Account stated as only claim from JDB... CT

[olvrtw]

Just looking at https://en.wikipedia.org/wiki/Account_stated

It states: The elements of account stated are: (1) prior transactions between the parties which establish a debtor-creditor relationship; (2)an express or implied agreement between the parties as to the amount due; and (3) an express or implied promise from the debtor to pay the amount due.^[3]

^{Also: https://www.nclc.org/images/pdf/unreported/american-express-centurion-bank-v-larose-12122013.pdf}

I'm assuming this article means that Account stated is used as evidence vs a pleading for a complaint...

The JDB did not attach any statements or anything to the complaint. Can I start off with a Motion to Dismiss based on Lack of Subject Matter Jurisdiction, since the plaintiff has not attached any supporting documentation to prove his claim for relief. and also a lack of standing I guess, since based on the "elements" of account stated, there were no prior transactions between the parties, definitely no promise, and no proof that any statements were ever sent?

I basically want to make it as hard as possible for the JDB, until either they dismiss or submit their MSJ at which point I would elect arbitration.

And because the order of pleadings are 1 complaint, 2 motion to dismiss, 3, request to revise, etc. I want to use every single pleading I can... Since 

[Clydesmom]

2 minutes ago, olvrtw said:

The JDB did not attach any statements or anything to the complaint.

Does Connecticut require they do that?  Not all states do.

2 minutes ago, olvrtw said:

Can I start off with a Motion to Dismiss based on Lack of Subject Matter Jurisdiction, since the plaintiff has not attached any supporting documentation to prove his claim for relief.

If CT does not require the evidence to be attached to the complaint then while you could file it, the motion will be denied.  The major problem is most states do not require this be attached instead requiring the parties to do discovery.

5 minutes ago, olvrtw said:

also a lack of standing I guess, since based on the "elements" of account stated, there were no prior transactions between the parties, definitely no promise, and no proof that any statements were ever sent?

Under basic contract law when the account was purchased the assignee (JDB) steps into the shoes of the original creditor. They get all the rights and responsibilities of the OC and therefore can sue under account stated.  

[olvrtw]

Thank you. How do I find out if CT is one of the states where a contract or proof of claim needs to be submitted with the complaint?

[olvrtw]

Based on that nclc link, shouldn't there be another 'Count', it pretty much says that there is no claim made as "account stated" is only evidence of amount due... So if the JDB steps into the OCs shoes, shouldn't there be a breach of contract count?

[Clydesmom]

10 hours ago, olvrtw said:

Thank you. How do I find out if CT is one of the states where a contract or proof of claim needs to be submitted with the complaint?

You research the rules of civil procedure for the court the case is filed in in CT.

[olvrtw]

Here is the complaint I received. It just seems sooo bad and full of holes to me that this should be easy to dismiss in my opinion.

Count I (Account Stated)

1. The defendant had a credit account with SYNCHRONY BANK in connection with that account, SYNCHRONY BANK mailed, delivered, sent or otherwise transmitted periodic account statements to the defendant setting forth all of the charges and credits applicable to the account, as well as the balance due.

2. On or before xx/xx/17, the defendant became indebted to SYNCHRONY BANK in the sum of $XXXX that resulted from the defendants's use of credit account xxxx.

3. Upon information and belief, the defendant received and held these statements for an unreasonable time and there are no unresolved known disputes as to the charges and amounts due.

4. The final statement transmitted to the defendant, indication a balance due and owing, was provided to and held by the defendant for an unreasonable time without unresolved protest or notice of defect.

5. The Plaintiff, PORTFOLIO RECOVERY ASSOCIATES, LLC, purchased title to this debt on xx/xx/17, and Plaintiff is the bona fide owner of the debt. The current delinquent balance is $11,535.04

6. Plaintiff seeks damages for the account stated balance minus any credit(s) on the account occuring after the last statement was transmitted.

NOTICE IS HEREBY GIVEN to the defendant that the plaintiff intends to seek satisfaction of any judgement rendered in plaintiff's favor in this action from any debt accuring to the defendant by reason of the defendant's personal services.

STATEMENT OF AMOUNT IN DEMAND

The amount, legal interest, or property in demand, exclusive of interest and costs, is greater than $xxxx but less than $xxxxx. The remedy sought is base upon an express or implied promise to pay a definite sum.

THE PLAINTIFF CLAIMS:

1. Money damages;

2. Costs of Suit

[Clydesmom]

2 minutes ago, olvrtw said:

It just seems sooo bad and full of holes to me that this should be easy to dismiss in my opinion.

Not really.  The days of "easy to dismiss" ended a few years ago.  JDBs cleaned up their act and have stream lined this process making it very easy for the courts to find in their favor.

Instead of focusing on this stuff likely to fail I would file a motion to compel arbitration.  Synchrony has the BEST arbitration clause and because JAMS is so expensive the JDB typically folds if the court approves the motion.  

[Clydesmom]

10 hours ago, olvrtw said:

Based on that nclc link, shouldn't there be another 'Count', it pretty much says that there is no claim made as "account stated" is only evidence of amount due...

That link is nothing more than an opinion article.  You would need actual case law from CT courts to back up.  That would also be an argument for trial.

10 hours ago, olvrtw said:

So if the JDB steps into the OCs shoes, shouldn't there be a breach of contract count?

Typically they list both.  You have a slim chance of defeating this using the argument you are making but I would not bank on it.

[olvrtw]

So far, what I am thinking of doing is:

First clarify what "ACCOUNT STATED" actually means to the judge and its origins as it appears that lawyers and judges lack its understanding  (https://digitalcommons.law.umaryland.edu/student_pubs/50/)

Second. Clarify to the judge the misuse of such terms because of their similarity in use in banking/consumer relations is a malicious way for debt collectors to circumvent and abuse the appropriate legal process in filing claims related to banking/consumer debt.

Third, plaintiffs beliefs are not grounds for cause of action, (will elaborate more on it later)

FOURTH, No dates are specified, argue that the statute of limitations has passed.

and more...

This would all be in a Motion to Dismiss.

[Clydesmom]

10 hours ago, olvrtw said:

I basically want to make it as hard as possible for the JDB, until either they dismiss or submit their MSJ at which point I would elect arbitration.

Dangerous plan because Defendants have lost their motion to compel arbitration by participating in the litigation process.  Courts determine you waive your right to arbitration when you participate actively in the litigation process.  As and example FL requires you actually answer with the MTC and some states require you raise it as an affirmative defense.

Did you research ANY of this before you filed your answer?

[olvrtw]

Well, my answer is not due until after Motion to Dismiss and Request to Revise according to the CT practice book.

From my research so far CT is the first state where the courts decided that contractual arbitration is a must, so hopefully it will be easy at any point. The funny thing is that I have gone through hundreds and hundreds (maybe thousands) of disposed cases (to learn and try to find cases that were won, none really found), recently and everything, and the only case that mentioned arbitration is one where defendant elects arbitration in response to MSJ and then AMEX actually gets the MTC arbitration, defendant never filed and then a month later AMEX got its MSJ... Another case, amex settled ~$40k for $16k over 4 years, so 

 

What I see in my case, is that PRA is going to try to object to MTC arb because they are suing based on ACCOUNT STATED. Their complaint does not mention breach of contract or anything, so they will simply state that there is no credit card agreement because I have not objected to the ACCOUNT STATED and therefore the debt is implied...

 

At which point I can say that I have not had previous dealings with PRA, which is the basis for ACCOUNT STATED, also if they do respond that I have had dealings with SYNCHRONY, then there must be a contract (I ALSO need to look up info on selling debts, particularly ACCOUNT STATED debt, as there is no contract so what gives them the right to purchase/sell that debt) etc etc etc.

[olvrtw]

ALSO, one of the main arguments for my Motion to dismiss, is that PRA has failed to state a claim upon to which relief can be sought. They failed to mention that I have not even paid, nor terms of account stated, when payments are due, if they ever requested payment, if I ever paid anything, etc. etc...

[olvrtw]

I gotta read more about what case law is. I'm not too familiar with what it means or is. (I get the point, its where a case was decided and that is what the future judges use as bases for their future decisions. I just don't get how they become LAWS and how to find the official ones)

I did get an A in college for Contract Law/common law, actually that was the ONLY class I did get an A in, and that wasn't even my major, Finance was, lol. (The only reason I didn't get more A grades is because I did not study much, did not intend to actually use a degree to get a job, =P )

Would be nice if I can get the judge to only consider contract law/common law, I saw that somewhere, so I know it is possible. Just gotta know how to get them to do it.

[olvrtw]

34 minutes ago, Clydesmom said:

That link is nothing more than an opinion article.  You would need actual case law from CT courts to back up.  That would also be an argument for trial.

Typically they list both.  You have a slim chance of defeating this using the argument you are making but I would not bank on it.

See, I thought that was what case law was. They cited the cases and decisions, and then I figured that is that the opinion of the judges were and it became case law...

[olvrtw]

Also, I believe the Account Stated thing has been going on for so long because it was not contested, or not contested enough or well enough. And maybe even if it was contested and won those cases could just be buried and people forgot... Which is why I need to figure out exactly what "case law" is...

 

Most cases are ridiculous, I see no reason to ever get a lawyer. The lawyers do such a bad job. They essentially are ripping off their clients by making it look like they are doing work when all they are actually doing is stalling a little and then trying to get them to settle... Sad

In essence being a lawyer is like being a scammer, except you get to do it legally.

But I like law, I am actually considering becoming a lawyer now, its fun, and heck they get paid really well, especially for not doing much of anything.

[WhoCares1000]

You really got an A in a course called "Contract Law/Common Law" and you have no clue how case law becomes such?

In any case, common or case law comes to being as higher courts decide on what the legislators intent was, usually when there are disputes as to their intent of a particular statute or document (such as The Constitution). It is called case law because the case is used to describe the intent of the legislation rather than the legislation itself. Most circuit or trail courts do not make case law. They simply rule on the facts and how they relate to previous case law. It is the higher courts that make case law through published decisions. If you want a look at those, go to Google Scholar.

In any case, Account Stated is as old as common law itself because that is probably the first type of credit that was ever offered. You might be able to look into the case law but for the most part, credit cards are considered account stated. That said, I can knock PRA's argument out about account stated not having a contract in about 5 minutes. If you get a bill from say a store that gave you credit, the terms of the contract are listed on the bill (such as NET 30). In the case of credit cards, because the terms of account stated are usually pages of legalese, they send it as a separate paper. That means that if PRA wants to say that the separate paper contract does not apply to account stated, they will have to show where the terms of the contract are on the most recent bill that you got. I would bet any money that they cannot produce the terms of account stated contract which does not include arbitration. Therefore, since you produced the account stated contract that applies, arbitration applies and the MTC should be approved. @fisthardcheese can probably explain this in more detail.

As @Clydesmom said, don't go looking for silly theories or trying to create case law where none exists. Instead, in your answer, deny everything other than your name and address and as an affirmative defense list that the court does not have jurisdiction due to private contractual arbitration, supply the contract with the arbitration part outlined as part of your answer, and then after filing your answer, file the MTC to arbitration. We can help you blow up any objections they might have. You are trying to make this more complicated than it really is.

[Brotherskeeper]

@olvrtw Practice note has useful info and law/case citations:

Compelling and Staying Arbitration in Connecticut

[olvrtw]

Thank you WhoCares, I think you are right. But it doesn't hurt to actually learn some of this stuff as it may become useful someday.

 

I dont remember if it was contract or common, it was a while ago. Could have been called something completely different, but we did learn common and contract law... Good stuff

[olvrtw]

9 minutes ago, Brotherskeeper said:

@olvrtw Practice note has useful info and law/case citations:

Compelling and Staying Arbitration in Connecticut

Thank you.

[olvrtw]

I guess I better start learning the rules and procedures of arbitration, heh. I will do what WhoCares says, and hope for the best.

Thank you

[nobk4me]

Go for arb, as that is the best defense against a JDB.  The OC in this case has an excellent arb clause.  Don't try other strategies, just do arb.  And do it early, first thing after your answer should be the MTC Arb.  Going too far in litigation with the court could waive your arbitration rights.