mememe

CCP 96 with 5 possible witnesses

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Hi all!

I just received statement of evidence from plaintiff's attorney. Plaintiff is OC. Amount approx $4500. Statement of evidence includes names and addresses of 5 witnesses and a generic credit card agreement from the wrong year since they already told me the year the acct was opened. They sent quite a few statements along with the list of witnesses. Court date is set for less than 20 days from now. They had sent a ccp98, but withdrew it saying they would bring a witness. Hence the 5 witnesses. where do I go from here? I have very little time.  They also stated that they intend to offer documents into evidence which are currently unavailable including copies of the application and payments from defendant. 

This is in Northern Ca. I already admitted that I had a CC with the plaintiff, but the account # and balance is different and I denied any knowledge of this particular CC. Is it too late to ask for proof that the witnesses are qualified and that they are employed by the OC or am I left to determine that only through cross examination? How do I best get the statements tossed out as hearsay? How do I best attack the witness credibility? What questions should I ask? Is there a way I can get the case dismissed before trial? A settlement offer was sent with the statement of witnesses and evidence. Should I call them and state that I decline any offers to settle and let them know that I plan on filing a separate suit for their recent FDCPA violations when they didn't identify themselves as debt collectors in voice mails? Thanks in advance!

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How did they withdraw their CCP 98? Haven't heard of that before. CCP 98s are usually filed, did they file the withdrawal as well?

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Couple of things.  If this is an original creditor, the FDCPA does not apply.  If the lawyer is a lawyer AND a debt collector, it may apply to him.  If he is not a debt collector, but just a debt lawyer, they won't apply.

I would write up an objection to every piece of evidence they have.  Object to the contract , show it contridicts the years the creditor says it was during the course of the account.

Did they list only names of the witnesses? They must include addresses, all within 150 miles of the court, as well as what content each witness will testify too. so that you may issue a subpoena if you so choose.  If they did not list any addresses, object to each and every one of them. 

Object to the CCP98, even if they did withdrawal it. state the person who signed the ccp98 is not able to be served.  Did they send you a CCP96 yet? 

Any evidence they sent you, object to it, find a corresponding reason.  all records are hearsay unless they get a live witness from the OC to authenticate them.

Some judges will try to back you into a corner by asking you to allow the ccp98 in if you object to their live witnesses.  DO NOT agree to it.  If the witness as not proved to be a competent witness, you could win it on appeal.  

Search out Homelessinca in this forum.  He has a long thread, there will be a lot of similarities.  He wrote some great objections, you will be able to glean some of what you need off those.  His was with a JDB, but rules for authentication are the same.

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oh the best way to get it dismissed before or at trial is to write that objection, and get it to them a few days before trial.  Check your local rules, you may have a time limit on when you can send it.  Send it late as possible so they won't have much time if any to correct their mistakes.

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15 hours ago, mememe said:

Is it too late to ask for proof that the witnesses are qualified and that they are employed by the OC or am I left to determine that only through cross examination?

That is for cross examination.  You don't get to challenge witnesses before the trial.  The court determines if they are qualified and reliable/credible witnesses.

15 hours ago, mememe said:

How do I best get the statements tossed out as hearsay?

The OC can testify to their own records.  If the witness is indeed employed by the OC then it won't be hearsay.   

15 hours ago, mememe said:

How do I best attack the witness credibility? What questions should I ask?

If you don't know how to do this and have not been researching it then you either need to hire a lawyer or settle you are going to get steam rolled at trial.  

15 hours ago, mememe said:

Is there a way I can get the case dismissed before trial?

Probably not.  You can't just throw anything at the court and hope they dismiss.  You have to have a legal basis to ask the court to dismiss the action.  Who is the OC suing you?  

15 hours ago, mememe said:

Should I call them and state that I decline any offers to settle and let them know that I plan on filing a separate suit for their recent FDCPA violations when they didn't identify themselves as debt collectors in voice mails?

The FDCPA specifically exempts litigation as debt collection efforts requiring that notice.  If the law firm is only representing the OC and they contacted you in relation to the lawsuit that is filed it isn't even in the same universe as a violation.  Not to mention that even if it was your claim would be against the law firm and it would have zero affect against the Plaintiff/OC suing you.

You are confusing JDB lawsuit tactics with what you can use in an OC suit.  The defenses available in a JDB suit are not usable in an OC suit.

 

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Also, CCP 96 requires them to provide a list of witness they INTEND to call, not possible witnesses they MIGHT bring to trial. You are supposed to know who is coming so that you can prepare for that person or persons. It makes it harder for you to prepare when you don't know who they intend to bring and you spend time prepping for 5 different witnesses and have to wait til trial to find out which one will show up. That is not what CCP 96 was intended for.

I'm trying to remember the recommendation for that particular point, but it might be to send them a letter informing them that listing 5 possible witnesses was not an appropriate response to a CCP 96, as it inhibits your ability to prepare for trial, and that you will be objecting to any witness that plaintiff brings to trial.

IMO, I see that kind of response as a sign of weakness on their part.

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here is what your CCP says about witnessess.

93. 

(c) The case questionnaire shall be designed to elicit fundamental
information about each party's case, including names and addresses
of all witnesses with knowledge of any relevant facts, a list of all
documents relevant to the case, a statement of the nature and amount
of damages, and information covering insurance coverages, injuries
and treating physicians. The Judicial Council shall design and
develop forms for case questionnaires.

and then there is this one. 

6.  (a) Any party may serve on any other party a request in
substantially the following form:

  TO: ____________________________________________ ,
  attorney for ____________________________________:

   You are requested to serve on the undersigned, within 20 days, a
statement of: the names and addresses of witnesses (OTHER THAN A
PARTY WHO IS AN INDIVIDUAL) you intend to call at trial; a
description of physical evidence you intend to offer; and a
description and copies of documentary evidence you intend to offer
or, if the documents are not available to you, a description of them.
Witnesses and evidence that will be used only for impeachment need
not be included. YOU WILL NOT BE PERMITTED TO CALL ANY WITNESS, OR
INTRODUCE ANY EVIDENCE, NOT INCLUDED IN THE STATEMENT SERVED IN
RESPONSE TO THIS REQUEST, EXCEPT AS OTHERWISE PROVIDED BY LAW.

   (b) The request shall be served no more than 45 days or less than
30 days prior to the date first set for trial, unless otherwise
ordered.
   (c) A statement responding to the request shall be served within
20 days from the service of the request.
   (d) No additional, amended or late statement is permitted except
by written stipulation or unless ordered for good cause on noticed
motion.
   (e) No request or statement served under this section shall be
filed, unless otherwise ordered.
   (f) The clerk shall furnish forms for requests under this rule.
   (g) The time for performing acts required under this section shall
be computed as provided by law, including Section 1013.

 

If it is to late for them to send you another ccp98, I would object to those 5 witnesses if they did not include all the above information in your ccp96.  You can do a meet and confer and tell the lawyer you intend to object to all witnesses, and file your objections, or you could just file the objections and see what they do at court.  Hold the judge to the letter of the statute, if he doesn't follow it, you have grounds for appeal.  You say they sent you addresses, did they include what they would be testifying to?  If they did include all the info, I would still do the objection for nont sending you who they intended to call vs. who they might call.

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On 10/1/2016 at 6:26 AM, shellieh98 said:

Couple of things.  If this is an original creditor, the FDCPA does not apply.  If the lawyer is a lawyer AND a debt collector, it may apply to him.  If he is not a debt collector, but just a debt lawyer, they won't apply.

I would write up an objection to every piece of evidence they have.  Object to the contract , show it contridicts the years the creditor says it was during the course of the account.

Did they list only names of the witnesses? They must include addresses, all within 150 miles of the court, as well as what content each witness will testify too. so that you may issue a subpoena if you so choose.  If they did not list any addresses, object to each and every one of them. 

Object to the CCP98, even if they did withdrawal it. state the person who signed the ccp98 is not able to be served.  Did they send you a CCP96 yet? 

Any evidence they sent you, object to it, find a corresponding reason.  all records are hearsay unless they get a live witness from the OC to authenticate them.

Some judges will try to back you into a corner by asking you to allow the ccp98 in if you object to their live witnesses.  DO NOT agree to it.  If the witness as not proved to be a competent witness, you could win it on appeal.  

Search out Homelessinca in this forum.  He has a long thread, there will be a lot of similarities.  He wrote some great objections, you will be able to glean some of what you need off those.  His was with a JDB, but rules for authentication are the same.

The lawyer states that they are debt collectors on their web site and almost every time they called and left a message. They also stated it on the letters they sent. I realize that even if I I could sue it would be against the lawyer and not the OC so I can't countersue, but could possibly file a separate suit. 

I should be a bit clearer about a few things. They sued based on common counts and account stated. They did supply a couple of years of statements. I think I can get that tossed as hearsay.  I don't think I should subpoena the CCP98 witness since they gave me the list of witnesses and withdrew ccp98.  I need to defeat Acct stated claim. I found this information interesting. http://www.creditinfocenter.com/community/topic/305064-need-help-with-defenses-account-stated-claim-in-credit-card-lawsuit/ Read the part by User Cjb3. Can I use this in CA?

They originally sent a ccp98, but filed  a withdrawal of the CCP98 with the court stating that they would be bringing a live witness instead. I think it would be a violation for them to bring that witness forward since she is not listed on the CCP96 response. I don't see that as a concern.

To be clear...They did state on the CCP96 response, "Witnesses to be called at trial" and proceeded to list the names and addresses. I worded it wrong when I said that they listed 5 witnesses that they would "probably call." Some witnesses have the bank's HQ address listed in another state and some have what appear to be business addresses in other state where the Bank HQ is not located. From research online (linkdin) the ones listed with the bank address appear to live in states other than where the bank HQ is located. According to online profiles many of them have only worked for the bank for 6 months. The response to my ccp96 request did not specify what the witnesses would be testifying to. Just names and addresses.

None of these witnesses are the one who was listed on the CCP 98 which they withdrew. Correct me if I'm wrong, but I don't believe the 150 mile rule applies unless I have to subpoena them.

On the CCP96 response they stated that "Plaintiff intends to offer documents into evidence which are not currently available. including copies of the application and payments from the defendant. Plaintiff anticipates those documents to be available prior to trial." Can I object to this or is it ok  since they merely described the documents they intend to produce or did they have to actually produce the documents themselves when they sent me the CCP96 response?

Thanks in advance for your help!

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Object, they needed to send you everything they plan to use against you. So before trial, I would object to the witnesses, they do not comply with civil code if he did not list what they would be testifying about. Object to any new information to  be offered at trial.  I see a dismissal in your future.

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16 hours ago, mememe said:

The lawyer states that they are debt collectors on their web site and almost every time they called and left a message. They also stated it on the letters they sent. I realize that even if I I could sue it would be against the lawyer and not the OC so I can't countersue, but could possibly file a separate suit. 

 

I

.

 

 

On the CCP96 response they stated that "Plaintiff intends to offer documents into evidence which are not currently available. including copies of the application and payments from the defendant. Plaintiff anticipates those documents to be available prior to trial."

They cannot reserve a right to enter evidence at the time of trial, unless you don't object to it. You could send them a meet and confer letter telling them you will object to any evidence not disclosed in the ccp 96 response, and also object to it at trial.

you could also mention in the meet and confer letter that it isn't likely they will bring all 5 witnesses but rather just one of them, and so they should tell you who they actually intend to call so that you can properly prepare and not be deprived of due process.

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On 10/5/2016 at 7:21 AM, shellieh98 said:

Object, they needed to send you everything they plan to use against you. So before trial, I would object to the witnesses, they do not comply with civil code if he did not list what they would be testifying about. Object to any new information to  be offered at trial.  I see a dismissal in your future.

 

I Objected to the 5 witnesses based on the fact it is not specific enough depriving the defendant of due process by not knowing who he will be cross examining and there being limited time to determine if the witnesses are qualified. I also objected to their user agreement and their statement that they intend to offer documents into evidence which are not currently available. 

The court rules are not easy to navigate and I am still trying to figure out if I sent my objections too late or not. I thought I read somewhere that it was 10 days before trial for any objections, but I can't seem to find that info. It took me days after receiving their CCP96 response to determine what to do and it ate up valuable preparation time. I still need to file a trial brief and trial is only a week away. This is the OC suing on account stated, common counts. I need to prepare to defeat them in court with or without their witness. I need to assume a witness will be allowed since the court may not agree with my objections to the 5 witnesses. 

Any ideas where I go from here are greatly appreciated. There was never any discovery on both sides beyond my original answer and the ccp96 request. Don't forget this is California. Maybe I need to reference the law specifically and add some case law in my trial brief and be prepared to repeat it in closing arguments. I've done some online searches and have some info, but any pointers are appreciated.

I already have the plaintiff's trial brief and they mention case law etc in their efforts to plead their case. 

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I don't think you sent it to late, I think that statue is for a motion in limine, not objections.  BUT. List all the same objections in your trial brief, be prepared to explain them orally. If they don't have a witness, and the judge asks you if you will accept the ccp98, the answer is no.  If they do have a witness, guaranteed they will not be from the OC, so get a list of questions geared toward that to ask them on the stand.    Here is a sample list of questions.

questions to ask witness (1).docx

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1 hour ago, shellieh98 said:

I don't think you sent it to late, I think that statue is for a motion in limine, not objections.  BUT. List all the same objections in your trial brief, be prepared to explain them orally. If they don't have a witness, and the judge asks you if you will accept the ccp98, the answer is no.  If they do have a witness, guaranteed they will not be from the OC, so get a list of questions geared toward that to ask them on the stand.    Here is a sample list of questions.

questions to ask witness (1).docx

Thanks Shellie! Wow. You are so helpful and fast to respond. The cross examination questions will help a lot.  Do they need a qualified witness in order to prevail on all theories.... account stated, common counts, breach of contract for money lent at the defendant's request etc. ?? Or is it just not so cut and dry like that? I wonder if someone knowledgeable were to read the plaintiff's trial brief if it would help them advise me? 

I think I also messed up by sending the plaintiff's attorney my objections without having it marked filed by the court first. I realized after that I should have filed it first with the court. I now have to go file it with the court next business day in the hopes that it doesn't cause a problem. I expect to have it filed before the plaintiff receives their copy in the mail. 

I'm not finding many articles in which a defendant beats an OC in CA which makes me a bit concerned. I read some claims that it is difficult even for a seasoned lawyer. 

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Most lawyers will advise you to settle if it is the OC.  If they do bring a witness, you might lose, but if they can't answer some of those questions, then you shouldn't.  They need to authenticate your account.   So whoever the person is they need to know the procedures for keeping records, and verifying accuracy in the OC.  The witness needs to be someone who does that specific job, not just someone that works there.  But it is always up to the Judge, if he thinks it's good enough, then all you have is an appeal. So above where I said guaranteed it wont be from the OC, I guess I didn't realize it was the OC suing you.  IF they bring a witness, it has to be from the OC, but they still need to know all the procedures of keeping records.

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You don't have to file your objections in advance. You can always verbally object to witnesses as they are being called, and object to evidence as it is being introduced at trial. It may be hard to object to evidence from an OC as you must have valid grounds for the objection and understand what  you are doing. OC cases are usually won when no witness shows up and or the OC dismisses the case rather then pursuing it.

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6 hours ago, Anon Amos said:

You don't have to file your objections in advance. You can always verbally object to witnesses as they are being called, and object to evidence as it is being introduced at trial. It may be hard to object to evidence from an OC as you must have valid grounds for the objection and understand what  you are doing. OC cases are usually won when no witness shows up and or the OC dismisses the case rather then pursuing it.

Thanks Amos. The creditor's user agreement (which I deny is the correct one because it is from 2010 and they state the account was opened in 2001) states that "This agreement will be interpreted using Virginia law. Federal law will be used when it applies." Is there any way that this may benefit me. I've been trying to read up on Virginia and federal law, but it's late and hard to navigate. I read an article which stated that Account stated cause of action is only valid between two merchants in Virginia, but I can't seem to find verification and I don't know if the California court will recognize this and accept it. 

If I cross examine their witness and they have only worked for the creditor for 6-8 months do you think that is enough to disqualify them? 3 of the witnesses listed have a web presence which states a very short term of employment with the creditor. 

I'm still working on a trial brief. Can anyone point me to a good example which I can modify to suit my case?

 

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On 10/8/2016 at 10:56 PM, shellieh98 said:

Most lawyers will advise you to settle if it is the OC.  If they do bring a witness, you might lose, but if they can't answer some of those questions, then you shouldn't.  They need to authenticate your account.   So whoever the person is they need to know the procedures for keeping records, and verifying accuracy in the OC.  The witness needs to be someone who does that specific job, not just someone that works there.  But it is always up to the Judge, if he thinks it's good enough, then all you have is an appeal. So above where I said guaranteed it wont be from the OC, I guess I didn't realize it was the OC suing you.  IF they bring a witness, it has to be from the OC, but they still need to know all the procedures of keeping records.

Regarding settlement offers. When I received the ccp96 response I also received an offer for about 20% off over 12 months in payments and they were willing to hear a counter offer. It's only a few days away from trial so if they have planned on flying a witness in I'm sure they have already made solid plans at this time since I didn't respond to their settlement offer. Even if they offer something before trial at the court I doubt I would accept. I have a feeling their witness won't be qualified even if they do work for the OC. Don't forget. When I was asked if I had ever held a credit card issued by the creditor I agreed that I did, but the acct number and balance didn't match and I have no records regarding the account number they gave.  Perhaps you have some input regarding the  questions I asked Anon Amos.

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I'm going thru a suit with OC as well. Haven't received any docs thus far. However, I am following all the steps outlined to fight with a JDB for my suit. 

Review this link from ASTMedic. This does pertain to JDB, nonetheless should have everything you may be looking for. Towards the end there's a checklist before Trial written by SeaDragon. Few files dowloaded from this forum, may be helpful to you.  Thx to CalLawyer, SeaDragon, ASTMedic, Shellieh98 and others. 

Cheers.

 

questions to ask witness (1).docx

Request for Judicial notice.docx

Trial Brief.docx

Decleration in support Limine.docx

Limine.docx

Motion to Compel.docx

Meet and confer.docx

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On 10/8/2016 at 10:56 PM, shellieh98 said:

Most lawyers will advise you to settle if it is the OC.  If they do bring a witness, you might lose, but if they can't answer some of those questions, then you shouldn't.  They need to authenticate your account.   So whoever the person is they need to know the procedures for keeping records, and verifying accuracy in the OC.  The witness needs to be someone who does that specific job, not just someone that works there.  But it is always up to the Judge, if he thinks it's good enough, then all you have is an appeal. So above where I said guaranteed it wont be from the OC, I guess I didn't realize it was the OC suing you.  IF they bring a witness, it has to be from the OC, but they still need to know all the procedures of keeping records.

Hi Shellie and all who have helped!

So. I attended the trial and asked many questions. The witness claimed to be from the OC, but he couldn't really answer a lot of the questions for one reason or another. The lawyer kept objecting and answering the questions for him. The judge sustained many objections because of such things as attorney/client privilege. Most of the questions I posed were to determine the witnesses' qualifications and eventually the judge stated that the court had already determined that he was a qualified witness and I needed to change my line of questioning. The judge stated "Surely you are not suggesting that the witness is not in fact employed by the bank? We need to move on. I suggest you change this line of questioning" I didn't say anything and continued questioning, but more about accounting procedures etc. Questions I posed regarding their accounting  procedures/record keeping and security were often objected to.  We ran out of time and the judge continued the case for about 45 days. 

The judge stated that I need to get a grasp of the concept of common counts and that I needed to speed things up/get to the pertinent questions. 

The lawyer pulled me aside after the hearing and asked if I wanted to settle now for the full amount and I said No. He then stated, "You know everyone Knows your guilty don't you?" 

This guy is a real dirtbag.  Outside the courtroom at a previous hearing he got in my face and stated, "You fell behind on your bills and couldn't pay. Well! Today you are going to pay!"

My objection to further evidence at trial was sustained by the judge yet the lawyer waltzes in with a huge cardboard box with a small stack of docs in it and announces to everyone that he has hundreds more pages of statements and sets the paperwork on the table where we stood.  The court reporter and clerk are making statements, "Oh really?" etc and giving me dirty looks. This was not admissible, but I think the very presence of the paperwork could easily sway a judge's decision since he seen a stack of papers.

Before trial began the lawyer clearly stated that his witness flew in from out of state. He repeated it later when arguing a matter with the judge. In cross examination the witness stated that he works from home in CA and not from the state where the Bank operates from.  This really shows the lack of ethics this lawyer has and the fact that the witness didn't correct him initially shows me that they are both willing to lie to influence the judge's decisions. My line of questioning was bringing me to the point where I was going to address these lies which the lawyer told the judge, but we ran out of time. The judge isn't dumb. He knows why I was pushing the questions regarding where and who the witness worked for. The judge knows he lied to the judge's face regarding the witness flying in from out of state. 

Does this have any bearing on my case and how can I use their lies to discredit the opposing counsel and their witness? When is the appropriate time to address this and is there any law i should reference when addressing it?

I think I will have some valuable info regarding cross examination at trial when the OC is involved and I intend to post all the details of my cross examination  when I get the transcripts. 

Meanwhile I need to put together specific questions that relate to common counts/ account stated which may help me with my case. Any help with specific questions is much appreciated.

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well was the witness one of the ones they listed? They should have listed their name and address, which should show which state they live in.  Or a direct question of "do you live in the state of xxxx. (where bank is)? and if not, what city and state do you live in would do.

Account stated means they are not suing on contract. they are suing on what your last statement showed.

In order to sue on Account stated these elements must be present.

The elements of account stated are:

(1) prior transactions between the parties which establish a debtor-creditor relationship;

(2)an express or implied agreement between the parties as to the amount due; and

(3) an express or implied promise from the debtor to pay the amount due.

 

When a creditor sues for account stated, this sets both the debtor's liability and the exact amount the debtor must pay, which on its surface is less complicated than claiming a debt is due and payable. An account stated may carry a longer statues of limitations (time to file suit) than some other forms of debt, depending on the state.

“An account stated has been defined as an agreement between parties who have had previous transactions that the account representing those transactions is true and that the balance stated is correct, together with a promise, express or implied, for the payment of such balance." "An account stated is merely a form of proving damages for the breach of a promise to pay on a contract.

 

So you would need to prove you didn't do one of those 3 elements.  prior transactions, implied agreement (which is made when you make a payment on the account) or show the amount is not correct. 

 

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On 10/20/2016 at 4:08 PM, shellieh98 said:

well was the witness one of the ones they listed? They should have listed their name and address, which should show which state they live in.  Or a direct question of "do you live in the state of xxxx. (where bank is)? and if not, what city and state do you live in would do.

Account stated means they are not suing on contract. they are suing on what your last statement showed.

In order to sue on Account stated these elements must be present.

The elements of account stated are:

(1) prior transactions between the parties which establish a debtor-creditor relationship;

(2)an express or implied agreement between the parties as to the amount due; and

(3) an express or implied promise from the debtor to pay the amount due.

 

When a creditor sues for account stated, this sets both the debtor's liability and the exact amount the debtor must pay, which on its surface is less complicated than claiming a debt is due and payable. An account stated may carry a longer statues of limitations (time to file suit) than some other forms of debt, depending on the state.

“An account stated has been defined as an agreement between parties who have had previous transactions that the account representing those transactions is true and that the balance stated is correct, together with a promise, express or implied, for the payment of such balance." "An account stated is merely a form of proving damages for the breach of a promise to pay on a contract.

 

So you would need to prove you didn't do one of those 3 elements.  prior transactions, implied agreement (which is made when you make a payment on the account) or show the amount is not correct. 

 

Hi Shellie. The witness was one of the 5 listed, but his address on their witness list was listed as the bank's address which is in another state. When I cross examined him he stated he worked from home in CA for the bank.

I didn't mention before because I was trying to keep this simple. There was a previous trial date set and I attended, but I was only notified of the trial about 3 days in advance. I asked the judge for a continuance on the first trial date and that is when the lawyer started pleading with the judge not to allow a continuance because his witness had flown in from out of state to be there.  I argued that I had no time to prepare since I only had 3 days and the judge agreed. Since I never had a chance to send a request for witnesses and evidence prior to the first trial date I did so on the second. It was on the 2nd trial date that the witness stated he was from CA when cross examined. Now there is another continuance because we ran out of time. 

I don't have any evidence to present to them that this is not my account. I don't see a way to prove that I didn't receive statements since payments were made. I only have evidence of an account with this bank which had a different account number and a much smaller balance. Since their witness is obviously going to say that they don't make mistakes and the judge has already stated that he is a recognized qualified witness I guess I don't have much of a chance. 

It really irks me that the lawyer would try to influence the judge's decisions with lies, but I suppose the judge won't care since the lawyer is not the one on the witness stand and he was not under oath.

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