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What counts as evidence of debt from an OC?

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In response to a potential lawsuit, I will be requesting evidence of debt they claim I owe since I have no recollection of said debt and said debt does not appear on my credit report.

What evidence am I entitled to receive to prove that it is mine and the last payment I ever made on that debt? Can they be required to send me a copy of a statement with the last payment? I really don't think a simple statement "claiming" I owe the debt is enough. Am I entitled to demand more specific evidence?

I'm in California and the debt is around $8,000 being sued by a lawyer representing Crap1.

Note: I started this separate thread to focus only on this question, as I didn't want it to get buried in my other post regarding the lawsuit.

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I don't know which causes of action they are suing you for. If for common counts and breach of contract, you can demand a Bill of Particulars via CCP 454. If they are only suing for account stated, then you cannot use CCP 454 by precedent. Usually they sue on as many causes of action as they think will stick though. CCP 454 requires that they give you a copy of the account. This means that the debts have to be itemized from ZERO and creits and debits against the account, along with interest rates need to be shown. So you can actually get a whole lot of information by that simple request. Closer to trial if you want to really see what they have you can do a CCP 96 disclosure, where they are OBLIGATED to show you what they have. You can also do standard discovery to get information, but the bottom line is that the more aggressive you are in standing up and asserting your rights, the better off you will be. I wish you the best of luck. Please rely upon your own instincts in reading this stuff and Calawyer who has been a true angel on this site for many of us.

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A signed contract by you

If you count on that, you will lose. The CA attorney will start jumping up and down with glee if you rely on something like that because he'll get to use one of the few pieces of law that he really knows: "Use of the card constitutes acceptance of the terms."

I sent (paraphrased) discovery requests asking for the following.

The application that I allegedly used to apply for the card. (This is not a signed contract that dictates terms of the account, contrary to popular belief.)

A complete accounting of all charges and payments made, i.e. every single billing statement.

Every last shred of evidence that I made the last payment they were alleging that I made.

The cardholder agreement in its initial form, along with every amendment made to it and the dates that those amendments took effect.

If they had sent those 4 things (along with a witness to properly authenticate,) most people would be toast, unless they find an area where the bank had itself breached the agreement. Throw in signed receipts from purchases and it will be really tough to beat.

In my case, on the third one, I was going to bring in bank records showing that I did not make the last payment that they were alleging and I have other evidence that their claims were crap.

I also asked about their methods and procedures for finding, preventing and correcting errors in their records, which they objected to.

That is for an OC, and only if you properly object to lesser evidence in a court where the judge is a stickler for the rules of evidence. For a JDB, they would have to show all of that, plus prove that they actually own the account.

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It depends on what causes of action they are suing you on.


A breach of contract action arises when after a contract is made one of the elements of the contract is not performed by one of the parties resulting in a material breach. If the cause of action arises on contract, the debt buyer has to prove the contract exists and that you, the alleged debtor, assented to its terms and received consideration. They also have to prove that you materially breached the contract, since absent such a breach, there obviously would be no damages.

Account Stated:

In California an account state has three elements:

1. It is based on the prior transactions between the parties.

2. That the items of the account are true.

3. That the balance struck is due and owing from the debtor to the creditor.

Gleason vs. Klamer (1980), 103 Cal.App.3d 782

An account stated may be attacked only by proof of "fraud, duress, mistake, or other grounds recognized in equity for the avoidance of an instrument." Gardner v. Watson (1915) 170 Cal. 570, 576.

Other grounds would be standing. If the account stated was with an original creditor, then the debt buyer has to prove standing. If they are claiming to be a party to the account stated with standing, then they still have to prove the underlying debt owed to the debt buyer was assigned to them.

In short, it basically boils down to standing and showing that the debt buyer can't prove their claim.

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In short, it basically boils down to standing and showing that the debt buyer can't prove their claim.

Agree, as usual, when you cut to the chase and take out all the fancy legal jargon and paperwork, at the end of the day the question is "do you have standing?"

You say that you do? Okay, prove it.

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