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Next step after response to request for production??

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I was recently sued by FIA Card Services for credit card debt.  The Cause of Action/Common counts alleged a debt owed within the past four years, "because an account was stated in writing by and between plaintiff and defendent in which it was agreed that defendent was indebted to plaintiff."  The common counts also states that defendent owes plaintiff "for money lent by plaintiff to defendent at defendent's request" and "for money paid, laid out, and expended to or for defendent at defendent's special insistence and request."


I responded with an Answer, a request for validation, and a request for production of documents.  I specifically asked for a copy of the original signed application and the executed contract that spells out the terms agreed upon.  I also asked for a copy of any modifications to that agreement, a copy of all statements from the account, details about all charges, and evidence of all payments received (six total demands). 


The attorneys responded with the validation, and I just received the response to the req for production.  First, they objected to all of the demands, saying they are "overbroad and unduly burdensome."  They also called many of the demands "vague and ambiguous."  In response to the demand for a copy of the original signed application, they said they are not required to keep that information as per Regulation Z.  They also said they cannot comply with the demand because the account application is no longer available.  In response to the demand for a copy of the executed contract that spells out the terms, they objected, saying they did not sue on a formal breach of contract but on common counts.  They also objected saying that the defendent is already in possession of the requested information (which is not the case).  But they claim to comply by producing the account agreement, ammended account agreement and monthly account statements.  However, they say that there is no requirement that the defendent signed the account agreement.  Their argument is that "defendent's own voluntary action of using the credit extended" bounds defendent by the terms of the account agreement.


They did not supply the original signed applicaton or a copy of the agreement with FIA Card Services.  They did send some standard generic account agreements and ammendments, along with some account statements. They also sent six copies of checks from 2006-2007 showing payments, but that's it.  The most substantial info they sent was the stack of account statements.  The statements consist of 5 different account numbers.



QUESTIONS: 1) Don't they have to provide a copy of the signed contract in order to take this to court?  Or is this not the case?  My understanding was that the creditor has to prove the debt--do they still have a case without the signed contract and/or original application?  2) What is the difference between suing based upon common counts vs breach of contract, and why does this matter?  3) How should I respond to the plantiff's reponse to the req for production?  Would it be better not to respond since they admitted they do not have the signed contract?  Any advice will be greatly appreciated.  Thank you so much. 



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Here are all the required questions (sorry for posting this late):


1. Who is the named plaintiff in the suit? FIA Card Services.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Rather not say.

3. How much are you being sued for? More than 10k

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

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

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

7. Was the service legal as required by your state? Yes, I believe so.

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None.

9. What state and county do you live in? California.

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

11. What is the SOL on the debt? To find out: 4 years.

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).  I sent in Answer, req for production, and just received response to the req for production.  They did not send the original application or signed contract, only some account statements.  Court date is in about 6 months.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No.

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? Already responded.  They claim I owe on an open book account, because of written agreement between plaintiff and defendent.  Sued via common counts instead of breach of contract.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. No evidence sent with the summons beyond a vague mention of "an account" and the dollar amount allegedly owed.  In my answer I said they failed to state their claim due to a lack of any evidence provided.  They did not provide an account number, a signed contract, etc.

17. Read this article: Done.


Thanks so much.  I am a dead broke graduate student and really need help here.  Thanks for any advice you can provide.

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No they don't have to have a signed contract, use of the card is the contract.

Did you send a demand for a complete Bill of Particulars? I would do that now. They will state it is not revel ant for account stated, but it is proper for common counts. They get 10 days to answer that. Then you can file a motion to compel your other requests if they did not produce.

They should not have a problem since they are the oc, but they make procedural mistakes all the time. Seadragon and calawyer are from your state, they may have other useful advice also

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QUESTIONS: 1) Don't they have to provide a copy of the signed contract in order to take this to court?  Or is this not the case?


Because they are suing under common counts and account stated they are saying we don't need your signed application to prove the case.  Account Stated is based on implied or express use of the account, making charges and payments.



My understanding was that the creditor has to prove the debt--do they still have a case without the signed contract and/or original application? 


Yes they may still have a case, proof on account stated is much easier for them to prove.


2) What is the difference between suing based upon common counts vs breach of contract, and why does this matter? 


Breach of Contract primairly says there is a written agreement and they would need to supply this as part of thier case. As already mentioned the common counts/accont stated lets the supply a bit less written documentation of the account.



3) How should I respond to the plantiff's reponse to the req for production? 


Prior to doing anything next, you need to spend some time learning what and how you may use to defeat/beat the suit.  This means understanding what account stated means, and what the court requires them to provide in the way of evidence to succeed.  Then become a student of the Rules of Civil Procedure, so you know how to use these as a weapon.


The reason for this is you say they provided copies of 6 check payments to the account. (These could present a problem for you)  You also said the monthly statements have different account numbers.  (This could be helpful for you)


Would it be better not to respond since they admitted they do not have the signed contract? 


You are a broke graduate student.  This means you a have strong capabillities to learn and possibly time. Then form a strategy to defeat them.  Winning against an Original Creditor is not as easy as a JDB, but it can be done.  Remember, nothing they have sent you is evidence until it becomes Authenticated via live testimony or affidavit from a Custodian of Records for the plaintiff. 


Finally, it would helpful to know the amount of the debt in general.  Also, many around here have dealt with a number of Collection Attorneys (CA), so knowing generally which CA is handling the case can be helpful in answering your questions.  Also keep asking questions when you get stumped, there is alot of experience on this board.  If you will do the work, we can point you in a good direction that may allow you to win..... 

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Thanks for the replies.  I realize my case is a bit more complex because it's a dispute with an OC.


Shellieh98: I have not sent a demand for a bill of particulars.  I will do that.  Do I need to send a copy of this demand to the court, just as I did with the first request for production?


Skippy1960: Do you have any suggestions for reading up about the evidence requirements for a case based upon account stated?  I have read up a bit about challenging live testimony and affidavits, but clearly I need to read more.  It's good to know that nothing they have sent is evidence until it's actually authenticated.


The debt is greater than 10k and less than 25k.


Thanks again.  Back to my new side job of reading up about all this!

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Under California law "[a]n account stated is an agreement, based on the prior transactions between the parties, that the items of the account are true and that the balance struck is due and owing from one party to another." Gleason v. Klamer, 103 Cal. App. 3d 782, 786-87 (1980); see generally 1 B.E. Witkin, Summary of California Law, Contracts, §917 (9th ed.). An essential element of an account stated is that both parties have assented to its terms. Restatement (Second) of Contracts §282. If there is no evidence that both parties agreed to a stated sum, the document is not an account stated. See Zinn v. Fred R. Bright Co. Inc., 271 Cal. App. 2d 597, 600 (1969) (noting a requisite element of an account stated is "an agreement between the parties, express or implied, on the amount due from the debtor to the creditor"). This is particularly true where statements are routinely sent as part of a continuing business relationship between the parties. See American Fruit Growers, Inc. v. Jackson, 203 Cal. 748, 751 (1928).

Generally, an account stated is viewed as a new contract and forecloses further dispute as to the items which comprise the account stated. See Gleason v. Klamer, 103 Cal. App. 3d at 787. Since an account stated constitutes a new contract that supersedes and extinguishes the original obligation, mutual assent is an essential element. Id. at 786-787. However, the parties to an account stated are not bound as to matters that were not contemplated, even though those matters existed when the account was stated. See California Milling Corp. v. White, 229 Cal. App. 2d 469, 478-79 (1964). To further complicate the issue, there may be a partial settlement and account stated as to only some transactions between the parties. Id. at 477.

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Here are the California Jury Instructions for Account Stated: The Plaintiff has to prove all (5).

California Civil Jury Instructions (CACI)

373. Common Count: Account Stated

[Name of plaintiff] claims that [name of defendant] owes [him/ her/it] money on an account stated. To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] owed [name of plaintiff] money from previous financial transactions;

2. That [name of plaintiff] and [name of defendant], by words or conduct, agreed that the amount stated in the account was the correct amount owed to [name of plaintiff];

3. That [name of defendant], by words or conduct, promised to pay the stated amount to [name of plaintiff];

4. That [name of defendant] has not paid [name of plaintiff] [any/all] of the amount owed under this account; and

5. The amount of money [name of defendant] owes [name of plaintiff].

If you were to attend a jury trial or bench trial with judge making a determination, you only need to knock/derail 1 of the five listed above to outright win the case. Sounds simple, but Civil is based on the preponderance vs beyond a reasonable doubt as criminal trial function.

Your first goal is to use discovery to attempt to box them into a position that makes it difficult for them to win.

Example- Above you stated they sent you account statements, that have 5 different account numbers. Obviously they aren't suing you on 5 different accounts. Do any of the statements have the same account number as the last 4 digits listed in the complaint? If so how many, if only 1 or 2 of the 5 statements sent, then you have an opening already that you may be able to exploit. Do any of the statements have transactions? Or are they all balance forward, remember they need to prove transactions between the parties, statements that show no payments and no purchases, just interest and late fees and balances may not be enough.

Point is you need to inspect everything they send you and find possible opportunities to call into question does this all fit together properly to meet the burdern of proof for the 5 items above.

The cardholder agreements they sent. Do they have an arbitration clause, if so in some instances this can be a way to derail the suit. Arbtration is a strategy by which you remove the case from the courts to a private company, that the plaintiff has to pay the company to hear the case and make a determination. Not saying you should do this, but it can be an option in some instances. I don't remember which arbitration provider BOA/FIA uses. You would only consider this if JAMS is one of the providers they charge the most to administer an arbitration.

Look at the checks they sent you. Do these checks have any notations about the account in question? Did you write on the front of the check anything that ties that payment to the account in question. The checks sent are they related to the statements they sent, meaning statment shows the check amount???

These are some good starting points, come back with some observations of what you have so far. The we maybe able to suggest some next steps using Request for Admissions related to what they have sent so far....

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