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Judge: 90% of Credit Card Lawsuits Can’t Prove Borrower Owes Money

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Thank you for posting the link.  I agree with the author of the article.  However, the problem does not lie only with the banks.  It lies to a certain degree with the courts but also with consumers.

Most courts do not require a complete accounting from day one of a debt.  Why?  Because we consumers made charges and payments during the life of the account.  

An account stated cause of action is based upon transactions between parties.  We make charges, the bank pays the merchants, and then we pay the bank.

If the bank can show that we made charges and payments, there's the account stated.  Our payments show that we agreed that we owe money to the bank.  Unless we can prove that we disputed the balance, payments show that we agreed with what the bank sent us.

During the life of the account, it's the consumer's responsibility to keep track of the details of the account in order to ensure that the resulting balance is correct.  Most of us don't pay attention to the little details.  We check to see if the charged items are accurate, payments have been credited, and that's it.  We don't take the time to crunch the numbers.  As a result, we don't know for sure that the monthly balance is correct.  We just assume that it is.

That's our fault.  In fact, most of us fail in that respect with all types of bills.  How many of us thoroughly review our grocery receipts, utility, and cell phone bills?

In the event that we have to stop paying and are sued, we then decide that it's necessary to see a complete accounting in order to determine if the balance is accurate.  Well, to be honest, we should have been keeping up with it all along.  If we had, and had found discrepancies, we would have disputed those discrepancies.  That dispute would be part of our defense.

In regard to a breach of contract action, charges and payments can prove the existence of a contract.   Again, unless your court has ruled otherwise, a complete accounting by the credit card company is not necessary to prove the existence of that contract.

A court is the "last stand".  Unless we have a solid defense such as the SOL, it's a bit late to demand what we should have been keeping track of all along.  I think that's why most courts don't require a complete accounting.  We consumers are expected to take some responsibility for our finances.

Unlike some may believe, my statements are NOT to be construed as supporting the banks.  I most certainly DO believe that they can be deceptive and dishonest.  However, I also believe that WE have a responsibility.  Many of us consumers have not carried out that responsibility.  Instead, we delegated it to the banks and every other business with which we have transactions and simply assumed that they cared about our money as much as we do.

We should never assume that someone else is going to be honest and/or accurate with our money.   That is a fact that we should also instill in our children.

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Most courts do not require a complete accounting from day one of a debt.  Why?  Because we consumers made charges and payments during the life of the account.  

The why? is because the defendants don't challenge the amount. They may deny the account or all allegations etc. But seldom do they deny that any and all amounts are incorrect, or ask for a complete accounting in discovery. If the case was lost, AND the amount due was challenged, not just denied, the court usually will award the amount the plaintiff can prove. The court may not REQUIRE the complete accounting, but it may not want to rule on what it has no evidence of either.

 

In Cali, I believe it's harder for them to prove account stated than many people may think (depending on how you fight the case).

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@Anon Amos

 

I did not apply my statements to all courts.  I said "most courts". 

 

I agree that in some courts, it's harder to prove an account stated claim.  In fact, in PA, an account stated claim may not apply to credit card accounts.

 

The point is to be proactive in one's financial obligations and to know how one's own courts have ruled.

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I got that BV80. I was just taking the opportunity to point to Cali members that AC stated is not as bad here as others may have it.

However, a large portion of these cases are really not part of "one's financial obligations".

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@Anon Amos

 

I agree that absent proof of ownership of an account, one does not have a financial obligation to a JDB.   BUT, that depends upon how one's court has ruled in regard to standing.

 

I also agree that CA members have an advantage.  You guys have RCPs that most states don't have.  I wish all states had your rules.   :-)

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Regardless of what the law says and in what state, until more people start fighting, there will not be much scrutiny on credit card debts, regardless of which party is correct. 95% of the cases end up being default on what could be the flimsiest of evidence, the rest are usually dismissed before they reach trial so that there is no scrutiny. The article even said, in Texas, as long as you file an answer, you will not lose at this point. If enough people were to fight, it would force these cases in front of judges who then can set what is good evidence and what is not and the industry would then adapt to make sure the evidence was air tight. Until then, why bother with the expense if it will not matter anyways.

For the hedge fund they were talking about, if they paid 5 cents on the dollar, they only need to collect from 11% of the debtors to double their money. At a 95% default rate, that is not hard to do. No wonder they do not worry about whether the records are good or not.

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Regardless of what the law says and in what state, until more people start fighting, there will not be much scrutiny on credit card debts, regardless of which party is correct. 95% of the cases end up being default on what could be the flimsiest of evidence, the rest are usually dismissed before they reach trial so that there is no scrutiny. The article even said, in Texas, as long as you file an answer, you will not lose at this point. If enough people were to fight, it would force these cases in front of judges who then can set what is good evidence and what is not and the industry would then adapt to make sure the evidence was air tight. Until then, why bother with the expense if it will not matter anyways.

For the hedge fund they were talking about, if they paid 5 cents on the dollar, they only need to collect from 11% of the debtors to double their money. At a 95% default rate, that is not hard to do. No wonder they do not worry about whether the records are good or not.

I think they should legally be allowed only to collect what they paid for the debt and not tack on this allowable interest- Its like loan sharking all over again- and the courts allow it- But I guess its a free market- Somewhere someone posted a link to what debt collectors pay for debts- It was some site where you can even buy the debts and make your own collection company. 

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The why? is because the defendants don't challenge the amount. They may deny the account or all allegations etc. But seldom do they deny that any and all amounts are incorrect, or ask for a complete accounting in discovery. If the case was lost, AND the amount due was challenged, not just denied, the court usually will award the amount the plaintiff can prove. The court may not REQUIRE the complete accounting, but it may not want to rule on what it has no evidence of either.

 

In Cali, I believe it's harder for them to prove account stated than many people may think (depending on how you fight the case).

@ Anon Amos

 

Can you elaborate on your point that it is "harder (meaning more difficult) for them (OC or JDB?) to prove account stated" in California than many people may think ....  There is scant case law on account stated and the vast majority of it is inapposite in that the lawsuits are merchant-to-merchant vs merchant-to-consumer actions.  You can go thru several years of law school and never encounter this theory of account stated.

 

If you have time or interest, can you expand on your thoughts or cite some cases or references.

 

See my comments below regarding Pennsylvania.

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@Anon Amos

 

I did not apply my statements to all courts.  I said "most courts". 

 

I agree that in some courts, it's harder to prove an account stated claim.  In fact, in PA, an account stated claim may not apply to credit card accounts.

 

The point is to be proactive in one's financial obligations and to know how one's own courts have ruled.

@BV80

 

In that regard, Pennsylvania is moving in the right direction.  Theory of account stated  for consumer credit card transations/accounts is  a completely outmoded concept.  This merchant-to-merchant theory may continue to apply to shopkeepers, merchants, businesses, etc. as in the days of the Medicis, Fuggers, Rothchilds, but it has no place in modern-day consumer credit transactions.  Insofar as it is not one of the "big" issues of the day, of the century...it has yet to find an ABA proponent.

 

California should do likewise.

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@ Anon Amos

 

Can you elaborate on your point that it is "harder (meaning more difficult) for them (OC or JDB?) to prove account stated" in California than many people may think ....  There is scant case law on account stated and the vast majority of it is inapposite in that the lawsuits are merchant-to-merchant vs merchant-to-consumer actions.  You can go thru several years of law school and never encounter this theory of account stated.

 

If you have time or interest, can you expand on your thoughts or cite some cases or references.

 

See my comments below regarding Pennsylvania.

 

In my opinion allowing jdb's to sue under account stated and the way they argue it is an abuse of the legal system. If a jdb bought a debt, sued on it, then the defendant settled for an agreed amount and started making at least 1 payment and then stopped paying THEN the bottom feeder would have a claim for account stated.

 

They will claim the statement mailed to you from the OC is the account stated, your not objecting to the amount is the agreement of price and promise to pay, and that they are now assigned to it and stand in the shoes of the OC. A lot of people agree with this and post accordingly, and people settle at times because they think with account stated the plaintiff really doesn't need much, and this is often the case, if it's not properly challenged.

 

To become an account stated, first the account must be closed, then a new agreement reached. This is not the case with jdb's. They will claim an account was stated in writing, usually between you and the OC and they have been assigned the rights and stand in the shoes of the OC. If you pin them down in discovery as to what document they claim is the account stated (and know how to use the rules of evidence) the document(s) is inadmissible. Also the OC  has charged off the account, sold it, and most likely surrendered all rights to it and does not guarantee it's accurate, so the jdb can stand in those shoes.

 

In discovery you will also receive information that will qualify as mistake or fraud (amongst other things) and these are what many argue are the only ways to attack account stated.

 

The necessary case law is there but you have to learn it well and be careful of what you believe.  If you allow them to stand in the shoes of the OC then they can actually use YOUR case law against you. If you argue it correctly it is hard for them to prevail on this because all their evidence will be hearsay.

 

A lot of people give up because they think all they need is that one statement to prove it. They say the OC sent the statement and you did not object to the statement.  You can motion to strike the statement, they can't authenticate it, it's not a business record, hearsay. lacks foundation, created for the sake of litigation, best evidence rule, not trustworthy.

They may also produce an account showing that you owe them and say that's the account stated and you didn't object to it.

The CA Supreme Court  stated that "The rendering of an account, although not objected to, cannot create a liability where no liability existed before" Trafton v Youngblood.

 

You can find case law on account stated (as well as  causes of action) along with all the elements the plaintiff must prove in order to prevail on it's claim; by looking the charge up in the CA Jury Instructions (CACI). They are on here somewhere and can also be googled.

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They will claim the statement mailed to you from the OC is the account stated, your not objecting to the amount is the agreement of price and promise to pay, and that they are now assigned to it and stand in the shoes of the OC. A lot of people agree with this and post accordingly, and people settle at times because they think with account stated the plaintiff really doesn't need much, and this is often the case, if it's not properly challenged.

 

To become an account stated, first the account must be closed, then a new agreement reached. This is not the case with jdb's. They will claim an account was stated in writing, usually between you and the OC and they have been assigned the rights and stand in the shoes of the OC. If you pin them down in discovery as to what document they claim is the account stated (and know how to use the rules of evidence) the document(s) is inadmissible. Also the OC  has charged off the account, sold it, and most likely surrendered all rights to it and does not guarantee it's accurate, so the jdb can stand in those shoes.

 

 

 

An account doesn't have to be closed to become an account stated.  Each new billing statement that is not disputed becomes an account stated. 

 

 

ILSHIN INVESTMENT CO., LTD. v. BUENA VISTA HOME ENTERTAINMENT, INC., Cal: Court of Appeal, 2nd Appellate Dist., 1st Div. 2011.

An "account stated" is an agreement that an account, and the items in it, are correct. It is a new contract that supersedes the underlying account, and into which the items in the underlying account are merged. (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752-753.) In an action on the account stated, "`nquiry may not be had into [the original items of the account] at all'" except for fraud or mistake in the making of the account. (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786-787; see 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 972, p. 1062.)

An account stated ordinarily comes into existence when an account is rendered, and its recipient either acknowledges that it is correct or fails to object to it within a reasonable time. From that, the law implies an agreement that the account is correct as rendered. (Maggio, Inc. v. Neal, supra, 196 Cal.App.3d at pp. 752-753; see also Zinn v. Fred R. Bright Co., supra, 271 Cal.App.2d at p. 600; Levy v. Prinzmetal (1955) 134 Cal.App.2d Supp. 919, 922 [creditor's acceptance of account and payment without objection constitutes account stated].)

 

 

 

Unfortunately, courts have ruled that JDBs can stand in the shoes of the creditor which means that they can sue for the same causes of action as the OC.  If you show that the JDB hasn't proven ownership of the account and doesn't have standing to sue, it doesn't matter the cause of action.  If the billing statements are inadmissible, they have no proof of an account stated.  If those billing statements don't show charges and/or payments, you argue there's no evidence of transactions between the parties.

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Unfortunately, courts have ruled that JDBs can stand in the shoes of the creditor which means that they can sue for the same causes of action as the OC.

 

Account stated is not a cause of action, it's a common count. So if they can sue under the same causes of action as you say; that leaves them with open book, breach of contract, unjust enrichment etc. That is why I said it's an abuse of the system when they can use account stated. Also, they are claiming the alleged debt has been defaulted on, so it's difficult to believe the account is still open, and so, if it's not an open account, then you would have to assume the account has been closed in order for them to be able to sue on it.

 

This is from  attorney Clinton Rooney in a LexisNexis article: "The debt buyer first claims that every account statement ever sent to the consumer is an account stated. This is nonsense. First an account stated requires a final balance struck, which requires a closed account. Second, an account stated is a contract, which means it must have a single date of execution".

 

There's a lot of argument as to the differences in those cases you cite compared to the jdb's as well. And you first need the jdb to identify which docs are the account stated. It's not always the statements they claim is the account stated. There is  also arguments as to whether or not the statements are contracts, new contracts or accounts, let alone admissible.

 

The case law is from OC's and many differences can be shown from the jdb cases. Courts rule the jdbs stand in their shoes and courts rule otherwise. Some people can argue against them well and some people can't. I'm sure our arguments will be the exact opposite of each other regardless, I was just asked to elaborate a bit on my opinion on it.

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A common count is a cause of action.   So if an account stated is claimed, that would be a cause of action even if it's under common counts.

 

"A common count is not a specific cause of action ...; rather, it is a simplified form of pleading normally used to aver the existence of various forms of monetary indebtedness, including that arising from an alleged duty to make restitution under an assumpsit theory." McBride v. Boughton (2004) 123 Cal.App.4th 379, 394 [20 Cal.Rptr.3d 115].

 

Plaintiff filed a complaint against defendant seeking money damages by alleging causes of action for breach of contract and common counts of open book account and account stated.  HSBC Bank Nevada, N.A. v. Aguilar, 141 Cal.Rptr.3d 206 (2012).

 

That says an open book account is a common count.   An account stated may be a contract, but it's included in common counts.   I never said that I agree with an account stated as a cause of action for credit card debt.  It's just that courts allow it, and they separate it from a breach of contract cause of action.

 

 

Courts rule the jdbs stand in their shoes and courts rule otherwise.

 

 

I have not seen a court rule that a JDB who has proven to the court's satisfaction that they own an account doesn't stand in the shoes of the OC.  If they can't prove ownership, then of course they don't stand in the OC's shoes.  

 

I didn't cite the cases as cases to use against a JDB.  They were only to show how the courts define an account stated.  They say nothing about an account having to be closed.  They just say that you have to agree to a balance.  The reason an account would not have to be closed for an account stated to exist is the fact that you can dispute a bill and disagree on the balance while the account is still open.  That's why OCs and JDBs state that a consumer never disputed a bill or they'll include that in a request for admissions or request for documents.  If you dispute a bill while the account is still open because there's a mistake, there's no account stated until you and creditor come to an agreement about the mistake, and you agree to pay.  Once that's done, you then have an account stated. 

 

If there's no agreement reached because they won't correct the mistake, and you never pay again, there's no account stated whether or not they close the account at that point.  Before closing the account, a creditor can send a final bill which would have a higher balance because of interest or fees, but it won't be an account stated because of that previous bill that you disputed while the account was still open and that was never settled.

 

In any case, none of that really matters.  It doesn't matter if common count or account stated is a cause of action.  It doesn't matter an account must be closed or can be open, or if each new billing statement creates an account stated or not.  What matters is how you fight it.  Like you said, you fight the evidence (or the lack of evidence).

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I think I posted this once, but this is a law review article about account stated.

 

 

http://digitalcommons.law.umaryland.edu/cgi/viewcontent.cgi?article=1050&context=student_pubs

 

 

It's a 45 pg article.  This is the conclusion:

 

 

CONCLUSION
 Account stated threatens the welfare of consumers in two ways: it 
reduces the evidence required to obtain a judgment against a consumer in a 
collection action and, in certain cases, it allows collectors to evade statutory 
controls on debt collection and contracting. The solution to the second 
problem is simple: judges must not allow themselves to be carried away by 
the idea that account stated creates fresh liability. Account stated has 
always required some genuine underlying transaction. When statutes seek 
to regulate consumer transactions, those statutes must preempt actions 
relying on an account stated theory. Otherwise, account stated will be a tool 
for the evasion of consumer protection statutes. 
 The first problem is a much more substantial one, but its solution is as 
simple: implied account stated must not be permitted in consumer 
collection actions. This Article has presented three arguments against the 
use of account stated in consumer collection actions: (1) the historical 
argument, that account stated was limited to disputes between merchants 
and in some states this limitation remains good law; (2) the policy 
argument, that account stated is bad for consumer protection and its 
assumptions about consumer behavior are wrong; and (3) the theoretical 
argument, that implied account stated is inconsistent with the fundamental 384 Vermont Law Review [Vol. 38:339 
principles of modern contract law. Each argument supports the others. The 
historical origin of implied account stated is consistent with modern 
principles about silent acceptance, and it demonstrates that the basic 
assumptions underlying implied account stated are those of commercial—
not consumer—dealings. The modern principles of contract law show that 
the use of account stated in consumer actions is exceptional, while its 
historical uses were not. Finally, the policy argument demonstrates the need 
for the judiciary and legislature to act to prevent the misuse of account 
stated. 
 The overwhelming advantage of a simple prohibition of implied 
account stated in consumer collection actions lies in a fact of modern 
collection suits: consumers rarely defend them. In the vast majority of the 
cases, courts are left to decide whether the plaintiff’s case is sufficient to 
obtain judgment without argument from the defendant. Therefore, implied 
account stated allows plaintiffs to produce less evidence in a venue where 
they are unlikely to be challenged and still obtain judgment. Removing 
implied account stated entirely from the plaintiffs’ pleading menu would 
affect the court’s decision-making process, and plaintiffs would be left to 
plead breach of contract and provide the requisite evidence. 
 The resurrection of account stated has been a success, at least for 
plaintiffs in collection actions. However, its evidence-reducing qualities 
make it part of the broken system of debt collection, which fails to 
sufficiently protect consumers. It is not, as Bucci claimed, a clear and 
equitable rule,296 but a harsh and archaic one, with significant variations 
between states. Implied account stated favors seventeenth century trade 
practice over contemporary principles. Its application to consumers is unfair 
and, to the consumers at least, unexpected. It is time to amend this part of 
the broken debt collection system and put account stated in its place as part 
of modern contract law
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In any case, none of that really matters. 

 

Exactly. I couldn't agree more. I post; you disagree, that's just the way it is.

 

For me the idea is to invest as little time as possible entertaining it.

 

@Debt_Warrior  If you are being sued under account stated and or want my opinion on the matter(s) feel free to PM me.

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@Anon Amos

 

You've made many posts to which I haven't responded.   In any case, I apologize that you were offended.

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Wow....

 

this is an eye-opening experience,....is it possible to "pin" this thread up on the top that everyone facing Account-Stated will have a chance to read it,...it will be so waste if this posting sink down....

 

glad that we have so many knowledgeable people here,...

 

1 quick quesion: since the account-stated is widely used by JDB given it is so easy for them,...and often they "come-up"with bill of sale that is so incomplete.....

 

"would it be wise to "not only" use general denial, but also "affirmative defense"--Lack of privity to counter JDB's account-stated strategy? "

.....( my thinking is that : when they don't have the complete chain of custody of document(s), that means, their privity became broken, thus, even if they "come up" with monthly statement, still be cosidered as hear-say document(s)/ lack of authenication AND also becomes inadmissible as their witness "is not available" when subpoena drop on their lap, right ?

 

Or another affirmative defense-failure to mitigate damages is more suitable ??

 

Million thanks

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Exactly. I couldn't agree more. I post; you disagree, that's just the way it is.

 

For me the idea is to invest as little time as possible entertaining it.

 

@Debt_Warrior  If you are being sued under account stated and or want my opinion on the matter(s) feel free to PM me.

 

@Anon Amos

 

will do.

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@debtzapper

@BV80

@Anon Amos

@browniebrownie141

@credit2011

@GinnyCoonrod

 

It would be most helpful to have an outline of the proof issues encountered by the plaintiff in account stated causes of action and the strongest defenses that can be mobilized against the "proofs."

 

My strategy is focused on (A) ownership of the debt and chain of title as a proxy for standing or real party in interest, and (B) countering the faux affidavits and Affidavit in Lieu of Testimony (CCP 98 subpoena argument) as a two-pronged attack on the JDB case.  My attention is also devoted to account stated, however, if A is dismantled, then an adverse judgment is much less likely.  Likewise with the B component.  However, it does depend a great deal on the unique attributes of your case.

 

If there are 2-3-4 "owners" of the debt with cascading assignments and some parts of the assignments unraveled, the Court is much less likely to let it stand in the final analysis.  If there are 1 or 2 "owners" (including the OC), court is more likely to let those docs in as admissible hearsay evidence.

 

As for the affidavits, as the Court correctly observed in Rocha, "Section 98 is a noted departure from the hearsay rule as declarations are generally not admissible at trial." (See Evid. Code 1200).  Notwithstanding this assertion, trial courts exercise their "broad discretion" to allow them into evidence with amazing regularity.  This may be because the court has taken an accurate reading of the pro per defendants and have a pretty good idea that they are tiring after nearly a year trying to figure out how to defend their cases, learning a new, complex language along with a new complex, often disjointed and contradictory set of rules, and they are fairly certain that these pro per's will not appeal their decisions.

 

Rocha separates the playing field somewhat, if it is used correctly in conjunction with an agressive defense strategy. 

 

Most of the cases on CIC have been won using this two-pronged strategy.  If you can defeat any one of the essential elements of the account stated triangle, it only adds strength to a pro-active, aggressive litigation strategy as has been described above.

 

That said I would nevertheless like to hear more on ways and means to defeat account stated. [i'm not conceding any points to the opposition!.]

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An account doesn't have to be closed to become an account stated.  Each new billing statement that is not disputed becomes an account stated. 

 

 

ILSHIN INVESTMENT CO., LTD. v. BUENA VISTA HOME ENTERTAINMENT, INC., Cal: Court of Appeal, 2nd Appellate Dist., 1st Div. 2011.

An "account stated" is an agreement that an account, and the items in it, are correct. It is a new contract that supersedes the underlying account, and into which the items in the underlying account are merged. (Maggio, Inc. v. Neal (1987) 196 Cal.App.3d 745, 752-753.) In an action on the account stated, "`nquiry may not be had into [the original items of the account] at all'" except for fraud or mistake in the making of the account. (Gleason v. Klamer (1980) 103 Cal.App.3d 782, 786-787; see 1 Witkin, Summary of Cal. Law (10th ed. 2005) Contracts, § 972, p. 1062.)

An account stated ordinarily comes into existence when an account is rendered, and its recipient either acknowledges that it is correct or fails to object to it within a reasonable time. From that, the law implies an agreement that the account is correct as rendered. (Maggio, Inc. v. Neal, supra, 196 Cal.App.3d at pp. 752-753; see also Zinn v. Fred R. Bright Co., supra, 271 Cal.App.2d at p. 600; Levy v. Prinzmetal (1955) 134 Cal.App.2d Supp. 919, 922 [creditor's acceptance of account and payment without objection constitutes account stated].)

 

 

 

Unfortunately, courts have ruled that JDBs can stand in the shoes of the creditor which means that they can sue for the same causes of action as the OC.  If you show that the JDB hasn't proven ownership of the account and doesn't have standing to sue, it doesn't matter the cause of action.  If the billing statements are inadmissible, they have no proof of an account stated.  If those billing statements don't show charges and/or payments, you argue there's no evidence of transactions between the parties.

 

Great point on the billing statements.  Typically, you will see one or two monthly statements.  It would be rare that you see, say, 9 months or 10, 11, 12 months of statements.  And more often than not it is only one month, along with the electronic data printout.  If you can dismantle the affidavit supporting the statement(s), then it follows they are inadmissible.

 

One case I have seen (and I think they may be others on this board) where only the front of page 1 is offered as evidence and in 6-point print it reads, "See Reverse Side for Important Information."  Based on the exemplars that I have seen, that Reverse Side references a credit cardmember agreement and a cardmember agreement obviates account stated.  How to keep this "reverse side" monthly statement out of evidence ?

 

I am still collating information on this point.

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I agree 100% with the judge and this sentiment, however, the judge's primary responsibility is to the court and the canons of the law, not necessarily to justice.

As Oliver Wendell Holmes, Jr., is famously quoted as saying, "This is a court of law, young man, not a court of justice."  Who looks for justice, not the plaintiff, not the judge and certainly not the pro se defendant.  And the bare fact is that there are not enough pro bono lawyers, non-profits or defense lawyers that would be able to outweigh in the long run the "impartial" judges and the plaintiff's bar.  The defense bar is hardly present at all.

 

"The problem, according to judges, is that credit card companies are not always following the proper legal procedures, even when they have the right to collect money. Certain cases hinge on mass-produced documents because the lenders do not provide proof of the outstanding debts, like the original contract or payment history."

 

Yes, 90% of Credit Card Lawsuits Can’t Prove Borrower Owes Money and it more than coincidential that the court system is tilted the way it is, and 90% or more of Credit Card Lawsuits result in Default Judgments, despite the fact that they can not prove that the borrower legally owes the money sued for.

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Great point on the billing statements.  Typically, you will see one or two monthly statements.  It would be rare that you see, say, 9 months or 10, 11, 12 months of statements.  And more often than not it is only one month, along with the electronic data printout.  If you can dismantle the affidavit supporting the statement(s), then it follows they are inadmissible.

 

One case I have seen (and I think they may be others on this board) where only the front of page 1 is offered as evidence and in 6-point print it reads, "See Reverse Side for Important Information."  Based on the exemplars that I have seen, that Reverse Side references a credit cardmember agreement and a cardmember agreement obviates account stated.  How to keep this "reverse side" monthly statement out of evidence ?

 

I am still collating information on this point.

Yes, please do I see that on the end of the statement the JDB sent to me it says "Important information about your account" and on the second page it says what I highlighted below in 1- 6 That is certainly not looking like a credit card agreement-

 

It has on that second page after the billing statement this below:

1. BILLING RIGHTS SUMMARY

2.CREDIT INFORMATION NOTICE

3. PAYMENTS

4.HOW WE CALCULATE YOUR BALANCE

5. HOW TO AVOID PAYING INTEREST ON  PURCHASES

6.SECURED ACCOUNT

7. SPECIAL INFORMATION FOR COLORADO RESIDENTS ( which this I am a California resident - wonder when they include these with our statement if that Colorado reference is on all that the  OC places on their statements  or they have replaced the correct state you are in with each bill for bills they send to people in their respective states.

 

What do you think? How can I use that page to discredit evidence they are trying to submit in discovery.?

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@credit2011

 

7. SPECIAL INFORMATION FOR COLORADO RESIDENTS ( which this I am a California resident - wonder when they include these with our statement if that Colorado reference is on all that the  OC places on their statements  or they have replaced the correct state you are in with each bill for bills they send to people in their respective states.

 

 

If you don't mind posting it, what is that special information?

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What do you think? How can I use that page to discredit evidence they are trying to submit in discovery.?

 

You won't need it. You discredit and attack their evidence by using the rules of evidence, authentication and foundation.

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