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(... without availing oneself discovery?)
General Credit Forum / Re: Gym membership keeps accumulating
« Last post by Clydesmom66 on Today at 03:33:24 AM »
I recently moved to another state and cancelled my membership in person at my gym.

UGH that is the first problem.  ALL of those gym memberships require that you cancel in writing to a specific address.  It is in the fine print of the membership agreement/contract you signed when you joined.

The problem is every month, the debt increases as the membership fees keep accumulating. Is accumulating the membership fees legal? Shouldn't the account be closed for deliquency after a few months?

If you signed a contract for a fixed term membership i.e. 12 or 24 months:  no.  The fees keep accumulating including late fees and possible interest.  If it is a month to month membership then they still keep piling up until you follow the cancellation verbatim.
General Credit Forum / Gym membership keeps accumulating
« Last post by bysnyc on Today at 02:25:55 AM »
I recently moved to another state and cancelled my membership in person at my gym. Months later, my former roommates forwarded me letters from a debt collection agency for my membership fees. I tried to talk to the gym, but they wanted me to go there to cancel or talk to the manager again. The problem is every month, the debt increases as the membership fees keep accumulating. Is accumulating the membership fees legal? Shouldn't the account be closed for deliquency after a few months?
Easiest way to defeat summary judgment is to argue that P evidence is not in admissible form... like the string of cases I gave you earlier in this thread.
You can ask for it in a Request for Admissions. 

As for how to defeat a Motion for Summary Judgement?  Easy...You have to establish that there is a dispute over a material fact that requires trial.

Now, going about doing that for someone who is floundering as you are is not going to be so easy as it sounds.

We've had many a discussion here on DB regarding how to establish a dispute over a material fact.  You might want to do a search from the home page with that phrase in the search block.  You could always use Google and Google Scholar, but that might be asking too much.

Just from what we've been discussing, you can establish a dispute over a material fact by presenting a contract and certifying it as being the one that applies to the account.  They can either accept it as evidence, and you're free to argue for removal to arbitration...but you're admitting that you, indeed, had a contractual relationship with AmEx.  They are free to say that contract that YOU offered doesn't apply, which, mirabla dictu results in a dispute over a material fact, or argue that there was no contract, at which you're off to the races with an account stated argument and a host of disputes over material fact because you'r denied the counts of their complaint. 

But remember, account state cases can be tricky for both plaintiff and defendant.  And the plaintiffs lawyer, no matter how junior, is going to be far more capable of arguing the case than you. 

But, hey...You're the expert; do what you want.
Waited until discovery, then asked for it.

Duh....    :vbdoh:
You need to see what NY State courts have to say about account stated.  Each state has differences in interpretation: some major, some subtle.

You might be able to argue that AmEx never does anything without a contract, and therefore and account stated argument is an attempt to unfairly nullify the terms of the agreement.  The judge will either buy your argument or not.  The best that you are likely to get with that argument is a continuation and a requirement that they provide the contract.

How would I prove that AmEx never does anything without a contract?
Regardless of attacking one or both counts, the idea isn't so much to get the MTD granted, but to force plaintiff to produce alleged contract without defendant resorting to discovery.

Frankly, if I were to try my hand at arbitration in this case, I would wait to be served, wait until 3 days before deadline to respond, and file my MTC. I would use any reasonable version of the AmEx contract. If plaintiff didn't like the contract, they could produce what they allege is the right one.

 If I were plaintiff I would serve you with an MSJ ASAP consistent with NY civil procedure.


There is a type of bore who argues continuously about whatever is being discussed.
Don't fall for it!
There is almost always some kind of risk or downside to anything you do in a lawsuit.
The important thing is not to be frozen into inaction. //

What are my main defenses against a MSJ?

At this point I'm assessing what the best course of action is to obtain a copy of the cardholder agreement.
I'm still unclear about the pros and cons of going forward with either, a.) a MTD, or b.) a MTC, as a means of obtaining the cardholder agreement.

And, the CSR I spoke with was in a call center in the Philippines, it wasn't as if I called their legal department!

Well, the notion of simply requesting a copy of the agreement was ineffective. Not sure if it's worth trying to call again.

Am I the only one who's not been able to locate a copy of the specific cardholder agreement ... certainly this hurdle has been faced before. What have other consumers done?
General Credit Forum / May have messed up when Midland called
« Last post by Texasguy1 on Today at 01:19:13 AM »
Hello everyone, havent posted in a while but have run into a problem with Midland. I received a call from them the other day that they had purchased my debt from care credit.

As best as I can remember, the person on the phone didnt introduce heself as a representitive from Midland and dont recall whether they told me it was a recorded conversation. I believe she said something like this: “This is Sue and I am calling about your care credit account”

So I thought it was care credit callng as I have been speaking with them and have been telling them I had applied for disability and I thought they were following up with me. Anyway through the conversation it became apparant it was a debt buyer.

  I immediately stopped her and told her I thought this was someone else and that this account is not mine and we had some words and then I hung up. 

So today I received my first letter from them and sent out a DV letter then tonight I answered the phone and was them asking how I wanted to resolve this debt so I told them that this wasnt my account and that I had just sent out a DV letter and not to contact me except through the mail.

 She went on to tell me that I had already admitted this was my account to another representative in which again I told her it wasnt my account but she went on reading the notes from the other representitive but I asked her if she had a recorded conversation of me admitting this account but she wouldnt answer but went back to the notes the question and I soon hung up.

Sorry to make this so long but I feel stupid because I may have <Removed> it up if it goes to court and they have a recorded conversation.   Any help is greatly appreciated. 
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