Account Stated Florida

[Osprey13]

I've been reading the forum for hours and now I can't find where I read something.  Maybe someone can answer this?

 

For a complaint of account stated (by JDB on CC within SOL) there would have to be a CC statement showing a zero balance (meaning the account had been closed / sold off?).

 

The attorney for JDB sent a CC statement prior to the account being sold off, so there is a balance.  No personal transactions on the statement; just the late fees, interest, etc etc.

[BV80]

I've been reading the forum for hours and now I can't find where I read something.  Maybe someone can answer this?

 

For a complaint of account stated (by JDB on CC within SOL) there would have to be a CC statement showing a zero balance (meaning the account had been closed / sold off?).

 

The attorney for JDB sent a CC statement prior to the account being sold off, so there is a balance.  No personal transactions on the statement; just the late fees, interest, etc etc.

 

When a cc account is charged off, there is still a balance.  When an OC sells an account to a JDB, I don't know of an OC that issues a cc statement that shows a -0- balance.  However, the OC will show a -0- balance your credit report when they've sold the account.

[racecar]

Read this case

http://www.nclc.org/index.php?option=com_googlesearch_cse&n=30&cx=012730133695007092537%3Af0aqrzhgfnw&cof=FORID%3A11&ie=UTF-8&q=moehrlin&sa=Search&hl=en&safe=active&cr=countryUS

http://www.nclc.org/unreported-decisions.html Look here for florida cases.

[racecar]

“Account stated claim involves agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.” South Motor Co. of Dade County v. Accountable Const. Co., 707 So.2d 909 (Fla. App. 3 Dist. 1998)

“”Account stated” is agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.”
Nants v. F.D.I.C., 864 F.Supp. 1211 (S.D.Fla. 1994)


“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)

 

 SEE PATRICIA FARLEY v CHASE BANK, U.S.A., N.A.

 

http://scholar.google.com/scholar_case?case=1033531272883273502&q=PATRICIA+FARLEY+v+CHASE+BANK,+U.S.A.,+N.A.&hl=en&as_sdt=4,10

 

http://douglasfirm.com/quick-answers-on-florida-law-account-stated/

[Osprey13]

Thanks, Racecar.  I've been reading and attempting to absborb all this information.  I don't know if I'm overthinking everything or what, but much of what I read would makes a case of OC vs debtor hard to argue.

 

However, this is JDB, not OC.  My question would be, since the JDB has purchased the alleged account, do all the rules that would apply to the OC now apply to the JDB?  Obviously there was no prior dealings or agreements with the JDB.

 

Of course there is still the issue of them having to prove standing; without that there's no having to worry about account stated or money lent. I got wrapped up in account stated.

[racecar]

If they can prove a good chain of title they would be just like the original creditor. But we know that hardly ever happens.

If they cant prove standing case over.

Fla. Rules of

Civ. Pro. 1.130, states in part-

(a) Instruments Attached.. --All bonds, notes, bills of exchange, contracts, accounts, or

documents upon which action may be brought or defense made, or a copy thereof or a

copy of the portions thereof material to the pleadings, shall be incorporated in or

attached to the pleading.

 

If you read the MOEHRLIN vs LVNV FUNDING LLC she did not even show up for court and won.

Study the rules of civil procedure read cases from florida.

[debtzapper]

FORM 1.933. ACCOUNT STATED

COMPLAINT

Plaintiff, A. B., sues defendant, C. D., and alleges:

1. This is an action for damages that (insert jurisdictional amount).

2. Before the institution of this action plaintiff and defendant had 

business transactions between them and on .....(date)....., they agreed to the 

resulting balance.

3. Plaintiff rendered a statement of it to defendant, a copy being 

attached, and defendant did not object to the statement.

4. Defendant owes plaintiff $.......... that is due with interest since 

.....(date)....., on the account.

WHEREFORE plaintiff demands judgment for damages against defendant.

NOTE: A copy of the account showing items, time of accrual of each, and 

amount of each must be attached.

[Osprey13]

@ Racecar

RE:  Fla. Rules of Civ. Pro. 1.130, states in part-

 

 What is the difference of that and this:

 

Fla.Sm.CI.R. 7.050(a) provides that a case shall be commenced by filing a

Statement of Claim. -Actions are commenced by the filing of a

statement of claim in concise form, which shall inform the Defendant

of the basis and the amount of the claim. If the claim is based on a

written document, a copy or the material part thereof shall be attached

to the statement of claim.

 

Doesn’t it state basically the same thing??

 

 

In my reading and searching, I also found the following, but can't find the court document or anything else on this:

 

 

Failure to establish ownership of the debt deprives the debt buyer of standing to sue.

In Unifund CCR Partners v. Cavender, 14 Fla. L. Weekly Supp. 975b (Fla. County Court, Orange County July 20, 2007), the court held :

 

The Court has reviewed the documents presented by the Plaintiff, Bill of Sale and the Assignment, and finds that they fail to sufficiently identify the accounts that were assigned or sold to the Plaintiff. Neither the Bill of Sale nor the Assignment indicate the account numbers or names of account holders. They do not provide any information that would allow the Court to determine if the alleged account of Defendant was one of the accounts sold or assigned to the Plaintiff.

 

Without any indicia of ownership that would sufficiently identify the true owner of the account at the time that Plaintiff filed this action, the Plaintiff is unable to prove that it had standing to bring the action. An assignment is the basis of the Plaintiff's standing to invoke the processes of the Court in the first place and is therefore an essential element of proof. Progressive Express Ins. Co. v. McGrath Community Chiropractic, 913 So. 2d 1281, 1285 (Fla. 2nd DCA 2005); Oglesby v. State Farm Mutual Automobile Ins. Co., 781 So. 2d 469 (Fla. 5th DCA 2001). “Only the insured or medical provider ‘owns' the cause of action against the insurer at any one time.” Id. at 470.

[BV80]

@Osprey13

 

The description of Form 1.933 provided by Debtzapper indicates the JDB has to provide a cc statement that shows charges.  The cc statement provided with the complaint did not comply with that form. 

 

But, I don't know if that's enough to get the case dismissed.  Have you made discovery requests yet?

 

The case law you provided is a great example of what's needed to establish standing to sue. 

[debtzapper]

Here are some similar cases to the "Cavender" case you cited.

 

http://discoverytactics.wordpress.com/2012/06/29/cases-with-interesting-arguments/

[Osprey13]

@ Racecar

This is in small claims court, so no request for discovery as of yet.  Have pre-trial conference soon.

 

@ debtzapper

Thanks for the link. 

 

I'm preparing myself with as much information possible.  I prefer going to pre-trial having a bit of understanding under my belt!

 

In reading Fla. Rules of Civ. Pro. 1.130 (a) it states (in part)

The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.

 

My specific question today is not re: what is NOT attached (All bonds, notes, bills of exchange ..etc etc) but the fact that the JDB attached a CC statement showing late fees, interest rates, yadda yadda, but what IS attached.

 

Exhibit A:  the "bill of sale"

 

Also attached:  a CC statement that only shows late fee / interest / etc.  This is NOT listed as an exhibit.

 

The complaint reads (not exact of course - and this is from memory; I don't have a copy with me at the moment):

"or on about mm/dd/yy CC was opened"  and "on or about mm/dd/yy payment (or partial payment) was made. 

(Basic information one can get from a credit report)

 

Would that attached CC statement be a violation of 1.130 since it's not a mentioned exhibit and could be considered unnecessary document?

 

Also, isn't this statement a conflict of what's stated in the complaint (that statement does not show payment as described in complaint).

[racecar]

http://webcache.googleusercontent.com/search?q=cache:wc-oDiXg-n4J:media.wix.com/ugd/7c3211_eeb12617a847c8aeaf57e8f53d8926e7.doc+&cd=4&hl=en&ct=clnk&gl=us has some good case law in it might help you

http://webcache.googleusercontent.com/search?q=cache:Q3dzBMuU5KQJ:www.floridabar.org/TFB/TFBResources.nsf/0/5E3D51AF15EE8DCD85256B29004BFA62/%24FILE/Small%2520Claims.pdf+&cd=1&hl=en&ct=clnk&gl=us

http://www.flcourts.org/gen_public/family/self_help/smallclaims.shtml

[BV80]

@Osprey13

 

I don't think the cc statement could be considered unnecessary because they probably attached it as proof of the amount of the balance they claimed in the complaint.

[Osprey13]

@ Racecar - thanks for the links!  Lot's of good information.

 

@ BV80 -

Oh, well.  I knew I was stretching it a bit, but thought I would ask.

I still have other things to go with, but was trying to stack up as much as I could (in the event of needing it).