Jump to content

Has anyone won on just Account Stated? Lawyer is telling me to consider settling.


Recommended Posts

Currently being sued on ONLY Account stated in the state of Florida.  Account is within SOL and they have provided all statements showing where I paid.  We have received their discovery and waiting on their interrogatories.  

 

My lawyer said " The proof that you had an agreement and account with them is all of the statements, payments, charges that were made, etc...  This is what they would present at trial.  My experience is that they will win on that.  Rather than letting it go to Judgment, where you would have additional fees and costs tacked on, you may want to consider entering into a stipulation for a payment plan.  Let me know, and I'll keep you posted on the rest of their discovery as I receive it."

 

What do you guys think?  Do I have any other options? Or am I going have to settle?

 

 

 

 

Link to comment
Share on other sites

Currently being sued on ONLY Account stated in the state of Florida.  Account is within SOL and they have provided all statements showing where I paid.  We have received their discovery and waiting on their interrogatories.  

 

My lawyer said " The proof that you had an agreement and account with them is all of the statements, payments, charges that were made, etc...  This is what they would present at trial.  My experience is that they will win on that.  Rather than letting it go to Judgment, where you would have additional fees and costs tacked on, you may want to consider entering into a stipulation for a payment plan.  Let me know, and I'll keep you posted on the rest of their discovery as I receive it."

 

What do you guys think?  Do I have any other options? Or am I going have to settle?

 

I beat Midland on account stated.

 

Are all of those statements authenticated? Is this a JDB (Junk Debt Buyer)? Usually an OC (original creditor) will go breach of contract which is why I ask.

Link to comment
Share on other sites

Have you ever acknowledged your obligation to Palisades by phone or in writing?

Have you agreed that a balance is correct?

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

plaintiff cannot recover unless he can show a promise in writing, signed by the defendant, to pay the same.
Where an account is made up and rendered by one person to another, he who receives it is bound to examine it, and state his objections thereto, and, if he does not object within a reasonable time, it will be treated, under ordinary circumstances, as being presumptively, by acquiescence, a stated account; the presumption of the party’s acquiescence from his silence depending in large measure for its force upon the circumstances of the case, whether the party is a man of business, considering the nature of his business and education, their local situation, customary dealings with each other, and other circumstances. What is a reasonable time within which the person to whom an account is rendered must object or become bound depends upon the relations of the parties and the usual course of business between them. The question of what is a reasonable time within which the party must object in such cases, is one of law for the court to determine in every case, dependent, however, upon the facts proved, the latter to be passed upon by the jury.

http://ftc.gov/os/comments/debtcollectroundtable2/544507-00015.pdf.
 

Link to comment
Share on other sites

Did they send an affidavit verifying the accuracy of all of those statements? Is there a bill of sale regarding the account that specifically states your name and/or account number? Standing (their right to sue you) is what is used to defeat a JDB.

Link to comment
Share on other sites

I beat Midland on account stated.

 

Are all of those statements authenticated? Is this a JDB (Junk Debt Buyer)? Usually an OC (original creditor) will go breach of contract which is why I ask.

Statements have not been authenticated, Yes this is a JDB

Link to comment
Share on other sites

JDB's are beaten in the details. None of their paperwork has any.

 

All their docs are vague, boiler plate and any doc that has your name and account number is a BS affidavit that is hearsay and lacks foundation and documentary evidence to support it making it conclusory.

 

Get a new lawyer or defend yourself. JMO

  • Like 2
Link to comment
Share on other sites

Did they send an affidavit verifying the accuracy of all of those statements? Is there a bill of sale regarding the account that specifically states your name and/or account number? Standing (their right to sue you) is what is used to defeat a JDB.

No affadavit, There is a bill of sale from the OC to the JDB but the attorney for the JDB signed the bill of sale not someone that works for the JDB, not sure if that matters and then attached to that there is a print out called Primary Applicant info with all my information on there. 

Link to comment
Share on other sites

JDB - Palisades

Get rid of that attorney, he/she obviously knows nothing about defending against a JDB.  They could have found those statements in a dumpster behind a bank.  They have shown no proof that they own the debt.  Get your focus on that instead of the statements.

Link to comment
Share on other sites

Original creditor on summons says First USA but the statements have Chase on them,  Same company?

 

Find a First USA card agreement and see what state law governs your contract. Depending on your last payment you might be able to use "choice of law" in Florida. 

 

Answer these questions and it will help others here help you. Right now people are trying to answer questions without knowing the details. 

Leave out personal information and round off all numbers.

 

1. Who is the named plaintiff in the suit?

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

3. How much are you being sued for?

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

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

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

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

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?

9. What state and county do you live in?

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

11. What is the SOL on the debt?

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

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

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.

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.

 

16.We need to know what the "charges" are. Please post what they are claiming. Common counts, account stated,breach of contract,for money received on behalf of the plaintiff, open book account,unjust enrichment.

 

17.Is the complaint "verified".? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury.

 

18.Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?

 

19. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

Link to comment
Share on other sites

Original creditor on summons says First USA but the statements have Chase on them,  Same company?

 

Chase took over First USA.  Back in 2002-03, I think.  If the debt is that old, SOL is an absolute defense.

 

Chase uses Delaware law, where the SOL is three years.  Maybe First USA does too.  But even if not, I would use Chase.  Florida has good case law on choice of law, and will agree that DE's SOL has expired, if it has.  I think the case is LWT v. Brodsky.

 

This is a winnable case, against a JDB.  Dump the lawyer who doesn't want to fight.  Either find one who does, or learn how to do this pro se here.

Link to comment
Share on other sites

Original creditor on summons says First USA but the statements have Chase on them,  Same company?

I question why 'First' is on the summons??? Why isn't it Palisades? They are an interesting bunch that likes to gamble that you don't know your rights, but I can't say anything more with the NDA in place. ;)

Link to comment
Share on other sites

I question why 'First' is on the summons??? Why isn't it Palisades? They are an interesting bunch that likes to gamble that you don't know your rights, but I can't say anything more with the NDA in place. ;-)

 

Might be similar to many NY counties, i.e., when the debt is sold to a JDB who then sues, the court clerk enters the data with both the JDB and the OC listed. Usually when you look at the file, it lists the OC as APO. This stands for As Proxy Of, basically to signify an assignment of the debt.

Link to comment
Share on other sites

I question why 'First' is on the summons??? Why isn't it Palisades? They are an interesting bunch that likes to gamble that you don't know your rights, but I can't say anything more with the NDA in place. ;-)

Actually it reads Palisades Collection, LLC as assignee of First USA

Link to comment
Share on other sites

1. Who is the named plaintiff in the suit?

 

Palisades Collection LLC as assignee of First USA

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

 

Scumbag, Scumbag, and Scumbag

3. How much are you being sued for?

 

$5,000 and change

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

 

First USA/ CHASE

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

 

Served Summons

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

 

In person

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

 

YES

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

 

Sent two letters of verification prior to being sued

9. What state and county do you live in?

 

Hillsborough County, FL

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

 

Est Oct 2011

11. What is the SOL on the debt?

 

Florida - 4 yrs

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

 

Waiting on on plaintiff to answer interogatorries

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

 

Yes

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.

 

Yes

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.

 

Already responded

 

16.We need to know what the "charges" are. Please post what they are claiming. Common counts, account stated,breach of contract,for money received on behalf of the plaintiff, open book account,unjust enrichment.

 

Account Stated

 

17.Is the complaint "verified".? A verified complaint is one in which the last page it has a declaration from someone stating that the information and allegations are true and correct under penalty of perjury. 

 

No

 

18.Did you receive discovery or interrogatory or Admissions (questionnaire) regarding the lawsuit?

 

Yes

 

19. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

Statements from the OC

A few check of payment

Bill of Sale

Link to comment
Share on other sites

A bill of sale, probably redacted, showing they purchased a bunch of accounts in a bundle. Maybe a separate letter saying yours was in this bundle. And, of course, a printout with your name on it, your details, plus account details. Probably some statements included as well. Sounds like the typical JDB bs they send to make you think they can prove their case. It's not enough.

Link to comment
Share on other sites

Did you respond to the discovery and have you sent out any of your own?

 

Does the bill of sale refer to a larger document "to which the bill of sale is an exhibit"? If they want the bill of sale, they need the COMPLETE document which they will never give you because it states that there is no guarantee that the account information is correct.

 

Has your "lawyer" sent any discovery?

Link to comment
Share on other sites

Did you respond to the discovery and have you sent out any of your own?

 

Does the bill of sale refer to a larger document "to which the bill of sale is an exhibit"? If they want the bill of sale, they need the COMPLETE document which they will never give you because it states that there is no guarantee that the account information is correct.

 

Has your "lawyer" sent any discovery?

Yes, we responded to discovery and sent our own and they sent discovery back.  

 

Bill of sale states: This Bill of Sale is executed without recourse except as stated in the Credit Card Account Purchase Agreement to which this is an exhibit.

Link to comment
Share on other sites

I just read this on a site,  Do you think it will help my case?

Chase Halts Sales of Credit Card Debt to Debt Buyers Posted on 02 July 2013 

Based on our experience in defending credit card lawsuits, Chase Bank (now known as JP Morgan Chase) has all but stopped filing credit card lawsuits here in Florida.  However, recent reporting indicates that Chase Bank has now stopped selling its portfolios of credit card debt to debt buyers.  Selling such credit card debts by original creditors to debt buyers is a huge business in this country: debt buyers purchase these “portfolios” of charged-off credit cards for pennies on the dollar and squeeze consumers to try to get them to pay the full amount charged off (or more).  You can click here for an article that describes the difference between original creditors and debt buyers as it relates to Florida credit card lawsuits.

The news story in the American Banker notes that Chase Bank has virtually stopped selling credit card debt because it is concerned over an expected government crackdown over its credit card debt collection practices.  For example, I have already written about a lawsuit filed by the California Attorney General against Chase over its use of procedural shortcuts and illegal “robo-signing” in its credit card lawsuits.  This also affects credit card lawsuits filed by debt buyers who bought accounts from Chase and have now filed lawsuits over the credit card debt.  However, we still occasionally see such lawsuits, such as the  one we just successfully defended against Midland Funding LLC who had bought the credit card account from Chase Bank USA, N.A.

Here’s what it means to you: if you have been sued by Chase Bank, or by any debt buyer who bought the credit card account from Chase Bank, there are additional potential defenses that we can assert for you in defending your credit card lawsuit.

Link to comment
Share on other sites

Yes, we responded to discovery and sent our own and they sent discovery back.  

 

Bill of sale states: This Bill of Sale is executed without recourse except as stated in the Credit Card Account Purchase Agreement to which this is an exhibit.

 

There you go. Did your lawyer ask for that "Credit Card Account Purchase Agreement"? They sent you an exhibit to a larger document. You are entitled to see that exhibit in the context of the COMPLETE, larger document.

 

And if none of the statements or that ridiculous spreadsheet are not referenced and labeled as an exhibit in an affidavit they are not admissible as evidence if properly objected to. That would be required to authenticate them.

 

Sooo, they really have no evidence at all, do they?

 

Is your lawyer your cousin Vinny?

Link to comment
Share on other sites

There you go. Did your lawyer ask for that "Credit Card Account Purchase Agreement"? They sent you an exhibit to a larger document. You are entitled to see that exhibit in the context of the COMPLETE, larger document.

 

And if none of the statements or that ridiculous spreadsheet are not referenced and labeled as an exhibit in an affidavit they are not admissible as evidence if properly objected to. That would be required to authenticate them.

 

Sooo, they really have no evidence at all, do they?

 

Is you lawyer your cousin Vinny?

Yea I'm starting to second guess my attorney.  He did not ask for this documentation during discovery, hope I didn't get screwed.  

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.