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JackFisher

Account Stated Suit in CA

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1. Who is the named plaintiff in the suit? > Portfolio Recovery Associates

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) > Cook / Williams / Pierce / Brinkerhoff in San Diego

3. How much are you being sued for? > Less than $4,000

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

5. How do you know you are being sued? (You were served, right?) > Was served summons on 03/xx/2019. Single cause of action listed: Account Stated

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

7. Was the service legal as required by your state? > Yes, I believe so.

8. What was your correspondence (if any) with the people suing you before you think you were being sued? > No

9. What state and county do you live in? > California, San Joaquin

10. When is the last time you paid on this account? Not sure, will review credit report. Plaintiff claims late 2017.

11. When did you open the account (looking to establish what card agreement may be applicable)? > Not sure. Plaintiff claims late 2013.

12. What is the SOL on the debt? > 4 Years

13. What is the status of your case?

General denial filed with several affirmative defenses. Unfortunately, jurisdiction/arbitration is not one of them -- I didn't read the links listed in #18 of this list prior to filing my answer...

CMC scheduled for 10/xx/2019

14. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) > No

15. Did you request debt validation before the suit was filed? > No

16. How long do you have to respond to the suit?

30 days. General denial form was filed on 04/xx/2019. I listed the following affirmative defenses:

  • The complaint, and each cause of action alleged therein, fail to state facts sufficient to constitute a cause of action.
  • Petitioners lack standing to maintain this action.
  • Plaintiff failed to mitigate any purported damages it may have suffered. 
  • Plaintiff's claims
  • Plaintiff's claims are barred by the equitable principle of estoppel.
  • Plaintiff's claims, in whole or in part, are barred by the doctrine of laches. 
  • Plaintiff’s claims are barred by the statute of limitations set forth under Code of Civil Procedure sections 337(1) and 339(1).

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

The only exhibits provided are two statements with redacted account numbers.

18.  How did you find out about this site? > Google search results.

18. Read these two links > I have now.

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I sent a request for BOP and received an objection in response. I now understand that a BOP cannot be requested in a suit where the only cause of action is Account Stated.

From other threads, I see that arbitration has worked well for Account Stated cases. I wonder if I still have an opportunity to pursue arbitration almost 4 months after being served? My answer did not list jurisdiction/arbitration as an affirmative defense, and I have tried an avenue of discovery (i.e. failed BOP request).

I'm not sure, but I feel like I should continue with discovery. I plan to send a Request for Production of Documents and Special Interrogatories. Seeing as a BOP is not applicable, how does one get a complete accounting in an Account Stated case? Are the aforementioned discovery methods a good substitute? 

Any suggestions and/or advice would be appreciated.

Thank you.

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If you engage in discovery you will most likely waive rights to arbitrate. You may attempt to assert the additional affirmative defense: Lack of subject matter jurisdiction'' provide the agreement has a arb clause. those are my suggestions, nothing here is legal advise as i am not an attorney.

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I'm wondering whether arbitration is still a feasible path given that I've requested a BOP (which was objected to).

I'm willing to go about it the traditional route (discovery, etc.), but I'm not sure if it's the optimal path.

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17 hours ago, JackFisher said:

I'm wondering whether arbitration is still a feasible

You lose nothing by trying. If the court says no, you pick up right where you left off. 

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On 7/5/2019 at 10:31 AM, JackFisher said:

I'm not sure, but I feel like I should continue with discovery. I plan to send a Request for Production of Documents and Special Interrogatories. Seeing as a BOP is not applicable, how does one get a complete accounting in an Account Stated case? Are the aforementioned discovery methods a good substitute? 

 

During discovery the Plaintiff might send you a copy of "a" card agreement for you to admit its yours and admit to its genuineness.

If they do, its a generic no name, no signature, no account number agreement. As long as you admit its yours, I think you can file for arbitration saying that you NOW know there is an arbitration clause in the contract that you want to use. You never saw the agreement before that's why you didn't know there was arbitration clause.

I learned that from other posts here.

I am trying to win my case in court and I denied to the authenticity of the generic card agreement they sent me. 

I am not an attorney and I am not giving you legal advise. I read you want to go to arbitration so here's my 2 cents.

Good luck.

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Can you post a copy of the Credit Card Agreement, the arb clause many times states that electing arb  can  be done at anytime prior to trial. So if your not in trial, you may still be able to raise the affirmative defense, and the court must enforce the agreement. further support it by stating the court lacks jurisdiction to render judgment on the merits.  Henry Schein, Inc. v. Archer & White Sales Inc. 586 U. S.          (2019) which states:  
   '' …. A court has “‘no business weighing the merits of the grievance’” because the “‘agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious.’” Id., at 650 (quoting Steelworkers v. American Mfg. Co., 363 U. S. 564, 568 (1960)).''

Further, the agreement must be enforced.   AT&T MOBILITY L.L.C. v. Concepcion, 563 U.S. 333 (2011) which states:  '' In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna, 545 U.S. 440, 443 (2006), and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989).''

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14 hours ago, YOLO YOLO said:

During discovery the Plaintiff might send you a copy of "a" card agreement for you to admit its yours and admit to its genuineness.

If they do, its a generic no name, no signature, no account number agreement. As long as you admit its yours, I think you can file for arbitration saying that you NOW know there is an arbitration clause in the contract that you want to use. You never saw the agreement before that's why you didn't know there was arbitration clause.

I learned that from other posts here.

I am trying to win my case in court and I denied to the authenticity of the generic card agreement they sent me. 

I am not an attorney and I am not giving you legal advise. I read you want to go to arbitration so here's my 2 cents.

Good luck.

BY THE WAY, I JUST NOTICED THE GENERIC AGREEMENT THEY SENT ME HAS A DATE OF 07/2013 AT THE END, BUT THE ALLEGED ACCOUNT WAS OPENED IN 10/2013. :)

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25 minutes ago, YOLO YOLO said:

BY THE WAY, I JUST NOTICED THE GENERIC AGREEMENT THEY SENT ME HAS A DATE OF 07/2013 AT THE END, BUT THE ALLEGED ACCOUNT WAS OPENED IN 10/2013. :)

That may not matter.   A new cardmember agreement is not made for each individual consumer every time an account is opened. They are created either quarterly or yearly with the same agreement going to multiple account holders.  

Agreements are based upon the specific card, not the consumer.  

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4 minutes ago, BV80 said:

Agreements are based upon the specific card, not the consumer.  

 I believe you, however, how can the Plaintiff proof that a generic agreement without any info about the card holder and originated months before the account was opened was "mine"?

 

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16 minutes ago, YOLO YOLO said:

 I believe you, however, how can the Plaintiff proof that a generic agreement without any info about the card holder and originated months before the account was opened was "mine"?

 

For instance, if the agreements are issued yearly, your account would fall into a 2013 agreement.   It might be a different story if agreements are issued quarterly.  However, this concerns arbitration.

If the plaintiff objects to arbitration, it might try to do so on the basis that the consumer has provided the wrong agreement.  Therefore, the plaintiff would be the party who must prove the agreement is the wrong one.

In any case, even if the agreements are issued quarterly, the arbitration provisions still usually contain the same language from quarter to quarter.  But that’s where the consumer who wants to compel arbitration needs to make sure he has the correct agreement.   

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3 minutes ago, BV80 said:

In any case, even if the agreements are issued quarterly, the arbitration provisions still usually contain the same language from quarter to quarter.  But that’s where the consumer who wants to compel arbitration needs to make sure he has the correct agreement.   

Oh OK. I see.

In my case, I am not planning of going to Arbitration. On trial day, can I claim that the Plaintiff never provided the agreement that I "signed" with the original creditor?

Will the judge know that card agreements are produced quarterly or yearly and that they don't necessary show info about the card holder?

What can I say in front of the judge (if I have too) to proof the Plaintiff never provided "MY " agreement or the agreement that regulated the alleged account in the lawsuit?

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4 minutes ago, YOLO YOLO said:

In my case, I am not planning of going to Arbitration. On trial day, can I claim that the Plaintiff never provided the agreement that I "signed" with the original creditor?

Credit card agreements are not signed.  Did you have to sign an agreement before the account could be opened?

5 minutes ago, YOLO YOLO said:

Will the judge know that card agreements are produced quarterly or yearly and that they don't necessary show info about the card holder?

What can I say in front of the judge (if I have too) to proof the Plaintiff never provided "MY " agreement or the agreement that regulated the alleged account in the lawsuit?

The judge usually rules based upon the evidence and what is required by law.

You can state you never received an agreement, but the plaintiff can claim it was sent.  The judge would have to rule for who he believes presented the best argument.   

If you can use CCP 96 & 98, I’d focus on those rules, because on this site, I don’t recall a JDB that has complied with them. 

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18 hours ago, YOLO YOLO said:

You never saw the agreement before that's why you didn't know there was arbitration clause.

All they have to say is that you were sent a copy of the agreement when you opened the account, so you should have known what was in the agreement.

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