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Myself

Credit Card/Collections Complaint- Utah SOL- Filing Counterclaim maturing or acquired after pleading.

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7 minutes ago, Myself said:

Hi, all

 

Looking for a bit of guidance, and or opinion on a matter. Need it quickly, will be moving forward within next 2-4 days.

 

The context is that I have been involved in correspondence with an attorney representing a collections agency asking for a judgement on a debt. We have gone back and forth since around April of this year past year, 2016. This case is in  Utah.

At this point they have asked for a Summary Judgment, I opposed it; in turn, I have filed for dismissal, it went back and forth, it left off with me filing a Reply Memorandum in Support of Motion to Dismiss. The time according to procedure has run out, meaning: their time to file an objection to my Reply has lapsed. The judge in the matter has set a date for a Hearing now, which is Jan 11, 2017. 

After learning more than I ever wanted to know about this type of case over the past months, I now realize that I have a case for a Counterclaim, under Rule 13 - Counterclaim maturing or acquired after pleading. Today is Jan 3, I want to file this counter claim before the Hearing. I believe it will deter the Plaintiff from further action and prompt a mutual Dismissal, as well, I do have a Counterclaim, for 2-3 reasons; 1 being the Complaint was made after Statute of limitations and hence Complaint is Time Barred.

Here is my question? At this point in the process, according to Rule 13 https://www.utcourts.gov/resources/rules/urcp/urcp013.html, am I still allowed to file a counterclaim? My reading suggest that I am allowed. Info that I have now as a result of correspondence with Plaintiff, as well as a better understanding of law regarding this case has lead me to the conclusion that I have grounds for a Counterclaim. Rule 13 (d) suggests that I can still file a Counter, as long as it is before the Hearing.

What are your thoughts please

In your answer, did you include the SOL as an affirmative defense?

When was the last time you paid on the account and when was the complaint filed?

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It might be helpful if you provide some more background into what has happened and what grounds you have for counter claim.  The debt being time barred is one, and it's also an FDCPA violation(federal law) too, but are you sure that the debt is time barred?  I only ask because we've seen people here before that thought theirs was, when it was not.  That's where some background might help us to better help you.

 

Regarding the procedure for filing a counterclaim now, I would check with your state's rules of civil procedure, as that will tell you what needs to be done, or if it can be done at this stage or not.  In some jurisdictions, you need to ask the court for leave to file one.  In others, they might not allow it once the case is in motion.

 

Also, note that the debt being time-barred is not a counterclaim that matured after pleading, because the nature of being time-barred is that this cause of action for you existed the moment they filed suit, if it does exist.

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5 minutes ago, Myself said:

SOL was listed as Affirmative defense in initial Answer to Summons, as well as almost every correspondence afterwards, as well as in the Motion to Dismiss, and reply Memorandum in Support of Motion to Dismiss.

I have not admitted or agreed that the debt is mine throughout filings. Plaintiff has offered a copy of Statement asserting it represents last payment on account in question. I objected to this document, as Hearsay. Whereas, Plaintiff has not offered anything confirming where, who, it came from, and it was attained from someone that can confirm creation in Standard business practice by original creditor. Plaintiff is the 5th collections company to allegedly acquire the debt from original creditor (credit card company) 

Statement Plaintiff offers as evidence of last payment, shows a date that is beyond SOL. Plaintiffs original complaint asserts a date as creation of alleged debt in 2006. Incidentally, they have not ever provided proof of the creation of debt, only asserted the date. 

What date (month, year) did you make the last payment?

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Kraftykrab, the reason I made this post is: I have read rules, and I am not certain if moving forward with a Counterclaim maturing or acquired after pleading is proper or allowed at this point. The reason I think it is, or may be allowed is because info I now have, that I did not previously, at time of writing Answer to Complaint, is the info that enabled me to understand and have evidence for a Counterclaim. But, according to my reading, if I do not file a counter before the Hearing, I cannot file it ever. It is time sensitive.

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27 minutes ago, BV80 said:

In your answer, did you include the SOL as an affirmative defense?

When was the last time you paid on the account and when was the complaint filed?

 

11 minutes ago, BV80 said:

What date (month, year) did you make the last payment?

I am not convinced that this debt is mine. Nonetheless, the date on the Statement the Plaintiff offers as representing the last payment is April, 2011.  This Statement has not been authenticated by Plaintiff as created in standard business practice, or introduced by someone that can attest to that fact. They simply offered it months after my initial Answer to Complaint. I have objected to this statement, as Hearsay, and ask it be precluded. Here is the Statute I am moving forward with. http://le.utah.gov/xcode/Title78B/Chapter2/78B-2-S307.html?v=C78B-2-S307_1800010118000101 

Title 78B  Chapter 2  Part 3  Section 307

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On 1/3/2017 at 3:38 PM, BV80 said:
 

You didn't open the account?

Please copy and answer the questions in the following link:

http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/

 

For everyone that posts here, it will help us out if you can provide the following information: (revised 02-09-2012)

I

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@Myself

How long has this case been going on?   Citibank has an arbitration provision in its agreements, but one can waive the right to arbitrate by participating in litigation. Have you already filed the motion to dismiss and/or engaged in the discovery process?

They've filed a motion for summary judgment?

I can't find any UT case law confirming which SOL applies to credit cards (4-year or 6-year).  Unifund will, of course, argue that the 6-year SOL applies assuming they've provided a copy of a cardmember agreement.

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7 minutes ago, BV80 said:

@Myself

How long has this case been going on?   Citibank has an arbitration provision in its agreements, but one can waive the right to arbitrate by participating in litigation. Have you already filed the motion to dismiss and/or engaged in the discovery process?

They've filed a motion for summary judgment?

I can't find any UT case law confirming which SOL applies to credit cards (4-year or 6-year).  Unifund will, of course, argue that the 6-year SOL applies assuming they've provided a copy of a cardmember agreement.

Summons/Complaint was served to me (Defendant) in April 2016.

I have filed Motion to Dismiss, as well as Reply Memorandum in Support of Motion to Dismiss. Plaintiff, Unifund, has offered their Initial Disclosures. We are scheduled for Hearing on Jan 11th. 

Yes, they filed for Summary Judgment. I opposed it. They filed Reply Memorandum in Support of Summary Judgment. I opposed it. Last filings on this case, were my Reply Memorandum in Support of Motion to Dismiss. They did not object to my arguments, the allowed time to object has lapsed. So, they cannot file an objection now according to procedure. 

Go To Topic Listing Collections Unifund has argued that 6 year SOL applies. I argued against that, objected, and disagreed. Finding Case law to support it is difficult. One reference I used was: 

(Hood v. American Express Centurion Bank) where Judge Attenberger’s ruling states -“ the agreement would be — according to its plain terms — governed by the laws of Utah.” And goes on to state: “A credit card is an open-ended account, and § 78B-2-307(1) enumerates various other types of open accounts. So this Court finds that credit card accounts fit best within the four-year statute of limitations provided by Utah Code Ann§ 78B-2-307(1).”

Six-year SOL, specifically refers to: 78B-2-309.  Within six years -- Mesne profits of real property -- Instrument in writing.   Definition of Real property is land

I am moving forward with 4-year SOL, following suit with the Judge in the above referenced case, Credit cards are open ended, everything in that category is open ended.

My question, is mostly, regarding procedure. Now that we are scheduled  for Hearing, and I have filed a Reply Memorandum in Support of Motion to Dismiss, according to https://www.utcourts.gov/resources/rules/urcp/urcp013.html, and my reading of it, I can file a counterclaim under (d) Counterclaim maturing or acquired after pleading.  Because the info I have aquired in correspondance through filings in the course of the case have provided evidence that supports a counterclaim. Meaning: I had no info at the time of my Answer to Summons, as to whether Plaintiff had standing to Sue, or whether Debt in question was time barred. Now, I have that info. I am not convinced that my reading of this Rule regarding counterclaims is correct though. Or, whether filing a Counterclaim under Rule 13 (d) at this point would be allowed. I am asking for help in interpreting whether that would be allowed??

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@Myself

Hood v. American Express is an Illinois federal court's determination of Utah state law.   However, I understand that it's all that you could find.

9 minutes ago, Myself said:

Six-year SOL, specifically refers to: 78B-2-309.  Within six years -- Mesne profits of real property -- Instrument in writing.   Definition of Real property is land

It does not merely refer to land. 

78B-2-309.  Within six years -- Mesne profits of real property -- Instrument in writing.
     An action may be brought within six years:

(1)for the mesne profits of real property;

(2)upon any contract, obligation, or liability founded upon an instrument in writing, except those mentioned in Section 78B-2-311; and

(3)to recover fire suppression costs or other damages caused by wildland fire.

It also refers to contracts in writing.  That's why I asked if Unifund has presented a copy of the credit card agreement.

In regard to the counterclaim, it didn't actually mature after you filed your answer.   If the court were to decide the debt is time-barred, your FDCPA claim accrued when the collection lawsuit was filed.

Rule 13 refers to compulsory counterclaims.  Those claims must be filed at the time one is sued.  Your claim may be considered a permissive counterclaim.  Read the following ruling (FDCPA case) from the UT federal court.

https://scholar.google.com/scholar_case?case=8922452010277412960&q="Fair+Debt+Collection+Practices+Act"+AND+"compulsory+counterclaim"&hl=en&as_sdt=4,161

You need to contact an attorney to ask about your counterclaim, whether it's compulsory or permissive, and when it should be filed.

Just a note:  I'm not sure that a $1000 FDCPA counterclaim is going to deter Unifund from attempting to collect $23,000. 

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11 minutes ago, BV80 said:

@Myself

Hood v. American Express is an Illinois federal court's determination of Utah state law.   However, I understand that it's all that you could find.

It does not merely refer to land. 

78B-2-309.  Within six years -- Mesne profits of real property -- Instrument in writing.
     An action may be brought within six years:

(1)for the mesne profits of real property;

(2)upon any contract, obligation, or liability founded upon an instrument in writing, except those mentioned in Section 78B-2-311; and

(3)to recover fire suppression costs or other damages caused by wildland fire.

It also refers to contracts in writing.  That's why I asked if Unifund has presented a copy of the credit card agreement.

In regard to the counterclaim, it didn't actually mature after you filed your answer.   If the court were to decide the debt is time-barred, your FDCPA claim accrued when the collection lawsuit was filed.

Rule 13 refers to compulsory counterclaims.  Those claims must be filed at the time one is sued.  Your claim may be considered a permissive counterclaim.  Read the following ruling (FDCPA case) from the UT federal court.

https://scholar.google.com/scholar_case?case=8922452010277412960&q="Fair+Debt+Collection+Practices+Act"+AND+"compulsory+counterclaim"&hl=en&as_sdt=4,161

You need to contact an attorney to ask about your counterclaim, whether it's compulsory or permissive, and when it should be filed.

Just a note:  I'm not sure that a $1000 FDCPA counterclaim is going to deter Unifund from attempting to collect $23,000. 

Thanks for your reply. Six-year refers to "Instrument in writing" or contract. Unifund has offered terms and conditions, and referred to it as a contract. They have not verified that it was created via standard business practice though. Also, the terms and conditions they offer as evidence of a contract, is not from 2006, the year they allege the debt was created. As well, nowhere in the terms and  conditions they offer does it refer to it being a binding contract once a charge has been made. They actually have a specific section saying that the terms can change at any time. This automatically implies that they change over the years, hence they are not proof of the original terms, because they can change. All of this leads to a Lack of Standing, and Hearsay. They have not objected to this argument, they only show issue with the 4-year SOL. They cannot prove that a contract was enacted, or that there is an Instrument in Writing. They have not even shown evidence that the account was used, charged on, or that it amounts to $23,000. They have offered no Admissible evidence under exception to Hearsay.  This all leads to a 4-year SOL, even if an argument is made that terms and conditions, do equal an Instrument in Writing. 

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13 minutes ago, Myself said:

Thanks for your reply. Six-year refers to "Instrument in writing" or contract. Unifund has offered terms and conditions, and referred to it as a contract. They have not verified that it was created via standard business practice though. Also, the terms and conditions they offer as evidence of a contract, is not from 2006, the year they allege the debt was created. As well, nowhere in the terms and  conditions they offer does it refer to it being a binding contract once a charge has been made. They actually have a specific section saying that the terms can change at any time. This automatically implies that they change over the years, hence they are not proof of the original terms, because they can change. All of this leads to a Lack of Standing, and Hearsay. They have not objected to this argument, they only show issue with the 4-year SOL. They cannot prove that a contract was enacted, or that there is an Instrument in Writing. They have not even shown evidence that the account was used, charged on, or that it amounts to $23,000. They have offered no Admissible evidence under exception to Hearsay.  This all leads to a 4-year SOL, even if an argument is made that terms and conditions, do equal an Instrument in Writing. 

It does not have to be a 2006 agreement.  It only needs to be dated during the time the account was in good standing.

You really need to contact an attorney regarding your counterclaim.

Here's a fwe UT rulings regarding JDBs.  See if they help you.

https://scholar.google.com/scholar_case?case=4317434274710861744&q="Midland+funding,+LLC"&hl=en&as_sdt=4,45

https://scholar.google.com/scholar_case?case=13706045130297399204&q="Midland+funding,+LLC"&hl=en&as_sdt=4,45

https://scholar.google.com/scholar_case?case=942673120285794097&q="credit+card"+AND+"debt"&hl=en&as_sdt=4,45

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I do not believe that you are correct with the 4 year SOL.  I believe that it is 6.  The 4 year SOL statute specifies "open store accounts", if I remember right.  Such an account would be if you had a credit situation with a particular store, and not a credit card that can be used in any store.

https://scholar.google.com/scholar_case?case=4806675681931210061&q=credit+card+debt+statute+limitations&hl=en&as_sdt=4,45

In that case, the trial court ruled that the 6 year rule applied.  The appeals court did not address that end of things, but this should give you an idea of what the trial court level is saying in Utah.  It's a 2016 case.

I have not extensively studied UT law, but I've not seen UT courts claim that the 4 year rule applies to bank credit cards.  However, I also seem to recall UT having a borrowing statute, where when a contract or agreement calls for the laws of a certain state to be in effect, the SOL of that state applies.  Often, those agreements are governed by the state of DE, which last I knew had a 3 year SOL.  You  need to know what that agreement says and how courts have ruled on it.  I did a quick search and found one recent case where the court ruled that the borrowing statute was in effect, and used CA's 4 year SOL:

https://scholar.google.com/scholar_case?case=2850978051913986920&q=credit+card+debt+statute+limitations&hl=en&as_sdt=4,45

 

Does the generic agreement that Unifund provided have any clause about "this agreement shall be governed by the laws of the State of _____"?

Also, be careful when you claim that all of the info you posted leads to a 4 year SOL--it does not.  The decision is to be made by a judge in court, not by what the debt collector did or did not say.  So far, you have really not shown us much of anything that would support the claim that the 4 year rule applies.  In fact, I see multiple issues with trying to use that one. Let's break that statute down, so you can see why I'm saying this.  First:

" An action may be brought within four years:

(1)after the last charge is made or the last payment is received:

(a)upon a contract, obligation, or liability not founded upon an instrument in writing;"

  First, Unifund is claiming that there's a written agreement for this type of account.  Even if they produce the typical generic one that has no signatures on it, it is still sufficient to prove that this specific type of debt DOES have a written agreement with it.  You are basing your claim on a statute that says that accounts NOT based on written agreement have a 4 year SOL.  That won't work.

 

Second:

"on an open store account for any goods, wares, or merchandise; or"

A credit card is not an account for goods, wares, or merchandise.  It's an account for the CREDIT to buy such things, but it does not of itself provide you with those things.  That fits more with a store account, or something like Fingerhut, where the entity granting you the credit is also the same entity that you are receiving the merchandise from.  Plus, it specifies "store account", such as a Best Buy card.  A card that you can use at any store, like Visa or Mastercard, does not apply to this.

Third:

"on an open account for work, labor or services rendered, or materials furnished;"

If this is a typical credit card, none of that would apply either, for the same reasoning as the second clause does not apply.  I'm afraid that the 4 year SOL will not work on this one.  I would instead focus on whatever state the agreement claims is involved, if there is one.

3 hours ago, Myself said:

Thanks for your reply. Six-year refers to "Instrument in writing" or contract. Unifund has offered terms and conditions, and referred to it as a contract. They have not verified that it was created via standard business practice though. Also, the terms and conditions they offer as evidence of a contract, is not from 2006, the year they allege the debt was created.

Two things to watch for on this.  First, it's up to you to try to discredit what they provide.  If they did not verify anything, see what you can do with that in your opposition to it.  But do not be surprised if the judge allows the generic contract, because it is not a specific business record, only an example of the written agreement.  There is not much to do to "authenticate" that, especially since the CFPB has copies of all those written agreements.  It should be fairly easy to show if they are not being 100% truthful. Second, it does not have to be from 2006, when the debt was allegedly created.  The debt ran through 2011, and as you mentioned yourself, the agreement states that the terms can change at any time.  So, as long as the one they produced was in effect when the account was still active, they would probably be in the clear.  I would not be surprised if they produced one that only had some of the disclosures on it--most people do not put up a fight and they play this game by the numbers. 

 

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@Myself

I agree with kraftykrab and believe you're looking at a 6-year SOL.

 

3 hours ago, Myself said:

Unifund has offered terms and conditions, and referred to it as a contract.

Terms and conditions are contracts.  They lay out costs, the responsibilities of each party, etc.

@kraftykrab

Citibank agreements are usually governed by SD law which has a 6-year SOL.   But the OP will let us know.

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13 minutes ago, BV80 said:

@Myself

I agree with kraftykrab and believe you're looking at a 6-year SOL.

 

Terms and conditions are contracts.  They lay out costs, the responsibilities of each party, etc.

@kraftykrab

Citibank agreements are usually governed by SD law which has a 6-year SOL.   But the OP will let us know.

I agree it can be argued as 6year SOL. But, they have not authenticated the documents. Meaning: it is Hearsay. So, they have no basis for an argument of a contract at all. This is why the 4-year SOL applies. I also argued on that basis, and some other issues, that they have not confirmed standing to sue. It kind of doesn't matter at this point, I have already made my arguments, according to procedure, I cannot offer any other motions. Hearing is set. I cannot change the arguments that have already been made.  At least that is my understanding. Unless I have a counterclaim. I do believe I have one.

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10 hours ago, Myself said:

I agree it can be argued as 6year SOL. But, they have not authenticated the documents. Meaning: it is Hearsay. So, they have no basis for an argument of a contract at all. This is why the 4-year SOL applies. I also argued on that basis, and some other issues, that they have not confirmed standing to sue. It kind of doesn't matter at this point, I have already made my arguments, according to procedure, I cannot offer any other motions. Hearing is set. I cannot change the arguments that have already been made.  At least that is my understanding. Unless I have a counterclaim. I do believe I have one.

Respectfully, I think you are seeing only what you want to see.  I am not criticizing you in any way, I really do understand that.  But here's the thing--nothing is hearsay in your case unless and until the court says it is hearsay.  You said that they never authenticated the generic agreement.  I tried to tell you, that is way too easy for them to do.  Since credit card issuers supply copies of those agreements to the CFPB, there's really no getting around the fact that the agreement will only not be admitted by the court if you can show that it is the wrong agreement.  You essentially have two options--you can either try to prove that the one they submitted is the wrong one, and you would do that by providing what you claim to be the correct one.  Or, you are forced to try to prove a negative--that this specific type of account did not have any written agreement at its alleged origination.  You are mixing multiple issues here, I believe, and I hope I can help to clarify that.  First, the "written agreement" argument has nothing to do at all with anything else.  You are looking at standing, hearsay, and so on, when the SOL ONLY involves whether or not there's a written agreement for this specific card.  Everything else needs to be put on the back burner for the sake of this one point in our discussion here for a moment.  You contend that they have not authenticated the written agreement that they submitted.  The only way to attack that agreement that I can see is to provide a different one and make a compelling argument why yours is the correct one and theirs is not.  But either way, that STILL leaves you with a written agreement, and that still points completely to 6 years and totally away from 4. 

Any way you slice this, the one and only way that you can try to use the 4 year argument is if you can successfully argue that this account had NO written terms and conditions at all.  I'm sorry, but I just do not believe that any judge today will believe that a credit casd from one of the most well known credit card providers in the country did not have a written agreement attached to it.  Think about it--how can you prove to a court that something did NOT happen?  How do you prove a negative?  It is basically your word against theirs, and while you have zero evidence that the specific account never used a written agreement--after all, how could you?--they produced a written agreement.  This leaves you with only the option of impeaching that specific agreement that they provided, but that still proves that there WAS a written agreement, based on the only way you really can impeach it.

 

I broke down the 4 year SOL statute line by line up there.  I showed you that every single condition that it requires is NOT met in this account.  How do you propose to argue in court against what I said up there?  If I can present that argument to you here, and I'm on your side, don't you think that the attorney trying to get $$$ from you can do the same in court?  You need to be prepared to address that in front of a judge, and you have not even addressed it here with us.  You merely seem to have overlooked it.  I wish you would take a second look at it, because the court is REQUIRED to view that law word for word to determine the intent behind it.  And believe me, that plaintiff's counsel in court WILL be able to nit-pick through to show why the 4 years does not apply here.  I'd like to know how you can respond to what I posted.  Hearsay will not counter that.  Not authenticating documents will not counter it.  Questioning standing will not counter it.  It is a specific, narrow point that is not interchangeable with those other things.

 

FYI, in a debt collection case, I argued 3 years ago that the party suing me did not have standing, because they did not.  IN WRITING, that party had confirmed to me that they sold the account in question to some other bottom feeder.   Even though my state's laws say that standing must be maintained through the whole course of the case, or else the case becomes moot and should be dismissed, the judge ignored all that and denied my MTD, saying that standing was an issue that needed to be resolved at trial.  He was incorrect, of course--my state laws allow one to challenge standing at any and every step, not just at trial.  My point is, you cannot rely on the court doing what you think they should do, because more times than we all know, judges get it wrong.  Most people will never even know if their judge made such errors, because most debt collection cases are not contested.  And then, of the ones that are, the consumer often loses because of some procedural error and not even on the merits. 

 

I'm really not trying to dog you on this.  I want you to win, and I just don't see that skipping over what I presented to you will help you in any way.  Hearsay is also subject to the business records exemption, and in several jurisdictions, all that's required by the courts to get around that is an affidavit.  Even in some places where the rules say an affidavit is not enough, we've seen courts accept them anyways.  Like I said, judges make errors.  You must understand that contrary to your statement, they have EVERY basis for an argument that there's a written agreement----until you show the court otherwise.  It's not enough to say "Hearsay".  Or, to go further, let's say that you object and call it hearsay, and the court agrees.  Do you really think that the debt collector and their attorneys will just pack up and go home?  They will hear the court agree that it's hearsay, and proceed to do what the court asks to substantiate those documents.  It happens every day.  Usually when someone challenges documents for hearsay, it's not the original written agreement--it's everything else, such as affidavits that were created for court and not "at or near the time of the event referenced". 

 

If they were suing you for $900 or something, an argument like that might be enough to make them just toss the case and move on.  Count on this, though--with this kind of money supposedly involved, they WILL put more effort into this case.  You need to be ready for that, and unfortunately, I believe that you are not.  I hope we can help you in any way possible, but for that to happen, you cannot ignore the things presented to you here. 

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@Myself

@kraftykrab has made some good points.   First, we are pulling for you.  Hopefully, the judge will deny the MSJ and require a trial.   At that point, we hope the plaintiff will voluntarily dismiss.  

Here's some issues with your motion to dismiss.  You did not state everything you included in it, so I'm just guessing here.   First, certain issues must be raised by a motion to dismiss before answering the complaint.  Read Rule 12(b).  

It would surprising if a judge granted your MTD based upon claims of unauthentication because business records can be authenticated at a trial.   He can deny their summary judgment motion because he doesn't believe the documentation has been authenticated, but the matter would then proceed to trial.

 

17 hours ago, Myself said:

As well, nowhere in the terms and  conditions they offer does it refer to it being a binding contract once a charge has been made.

More than likely, there's language in the agreement that says something to the effect of "if you use the card, you've agreed to the terms and conditions".

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@kraftykrab, @BV80

I appreciate your thoughts.

I have objected to all of the info that the Plaintiff offers, that could lend to their standing to sue, as Hearsay. I have referenced case law decisions supporting my position, that the terms and conditions are Hearsay. Where the Plaintiff in my case, and the case law referenced were the same, and case was dismissed for this very reason.

My position is that the word "Instrument" is subject to the definition listed in Title 70A  Chapter 9a  Part 1  Section 102(47)

(a)"Instrument" means a negotiable instrument or any other writing that evidences a right to the payment of a monetary obligation, is not itself a security agreement or lease, and is of a type that in ordinary course of business is transferred by delivery with any necessary indorsement or assignment.

(b)"Instrument" does not include:

(i)investment property;

(ii)letters of credit; or

(iii)writings that evidence a right to payment arising out of the use of a credit or charge card or information contained on or for use with the card.

This section is from Secured Transactions. The scope of the Six-year SOL listed in 78B-2-309 -  Within six years -- Mesne profits of real property -- Instrument in writing, elaborates, denotes, enumerates on items that are secured transactions. Real Property involves land, or structures, which are secured transactions, this is the outlined scope of this SOL section, so the definition of Instrument in 70A 9a 1 section 102(47) applies to the use of the word in 78B-2-309. Whereas, the 4-year SOL enumerates specifically open-ended debts, Credit cards are open-ended debts, not secured, they also fall under that SOL. There is no definition in UT code for Instrument as it relates to the usage in the 4-year SOL; whereas, because the secured transaction section clearly states that use of a card (including credit or charge cards) does not constitute an Instrument. Without a clear definition of Instrument in the Code, relating to credit cards specifically, in a section which enumerates open-ended credit, or unsecured transactions, applying the definition from 70A 9a 1 section 102(47) is reasonable, and the only viable option. 

Reverting back to the SOF, terms and conditions are not signed by me, they only constitute a valid contract if sent to consumer prior to use of card. Plaintiff has not provided terms and conditions from 2006, or offered any evidence that the card was used. Without that, documents offered are not valid contracts, unless signed, in this scenario, signed by me.  

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26 minutes ago, Myself said:

This section is from Secured Transactions. The scope of the Six-year SOL listed in 78B-2-309 -  Within six years -- Mesne profits of real property -- Instrument in writing, elaborates, denotes, enumerates on items that are secured transactions. Real Property involves land, or structures, which are secured transactions, this is the outlined scope of this SOL section, so the definition of Instrument in 70A 9a 1 section 102(47) applies to the use of the word in 78B-2-309. Whereas, the 4-year SOL enumerates specifically open-ended debts, Credit cards are open-ended debts, not secured, they also fall under that SOL.

As you've pointed out, the definition of "instrument" is based upon secured transactions.   The beginning of 70A-9a-102 says "in this chapter".  That means those definitions only apply to that chapter and to secured transactions.  It does not indicate that the definitions apply to any other chapter or to unsecured transactions. 

You're still missing the point about open-ended accounts.  First, the statutes do not define it.   Second, 78B-2-307 makes only 2 references to open accounts.  One is for a store account and the other is for work, labor, or services rendered.

Quote

Reverting back to the SOF, terms and conditions are not signed by me, they only constitute a valid contract if sent to consumer prior to use of card. Plaintiff has not provided terms and conditions from 2006, or offered any evidence that the card was used. Without that, documents offered are not valid contracts, unless signed, in this scenario, signed by me.  

The terms and conditions is not required to be signed by you.  

25-5-4(2)(e):

(e)A credit agreement is binding and enforceable without any signature by the party to be charged if:

(i)the debtor is provided with a written copy of the terms of the agreement;

(ii)the agreement provides that any use of the credit offered shall constitute acceptance of those terms; and

(iii)after the debtor receives the agreement, the debtor, or a person authorized by the debtor, requests funds pursuant to the credit agreement or otherwise uses the credit offered.

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@BV80

It is required to be signed, unless, it can be proven that the consumer received the terms and conditions prior to use, or made a purchase. Plaintiff has not provided terms and conditions from 2006, or a statement showing usage, or a charge being made. Without that, a contract is valid when signed, which they have not offered a contract signed by the person to be charged, in this case me. 

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