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Need Memorandum Opposition to Motion for Summary Judgment, Please help


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I am currently in arbitration and need to file this document. The only rules I can use are those in South Dakota and the Federal Rules. It would be greatly appreciated if you could assist me.  Need example of a Memorandum Opposition to Motion for Summary Judgment.

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 I am up against the original creditor. In the discovery document, they claim not to have assigned the debt. I produce several documents that prove the debt was assigned to Client Services and ARS. I am currently involved in the arbitration.  

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This is what I wrote So far:

 

DEFENDANT MEMORANDUM IN OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT 

                             

              Claimant hereby submits their Memorandum in Opposition to Plaintiff’s Motion for Summary Judgment. Claimant also reiterate and incorporate all arguments made in their own Motion for Summary Judgment and the memorandum in support thereof.

           

             The Opposition shall be based on this Opposition, the attached Motion for Summary Judgment and Exhibits attached thereto, the Separate Statement of Undisputed Material Facts, concurrently filed and served, on the complete files and records of this action, and on such other oral and/or documentary evidence as may be presented at the hearing on the Motion.

 

  1. INTRODUCTION 

            This case has arisen from a complaint filed by the OC, the original creditor, issued a credit card to Defendant on behalf of Home Depot, and that Defendant subsequently defaulted on the account, owing a balance of $5,000.00. Defendant denied the substantive allegations of Plaintiff’s Complaint and raised a number of affirmative defenses in her Answer.

 

 

 

                                                                   

2.   STATEMENT OF FACTS

              C. CLAIMANT PARTY PROPOSES AS A DISPUTE:

              OC Did Not Violate the Card agreement by Filing Suit.

 

                                      Claimant party responds: Dispute - Claimant mailed an Arbitration Agreement to OC, on August 30, 2021. Upon receiving the arbitration agreement, OC, immediately filed a lawsuit.

 

              Claimant received the Respondent’s Petition on September 16, 2021.

 

                                     A Motion for an Extension of Time to answer the petition was filed by the claimant on October 25, 2021.

 

The Defendant filed an Answer to the Request for Admission of Facts on November 23, 2021.

 

               Furthermore, Claimant filed a Rule to Show Cause/Motion and Order to Abate the legal proceedings on October 28, 2021, to facilitate compliance with the arbitration agreement and abate lawsuit that was filed prematurely by JDB, N.A.

 

               In response to Claimant’s Rule to Show Cause/Motion and Order to Abate, the law office of Law Office filed a Motion to Stay Pending Defendant’s Initiation and Outcome of Arbitration. This document in question was filed with the 24th Parish Court on or about November 1, 2021.

 

                             CLAIMANT PARTY PROPOSES AS A DISPUTE:

                             E. OC is Entitled to Recover the Balance on the Account.

                                                     Claimant party responds:

                  Dispute – Defendant in her answer, denies that she owes the sum due to plaintiff.

 

              A number of letters provided by the claimant prove that she contacted OC on January 2, 2020, seeking assistance with a payment arrangement. I was advised to contact the Centralized Forbearance Team for a review of my account to determine if there are any programs that would be suitable for me after speaking with the representative.

 

             In addition, when I contacted this department seeking assistance, the customer service representative stated, “She needs to let the account go into default before they consider any workout plan.” In spite of Claimant good faith efforts, the representative made unfair, unreasonable, one-sided, and outrageous demands knowing I would invariably default on the account.

            Moreover, OC own actions are contributing factors to its breach of contract.

            As of May 27, 2022, Defendant submitted a timely request for production of documents first discovery request to OC. The respondent contested whether the information was timely submitted. Therefore, the Claimant challenged OC request that her documents be stricken, construed as a witness and exhibit lists, and was advised that she may make these objections at the time of the hearing.

 

            CLAIMANT PARTY PROPOSES AS A DISPUTE:

            F. OC Evidence is Admissible

                        Claimant party responds: Dispute – in Witness and Exhibit list, referencing recordings and numerous statements. Respondent failed to attach a notarized affidavit to authenticate any allegations made by his witness in support of his motion. In accordance with:

          “Exceptions against Hearsay (2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. SD Codified L § 19-19-803

           “Wiretap Act 18 U.S. Code § 211”

             “Electronic Communications Privacy Act 18 U.S. Code § 210 – Prohibition of use as evidence of intercepted wire or oral communications.

            (c) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection.

          (d) Intentionally uses, or endeavors to use, the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection. Section 101 – Foreign Intelligence Surveillance Act of 1978

        “Motion for summary judgment and proceeding thereon. The motion and supporting affidavit shall be made on personal knowledge, but also requires that such affidavits shall show affirmatively that the personal knowledge ruling on a motion for summary judgment and to ensure that there is an admissible evidentiary basis for the case.” (Pawlik v. Barnett Bank, WM Sc. 2d Mi, MB (Fla. 1 DCA Mill) Internal citations omitted).

            Claimant party proposes as a Dispute: Statement of Facts

          Claimant party responds: Dispute to paragraph 1, discovery request for production of documents and request for admissions. Claimant request OC, to provide proof of debt signed credit card contract.

         “Contracts required to be in writing – Statute of Frauds – (4) An agreement for a loan of money or for an extension of credit, which agreement may be enforced by a beneficiary for whom the agreement was made, including, but not limited to, vendors of agricultural goods, services, or products. A loan or an extension of credit made pursuant to is specifically exempt from the provision of this section.”  § 51A-12-12 or chapter 54-11, and S.D Codified L § 53-8-2, S.D Rules of Evidence 19-19-804

 

3.      DEBT ASSIGNMENTS

 

           The first contact I had with JDB, Inc., was through a series of letters. On or about January 4, 2020, the first letter arrived in the mail, followed by others on August 19, 2020, September 23, 2020, September 30, 2020, October 14, 2020, October 22, 2020, and November 10, 2020.

            The first contact I had with JDB, was through a series of letters. On or about December 21, 2020, the first letter arrived in the mail, followed by others on April 7, 2021, and June 17, 2021.

 

           The first contact I had with Law Office, LLC, was through a series of letters. On or about June 17, 2021, the first letter arrived in the mail, followed by others on July 13, 2021, and October 16, 2021.

 

           In fact, evidence submitted by the Claimant shows OC is not the Real Party in interest and transfers his/her rights under the contract to third party collection agency. It was request that OC, provide proof of instrument of assignment execution acknowledgment of the credit card account, and any rights and authority conferred by an agreement between OC, Law. LLC, JDB, Inc., and JDB, Inc. Further, OC states in its discovery production exchange that it is the current and original creditor of the account and that the account has never been assigned. Exhibit “J” 

 

      CLAIMANT PARTY PROPOSES AS A DISPUTE

D. FDCPA is Not Applicable to OC

           Claimant party responds Dispute - The FDCPA is applicable to debt collection agencies and attorneys to prove they have the right to collect the debt they claim owe.

 

4.      LEGAL ARGUMENTS

 

           Summary judgment should not be granted where there is a genuine dispute of material fact or even the slightest doubt as to the facts. “Rule 56, (d) (1) Summary Judgment, FRCP

 

           Defendant also states The Plaintiff lacks standing to sue the Defendant, since at no time did the Defendant cause any harm to the Plaintiff.

 

           As a matter of sound judicial policy, however, this court has long required that persons seeking redress must first establish standing to sue. “The issue of standing focuses on whether a party has a sufficient relationship with a lawsuit to have a “justiciable interest” in its outcome. Austin Nursing Ctr., Inc. v. Lovato, 171 S.W. 3d 845, 848 (Tex. 2005)”

 

            The summary judgment standard is well settled. Plaintiff, as the party bearing the burden of persuasion at trial, must present admissible evidence to sustain its burden as to each element of its cause of action.

 

5.      PROOF OF CONTRACT AND TERMS

 

          Regarding the contract, there must be written terms. The Truth in Lending Act at 15 U.S.C. § 1637 (a) requires the essential terms of credit card account be disclosed in writing. In addition, creditors are required to post on the internet “the written agreement between the creditor and the consumer for each credit card account under an open-ended consumer credit plan. “15 U.S.C. § 1632 (d) (1).

 

            (b) Statement Required with Each Billing Cycle

The creditor of any account under an open-end consumer credit plan shall transmit to the obligor, for each billing cycle at the end of which there is an outstanding balance in that account or with respect to which a finance charge is imposed, a statement setting forth each of the following items to the extent applicable: (1) The outstanding balance in the account at the beginning of the statement period. “15 U.S. Code § 1637 – Open end consumer credit plans”

 

         Even in the absence of federal law, Plaintiff cannot prove the basis for any finance or interest charges, late fees and other charges, payment due dates, or even whether Defendant breached an obligation, without a contract.

 

         Consequently, someone with the requisite personal knowledge must be able to identify the controlling contract and, in the absence of Defendants’ signature, demonstrate what conduct, if any, demonstrated mutual assent to the purported terms. In this present case an employee of the Plaintiff is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of a contract that was allegedly formed before the Plaintiff’s alleged ownership of the alleged account.

 

             In this case an employee of the Plaintiff is not a competent witness with sufficient personal knowledge to authenticate and lay the proper foundation for the admission of billing statements that were allegedly created before the Plaintiff’s alleged ownership of the alleged account.

 

            Turning to breach and damages, Plaintiff must have a competent witness who can establish that each charge was authorized because the Truth in Lending Act imposes that burden on Plaintiff. 15 U.S.C. § 1643.

 

 

6.      AFFIRMATIVE DEFENSES

 

Defendant’s other defenses are:

 

            Claimant claims Lack of Privity as Claimant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

 

           Claimant claims accord and satisfaction as Claimant alleges that the original creditor accepted payment from third-party for the purported debt, or a portion of the purported debt, or that the original creditor received other compensation in the form of monies or credits from the Plaintiff.

 

            The Claimant has failed to reference with complaint proof of alleged assignment, original contract signed by Defendant, account numbers, accounting measures to come up with such sum of $5,000.00, accounting measures to come up with accrued of $????, lack of bona fide proof this alleged debt is indeed Claimant’s. The complaint does not disclose this information and it cannot be assumed without creating an unfair prejudice against Claimant.

 

           Claimant’s complaint fails to allege a valid assignment of debt and there are no averments as to the nature of the purported assignment or evidence of valuable consideration; Respondent’s complaint fails to allege whether or not purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

 

          Respondent’s complaint further fails to allege that the assignor even has knowledge of this action or that assignor conveyed all rights and control to Respondent. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against Claimant.

 

          “Instrument of Assignment Execution Acknowledgement or Proof Recording Defective execution invalidates assignment. An assignment for the benefit of creditors must be in writing, subscribed by the assignor, or by his agent thereto authorized by writing. It must be acknowledged proved and certified, in the mode prescribed by this code for recording transfers of real property and recorded as required by § 54-9-8. Unless such provisions are complied with, an assignment for the benefit of creditors is void against every creditor of the assignor not assenting thereto”

          SD Codified L § 54-9-2

 

         “Subsection (b) through (i) transferring the alleged contract and/or account in question from OC.” SD Codified L § 57A-9-406

 

         “(a) Discharge of account debtor – Notice of Assignment – Proof of Assignment. (c) Subject to subsection (h), if requested by the account debtor, an assignee shall reasonably furnish reasonable proof that the assignment has been made. Unless assignee complies, the account debtor may discharge its obligation by paying the assignor, even if the account debtor has received a notification under subsection.

 

         (2) Provides that the assignment or transfer or the creation, attachment, perfection, or enforcement of the security interest may give rise to a default, breach, right of recoupment, claim, defense, termination, right of termination, or remedy under the account, chattel paper, payment intangible, or promissory note. SD Codified L Title 57A Uniform Commercial Code 9-6

             

          Respondent’s failure to come forward with sufficient evidence as to each element of its prima facie case compels the denial of summary judgment for Defendant.

              Claimant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.

 

              Besides counterclaiming against Respondent, Claimant alleged the following: real party in interest, unethical practices such as mitigation and unjust enrichment, breach of contract, good faith and unfair dealing, unfair/deceptive acts under chapter 93A, minority rights, and deceptive collection practices misrepresentation. Opposition challenges the sufficiency of Respondent’s evidence as not enough to prove its claim, and the Respondent lacks standing to bring this action.

                                                        CONCULSION

        

 

           WHEREFORE, Claimant, respectfully submits that the Arbitrator should deny the Respondent’s Motion and Supplemental Motion for Summary Judgment, filed herein by OC and prays for Dismissal of the complaint by the Plaintiff for damages of $8,000.00 and any further relief this court deems just and proper for the above reasons.

 

 

 

 

 

 

 

 

 

 

 

 

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2 hours ago, lisah187 said:

 I am up against the original creditor. In the discovery document, they claim not to have assigned the debt. I produce several documents that prove the debt was assigned to Client Services and ARS. I am currently involved in the arbitration.  

When you say you had contacts and letters from JDBs, how do you know they were JDBs and not collection agencies that were collecting for the OC?  What documentation do you have to prove they are JDBs who purchased the account.

Have you checked the OC’s entry on your credit report?  If the OC sold the account, its entry will show a $0 balance owed.  However, if the entry still shows a balance owed, then the OC still owns the account.

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5 minutes ago, lisah187 said:

They JDB pull my credit report and mail me out several collection letters.

That is not proof that the businesses attempting to collect were JDBs.  Not all collection agencies purchase debts.  Some are hired by OCs to collect for the OCs.  Check your credit report to see if Citi is still reporting a balance owed.

I saw that you are now out of court and In arbitration.  When it comes to motions and oppositions to motions in arbitration, that may be different from court.  In the Motion for Summary Judgment filed by Citi, did it include Louisiana case law.

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I didn’t see any case Louisiana case law in Citibank motion yet. They will fill it tomorrow with the arbitrator. The document I copied is what I was working on to file with the arbitrator in opposition to there motion for judgment.

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15 minutes ago, lisah187 said:

Citibank is still reporting on my report with a balance. The status shows the account is closed.

That means Citibank still owns the account.  It has not sold it to a JDB, and you are not dealing with a JDB.

Has Citibank presented an affidavit from a Citibank employee?  Does it state that the affiant is employed by the plaintiff?

To oppose a MSJ, you need to show why the plaintiff hasn’t proven its claim.  You have to do more than just offer what you think they did wrong.  You have to back up your oppositions with law and proof, either in the form of your own documentation or court precedent that supports your oppositions.  

What arbitration forum is the case in?  JAMS or the American Arbitration Association (AAA)?

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2 hours ago, lisah187 said:

They stated I can only arbitrate using  South Dakota laws and federal laws only according to the Citibank contract.

It's common for card agreements to say that they're governed by a specific state law, usually the one the company is based in.

I looked up the South Dakota law for compelling arbitration.  It follows the federal law, just like every other state law on the subject I've looked for.

The mistake isn't going to matter if you're going to file a MTC.  If South Dakota is the wrong state and you're going to try to take this to trial, you might be able to us the error it to cast doubt on their record keeping and the accuracy of other statements, but that's iffy.  The courts seem to give creditors a lot of leeway.
"f

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2 minutes ago, shadow99 said:

It's common for card agreements to say that they're governed by a specific state law, usually the one the company is based in.

I looked up the South Dakota law for compelling arbitration.  It follows the federal law, just like every other state law on the subject I've looked for.

The mistake isn't going to matter if you're going to file a MTC.  If South Dakota is the wrong state and you're going to try to take this to trial, you might be able to us the error it to cast doubt on their record keeping and the accuracy of other statements, but that's iffy.  The courts seem to give creditors a lot of leeway.
"f

The OP is already in arbitration.

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3 hours ago, lisah187 said:

 I am up against the original creditor. In the discovery document, they claim not to have assigned the debt. I produce several documents that prove the debt was assigned to Client Services and ARS. I am currently involved in the arbitration.  

It looks like the debt was never SOLD. When I was sued by Citibank back in 2008 they produced every statements from first to last. I am sure they provided you with that. That is strong proof you  owe the debt.   Most statements state you have 60 days to challenge improper charges if you didn't do that then they are proper.  The contracts between the collection agencies and the O.C. is not germane to the lawsuit or arbitration there is no difference between inhouse collection and third party collection the O.C. still retains ownership.  The  O.C. is trying to lessen their cost in arbitration by removing the cost of hearing.  This is the second time I seen this tactic in arbitration.  Since S.D. law and Federal law both allow motion for summary judgements it appears to be legal.   

You can delay the MSJ be asking Arbitrator for time for O.C. to provide copies of agreements between collection agencies. (did you request that and they did not provide it?)  that you cannot respond to their motion for summary judgement without the agreements showing whether or not O.C. transferred power to collect and/or ownership of debt. 

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Since this is with an OC, there is very little to zero chance of winning in arbitration.  They will have everything they need to prove their case.  In your proposed opposition to summary judgment that you posted here, you admit that you owed Citibank money, that you called do discuss a settlement with them, and that you defaulted on the card.  Their lawyer could just sit back and have you prove their case for them.

I started trying to get out of debt with about $180k in credit card debt.  I got legal advice which said that I should try to settle with original creditors.  I don't know if it will, but the advice from @Bulldoger might work.  I am not a lawyer and can't give legal advice.  If it were me and I did get a delay I would try hard to reach a lump sum settlement with them.  Even if you get a delay for the MSJ, they are going to win the arbitration case.

 

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14 hours ago, BV80 said:

That means Citibank still owns the account.  It has not sold it to a JDB, and you are not dealing with a JDB.

Has Citibank presented an affidavit from a Citibank employee?  Does it state that the affiant is employed by the plaintiff?

To oppose a MSJ, you need to show why the plaintiff hasn’t proven its claim.  You have to do more than just offer what you think they did wrong.  You have to back up your oppositions with law and proof, either in the form of your own documentation or court precedent that supports your oppositions.  

What arbitration forum is the case in?  JAMS or the American Arbitration Association (AAA)?

It is the American Arbitration Association. If Citibank lie about transferring the account to JDB in the discovery documents, will that constitute as perjury?

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5 minutes ago, lisah187 said:

It is the American Arbitration Association. If Citibank lie about transferring the account to JDB in the discovery documents, will that constitute as perjury?

Possibly, but according to the information you’ve provided, Citibank did NOT sell the account to a JDB.  Your own credit report shows that fact.

When a creditor sells an account, it must update the balance on a credit report to report a $0 balance.  That is because the creditor no longer owns the account and cannot collect the balance.   A creditor cannot show a balance for an account it does not own.

The fact that Citibank still reports that you owe the balance shows that Citibank still owns the account.  It has NOT been sold to a JDB.

The only thing that the collection letters prove is that Citibank hired a debt collector to do the collecting.  They do not prove the account was sold to a JDB.

If the arbitrator is satisfied that Citibank still owns the account, how are you going to prove it is lying?

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9 hours ago, JohnJohn said:

Since this is with an OC, there is very little to zero chance of winning in arbitration.  They will have everything they need to prove their case.  In your proposed opposition to summary judgment that you posted here, you admit that you owed Citibank money, that you called do discuss a settlement with them, and that you defaulted on the card.  Their lawyer could just sit back and have you prove their case for them.

I started trying to get out of debt with about $180k in credit card debt.  I got legal advice which said that I should try to settle with original creditors.  I don't know if it will, but the advice from @Bulldoger might work.  I am not a lawyer and can't give legal advice.  If it were me and I did get a delay I would try hard to reach a lump sum settlement with them.  Even if you get a delay for the MSJ, they are going to win the arbitration case.

 

That's what I was thinking ( delay to settle) had to cut my post short due to wife calling for my help.   

FYI I ended up losing and getting a judgement dropped my credit score. One the bright side they did allow me to make payments instead of garnishment or levy. 

I would try for settlement lump sum if possible or even full amount with payments at this time would save you a judgement and possible attorney fees and Arbitration fees. 

 

 

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7 hours ago, lisah187 said:

If Citibank lie about transferring the account to JDB in the discovery documents, will that constitute as perjury?

NO.  First you really need to understand that you are being sued by an original creditor.  They have all the documents they need to prove their case and do not have to have an affidavit attesting to their accuracy.  Legally they can vouch for their own records.  CITI is not lying.  As has already been said using a collection agency prior to suing is NOT the same as selling the account to a JDB.  Based on everything I have read CITI has not sold your account and there is no JDB involved.  CITI is known for holding on to their paper and suing themselves.  

22 hours ago, lisah187 said:

Was you able to take a look at the document I copied and paste? 

I read your document and "copied and pasted" is an understatement.  ALL that document does is tell them you can cut and paste from the internet and don't know the law. 

"Claimant request OC, to provide proof of debt signed credit card contract."  The courts are well aware there are no signed contracts in a credit card debt case.  Complete waste of time.

"The Plaintiff lacks standing to sue the Defendant, since at no time did the Defendant cause any harm to the Plaintiff."  You admit from the start you had a credit card and defaulted.  If you are being sued by CITI you most certainly did cause them harm by the default.

You raise satisfaction and accord which is only required in landlord/tenant civil cases.  In no state is accord and satisfaction a defense to credit card default.  You also admit that CITI is the owner of the debt then wander all over creation vaguely discussing assignor/assignee, JDB and CA entities.  They are not required to have a live witness to attest to their own records.  Federal business records laws are clear on this.  

You have basically thrown everything but the kitchen sink at this hoping that something sticks and it isn't even cohesive of an argument.  The MTC arbitration defense is best used against a JDB to get them to back down due to the expense.  When used against an OC like CITI it is to get a better settlement because winning is next to impossible.  A bad case in court is a bad case in arbitration and AAA allows for them to seek reimbursement of the arbitration fees from YOU as part of an award.  Settle this ASAP.  You are in over your head and for $8k they are not going to back down and walk away.

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I use the UCC code on my documents. Will this protect me in this kind off situation. 
 

What is UCC 1-207 and 1-308?

  • See UCC 1-308 w hich w as form ally UCC 1-207. “§ 1-308. Performance or Acceptance Under Reservation of Rights. (a) A party that w ith explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved.
Edited by lisah187
Incorrect spelling needed to be corrected
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I use this on all my documents. Will this void or help with any legal recourse. I copy and paste below.

 

The purpose of UCC 1-308, enacted to replace UCC 1-207, is to protect an individual or business entity from unknowingly giving up rights by agreeing to specific contract terms. By signing a document with additional terms such as “without prejudice,” or “under protest,” and referencing this code, the signee establishes the retention of any rights he or she unknowingly or under false pretense agrees to surrender. Such provisions do not allow an individual or business to avoid legally binding contract terms, but rather to accept contract terms without risk to his other rights. Typically, these rights apply to matters of debt and contract performance.

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