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OC suing in FL


Chevy10
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Racecar, here is the questions you needed from my buddy. I can have him make his own account if you want. Supplying the complaint next.

Have your friend come over and answer these

1. Who is the named plaintiff in the suit? B@rcl@y's B@nk Del@w@re

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) H@yt, H@yt, and L@nd@u

3. How much are you being sued for? <$2,500.00 would be small claims

4. Who is the original creditor? (if not the Plaintiff) The Plaintiff is the Original Creditor

5. How do you know you are being sued? (You were served, right?) Served by Sheriff

6. How were you served? (Mail, In person, Notice on door) In Person

7. Was the service legal as required by your state? Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

9. What state and county do you live in? Florida

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Late 2009 or early 2010

11. What is the SOL on the debt? 5 yrs

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Suit Served

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Served yesterday, must appear this coming Tuesday.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They provided a statement, an activity document showing 30.24% interest, and a generic card agreement.

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Barc Bank Del

Plaintiff

v

My Friend

Defendant

_______________________

Comes Now the Plaintiff Barc Bank Del, a corporation organized and existing under the laws of the United States of America, engaged in interstate commerce and owner of the defaulted debt at issue, sue(s) the Defendant(s). My friend, and states as follows:

ACCOUNT STATED

______________

1. This action is within the jurisdictional limits of this court.

2. Defendant(s) is/are resident(s) of this county.

3. All conditions precedent have occured.

4. Before the institution of this action Plaintiff and Defendant had business transactions between them and on 6/29/10 they agreed to the resulting balance for the account number xxxxxxxxxxxxxxxxx.

5. Plaintiff rendered a statement of it to Defendant and Defendant did not object to the statement.

6. Defendant owes Plaintiff $2,xxx.xx, since 6/29/2010 on the account.

Wherefore, Plaintiff demands judgment for $2,xxx.xx, court costs and any other relief this court may deem just and proper against Defendant(s).

Attached is 1 final Mastercard statement, 1 account activity page showing the 30.24% interest, 1 generic card agreement.

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I am aware of that Beergoggles, I already told him he needed to be here, but he is probably the least internet/computer saavy person I have ever met. Would be much appreciate if you look while I try to get him on here with his own account. But thanks for advising that! :)

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Oh and a quick question about Usury, I know that the United States Supreme Court in the Marquette National Bank v. First of Omaha Svc. Corp. -439 U.S. 299 (1978) kind of made it a moot point for national banks........ does that ruling apply to foreign banks such as Barclays? Now the card was a Juniper card originally but I find no evidence where Juniper was a national bank either. Neither bank appears to be a national bank association under Title 12 of the USC. Would that mean no state usury preemption?

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Thanks for the info Bruno, while they do not show in the list of Credit card banks, nor National bank Associations on that website, I think that would be beyond him anyway. Not sure what he needs to do to defend against this. I had a decent understanding thanks to what I read here for my case but that was a JDB. Not sure exactly what he can do against an OC.

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For an account stated to exist there must be an agreement between the parties that a certain balance is correct and due and an express or implied promise to pay this balance. See Raben Builders, Inc. v. First Am. Bank and Trust Co., 561 So. 2d 1229, 1232 (Fla. 4th DCA 1990) (citing Merrill-Stevens Dry Dock Co. v. Corniche Express, 400 So. 2d 1286, 1286-87 (Fla. 3d DCA 1981).

“There can be no liability on an account stated if there has been no mutual agreement, and mere presentation of a claim and its retention without objection does not of itself create a liability.”

Recreation Corp. of America v. Jack Drury & Associates, Inc. 235 So.2d 49 (Fla. App. 4 Dist. 1970)

“Basic premise of an account stated action, which presupposes some indebtedness, is that the statement fixing the various sums that constitute the debt is correct and not the existence of the debt itself.”

Nicolaysen v. Flato, 204 So.2d 547, certiorari denied 212 So.2d 867 (Fla. App. 4 Dist. 1967)

There can be no liability on an account stated if there has been no mutual agreement, and the mere presentation of a claim and its retention without objection cannot of themselves create a liability.

Braun v. Noel, 188 So.2d 564 (Fla. App. 3 Dist. 1966)

Failure to respond to demand for payment does not create obligation for account stated absent contractual agreement creating such liability. See Page Avjet Corp. v. Cosgrove Aircraft Servs., Inc., 546 So. 2d 16, 18 (Fla. 3d DCA 1989).

Edited by racecar
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IN THE DISTRICT COURT OF MY COUNTY FLORIDA

Plaintiff

Barclays Bank Of Delaware

Vs

Defendant

John Doe

Case Number

MOTION TO COMPEL PRIVATE CONTRACTUAL ARBITRATION AND DISMISS PLAINTIFF'S COMPLAINT OR IN THE ALTERNATIVE, TO STAY PROCEEDINGS PENDING ARBITRATION

COMES NOW the Defendant my name appearing Pro Se for its Motion to Compel Private Contractual Arbitration with Barclays Bank Of Delaware and as grounds thereto states the following:

1. That on or about November 19, 2012, Plaintiff filed its Complaint against Defendant.

2. Defendant moves this court to compel binding Private Arbitration with American Arbitration Association based on the terms and conditions of the Barclays Bank Of Delaware Credit Card Agreement (see Exhibit A, attached).

3. The parties are bound by the Barclays Bank Of Delaware Credit Card Agreement. The Arbitration Agreement states among other things:

(a) At the election of either you or us, any claim, dispute or controversy (“Claim”) by either you or us against the other, or against the employees, agents or assigns of the other, arising from or relating in any way to this Agreement or your Account, or any transaction on your Account including (without limitation) Claims based on contract, tort (including intentional torts), fraud,agency, negligence, statutory or regulatory provisions or any other source of law and (except as specifically provided in this Agreement) Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, shall be resolved exclusively and finally by binding arbitration under the rules and procedures of the arbitration Administrator selected at the time the Claim is filed.

(b.)ARBITRATION WITH RESPECT TO A CLAIM IS BINDING AND NEITHER YOU NOR WE WILL HAVE THE RIGHT TO LITIGATE THAT CLAIM THROUGH A COURT. IN ARBITRATION YOU AND WE WILL NOT HAVE THE RIGHTS THAT ARE PROVIDED IN COURT INCLUDING THE RIGHT TO A TRIAL BY JUDGE OR JURY AND THE RIGHT TO PARTICIPATE OR BE REPRESENTED IN PROCEEDINGS BROUGHT BY OTHERS SUCH AS CLASS ACTIONS OR SIMILAR PROCEEDINGS. IN ADDITION, THE RIGHT TO DISCOVERY AND THE RIGHT TO APPEAL ARE ALSO LIMITED OR ELIMINATED BY ARBITRATION. ALL OF THESE RIGHTS ARE WAIVED AND ALL CLAIMS MUST BE RESOLVED THROUGH ARBITRATION.

(c.)The party initiating arbitration shall utilize the American Arbitration Association, American Arbitration Association, 950 Warren Avenue, East Providence, Rhode Island, 02914, 1-866-293-4053 to administer the arbitration (the “Administrator”). The Administrator provides information about arbitration, its arbitration rules and procedures, fee schedule and claims forms at its web site or by mail as set forth above. The Administrator will apply the rules and procedures in effect at the time the arbitration is filed. The Claim will be heard before a single arbitrator, whose authority is limited exclusively to the resolution of Claims between you and us and to providing an award effective only on behalf of you and/or us. The arbitration will not be consolidated with anyother arbitration proceedings. The Administrator shall resolve each dispute in accordance with applicable law.

(d.)If you commence arbitration, you must provide us the notice required by the Administrator’s rules and procedures. The notice may be sent to us at Barclays Bank Delaware, P.O. Box 8801, Wilmington, DE 19899-8801. If we commence arbitration, we will provide you notice at your last known billing address.

(e) THIS ARBITRATION PROVISION IS MADE PURSUANT TO A TRANSACTION INVOLVING INTERSTATE COMMERCE AND SHALL BE GOVERNED BY AND ENFORCEABLE UNDER THE FEDERAL ARBITRATION ACT.

(f.)We will pay, or reimburse you for, all fees or costs to the extent required by law or the rules of the arbitration Administrator.Whether or not required by law or such rules, if you prevail at arbitration on any Claim against us, we will reimburse you for any fees paid to the Administrator in connection with the arbitration proceedings. In addition, in any arbitration that you elect to file that could be heard in Small Claims Court in your jurisdiction, we will pay the filing fees and other arbitration fees above the cost of filing in that Small Claims Court. If you are required to advance any fees or costs to the arbitration Administrator, but you ask us to do so in your stead, we will consider and respond to your request.

4. The Federal Arbitration Act (FAA) 9 USC Section 1-2 provides:A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration, a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract transaction, or refusal, shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.

5. The Supreme Court Ruling, decided April 27, 2011, ATT MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored. "We have described this provision as reflecting both a liberal federal policy favoring arbitration,Moses H. Cone , supra, at 24, and the fundamental principle that arbitration is a matter of contract,Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010 (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ." Furthermore, "The principal purposeof the FAA is to ensure that private arbitration agreements are enforced according to their terms. Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. Animal Feeds international Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA text. Section 2 makes arbitration agreements valid, irrevocable, and enforceableas written (subject, of course, to the saving clause); requires courts to stay litigation of arbitral claims pending arbitration of those claims in accordance with the terms of the agreement; and requires courts to compel arbitration in accordance with the terms of the agreement upon the motion of either party to the agreement . "

6. The Defendant elects arbitration with American Arbitration Association to settle this dispute.WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration with Barclays Bank Of Delaware pursuant to the Cardmember Agreement and to dismiss Plaintiffs complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted this day 11/19/2012

my name

Defendant, pro'se

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing was sent to plaintiff's attorney Hayt,Hayt & Landau 7765 sw 87 ave #101-Galloway Professional Park,Miami,FL 33173 on November 19/2012.

My Name

My signed name

Edited by racecar
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Credit card agreement database search result - Consumer Financial Protection Bureau

At the election of either you or us, any claim, dispute or controversy (“Claim”) by either you or us against the other, or against

the employees, agents or assigns of the other, arising from or relating in any way to this Agreement or your Account, or any

transaction on your Account including (without limitation) Claims based on contract, tort (including intentional torts), fraud,

agency, negligence, statutory or regulatory provisions or any other source of law and (except as specifically provided in this

Agreement) Claims regarding the applicability of this arbitration clause or the validity of the entire Agreement, shall be

resolved exclusively and finally by binding arbitration under the rules and procedures of the arbitration Administrator selected

at the time the Claim is filed. The Administrator selection process is set forth below. For purposes of this provision, “you”

includes any authorized user on the Account, and any of your agents, beneficiaries or assigns; and “we” or “us” includes our

employees, parents, subsidiaries, affiliates, beneficiaries, agents and assigns, and to the extent included in a proceeding in

which Barclays is a party, its service providers and marketing partners. Claims made and remedies sought as part of a class

action, private attorney general or other representative action (hereafter all included in the term “class action”) are subject to

arbitration on an individual basis, not on a class or representative basis.

Alternatively, you and we may pursue a Claim within the jurisdiction of the Justice of the Peace Court in Delaware, or the

equivalent court in your home jurisdiction (each a “Small Claims Court”), provided that the action remains in that court, is

made on behalf of or against you only and is not made part of a class action, private attorney general action or other

representative or collective action. Further, you and we agree not to seek to enforce this arbitration provision, or otherwise

commence arbitration based on the same claims in any action brought before the Small Claims Court.

The party initiating arbitration shall utilize the American Arbitration Association, American Arbitration Association, 950 Warren Avenue, East

Providence, Rhode Island, 02914, 1-866-293-4053 to administer the arbitration (the “Administrator”). The Administrator

provides information about arbitration, its arbitration rules and procedures, fee schedule and claims forms at its web site or by

mail as set forth above. The Administrator will apply the rules and procedures in effect at the time the arbitration is filed. The

Claim will be heard before a single arbitrator, whose authority is limited exclusively to the resolution of Claims between you

and us and to providing an award effective only on behalf of you and/or us. The arbitration will not be consolidated with any

other arbitration proceedings. The Administrator shall resolve each dispute in accordance with applicable law.

If you commence arbitration, you must provide us the notice required by the Administrator’s rules and procedures. The notice

may be sent to us at Barclays Bank Delaware, P.O. Box 8801, Wilmington, DE 19899-8801. If we commence arbitration, we

will provide you notice at your last known billing address. We agree to honor your request to remove the action to a Small

Claims Court, provided that we receive the request within thirty days of the notice of commencement of arbitration. Any

arbitration hearing at which you appear will take place at a location within the federal judicial district that includes your billing

address at the time the Claim is filed. This arbitration agreement is made pursuant to a transaction involving interstate

commerce, and shall be governed by the Federal Arbitration Act, 9 U.S.C. §§ 1-16. Judgment upon any arbitration award may

be entered in any court having jurisdiction. No class actions joinder or consolidation of any Claim with a Claim of any

other person or entity shall be allowable in arbitration, without the written consent of both you and us. In the event

that there is a dispute about whether limiting arbitration of the parties' dispute to non-class proceedings is enforceable under

applicable law, then that question shall be resolved by litigation in a court rather than by the arbitrator; and to the extent it is

determined that resolution of a Claim shall proceed on a class basis, it shall so proceed in a court of competent jurisdiction

rather than in arbitration.

We will pay, or reimburse you for, all fees or costs to the extent required by law or the rules of the arbitration Administrator.Whether or not required by law or such rules, if you prevail at arbitration on any Claim against us, we will reimburse you for any

fees paid to the Administrator in connection with the arbitration proceedings. In addition, in any arbitration that you elect to file

that could be heard in Small Claims Court in your jurisdiction, we will pay the filing fees and other arbitration fees above the

cost of filing in that Small Claims Court. If you are required to advance any fees or costs to the arbitration Administrator, but

you ask us to do so in your stead, we will consider and respond to your request.

This arbitration agreement applies to all Claims now in existence or that may arise in the future except for Claims by or against

any unaffiliated third party to whom ownership of your Account may be assigned, in which case this arbitration agreement will

apply only if you or the third party chose arbitration. This arbitration agreement survives the termination of the Cardmember

Agreement or the Account relationship, including your payment in full, and your filing of bankruptcy. Nothing in this Agreement

shall be construed to prevent any party’s use of (or advancement of any claims, defenses, or offsets in) bankruptcy or

repossession, replevin, judicial foreclosure or any other prejudgment or provisional remedy relating to any collateral, security

or property interests for contractual debts now or hereafter owed by either party to the other under this Agreement.

ARBITRATION WITH RESPECT TO A CLAIM IS BINDING AND NEITHER YOU NOR WE WILL HAVE THE RIGHT TO

LITIGATE THAT CLAIM THROUGH A COURT. IN ARBITRATION YOU AND WE WILL NOT HAVE THE RIGHTS THAT ARE

PROVIDED IN COURT INCLUDING THE RIGHT TO A TRIAL BY JUDGE OR JURY AND THE RIGHT TO PARTICIPATE OR

BE REPRESENTED IN PROCEEDINGS BROUGHT BY OTHERS SUCH AS CLASS ACTIONS OR SIMILAR

PROCEEDINGS. IN ADDITION, THE RIGHT TO DISCOVERY AND THE RIGHT TO APPEAL ARE ALSO LIMITED OR

ELIMINATED BY ARBITRATION. ALL OF THESE RIGHTS ARE WAIVED AND ALL CLAIMS MUST BE RESOLVED

THROUGH ARBITRATION.

Edited by racecar
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In March 2009, Barclays was accused of violating international anti-money laundering laws. According to the NGO Global Witness, the Paris branch of Barclays held the account of Equatorial Guinean President Teodoro Obiang's son, Teodorin Obiang, even after evidence that Obiang had siphoned oil revenues from government funds emerged in 2004. According to Global Witness, Obiang purchased a Ferrari and maintains a mansion in Malibu with the funds from this account.[83]

A 2010 report by the Wall Street Journal described how Credit Suisse, Barclays, Lloyds Banking Group, and other banks were involved in helping the Alavi Foundation, Bank Melli, the Iranian government, and/or others circumvent US laws banning financial transactions with certain states. They did this by 'stripping' information out of wire transfers, thereby concealing the source of funds. Barclays settled with the government for US$298 million.[84]

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