Consumer Debt Defense
Consumer debt comes in many forms, such as car loans, house mortgages, pay day loans, store credit, HELOC loans, and, of course, credit cards to name a few. It's almost impossible to get by in the modern society without incurring some consumer debt. Most of us can manage what we have, but some times life changes. Rand Peacock PA can help you negotiate when life changes and you can't manage your consumer debt on your own.
Types of Claims
These are the typical claims people face when a creditor, like a credit card company, sues them in court to collect:
Breach of Contract
When the creditor sues the borrower based on a breach of the underlying written or oral agreement between them. The creditor has to establish that an agreement existed between the two parties, what the terms of the agreement were/are, that the borrower breached the terms and that the creditor was damaged because of the breach. There are many potential defenses and responses to such a claim depending on the nature of the original agreement and the facts of your specific case.
Many times debt collectors and creditor attempt to use and "Account State" claim to recover where they either cannot or do not wish to rely upon the original contract. An account stated is an agreement between the parties that a certain balance is correct and due; an express or implied promise to pay this balance. Mercado v. Lion’s Enterprises, Inc., 800 So. 2d 753 (Fla. 5th DCA 2001).
Prior to the action, the parties had business transactions and agreed to the resulting balance. Plaintiff rendered a statement of it to the defendant. The defendant did not object to the statement. Florida Rule of Civil Procedure Form 1.933.
Most notably a copy of the account showing items, time of accrual of each, and amount of each must be attached. Florida Rule of Civil Procedure Form 1.933. Many claims fail to comply with this requirement.
“For an account stated to exist, there must be an agreement between the parties that a certain balance is correct and due and an express or implied promise to pay this balance.” Carpenter Contractors of America, Inc. v. Fastener Corp. of America, Inc., 611 So. 2d 564, 565 (Fla. 4th DCA 1992) (citing Merrill-Stevens Dry Dock Co. v. Corniche Exp., 400 So. 2d 1286 (Fla. 3d DCA 1981)).
A question exists as to whether it must first be established that there is an agreement to any resulting balance before examining whether there is an implied promise to pay. Carpenter Contractors of America, Inc. v. Fastener Corp. of America, Inc., 611 So. 2d 564, 565 (Fla. 4th DCA 1992) (citing Merrill-Stevens Dry Dock Co. v. Corniche Exp., 400 So. 2d 1286 (Fla. 3d DCA 1981))
These claims are typically brought on an old monthly invoice that the borrower allegedly failed to dispute in a reasonable time. Florida Courts have held that a failure to dispute such an invoice can result in an implied promise to pay by the borrower. Therefore, these claims should not be taken lightly if contested by the borrower. Many defenses may exist depending on the facts, and the invoices or other documents relied upon by the creditor.
This is a less common cause of action used by creditors. The elements are an unsettled debt arising from items of work or labor, goods sold and other open transactions that are NOT reduced to writing, the sole record of which is the account books of the owner of the demand. H&H Design Builders, Inc. v. Travelers’ Indemnity Co., 639 So. 2d 697 (Fla. 5th DCA 1994.
The biggest problem with most open account claims is that it is not allowed where an underlying agreement (credit card contract) exist the creditor cannot use an "open account" claim and must rely upon the original agreement. See Willis v. Fowler, 136 So. 358 (Fla. 1931).
While this is a less effective claim, creditors attempt to use this claim form time to time and if not adequately objected to , and defended, it can result in a judgement against the borrower.
Creditors sometime use other claims, like money lent, implied, or unjust enrichment, to name a few, where they feel that they cannot proceed with a normal breach of contract or account stated claim. Sometimes they will add these claims to an existing claim as a sort of fail safe in case their other contracts claims are dismissed or unenforceable. There are many defenses to these alternate claims as well but the borrower has to raise them. If not sufficiently objected to these claims can result in a judgment against the borrower.