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I want to discuss possible defenses to account stated countrywide

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I am doing more research into defenses against account stated causes of action;

 

Some I am thinking of;

 

1. That it can be equally implied that failure to make a payment can be evidence that a billing statement was NOT sent to a party.

2. That an account stated that is implied by failure to dispute a billing statement is a non written contract and subject to the 2 year SOL in CA. and the shorter time in other states.

3. That the FCBA does not state that failure to dispute implies ascent to the billing amount.

4. That objecting to billing statements after recieving them in discovery constitutes a written dispute if it is alleged in the answer that you denied the claim that billing statements were sent to you.

5. That the shorter 2 year time would mean there is no duty to pay a debt a third paty alleges after a failure to dispute

6. that suing on an account stated theory after the two years SOL would constitute a FDCPA or state equivalent.

7. That just because a billing statement is addressed to someone does not mean that the addressee is a party or the debtor for a particular account. Billing statements lack significant identifying information. Also we need to look into how the billing statements are made what process and data are combined to make a statement.

8. That the use of discovery sanctions will be helpful in any suit, as pro pers cannot get legal fees the court would have to entertain exclusion of evidence in certain areas.

9. show that the account stated is not valid in credit card cases.

10. Show that credit card transactions are not accounts for purposes of but an extension of contractual conduct by the parties.

 

and we must refute stuff like this:  

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The effect of an account stated is that [t]he amount or balance so agreed upon constitutes a new and independent cause of action, superseding and merging the antecedent causes of action represented by the particular items. It is a liquidated debt, as binding as if evidenced by a note, bill or bond. Though there may be no express promise to pay, yet from the very fact of stating the account the law raises a promise as obligatory as if expressed in writing, to which the same legal incidents attach as if a note or bill were given for the balance.
 
Telebase Systems, Inc. v. Gateway Comm'ns, Inc., 1988 WL 21845 at *3 (E.D. Pa. March 2, 1988) (quoting 1 Am. Jur. 2d Accounts and Accounting § 21 at 396-97 (1962)).

 

 
Focusing on the description of an "account stated" as a "new and independent cause of action," defendants argue that only Pennsylvania's default six-year statute of limitations can apply because no other relevant provision covers an action for "account stated". Def.'s S.J. Mem. at 7-11. But an action for "account stated" still sounds in contract just like an action for quasi-contract or unjust enrichment, and is no more "independent" from contract actions generally than a negligence action is independent of tort actions generally. The only thing that this "account stated" cause of action is "new and independent" from is the specific contract action(s) one could bring on the underlying transactions.
 
Moreover, an "account stated" is just a variety of contract. It is an agreement between debtors and creditors. The parties agree to a consolidated statement of debt, give up their right to bring suit on any of the underlying debts, and create a duty to pay. Restatement (Second) of Contracts § 282 (1981); Restatement of Contracts § 422(1) (1932). The "account stated" is "a debt as a matter of contract implied by law. It is to be considered as one debt, and a recovery may be had upon it without regard to the items which compose it." 29 Williston on Contracts § 73:58 (2007). Pennsylvania law provides a four-year statute of limitations for "contracts implied in law." 42 Pa. Cons. Stat. Ann. § 5525(a)(4). Therefore, whether the underlying action on Richburg's debt is described as an "account stated" or a contract for the sale of goods, it is only subject to Pennsylvania's four-year statute of limitations.
 
Richburg v. Palisades Collection LLC, No 07-7 (ED Pa. 2008)

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ments of the FCBA 15 U.S.C. §1666 §§1643(B).

“Section 1643(B) of the Fair Credit Billing Act, 15 U.S.C. § 1666, places the burden of proving that any disputed use made of a credit card was authorized upon the card issuer. As appellee alleged that the card issuer assigned the account to it, the burden of proof would fall on appellee. In Danner v. Discover Bank, 99 Ark. App. 71, 257 S.W.3d 113 (2007), the proof submitted by the card issuer in a suit to collect on an unpaid credit-card account consisted of an affidavit verifying records that the account had been opened as a result of a telemarketing sale, evidence that the person who applied for the card provided appellant's name and address, billing statements purporting to reflect the debt owed, and evidence that appellant had previously made some payments on the account. This court held that the issuer had failed to prove that the disputed charges were authorized and reversed a judgment in favor of the issuer. Danner, 99 Ark. App. at 72, 257 S.W.3d at 115” Harp v. SECURITY CREDIT SERVICES, LLC, 2013 Ark. App. 202 - Ark: Court of Appeals, 1st Div. 2013

In the instant case as in the cited case, plaintiffs rely on no admissible evidence that billing statements were in fact sent to defendant, a point that defendant has denied, nor do they show with any evidence that charges alleged by Plaintiff were authorized. Without specific communications between parties, no account can be settled and rendered an account stated without written confirmation by the alleged debtor that the account is correct and his ascent to the formation of a new and different agreement or can it survive a sworn denial as Plaintiff has not shown admissible evidence of the submission of an account to defendant for settlement.

The plaintiff cannot show that an account was stated when their alleged proofs show not a final amount but show a minimum payment due which does not appear to be an account stated, but regular activity regarding the normal course of events. Finally, Plaintiffs lack the proof that the alleged assignor rendered any account stated accounts to Plaintiffs. Plaintiff’s labor under this theory which has been denied by Defendants. This court has authority to render judgment for Defendants when they fail even the basic proofs of their allegations.

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