AdhesionContract

Adhesion Contract position thrown out by Judge in Chambers, what is the precedent?

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Update, to save time, if you go to post number 29 on the second page you can get to the heart of the defenses I would like to use in my credit card court case, here is the link to the second page of this topic.

http://www.creditinfocenter.com/forums/state-laws-case-law-sample-forms/317152-adhesion-contract-position-thrown-out-judge-chambers-what-precedent-2.html,

Then at comment number 35 one brave forum regular responds to my affirmative defenses.

Comments 38 through 47, I start responding to the first set of responses given at 35 regarding my affirmative defenses. I would like a second opinion and third opinion regarding my affirmative defenses. Comments 40 through 47 appear on page three. Thank you!

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I have been doing a lot of research about credit card debt and defaults/breach of contract. I think I have come up with some really creative, and completely honest and legitimate defenses that could produce a victory of sorts, especially in a class action lawsuit, however, they require the judge being open to first agreeing that credit cards are adhesion contracts.

I was quite surprised to hear the judge in chambers tell me in response to my position that credit cards are adhesion contracts..."I went to law school, I know what an adhesion contract is, you could have gone elsewhere if you did not like the terms of this contract".

I replied, in Judges Chambers,

"It makes no difference if I can go elsewhere if all the credit card company agreements are basically the same". The judge grumbled something at that point, their mind made up.

A lawyer on Avvo dot com interpreted the judges comment to mean, "all the credit card companies are basically the same because they are regulated".

Can somebody, anybody, explain what court precedent this California based judge was basing their position that Credit Cards are not adhesion contracts?

Let me be clear, I understand that a credit card can be an adhesion contract and be legal, however, I feel that if credit cards are adhesion contracts, it opens them up to some very interesting counter arguments that I believe could be used to unwind 90% of all the defaults ever adjudicated in the courts over the past 10 to 15 years, even if the debt remains valid.

What court precedent was the judge using in my case to thwart my best defense, and can I appeal the judge's foundational basis for their pre-disposition to not even listening to my arguments because they were based on credit cards being adhesion contracts?

Edited by AdhesionContract

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The judge is right, they are take it or leave it contracts, which are Adhesion contracts.

It's your argument that matters, not if they are contracts of adhesion or not. Of course they are contract of adhesions. I bet the judge was thinking you were trying to use the argument that since it was an adhesion contract you were trying to void the contract.

It's the action you are claiming that matters. Then you can use the argument it's an adhesion contract. I can't believe a judge would make a blanket ruling that a credit card contract is not a contract of adhesion, which it is.

What's the argument you are going to try and use is the real quesiton.

Basically what you were asking for was a declatory ruling from the judge, which I don't know for sure, but doubt is proper for this type of case and/or at this time.

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The judge is right, they are take it or leave it contracts, which are Adhesion contracts.

But the judge stated credit cards are NOT adhesion contracts, which I found stupefying. The other issue is I had late discovery and because of that I wanted to file a counter claim but the judge would not allow the motion to be considered because I presented it the day of trial (because of ongoing new discovery), and because it was based on credit cards being adhesion contracts.

However, I then converted my counter claim arguments to my defense (I had filed prior affirmative defenses), and the judge seemed to be completely disinterested because my arguments were based on credit cards being adhesion contracts.

So did the judge have a precedent setting case about credit cards not being adhesion contracts but did not mention it? Otherwise how can I file an appeal because what the judge "did" or "did not do" seemed based on a tenet they believed to be factually true, (credit cards not being adhesion contracts) when it might not be factually true that credit cards are not adhesion contracts.

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What were your arguments. If they were absurb arguments (not saying they were at all) then the judge just might not have wanted to mess with you. Maybe the judge was ruling as a declatory type ruling they are not contracts of adhesion. I don't know. You've not given anywhere near enough information on your arguments. Maybe your arguments fall under another theory of law.

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unconscionable contracts

There is nothing unenforceable or even wrong about adhesion contracts. In fact, most businesses would never conclude their volume of transactions if it were necessary to negotiate all the terms of every Consumer Credit contract.

This does not mean, however, that all adhesion contracts are valid. Many adhesion contracts are Unconscionable; they are so unfair to the weaker party that a court will refuse to enforce them. And this is the part that you will have convince a Judge on,,,,

Courts often use the “doctrine of reasonable expectations” as a justification for invalidating parts or all of an adhesion contract.

The weaker party will not be held to adhere to contract terms that are beyond what the weaker party would have reasonably expected from the contract, even if what he or she reasonably expected was outside the strict letter of agreement.

HARTLAND COMPUTER LEASING CORP. INC V. THE INSURANCE MAN, INC.

I am not sure what the law of these adhesion contracts are as to this kind of a relationship where one party is the beneficiary of the lease and the other party bears all the liabilities for it not functioning . . . I would have a very difficult time in good conscience to . . . award all the money that you are asking for.

Robin v. Blue Cross Hospital Service, Inc.,

“the bulk of contracts signed in this country, if not every major Western nation, are adhesion contracts . .

Estrin Construction Co., Inc. vs Aetna Casualty and Surety Co.,

Such form contracts are a natural concomitant of our mass production-mass consumer society. Id. Therefore, a rule automatically invalidating adhesion contracts would be completely unworkable.

Spychalski v. MFA Life Ins. Co., 620 S.W.2d 388, 392-93 (Mo.App. 1981). Only such provisions of the standardized form which fail to comport with such reasonable expectations and which are unexpected and unconscionably unfair are held to be unenforceable.

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As I stated up above, the judge seemed entirely disinterested in hearing my arguments because the judge already believed that credit cards are not adhesion contracts.

I would like to appeal what I consider to be an unfair judicial mindset, unless a precedent already exists, even then I still might want to appeal.

One argument I made was that credit card companies had unfairly charged far too much money for their credit protection insurance coverage, which also happened to be unregulated insurance, and that a fairly priced credit protection insurance was the best way a person had to pre-protect themselves if they could not make a monthly payment due to a legitimate reason.

I also pointed out that credit protection insurance was so obscenely overpriced that if a person with a 10,000 dollar credit card debt / limit signed up for the service, in just seven years time the ENTIRE CREDIT CARD line/debt of 10,000 would consist of credit protector charges and the interest rate charged on them, and nothing else!

I mentioned that as proof that the overpriced credit card protection insurance program had been an ongoing concern of mine, I had created a website in 2007 warning about credit protector insurance, and produced a copy of that website in my filing.

I also pointed out that I had just "discovered", the Consumer Protection Financial Bureau has fined all the credit card companies close to a billion dollars in penalties and fines for their credit protection programs and that the credit protection insurance program has recently been suspended by the banks, vindicating my published 2007 credit-protection concern.

Since I had never been late on a payment in the first 15 years I had my account, I was not able to use the most ideal way to not default on an existing debt since after 7 years time all the credit card debt would have been converted to nothing more than credit protection charges and interest rate charges on the debt.

I have several more well researched arguments as well, but do not want to reveal them all as I value that unpaid research as being worth a lot of money. However, the credit protection insurance angle is a cornerstone defense item. I argued that wrapping an unregulated insurance product around a regulated credit card product was unreasonable because the price being charged was around 20 to 30 times higher than it should have been priced.

I further argued that the credit protection overpricing was a hedge product being used by the credit card companies to strip credit card defendants of their best defense in court. The credit card company could state in court, "we have an insurance product and the defendant refused to purchase it".

I believe that 90% of all credit card defaults should be reversed because of the credit protection insurance overpricing issue along with a few others that I have come up with.

So, is there a court precedent that agrees with the judge's position that credit cards are not adhesion contracts, or was that just the judge whipping it out of thin air?

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I noticed up above that our two posts came in at the exact same time, so I did not see your response nor did you see mine until after we both posted.

I support the concept of adhesion contracts and support why they exist, I also believe I have the right to provide up to date evidence to change a judge's mind when it comes the judges belief that credit cards are not adhesion contracts.

If the judge agrees that credit cards are adhesion contracts, then it is still up to me to prove that they are unfair adhesion contracts, or substantively unconscionable credit card adhesion contracts. I believe 100% I have already come up with the affirmative defenses or a counter complaint to get my default, along with 90% of all other defaults, overturned.

However, as Archimedes stated, I need a place to stand.

Edited by AdhesionContract

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There is an appeal proess

Yes, I just don't know what it is I am appealing, or how to do it. I did file in proper so I know how to do the basic filing, but knowing the various motions is more difficult.

Although I do have a 30 day membership at a site that should be able to help me with that issue.

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As I stated up above, the judge seemed entirely disinterested in hearing my arguments.

Nothing personal, but I would have stopped listening to you also and thrown you out of my courtroom with that ridiculousness.

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I have been doing a lot of research about credit card debt and defaults/breach of contract. I think I have come up with some really creative, and completely honest and legitimate defenses that could produce a victory of sorts, especially in a class action lawsuit, however, they require the judge being open to first agreeing that credit cards are adhesion contracts.

I was quite surprised to hear the judge in chambers tell me in response to my position that credit cards are adhesion contracts..."I went to law school, I know what an adhesion contract is, you could have gone elsewhere if you did not like the terms of this contract".

I replied, in Judges Chambers,

"It makes no difference if I can go elsewhere if all the credit card company agreements are basically the same". The judge grumbled something at that point, their mind made up.

A lawyer on Avvo dot com interpreted the judges comment to mean, "all the credit card companies are basically the same because they are regulated".

Can somebody, anybody, explain what court precedent this California based judge was basing their position that Credit Cards are not adhesion contracts?

Let me be clear, I understand that a credit card can be an adhesion contract and be legal, however, I feel that if credit cards are adhesion contracts, it opens them up to some very interesting counter arguments that I believe could be used to unwind 90% of all the defaults ever adjudicated in the courts over the past 10 to 15 years, even if the debt remains valid.

What court precedent was the judge using in my case to thwart my best defense, and can I appeal the judge's foundational basis for their pre-disposition to not even listening to my arguments because they were based on credit cards being adhesion contracts?

I am afraid that there are not many precedents in credit card cases except for choice of law provisions and arbitration clauses The courts have very few cases that actually go to trial and even fewer that go to appellate level.

You are going to have to look at recent decisions on car loans to get close. There are a couple but I think what the judge is saying is you are way off the mark. You would have to admit to the account to get contract of adhesion and I honestly believe that the judge is telling you to drop it because you are going to give the case to them. I also believe that the chambers conversation was a polite way for him to attempt to diswade you from f'ing your case up.

Sticking to the strategies that are working is your best course. Shifting to an untried legal theory to assert class status makes judges really want to make it go away. The class may have better chances with class breach of contract by suing when and arb agreement is in place might be a better thing. and then you go into unconsionability of the contracts non class action waiver which there is a months old precedent on.

The judge may actually be doing you a favor in this. kinda grabbing the reins to keep the horses from going over the cliff.

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Nothing personal, but I would have stopped listening to you also and thrown you out of my courtroom with that ridiculousness.

lol.

What were your arguments. If they were absurb arguments (not saying they were at all) then the judge just might not have wanted to mess with you. Maybe the judge was ruling as a declatory type ruling they are not contracts of adhesion. I don't know. You've not given anywhere near enough information on your arguments. Maybe your arguments fall under another theory of law.

You sure are all over the map. I'd suggest you learn to spell before insulting others.

Edited by AdhesionContract

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I am afraid that there are not many precedents in credit card cases except for choice of law provisions and arbitration clauses The courts have very few cases that actually go to trial and even fewer that go to appellate level.

So if I am offering a new defense, then the judge has no compelling reason to not want to hear it.

You are going to have to look at recent decisions on car loans to get close. There are a couple but I think what the judge is saying is you are way off the mark. You would have to admit to the account to get contract of adhesion and I honestly believe that the judge is telling you to drop it because you are going to give the case to them. I also believe that the chambers conversation was a polite way for him to attempt to diswade you from f'ing your case up.

It's not a car loan. I'm not trying to get out of the debt, I'm simply pointing out that the credit card companies ruined the ideal way for a customer to suspend their debt in case of a dire circumstance, an entirely reasonable premise.

Sticking to the strategies that are working is your best course. Shifting to an untried legal theory to assert class status makes judges really want to make it go away. The class may have better chances with class breach of contract by suing when and arb agreement is in place might be a better thing. and then you go into unconsionability of the contracts non class action waiver which there is a months old precedent on.

I just don't agree. There are millions of unfair defaults specifically because everybody sticks to the tried and true methods that most of the time don't work.

The judge may actually be doing you a favor in this. kinda grabbing the reins to keep the horses from going over the cliff.

I don't want any favors, just consideration based on discovery.

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Yes, I just don't know what it is I am appealing, or how to do it. I did file in proper so I know how to do the basic filing, but knowing the various motions is more difficult.

Although I do have a 30 day membership at a site that should be able to help me with that issue.

Motion to vacate if you defaulted. If the judgment is void then motion to vacate a void judgement or writ of mandate but the defaults stand until you motion to vacate them.

also adhesion contract doesn't nullify a judgement because the default stands and all conclusions are resolved in favor of the judgement. You have 6 months to vacate normally 1 year in exeptional circumstances.

However if the underlying judgment is void you can attack it at anytime anywhere. So first thing if it is void is file motion to vacate void judgment, when it gets denied then you can file a writ of mandate.

If it is an adhesion contract you could complain to the State AG but good luck on that she has no political clout for unfair business practices.

So you have a tough row to hoe but it will take awhile and to stop writ of execution you will have to post a surety bond for 200% of the judgment (150% if it is a bond company). Good luck but adhesion contract won't get it done because that would be admitting that there was an account between the parties. I just hope the judge just forgot what you said for your sake because it was off the record.

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The judge is right, they are take it or leave it contracts, which are Adhesion contracts.

It's your argument that matters, not if they are contracts of adhesion or not. Of course they are contract of adhesions. I bet the judge was thinking you were trying to use the argument that since it was an adhesion contract you were trying to void the contract.

It's the action you are claiming that matters. Then you can use the argument it's an adhesion contract. I can't believe a judge would make a blanket ruling that a credit card contract is not a contract of adhesion, which it is.

What's the argument you are going to try and use is the real quesiton.

Basically what you were asking for was a declatory ruling from the judge, which I don't know for sure, but doubt is proper for this type of case and/or at this time.

Judges in Ca. cannot make decaratory judgments.

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I'd suggest you learn to spell before insulting others.

I'm not insulting you. Your arguments are so way off the mark that it would take three pages to give you a free law lesson. You don't even know what you're arguing. You have no clue but you don't even realize it.

As Seadragon pointed out, the judge was giving you an out. He was basically telling you to stop wasting his time. Just for the sake of argument, let's assume the judge 100% ruled it was a contract of adhesion. Your arguments still miserably fail, so it's a moot point what kind of contract it is.

I'll take my court record over yours anyday of the week. You won't ever find a post of mine where I'm wondering what to do after losing. I don't lose.

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Judges in Ca. cannot make decaratory judgments.

I was just saying that was the type of request the poster was trying to make of the court. The fact courts in CA can't do that is all the more reason to realize why this argument was going nowhere quick.

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I don't think it's relevant if I admit to anything, I'm using discovery to point out that the insurance companies created a hedge insurance product to block their customers from properly protecting themselves if they had a dire circumstance that prevented them from paying their monthly bill.

If I work somewhere and the boss places a tree in the middle of the road that makes me late to work, I can admit to being late without losing my ability to defend that the lateness was caused by the boss.

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I'm not insulting you. Your arguments are so way off the mark that it would take three pages to give you a free law lesson. You don't even know what you're arguing. You have no clue but you don't even realize it.

As Seadragon pointed out, the judge was giving you an out. He was basically telling you to stop wasting his time. Just for the sake of argument, let's assume the judge 100% ruled it was a contract of adhesion. Your arguments still miserably fail, so it's a moot point what kind of contract it is.

I'll take my court record over yours anyday of the week. You won't ever find a post of mine where I'm wondering what to do after losing. I don't lose.

I just want to be clear here, I created a website in 2007 that pointed out that the credit protection insurance program was an incredible consumer rip-off. Five years later the Consumer Protection Financial Bureau recently fines credit protection insurance programs close to a billion dollars, legitimizing my complaint from five years ago.

I also advocated the credit protection insurance program should cease, the program was recently ceased by the credit card industry.

I show that as a foundation and that I would like to argue that the credit protection insurance program allowed the credit card companies to both create unnecessary breach of contracts, and to then argue in court if a breacher did not have the insurance program that they did not take a good faith step to be responsible towards their account.

You in turn argue that that is a ridiculous argument. Is that correct?

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I want everyone to be clear about one thing, the JUDGE BELIEVES THAT CREDIT CARDS ARE NOT ADHESION CONTRACTS, and did NOT want to hear any arguments that could change their mind.

The reason for this level of unreasonableness is most likely related to, if I were to convince the judge that credit cards are adhesion contracts, and then come up with a substantively unconscionable argument that has merit, the judge might have to not only declare the debt frozen with no more interest rates penalties or fees added on, but also do the same to prior verdicts if my argument ALSO applies to others who the judge has already declared to be in default.

What judge wants to open a door that could lead to such a huge consequence?

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lol.

You sure are all over the map. I'd suggest you learn to spell before insulting others.

What the distinguished gentleman from Arkansas has so succinctly teed up as they say Is "That dog just won't hunt". There are perhaps better ways to go about what you are trying to do. I would have to say Coltfan is all for charging headlong into a fight (huge understatement) but we are here to discuss why the court doesn't want to here it.

Maybe some background to flesh this out a little more. Because this is Starting to sound alot like the(groan I really didn't want to kick this sleeping dog) "securitization" arguement. (I hope your happy you made me bring that up again stand by for 50 posts on that dang securitization ding dang arguement)

For the record, in support of the poster everyone thought the arbitration strategy was a boondoggle also. So I will look into this and see if it is feasible. It may very well pan out. I will look and see if there is a basis but the only cases I know of are the car loan ones and it is only 2 of those. It wouldn't hurt to look up Federal cases(9th circuit, Supreme Court) and I think the OTS would have a position on it.

How long ago was the default?

What did they submit to get the default in the way of evidence?

what have you filed since then?

How are you going to interest or force the court to come off of there position?

and finally is there an arbitration clause in the agreement? You can look up that in the arbitration posts how to find out.

for further proceedings your choices are limited to three things:

1. motion to vacate

2.motion to vacate void judgment

3 Writ of mandate to vacate either

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You in turn argue that that is a ridiculous argument. Is that correct?

Yes, for the way you are trying to use it for your particular case, or it appears, to void your contract. That is a ridiculous argument, in my opinion, and I live for the moment to take on creditors. I camp out at the courthouse steps ready to get inside, but yes, the way you're using this argument for your particular case is, in my opinion, a ridiculous argument.

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So I tried to email adm and discovered that adm does not accept PM's.

That's true and on the home page she tells people that so they won't waste their time PM her. She does answer emails from regular posters. I find her to be an extremely nice lady that has always communicated with me in a very professional manner. Do you need me to pass on a message for you? ;)

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Yes, for the way you are trying to use it for your particular case, or it appears, to void your contract. That is a ridiculous argument, in my opinion, and I live for the moment to take on creditors. I camp out at the courthouse steps ready to get inside, but yes, the way you're using this argument for your particular case is, in my opinion, a ridiculous argument.

Aha, now I see where you have strayed off course. I wasn't trying to void the contract. I was trying to simply have the debt recognized for the amount it was when the last payment was made, with no more penalties, fees or interest rate charges tacked on, and since I made a debt instrument offer before I was ever in default, there was no reason for the court to levy any additional action since my offer was a good faith offer based on present income level.

I offered a debt instrument before I was ever in default, this becomes a second argument to bring up, if the credit card company will not negotiate without a default first being declared, that also must be stated in the contract.

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