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Grounds of Defense


ladygaga
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I need assistance in writing a Grounds of Defense letter in response to the BOP given to me by the credit card company Discover Bank.  Can this be done myself or do I need a lawyer?  

 

I've seen some samples here on this website such as : Defendant specifically denies the allegations set forth in each and every paragraph of the Complaint, numbered 1-10. Defendant avers he owes the Plaintiff not one dime. Plaintiff has submitted nothing but a few generic credit card statements which Plaintiff admits are facsimiles, supported by a standard hearsay affidavit in which the Plaintiff swears to the veracity of its own incomplete, unproven evidence. Additionally, the subject account has been sold twice. Plaintiff has provided insufficient evidence of a chain of custody and virtually no proof of ownership. Considering discovery is not available, the "evidence" provided by the Plaintiff should be viewed in the light most favorable to the Defendant. Defendant respectfully moves this honorable Court for dismissal of this matter with prejudice. 

 

 

This wouldn't work for me since its the original creditor suing me.  Please help. :-)

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In an OC lawsuit you are much better off hiring a lawyer if you can.  They are winnable but much more difficult than a suit by a junk debt buyer.

 

If you can copy what they want answered, remove the identifying information (name, address, amount, case number etc) from the pages and post what you have to answer you will get more specific answers.

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It's not mine...all the bills in the packet they sent me are just tons and tons of blank statements...with an old charge that should've been paid off a long long time ago...the only charges incurred are interest in the 200pages they sent...it does show were they took out automatic payments from my bank account but nothing I ever signed...its not my debt..

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@ladygaga

 

.with an old charge that should've been paid off a long long time ago

 

 

This is a little confusing.  Did you open the account and make charges to it? 

 

it does show were they took out automatic payments from my bank account but nothing I ever signed

 

 

If you didn't open the account, did you ever object to the automatic payments?

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I dont even know what the charges are for..they show to be all interest charges on a lump sum...I did not object because I guess I never noticed them..they were from years ago...not too long that it can be rebutted for that reason..but perhaps the account was opened by my ex husband..honestly I dont know...but I know its not my debt..

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@ladygaga

 

Do the credit card statements show your name? 

 

When was the last payment on the account?

 

Is VA a community property state? 

 

If the statements show your name, the problem I see is that payments were made from your account, and you didn't object to them. 

 

You say that you didn't sign an agreement for automatic payments to be made, but at the time the first payment was deducted, was your husband a joint signer on the account?  Could he have signed an agreement to have the payments deducted?

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Nothing was ever signed...in the BOP not even one document shows a signature from me or my ex.  

 

You really need to get past this mental block about signatures.  in the online application and e-commerce era a signature is not necessary in many cases to prove their case.  Especially for setting up automatic payments.  You simply click a box that states to enroll in paperless billing and auto payments.  Enter your bank account information and click "submit" and then a screen appears that by clicking submit again you consent to all their TOS regarding auto drafts.

 

Try doing discovery for statements showing that you personally used the card.  Over coming the autodrafts is going to be really difficult.

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@ladygaga

 

@Clydesmom is correct about a signature to open the credit card account.  Unless your state laws or courts require proof of a signature, it's not necessary in order for the plaintiff to prove that the account was opened and used.

 

However, you do have questions that need to be answered.   You need to find out if VA is a community property state.   An attorney could provide that answer.  If VA is a community property state, you might be held liable for the debt even if you could prove that your ex-husband opened the account (unless it was opened after the divorce).

 

Payments shouldn't be deducted from your account without permission.  If your husband was a joint signer on your bank account, he could have provided that permission.  If that's the case, the bank may have a copy of whatever he signed.  You need to contact the bank.

 

When was the last payment made?

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VA is not a community property state.

 

There are nine community property states: Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington and Wisconsin. Alaska is an opt-in community property state that gives both parties the option to make their property community

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ladygaga, people are here to help, but you have to do research on your own. @Clydesmom and @BV80 gave you some good places to start.

 

If you believe that this is not your account, then you need to find your own records to demonstrate that you have no knowledge of if/when the account was opened. 

 

The fact that you ignored automatic payments from your own account because "you didn't know what they were for" is a big negative against you.

 

You mention your ex-husband. When were you divorced? Could the charges, whatever they are, have been made after your divorce? Surely, in the dissolution of your marriage, all the debt was divided up? 

 

No one here can answer the questions that need answering before you can file your court documents. Note the term "court documents." When you are sued, the time for letters is past.

 

If you feel uncomfortable or unable to do this on your own, you may want to consult an attorney. You may decide not to hire one, but even an hour of their time can be helpful.

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