Could my "Breach of Contract" case turn into an Account Stated?

[IdWrknGrl]

According to the complaint, I'm only being sued for Breach of Contract.  However, during the last few hearings, I've been hearing the appearance lawyer argue account stated theory. 

 

Is there any way to address this and bring things back around to a breach of contract suit?  Since they've only provided me a generic agreement from 4 years after the charges were made and interest rates/fees that don't match, I'm not too concerned about the breach of contract part. 

[HotWheels96]

Could you object and ask the judge to demand the plaintiff explain why they are arguing a cause of action not stated in the complaint?

[IdWrknGrl]

I've tried that twice, but the appearance attorney (a notorious local dim-wit) keeps arguing it as an account stated case.

[BV80]

I would argue that the complaint states that this is a breach of contract claim.

 

But, it might also depend upon the allegations in the complaint.  If the allegations state facts that suggest an account stated, perhaps that claim could be construed from the allegations.  

[HotWheels96]

I find that very interesting, because while the bottom-wrung attorney is spinning their wheels arguing up a COA that they are not suing on, they are overlooking what their actual COA is. Seems to me that this is a very stupid plan on their part, because what happens when you get to the end of the trial, and they have failed to properly prove their case?

 

The two COA's likely have entirely different requirements to prove their complaint. In fact, I believe they are actually the opposite of each other. Where breach of contract is w(I think this is how it is in my state, and I'm certain you have already checked into your state's requirements.

 

What does the judge say? Does the attorney say anything about your objections?

[IdWrknGrl]

Here is the exact wording of the complaint:

 

I- That defendant at all times pertinent hereto was a resident of the County of XXX, State of Idaho

 

II- That the Plaintiff is the owner of an account ending in XXXX owed by the Defendant, which principal account

balance currently totals $XXXXX with interest at the highest legal rate from and after the filing date of the complaint, with interest continuing to accrue at this rate until the date of judgement.

 

III- That said account was due and payable within thirty (30) days after receipt of a statement of account.

 

IV- That Defendant is in breach of said account Agreement by reason of their failure to make all required monthly payments in a timely fashion.  As a result of such breach, Plaintiff has declared the entire amount due and payable in full.

 

V- That the Plaintiff, by reason of Defendant's failure to pay the account above stated, has been required to retain the services of councel and has retained scum-bag lawyer at bottom-feeding debt collection company......goes on to request attorney's fees. 

 

The End. 

[HotWheels96]

I'm concerned about this now. A "statement of account" is an element of an account stated.

 

 

?????

[IdWrknGrl]

I don't think that's what they meant in the complaint.  Besides, the COA online is Breach of Contract only....

[HotWheels96]

Here's why I wonder:

"That said account was due and payable within thirty (30) days after receipt of a statement of account."

A statement of account, from what I've been reading is the statement that they claim you agreed to by failing to object within a certain period of time, in this case, thirty days. They are basically stating that you received the end statement and didn't say you objected to it, thereby you acknowledge it as valid because you didn't complain.

I may be reading it wrong, but it seems to go with other AS claims. Now, you said they only list breach of contract, but they are clearly arguing AS, both in the listed complaint and in their in court hearings. I would think those things add up to they meant to file as an AS, but goofed and filed for breach. But, I could be wrong.

[racecar]

Account Stated

An account stated is an agreed balance between the parties.It may be “defined,

broadly, as an agreement, express or implied, between the parties to an account based upon prior

transactions between them, with respect to the correctness of the separate items composing the

account, and the balance, if any, in favor of the one or the other.”

As a general rule where an account is made up and rendered, he who receives it is

bound to examine the same or to procure someone to examine it for him. If he

admits it to be correct it becomes a stated account and is binding on both parties.

If instead of an express admission of the correctness of the account, the party

receiving it keeps the same by him and makes no objection within a reasonable

time, his silence will be construed into an acquiescence in its justness, and he will

be bound by it as if it were a stated account. An account stated is conclusive upon

the parties unless fraud, mistake, or other equitable considerations are shown which make it improper to be enforced.

A mere statement of a balance due including a monthly credit card account statement, if

accepted, is enough to constitute an account stated. An account stated arose “between the

issuer of a credit card and cardholders when the issuer sent monthly statements of account

transactions to cardholders and no objections were made. Once accepted, the statement

becomes a new contract.

It is well settled that a claim for an account stated is independent of the original

obligation. By its submission of un refuted evidence of having mailed statements

of account to defendant, which statements were retained without objection for a

reasonable period of time, plaintiff established its entitlement to summary

judgment on its claim for an account stated.

[racecar]

That Defendant is in "breach of said account" Agreement by reason of their failure to make all required monthly payments in a timely fashion. As a result of such breach, Plaintiff has declared the entire amount due and payable in full.

Could this be an OPEN ACCOUNT

A book account may furnish the basis for an action on a common count when it contains a statement of the debits and credits of the transactions involved completely enough to supply evidence from which it can be reasonably determined what amount is due to the claimant. ” A book account is described as ‘open’ when the debtor has made some payment on the account, leaving a balance due.”

The common count is a general pleading which seeks recovery of money without specifying the nature of the claim. Because of the uninformative character of the complaint, it has been held that the typical answer, a general denial, is sufficient to raise almost any kind of defense.

[HotWheels96]

Racecar, based on your reading of the OP's listed complaint from CACH, what COA do they seem to be stating?!

I just find it worrisome that they worded it the way they did, and are arguing an account stated claim during the OP's hearings. I'd hate for the OP to miss out on any possible avenues to defeat this plaintiff. Even if it may be an ace in the pocket to be used at a letter date somehow, we both know that every little defense, every little argument we can use to derail the plaintiff's claim should be utilized.

[racecar]

common count is a general pleading which seeks recovery of money without specifying the nature of the claim

[BTO429]

When there is an express contract for a stipulated amount and mode of compensation for services, the plaintiff cannot abandon the contract and resort to an action for a quantum meruit on an implied assumpsit(account stated).

 

Andrews v. Allen

The count upon an account stated, is supported by evidence of an acknowledgment on the part of the defendant of money due to the plaintiff, upon an account between them. But the sum must have been stated between the parties; it is not sufficient that the balance may be deduced from partnership books.

 

Bartlet v. Emery,
It is unnecessary to prove the items of which the account consists; it is sufficient to prove some existing antecedent debt or demand between the parties respecting which an account was stated, and that a balance was struck and agreed upon

 

Scott v. Cushman & Wakefield of Ga., Inc
The doctrine of privity of contract requires that only parties to a contract may bring suit to enforce it.

 

Nyankojo v. North Star Capital Acquisition,

“A party may assign to another a contractual right to collect payment, including the right to sue to enforce the right.   But an assignment must be in writing in order for the contractual right to be enforceable by the assignee.” Further, the writing “must identify the assignor and assignee.
 

Motive Parts Co. of America, Inc. v. Robinson, 53 Ill.App.3d 935, 940, 369 N.E.2d 119 (1st Dist. 1977).
Both the basic agreement and rendition of account must be proved. “[T]he rule that an account rendered and not objected to within a reasonable time is to be regarded as correct assumes that there was an original indebtedness, but there can be no liability on an account stated if no liability in fact exists, and the mere presentation of a claim, although not objected to, cannot of itself create liability.
 

An "account stated" is a balance struck between the parties on a settlement; and where a plaintiff is able to show that the mutual dealings which have occurred between the parties have been adjusted, settled, and a balance struck, the law implies a promise to pay that balance.

 

Midwest Psychological Center v. Indiana, 959 NE 2d 896 (Ind. Ct. App. 2011)

Everyone has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent.

 

These cases may not be from your jurisdiction and binding on your court, they are merely posted to give you an idea how an account stated claim works and may be challenged.

 

Here is the exact wording of the complaint:

 

I- That defendant at all times pertinent hereto was a resident of the County of XXX, State of Idaho

 

II- That the Plaintiff is the owner of an account ending in XXXX owed by the Defendant, which principal account

balance currently totals $XXXXX with interest at the highest legal rate from and after the filing date of the complaint, with interest continuing to accrue at this rate until the date of judgement. You need to make them prove this statement, if they cannot prove they own the debt they have no standing to sue, ask for the bill of sale, ask for the rights of assignment, If the bill of sale does not mention your name and the debt specifically they have no proof they own it.

 

III- That said account was due and payable within thirty (30) days after receipt of a statement of account.

 

IV- That Defendant is in breach of said account Agreement by reason of their failure to make all required monthly payments in a timely fashion.  As a result of such breach, Plaintiff has declared the entire amount due and payable in full. Make them produce the contract the contract governs.

 

V- That the Plaintiff, by reason of Defendant's failure to pay the account above stated, has been required to retain the services of councel and has retained scum-bag lawyer at bottom-feeding debt collection company......goes on to request attorney's fees. 

 

The End. 

You also need to bring up the fact that account stated was not in the original complaint, the original complaint only mentioned breach of contract.....since they claim you breached a contract they need to produce the contract that you signed. This may prompt them to ask for leave from court to amend the complaint, but you can argue this: Plaintiff have had plenty of time to file the case and make their complaints,,once breech of contract has been complained of, a person can not abandon the contract for a more lucrative judgment under a quasi contractual theory such as account stated,, an account stated also implies that an amount has been agreed upon at some time, this has not happened, there has been no amount agreed upon.

 

First and fore most you need to make them prove that they own the debt. Attack "standing to sue" if you do not know what this is let us know and we will educate  you, that is what most of us are here for....

 

You need to send them interogs and discovery.

[BV80]

@BTO429

 

When there is an express contract for a stipulated amount and mode of compensation for services, the plaintiff cannot abandon the contract and resort to an action for a quantum meruit on an implied assumpsit(account stated).

 

A credit card account is never based on a stipulated amount.

 

 

 

 

You also need to bring up the fact that account stated was not in the original complaint, the original complaint only mentioned breach of contract.....since they claim you breached a contract they need to produce the contract that you signed.

 

 

That is not true.

[BV80]

@IdWrknGrl

 

 

[T]he only issues considered on summary judgment are those raised by the pleadings.  Vanvooren v. Astin, 141 Idaho 440, 444, 111 P.3d 125, 129 (2005).

 

Here's a link to the case.  "Cause of action" is highlighted. 

 

http://scholar.google.com/scholar_case?case=14339925413476827593&q=%22cause+of+action%22+AND+inferred+AND+allegations+AND+%22complaint+did+not%22&hl=en&as_sdt=4,13

[BTO429]

In complaint number IV- the plaintiff claims That Defendant is in breach of said account Agreement,,, this is what i am talking about,,, since they state you breached an agreement they have to produce the agreement,,,,it may be implied that you agreed, but how will the court know what the agreement was if it is not produced? 

[BV80]

@BTO429

 

I was referring to your claim that the plaintiff must produce a signed contract.