Author Topic: stated accounts and affidavit of debt  (Read 1436 times)

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wolf12

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stated accounts and affidavit of debt
« on: June 25, 2011 06:43:03 AM »
Hi All,

Well, submitted pre answer motion to dismiss compel arb __THANK YOU ALL SO VERY MUCH!!__ and will be waiting to hear back if it is approved or denied. But looking to get prepared either way.

When  suit was filed (before I was served) I had a sent a timely DV. I know that its worthless once the suit is in, but they did get back to me with a response saying here is the info. you requested. No contract and  ONE  year of recent printout statements.

Now since they are suing this alleged account as account stated, shouldn't they have sent an affidavit of debt?

Is this something I should be disputing now-- similar to responding to statements gotten from the creditor from a DV letter saying  “what you sent is not enough, please send contract, etc” (only in my case I would be asking for affidavit of debt) -- or wait until it is either in court (or Arb?).

I guess the obvious answer is its in the court system now so too late to do that, but since it was in the system they DID reply to my DV. So wasn’t sure if it was something I am supposed to dispute right away.

Also, just out of curiosity, since stated accounts seem to be easier for the creditor to win, why do they not just use that as their reason to begin with all the time, since  an   account stated is generally established when a debtor fails to object to a bill from his creditor within a reasonable time, which is probably the case with everyone.

Also, have there been successes with stated accounts that anyone knows of?
 


Looking for strategies specifically for account stated.

Thanks,
Wolf12





coltfan1972

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Re: stated accounts and affidavit of debt
« Reply #1 on: June 25, 2011 07:42:49 AM »
On the DV issue, what they sent you is solid validation.  I know there is a lot of info out there about making specific requests in the DV letters.  The fact is proper debt validation is very minimal information being provided.  There is no requirement to send contracts or affidavits of debt. 

You can make any demand you want in a DV or follow up DV.  They are not required to provide you with your requests.  Personally, I have never heard of a creditor following up with documentation requested from the debtor.   

You're somewhat confusing DV with what has to be provided in discovery.   In discovery you can ask for your laundry list of items.  If the request is for something that is relevant they must provide it.  If they don't they can't use the requested items at trial. 

It's really a moot point.  You're in litigation.  There going to have to provide a ton more than they are required to provide in DV to win the case.   Disputing at this point is also moot.  If you have filed an answer then that is your dispute.

Once you get your discovery request back the courtroom will be where you will dispute what they provided.  You will not be sending a dispute letter to the other side. 

My personal opinion on account stated is, a large percentage of consumers that have actually answered the lawsuit are the same ones that are aware of the need to have already disputed the bill.  Ninety percent of those sued will not answer the lawsuit.  The ten percent that do are probably going to be in the fighting mood.  They are probably also a little more likely to find creative ways to claim and show the account has been in dispute  ;)

Also a JDB or CA can't use an account stated argument.  They were not a party to the original contract and are unable to testify if you had an account stated with the O.C.  They have no first hand knowledge of what went on with your account prior to the transfer or sale.  They have no way of proving an account stated as they do not have all the records from the O.C. and even if they did it would be hearsay.   They simply have no way to confirm if the account was in dispute or not. 

If you DV a JDB or CA and dispute in that letter then they cannot claim account stated.  They can only go back to when they bought the account.  If you dispute right off the bat after the dunning letter you have killed what little chance a JDB would have for an account stated claim. 
Scroggin succeed in making this case an expensive nightmare for both CBOJ and its counsel.

Scroggin made a "mockery" out of CBOJ's deposition.

Scroggin made perverted "one-liners" during his deposition!!

Scroggin called CBOJ'S counsel "a little witch!!"

Scroggin has engaged in the exact type of behavior the FDCPA was designed to prevent.

Scroggin used the FDCPA as a "sword of intimidation!!"

Rebecca Worsham - Lead Counsel, Scroggin v. CBOJ, 3:12-cv-128 SWW, Eastern District of Arkansas.

wolf12

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Re: stated accounts and affidavit of debt
« Reply #2 on: June 25, 2011 08:17:08 AM »
Thanks Colftan,

My Plaintiff is the OC.

But I guess that is the answer as to why account stated isn’t used as much . Most are sued by CA’s.

I had just been reading up on defenses and one was to get the affidavit of debt, but wasn’t sure on the timeline. So, I guess it will be when we are in court. I have also read you can  Motion to Strike Affidavit of Debt  and make them prove it is who they are saying it is. My guess is with the OC, that would be a problem.

Not too many defenses for the account stated.

I don’t know why they give them the option not to show the contract and use account stated. Seems very creditor friendly to me.

Making me quite anxious.

Wondering if an account stated can be successful.

Wolf12




silverzgirl

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Re: stated accounts and affidavit of debt
« Reply #3 on: June 27, 2011 01:14:18 PM »
Thanks Colftan,

My Plaintiff is the OC.

But I guess that is the answer as to why account stated isn’t used as much . Most are sued by CA’s.

Not from where I sit; most are sued by OCs these days. Very few actually sell to JDBs anymore.

I had just been reading up on defenses and one was to get the affidavit of debt, but wasn’t sure on the timeline. So, I guess it will be when we are in court. I have also read you can  Motion to Strike Affidavit of Debt  and make them prove it is who they are saying it is. My guess is with the OC, that would be a problem.

Not too many defenses for the account stated.

I don’t know why they give them the option not to show the contract and use account stated. Seems very creditor friendly to me.

It is, because except for rare occasions, it is a sure win for them. "Did you use the card? Did you make payments on the card? Did you ever object in writing? Then it is yours."

Making me quite anxious.

Wondering if an account stated can be successful.

All the time. This is actually the favorite cause of action for OCs, because it is the easiest road to a win next to a default judgment. And this is why many of us prefer the arb route.
Wolf12
“Know your enemy and know yourself and you can fight a hundred battles without disaster.”  - Sun-Tzu

I am not a lawyer, nor do I play one on TV. I once thought I was a lawyer when I was litigating in a courtroom, but turns out I just had Patron induced bed spins and dreamed it all. Take my posts with a grain of salt...and a shot of Patron. But not so much you think you are a lawyer.