I am being sued? Funny nobody told me.

[LadyShea]

Originally Posted by CaDan

Nope. TILA definitions only apply to TILA actions.

The context I have been reading it in says that creditors try to use different account definitions in lawsuits (written contract, oral contract, etc that have longer SoLs), but that the FTILA definition of credit cards as open account trumps all.

How the hell is a common consumer supposed to get all the facts if there are no facts! Grrr

[D. Scarlatti]

You need to cite the Alabama case (or administrative decision, if there is one of either) that determined that something as close as possible to whatever it was that you had was an open account.

[LadyShea]

It's a credit card and they can bring suit in whatever state I live in apparently. I am covered under both states SoL laws for open-ended accounts

AL Section 6-2-37
Commencement of actions - Three years.

The following must be commenced within three years:

(1) Actions to recover money due by open or unliquidated account, the time to be computed from the date of the last item of the account or from the time when, by contract or usage, the account is due; and

NV NRS 11.190 Periods of limitation. Except as otherwise provided in NRS 125B.050 and 217.007, actions other than those for the recovery of real property, unless further limited by specific statute, may only be commenced as follows:

2. Within 4 years:

(a) An action on an open account for goods, wares and merchandise sold and delivered.

(b) An action for any article charged on an account in a store.

But, if credit cards can be considered a stated account or something else as used in the complaint the code says 6 years

Section 6-2-34
Commencement of actions - Six years.

(5) Actions for the recovery of money upon a loan, upon a stated or liquidated account or for arrears of rent due upon a parol demise;

NV: 1. Within 6 years:

(a) An action upon a judgment or decree of any court of the United States, or of any state or territory within the United States, or the renewal thereof.

(b) An action upon a contract, obligation or liability founded upon an instrument in writing, except those mentioned in the preceding sections of this chapter.

Where do I find the exact definitions?

Oh and I read this here http://www.creditinfocenter.com/rebu...itations.shtml

Open-ended Accounts: These are revolving lines of credit with varying balances. The best example is a credit card account. Please note: a credit card is ALWAYS an open account. This is established under the Truth-in-Lending Act:

TITLE 15 > CHAPTER 41 > SUBCHAPTER I > Part A > § 1602
§ 1602. Definitions and rules of construction(i) The term “open end credit plan” means a plan under which the creditor reasonably contemplates repeated transactions, which prescribes the terms of such transactions, and which provides for a finance charge which may be computed from time to time on the outstanding unpaid balance. A credit plan which is an open end credit plan within the meaning of the preceding sentence is an open end credit plan even if credit information is verified from time to time.

[Stephen Maturin]

Originally Posted by LadyShea

Okay, so how do I answer?

I assume you're using Form SM-3. Since you're both named as defendants, make sure you both sign it.

I am assuming:
Option 4 I am not responsible at all

Yeah. That's Box D on the form I'm looking at, and reads "I deny that I am responsible at all."

Brief reasons? Should I mention it is not an account stated?

- There is no "account" at all between plaintiff and defendants.
- There is no "stated" account.
- Plaintiff is not the real party in interest.
- The complaint is time-barred.
- The complaint fails to state a claim on which relief can be granted.

[ShottleBop]

Thanks, CaDan. Your example appears to be based on a statute that applied specifically only to mutual accounts:

541.10 MUTUAL ACCOUNTS.
If the action is to recover a balance due upon a mutual, open, and current account, and there have been reciprocal demands between the parties, the limitation shall begin to run from the date of the last item proved on either side. History: (9197) RL s 4079

Not all states impose that same requirement. This Alabama case addresses a suit very similar to that being faced by Lady Shea (credit card account initiated by a bank, and subsequently transferred a couple of times). The court noted the following requirements for an action on an "account stated":

"An account stated is a post-transaction agreement. It is not founded on the original liability, but is a new agreement between parties to an original account that the statement of the account with the balance struck is correct and that the debtor will pay that amount. It is as if a promissory note had been given for the balance due.

"A prima facie case on an account stated is made when the plaintiff proves (1) a statement of the account between the parties is balanced and rendered to the debtor; (2) there is a meeting of the minds as to the correctness of the statement; and (3) the debtor admits liability. The debtor's admission to the correctness of the statement and to his liability thereon can be express or implied. An account rendered, and not objected to within a reasonable time becomes an account stated, and failure to object will be regarded as an admission of correctness of the account."

The court stated that the creditor must prove that it has delivered a statement of the account to the debtor. If the creditor does that, the court said, then the debtor's agreement may be implied, unless the debtor objects within a reasonable period of time:

An account stated also requires an express or implied agreement to pay the bill. . . . Calvary does not allege an express agreement between the parties. In [the governing supreme court case], our supreme court held that "[a]n implied agreement to pay a bill can arise only where there has been a showing that the bill was rendered and the recipient of the bill failed to object within a reasonable time." 519 So. 2d at 1323. Here, Cavalry has failed to demonstrate that a bill was rendered to Ayers, and, therefore, that Ayers's agreement to pay the bill could be implied.

Under the circumstances, the court found that Cavalry was actually trying to recover on the original liability, and was barred by the three-year statute of limitations applicable to open accounts:

In Mobile Rug & Shade Co. v. Daniel, 424 So. 2d 1332, 1333 (Ala. Civ. App. 1983)(quoting Martin v. Stoltenborg, 273 Ala. 456, 459, 142 So. 2d 257, 259 (1962)), this court noted that "'[a]n account stated is not founded on the original liability, but on the defendant's admission that a definite sum is due in the nature of a new promise, express or implied.'" In that case, the court noted that, according to an affidavit, the plaintiff sought to recover upon the original liability rather than upon a new promise by the defendant to pay the total account balance. The court noted that the evidence indicated only an original promise to pay, not a new promise to do so. Thus, the court determined that the claim in that case was in the nature of one for an open account and not for an account stated. Id. The court in that case determined that the three-year statute of limitations barred an action alleging an open account. The situation presented in the present case is almost identical to that in Mobile Rug & Shade, supra, in that the evidence indicates that Cavalry is also seeking to recover upon the original liability.

Cavalry's motion for a summary judgment might arguably be supported by substantial evidence establishing the elements of a prima facie case on a cause of action for an open account. "A plaintiff establishes a prima facie case in an action for money due on open account by presenting evidence that money was delivered to the defendant, that it was a loan, and that it has not been repaid." Livingston v. Tapscott, 585 So. 2d 839, 841 (Ala. 1991)(citing 58 C.J.S. Money Lent § 7 (1948)). However, Ayers asserts in her answer to Cavalry's complaint that an action seeking to recover on an open account is barred by the applicable statute of limitations. (2) See Defco, Inc. v. Decatur Cylinder, Inc., 595 So. 2d 1329, 1332 (Ala. 1992); § 6-2-37(1), Ala. Code 1975 (statute of limitations for cause of action alleging an open account is three years).

Because Cavalry failed to present evidence sufficient to establish a prima facie case on its claim seeking recovery on the theory of an account stated, the evidence before the trial court was insufficient to support the entry of a summary judgment. We therefore conclude that the trial court erred in entering a summary judgment in favor of Cavalry, and we remand the case for further proceedings.

In the Ayers case, the debtor, Ayers, first filed an answer, and then a motion to dismiss. His motion to dismiss was denied because it was filed after his answer:

"[W]e note that defendant's motion to dismiss for failure to state a claim upon which relief can be granted was filed after his responsive pleading. While this defense, as enumerated in Rule 12(b)(6), is preserved by Rule 12(h)(2), it cannot be raised by a motion to dismiss filed subsequent to a responsive pleading. Rule 12(b), Alabama Rules of Civil Procedure."

It may be that, under Alabama civil procedure, Lady Shea will have to file a motion to dismiss instead of an answer, if she wants to assert a defense based on expiration of the SoL.

[This post should not be considered legal advice. I am not an Alabama attorney, or even a litigator. I am merely discussing with CaDan some observations regarding the elements of a cause of action based on an account stated.]

[rigorist]

W00t! W00t! On point case law!

http://www.birminghambar.org/data/Sl...pp/2020728.htm

[rigorist]

Hurray for cross-posting!

[ShottleBop]

Originally Posted by CaDan

Hurray for cross-posting!

[rigorist]

Midland's affidavit won't be any better than Cavalry's.

[Stephen Maturin]

Originally Posted by CaDan

Hurray for cross-posting!

Yuns bastages beat me to the punch.

The official cite is Ayers v. Cavalry SVP I, LLC, 876 So. 2d 474 (Ala. Civ. App. 2003), and it's still good law.

[LadyShea]

This is all very confusing for me. So I should ask if I can file a motion to dismiss before sending in the answer form? Does the fact that it's small claims make a difference?

[LadyShea]

Originally Posted by Stephen Maturin

I assume you're using Form SM-3. Since you're both named as defendants, make sure you both sign it.

We were sued separately

Yeah. That's Box D on the form I'm looking at, and reads "I deny that I am responsible at all."

That's it, I was summarizing

- There is no "account" at all between plaintiff and defendants.
- There is no "stated" account.
- Plaintiff is not the real party in interest.
- The complaint is time-barred.
- The complaint fails to state a claim on which relief can be granted.

[ShottleBop]

Originally Posted by LadyShea

This is all very confusing for me. So I should ask if I can file a motion to dismiss before sending in the answer form? Does the fact that it's small claims make a difference?

Small claims procedures differ significantly from those that apply to regular cases. You should talk to someone at the court. According to this site, you must respond to the complaint within 14 days to avoid the entry of a default judgment against you.

[Stephen Maturin]

Originally Posted by LadyShea

We were sued separately

Two complaints with two different case numbers? In that event, you'll need to file separate answers in your own cases.

When you talk to the clerk's office about motions, ask if there's any way to consolidate the two cases for trial based on the fact that they arise out of the same alleged debt. Two trials would be wasteful as hell, and essentially give Midland two bites at the same apple.

[rigorist]

Originally Posted by Stephen Maturin

Two complaints with two different case numbers? In that event, you'll need to file separate answers in your own cases.

When you talk to the clerk's office about motions, ask if there's any way to consolidate the two cases for trial based on the fact that they arise out of the same alleged debt. Two trials would be wasteful as hell, and essentially give Midland two bites at the same apple.

Two suits? You know that's gonna piss off the judge/magistrate.

Fucking debt-collecting pieces of shit.

[LadyShea]

Nevermind, the case is mutual, but because they had us at different addresses they were trying to serve us separately. It's one case.

[LadyShea]

Filed our answer with the court today. I stated "No account stated between parties. Claim time-barred under applicable statutue of limitations for open accts." (that's all I had room for on the eForm

Is it possible they will just drop it? If they file a bunch of lawsuits hoping for default judgments (as my reading indicates is the common practice), are they likely to actually go to court for the small percentage that actually are served and answer and show up etc? Again, my reading indicates most people do nothing, and it goes to default.

[rigorist]

Originally Posted by LadyShea

Filed our answer with the court today. I stated "No account stated between parties. Claim time-barred under applicable statutue of limitations for open accts." (that's all I had room for on the eForm

Is it possible they will just drop it? If they file a bunch of lawsuits hoping for default judgments (as my reading indicates is the common practice), are they likely to actually go to court for the small percentage that actually are served and answer and show up etc? Again, my reading indicates most people do nothing, and it goes to default.

It's fairly common, but ultimately unpredictable.

[LadyShea]

Originally Posted by CaDan

It's fairly common, but ultimately unpredictable.

I am willing to go to court, I just wondered if they would likely spend the time and money to travel to my area (5 hours from the attorney's home office) etc. for such a small amount.

[Dingfod]

I'm pretty sure they were counting on you not fighting it.