Jump to content

Demurrer question for Account Stated


C&R
 Share

Recommended Posts

I have read and read and read, but I am still confused. Maybe if I provide specifics of my case the great minds in this forum could help me understand better.

I'm am being sued by Midland. I'm prepared to file a general denial (complaint is not verified), but would like to know if a demurrer is an option for my case. I understand Account Stated is a little trickier because Plaintiff is not required to provide contract or assignment, but I'm hoping I could use some kind of grounds for the following omissions:

- plaintiff did not include an account number (only last 4).

- "within the last 4 years" (shouldn't they have to provide an exact date of indebtedness? Otherwise how do I know if this is within the SOL?)

- "on an account stated in writing by and between Plaintiff and Defendant..." (if we have this new "written" agreement, supposedly, shouldn't they be required to provide more specifics in their complaint? Like proof that I agreed, which I never did. Let me provide some quick background on this point. I DV last year and they responded with statements from OC. I offered to settle in the interest of time for both parties, but continuously disputed my obligation to pay them. I even have it on my credit report as disputed.)

- I'm sure there's more in the complaint, but that's what pops out right now.

As for the cause of action (Account Stated), could I use the following grounds?

Does not state all the required elements:

1. no money from previous financial transactions (because I never did business with them)

2. agreed that the amount stated in the account was the correct amount owed (no such agreement exists because I continuously denied my obligation)

3. promised to pay stated amount (nope)

4. has not paid any/all of the amount owed under this account (I guess this part would be true, I haven't because I don't owe them.)

5. The amount of money defendant owes plaintiff (they have an amount listed, but we all know that is not what they paid when they bought this account)

Please, let me know if I'm on the right track or if I'm way off base. Thanks.

Link to comment
Share on other sites

  • Replies 85
  • Created
  • Last Reply

Top Posters In This Topic

account stated in writing is just legal jargon. Who is the original creditor? The way you clear this up is by conducting discovery. Most will depend on who the OC was. Midland has to prove they own the account, which can be difficult. Then they have to prove the 4 elements of account stated, which they'll probably never be able to do. First of all, they never even plead them in their complaints. These requests will get you most of the info you need to fight. They won't have any of it of course, and will jerk you around on the answers, but that is good for you.

Rogs

1. State with specificity the choice of law provision in the alleged cardholder agreement.

2. State whether or not Plaintiff is bound by the statutes of the choice of law provision CREDITOR chooses in their cardholder agreement.

3. State whether or not the alleged cardholder agreement fully explains the statutes by which the cardholder is allegedly bound

4. If the response to 3 was in the negative, explain why CREDITOR refuses to divulge to the consumer the statutes under which they are allegedly bound

5. If the response to 3 was in the affirmative, state the specific statutes that apply.

6. If the response to 2 was in the negative, state why Plaintiff is not bound by the choice of law consumers are supposedly bound by.

Requests for production of Documents

1. The original signed application establishing the account

2. Charge slips bearing defendant's signature which establish use of the account

3. The original written agreement in which defendant allegedly assented to the terms of the account

4. A complete history of the account from day one, establishing the legitemacy of the balance sought

5. Any document setting forth the choice of law provision

6. Any document plaintiff intends to introduce at trial which establishes the exact day the subject account went into default

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

8. Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed

9. Any cancelled checks or copies of cancelled checks, or other verified payments on the account plaintiff intends to introduce as evidence at trial

10. Proof of mailing of monthly statements

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

12. Any document produced by plaintiff in the normal course of business defining "unreasonable amount of time."

Link to comment
Share on other sites

Wow, that's a lot to digest. I will research the info you provided so that I understand it better and come back later with any further questions I might have.

In the meanwhile, the OC is stated as WAMU but it was Chase when Midland purchased the account. And neither are the original OC. I think that makes a difference as to whether or not they have the original contract, but not sure if it affects the Account Stated cause.

Some immediate questions:

I see your from CT, do these options apply in CA?

Are these options part of, instead of, before or after demurrer?

Link to comment
Share on other sites

Demurrer has been abolished in most states. You probably want help from somebody in Cali regarding that particular issue, because many of us would have to say "durrr" when it comes to answering any real questions on that topic.

That's how I feel right about now. I will continue to research as I wait for help from someone with Cali knowledge.

Link to comment
Share on other sites

NO PRIOR COURSE OF DEALING

In order for a plaintiff to prevail on a claim (cause of action) for account stated, he must allege and prove there were prior dealings between the parties and a reasonably long history of periodic billing that the defendant timely and routinely paid over an extended course of time prior to the lawsuit. Since this is an element of the plaintiff’s case, the affirmative defense of “No Prior Course of Dealing” is offered to show the essential element of this cause of action does not exist.

Link to comment
Share on other sites

If it is just account stated, and breach of contract the demurrer would be denied.

The complaint is general but provides enough info to show what you need to know to defend, If they have multiple causes of action the demurrer may cut some down.

So going after the ambigiuos stuff. If you do file it file the answer at the same time.

If you have a fee waiver this is good also.

BoP is good if you have open book or common counts together also.

What you accomplish with demurrer is to make more time for you,

Link to comment
Share on other sites

The only cause of action is Account Stated. I was hoping to demurrer with something like BTO429 said, Plaintiff failed to plead prior and ongoing dealings with defendant which is one of the elements for this cause of action.

I'm not so much looking to buy time with this motion, but more to get it dismissed altogether. I can't imagine going to court on this if I'm already so confused. And I have looked into legal council and the charges are just short of what the plaintiff is suing for.

Would the worst case scenario be judge overrules demurrer? I don't want to add sanctions to the case.

I REALLY appreciate all the info provided so far. Please, keep sharing anything else you think might help.

Link to comment
Share on other sites

  • 1 month later...

So I demurrered and Midland opposed and judge overruled. :(

I have since filed a general denial. I didn't include affirmative defenses except for reserving the right to amend and/or add at a later date. I did this because of the debate on this forum about whether or not to include everything and the kitchen sink or just keep it simple. I felt simple was best because time was of the essence and because of the debate of whether or not affirmative defenses are even successful. If I understood the threads correctly.

Anywho, now I have a question about discovery. First off, should I start a new thread or keep it here? I'm confused as to whether BOPs are a part of discovery or separate. Do I send one before the other or at the same time?

I received a notice today that a voluntary mediation session has been scheduled for next month. And at the demurrer hearing the judge went ahead and scheduled a trial date for July so I really want to get on this ASAP.

Any advice is much appreciated. And forgive me for asking questions that have more than likely been answered elsewhere on this forum. Although I have learned a good deal, I am still utterly confused by it all. Even now I had to forgo sleep to research more and that's probably why I'm not getting it because I'm not working with my full mental faculties. And even then I wouldn't be too sure. I have to try to keep my humor about this because it's extremely overwhelming for a newbie. So once again thanks.

Link to comment
Share on other sites

The BOP is used as a discovery tool in civil cases, and as a request for a more definite statement in criminal cases. It does not apply in account stated cases, we've posted the DeStefano case numerous times. On the other hand, you can ask for all the same things in discovery that the BOP provides for. You probably won't get any of it, but that's good for your case.

Link to comment
Share on other sites

You need to attack their proof that they own the debt. If they show you a bill of sale that says they purchased the account with an attachment that appears to be an excerpt from a spread sheet (probably labeled "Exhibit A") bearing your name, address, the name of the original creditor and an account number etc. then what you need to do is a discovery for production of documents. Don't be fooled into thinking that this is the "Exhibit A" that is referred to in the wording of the bill of sale as it is not.

Demand that they produce:

1. A complete copy of the agreements that constitute the chain of title for the account at issue in this lawsuit starting with the agreement between the originator of the account and its assignee and including each agreement between an assignee of the account and another assignee of the account and/or <JDB>. This is a request for the entire agreement, not just the bill of sale or exhibit to an agreement and includes master or "flow" agreements whose terms relate in any way to or are incorporated by an agreement transferring rights to the account at issue in this lawsuit. In order to protect the privacy of other debtors whose accounts may be included in such agreements, <JDB> may redact or otherwise omit information identifying any debtor other than the defendant.

2. Complete and unredacted Credit Card Purchase Agreement dated <date on bill of sale> between <Original Creditor> and <JDB> including all of its Exhibits, and specifically including but not limited to its Exhibits A and B (or whatever exhibits are referred to in your case) as referenced in the Bill of Sale.

3. All documents and tangible things <JDB> received from any assignee or assignor in connection with the account that is the subject of this lawsuit.

4. All documents containing any warranties or representations made by the originator or any assignee of the account at issue in this lawsuit to <JDB> or any other assignee of the account.

...and a request for admissions-

1. Admit that the original creditor sold or assigned the debt to you with no warranties or representations as to the validity of the debt.

2. Admit that the document attached hereto as "Exhibit A" was not created by <Original Creditor>

3. Admit that the document attached hereto as "Exhibit A" is not an original exhibit to the Bill of Sale.

(Be sure to include a copy of the bill of sale and their "Exhibit A" with the request for discovery)

They will most likely object on the grounds that this is privileged attorney-client information so then you file a motion to compel. If they continue to object then schedule a hearing on the matter and they will most likely drop the suit because the only thing that is privileged as far as the court is concerned is the information regarding other people's accounts of which there is no argument because you already covered it.

There is no way that they will ever produce the true documents referred to on the bill of sale because they contain clauses that there is no warranty that any of the information regarding the accounts they purchased is accurate, complete, or that some of the accounts may even have already been paid off or been discharged in bankruptcy.

Edited by texasrocker
Link to comment
Share on other sites

I have also been confused about the WAMU/Chase issue. The complaint shows WAMU, but when I DV last year they sent Chase statements. I don't know if there is some sort of angle there or if it's just a technicality. I saw a post by Legaleagle on another thread that says, "Chase invokes Delaware law which has a 3 yr SOL." maybe they benefit from using the WAMU SOL. Either way I believe they are within the SOL. The account is from 1/09 and they filed 10/11.

I must have missed the DeStefano case in my reading. I will search for it now and hopefully it will answer my questions. Otherwise I will proceed with the info provided in this thread.

Thanks again for the help. It is much appreciated.

Link to comment
Share on other sites

was an affidavit of debt included in the complaint?see Unifund ccr vs Nishawn Riley

The COA held that merely showing that payments were made on the account was insufficient to show that the Defendant, himself, made those payments.

Blacks law dictionary: Account stated

An amount that accurately states money due to a creditor; a debt arising out of transactions between a debtor and creditor that has been reduced to a balance due for the items of account.

Link to comment
Share on other sites

Let me elaborate a bit. You say the account if "from" 01/09. Is that when it went into default or is that when it was written off? That's important. If it went into default six months earlier it would be WaMu. If it's Providian/WaMu then it probably has Nevada choice of law. Under the agreement, the complaint shoulld then be deficient on its face. It is my understanding Nevada law requires a complaint to include the complete account number to be valid. It also may have favorable SOL--I don't know.

Link to comment
Share on other sites

Nothing with the complaint. My complaint is just like ASTMedic. "Summons from Midland Funding, where to start." thread, page 3. (Sorry, I don't know how to add links.)

The OC was Providian and 1/09 seems to be the initial default.

I feel like a dunce because all this time I thought SOL pertained to the debtor's state. I didn't realize it's the OC state. Can someone please clarify if that's correct?

In the meanwhile I am working on my POD request using what Legaleagle posted on this thread and the thread mentioned above.

One more question. Should i send the POD request first to see what they provide and then follow up with ROGS, or send them together in the interest of time? Trial is set for July.

Thanks again everyone!

Link to comment
Share on other sites

It looks like Midland is probably listing WAMU because of Washington's SOL, written contract 6 years.

Chase, Delaware 3 years.

And Providian National, i found is from New Hampshire, 3 years.

I'll look into those state laws further but I believe SOL doesn't affect my case because they filed short of the 3 years.

But this is all great practice because I possibly have 1 more lawsuit to worry about after this one and it's for a way larger amount. Both are from the same difficult time period.

I can't say thank you enough. I know I'm a true definition of a newbie, but this forum makes me feel like it's possible to fight, and hopefully win.

I'm off work tomorrow so I'm going to be reading everything from the beginning again. It looks like I'm missing a lot of the basics. There's just so much to take in. Each member should have a pin board like Pinterest to keep track of things they find important. There probably is one already and I missed it. :oops:

Link to comment
Share on other sites

To Legaleagle or anyone that can help shed some light. I'm working on my POD request and I don't understand the meaning of some of the requests Legaleagle posted earlier in this thread. I just want to understand them if I'm going to use them. Thanks in advance.

5. Any document setting forth the choice of law provision

Is the state law they're using, like Washington for WAMU? Or does this request somehow pertain to the cause of action?

7. Any document produced by plaintiff in the normal course of business which states and defines the exact statutes the choice of law provision seeks to enforce

I'm really confused about this one. This sounds to me like the agreement terms, but #3 asks for that so I'm probably way off. What is something they could provide for this request?

11. Any documents evidencing that defendant retained monthly statements for an unreasonable amount of time

Does this pertain to statements from when the account was supposedly with WAMU and I didn't pay? Or are these statements from Midland and I didn't pay?

Link to comment
Share on other sites

I'm going to weigh in here with some information that may help but I personally couldn't tell you how. Maybe someone else can extract some useful insight.

Providian issued cards under New Hampshire choice of law. When WaMu took over they changed the agreement to Nevada (ie. WaMu, Henderson, NV). I haven't been able to get the exact date of Providian to WaMu, but I believe it was around 10/01/05. WaMu didn't send new agreements until 06/01/06. The WaMu agreement was not a complete restatement, just a modification, based on my experience. Arb clause from Providian, NAF or AAA, Jams not acceptable remained intact. Not mandatory, either side may elect.

WaMu went into receivership with FDIC 09/25/08 and the credit card portfolio moved to Chase. Have no idea what happened regarding the agreement after that.

Here's the part I find interesting: The Jeannie Cole v. CACV, Portfolio Recovery Associate, et al. case brought out the fact that Providian didn't provide WaMu any documentation or even complete account records, so it's almost 100% certain that there is no original app or other paper AND almost 100% certain that they can't provide a complete zero based accounting from inception. Even if they somehow could be found, it would probably cost a fortune.

One other thing to be aware of: Providian/WaMu did a lot of tiering on interest rates. Any statements you're provided should be checked carefully. If they're running four or five tiers of different interest rates and expect an account stated, well...maybe a more legal mind than mine can help at this point.

EDIT TO CLARIFY FOR FUTURE REFERENCE:

Providian didn't provide any paper documentation for accounts. The computerized records were transferred and, of course, could be utilized to provide statements to the extent available. The Jeannie Cole case highlighted how they set up a paper factory to manufacture supporting paper.

My apologies if I inadvertantly mislead anyone or gave false hope.

Edited by MisterLoon
Link to comment
Share on other sites

  • 3 weeks later...

I'm just going to maintain that I never applied for credit with WAMU (which is the truth). This should challenge MF's chain of custody, right? Then they will have to show evidence, which will be hard for them because of what you mentioned that, "...Providian didn't provide WaMu any documentation..." And if they can't prove chain of custody, they don't have standing to sue, right? Please correct me if I'm wrong about any of this.

On another note, I received MF's discovery requests today even though they haven't responded to mine and they received them over two weeks ago. I'm going to work on my answers and post my questions shortly. It's funny because once again they are almost word for word the same as ASTMedic. Goes to show how much effort is put into these lawsuits.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share


×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.