Cooling/Winter Account Stated lawsuit billing statement questions

[RAMBO7]

1. Who is the named plaintiff in the suit?  BOA

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Cooling/Winter

3. How much are you being sued for? ~6000

4. Who is the original creditor? (if not the Plaintiff) BOA

5. How do you know you are being sued? (You were served, right?) served

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

7. Was the service legal as required by your state? yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  demand letter 2/18/2021, lawsuit filed 4/2/2021

9. What state and county do you live in? FLORIDA/BROWARD

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) > 180 days ago

11. When did you open the account (looking to establish what card agreement may be applicable)?  2015

 

Sued in Florida small claims.   I haven't done any responsive pleading or anything because I don't have to according their rules of civil procedure.  Doesn't mean I won't, I'm just not on a time crunch and getting all ducks in a row because preliminary hearing is mid August.

Cooling and Winter is using "implied" account stated to try and collect the debt and maybe breach of contract but the first part of the complaint is very vague.  They attached only 2 statements to the complaint, one from January 2020 and the other from January 2021 (I'm assuming the 2020 one is because that's the last time i  used the card).  The January 2021 is claimed as the last periodic statement sent before charge off.   Interestingly, they sent me a year end summary statement on February 2nd.

My question is whether an account stated claim needs a statement post charge off with the final accounting or however something like that is phrased to prevail.   Using a statement while the account is open that shows the date minimum payment is due and whatnot wouldn't create a "new" contract under an account stated theory no?

I hope that made sense

 

 

[Clydesmom]

1 hour ago, RAMBO7 said:

My question is whether an account stated claim needs a statement post charge off with the final accounting or however something like that is phrased to prevail.

At trial:  yes.  Attached to the complaint.  It is a common misconception that all evidence must be attached to the complaint.  Only a few states require this and FL is not one of them.  In order to see what evidence they intend to use you have to engage in discovery.

1 hour ago, RAMBO7 said:

Using a statement while the account is open that shows the date minimum payment is due and whatnot wouldn't create a "new" contract under an account stated theory no?

There are other ways to prove the balance owed.  The statements are the primary basis for showing the account is yours, you used it and defaulted.

 

You are being sued by an OC.  The defenses you read about on sites like this one are based on being sued by a JDB.  There really are only two defenses to an OC suit:  identity theft and SOL.  Neither of these appear to apply.  If you don't have a lot of debt then settling may be your best option.

[RAMBO7]

 

15 minutes ago, Clydesmom said:

At trial:  yes.  Attached to the complaint.  It is a common misconception that all evidence must be attached to the complaint.  Only a few states require this and FL is not one of them.  In order to see what evidence they intend to use you have to engage in discovery.

There are other ways to prove the balance owed.  The statements are the primary basis for showing the account is yours, you used it and defaulted.

 

You are being sued by an OC.  The defenses you read about on sites like this one are based on being sued by a JDB.  There really are only two defenses to an OC suit:  identity theft and SOL.  Neither of these appear to apply.  If you don't have a lot of debt then settling may be your best option.

 

This addressed my question, and yeah it's small claims court at that so the complaint is bare bones only what's required.    My brainstorming was that since there is a billing statement from the OC saying this is what you owe right now and that demand from that date was referenced in the complaint, they didn't give me a reasonable amount of time before filing the lawsuit to dispute so how can they go with a theory of implied acceptance?  ie less than 30 days from charge off to lawsuit

I haven't been reading many defenses or anything since I know I have none, i'm just trying to see how good of a motion to dismiss I can cobble together before answer.

 

 

[BV80]

17 minutes ago, RAMBO7 said:

 

 

This addressed my question, and yeah it's small claims court at that so the complaint is bare bones only what's required.    My brainstorming was that since there is a billing statement from the OC saying this is what you owe right now and that demand from that date was referenced in the complaint, they didn't give me a reasonable amount of time before filing the lawsuit to dispute so how can they go with a theory of implied acceptance?  ie less than 30 days from charge off to lawsuit

I haven't been reading many defenses or anything since I know I have none, i'm just trying to see how good of a motion to dismiss I can cobble together before answer.

 

 

You stated your last payment was 180 days ago.  Chances are that you received letters regarding non-payment.  Did you dispute the balance or any charges during that time?  If not, then you implied that you accepted the balance.

Unless your state law says otherwise, there is no law that prevents filing a lawsuit right after charge-off.  In fact, they could have filed suit when you first went into default.

 

 

[RAMBO7]

13 minutes ago, BV80 said:

You stated your last payment was 180 days ago.  Chances are that you received letters regarding non-payment.  Did you dispute the balance or any charges during that time?  If not, then you implied that you accepted the balance.

Unless your state law says otherwise, there is no law that prevents filing a lawsuit right after charge-off.  In fact, they could have filed suit when you first went into default.

 

 

I did not, but every month until the lawsuit the balance was different, which begs the question if I'm disputing the final balance within a reasonable time shouldn't that preclude implied acceptance to that specific dollar amount?   My understanding is that the past statements and balances are just evidence of a prior relationship.  They, or i guess me specifically, has to prove acceptance and promise to pay.

I know they could file at any time, my theory was the filing prevented me from exercising the ability to dispute (since disputing after lawsuit is filed is worthless)

[BV80]

23 minutes ago, RAMBO7 said:

I did not, but every month until the lawsuit the balance was different, which begs the question if I'm disputing the final balance within a reasonable time shouldn't that preclude implied acceptance to that specific dollar amount?   My understanding is that the past statements and balances are just evidence of a prior relationship.  They, or i guess me specifically, has to prove acceptance and promise to pay.

I know they could file at any time, my theory was the filing prevented me from exercising the ability to dispute (since disputing after lawsuit is filed is worthless)

The balance was different probably because they added interest each month which they are allowed to do.

What do you consider to be a reasonable time?   Your cardmember agreement should state the amount of time you have to dispute.  Usually it’s 60 days.

Here’s what the NC Court of Appeals said about “account state” in American Express Bank v. Voyksner (2018).

”Here, Plaintiff satisfied the first two elements of the account stated claim by calculating the balance Defendant owed and sending it to him via monthly account statements. Plaintiff also submitted a balance matching statement to Defendant, in which it calculated all of the payments Defendant made on its credit account to date, in addition to the remaining balance owed. Further, Plaintiff satisfied the third element because Defendant failed to object to or dispute any of the account statements Plaintiff sent detailing the balance owed. Pursuant to the Cardmember Agreement's provision entitled "Billing Dispute Procedure," Defendant had sixty days to object in writing to any account statement errors. However, Defendant failed to object within the given time period, thereby implicitly agreeing to the correctness of the statement.” 

[RAMBO7]

15 minutes ago, BV80 said:

The balance was different probably because they added interest each month which they are allowed to do.

What do you consider to be a reasonable time?   Your cardmember agreement should state the amount of time you have to dispute.  Usually it’s 60 days.

Here’s what the NC Court of Appeals said about “account state” in American Express Bank v. Voyksner (2018).

”Here, Plaintiff satisfied the first two elements of the account stated claim by calculating the balance Defendant owed and sending it to him via monthly account statements. Plaintiff also submitted a balance matching statement to Defendant, in which it calculated all of the payments Defendant made on its credit account to date, in addition to the remaining balance owed. Further, Plaintiff satisfied the third element because Defendant failed to object to or dispute any of the account statements Plaintiff sent detailing the balance owed. Pursuant to the Cardmember Agreement's provision entitled "Billing Dispute Procedure," Defendant had sixty days to object in writing to any account statement errors. However, Defendant failed to object within the given time period, thereby implicitly agreeing to the correctness of the statement.” 

BOA is 60 days as well,   the time from the statement attached to the complaint to law suit was less than 60 days.    The time from demand letter by cooling and winter to lawsuit was give or take 30 days.  My thinking is that I was within my window to give a timely dispute.

And my thinking was, yes they are allowed to add interest and penalties and fees every month, but how can there be a meeting of the minds until there is a final owed balance due in full.

 

[BV80]

2 hours ago, RAMBO7 said:

BOA is 60 days as well,   the time from the statement attached to the complaint to law suit was less than 60 days.    The time from demand letter by cooling and winter to lawsuit was give or take 30 days.  My thinking is that I was within my window to give a timely dispute.

And my thinking was, yes they are allowed to add interest and penalties and fees every month, but how can there be a meeting of the minds until there is a final owed balance due in full.

 

All you would be disputing is the interest and penalties.  You did not dispute the original balance which was based on your charges and payments.   You did not dispute past statements sent to you that included interest and penalties.  That indicates you had no dispute and did not intend to dispute.  

Basically, your dispute would be that you disagree with the last round of interest and penalties on the final statement before the lawsuit was filed, but the balance on the statement received before the last one was correct.

  

 

[RAMBO7]

18 hours ago, BV80 said:

All you would be disputing is the interest and penalties.  You did not dispute the original balance which was based on your charges and payments.   You did not dispute past statements sent to you that included interest and penalties.  That indicates you had no dispute and did not intend to dispute.  

Basically, your dispute would be that you disagree with the last round of interest and penalties on the final statement before the lawsuit was filed, but the balance on the statement received before the last one was correct.

  

 

 

Right, I get that.  I have 0 chance of prevailing in the suit if it goes to trial but a decent chance of making this particular volume lawyer earn his paycheck, especially against a "judgment proof" defendant.  These people rely on default judgments, answers with sob stories of why the defendant can't pay, and copy/pasted motions for summary judgment.   

You said yourself the fact pattern here indicates my intent.  Intent I believe, is a fact based question that would be in dispute and probably gets over a motion for summary judgment.  There's 2 statements (3 if you count the year end statement) that didn't give me the requisite time to dispute anything.  The final statement wasn't mailed or sent out to me in any form (they don't have to send that one by law though with a charge off).  That final statement is what forms the basis of the new contract, which is basically all an account stated is.

To me, whether these arguments would work or the probability of success trying it is irrelevant.  I'm going to lose, but I'm going to throw as many non frivolous arguments as I can. 

 

This is not really related and I haven't searched the board to see if it's been mentioned, but a few months ago the Florida Supreme Court allowed for attorney fees for debtors in account stated claims and had interesting language supporting the ruling that makes the original credit agreement way more important in an account stated claim (where it's usually not even needed to win)