Thankyou24

Sued for Breach of Contract with No Contract copy

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Basics:

  • Sued by OC in Illinois for Breach of Contract.
  • Amount under $10,000
  • Complaint states that "Defendant breached the Agreement" with Agreement as a capitalized term, however Agreement is not defined within the complaint.
  • Plaintiff attached to complaint the last statement issued
  • Plaintiff did NOT attached the actual Cardmember Agreement
  • I have filed an appearance before the return date (an answer is not required as amount under $10,000)

I have done research on this site and I know that I need to file a motion to compel arbitration. However to do that I need to find the cardmember agreement to cite the correct statute therein. I also have seen here that Illinois state law requires a breach of contract complaint to provide a copy of the contract. 

I've searched here: https://www.consumerfinance.gov/credit-cards/agreements/ and I can't find the correct cardmember agreement that applies to me.

I have two questions:

  1. Do I need to file some type of motion to compel the plaintiff to provide the agreement? Or do I simply show up in court on the date they assign and ask for the agreement?
  2. This card is quite old (was active for a long time). What agreement would apply to this case? Would it be the active agreement at the time I opened the account or the active agreement at the time I made my last payment?

Thank you everyone - your help is invaluable. 

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1 hour ago, Thankyou24 said:

Do I need to file some type of motion to compel the plaintiff to provide the agreement? Or do I simply show up in court on the date they assign and ask for the agreement?

You can, but expect them to ask the court for a continuance to obtain ther agreement, and provided there isn't some rule that makes this a fatal flaw in their case, expect the court to grant the continuance. 

1 hour ago, Thankyou24 said:

This card is quite old (was active for a long time). What agreement would apply to this case? Would it be the active agreement at the time I opened the account or the active agreement at the time I made my last payment?

The last agreement in effect during the active life of the card. 

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Thank you so much @Harry Seaward. Would you have any guidance on what the motion to compel the agreement would be titled? I have searched here but fear I'm searching for the wrong item, as I am coming up blank. I already have my MTC arbitration drafted at the ready based on the incredibly helpful outlines here in this forum.

Your help is much appreciated - this is quite stressful and this community makes it much easier to bear.

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8 hours ago, Thankyou24 said:

Would you have any guidance on what the motion to compel the agreement would be titled?

"Motion to Compel Production of Agreement"

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8 hours ago, Thankyou24 said:

Thank you so much @Harry Seaward. Would you have any guidance on what the motion to compel the agreement would be titled? I have searched here but fear I'm searching for the wrong item, as I am coming up blank. I already have my MTC arbitration drafted at the ready based on the incredibly helpful outlines here in this forum.

Your help is much appreciated - this is quite stressful and this community makes it much easier to bear.

Have you checked the credit card database archives on the CFPB database?

https://www.consumerfinance.gov/credit-cards/agreements/

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28 minutes ago, Harry Seaward said:

"Motion to Compel Production of Agreement"

Thank you!!

 

17 minutes ago, BV80 said:

Have you checked the credit card database archives on the CFPB database?

https://www.consumerfinance.gov/credit-cards/agreements/

Yes - strangely not there. If it were there I would go ahead and file my MTC based upon it. Thanks for thinking of that though!

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1 minute ago, Thankyou24 said:

Thank you!!

 

Yes - strangely not there. If it were there I would go ahead and file my MTC based upon it. Thanks for thinking of that though!

I just saw your first post.  Sorry about that.  

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Hi everyone and thanks again for your advice so far. I've been doing quite a bit of research here, and would love an opinion on how to proceed.

As a reminder, I was sued in IL by an OC and provided only a statement of account (no contract copy). I was also provided an affidavit. Here is what I have gleaned so far:

  1. IL Supreme Court Rule 282(a) (See Also: 735 ILCS 5/2-606) requires plaintiff to attach a copy of the alleged contract. This was not done.
  2. The affidavit provided has incorrect information. Specifically, the affidavit states "the court case is based on an unwritten contract". HOWEVER, the account statement provided specifically states "for the complete terms and conditions of your account, consult your Credit Card Agreement." 

I believe I have two options at this point:

  1. File a Motion to Dismiss based upon 282 and the fact that they didn't include a contract. As @Harry Seaward stated, the judge would allow them time to provide the contract. If they don't do it in that time period, great, I can probably get it dismissed without prejudice. If they do provide it, then I've what... stalled for 3 weeks?
  2. File a Motion to Compel Production of Documents based upon 282 and the fact that they didn't include a contract. Get them to provide the cardmember agreement (which I feel relatively sure will include an arbitration provision). Then file a MTC based upon that. 

I am leaning towards option 2. Compel the document, and then if they don't provide it, file the MTD and request it WITH prejudice. If they do provide it, then I'll see exactly what the arb provision is, but likely file a MTC arb.

Would anyone share their thoughts? Would you MTD or MTC docs? Thank you!

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