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Cavalry I SPV asked by judge for signed contract


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1 hour ago, Brotherskeeper said:

The mystery of the non-address in Virginia will remain just that.

Not really. The card (perhaps) was issued with a billing address at a facility where the OP (allegedly) worked that no longer exists (torn down, re-purposed, whatever). The plaintiff could place the OP in VA, but couldn't get past an address that no longer exists, with a history that may not be a matter of public record. I'm sure plaintiff, like OP, finally reached a point where it was no longer worth the effort to connect the "last dot."

 

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The plaintiff never placed the OP in Virginia. They placed someone with the OP's name in Virginia. That is a big difference. Even unique names can occur more than once.

That said, they sure offered a sweetheart deal considering what they were asking for. Don't get me wrong, they probably will still make a small profit but the settlement is about 4 cents on the dollar for what they were requesting. They obviously went as low as they could to make it palatable for the OP to bite and still make some money. They probably were one continuance away from throwing in the towel anyways.

The OP simply proved that he never lived in VA and they could never overcome the OPs affidavit. One would have thought that the OC would have kept the application which would have connected the dots but apparently not.

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44 minutes ago, WhoCares1000 said:

The OP simply proved that he never lived in VA

Mmmmmm...... not quite. He claimed he never lived there, and they couldn't prove a 'negative'. 

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One would have thought that the OC would have kept the application which would have connected the dots

How would it have connected the dots? The address doesn't exist. What more on an application would link him to the account? 

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13 hours ago, Harry Seaward said:

Mmmmmm...... not quite. He claimed he never lived there, and they couldn't prove a 'negative'.

If I remember correctly, the OP provided old drivers licenses which had shown him residing in Ohio along with an affidavit claiming that fact. He proved a positive by saying he lived in Ohio, not Virginia during the years in question

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How would it have connected the dots? The address doesn't exist. What more on an application would link him to the account? 

As a family historian, I know it would have been very easy to find out if an address existed and who lived there during a certain time period. Especially if the address was in a city. The trick is using City Directories which exist in almost all major cities in the USA. I just used the local one from 2012 myself recently to prove I have a certain phone number assigned to me for a class action TCPA lawsuit.

I find it funny that considering a huge payday was on the line for the plaintiff (converting something that cost them about $250 into $12000) that they would not have disgorged a little bit of money to hire an investigator in Virginia to figure this out. The plaintiff might have done so and found out that the OP was telling the truth and decided to make the settlement offer so appealing that the other side would not refuse it while still get a little profit from it.

I do agree that the major JDBs have been trying to clean up their act since the wild west days of the great recession. However, that does not mean that they are not above throwing everything to the wall and seeing if something sticks. In this case, not much stuck. They still have a high success rate from defaults so to them, it is worth trying (especially since they have agreements with attorneys to limit their costs).

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7 hours ago, WhoCares1000 said:

He proved a positive by saying he lived in Ohio, not Virginia during the years in question

He only proved his primary residence was in Ohio.  A person can have their mail delivered to an address that is not their primary residence, or any residence at all, for that matter.  Like a business, for example.  And if the business building is later razed to the ground along with several others in order to build a parking garage, it would seem the address never existed, and "impossible" to link a person to the address.

They had an address in VA that was provided when the account was opened.  Just because the address doesn't exist now doesn't mean it never did.  After all, someone gave that address, OP or otherwise.  If you think OP is the wrong guy, the right guy could also dodge the debt on the same principal.  So you have either A.) one super unlucky guy that got sued for a debt that wasn't his and one super lucky guy that will never get sued for his debt; or B.) just one super lucky guy that got sued on a legit debt and dodged the debt because the address doesn't exist.

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1 hour ago, WhoCares1000 said:

if the address indeed existed in a city, then odds are, a city directory would reveal it.

There are some explanations for why such an address wouldn't appear in a search. The best one is that it would have to do with the 'entity' that occupied the space. 

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On 5/14/2018 at 11:56 AM, BV80 said:

@MikeJones

I agree with @Harry Seaward.  The judge could be extremely friendly to consumers/debtors.  However, there's OH court precedent that shows signed contracts are not necessary to prove a contract.  The reason is because using an account creates a contract.   You make charges to the account and the credit card bank pays the merchant to whom you made the charges.  That creates a contract between you and the credit card bank.

In the event the judge would rule in your favor, we have no way of knowing if Cap1 would appeal.  If they did, they'd have court precedent in their favor,

An account being used does not establish a contract. Someone making charges and the bank paying the merchant does NOT constitute a contract. If that were the case every fraudulent charge would constitute a contract. A bill going undisputed constitutes an "Account stated". A bill being paid that they can't connect to the alleged cardholder ie personal check/ACH etc. doesn't even establish an "Account stated". If the creditor was someone you could pay in cash they'd never have an established contract... unless they had cameras and even that would be a stretch.

 

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4 hours ago, DebtAssassinBook.com said:

An account being used does not establish a contract. Someone making charges and the bank paying the merchant does NOT constitute a contract. If that were the case every fraudulent charge would constitute a contract. A bill going undisputed constitutes an "Account stated". A bill being paid that they can't connect to the alleged cardholder ie personal check/ACH etc. doesn't even establish an "Account stated". If the creditor was someone you could pay in cash they'd never have an established contract... unless they had cameras and even that would be a stretch.

 

The basic definition of a contract proves this wrong. According to Black's Law Dictionary, "a contract is an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law." Nothing here suggests that the contract has to be written. By using a credit card, you agree to the terms know as the contract for that card. The bank will pay the merchant and you will pay the bank rather than you paying the merchant directly. That is a contract because the bank is required to pay the merchant and you are required to pay the bank, with interest if applicable. Since both sides have an obligation, they have a contract. Does not matter if there is a signed piece of paper or not.

And you can pay back a creditor in cash and still have a contract. I can have a Wells Fargo backed credit card and take cash to a local Wells Fargo branch and pay on that credit card. That means that there is a contract because there is consideration on both sides. How both sides satisfy their obligations are irrelevant.

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9 hours ago, DebtAssassinBook.com said:

An account being used does not establish a contract.

 

Tell it to the courts.

Discover Bank v. Ray (Washington Court of Appeals, 2007)

"Here, the cardmember agreement clearly and unambiguously provided that use of the credit card issued by Discover Bank constituted an acceptance of the cardmember agreement. Mr. Ray used the credit card issued by Discover Bank for several years. There is sufficient evidence to establish that Mr. Ray accepted the terms of the cardmember agreement through his conduct of using the credit card."

 

Capital One Bank (USA) NA v. Ryan (Ohio Court of Appeals, 2014)

"This court has stated that 'credit card agreements are contracts whereby the issuance and use of a credit card creates a legally binding agreement.'"

 

Unifund CCR, LLC v. Lowe (Idaho Supreme Court, 2016)

 "A meeting of the minds is evidenced by a manifestation of intent to contract which takes the form of an offer and acceptance." Barry v. Pac. W. Constr., Inc., 140 Idaho 827, 831, 103 P.3d 440, 444 (2004) (internal citation omitted). The manifestation or expression of assent that is necessary to form a contract may be by word, act, or conduct that shows the intention of the parties to contract.'" 17A Am. Jur. 2d Contracts § 34 (2004).

 

Winchek v. American  Express Travel Related Services (Texas Court of Appeals, 2007)

"Winchek's conduct in using the card and making payments on the account for the purchases and charges reflected on her monthly billing statements manifested her intent that the contract become effective."

 

FIA Card Services National Association v. Fazio (Superior Court of New Jersey, Appellate Division)

"However, as plaintiff notes, defendant's use of the credit card to purchase his membership in LHVC and his subsequent payments provide evidence of a valid contract between defendant and Bank of America that was breached once insufficient payment was made."

 

Citibank (South Dakota), NA v. Wilson (Missouri Court of Appeals, 2005)

"Acceptance of an offer need not be made by spoken or written word.  Here, Wilson accepted the revised agreement by her conduct with regard to her credit card."

"Wilson benefited by being able to purchase items on credit, while incurring a legal obligation to repay the debt with interest. Likewise, Citibank received Wilson's promise to repay with interest the credit advanced to her in exchange for the extension of credit. This is sufficient to constitute valid consideration to support the contract entered into by the parties."


Citibank (South Dakota), NA v. Mayo (Louisiana Court of Appeals, 2011)

"The record shows that after this notice of change took effect in June 2006, Mayo made a payment on the account on September 1, 2006, and took a cash advance of $2,250 on October 19, 2006. These actions constituted acceptance of the June 2006 agreement."


Meyer v. National City Bank (Indiana Court of Appeals, 2009)

"Although we found no published cases in Indiana, we note with approval the determinations of other states that credit card agreements are contracts, and the issuance and use of a credit card creates a legally binding agreement.  Moreover, the Agreement expressly stated that it became binding on Meyer upon her use of the account, not upon her signature to the Agreement."

 

Credigy Receivables, Inc. v. Townsley (Michigan Court of Appeals, 2008)

"By using the credit card Discover issued to him, Townsley entered into a binding contract with Discover card."

 

Creditone, LLC v. Feldman (New York Supreme Court, New York County, 2012)

"The plain language of the Agreement clearly states that defendant, as the person who applied for the Card and received the Card's statements, was bound by the Agreement when defendant used the Card."  "By using the Card, defendant accepted the offer and was bound by the Agreement."

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11 hours ago, DebtAssassinBook.com said:

An account being used does not establish a contract. Someone making charges and the bank paying the merchant does NOT constitute a contract. 

It absolutely does. Read the card agreement and the piles of caselaw from every corner of the country that say so. 

11 hours ago, DebtAssassinBook.com said:

If that were the case every fraudulent charge would constitute a contract.

Correct, provided the consumer never disputes the debt. 

11 hours ago, DebtAssassinBook.com said:

A bill being paid that they can't connect to the alleged cardholder ie personal check/ACH etc. doesn't even establish an "Account stated".

Incorrect. It creates an account stated claim that the creditor ultimately cannot collect through the courts. Just because it's not collectible in the courts doesn't mean the borrower didn't borrow money that has not been repaid. 

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56 minutes ago, Harry Seaward said:

It absolutely does. Read the card agreement and the piles of caselaw from every corner of the country that say so. 

Correct, provided the consumer never disputes the debt. 

Incorrect. It creates an account stated claim that the creditor ultimately cannot collect through the courts. Just because it's not collectible in the courts doesn't mean the borrower didn't borrow money that has not been repaid. 

@DebtAssassinBook.com is one of those who believes his opinion matters to courts. :-)

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2 hours ago, BV80 said:

@DebtAssassinBook.com is one of those who believes his opinion matters to courts. :-)

You guys do realize his screen name is nothing more than pimping his $80 credit repair book right?  If I had the authority I would be deleting ALL his comments and banning his profile.  Just sayin.......

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2 hours ago, BV80 said:

@DebtAssassinBook.com is one of those who believes his opinion matters to courts. :-)

 

Just now, Clydesmom said:

You guys do realize his screen name is nothing more than pimping his $80 credit repair book right?  If I had the authority I would be deleting ALL his comments and banning his profile.  Just sayin.......

He is already long gone because of the holes we poked in his arguments in this and other threads. His style is better suited for the more aggressive debt boards and we were too conservative for his tastes.

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1 minute ago, WhoCares1000 said:

 

He is already long gone because of the holes we poked in his arguments in this and other threads. His style is better suited for the more aggressive debt boards and we were too conservative for his tastes.

I am sure he isn't coming back because we also didn't worship the ground he walks on.  I still think we should get rid of his screen name so he doesn't get free advertising of his alleged "services" and his book.

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2 hours ago, Clydesmom said:

You guys do realize his screen name is nothing more than pimping his $80 credit repair book right?  If I had the authority I would be deleting ALL his comments and banning his profile.  Just sayin.......

Of course, he was simply trying to hawk his book.  One must wonder why.  ?  LOL!

Considering he doesn’t seem to understand how courts determine the existence of a contract, these  posts may serve as a warning to readers to save their money.  

On the other hand, it's a shame he displayed such an unpleasant attitude right at the very beginning.  He may actually have some good information to offer.  However, to immediately criticize members of an established site without cause and discussion along with a screen name that constitutes an advertisement does not lend oneself to a warm welcome.

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On 8/27/2018 at 4:52 PM, WhoCares1000 said:

 

He is already long gone because of the holes we poked in his arguments in this and other threads. His style is better suited for the more aggressive debt boards and we were too conservative for his tastes.

If @DebtAssassinBook.com really wanted to help, he would not have chosen a screen name that’s nothing more than an advertisement and would simply offer help without touting his alleged expertise.  

He showed his true reason for being here in his first post.   Personally, I would be hesitant to purchase anything from him considering he obviously has no idea how courts have ruled on the definition of a contract AND implies that those who don’t provide their personal information on a public site are liars  

We help for free.  He helps for a price. 

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