Didn't you get the Memo??

[My~Cuz~n~Vinny~]

Vinny sent a credit card agreement to a Big bank that was agreed to between parties. Vinny's agreement was ......... if the big bank could not get Vinny a 3.5% interest rate within 3 years then Vinny would not be responsible for any balances still remaining by the third year. As long as Vinny made no late payments the agreement stands.

Plaintiff says they have no such agreement. Defendant says he sent the agreement terms with the very first payment, and that since the big bank accepted those payments they agreed to be bound by the terms of the agreement and contract thereof. Of course Vinny can produce a generic agreement with those terms that were agreed to. Vinny can show the interest rate never made it to 3.5%.Vinny can show there were never any late payments.

What agreement did you make with the Original Creditor?

[racecar]

Vinny how was this agreed to between the parties.

[BV80]

Are you serious?

[Seadragon]

I hope this is for real. Goose and gander your honor, goose and gander.

The proof is in the aquiescence though. they can show you made payments under their terms. and your terms may not have become binding by them accepting payment. However I think they will cave when it is all said and done because they don't want to pour alot of money into this one thing.

Funny if you stuck it to them.

[My~Cuz~n~Vinny~]

racecar ... how was this agreed to between the parties.

The terms were stipulated in the agreement when a verbal application was discussed over the phone. They agreed and the contract was sent with the first payment. They held the account at 7.4% for three years and there was never a late payments according to their alleged account as stated.

[My~Cuz~n~Vinny~]

BV80....Are you serious?

Sure (wink wink nod nod nudge nudge) Because of an earlier account that was paid never late and closed by the defendant,the big bank agreed to Vinny's terms. Vinny can produce this agreement!

[BTO429]

Their attorneys will tear it apart. They will say whom ever got the contract was not authorized to make such an agreement. And verbal at that,,,those are even harder to prove.

Three factors to prove an oral contract

Witnesses

If other parties were present during the time the two primary parties made an oral agreement, and are willing to testify, then this can be one way to prove the existence of this verbal contract. These other parties must be able to prove in their testimony that they heard the terms of the agreement.

course of conduct

The course of conduct refers to the proven and accepted history that has transpired between two parties, which allegedly made a verbal contract. This you could argue since you did send them a contract, and implied agreement could be argued.

credibility of the parties

The credibility of the party can also be established or questioned in court. This isn’t the same thing as witness credibility or character credibility. It’s more a matter of proving that an individual action or statement was credible or incredible. If a person walks inside a restaurant and orders food then it’s understood that a binding oral contract is made. Claiming that one thought the food was free (if not explicitly stated) and refusing to pay for the service would be an incredible incident, and unlikely to hold up in court.

Without these three major factors, proving that an oral contract was agreed upon can be difficult. If you make an oral contract with a stranger in business dealings then one of the two parties could easily deny ever agreeing to an oral contract or claim that such an agreement was not made in good faith. (Such as a “Yeah, sure” kind of brush off, not meant to be taken seriously) This is why credibility, course of conduct or witness testimony must be considered in most court cases involving contract disputes.

An oral contract is just as strong as a written contract, IF YOU CAN PROVE ITS EXISTENCE. If sufficient evidence can be established that the parties orally entered into a contract, the terms of that contract will be enforced. If the proof is strong, then an oral contract is just as binding as a written one. The question at hand lies with the sufficiency of that oral evidence. This will be your biggest hurdle.

Edited November 22, 2012 by BTO429

[My~Cuz~n~Vinny~]

Mr. Seadragon....The proof is in the acquiescence though. they can show you made payments under their terms.

They sent no terms. They say they sent no agreement and they don't need an agreement. But they also say they sent one with no specific date.And in their request for Admits they crossed out the admit that states this exhibit B is a true and correct copy of the agreement.....plus they provided no exhibit B.

So they are all over the place on their alleged agreement of terms. I wonder if the judge would say whats good for the goose is good for the gander aye?

[My~Cuz~n~Vinny~]

BTO...Witnesses

Plaintiff claims no witness to any opening of a open verbal contract.

course of conduct

The course of conduct refers to the proven and accepted history that has transpired between two parties, which allegedly made a verbal contract.

Whole alleged account Stated shows perfect payment record between parties.Prior dealings show another perfect payment record from a prior credit card between parties.

credibility of the parties

Big bank has sent multiple credit card offers to defendant. Defendant made counter offer.Plaintiff accepted because of prior dealings with defendant with their credit card bank.

[BV80]

I'm thinking this isn't going to fly with a judge.

I'm assuming this is a credit card. You are the consumer who wanted to use a credit card. You wanted the bank to pay merchants for products you purchased. That bank is providing a service to you. You provide no service to them. Paying back money you've borrowed is not a service.

The consumer doesn't get to tell the bank that provides the money how much interest the bank can charge for the bank's services. If that were legal, consumers all over this country would be sending their own written agreements to cc companies dictating the interest rate and other terms.

Because of an earlier account that was paid never late and closed by the defendant,the big bank agreed to Vinny's terms. Vinny can produce this agreement!

Does your state have a law that says a consumer can create an agreement by which a bank must abide? Is there such a federal law? Unless your state laws or federal law allow you to dictate terms to the bank by which the bank must abide, it doesn't matter that you can produce the agreement that you wrote because it would not be founded on law.

The terms in the cc agreement provided by the bank are founded on law. If they are a state bank, the terms must follow the laws of your state. If they are a national bank, the terms are based upon the National Bank Act.

I'm not saying you don't have some sort of defense against the cc company, but this argument isn't it.

Edited November 22, 2012 by BV80

[BrunoTheJDBkiller]

I think he may have gotten this from me, I was taking a non~evidentiary position argument to show the court that my BS is just as good as theirs. They often use the excuse that you received the cardholder agreement because the post office did not return it undeliverable. They have no absolute proof, therefore, that you agreed to the terms of an agreement you may never have received, especially when you are dealing with an unsolicited credit card. I took a major bank's agreement and modified it a bit, it says the laws of Saudi Arabia apply, that payments are not required, and that suit could not be brought for a default. The post office did not return it as undeliverable, so they must have received it. The terms state that failure to close the account upon receipt of the agreement constitutes acceptance of the terms therein. If they balk, I would raise the issue of what constitutes an agreement rather than a dictatorial declaration. They call these things agreements. That means both parties agreed to the terms, not just one. Therefore, both parties should have equal opportunity to present their own agreement to the other side for evaluation. They like to claim you agreed to their terms, why can't you do the same thing? Now of course this may get a laugh from the right judge, but you have to make sure you aren't presenting this as a real issue, it is just intended to make a point.

Vincenzo needs to pay more attention to his mentor, otherwise Fedex will be delivering the styrofoam box packed with dry ice, inside of which will be Bruno's "TNT / ball bearing Spumoni Surprise" dessert. You'll get a real bang out of it.

[My~Cuz~n~Vinny~]

xdancexI was taking a non~evidentiary position argument to show the court that my BS is just as good as theirs.

[lheart]

There is a big problem with this theory.

You start out with the assumption that the agreement was accepted because the payment was accepted. There is already a legal agreement in place defining the relationship. There would be no need to accept the new agreement to accept the payment.

They could reject the new agreement by ignoring it. Since Vinny received no acknowledgement of the new agreement, there is no "offer and acceptance" to make the new agreement binding.

Since a written agreement cannot by law be modified by oral modifications, a written form of acceptance by an authorized agent would be required, to modify or replace the original agreement.

Vinny could bring the Pope as a witness that he sent the agreement along with the payment and lose if he cannot show who accepted the agreement from the bank.