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  1. #1
    Coltman1966 is offline Junior Member
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    Discover Card case still going on....

    What is the name of your state (only U.S. law)? Indiana


    Discover Card case still going on....

    I have been arguing back and forth with the attorney on this case as the summary judgment was vacated because I was not allowed sufficient time to respond. My main argument is that the card holder agreement that they have submitted as an exhibit is dated 2009. The account was closed around 2008. How can they use an agreement that is dated after the account has been closed? Is this even legal? What defense can I use against this?

    They also do not have the full account number listed anywhere on the statements that they have submitted as evidence as well as my physical address. They have a P.O. Box listed instead. Are there points for argument that can be made on that?

    I am trying to have the legal fees they are seeking to recover removed form the claim since it is listed in the agreement that is dated past the date the account was closed. I am hoping that if the right to recover legal fees are removed I may be able to have the case sent to trial where it will make it more costly for them to defend without being able to get reimbursed for their fees.

    Any suggestions on this?
  2. #2
    justalayman is offline Senior Member
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    ? What defense can I use against this?
    that that agreement is not valid and as such, the terms of that agreement are not applicable to your case.

    They also do not have the full account number listed anywhere on the statements that they have submitted as evidence as well as my physical address. They have a P.O. Box listed instead. Are there points for argument that can be made on that?
    the PO box. No argument for that. Apparently that is where you get your mail so that is what they use.

    lacking a full account number; obviously that does not identify your account so any evidence linked to you with a less than full account number is not dependable as being accurate concerning your account.

    I am trying to have the legal fees they are seeking to recover removed form the claim since it is listed in the agreement that is dated past the date the account was closed.
    fair enough but they can seek the fees even without the contract allowing them. It would then be up to the judge to decide and chances are, if you lose, they will get their fees.

    I am hoping that if the right to recover legal fees are removed I may be able to have the case sent to trial where it will make it more costly for them to defend without being able to get reimbursed for their fees.
    not a good gamble. You lose, it will likely become your debt.
  3. #3
    cosine is offline Senior Member
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    Quote Originally Posted by Coltman1966 View Post
    My main argument is that the card holder agreement that they have submitted as an exhibit is dated 2009. The account was closed around 2008. How can they use an agreement that is dated after the account has been closed? Is this even legal? What defense can I use against this?
    You make a motion to the court to have the exhibit removed, as it can be clearly determined to not be applicable to an account that was closed prior.

    Quote Originally Posted by Coltman1966 View Post
    They also do not have the full account number listed anywhere on the statements that they have submitted as evidence as well as my physical address. They have a P.O. Box listed instead. Are there points for argument that can be made on that?
    Is the P.O. Box yours, or was yours at the time of the account being opened?

    Quote Originally Posted by Coltman1966 View Post
    I am trying to have the legal fees they are seeking to recover removed form the claim since it is listed in the agreement that is dated past the date the account was closed. I am hoping that if the right to recover legal fees are removed I may be able to have the case sent to trial where it will make it more costly for them to defend without being able to get reimbursed for their fees.
    You should wait to see if the provide proper documentation. You might try to argue that they failed to present the proper documentation initially, and lose the right to bring it later, absent a valid excuse for doing so (I've seen a lawyer argue this and successfully get some documentation thrown out).
  4. #4
    Coltman1966 is offline Junior Member
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    Quote:
    <<<I am trying to have the legal fees they are seeking to recover removed form the claim since it is listed in the agreement that is dated past the date the account was closed.

    fair enough but they can seek the fees even without the contract allowing them. It would then be up to the judge to decide and chances are, if you lose, they will get their fees.>>>

    Their argument is that they are entitled to collect legal fees as listed in the agreement. My argument is that the agreement is dated past the date that the account was closed and would not be valid. Further, it does not list my name or account number anywhere on the agreement.
  5. #5
    justalayman is offline Senior Member
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    There is one thing that might allow them to base their claims on the contract they are; many contracts such as this allow alterations to the contract. Of course, they specify means of notification and include statements such as "your continued use of the account will serve as a ratification of the changes" and such.

    If your original contract includes such statements, a newer contract and it's terms may be able to be utilized. To do such though, they would still have to present your original contract showing that was allowed per the original contract. So, they are still going to have to present the original contract.

    and just because the account was closed, that does not mean the terms of the contract cease to control. There are generally terms written into the contract to specifically direct what actions are available to the parties once the use of the account is stopped.
  6. #6
    TigerD is offline Senior Member
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    Quote Originally Posted by justalayman View Post
    To do such though, they would still have to present your original contract showing that was allowed per the original contract. So, they are still going to have to present the original contract.
    Only if the OP knows how to make them.

    DC
  7. #7
    justalayman is offline Senior Member
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    Quote Originally Posted by debtcollector` View Post
    Only if the OP knows how to make them.

    DC
    true, quite true
  8. #8
    Coltman1966 is offline Junior Member
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    I get what you mean by the contract. However, since they are using one that has been submitted after the account was closed, how can they use a contract or agreement to an account that has already been closed that is dated after the closing? It would seem to me that they could write in anything they wanted.
  9. #9
    justalayman is offline Senior Member
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    you will have to argue the validity of that contract. I don't know what your original contract allowed them to alter. That is critical in your case.
  10. #10
    Coltman1966 is offline Junior Member
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    Summary Judgement Awarded

    I received notice from the court that summary judgment was awarded to the plaintiff.

    I had also argued that I have denied all allegations made by the plaintiff. I would have thought this would have automatically triggered a trial date. I am going to appeal this case as the plaintiff has provided nothing in the way of proof that this is even my account.

    they did provide an affidavit from Discover card saying the account is mine.

    However, with the statements lacking a full account number, the statements going to a P.O. Box, my denial of the allegations, and a contract that was submitted as an exhibit after the account was closed, it would seem to me that I could get a dismissal through the appeals court or a trial set.

    Any suggestions on how to proceed with this?

    Thanks.
  11. #11
    Kiawah is offline Senior Member
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    Should have paid the bill, or got a lawyer.
  12. #12
    cosine is offline Senior Member
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    You get an attorney that knows how to file appeals. The appeal would have some argument to justify setting trial date. If it wins, it goes back to the original court for trial.

    Since you were able to have the first summary judgment vacated, what motions did the plaintiff make to the court to have the summary judgment reinstated? They should have served a copy of same to you, so you could respond. Did that happen? If yes, what did they argue?

    Did you ask for a jury trial, originally?

    Can you give more details on the original "summary judgment was vacated because I was not allowed sufficient time to respond"?
  13. #13
    Coltman1966 is offline Junior Member
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    <<<You get an attorney that knows how to file appeals. The appeal would have some argument to justify setting trial date. If it wins, it goes back to the original court for trial.

    Since you were able to have the first summary judgment vacated, what motions did the plaintiff make to the court to have the summary judgment reinstated? They should have served a copy of same to you, so you could respond. Did that happen? If yes, what did they argue?

    The judge vacated the original summary judgment as he recognized that he was in error in awarding it in the first place since he did not allow sufficient time for me to respond to the plaintiffs motion for summary judgment.

    <<Did you ask for a jury trial, originally?>>

    I initially asked for one but it was never considered. I have since moved for a dismissal since the I have denied the charges, disputed the amount due, argued that the statements were sent to a PO Box that is not my address, agrued against the agreement that was submitted as it was dated past the date the account was closed and no where do the statements list my full account number.

    <<<Can you give more details on the original "summary judgment was vacated because I was not allowed sufficient time to respond"?>>>

    I know I am no lawyer, but how can summary judgment be granted when the plaintiff really has never proven that this is my account? The only piece of evidence, if you can call it that, was an affidavit that was signed a bank representative stating that the account is mine. No contract, original agreement or any other evidence. Whatever happened to reasonable doubt?

    I have repeatedly argued that the defendant's opposition to Summary judgment does rise to a genuine issue of material fact. I have raised numerous issues that have gone unanswered.

    Your help is appreciated.
  14. #14
    Coltman1966 is offline Junior Member
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    I am going to be filing an appeal in a few days and it would be helpful if anyone can answer my questions on the previous reply post.

    Thanks!
  15. #15
    Stevef is offline Senior Member
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    You only asked two question, and they seemed rhetorical, but here goes:

    how can summary judgment be granted when the plaintiff really has never proven that this is my account?
    The standard for a summary judgment is that there are no material facts in dispute. This could have been granted if you did not properly dispute that the account was yours, or for any number of other reasons.

    Whatever happened to reasonable doubt?
    Reasonable doubt applies in criminal cases, not civil cases.

    It really sounds like you're in over your head.

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