal conclusion as to the existence of a contract between the parties. The plaintiff's failed to attach the contract pled by the plaintiff. Without waiving objection, defendant states: Defendant lacks information and belief in the truth of plaintiff's averments and therefore denies the claim in Paragraph 1. Defendant demands strict proof thereof.

This is a mess. It has to be either an objection, an admission, or a denial, not an argumentative combination of the three. You objected, then denied, and demanded proof, which is argumentative. Whether or not you entered into a credit agreement does not call for a legal conclusion.

Deny. Defendant at this time does not have sufficient knowledge or information to form a belief as to the truth of the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

This is partially the amnesia defense. Courts don't like this.

3 is a trap. Just deny if you want. If you say anything about the fairness of the prices, you just admitted to using the account. The rest of your responses will probably be objected to as non responsive and repetitive. You can send this if you want, but be prepared for what they will do with it. I think ARB may be better, you'll get killed if you submit this stuff.

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