Original Credit Card application

salutesoldier37,

Summary Judgment is used when NO controversey exists. If a controversey exists, then a trial to decide the merits is appropriate. The point you are trying to make to the Court is that NO controversey exists and as a matter of law, there is no choice but for the Court to rule in your favor. The idea is that if the other side does not introduce evidence to rebut your allegations on the record, judgment will be entered for you. So, this forces the cc company to "show you their hand" (partly) by putting what they deem evidence of a contract, or equitable benefit, etc., consisting of affidavit's, billing statements (copies of, if admissible), etc. on the record. If you lose, then at least you know what the game is consisting of and a little of what the future may hold in store for you. It will also be one hell of a learning experience for you. And it will likely be somewhat painful. But the first time we do anything, are we actually good at it? Of course not...It takes practice, dedication, determination, and all those other positive words you can think of. You don't learn to be a professional by reading books, law, etc. It takes practice. So go for it.

Now, the fact that a cc company cannot produce the original application with signature does not mean that they have no case. If this were true, then they would never win in Court because they NEVER can produce the original; yet they win almost every time without it. To show that a contract exists, the parties do not need the contract itself. They need ACTIONS to show that a contract existed, and the evidence of the actions will be used to create a quasi-contract, at the least, between the parties; at most, an express contract ratified by your use the credit card and your implied consent to the terms in existance at the time, if not rebutted in some way. Ignorance ain't bliss when it comes to law. The Court will likely have something to make an informed judgment on without an original signed contract.

Addressing the problems of your motion is difficult to address in this forum and format. For example, addressing the first paragraph:

"Defendant of Case No and Counterclaimant of Motion to Dismiss and Request for Summary Judgement, in response to Plaintiffs’ Case No. , and Defendants this Counterclaim for Motion to Dismiss and Summary Judgment, Credit Card Co., respectfully asks the court to grant this motion to dismiss and summary judgment on the basis of substantive and procedural nullity."

Ok, I read this and I am confused what you are asking the Court to do. You state you want a motion to dismiss and a summary judgment granted. Well, which is it? Do you want a dismissal or do you want a summary judgment? If you want a dismissal, then Plaintiff can refile once they get booted from the Court. But if you want summary judgment, then you will get just that - A Judgment, and no refiling by Plaintiff can occur. Also, if the Court asks you to explain what substantive and procedural nullities you are talking about, can you articulate yourself? In your second paragraph, a Brief in Support of a Motion will almost always be at least 4-5 pages in length. This is because it should be loaded with law to express to the Court exactly WHY they MUST rule in your favor. Example: You state that documents are "irrelevant and inadmissible." But you must show the Court WHY they are irrelevant and inadmissible, and you must SUPPORT why with Law from that jurisdiction, or very persuasively with law from another jurisdiction. Simply citing Trensey may not be enough for you. I think it would be incredibly unusual for the attorney not to be able to produce a single affidavit or other admissible evidence to overcome Trensey. But is obviously has happened!

Also, I'm confused why you are citing Oaklahoma statutory law in a Texas Court. Is the binding law in this case Oaklahoma or Texas? Why would Texas have to follow Oaklahoma statutory law or rules of court? Again, I'm confused..

Gotta run. Hope I've helped somewhat. Best of luck to you.

-squirrels

[Jerseee]

Squirrels,

slow down a bit. What I have underlined and bolded needs to be proven first. The accusor must prove their claim and they must remember that they need not swear in to testify against themselves--they are not the cc company's witness.

Originally Posted by squirrels

They need ACTIONS to show that a contract existed, and the evidence of the actions will be used to create a quasi-contract, at the least, between the parties; at most, an express contract ratified by your use the credit card and your implied consent to the terms in existance at the time, if not rebutted in some way. Ignorance ain't bliss when it comes to law. The Court will likely have something to make an informed judgment on without an original signed contract.

Squirrels,

I have read your info. I have a better understanding of what I need to do. I will not file a Motion to Dismiss but rather a Motion for Summary Judgement. I will research Texas statutory law that will help benefit me in this situation. In regards to using Oklahoma law. I live in Oklahoma but the case was filed in Texas. So in previous postings I was informed I need to use Texas law. So this is what I am focusing on. Once again thanks for the info.

Jersee,

I am not sure what you are tyring to say in the response you gave Squirrels. Can you elaborate a bit further?

If anyone has Texas Law info that will be helpful please point me in the right direction. Once again, I appreciate the info and I am not seeking legal advice.

[Jerseee]

salutesoldier37,

What I am saying is that you are basically demanding they prove the alleged is valid. So for them to prove that the alleged debt is valid--they need wtinesses or evidence. By you implying that you used the card or even admitting to using the card, you are acting as their proof against yourself.

They will trick you into testifying against yourself. Just think about it. They accuse you of using the card--well that's all nice and good if they can prove it. But that is not even the issue--the issue is was the alleged debt valid from the beginning?

You cannot enter into a fraudulent contract. So when was the fraud committed?

hell, by using the card (if you did), you held up your part of the contract. But if there is fraud in the beginning all else is null and void. This is why they don't want you to see the original application. Alteration of a document after it has been signed is forgery. Forgery is a criminal act.

good luck

Hi There I just wanted to chime in and answer your question. Under Section 3-301 of the Uniform Commercial Code (adopted by most states) a creditor must possess the Promissory Note in order to collect payment on an account (I'm paraphrasing here). The Promissory Note is represented by your credit card application you signed back in 1996. The Promissory Note is something like a creditor's "license" to take money from you; a license that YOU give to the bank. Problem is, US Congress and the Federal Reserve Bank gave banks the right to sell Promissory Notes for face value (or monetize or create new money), which means your application was more likely or not sold to some trust, note broker, commerical bank or whatever a zillion times over by now.

Now Rule 1002 of the Federal Rules of Evidence (also called the Best Evidence Rule or the Original Documents Rule) states that a proponent of a document must offer the ORIGINAL into evidence when the opponent questions the genuiness (or authenticity) of the document (paraphrased again). In this case, the bank is the proponent trying to submit a COPY of your Prom Note into evidence to say that you owe X amount of money. You're the opponent that says "Hey - that's not my signature; I didn't agree to an "exchange"! I thought the bank fronted me money for all those credit card purchases! Where in the credit card application does it say that the bank can "monetize" my Prom Note for free??!!." This is one of the reasons why the original Prom Note is required.

Originally Posted by Jerseee

salutesoldier37,

What I am saying is that you are basically demanding they prove the alleged is valid. So for them to prove that the alleged debt is valid--they need wtinesses or evidence. By you implying that you used the card or even admitting to using the card, you are acting as their proof against yourself.

They will trick you into testifying against yourself. Just think about it. They accuse you of using the card--well that's all nice and good if they can prove it. But that is not even the issue--the issue is was the alleged debt valid from the beginning?

You cannot enter into a fraudulent contract. So when was the fraud committed?

hell, by using the card (if you did), you held up your part of the contract. But if there is fraud in the beginning all else is null and void. This is why they don't want you to see the original application. Alteration of a document after it has been signed is forgery. Forgery is a criminal act.

good luck

And to piggy back on what Jerseee said to you, using the card is not enough to verify a debt. A debt contract is valid when there is an offer, acceptance, and consideration ON THE DAY THE CREDIT CARD AGREEMENT WAS SIGNED . . . . The US Court of Appeals held in Johnson v. MBNA that paying on an unverified account only shows that the debtor made payment when he/she had no legal obligation to do so. In other words, because you made payment on a credit card account that was void from the start due to fraud, the bank owes you a nice refund. :-)

Hello Jersee,

I have read your posting. Thanks for clarifying.

Cute_chick,

Thanks for clearing up my question about the credit card application issue. Now I know how to prepare my Motion for Summary Judgement.

I will let the Forum know what happen. Once, again I am not seeking legal advice.

Jerseee,

Yeah, I went a bit fast there, but what I said was accurate. It is just not well stated for beginners to understand clearly and the way I phrased it could mislead a beginner. Thanks for chiming in there. However, even though a contract is fraudulent does not mean that all is null and void IF performance has been rendered under the fraudulent contract. A fraudulent contract, once performance has been rendered, is VOIDABLE at the option of the innocent party. If the innocent party likes the fraudulent contract, he can ratify it and continue under its terms. If he doesn't like it, he can go find a remedy. I'm not gonna go deeper into the ratification and validity issues. Not enough time.

Cute_chick,

Your analysis of Johnson v. MBNA is incorrect. That is not what the court held. Be careful of citing caselaw to others unless you are certain of its accuracy. There is so much inaccurate legal information repeated on the internet. But re-read the case to find your errors. Also, I'm not going to get into issues regarding your assessment of the UCC, evidence law, and an original prom note as a requirement to collect on the account, which I am in some (not all) disagreement with as well. There is no time.

-squirrels

[Jerseee]

squirrels,

You know your on time with your stuff but what I have come to learn about you, dashboy, Ice, BT, Akira, and Kgod in particular, is that all of you are way ahead of folks because you can see things happening because of the situation. This is why I try to get you guys to explain yourselves a little more in detail and step by step.

Now about your statement below, this may all be correct except for one thing. Most folks don't know that there is fraud about even well after the performance has ocurred. This is why I tell folks to stop using the card (if they are) after they become aware of this knowledge.

That is the trap. They are trying to say that if you are still performing under a fraudulent contract--then there is no nullity. But if folks take the position I just outlined and stop using the card and address the fraud--they will be in a much better position.

What say you?

Originally Posted by squirrels

Jerseee,

Yeah, I went a bit fast there, but what I said was accurate. It is just not well stated for beginners to understand clearly and the way I phrased it could mislead a beginner. Thanks for chiming in there. However, even though a contract is fraudulent does not mean that all is null and void IF performance has been rendered under the fraudulent contract. A fraudulent contract, once performance has been rendered, is VOIDABLE at the option of the innocent party. If the innocent party likes the fraudulent contract, he can ratify it and continue under its terms. If he doesn't like it, he can go find a remedy. I'm not gonna go deeper into the ratification and validity issues. Not enough time.

Originally Posted by squirrels

Jerseee,

Yeah, I went a bit fast there, but what I said was accurate. It is just not well stated for beginners to understand clearly and the way I phrased it could mislead a beginner. Thanks for chiming in there. However, even though a contract is fraudulent does not mean that all is null and void IF performance has been rendered under the fraudulent contract. A fraudulent contract, once performance has been rendered, is VOIDABLE at the option of the innocent party. If the innocent party likes the fraudulent contract, he can ratify it and continue under its terms. If he doesn't like it, he can go find a remedy. I'm not gonna go deeper into the ratification and validity issues. Not enough time.

Cute_chick,

Your analysis of Johnson v. MBNA is incorrect. That is not what the court held. Be careful of citing caselaw to others unless you are certain of its accuracy. There is so much inaccurate legal information repeated on the internet. But re-read the case to find your errors. Also, I'm not going to get into issues regarding your assessment of the UCC, evidence law, and an original prom note as a requirement to collect on the account, which I am in some (not all) disagreement with as well. There is no time.

-squirrels

Squirrels how is my analysis of Johnson v. MBNA incorrect on this point? Although my statement is a paraphrase, the Judge said the same thing in response to MBNA's contention that the account belongs to Johnson because she called the bank and made payment arrangements on an account where she was only an authorized user . . . . . That MBNA account was unverified because, as stated elsewhere in the Judge's opinion, MBNA no longer had the original credit card application in its possession . . . .