Need help with Answer to 'open book' 'account stated' (Discover, California)

[bff]

After tabs and many tabs, i just cant find any real defense against 'account stated' cause of action from an original creditor. It is Discover in California.

They did not present any evidence in the summons complaint (why?). They just listed open book / account stated and worded it exactly as what is called for in the jury instructions (forget the name of the doc)

So what 'affirmative defenses' do i use? 

There really seems to be no defense against this. Cant ask them for an original contract cause apparently 'account stated' trumps it. 

So does everyone just loose this kind of case?

BK is an option, but how can i drag this out. Im going to be out of pocket $371, and that is rent money. I got nothing left other than what i can sell off around me. And i am learning thats a big no no prior to doing a BK. So... exactly what can i do here?

Lastly, how soon after I file the answer at the court do i have to mail it to the attorneys? Does it have to be postmarked the same day? Cause i know they will get notice of it once its filed anyways electronically. Is this important to have done? reason is i have to find someone to do that and i cant afford a local process server. 

Blood donations from a simple, honest taxpayer worth much now days?

[Clydesmom]

3 hours ago, bff said:

So what 'affirmative defenses' do i use? 

There are only two defenses to a suit by an original creditor:  Identity theft and the statute of limitations being expired.  If the account is yours the first one does not apply and if they filed timely then the second doesn't either.  The defenses you read about on sites like this one are based on a JDB suing not an OC.

 

[bff]

1 hour ago, Clydesmom said:

There are only two defenses to a suit by an original creditor:  Identity theft and the statute of limitations being expired.  If the account is yours the first one does not apply and if they filed timely then the second doesn't either.  The defenses you read about on sites like this one are based on a JDB suing not an OC.

 

What about the elephant in the room? The amount owed?

Its not enough for them to lay out a number and expect me to accept it. 

I want an accounting of every last penny from balance zero till the claim. There is an illusion that computer records are always accurate. Yet we have case after case of insider whistle blowers (Chase in a case i was reading), where the firm maintained 3 different systems. 1 for current accounts, another for accounts in collections, and another for charge -offs. There was incompatibilities between the systems each with their own different amount owed. 

I know their next move will be to show basic statements, an unsigned generic card holder agreement, and say this fullfills the requirements for account stated.

But the elephant remains the room. The AMOUNT owed has not been proven. Just alleged.

Do you think that is a stronger angle by which to use discovery to seek evidence of miscalculations and errors? So as to 'buy time to consider a BK' ?

[BackFromTheDebt]

There have been people in California, including a recent thread, who used accounting to win cases.  I did that myself in Wisconsin many years ago.  
 

You need to spend some time to find and read these threads to see how they did it.  

[bff]

2 hours ago, BackFromTheDebt said:

There have been people in California, including a recent thread, who used accounting to win cases.  I did that myself in Wisconsin many years ago.  
 

You need to spend some time to find and read these threads to see how they did it.  

Do you know which ones it is? Is it in this forum? 

Thank you for a ray of hope

[BackFromTheDebt]

I should add — I won a case in Wisconsin after the judge threw out the Cap 1 affidavit in support of their accounting because state law said the affiant had to have first-hand knowledge of the account and the accounting methods.  The affiant was a “legal support specialist”.  The judge in my case ruled, correctly, that there was no evidence a “legal support specialist” had the proper knowledge of the account.  I filed an objection to the affidavit and the accompanying evidence and the judge agreed.  
 

I am now a VP in banking IT.  I know all about the issues of different account data being spread throughout multiple databases.  The vast majority of the time the banks get it right.  But often they don’t.  I have seen situations in more than one bank where a software error or a database error cost a bank dearly.  
 

There is a recent thread in which someone beat a $42,000 case in a California court by attacking the accounting.   Look it up, read it, learn from it.