Help with a Summon from Discover Bank

[kutuzov]

I just received a summon and plan to fight it back. Need some advice. I'm in Brevard county state of Florida. I got to actually fisicaly go to a pre trial for damages not exceeding 5000 no mailing. Debt is supose to be from July 2008 according to my credit report, so SOL does not apply, I never made any payments towards the credit card. Here is what I plan to write:

1 This Action is for damages not exceeding $5,000.00, exclusive of cost of this action.

Answer

Agree

2 The Defendant is a resident of this county and thus venue is proper.

Answer

Agree

3 Plaintiff, Discover Bank, is a bank organization under Title 12 USCS, Section 24, more commonly referred to as “The Federal Banking Act” and as such is not required to register with the individual states in which it transacts business. See also 770 PPR, LLC V TJCV Land Trust, et I al, 30 So. 3d 613, (2010 Fla. App. LEXIA 2945).

Answer

Agree

4 The Defendant entered into a relationship with Plaintiff whereby the Defendant was provided a revolving line of credit issued and funded by Plaintiff (hereinafter referred as “Bank”), more commonly referred to as a credit card account.

Answer

I can neither admit nor deny this request as I have no memory concerning it and no records of it and the information known to me is insufficient to enable me to admit or deny.

5 The Defendant utilized said credit card account for purchasing goods and services which were paid for the Bank.

Answer

I can neither admit nor deny this request as I have no memory concerning it and no records of it and the information known to me is insufficient to enable me to admit or deny.

1 Bank tendered regular, monthly billing statements to the Defendant summarizing the activity on the credit card account and the resulting balance owed to Bank. Copies of said credit card statements are attached hereto as composite Exhibit A.

Answer

I can neither admit nor deny this request as I have no memory concerning it and no records of it and the information known to me is insufficient to enable me to admit or deny. Plantiff only attached copy of 1 monthly statement and not copies as stated.

7 The Defendant, after receiving said statements, failed to object to the resulting balance and tendered various payments towards said indebtedness.

Answer

Deny.

8 Thereafter, the Defendant failed to tender payments to Bank of an amount equal or greater than the monthly minimum payment demanded by Bank.

Answer

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

9 Based on the default and failure to pay the Defendant, Bank has closed the subject account and the full balance there of is now due and owing.

Answer

Defendant objects to this request as stating a conclusion of the law.

10 The Defendant has failed or otherwise refused to pay Bank the remaining balance due on the account.

Answer

I deny that I ever entered into any kind of contract with Plaintiff Discover Bank, an can neither admit nor deny the remainder of this request as the information known to me or readily obtainable by me is insufficient to me to enable me to admit or deny.

11 The issuance of a credit card by a Bank is an offer of a contract. See Bank One, Colombus, N.A. v Plumer, 63 Ohio App. 3d 491, 492, 579 N.E. 2d 284, 285 (Ohio Ct. App. 1989)

Answer

Admit.

12 The use of a credit card by Defendant constitutes an acceptance of the contract. Feder v Fortunoff, 474 N.Y.S 2d 937 (N.Y. 1984), citing Empire Nat’l Bank c. Monahan, 82 Misc. 2d 808, 370 N.Y.S. 2d 840 (N.Y. County Ct. 1975)

Answer

I deny that I ever entered into any kind of contract with Plantiff Discover Bank.

13 By using or authorizing the use of, the credit card account, the Defendant accepted the contract with Bank and became bound to pay for all charged to the account.

Answer

I deny that I ever entered into any kind of contract with Plantiff Discover Bank.

14. Bank tendered regular, monthly billing statements detailing all credit activity to the account during the billing period.

Answer

I can neither admit nor deny this request as I have no memory concerning it and no records of it and the information known to me is insufficient to enable me to admit or deny.

15. Pursuant with Title 15 U.S.C.S Section 1601, more commonly referred as the “Fair Credit Billing Act”, the Defendant had the duty to inform Bank of any objections or disputes to any charges set forth on the statement, in writing, within 60 days time period. The failure to notify Bank of any disputes within the 60 days time period constitutes an admission and acceptance of the charges identified on the statement and the resulting balance. See American Express Travel Related Services v. Silverman, 2006 Ohio 6374, 2006 Ohio App. Lexis 6327 (Ohio Ct. App. Dec 5 2006)

Answer

Defendant objects to this request as stating a conclusion of the law.

16 The Defendant failure to tender payment in accordance with the billing statements is a default and breach of the governing contract.

Answer

Deny. This request calls for admission of matter defendant has deny or objected, thus is improper.

17. The Defendant John Smith, owes the Plaintiff, Discover Bank, the sum of $2300 that is due according to the statement attached hereto marked as Exhibit “A”.

Answer

Deny. This request calls for admission of matter defendant has deny or objected, thus is improper.

18. Plaintiff re asserts and re-alleges all general allegations as fully set forth above

Answer

Deny. This request calls for admission of matter defendant has deny or objected, thus is improper.

19 Defendant received and used, or authorized the use of the line of credit available from Bank knowing that Bank expected to be repaid for all charges incurred.

Answer

I can neither admit nor deny this request as I have no memory concerning it and no records of it and the information known to me is insufficient to enable me to admit or deny.

20 With each extension of credit by Bank, Bank paid money on behalf of the Defendant thereby conferring a benefit on the Defendant..

Answer

I can neither admit nor deny this request as I have no memory concerning it and no records of it and the information known to me is insufficient to enable me to admit or deny.

21 In the ordinary course of common events, a reasonable person would expect to pay for the extension of credit provided.

Answer

Defendant denies the allegation as there is not, nor has there ever been any agreement, written, oral or implied with the Plaintiff Discover Bank and the Defendant.

22 The Defendant remains justly indebted to Bank for the amount set forth in the statement of account, together with costs of this action.

Answer

Defendant objects to this request as stating a conclusion of the law.

23. Plaintiff re asserts and re-alleges all general allegations as fully set forth above

Answer

Deny. This request calls for admission of matter defendant has deny or objected, thus is improper.

24 The continued and ongoing use of, or authorization to use, the credit card account represents a periodic account.

Answer

Deny. This request calls for admission of matter defendant has deny or objected, thus is improper.

25 Bank complied and tendered regular statements of the account activity to the Defendant.

Answer

I can neither admit nor deny this request as I have no memory concerning it and no records of it and the information known to me is insufficient to enable me to admit or deny.

26 The Defendant is liable to Bank for the balance owed on the account as set forth in the attachment herto.

Answer

Defendant objects to this request as stating a conclusion of the law.

II. AFFIRMATIVE DEFENSES

FOR AND AS A FIRST AFFIRMATIVE DEFENSE

1 The Plaintiff Discover Bank has failed to provide any contract or agreement bearing the signature of the Defendant or any itemized statements or billing of said debt which constitutes intimate knowledge of the creation of the debt.

FOR AND A SECOND AFFIRMATIVE DEFENSE

2 Defendant alleges an Improper Notice of Breach.

FOR AND AS A THIRD AFFIRMATIVE DEFENSE

3 Defendant invokes the Doctrine of Laches as the Plaintiff waited too long to file this lawsuit, making it difficult or impossible for the Defendant to find witnesses or evidence necessary to provide for Defendant’s defense has been lost or destroyed.

FOR AND AS A FOURTH AFFIRMATIVE DEFENSE

4 Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangement with Plaintiff.

FOR AND AS A FIFTH AFFIRMATIVE DEFENSE

5 Plaintiff claims are based in a contract that is an adhesion contract, and as such, all portions of it are unenforceable.

FOR AND AS A SIXTH AFFIRMATIVE DEFENSE

6 Defendant does not consent to or ratify any assignment of the debt that is the subject of the Complaint, or any portion of it.

FOR AND AS A SEVENTH

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date..

Edited March 23, 2012 by kutuzov

[legaleagle]

11 The issuance of a credit card by a Bank is an offer of a contract. See Bank One, Colombus, N.A. v Plumer, 63 Ohio App. 3d 491, 492, 579 N.E. 2d 284, 285 (Ohio Ct. App. 1989)

Answer

Admit.

Change this to a denial, this is that "use and acceptance" crap they pull when they can't produce a contract. Funny none of their case law is from Florida. Use and acceptance is NOT a law in every state, find out if Fla. has it. If it does, the location of the statute is important. If it is state banking law, they cannot invoke it, state banking depts have no regulatory authority over national banks, nor do they regulate consumers.

[legaleagle]

Is this mess they sent a complaint? Never saw a 26 paragraph complaint before. Some of your answers are improper, you are answering as if these were interrogatories. You can't object to a complaint. Also, lose the special defenses, total waste of time.

[kutuzov]

The complain is exactly as shown, I took the time to write it in full. I'll check the bank issue and see what I can find on google. The only thing I changed is my wife name to Jhon Smith other than that is exactly what I received. Theres a bill as exhibit A with no itemized items just the last statement that it reads 6/2009. And a generic contract with no signatures.

If I can't object a complain then I just deny it is the same really.

What you mean by loose the special defenses? Can you give me an example. THANKS!!!

Edited February 26, 2012 by kutuzov

[kutuzov]

I found this I'm not a lawyer just a good reader. I could just go as for defense that I never got a contract with Discover Bank. And need to see the original document. If they don't produce a valid contract according to Florida law then they got no case of action. Can you formulate my defense a bit so I can understand how to write it in legal terms?

Couldn't find on google if Florida uses or not the use and acceptance so I gonna just deny that. All objections changed to Deny.

Florida Debtor:

Im looking though my case law....

FL Best Evidence Rule (it's better referred to as the Original Document Rule)

FL Jur 2d, Evidence and Witness, s. 333 Generally:

Fla D 2d, Evidence, section 157 to 187

Generally, the best evidence of the contents of a written instrument consists in the actual production of the instrument itself, and secondary evidence of its contents cannot be admitted until the nonproduction of the original has been satisfactorily account for.

Firestone Service Stores of Gainesville v. Wynn, for Use and Benefit of Home Ins. Co., N.Y., 179 So. 175 (Fla. 1938), 131 Fla. 94.

The unavailability of the writing must be for some reason other than the serious fault of the proponent.

Williams v. State, 386 So.2d 538 (Fla. 1980)

McKeehan v. State, 838 So.2d 1257 (Fla. App. 5 Dist. 2003)

The purpose of the best evidence rule is to ensure the accurate transmittal of critical facts contained in a writing.

Williams v. State, 386 So.2d 538 (Fla. 1980)

McKeehan v. State, 838 So.2d 1257 (Fla. App. 5 Dist. 2003)

In an action on a contract, the plaintiff has the burden of establishing all the essential elements of the cause of action by a preponderance of the evidence.

Pope v. O’Brien, 213 So.2d 620 (Fla. App. 1 Dist. 1968)

Thus, to recover for a claimed breach of contract, the burden is on the plaintiff to prove the existence of the contract, the breach of the contract, and the damages resulting from that breach.

Prestige Development Group, Inc. v. Russell, 612 So.2d 691 (Fla. App. 1 Dist. 1993)

Carpenter Contractors of America, Inc. V. Fastener Corp. of America, Inc., 611 So.2d 564 (Fla. App. 4 Dist. 1992)

Knowles v. C.I.T. Corp., 346 So.2d 1042 (Fla. App. 1 Dist. 1977)

[legaleagle]

We cannot formulate a defense for you, that is unauthorized practice of law. Most of us are pro ses, not attorneys. You have to formulate your own defense. What is it? Special defenses do not work in credit card cases unless the statute of limitations expired. Did you ever have this credit card? Don't tell us you can't remember, that won't work here or in court. From the looks of this complaint, unless you have a solid defense, you are DOA. Sorry, just the way it is.

[kutuzov]

I found this for Florida law:

It states the contract for credit cards MUST be in writen and they don't have one so...

655.954 Financial institution loans; credit cards.—(1) Notwithstanding any other provision of law, a financial institution shall have the power to make loans or extensions of credit to any person on a credit card or overdraft financing arrangement and to charge, in any billing cycle, interest on the outstanding amount at a rate that is specified in a written agreement, between the financial institution and borrower, governing the credit card account. Such credit card agreement may modify any terms or conditions of such credit card account upon prior written notice of such modification as specified by the terms of the agreement governing the credit card account or by the Truth in Lending Act, 15 U.S.C. ss. 1601 et seq., as amended, and the rules and regulations adopted under such act. Any such notice provided by a financial institution shall specify that the borrower has the right to surrender the credit card whereupon the borrower shall have the right to continue to pay off the borrower’s credit card account in the same manner and under the same terms and conditions as then in effect. The borrower’s failure to surrender the credit card prior to the modifications becoming effective shall constitute a consent to the modifications.

I could base my affiramtive defense on this since they don't have a contract.

[kutuzov]

My wife got the card, I told her to cancel it, but aperantly she used it. I myself never got it she did. As for the monthly statements I probably toss them since I really don't recall seeing those, beliving it was just another junk mail.

What does DOA means? (Dead or Alive?)

Edit:

Found it Dead on Arriaval.

I guess but at least is not me!!! unfortunatly I got to live with that anyway.

Edited February 26, 2012 by kutuzov

[legaleagle]

Written contracts signed by both parties are not required in credit card cases. What they will produce is the cardholder agreement, and they will say they sent it to you along with the credit card. They will then argue that you accepted the terms of that agreement when you used the card. If you can find case law that defines a written agreement as something other than the cardholder agreement, you'll be the first in history. Again, some day you'll have to stand in front of a judge who will ask you, is this your account? Did you apply for this card? Did you use this card? How will you answer?

[kutuzov]

I'll advise my wife not to commit prerjury. So she will have to admit it.

Anyway if they don't dismiss the case (most probably), it goes to mediation and there I'll advise my wife to settle for a monthly payment. So it won't go to an actual trial. This is just a pretial and then mediation.

[Justicewanted]

Questions like number 3 I would personally not answer with agree as you most likely truly do not know the answer to questions about their business practices.

I would answer that question and other like it with: Neither admitted as true or denied as untrue because the Plaintiff has not provided me with any information to know the truth of the matter.

Do not answer agree to anything that you do not know if it is accurate or not. Never help them prove anything on their case. Unless you have inspected said papers yourself and are familiar with that particular law I would not agree to anything unless you know it is 100% accurate.

[usagi555]

Do not answer agree to anything that you do not know if it is accurate or not. Never help them prove anything on their case. Unless you have inspected said papers yourself and are familiar with that particular law I would not agree to anything unless you know it is 100% accurate.

QFT!

[legaleagle]

Notwithstanding any other provision of law

There will be one, Discover is in Delaware. The statute of limitations is 3 years. I believe they have use and acceptance, I seem to remember seeing this in their code. For your state, you have to look in the state statues (code) under banking, credit, whatever covers the subject. It's arguable either way. They can only export their interest rate, not the rest of their laws, and the Fla banking law does not regulate national banks. They would have to prove that you agreed to DE law, hard to do other than the fact it is in a generic agreement that does not have your name on it.

[kutuzov]

So let me understand it in english...

If Florida got use and acceptance with probably does (couldn't find it), AND the contract was from Delaware where the bank is located, AND Florida laws accept this, it means that the SOL is 3 years according to Delaware laws, not 4 years as for Florida laws. As I understand it. If they prove that the contract was done in Delaware with 3 years SOL I'm safe!

I pulled the credit report and the card was opened on 7/24/2008. No payments where ever made towards the card. So default was 50 days after, 30 days of billing cycle plus 20 days grace period, so default is september 2008. If I can apply Delaware laws then SOL is the key!! THANKS got a lot to read. So actually I do want to agree with Delaware laws.

Anyway another thing, they failed to do a motion to appear telephonicaly. The layer is 200 miles away and got about 5 more cases the same day. Probably he will realize the error and try to do a motion so case is not dismiss,. Will the Judge grant it?

Edited February 27, 2012 by kutuzov

[1stStep]

If the case is less than $5k, you may want to look into arbitration per the cardholder agreement...

[kutuzov]

There the laws for Florida about credit card.

And it reads:

(e) “Foreign lender” means any bank, savings and loan association, credit union, or other business organization organized or chartered under the laws of the United States, or any state other than this state or the District of Columbia, which in any event is authorized by law to accept deposits and make loans and has its principal place of business outside this state.

So if they are in effect organized under Delaware laws then SOL applies.

So the game will be deny that the bank, as per 3, they will have to prove that they are regulated by Delaware law, and when they DO IT, then I just go with it and state than according to Delaware laws then the debt is barred because of SOL in Delaware.

What you think?

I'll anyway try to settle for maybe $500 to save me the pain of keeping reading and reading things I got to read 3 times to understand.

[kutuzov]

I researched the Card Holder Agreement by Discover Bank, not the one in the complain as it is incomplete, but online and it especifically states:

Goberment Law: This agreement is governed by aplicable Federal law and Delaware law.

So I'll go with SOL under Delaware law and tell them that I did sign the agreement and want a full copy, so SOL applies. Ill have to reform the answers, but welll...

THANKS!!!

[kutuzov]

What you think of this affirmative defense? THANSK FOR ALL

II. AFFIRMATIVE DEFENSES

FOR AND AS A FIRST AFFIRMATIVE DEFENSE

1 The Plaintiff Discover Bank has failed to provide any contract or agreement bearing the signature of the Defendant or any itemized statements or billing of said debt which constitutes intimate knowledge of the creation of the debt. Plaintiff Discover Bank exhibit A, reads “See your Cardmember Agreement. Your Cardmember Agreement contains all the terms of your Account”, which implies that is not the original or a copy of the original, therefore does not comply with Florida best evidence rule in section 90.952 of Florida Statutes. Plaintiff Discover Bank has failed to provide a contract. Defense attached a copy of the Card Holder Agreement as can be found in Plaintiff Discover Bank website, as exhibit A. As an adhesion contract the stipulations are true for Discover Bank credit card holders.

FOR AND AS A SECOND AFFIRMATIVE DEFENSE

2 The course of action of Plaintiff Discover Bank is based on a breach of contract, which occurred on or around September 28 2008. Defense attached exhibit B, a copy of a credit report of the Defendant. Said credit report shows the date when the contract was establish between the Defendant Jhon Smith and Plaintiff Discovery Bank, as of July 24 2008. No payments where ever made towards the balance of the revolving account, as shown also by exhibit B. The contract specifies that default occurs when “you fail to comply with the terms of this agreement or any agreement with us or an affiliate, including failing to make a requiring payment when due”. Assuming a billing period of 30 days, a grace period of 25 days, payment was due 55 days after the account was open, and therefore on September 28 2008 a breach of contract occurred.

FOR AND AS A THIRD AFFIRMATIVE DEFENSE

3 Plaintiff discover Bank complain is time-barred Pursuant to the state of Delaware CHAPTER 81 Title 8106. Actions subject to 3-year limitation. Plaintiff Discover Bank and Defendant John Smith, agreed on a contract governed by Federal and Delaware laws, as stipulated on the Card Holder Agreement attached as exhibit B. Therefore Plaintiff complain falls under the Statute of Limitations according to Delaware Laws. Default was establish on or around September 28 2008therefore any complain after 28 September 2011 is time-barred in accordance to the state of Delaware laws.

FOR AND AS A FOURTH AFFIRMATIVE DEFENSE

4 Defendant does not consent to or ratify any assignment of the debt that is the subject of the Complaint, or any portion of it.

FOR AND AS A FIFTH AFFIRMATIVE DEFENSE

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

Edited February 28, 2012 by kutuzov

[kutuzov]

I'm still DOA now? The court date is 2/1 9 am so... not much time left.

[BV80]

What you think of this affirmative defense? THANSK FOR ALL

Affirmative Defense #1 states that Discover failed to provide a contract or agreement. Then in Defense #3, you state that Discover and the Defendant agreed on a contract governed by Federal and Delaware Laws. You're admitting to an agreement.

In #3, I would merely state that Discover Bank is located in Delaware, and their cardmember agreement states they are governed by Federal and Delaware laws.

[kutuzov]

Changed thanks will change everything that refers to the contract as alleged contract.

Anyway since there's no contract in the claim and I can prove that on the affirmative defense 1 easily. Should I also use.

Failed to State a Cause of Action. There's no contract so there's no breach of contract posible.

and I should start Affirmative Defense 1 with Statute of Frauds.

[kutuzov]

I just realized one LITTLE thing. What I thought was the contract, is in fact the reverse of the monthly statement. So there is actually no contract at all in the complain... What you recommend me to do then?

They probably left the contract behind knowing that Delaware SOL applies, and they are hoping to get a default jugdement that they won't.

[BV80]

A written, signed contract is not usually needed as evidence in a credit card case. If they can show you used the card, that's an implied contract. Most cardmember agreements state that use of the card indicates your acceptance of the terms and conditions.

Unless your state requires that credit card agreements be in writing and signed, the statute of frauds would not apply.

[kutuzov]

There is a case similar to mine!!! Delray won against Capital One because of the 3 years statute of limitation of the governing law, of the state that specified by the card holder agreement.

Delray v. Capital One Bank 08-516 AP

Now what is required to cite it? is a case in Florida.

Edited February 29, 2012 by kutuzov

[legaleagle]

If the SOL was expired, file a motion to dismiss the case. Attach exhibits that prove the date the account went into default and cite the statute from DE that applies. Attach the cardholder agreement (you can find one on line) and highlight the DE choice of law provision. Your case law would be the one you cited, maybe you can find a couple more with Google Scholar.