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(TEXAS) BEING SUED BY CROWN ASSESET MANAGEMENT Non- Suited


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1. Who is the named plaintiff in the suit?

Crown Asset Management LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Honorable Jessica Olsen-Zhang

Rausch Strum Israel Enerson & Hornik LLC

3. How much are you being sued for?

$1,042.29  plus attorneys fees and court cost

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

Synchrony (Belk Rewards Card)

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

Served

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

In Person

7. Was the service legal as required by your state?

Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

None

9. What state and county do you live in?

Texas, Gillespie County

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

allegedly February 23, 2015

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

4 years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

 answer due by December 1 2017

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

no

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

no

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

20 days from being served / 50 days for discovery

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

no evidence

 

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I don't even know how to begin to answer some of these questions, but I have put together a motion requesting permission from the Judge to request Discovery, as you can see, they did not request permission, they just include them with the citation.

I know a few things have changed since the last time I was here, because I won my first case by default, but lost a couple months later on another case because apparently now days, the JDC does not have to provide the ORIGINAL SIGNED CONTRACT......

So, any help, guidance and direction would be greatly appreciated.

 

 

 

REQUEST FOR DISCLOSURE

Pursuant to Texas Rule of Civil Procedure 190.2(b)(6) Defendant is requested to disclose all documents, electronic
information, and tangible items that Defendant has in his/her possession, custody, or control and that Defendant may use to
support his/her claims or defenses,

Pursuant to Texas Rule of Civil Procedure 194.3 Defendant is requested to disclose within 50 days of service of' this
Request, the information or material described in Texas Rule of Civil Procedure 194.2(a)-(I),

                      (a)          the correct names of the parties to the lawsuit;

                      (b)          the names, address, and telephone numbers of at y potential parties;

                     (c)          the legal theories and, in general, the factual bases of the responding party's claims or defenses (the
res
ponding party need not marshal all evidence that may be offered at trial);

                     (d)          the amount and any method of calculating economic damages;

                     (e)          the name, address, and telephone number of persons having knowledge of relevant facts, and a brief statement
of each i
dentified person's connection with the case;

                     (I)          for any testifying expert:

                                   (1)          the expert's name, address, and telephone number;

                                   (2)         the subject matter on which the expert will testify;

 

                                   (3)          the general substance of the expert's mental impressions and opinions and a brief summary of the

                                                 basis [or them, or if the expert is not retained by, employ d by, 01' otherwise subject 10 the control

                                                 of the responding party, documents reflecting such information;

 

                                                 (A)        all documents, tangible things, reports, models, or data compilations that have been provided

                                                               to, reviewed by, employed by prepared by or for the expert in anticipation of the expert's

                                                               testimony; and

                                                 (B)        the expert's current resume and bibliography;

                      (g)          any indemnity and insuring agreements described in Rule 192.3 (1);

                      (h)          any settlement agreements described in Rule 192.3 (g);

                      (i)          any witness statements described in rule 192.3 (h);

                      (j)   in a suit alleging physical or mental injury and damages from the occurrence that is {he subject of the case,
all medical records and bills that are reasonably related to the injuries or damages asserted or, in lieu thereof,
an authorization permitting the disclosure of such medical records and bills;

                      (k)   in a suit alleging physical or mental injury and damages from the occurrence that. is the subject of the case,
all medical records and bills obtained by the responding party by virtue of an authorization furnished by the
requesting party;

                      (1)          the name, address, and telephone number of any person who may be designated as a responsible third party.

 

2. 

 

REQUEST FOR PRODUCTION

 

Pursuant to Texas Rule of Civil Procedure 196, Defendant is directed to provide written responses to the following
R
equest for Production and to produce the documentation requested therein to Plaintiff through its attorney of record within
50 days after the dale of service.

1.              Please produce all documents in your possession relating to the Account, including credit applications, signed
c
ontracts, and/or any terms, conditions, account holder agreements or any amendments to same.

2.               Please produce all communications made between you and Plaintiff and/or The Original Creditor within the four years
immediately preceding the dale this lawsuit was filed. Please include in your response a copy of any request tor
verification or validation of the Account.

3.              Please produce copies of a ay written notices sent by Defendant to P air tiff and/or The Original Creditor objecting
10 or disputing the Account.

4.              If you contend that Defendant does not owe the amount claimed by Plaintiff in this lawsuit and/or that all due
payments, offsets, credits and/or deductions in favor of Defendant have not been applied to the Account, please
produce all documents in support of such contention.

5.              If you contend that Defendant did not owe a balance 011 the Account 10 The Original Creditor at the time the Account
w
as closed, please produce al document in support of such contention.

6.              If you contend that Defendant docs not owe the amount claimed by Plaintiff in this lawsuit as a result of identity theft
a
nd/or fraud, please produce all documents in support of this contention,

7.              If you contend that Plaintiff has violated the Fair Debt Collection Practices Act, The Fair Credit Reporting Act, the
Te
xas Debt Collection Act, the Texas Finance Code, the Texas Deceptive Trade Practices Act or any other Federal
o
r State statute, including the Texas Rules of Civil Procedure and or the Texas Civil Practice and Remedies Code,
in connection with the Account, please produce all documents in support of your contention.

8.              If you contend Plaintiff has made any misrepresentations regarding the Account and/or taken any false or deceptive
ac
tions with respect to the Account, please produce nil documents ill support of your contention.

9.              If you contend that Plaintiff has engaged in improper, abusive, and/or hara$$ing collection efforts with respect to the
A
ccount, please produce all documents in support of your contention.

10.            If you have or intend to assert any counterclaims against Plaintiff in this lawsuit, please produce all documents upon
w
hich you base such claims.

11.            If you have asserted counterclaims against Plaintiff in this lawsuit, please produce all documents reviewed and/or
r
elied upon at the time you filed the counterclaims. If an investigation was performed by Defendant's counsel prior
t
o filing the counterclaim, please provide ail documents that were reviewed as part of the investigation that arc not
subject to privilege.

12.            If you contend that Plaintiff's claims ill this lawsuit are barred by the applicable statute of limitations, please produce
al
l documents in support of your contention, including any documents showing when you contend the last payment
w
as made on the Account 01' when the last purchase/charge was incurred on the Account.

13.            If you have asserted any affirmative defenses in response to this lawsuit, please produce all documents in support of
ea
ch affirmative defense asserted.

 

 

 

 

14.            If you contend that Plaintiff is not the current holder of the Account or does not have standing to bring this lawsuit,
please produce all documents in support of your contention, including specifically, any demands or notices received
by you from any other party seeking to collect on the Account.

REQUEST FOR ADMISSIONS

Pursuant to Texas Rule of Civil Procedure 198, please respond in writing to tile following Request for Admissions
by admitting or denying the truth of the following statements' and serve such written responses on Plaintiff through its counsel of record within 50 day after the dale of service. In the event Defendant(s) fails to respond in writing to Plaintiff's Request for Admissions within 50 days after the date of service of this Request, Plaintiff's Request for Admission shall be deemed admitted without the necessity of a court order as permitted under Texas Rule of Civil Procedure 198.2(e), and such Deemed Admissions may be relied upon by Plaintiff in support of its claims against Defendant(s).    

.

Admit or Deny the following Requests:

1.       As of the date Plaintiff's Petition was filed Defendant owed Plaintiff  $1 ,042.29 on the Account.

2.       Defendant made use of the Account OR made payments 011 the Account within the four years immediately
preceding the date this lawsuit was filed.

3.       Defendant was provided with a copy of the applicable terms and conditions and/or the account holder agreement

                               for the Account.               .

4.       Defendant did not object to the applicable terms and conditions and/or account holder agreement for the Account
prior to making use of the Account,

5.       Defendant knew he/she would be assessed interest, late-fees, over-limit fees and other fees and/or penalties in
exchange for the ability to use the Account.

6.       Defendant was notified of all applicable interest rates, late-fees, over-limit fees and other fees and/or penalties that
we
re assessed on the Account.

7.       During the life of the Account, Defendant regularly received monthly account statements for the Account in the
co
rresponding billing cycle.

8.       Defendant was notified of all changes and/or amendments to the terms and conditions and/or account holder
agre
ement for the Account.

9.       At the lime Defendant's last payment was applied to the Account a balance remained owed on the Account.

10.    All due payments, credits, deductions and/or adjustments in favor of Defendant have been applied to the Account.

11.    Plaintiff is the current owner of the Account.

 

 

PLAINTIFF’S FIRST SET OF INTERROGATORJES

 

        1.           If you deny that you owe the amount claimed by Plaintiff in its Petition, please state the factual basis for your denial.

        2.           Please state the factual basis for any affirmative defenses you have asserted in this lawsuit,

3.               Please state the factual basis for any counterclaims you have asserted against Plaintiff in this lawsuit. Plaintiff is not
r
equesting a detailed narrative. Plaintiff is requesting to know the actions or omissions allegedly committed by
Plaintiff that serve the basis of the counterclaim(s), when they were allegedly committed, and the name(s) of the
person who committed them.

4.               If you have filed a counterclaim against Plaintiff in (his lawsuit, please state the steps taken and/or investigation
c
onducted to determine the validity of the such claims prior to filing such counterclaims

5.               If you contend that you have received any demands for payment on the Account from any entity other than the
Plai
ntiff, the Origins Creditor and\or their authorized attorneys or representatives within the 12 months preceding
the filing of this lawsuit please identify such entity, the approximate date the demand was made, and how the demand
was made (ie
- in writing via mail, over tile telephone, etc.). If you have not received any demands for payment from
any entity other than Plaintiff and/or its attorneys within the 12 months preceding the filing of this lawsuit, please
answer "NONE".

 

 

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  • 2 weeks later...

What the heck is this saying?

 

Quote

When any action or defense is founded upon an open account or other claim for goods, wares and merchandise, including any claim for a liquidated money demand based upon written contract or founded on business dealings between the parties, or is for personal service rendered, or labor done or labor or materials furnished, on which a systematic record has been kept, and is supported by the affidavit of the party, his agent or attorney taken before some officer authorized to administer oaths, to the effect that such claim is, within the knowledge of affiant, just and true, that it is due, and that all just and lawful offsets, payments and credits have been allowed, the same shall be taken as prima facie evidence thereof, unless the party resisting such claim shall file a written denial, under oath. A party resisting such a sworn claim shall comply with the rules of pleading as are required in any other kind of suit, provided, however, that if he does not timely file a written denial, under oath, he shall not be permitted to deny the claim, or any item therein, as the case may be. No particularization or description of the nature of the component parts of the account or claim is necessary unless the trial court sustains special exceptions to the pleadings.

 

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RULE 500.9.  DISCOVERY
(a) Pretrial Discovery.  Pretrial discovery is limited to that which the judge considers reasonable and necessary.  Any requests for pretrial discovery must be presented to the court for approval by written motion.  The motion must be served on the responding party.  Unless a hearing is requested, the judge may rule on the motion without a hearing.  The discovery request must not be served on the responding party unless the judge issues a signed order approving the request.  Failure to comply with a discovery order can result in sanctions, including dismissal of the case or an order to pay the other party’s discovery expenses. 

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On 11/17/2017 at 7:17 PM, Just Me 78631 said:

I have put together a motion requesting permission from the Judge to request Discovery, as you can see, they did not request permission, they just include them with the citation.

You do not need permission from the court to do discovery in District Court.  That is ONLY JP court.  That is why RSIEH has already sent you discovery.

On 11/17/2017 at 7:29 PM, Just Me 78631 said:

Another question, this should have been filed in Justice Court  Precinct 2, but they filed it in District 216th Court. Can they do that?

Yes, they can do that.  There is no requirement they use JP court.  My guess is that they did the because Judge Hubner in Precinct 2 is EXTREMELY objective and will make them prove their case and they don't need permission to do discovery.  They are also aware that District Court will follow all the rules of civil procedure and a pro-se defendant can easily be over whelmed.

4 hours ago, Just Me 78631 said:

RULE 500.9.  DISCOVERY
(a) Pretrial Discovery.  Pretrial discovery is limited to that which the judge considers reasonable and necessary.  Any requests for pretrial discovery must be presented to the court for approval by written motion.  The motion must be served on the responding party.  Unless a hearing is requested, the judge may rule on the motion without a hearing.  The discovery request must not be served on the responding party unless the judge issues a signed order approving the request.  Failure to comply with a discovery order can result in sanctions, including dismissal of the case or an order to pay the other party’s discovery expenses. 

The 500 section rules apply to JP court NOT District Court where your case is.

You need to file a properly drafted answer to the court ASAP and assert private contractual arbitration in JAMS as an affirmative defense.  In Texas if you do not do that you waive your right to arbitration.  Synchrony has a great arbitration clause and the JDB will not want to pay those fees.  The key to defeating this is to get it out of court.

We can tackle the discovery issue later I am at work right now.

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3 hours ago, Clydesmom said:

You do not need permission from the court to do discovery in District Court.  That is ONLY JP court.  That is why RSIEH has already sent you discovery.

Yes, they can do that.  There is no requirement they use JP court.  My guess is that they did the because Judge Hubner in Precinct 2 is EXTREMELY objective and will make them prove their case and they don't need permission to do discovery.  They are also aware that District Court will follow all the rules of civil procedure and a pro-se defendant can easily be over whelmed.

The 500 section rules apply to JP court NOT District Court where your case is.

You need to file a properly drafted answer to the court ASAP and assert private contractual arbitration in JAMS as an affirmative defense.  In Texas if you do not do that you waive your right to arbitration.  Synchrony has a great arbitration clause and the JDB will not want to pay those fees.  The key to defeating this is to get it out of court.

We can tackle the discovery issue later I am at work right now.

Thank you,  I'm working on my answer all night and today....I'm about to take my girls to the DANCE STUDIO AND GYM, SO I WILL BE BACK HOME AFTER EIGHT,  I have to file by Monday....I will get what I have uploaded when I get back, I may be way over the top with the answers.., One of the things I'm finding is that the Original Petition has no Discovery Control Plan and ..........The Belk Card I used to have was owned and serviced by GE Capital Retail Bank, with a Card Security Plan....

I'll be back, thanks again for the input.  Tackling Plaintiffs claim that all conditions precedent have been performed prior to filing suit.

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This case is going to be the death of me.....I swear this thing better be done by tomorrow. I have never read so much information in my life...Still not sure how to handle the Sychrony Bank conflict to my advantage, but I did create a spread sheet today, and if in fact I did not pay this debt off, the very most the balance left hould have been with protection fees, insurance and late fees $392.23, so I'm really curious as to how it got to $1042. and change.

Plus I found this today:

 
Quote

 

January 25, 2017 09:00 AM Eastern Standard Time

STAMFORD, Conn. & CHARLOTTE, N.C.--(BUSINESS WIRE)--Synchrony Financial (NYSE:SYF), a premier consumer financial services company, and Belk, a private department store company, today announced they have agreed to a multi-year renewal of Synchrony Financial’s consumer financing program.

 

 

Yet this JDB claims that Synchrony Bank canceled my account , and then states the credit account was subsequently was closed due to non payment and/or charged off to profit and loss on/or about September 28, 2015. And then they imply that on or about August 25  2016 Synchrony assigned Defendant's credit account to said Plaintiff, and said Plaintiff is the current holder of Defendant's account and the proper party to bring suit.

This could be a fun case to watch unfold,,,,

Also if RSIEH is the Assignee what is the purpose of adding the assignee of Synchrony Bank (Belk Reward Card) as a second Plaintiff?.

If a debt collector sues you, most state and local procedural rules put even heavier documentation requirements on both the debt collector and creditor. In many states, a creditor or debt collector that is suing for collection of an account must:

attach to the complaint a copy of the account or written contract or agreement, or

tate in the complaint why the account or document is not attached.

Related Ads

This is often referred to as the “attachment rule.”

If the creditor or debt collector doesn’t do this, you may be able to get the lawsuit dismissed. Or, you can ask the court to require the creditor or debt collector to provide the missing documentation and information. This is often called “requesting a more definite statement.” In either case, you’ll have to prepare and file a formal motion with the court.

 
Quote

 

March 26, 2013 09:00 AM Eastern Daylight Time

STAMFORD, Conn. & CHARLOTTE, N.C.--(BUSINESS WIRE)--GE Capital Retail Bank, which provides consumer financing solutions to retailers to help grow their customer sales, today announced an extension of their multi-year agreement to offer the Belk Rewards private label credit card program. Belk, the nation’s largest privately owned retailer, sold the credit card portfolio to GE Capital and launched the enhanced offering in 2005. GE Capital’s Retail Finance business, which manages the relationship and services the account, is also commemorating Belk’s 125th anniversary, releasing an updated branded credit card with a 125 years icon to their accountholders and serving as an exclusive, presenting sponsor for Belk’s 125 Days of Service initiative, dedicated to improving conditions at 250 Title 1 schools in low-income communities in 16 states.

 

 Just cannot imagine what documents they will produce showing that I do in fact own the debt....

Also if

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I'm totally freaking out....I keep second guessing everything I put together, if I just do a general denial, and no affirmative defenses what happens then?

I have no idea about the arbitration clause and how/and when to address that

I have a generic Discovery Request, do I send that at the same time as my answer

And their Discovery Questions are way over my ability because of it being in District Court in front of the judge who is the judge on my adoption case.....

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This is where I am at so far, must file by Monday:

 

Case No. 

 

Crown Asset Management LLC assignee of                     In the  District Court of

Synchrony Bank (Belk Rewards Card)

                        Plaintiff

 

Vs

Just Me 78931                                                                                County Texas

            Defendant

 

 

 

 

DEFENDANTS ORIGINAL ANSWER, PLEA TO THE JURISDICTION, AND SPECIAL

 

EXCEPTIONS

ANSWER

A. PARTIES

A. 1      Agreed

A. 2      Agreed

 

Defendant generally denies, pursuant to Rule 92 of the Texas Rules of Civil Procedure, each and

every, all and singular, of The Plaintiff's allegations.

Defendant asserts that the claims are barred by the applicable statute of limitations.

Defendant asserts that the interest rates charged by the original creditor are usurious.

B. PLEA TO THE JURISDICTION

DENIED           

Grounds for Dismissal for Lack of Standing

This is a lawsuit arising out of an alleged consumer credit card debt. Plaintiff, is not a financial institution, original creditor, lender, or issuer of any credit card. Instead,
Plaintiff alleges " The account was assigned to plaintiff on or about August 25th 2016 " See Plaintiff's Original Petition in paragraph 6. There is an allegation or statement as to SYNCHRONY BANK (BELKS REWARD CARD) as the seller, and there is no way from these pleadings to determine if Plaintiff purchased or was assigned the account from anyone in the chain of title, and no way to determine what rights, if any, the Plaintiff has to bring suit. A plaintiff who seeks to sue based on rights acquired by an assignment must plead and prove up the assignment. Plaintiff has not done either.

 

In Texas, a cause of action for injury belongs to the person who owned the property at the time of the alleged injury. Ceramic Tile International, Inc. v. Balusek, 137 S.W.3d 722, 724 (Tex.App.-San Antonio 2004, no pet.).  A subsequent purchaser cannot recover for an injury committed before his purchase absent an express provision in the contract, or by virtue of an assignment granting him that power. Ceramic Tile, 137 S.W.3d at 724. If Plaintiff is the assignee and rightful owner of the debt, this should be very easy for Plaintiff to allege and prove, yet Plaintiff avoids issue, when such issues cannot wait until trial. Without a pleading of an assignment and admissible evidence of the assignment, there is no subject matter jurisdiction and this case must be dismissed. Whether plaintiff has standing to bring this lawsuit is a threshold issue that should be resolved at the onset, and the instant plea to the jurisdiction is a proper means by which to address this threshold question.

Legal Standards for a Plea to the Jurisdiction

The purpose of a plea to the jurisdiction is to dismiss a cause of action without regard to whether the underlying claim has merit. Bland ISD v. Blue, 34 S.W.3d 547, 554 (Tex. 2000). the court of appeals held that a plea to the jurisdiction must be decided solely on the basis of the plaintiffs' pleadings and not on evidence. The plea challenges the court's power to adjudicate the subject matter of the controversy. Texas DOT v. Arzate, 159 S.W.3d 188, 190 (Tex.App. – El Paso 2004, no pet.),


Standing is a basic requirement of the judicial system and goes directly to the court's subject matter jurisdiction over a case. It may be raised at any-time and, unlike a challenge to a party's capacity to sue, cannot be waived or presumed. A plea to the jurisdiction is the proper way to challenge a party's lack of standing. Waco ISD v. Gibson, 22 S.W.3d 849, 850 (Tex. 2000). Before it can proceed in any meaningful manner, a trial court must establish to its own satisfaction that it has jurisdiction.  Once that jurisdiction has been challenged by a plea to the jurisdiction that identifies specific deficiencies, it is not unreasonable to expect the plaintiff who invokes the court’s jurisdiction to provide the trial judge with the best statement of the plaintiff’s case to assist the court in determining the critical jurisdictional issues. The plaintiff must come forward with sufficient evidence to demonstrate that there is at least an issue of fact as to the existence of jurisdiction. Texas Department of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 227-228 (Tex. 2004). The court should grant defendant's plea to the jurisdiction because on the face of the petition, it is clear that the plaintiff is not the original creditor, which therefore puts standing at issue and it is certain that this Plaintiff will not come forward with admissible evidence of standing to bring the lawsuit.

C. VENUE

AGREED

 

Any debt collector who brings any legal action on a debt against any consumer shall—

(1) in the case of an action to enforce an interest in real property securing the consumer’s obligation, bring such action only in a judicial district or similar legal entity in which such real property is located; or

(2) in the case of an action not described in paragraph (1), bring such action only in the judicial district or similar legal entity—

(A) in which such consumer signed the contract sued upon; or

(B) in which such consumer resides at the commencement of the action.

 

C. FACTS

DENIED

Plaintiff alleges " The account was assigned to plaintiff on or about August 25th 2016 " See Plaintiff's Original Petition in paragraph 4. There is an allegation or statement as to SYNCHRONY BANK (BELKS REWARD CARD) as the seller, and there is no way from these pleadings to determine if Plaintiff purchased or was assigned the account from anyone in the chain of title, and no way to determine what rights, if any, the Plaintiff has to bring suit. A plaintiff who seeks to sue based on rights acquired by an assignment must plead and prove up the assignment. Plaintiff has not done either.

E. SPECIAL EXCEPTION TO ACCOUNT STATED

1. Credit Card Cases Are Based on Express Contracts and Cannot Be Brought On Implied Contract Theories Like Account Stated.

The Texas Supreme Court made clear in Truly v. Austin 744 S.W. 2d 934, 936 (Tex. 1988) that a plaintiff may not avoid the terms of its express contract by seeking recovery on an implied contract theory if the damages claimed are covered by the express contract. Credit card cases brought on an account stated theory violate this Supreme Court holding. Credit Card arrangements are governed by express contracts. The only viable cause of action for breach of a credit card is breach of contract. Implied or quasi-contractual causes of action like an account stated cannot be brought on a credit card debt without violating Truly v. Austin.

Texas courts will not imply the existence of contract where an express contract already exists. Fortune Production Co. v. Conoco, Inc.,52 S.W.3d 671 684 (Tex. 2000), Woodard v. Southwest States, Inc., 384 S.W.2d 674 (Tex 1964), Musick v. Pogue, 330 S.W.2d 696, 699 (Tex. Civ App.- San Antonio 1959, writ ref'd n.r.e.). The reason for this rule, as described by the Supreme Court in Fortune Production, is that parties should be bound by their express agreements. When a valid agreement addresses the matter, a party should not be able to recover more than is provided for in the agreement. Id., 52 S.W.3d at 684. "Count 1" of the Original petition fails to provide fair notice as to how The Plaintiff can avoid this express contract in favor of an account stated.

The principle that a plaintiff should not be able to use an implied contractual theory to recover more than his contract authorizes is particularly applicable to credit card cases. Credit card fees and interest rates are heavily regulated. Federal Law mandates comprehensive disclosures of these terms when the account is opened and when the account is amended. See e.g. 15 U.S.C. § 1637©(1)-(7), 12 C.F.R. 225.5-225.16. Credit card plaintiffs should be able to produce these disclosures or otherwise prove the interest rates and fees that their customers agreed to pay. Using an account stated theory to imply an agreement to pay the interest and fees would improperly relieve plaintiff from establishing the amount of interest and fees that were required to be disclosed to the defendant under Federal law, and must have been included in the terms of its alleged express agreement with the defendant.

2. A Credit Card Account Is Not an Account Stated

A credit card account is not an "account" as that term has been used in the common law governing suits on account. A credit card account does not arise out of a course of dealing between two parties engaging in transactions in goods. A credit card account is a multiparty arrangement. Each transaction involves at a minimum, the debtor, a merchant, the merchant's bank, a clearing organization such as Visa, Mastercard, American Express, the card issuing bank and the card issuing bank's credit card processing unit. Every transaction brings a new merchant and merchant bank into the web of transactions that make up the account, with the result that over the term of a credit card account, hundreds of parties may be involved, not just two as envisioned for a common law account. Moreover, the transactions in a credit card account are not merely sales of goods. The account issuer does not sell goods to the account holder: instead, it makes extensions of credit to the account holder or to third party merchants on the account holder's behalf. For these reasons the cause of action for account stated does not apply to credit cards.

An account stated is merely an open account that has been closed because the party charged has agreed that the account is correct. Whittlesey v. Spofford 47 Tex. 13, (Tex. 1877), Wroten Grain & Lumber v. Mineola Box Mfg. Co., 95 S.W. 744 (Tex Civ. App.-1906), Padgitt Bros. Co. v. Dorsey, 194 S.W. 1124, 1126 Tex Civ. App.- El Paso 1917, no writ). An open account is an implied claim that arises from the course of dealing between two parties who engage in a series of transactions in which title to goods passes from one to the other. McCamant v. Batsell, 59 Tex. 363, 367-369 (Tex 1883), Livingston Ford Mercury, Inc. v. Haley, 997 S.W.2d 425, 427 (Tex App.----Beaumont 199, no writ).

Over a century ago in McCamant v. Batsell, 59 Tex. 363, 1883 WL 9175 (Tex. 1883), a case that has never been overruled, The Supreme Court construed the word “account” as it is used in this context as limited to suits arising out of relationships in which title to goods was transferred from the plaintiff to the defendant and further excluding suits in which the rights of the parties were defined by a written agreement.

In McCamant, a suit on a promissory note, the plaintiff sought to make use of the then existing statute governing suits on account, which like current Rule 185, set up abbreviated procedure for resolving disputes involving such suits. Unlike the current rule the statute did not enumerate the kinds of action that could be brought as suits on account. The Supreme Court construed the meaning of the term “account” in the statute as being consistent with the common law meaning of the term:

“As used in the statutes of this state, in the act referred to, we believe that the word “account” is used in its popular sense, rather than in a technical sense, and that it applies to transactions between persons in which, by sale upon one side and purchases upon the other, the title to personal property passes from one to the other, and the relation of debtor and creditor is thereby created by general course of dealing.”

The Court also ruled that the plaintiff’s suit against the maker of a note and his sureties could not be brought as a suit on account or an open account because it did not arise out of the course of dealings between a buyer and seller, but was based upon a written agreement in which all the terms were fixed and certain. Id., 1883 WL 9175 at 6.

The Supreme Court reaffirmed the holding of McCamant in Meaders v. Biskamp, 316 S.W.2d 75 (Tex. 1958), in which The Court distinguished a suit on an account from a suit based upon an express contract for purposes of awarding attorney’s fees. The then applicable language of Tex. Civ. Stat. Art. 2226, the predecessor to Tex. Civ. Prac. & Rem. Code Ch. 38 permitted an award of attorney’s fees for a suit upon a sworn account but did not include the present language authorizing fees in a breach of contract case. The Meaders court, citing McCamant held that a suit founded upon a written contract for the drilling of an oil well was not a suit on account because the relationship of debtor and creditor did not arise from a course of dealing but from a contract. Id., 316 S.W.2d at 78

The classic statements of the elements of the account stated cause of action expressly draw a distinction between suits that grow out of a course of dealing and suits that grow out of an express agreement. For example, in Central Nat. Bank of San Angelo v. Cox, 96 S.W.2d 746, 748(Tex. Civ. App.—Austin 1936, writ dismissed), the court said:

“The cases are legion on what constitutes an account stated. In general the essential elements involved are: Transactions between the parties which give rise to an indebtedness of one to the other; an agreement, express or implied, between them fixing the amount due; and a promise, express or implied, by the one to be charged, to pay such indebtedness. 1 Tex.Jur. p. 371 et seq.; 1 C.J. 678; 1 Am.Jur. 272; 1 C.J.S., Account Stated, p. 693.”

The first and defining element of the claim is existence of a debtor-creditor relationship that arises from a series of transactions—from a course of dealing, not a contract. This element is identical across all suits on account, whether open, sworn or stated. While the other elements of the claim do reference an agreement, the subject matter of the agreement is not the creation or terms of the debtor-creditor relationship, but the acknowledgement, after the transactions that gave rise to the relationship have occurred, of the amount due and the obligation to pay.

Recent court of appeals decisions allowing a stated account on a credit card have overlooked these Texas Supreme Court authorities and instead are based upon mere dicta from a footnote in a decision out of the Dallas court of appeals. In a footnote in that case, Dulong v. Citibank (South Dakota) N.A., 261 S.W.3d 890 (Tex.App.----Dallas 2008) the court stated that a sworn account requires the passage of title and is thus not a proper tool for a credit card case but noted that it differs from an account stated in this regard. But neither that decision nor any of the other appellate decisions that have followed it have explained how they reached this conclusion. These decisions are utterly devoid of any analysis or legal authority on the issue, and none of them discuss McCamant v. Batsell. These decisions are simply contrary to Texas Supreme Court authority.

SPECIAL EXCEPTION TO QUANTUM MERUIT

Quantum Meruit it is an implied contact theory where an express contract already exists. In addition,in order to establish a quantum meruit claim a plaintiff must establish that it provided services orgoods directly to the defendant.  See Vortt Exploration Co. v. Chevron U.S.A., Inc., 787 S.W.2d 942, 944(Tex. 1990)

CREDITOR DID NOT SELL GOODS OR PROVIDE COMPENSABLE SERVICES

A quantum meruit claim requires, at a minimum, that the claimant have furnished valuable materials or services to the party from whom it is seeking recovery. Credit card issuers do not sell goods;  nor did they provide services that meet the definition of quantum meruit under longstanding  appellate precedents.

A CARD MEMBER/ACCOUNT AGREEMENT GOVERNS THE RELATIONSHIP BETWEEN BANK AND CUSTOMER

In general, a party may recover under the doctrine of quantum meruit only in the absence of an express contract covering the services or materials furnished. The existence of an express contract does not preclude recovery in quantum meruit for the reasonable value of services rendered and accepted which are not covered by the contract, but this exception has no application in the context of credit cards, -- at least not credit cards issued by banks which have no business dealings with their customers that would not be based on, and governed by, the applicable account agreement.

F. DAMAGES

DENIED

G. CONDITIONS PRECEDENT

H. MISCELLANY

PRAYER

Wherefore, premises considered, Defendant prays that the Court grant his Plea to the Jurisdiction, grant his Special Exceptions, enter judgment in his favor and against Plaintiff, that Plaintiff take nothing, that the Court assess costs against Plaintiff and award Defendant all other relief to which he is entitled.

Respectfully Submitted,

Edited by Just Me 78631
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A. Instructions

For any requested information about a document that no longer exists or cannot be located, identify the document, state how and when it passed out of existence or when it could no longer be located, and give the reasons for the disappearance. Also, identify each person having knowledge about the disposition or loss, and identify each document evidencing the existence or nonexistence of each document that cannot be located.

B. Definitions

The following definitions shall have the following meanings, unless the context requires otherwise:

1.  "Plaintiff or "defendant," as well as a party's tilll or abbreviated name or a pronoun referring to a party, means the party, and when applicable, the party's agents, representatives, officers, directors, employees, partners, corporate agents, "subsidiaries, affiliates, or any other person acting in concert with the party or under the party's control, whether directly or indirectly, including any attorney

2. "You" or "your" means Plaintiff, its successors, predecessors, divisions, subsidiaries, present and former officers, agents, employees, and all other persons acting on behalf of Plaintiff or its successors, predecessors, divisions, and subsidiaries

3. "Document" means all written, typed, or printed matter and all magnetic, electronic, or other records or documentation of any kind or description in your actual possession, custody, or control, including those in the possession, custody, or control of any and all present or former directors, officers, employees, consultants, accountants, attorneys, or other agents, whether or not prepared by you, that constitute or contain matters relevant to the subject matter of the action. "Document" includes, but is not limited to, the following: letters, reports, charts, diagrams, correspondence, telegrams, memoranda, notes, records, minutes, contracts, agreements, records or notations of telephone or personal conversations or conferences, interoffice communications, e-mail, microfilm, bulletins, circulars, pamphlets, photographs, faxes, invoices, tape recordings, computer printouts, drafts, resumes, logs, worksheets,

4. "Electronic or magnetic data" means electronic information that is stored in a medium from which it can be retrieved and examined. The term refers to the original (or identical duplicate when the original is not available) and any other copies of the data that may have attached comments, notes, marks, or highlighting of any kind. Electronic or magnetic data includes, but is not limited to, the following: computer programs; operating systems; computer activity logs; programming notes or instructions; e-mail receipts, messages, or transmissions; output resulting from the use of any software program, including word-processing documents, spreadsheets, database files, charts, graphs, and outlines; metadata; PIF and PDF files; batch files; deleted files; temporary files; Internet or web browser-generated information stored in textual, graphical, or audio format, including history files, •  caches, and cookies; and any miscellaneous files or file fragments. Electronic or magnetic data includes any items stored on magnetic, optical, digital, or other electronic-storage media, such as hard drives, floppy disks, CD-ROMs, DVDs, tapes, smart cards, integrated-circuit cards (e.g., SIM cards), removable media (e.g., Zip drives, Jaz cartridges), microfiche, and punched cards .. Electronic or magnetic data also includes the file, folder. tabs, containers, and labels attached to or associated with any physical storage device with each original or copy. Electronic documents and electronic or magnetic data shall be produced in electronic form-. with the metadata intact. 

5. "Possession, custody, or control" of an item means that the person either has physical possession of the item or has a right to possession equal or superior to that of the person who has physical possession of the item.

6.  "Person" means any natural person, corporation, firm, association, partnership, joint venture, proprietorship, governmental body, or any other organization, business, or legal entity, and all predecessors or successors in interest.

7. "Mobile device" means any cellular telephone, satellite telephone, pager, personal digital assistant, handheld computer, electronic rolodex, walkie -talkie, or any combination of these devices.

8. "Contract" means the agreement that is the subject of this lawsuit.

9, "Identify" or "describe," when referring to a person, means you must state the

following:

a. The full name.

b. The present or last known residential address and residential telephone number.

c. The present or last known office address and office telephone number.

d. The occupation, job title, employer, and employer's address at the time of the event or period referred to in each particular interrogatory.

e. In the case of any entity, identify the officer, employee, or agent most closely connected with the subject matter of the interrogatory and the officer who is responsible for supervising that officer or employee.

IO.  "Identify" or "describe," when referring to a document, means you must state the following:

a. The nature of the document (e.g letter, handwritten note).

b. The title or heading that appears on the document

c. The date of the document and the date of each addendum, supplement, or other addition or change .

d. The identities of the author, signer of the document, and person on whose behalf or at whose request or direction the document was prepared or delivered. e. The present location of the document and the name, address, position or title, and telephone number of the person or persons having custody of the document.

11.  "Accounts at issue in this lawsuit" means the credit card account that you contend the Defendant owes in this lawsuit.

12.  "Subject Account" means the credit card account that you contend the Defendant owes in this lawsuit.

13.  "Goods or Services" means goods, services, personal services, wares, merchandise, labor, or materials. It does not include an advance, loan or payment of money or services incidental to an advance, loan or payment of money such as account handling or collection services.

 

 

INTERROGATORIES

For each interrogatory, identify each person who provided information used to answer that interrogatory and identify their relationship, title and position with the plaintiff.

Answer:

2. With respect to any Card Member Agreement or other written contract that you contend was delivered to Defendant or that applies to the Defendant's account but which does not identify the Defendant by name or which is not signed by Defendant, explain how you know that it was delivered to Defendant and how you know it applies to Defendant's Account.

Answer:

3. Identify any admission or acknowledgement of the debt made by defendant and the amount of the debt acknowledged by defendant to You, the original creditor, or any of your assignors.

Answer:

4. State the method and manner by which You determined the contractual interest rate and the amount of interest owed by Defendant and identify each document you reviewed in making this determination. If you contend that the original creditor made these determinations and you relied upon their determinations, explain how you know the original creditor's determinations were accurate.

Answer:

5. State the method and manner by which You determined the amount of the late fees, penalties or finance charges you claim are owed by Defendant. If you contend that the original creditor made these determinations and you relied upon their determinations, explain how you know the original creditor's determinations were accurate.

Answer:

6.  If you contend that any employee, officer, agent or representative of plaintiff has personal knowledge of the record keeping systems of the original creditor and is qualified to offer testimony as a custodian of records for the original creditor in this case, state the factual and legal basis for your contention.

Answer:  

7.  Identify each document or tangible thing reviewed or relied upon by any custodian of records or other affiant whose affidavit or testimony you intend to use at trial or in connection with any motion or hearing in this case.

Answer:

 

8.  State the date on which the account was opened.

Answer:

9. State the date and amount of the last payment received on the account.

Answer:

10. Identify all representations or claims made by the original creditor and relied upon by you in which the original creditor represented that the business records of the subject account were accurate or reliable.

11.  If you contend your reliance upon the accuracy or reliability of the original creditor's business records was reasonable notwithstanding the disclaimer of warranty stated in the purchase agreement, assignment or bill of sale, state the factual and legal basis for your contention.

Answer:

12.  State the amount you paid as consideration for the assignment of the Subject Account.

Answer:

13.  For any affiant whose affidavit you are offering as a business records affidavit or in support of a motion for summary judgment in this case, identify the number affidavits signed by that affiant on day he or she sitaned the affidavit used in this case and state the total amount of time the affiant spent on the affidavit in this case, including how much time that affiant spent searching for and reviewing documents in this case.

Answer:

14.  For any affiant whose affidavit you are offering as a business records affidavit or in support of a motion for summary judgment in this case, identify each previous case in which that affiant's affidavit has been ruled upon by a court as being inadmissible in whole or in part

Answer:

 

REQUEST FOR PRODUCTION

Please produce any and all documents in your possession, custody or control in each of the following

categories:

1. All documents that you identified in response to any interrogatory.

2. All documents, exhibits, evidence, or any tangible thing which you intend offer as evidence or as an exhibit at trial or during the course of this lawsuit.

3. All written contracts or Card Member Agreements that you contend apply to the Defendant's account.

5. A copy of the attorney fee agreement between Plaintiff and its attorney for any attorney fees you seek to recover in this case.

6. A copy of any time entries or other documents or tangible things that support your claim for reasonable and necessary attorney fees.

7. A complete copy of the agreements that constitute the chain of title for the account at issue in this lawsuit starting with the agreement between the originator of the account and its assignee and including each agreement between an assignee of the account and another assignee of the account and you. This is a request for the entire purchase agreement, not just a redacted bill of sale or exhibit to an agreement, and includes master or "flow" agreements whose terms relate in any way to or are incorporated by an agreement transferring rights to the account at issue in this lawsuit.

8.  All documents containing any warranties or representations (and disclaimers of warranties and representations) made by the original creditor concerning the accuracy or reliability of the original creditor's business records.

9. All documents which show or evidence the date of the Defendant's last payment on the debt that is the subject of this lawsuit.

10.  All documents and tangible things reviewed or relied upon by any custodian of records or other witness whose affidavit or testimony you intend to use at trial or in connection with any motion, pleading, filing or hearing in this case.

11. If you contend that you relied upon the accuracy of the original creditor's business records in purchasing the account, produce all of the documents or tangible things you reviewed prior to purchasing the account that caused you to believe the records were accurate or reliable .

12. If you contend that the original creditor's business records are reliable because the original creditor was under a legal duty to keep accurate records or that the original •  creditor faced a risk of business loss if it did not keep accurate records, produce a copy of all documents and tangible things upon which you base this contention.

13. All credit card statements relating to the Subject Account.

14.  Any admissions or acknowledgments of the subject debt by Defendant.

15. All documents that show the assignment of the Subject Account was supported by good and valid consideration

16. All recordings of any phone calls between plaintiff or its attorneys (including nonlawyer employees of the plaintiffs' attorneys) and defendant.

 

REQUEST FOR ADMISSIONS

 

1. Admit that you did not provide any Goods or Services to the Defendant.

2. Admit that Plaintiff is not the Original Creditors on the account at issue.

3. Admit that Plaintiff did not enter into any contract with Defendant.

4. Admit that you obtained your rights to the account at issue through an assignment.

5. Admit that the account that is the subject of this lawsuit is governed by a written contract between the original creditor and defendant.

6. Admit that the terms and conditions for that account that is the subject of this lawsuit are set forth in a card member agreement.

7. Admit that no employee, agent or representative of Plaintiff is a custodian of records for the Original Creditor on the account at issue in this lawsuit.

8. Admit that no employee, agent or representative of Plaintiff has personal knowledge of Original Creditor's record keeping of any records pertaining to Defendant.

9. Admit that the last payment received on this account was received more than four years before the date on which you filed suit.

10. Admit that the alleged breach of contract that is the basis of this lawsuit occurred more than four years before the date on which you filed suit.

11. Admit that the original creditor sold or assigned the debt with a disclaimer of warranty.

12. Admit that you did not review the original creditor's business records associated with this account prior to your decision to purchase the account.

 

ADDITIONAL REQUEST FOR DISCLOSURE

Pursuant to Tex.R. Civ. P. 190.2(6), you are requested to disclose all documents, electronic information, and tangible items that you have in your possession, custody or control and may use to support your claims or defenses.

 

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2 minutes ago, Just Me 78631 said:

I had a Belk Card owned by GE Capitol Bank

This JDC says the account he is trying to collect is Belk/Sychrony

I'm assuming the Sychrony relation ship began  sometime around

January 25, 2017 09:00 AM Eastern Standard Time

"Synchrony Financial (NYSE:SYF), a premier consumer financial services company, and Belk, a private department store company, today announced they have agreed to a multi-year renewal of Synchrony Financial’s consumer financing program."

AND

"Synchrony Financial has provided a consumer financing program for Belk through the Belk Rewards program for more than a decade."

 

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I was going to admit to the card by not the amount.....my records which are limited indicate I paid this account off.

It was opened in 2006 and not used until August 2013 to purchase school clothes....I made purchases of 880.86 and paid them 960.00

Then it was suggested not to agree to anything and Arbitration was mentioned......

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5 minutes ago, Just Me 78631 said:

It states on a statement that I have 

"Your Account is owned and serviced byGE Capitol Retail Bank"

https://www.bloomberg.com/research/stocks/private/snapshot.asp?privcapId=4423125

"Synchrony Bank was formerly known as GE Capital Retail Bank and changed its name to Synchrony Bank in June 2014."

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OK, so now that's a moot point....

I'm totally freaking out....I keep second guessing everything I put together, if I just do a general denial, and no affirmative defenses what happens then?

I have no idea about the arbitration clause and how/and when to address that

I have a generic Discovery Request, do I send that at the same time as my answer

And their Discovery Questions are way over my ability because of it being in District Court in front of the judge who is the judge on my adoption case.....

 

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12 minutes ago, BV80 said:

I will follow up and read this, one thing I am very familiar with in this court and this Judge is that it will most likely be referred to the  Hill Country Alternative Dispute Resolution Center here locally, I say this because he made us go there on our Adoption petition.

This is on the back of one of the three statements I have:

RESOLVING A DISPUTE WITH ARBITRATION

PLEASE READ THIS SECTION CAREFULLY. IF YOU DO NOT REJECT IT, THIS SECTION WILL APPLY TO YOUR ACCOUNT, AND MOST DISPUTES BETWEEN YOU AND US WILL BE SUBJECT TO INDIVIDUAL ARBITRATION. THIS MEANS THAT: (1) NEITHER A COURT NOR A JURY WILL RESOLVE ANY SUCH DISPUTE; (2) YOU WILL NOT BE ABLE TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING; (3) LESS INFORMATION WILL BE AVAILABLE; AND (4) APPEAL RIGHTS WILL  BE LIMITED.

    What claims are subject to   arbitration

1.  If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or Belk, Inc. if it relates to your account, except as noted below.

2.  We will not require you to arbitrate: (1) any individual case in small claims court or your state’s equivalent court, so long as it remains an individual case in that court; or (2) a case we file to collect money you owe us. However, if you respond to the collection lawsuit by claiming any wrongdoing, we may require you to arbitrate.

3.  Notwithstanding any other language in this section, only a court, not an arbitrator, will decide disputes about the validity, enforceability, coverage or scope of this section or any part thereof (including, without limitation, the next paragraph of this section and/or this sentence). However, any dispute or argument that concerns the validity or enforceability of the Agreement as a whole is for the arbitrator, not a court, to decide.

  No      Class        Actions

YOU AGREE NOT TO PARTICIPATE IN A CLASS, REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION AGAINST US IN COURT OR ARBITRATION. ALSO, YOU MAY NOT BRING CLAIMS AGAINST US ON BEHALF OF ANY ACCOUNTHOLDER WHO IS NOT AN ACCOUNTHOLDER ON YOUR ACCOUNT, AND YOU AGREE THAT ONLY ACCOUNTHOLDERS ON YOUR ACCOUNT MAY BE JOINED IN A SINGLE ARBITRATION WITH ANY CLAIM YOU HAVE.

If a court determines that this paragraph is not fully enforceable, only this sentence will remain in force and the remainder will be null and void, and the court’s determination shall be subject to appeal. This paragraph does not apply to any lawsuit or administrative proceeding filed against us by a state or federal government agency even when such agency is seeking relief on behalf of a class of borrowers, including you. This means that we will not have the right to compel arbitration of any claim brought by such an agency.

  How to start an  arbitration, and the arbitration  process

1.  The party who wants to arbitrate must notify the other party in writing. This notice can be given after the beginning of a lawsuit or in papers filed in the lawsuit. Otherwise, your notice must be sent to GE   Capital Retail Bank, Legal Operation, P.O.               Box 29110, Shawnee Mission,            KS 66201, ATTN: ARBITRATION DEMAND. The party seeking arbitration must select an arbitration administrator, which can b either the American Arbitration Association (AAA), 1633 Broadway, 10th Floor, New York, NY 10019, www.adr.org, (800) 778-7879, or JAMS, 620 Eighth Avenue, 34th Floor, New York, NY 10018, www.jamsadr.com, (800) 352-5267. If neither administrator is able or willing to handle the dispute, then the court will appoint an arbitrator.

2.  If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.

3.  The arbitration administrator will appoint the arbitrator and will tell the parties what to do next. The arbitrator must be a lawyer with at least ten years of legal experience. Once appointed, the arbitrator must             apply the same law and legal principles, consistent with the FAA, that would apply in court, but may use different procedural rules. If the administrator’s rules conflict with this Agreement, this Agreement will control.

4.  The arbitration will take place by phone or at a reasonably convenient location. If you ask us to, we will pay all the fees the administrator or arbitrator charges, as long as we believe you are acting in good faith. We will always pay arbitration costs, as well as your legal fees and costs, to the extent you prevail on claims you assert against us in an arbitration proceeding which you have commenced.

  Governing Law for Arbitration

This Arbitration section of your Agreement is governed by Federal Arbitration Act (FAA). Utah law shall apply to the extent state law is relevant under the FAA. The arbitrator’s decision will be final and binding, except for any appeal right under the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award.

  How to reject this section

You may reject this Arbitration section of your Agreement If you do that, only a court may be used to resolve any dispute or claim. To reject this provision, you must send us a notice within 60 days after you open your account or we first provided you with your right to reject this provision. The notice must include your name, address and account number, and must be mailed to GE Capital Retail Bank, P.O. Box 965012, Orlando, FL 32896-5012. This is the only way you can reject this provision.

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3. All written contracts or Card Member Agreements that you contend apply to the account listed in the complaint.

5. A copy of the attorney fee agreement between Plaintiff and its attorney for any attorney fees you seek to recover in this case.

DELETE this.  It is governed by attorney client privilege and you do not need it and will not get it.

6. A copy of any time entries or other documents or tangible things that support your claim for reasonable and necessary attorney fees.

Delete this too.  REALLY bad.

7. A complete copy of the agreements that constitute the chain of title for the account at issue in this lawsuit starting with the agreement between the originator of the account and its assignee and including each agreement between an assignee of the account and another assignee of the account and you. This is a request for the entire purchase agreement, not just a redacted bill of sale or exhibit to an agreement, and includes master or "flow" agreements whose terms relate in any way to or are incorporated by an agreement transferring rights to the account at issue in this lawsuit.

8.  All documents containing any warranties or representations (and disclaimers of warranties and representations) made by the original creditor concerning the accuracy or reliability of the original creditor's business records.

9. All documents which show or evidence the date of the Defendant's last payment on the debt that is the subject of this lawsuit.

10.  All documents and tangible things reviewed or relied upon by any custodian of records or other witness whose affidavit or testimony you intend to use at trial or in connection with any motion, pleading, filing or hearing in this case.

11. If you contend that you relied upon the accuracy of the original creditor's business records in purchasing the account, produce all of the documents or tangible things you reviewed prior to purchasing the account that caused you to believe the records were accurate or reliable .

12. If you contend that the original creditor's business records are reliable because the original creditor was under a legal duty to keep accurate records or that the original •  creditor faced a risk of business loss if it did not keep accurate records, produce a copy of all documents and tangible things upon which you base this contention.

13. All credit card statements relating to the Subject Account.  OVERLY broad.  Ask for opening statement and last 6 months.

14.  Any admissions or acknowledgments of the subject debt by Defendant.

15. All documents that show the assignment of the Subject Account was supported by good and valid consideration

16. All recordings of any phone calls between plaintiff or its attorneys (including nonlawyer employees of the plaintiffs' attorneys) and defendant.

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