LEB in Pro Se

SUNCOAST CREDIT UNION VISA CARD SUING ME

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Hi everyone, I am being sued by Suncoast Credit Union.  I want to file the Answer and Affirmative Defenses.  The problem here is that Suncoast is filing as the original creditor and there is NO arbitration clause. My first question is, may I file a motion requesting arbitration?  I cannot compel mandatory arbitration absent the arbitration clause in the credit card agreement.  Question 2: I have no idea which Affirmative Defenses to use and wondering if the following is appropriate.  The Complaint does not state "Account Stated."  It lists the following 7 allegations to Answer which I have admitted to the first 2 and denied the rest. This is all that the Complaint has.  It includes the Exhibits A-C.  Exhibit B is a statement dated August 2018, that does not show any transaction details at all.  I need help and would like to know if the following Affirmative Defense would apply/be appropriate and what other defenses should I include?

1. This is an action for damages which does not exceed $5,000..... (ADMITTED)

2. On December 31, 2013 Suncoast Schools Federal Credit Union converted from a federally chartered credit union to a federally insured state-charted credit union named Suncoast Credit Union which is the successor in interest to Suncoast Schools Federal Credit Union. Attached... Exhibit A.... (ADMITTED)

The rest of the allegations I denied and they are:

3. Defendant requested a Visa card from Plaintiff, and Plaintiff issued a Visa card to Defendant after Defendant(s)'s request for a card.

4. Defendant(s) owes PLaintiff the sum of $13,350.91 plus interest in connection with Defendant(s)'s use of the Visa charge card under the Visa credit card plan.

5. Attached hereto as Exhibits B and C are a statement of account showing the current balance and a copy of the terms and conditions of the Visa credit card plan.

6. Defendant(s) expressly agreed to pay all of Plaintiff's costs of collection, including reasonable attorney's fees, incurred by the Plaintiff.  Plaintiff alleges that a reasonable attorney's fee in this matter would be a minimum of $500.00 and will seek an award of such amount in the event that a default judgment is entered against the Defendant(s). In the event that his matter is contested, Plaintiff intends to seek additional attorney's fees based upon the hours spent, services rendered and other reasonable factors.

7. All conditions precedent to the filing of this complaint have been complied with by the Plaintiff.

WHEREFORE, Plaintiff demands judgment against the Defendant in the sum of $13,350.91 together with interest, attorney's fees, and court costs.

Do you think the following AFFIRMATIVE DEFENSE would be appropriate? And if so, what other defense should I include if any?

FAILURE TO STATE A CAUSE OF ACTION FOR ACCOUNT STATED

Plaintiff has failed to plead and provide any evidence as to the elements of an account-stated theory of recovery. Plaintiff failed to attach copies of account statements showing transactions, time of accrual of each, and amount of each. See Form 1.933, Fla. R. Civ. P., requirements for an account-stated claim; see also Mercado v. Lion’s Enterprises, Inc., 800 So. 2d 753 (Fla. 5th DCA 2001) (holding that, for an account stated to exist, there must be an agreement between the parties that a certain balance is correct and due and an express or implied promise to pay this balance); Merrill-Stevens Dry Dock Co. v. “Corniche Express”, 400 So. 2d 1286 (Fla. 3d DCA 1981) (judgment for defendant where there was a dispute as to the performance, the value, and whether the services, if performed, were authorized).

Although the failure to object to a creditor’s periodic billing may establish an account stated, there can be no liability if there has been no mutual agreement. See Recreation Corp. of America v. Jack Drury & Associates, Inc., 235 So.2d 49 (Fla. 4th DCA 1970). Therefore, the presentation of a claim and its retention without objection are insufficient facts to establish the presumption that an account has been stated. See McKissick v. Bilger, 480 So. 2d 211 (Fla. 1st DCA 1985); Page Avjet Corp. v. Cosgrove Aircraft Serv., 546 So.2d 16, 18 (Fla. 3d DCA 1989). Furthermore, there is no evidence that any billing statements were actually received by Defendant, precluding an action for account stated. Farley v. Chase Bank, U.S.A., N.A., 37 So. 3d 936 (Fla. 4th DCA 2010); see also Bryson v. Banking, 75 So. 3d 783 (Fla. App. 2011) (holding that unauthenticated copies of default letters are legally insufficient for summary judgment purposes). As a matter of federal law, including the Truth in Lending Act and Regulation Z, “a cardholder’s failure to object to the disputed charges within a reasonable time . . . [does] not constitute ratification and acceptance of those charges.” DBI Architects, P.C. v. Am. Express Travel-Related Serv. Co., 388 F.3d 886, 891 (D.C. Cir. 2004) (quoting Crestar Bank, N.A. v. Cheevers, 744 A.2d 1043, 1048 (D.C. 2000)). These federal laws and regulations, found at 15 U.S.C. § 1601 et seq. and 12 C.F.R. 226.12, respectively, preempt any inconsistent Florida law and judicial opinions.

There has been no mutual agreement to pay. Although Plaintiff has alleged there was an agreement, the documents attached to Plaintiff’s complaint do not support this allegation. See F.D.I.C. v. Brodie, 602 So.2d 1358 (Fla. 3d DCA 1992). There can be no liability on an account stated if there has been no mutual agreement to pay a certain amount in satisfaction of an outstanding debt. Dutch Inns of America, Inc. v. Jenkins, 301 So.2d 119 (Fla. 3d DCA 1974). The original creditor did not accurately account for all payments made by Defendant and, therefore, the amount stated is based upon account stated is based upon errors and mistakes, rendering the amount asserted unreliable and inaccurate. Defendant has had no prior transactions with Plaintiff and has made no prior agreement with Plaintiff to pay any amount.

WHEREFORE, Defendant demands this Court dismiss with prejudice the above-styled action and award attorneys’ fees to Defendant pursuant to Fla. Stat. 57.105 and any other relief to which Defendant is entitled.

THANK YOU EVERYONE!!

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2 hours ago, LEB in Pro Se said:

The problem here is that Suncoast is filing as the original creditor and there is NO arbitration clause. My first question is, may I file a motion requesting arbitration?  I cannot compel mandatory arbitration absent the arbitration clause in the credit card agreement. 

The motion will be denied.  You do not have the option of arbitration if there is no clause in the card agreement.

2 hours ago, LEB in Pro Se said:

Do you think the following AFFIRMATIVE DEFENSE would be appropriate? And if so, what other defense should I include if any?

NO.  They do not have to sue under the account stated theory to prevail.  You are being sued by an original creditor for a LOT of money.  The defenses you read about on sites like this are based on being sued by a junk debt buyer not an original creditor.  The only defense to a suit by the OC is that the SOL to sue is expired or identity theft.  WHEN did you default on the card?

They don't need to show each and every transaction either.  All they have to do is show that you are the person with SS#xxx-xx-xxxx that opened the account, used it and made payments.  If the address on the statements matches yours they don't even have to prove you received the statements.  They will not need a live witness or affidavits to admit their own records.

3 hours ago, LEB in Pro Se said:

WHEREFORE, Defendant demands this Court dismiss with prejudice the above-styled action and award attorneys’ fees to Defendant pursuant to Fla. Stat. 57.105 and any other relief to which Defendant is entitled.

If you are representing yourself you will not be awarded attorney fees.

Your best option is to settle this.  If you lose you could end up owing double that amount in a very short time between the attorney fees, costs, and post judgment interest.

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@Clydesmom Thank you so much! Should I file any type of answer or just write/email them requesting to settle? I knew that I will have to settle. I did try to settle with them PRIOR to them filing suit but they were demanding an unreasonable high monthly payment in the hundreds and denied to modify the loan.  Again, thank you so much. And yes, you're right, I am aware of the no attorney fees. Did not mean to copy/paste that. Thank you for your help!

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Is bankruptcy an option for you?  This is an OC, suing for a large amount, with no arb clause.  And I see you also have a case with Midland.  

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On 4/16/2019 at 4:01 PM, nobk4me said:

Is bankruptcy an option for you?  This is an OC, suing for a large amount, with no arb clause.  And I see you also have a case with Midland.  

@nobk4me I may just have to do that but I believe this has a clause that states it cannot be discharged in Bankruptcy.  Please help. Should I at least file an Answer?

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On 4/15/2019 at 8:06 PM, LEB in Pro Se said:

Thank you so much! Should I file any type of answer or just write/email them requesting to settle?

Do both.  You ALWAYS answer the suit to protect your rights in court.

On 4/15/2019 at 8:06 PM, LEB in Pro Se said:

I did try to settle with them PRIOR to them filing suit but they were demanding an unreasonable high monthly payment in the hundreds and denied to modify the loan. 

Unfortunately once you were in default the chances they modify anything are slim to none. They have the leverage on this and they know it.

52 minutes ago, LEB in Pro Se said:

@nobk4me I may just have to do that but I believe this has a clause that states it cannot be discharged in Bankruptcy. 

Most bankruptcy attorneys will do an initial consult for free.  Get 2-3 immediately.  As far as I know the only debts that cannot be discharged in bankruptcy are child support, alimony, federally backed student loans, and court fines/fees.  Even federal taxes can be discharged in bankruptcy 3 years after filing if you qualify.  

I am not a lawyer but I would think that the clause stating you cannot discharge the debt in bankruptcy violates the federal BK laws and may not be enforceable but a good BK attorney will know for sure.

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Thank you everyone so much. Is there a simple template to use when filing an Answer after default? They tried to default me before the 20 day extension. Please help me Thank you so much!!

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Go talk to a BK attorney ASAP. You did not answer in time and they got a judgement against you as a default. You can try to vacate the judgement but you would have to have a very good reason as to why you did not answer in time which if you were served properly, will be very hard to do.

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3 hours ago, LEB in Pro Se said:

Please help omg. they issued final judgement YESTERDAY. What can i  do??? They close the case?? What can I do today??

Get to an attorney ASAP.  BK is probably your best option.

2 hours ago, WhoCares1000 said:

You did not answer in time and they got a judgement against you as a default.

THIS^^^^^^^^^^^^^^^^  Sadly you missed a deadline somewhere.  There could be a very remote chance of getting the judgment set aside but you would need the assistance of legal counsel to do this.

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On 4/23/2019 at 9:51 AM, LEB in Pro Se said:

@nobk4me I may just have to do that but I believe this has a clause that states it cannot be discharged in Bankruptcy.  Please help. Should I at least file an Answer?

Never heard of a clause like that in a consumer debt.  There are a few categories of debts that cannot be discharged in a BK, the ones Clydesmom mentioned.  Are you sure that is what the clause says?

Maybe it's a survivability clause?  I have seen statements, usually in arb clauses, that the arb clause survives a bankruptcy.  Which does not mean that the debt cannot be discharged in a BK.

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Another thought:  if BK really isn't option for the OP, consider making yourself as judgment-proof as possible.  Which shouldn't be too hard to do in Florida, which has generous exemptions for debtors.

There's a reason O.J. Simpson moved to Florida.

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1 hour ago, nobk4me said:

There's a reason O.J. Simpson moved to Florida.

OJ doesn't live in Florida.  He wanted to move there when he was paroled (allegedly to be near his kids but they didn't want to see him) but FL declined to accept him.  He lives here in Las Vegas in a multi-million dollar home in the most exclusive gated community driving a Bentley that belongs to a friend who loaned them to him.  We see him at dinner at a local restaurant that is popular every so often.  He has several more years on parole before he can even begin to think about moving anywhere.  Whether he will or not remains to be seen but it has nothing to do with credit.  His $25,000/month NFL pension is protected from Ron Goldman seizing it because it is a pension.  Since the house and car do not belong to OJ there is nothing any court can do to seize or lien it.  

Other than Texas FL is one of the most debtor friendly states though.  The disgraced ENRON executives sure took advantage of that.

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Thanks for the update on OJ.  I thought he had originally moved to Florida, after his acquittal in the murder trial, and maybe after the verdict in the civil trial.  And that the civil verdict against him by the Goldmans  was the reason he went to FL, with its debtor-friendly laws.  But that was before he got in trouble, and went to prison, in NV.

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What does judgment proof mean? If it's about showing my finances to prove I'm in ruin, that's easy. I met with a lawyer (young lady) and she stated that I can't even file a Motion to Set Aside but she didn't even read my motion. 

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You could file a motion to set aside, I doubt that the judge will entertain it however unless you have real good cause which is doubtful.

As for being judgement proof, that is a misnomer because anyone can be attached with a judgement. The real term should be collection proof which means you not have any wages or assets that can legally be attached to pay the judgement. This is usually reserved for people who are on public assistance or make minimum wage and own nothing but a basic cheap car, and in the case of Florida, maybe their home. Some have bank accounts (usually those on social security but even that is exempt), others may not.

You should still contact a Bankruptcy Attorney regardless of the clause in the contract. That clause might not even be legal. However, if you have funds in a bank account at that credit union, you had better get them out because even in BK, they will try to offset those funds.

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Suncoast blocked me from accessing my checking/savings account long ago. They demanded I pay a ridiculous monthly and would grant me access to my regular account. They took the money out of my account and applied it towards the credit card balance.

I did draft a motion and ready to file it. I did list the reasons and included the email to the plaintiff's attorney asking to settle days before the Order was signed.  I am going to attempt to file it, regardless.

The bankruptcy attorney I met stated that I have no income coming in so Suncoast cannot garnish my wages. I am not W-2. I am independent and get I-9 but I haven't had income paid directly to me in 5 months. I had to use up my advanced in commissions and I have a $4K+ IRS debt so I qualify for Chapter 7. But my debt for bankruptcy would only consist of the IRS balance and Suncoast. I would hate to file BK just for that. All else is in credit repair.  

Suncoast not only has that arbitration clause preventing arb but it has a bankruptcy clause. Since I am not an attorney, I interpreted to say that it cannot be discharged in BK however you are all correct, the BK attorney I met with here in Florida stated that this would violate BK laws.

All of your suggestions are highly appreciated.  If anyone has any more suggestions on the MTN to Set Aside, please let me know. I do not know how to cite case law. I am sure this would help.. maybe...

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I thought you had a thread with a Midland case here, too.  That could be disposed of with a BK.

As for credit repair, I would be very skeptical that this is going to work.  I assume you are paying money to some company which is claiming to settle the debts for you?  Why bother, when BK can wipe out the debts.

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Yes with Midland but that case is going away.  Credit repair started a while back and a lot has been wiped out, nothing to do with Suncoast and Midland cases because those cases were already filed with the Clerk.

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Actually, anything in credit repair would be included in the BK, regardless of how much is left. I figured though that the clause would not be valid because I felt it violated federal law.

What has happened here is that in this case, you were sued by an original creditor and even worse, a credit union. They got a judgement and I doubt your motion to set aside is going to work. Credit Unions are very aggressive in collecting their debts and don't be surprised if they blanket the area banks with levy notices to try to grab any other bank accounts you might have. If you do have bank accounts open, I suggest you clean those out and go to cash for a while. That might be another reason to do a BK. This credit union will aggressively try to collect from you for 10 years or longer. Once you do the BK, that stops all that in its tracks. As for credit repair, you excuse to them is that you tried but because of the actions of the credit union, you were left with no choice but to file for BK. They will understand as they see that all of the time.

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On 4/25/2019 at 12:17 PM, nobk4me said:

I thought he had originally moved to Florida, after his acquittal in the murder trial, and maybe after the verdict in the civil trial.  And that the civil verdict against him by the Goldmans  was the reason he went to FL, with its debtor-friendly laws. 

He very well may have lived in FL during that time frame and just been visiting Vegas when he pulled that stunt at Palace Station Casino. The employees still talk about it.  

I know when he got out of prison he applied to FL to move their citing wanting to be near his kids but the kids stated to the parole board they had no interest in having contact with him so FL declined to let him transfer.  He is quite popular here in Vegas so I doubt he is leaving any time soon.

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