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RE-evaluating SOL in my case

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OK, here we go on the home stretch. Trial is set for May, and I have all the ammo I need. I am filing a motion in limine and hopefully that keeps it from being a bench trial. I will update as soon as I hear from the attorneys/and or the judge.  

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So I just found out that this is a Rule 37 trial schduled. Meaning that the judge wants to know why there has been no activity on this case. There has been plenty of discovery, but the Plaintiff has not so much as scheduled a pre trial hearing or anything. So, I am filing a motion to preclude everything, and after tha we will see how they respond. I don't think they will continue after I file that motion, but if they do I am working on a trial brief, and a strategy in case the judge does allow in their "so-called evidence" You never know with some of these judges. 

 

As soon as this case is over, I will make my redacted docs and filings available for viewing by all. I find very little help here in AR for people trying to fight these companies.  There are not any templates that I found, but I have found many cases that outline exactly what is needed. Those judges spell out what to do and what NOT to do when defending yourself. Case law is there, but you have to really read it to make sure it applies to you. Many of those appeals court or supreme court cases that go against the defendant were because the defendant DID NOT raise objections properly or timely in the lower court. 

 

READ, READ, READ those cases! Happy winning!!! 

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Yep, and get ready for them to argue 16-56-111 and claim a credit card is written contract. If you can hold your arguments and put up with the constant appearance that they are winning this argument, you can paint them in a corner and use their own words to flip this on them in summary judgment.

They are going to argue a credit card is a written contract. That is true, pretty much. However they are not going to provide a contract. Again, that is acceptable. They don't have to provide the contract to prove there was a contract. But what kind of contract????????? Good ole AR law uses the word "other" how nice and how not definitive.

This is where you get your My Cousin Vinny moment when Vinny's girl is on the stand and the district attorney smiles and asks her a trick question and then tries to use that as showing the judge she has no clue. Then when she says, "Would you like me to explain" and Vinny rocks back in his chair, slaps the Karate Kid on the back and says "Watch This"

This is where you simply have to get them to make this argument on the record thinking they are demolishing you, while they are simply just telling you the size of the rope you should buy for them.

You have to sucker them into this. You can't let them just keep arguing over and over the use of the card establishes the contract, because they are 100% right. You have to bait them into making this argument.

"Each time you signed the credit card slips you are signing a new written contract, agreeing to a new five year statute of limitations," a solid and very correct argument, hence they are kicking your tail all over the courtroom.

You can get them to say anything you want if you just act stupid and like you are scared of what you are trying to get them to put on the record. I did this over and over in discovery, get them to give me the answer I wanted by wording the question like I was looking for a certain response that I thought would help me.

I roped them in some more during more production of documents requests and made it look like I was going to use the argument how do you know this is my account and spoon fed them discovery where they argued the use of the card set the "account" And just beat that dead horse. Remember this was all before I pulled the old, right at the last minute, I agree with all your evidence, I just don't owe you. So they are racking up tons of fees.

I wanted them arguing over and over the "use of the card" sets a contract, but by Arkansas law what type of contract. Now you can make the argument without them going the charge slip route but once they make it on the record, their mouth just wrote a check their tail can't cash.

You- Don't have charge slips to prove the account, WTF????? Them- NO!!, we don't need them, we have the statements that show the charges and you used the card, we don't need the slips. Again, they are 10000% right. Your getting your losing right? ;-)

Back off the SOL in discovery and start in with getting them to object to everything as irrelevant or even better as not in their possession that will go to proving the written contract. Don't ask for "written contract proof" ask for it appearing you need for another irrelevant reason so they will object to it as irrelevant, because it actually would be irrelevant if you were actually asking for it for the reason they thought. But there they go thinking again, and we know how this is going to turn out, don't we?

:trainwreck:

Get them to use the word account every possible time you can and every time you can use contract (in your arguments, not your requests) NEVER say what kind of contract.

Time to party. Quickly change gears and give them the "Watch This" moment. The charge slips that were indeed correctly argued as not needed to establish the account, are now needed, by their own arguments Your Honor, to establish "what kind of account/agreement" the parties entered. The "account" is now conceded by the use of the card, but not the type of account.

However, they will have objected or failed to produce those charge slips because, again, they correctly state they don't need the charge slips to prove there was ever an agreement or account between the parties.

Yes, Your Honor, I concede defeat on that point, they are right, use of the card sets an agreement, but just like the good ole, "I owe it but not to you" we now have, "I have an account, but what type of account is now the question."

They said the charge slips set a new written contract. So now they are saying they don't need the original contract AND the charge slips THEY have submitted to the Court establishes the specific type of agreement/contract, because they claim a the bottom of the charge slip there is language as to the signature constitutes agreement to the terms and conditions of the contract, and they have just told you it's a written contract that I would have agreed.

However, now, they not only don't want to produce the original contract but now the slips with that alleged verbage at the bottom where I signed, to establish the specific type of agreement.

How can you argue a signature binds somebody to a specific contract and don't produce the contract and don't produce the signature to that specific contract.

Then argue simply use of the card establishes an account and contract. But it establishes a written contract on top of that. You mean the written contract you can't produce, the charge slips with my signature binding me to that written contract?

Come on you can't have it both ways. You can't produce nothing with my signature and say you don't need my signature to bind me to a written contract, when in the next breath you argue my signature on the charge slips is what binds me to the contract, when you just said you don't need my signature. If you don't need my signature why did you just argue my signature is what binds me to a "written" contract. You said it, not me.

Talk about arrogant Your Honor. We don't need your signature, you have a contract with us. But wait, when challenged on that point of law, you have a contract because you used the card.

Okay but what kind of account/contract. How is it a written contract because I signed saying it was every time. Care to show me? No, you used the card. HUH, I know I have an account now, that is conceded, but now explain to me how I can have a written contract with you when I entered into a written contract each time I signed a new charge slip, AND you have just said you don't have those charge slips because you don't need them to prove something I've just concede???

Of course you don't need them to prove something I just conceded. "Try to keep up Pal, we are past that argument, you won that one."

I want to see all this agreement every time nonsense that you say you are basing your legal argument and theory. I don't concede that, so let's start talking apples to apples here. Stop trying to justify your lack of proper evidence, when you sued me, by pointing out you don't need the evidence to prove a point that I have conceded.

Just WOW, Your Honor, incredible.

This is where you just annihilate them on "meeting of the minds" and use their own words, objections, and lack of production of documents, and just shove them right up their a$$ while they stand there with the :shock: on their face. They are now catching on they just got played.

So quickly move to the next argument. We've established an account Your Honor. By default it is now simply an "account" that is allegedly owed, not a "written contract account" and in Arkansas on any other "account" other than a written contract, the limitations is three years under 5-56-105.

So you concede it's an account, but it's an, "other" account. That law you are quoting uses the word any "other" account. Now it's an "other" account.

In closing.....

If you don't have a clear meeting of the minds, it clearly has to be something "other" than what is being argued. It's why the law was written that way Your Honor (well I can only assume) as a "catch all" in the event of no meeting of the minds. We must have two meeting of the minds in this case. One for if there was an account and two what type of account. We have a clear meeting of the minds on number one but no way on number two, so we have an "other" account, by default.

or along the lines of

HOWEVER, where there is no meeting of the minds and where reasonable minds would differ since there is no contract and no charge slips, which they claim sets a new contract after each signature, is a "written" or "other" and since it's obvious it is a least an "other" contract but not obvious it's a written contract, by default it has to be the catch all "other" contract/contract

They are the ones that put us in the position Your Honor by refusing produce the very evidence they relied when making their arguments. If they want to blame somebody for all this confusion, all they have to do is look in the mirror.

Not my fault they made arguments they could not or were not prepared to back if challenged on the matter. It's not my fault they objected to the very evidence that would make this argument moot in about two seconds. It's not my fault they failed to produce evidence, and I even tried to help them out and asked them for it because I'm no lawyer, but I know you argue something and there is physcial evidence to support that argument, the best evidence is that physcial evidence.

Then say, "The uneducated inbred hick from Arkansas with no law degree, rests, Your Honor" :IThankYou:

Holy cow!... this situation is similar to the one being faced in Oklahoma where the SOL isn't quite so clear (cant find caselaw to buffer against Midland, but ColtFan's approach is what Im looking for, too. IM gonna pirate some of this and drill it into my head to shift the issue away from "written contract". Ive got potential problems with that too, as Bruno kindly pointed out to me earlier last week.

 

Roadie

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BofA is FIA Card Services, Delaware law. 3 year SOL and a really interesting interest rate law, chapter 23 of the code. Gotta read that one.

 

Just a note of caution on this.  What year was the account opened? 

 

In my case, FIA was the P, but they produced a 2003 (the year the acct was opened) BOA cardholder agreement which listed AZ as the choice of law.  Not really a problem as the AZ SOL was 3 years at that time.  Now it is 5 years.

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I would like to see some of those filings you used.  No word yet on mine fight either and they have been so sloppy with discovery its laughable.  Probably more so since we are both facing off against same firm.  I'll send you a message to get some input from you.

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