Consequences of transacting business without authority.--

[Jerseee]

Iamfree,

No worries. You know I'm thick skinned--you have to be when in pursuit of personal freedom.

godspeed

[iamfreeru2]

Originally Posted by chapka

Yes, but you seemed to be implying that bringing the lawsuit itself is intrastate commerce, which I haven't seen any support for in the statute--that's the part I was asking about. Obviously I don't know all the facts, so I'm not trying to give you advice, but I was just wondering what the act of intrastate commerce was that makes this statute relevant.

Where are you getting that from? Where did I ever say bringing the suit was intrastate commerce? You are reading something into my posts that is not there. If they have a contract, that contract is in intrastate commerce. That alleged contract is very important, so let them produce it if they have it. There is none so they can't.

[fulltitle]

WITHOUT PREJUDICE
He like the code isnt discussing the validity of Discovery Bank's contracts. Its a matter of their lack of standing to INITIATE rather than DEFEND a proceeding in the State of Florida w/o a Certificate of Authority.

[iamfreeru2]

Originally Posted by fulltitle

WITHOUT PREJUDICE
He like the code isnt discussing the validity of Discovery Bank's contracts. Its a matter of their lack of standing to INITIATE rather than DEFEND a proceeding in the State of Florida w/o a Certificate of Authority.

I know what he is asking. What I am saying is in order to have standing to sue the contract must be one of interstate commerce intirely. If it is not and is a contract in intrastate commerce the foreign corporation must have a certificate of authority to sue. It hinges on the contract if there is one. Was it done in interstate or intrastate commerce?

[seeker]

In bringing suit, the Complaint States:

"DISCOVER BANK, issuer of the
Discover Card, by its Agent, Discover
Financial Services, Inc."
Plaintiff (WHO?)

In an Faulty Affidavit they sent, (supposedly to 'validate/verify' the account/debt) -- it states:

"...a Legal Placement Account Manager for DISCOVER FINANCIAL SERVICES, INC., the servicing agent of DISCOVER BANK, an FDIC insured Delaware State Bank."

further on "...I have personally inspected said Account and statements regarding the balance due on said account. DISCOVER FINANCIAL SERIVCES, INC. maintains these records...."

"..affidavit is made on the basis of my personal knowledge and in support of Plaintiff's suit on account ..."

and finally "...annexed statement of account is a true and correct statement of what is now due and owing Discover Bank on the account, and the exhibit A is a copy of the Cardmember Agreement between Discover Bank and the above referenced Debtor(s). The cardmember Agreement governs the terms and conditions of the relationship between Discover Bank and the Debtor(s) in connection with the account."

First, notice the change from CAPS to upper and lower and vice versa. From the first paragraph to the next --(and the complaint caption)

Next, notice that DISCOVER BANK is named as the plaintiff, but the account is maintained by DISCOVER FINANCIAL SERVICES (a servicing company?).

And -- this is not first-hand knowledge, only a "personal inspection of account and statements" -- how many of those could you make on your PC? Personal knowledge of WHAT?

And the last straw, the "copy of the Agreement" HEADED -- DISCOVER FINANCIAL SERVICES CARD --no contract, only a copy of an Agreement signed by A VP of something FOR Greenwood Trust Company, DISCOVER CARD, revised 2000, when the account originated in 1973 -- no application/contract/signature MEETING OF THE MINDS-- no reference to the cancelation/return of the account/card etc. (Greenwood Trust does not own DISCOVER CARD etc -- MORGAN STANLEY DOES and did at the time of this suit) An interesting thing about this Agreement, if you dispute, in writing, the amount of dispute is not due and payable until the dispute is resolved. A demand for validation/verification does not qualify? What part of "I do not agree" is hard to understand?

So, my question -- WHO is THE plaintiff? DISCOVER BANK, Discover Bank, Discover Card, Discover Financial Services, Inc., DISCOVER FINANCIAL SERIVICES, INC. -- and why is the contrct NEVER mentioned, since this is the validation/verification requested. A Delaware State Bank, a National Banking Corporation, none of the above -- the Debt attorney filing the suit? (also not validated/verified)

Definitely trying to keep the focus on the ACCOUNT, not the CONTRACT THAT SUPPOSEDLY ESTABLISHED IT! They avoid that topic liketh eplague!

Sharpen the critical reading skills -- it gets interesting! The even change the Defendant at will -- CAPS, upper lower, Two parties, one party. These Debt Attorneys are so consistently inconsistent .. why are not beating the CRAP out of them? Oh, wait, the 'affiliate membership' acting as 'referee'. Yeah, right. Unbiased, interprets the law, uhuh.

JMHO.

Seeker

[chapka]

Originally Posted by seeker

"...annexed statement of account is a true and correct statement of what is now due and owing Discover Bank on the account, and the exhibit A is a copy of the Cardmember Agreement between Discover Bank and the above referenced Debtor(s). The cardmember Agreement governs the terms and conditions of the relationship between Discover Bank and the Debtor(s) in connection with the account."

Isn't this the contract? Your Cardmember Agreement?

This is what I was getting at in post 14. This Cardmember Agreement and your application form are what establishes the contract. And as long as it was approved by someone outside of Florida, section 1501 specifically states that their entering into that contract with you did not constitute doing business in the state.

I honestly don't understand why you think this was intrastate commerce.

Also, you're throwing around a lot of phrases like "in order to have standing" and "they need to prove." Remember, not every technical flaw gets a case dismissed (in this case, the statute expressly talks about staying, not dismissing, it) and not every burden of proof is on the plaintiff. They've already produced the contract (the cardmember agreement); why wouldn't they be able to simply avoid your motion by saying, "Your honor, all accounts are credit checked and approved or disapproved by our main office in Wilmington, Delaware"?

There's nothing unusual about a subsidiary or subcontractor giving an affidavit in a case. If your daughter saw someone stealing your car, you might file an affidavit of your daughter's with the court, even though you'd bring suit in your name. Beacause she's the one with the relevant evidence.

Finally, what do you think the difference is between "firsthand knowledge" and a "personal inspection"?

[iamfreeru2]

Originally Posted by chapka

Isn't this the contract? Your Cardmember Agreement?

This is what I was getting at in post 14. This Cardmember Agreement and your application form are what establishes the contract. And as long as it was approved by someone outside of Florida, section 1501 specifically states that their entering into that contract with you did not constitute doing business in the state.

I honestly don't understand why you think this was intrastate commerce.

Also, you're throwing around a lot of phrases like "in order to have standing" and "they need to prove." Remember, not every technical flaw gets a case dismissed (in this case, the statute expressly talks about staying, not dismissing, it) and not every burden of proof is on the plaintiff. They've already produced the contract (the cardmember agreement); why wouldn't they be able to simply avoid your motion by saying, "Your honor, all accounts are credit checked and approved or disapproved by our main office in Wilmington, Delaware"?

There's nothing unusual about a subsidiary or subcontractor giving an affidavit in a case. If your daughter saw someone stealing your car, you might file an affidavit of your daughter's with the court, even though you'd bring suit in your name. Beacause she's the one with the relevant evidence.

Finally, what do you think the difference is between "firsthand knowledge" and a "personal inspection"?

There are a number of reasons why a suit can be dismissed. As I have said all my eggs are not in one basket in the motion to dismiss. I am going to make Discover Bank prove they have standing to sue and that there is a contract. The burden of proof is on Discover Bank and not me. "If" the court agrees that there is a contract and standing there are other issues that can be brought up as well. Allot of them pertain to the production of documents. I am not going to present my entire case on this forum, but I will say that it is substantial. I am not looking for legal advice and certainly not from an "attorn-ey."

The bottom line is here in Florida they haven't got a chance at collection even if a judgment is rendered in their favor. After judgment is rendered, there must always be a second proceeding in rem for collection. This is where Discover will definitely lose if not before. There is nothing to collect and I have no concerns in that regard. I have filed with the court a Designation of Homestead declaring my home as my homestead and it is rooted in the Florida Constitution. I have taken steps to protect my home and to make myself judgment proof. This is why I can go into court and not worry about the outcome. I can have fun and learn in the process and present my case without fear.

Thanks for your input, but I do not need your assistance or your advice. I have plenty of help and ammunition concerning this matter. The case will be brought before the court and it will be decided there and not here.

[MADDOG]

Originally Posted by chapka

Isn't this the contract? Your Cardmember Agreement?

I don't think so! The "Cardmember Agreement" is an unsigned document that they supposedly sent you after they approved your signed application for a CC. The signed application is the only doc that could conceivably be considered a contract (because the applicant signs it), and if they cannot produce that signed document, they have no contract. Besides, what proof do they have that they actually sent a customer that "Cardmember Agreement"? Did they send it Certified Mail RR requested? I think NOT. LOL.

[Judge Roy Bean]

Originally Posted by MADDOG

Originally Posted by chapka


I don't think so! The "Cardmember Agreement" is an unsigned document that they supposedly sent you after they approved your signed application for a CC. The signed application is the only doc that could conceivably be considered a contract (because the applicant signs it), and if they cannot produce that signed document, they have no contract. Besides, what proof do they have that they actually sent a customer that "Cardmember Agreement"? Did they send it Certified Mail RR requested? I think NOT. LOL.

It's routinely called the "mailbox rule."

Given that they mail tens of thousands of these to people in the normal course of business, the courts accept the fact that they followed their customary procedure.

What iamfreeru2 has not yet addressed are the relevant background facts that will probably decide the case:

1) Did he/she obtain goods and services via the use of the card?

If so, the obtaining of those establishes the debt. There is no free lunch.

2) Were payments ever made by him/her to the company on that account?

If so, that is recognition of the debt.

The legal maneuvering being played out here is nothing new.

[truth4all]

Judge Roy wouldn't tell you this !
another egg for your basket...

Citibank (South Dakota) N.A., A Bank Corporation, Plaintiff/Respondent v. Danny H. Whiteley, Defendant/Appellant.
Case Number: 25925


"A suit on open account means a suit in contract for each purchase transaction." Medicine Shoppe International, Inc. v. Mehra, 882 S.W.2d 709, 713 (Mo.App. 1994). To recover on a suit on account, a plaintiff must show an offer, an acceptance, and consideration between the parties as well as the correctness of the account and the reasonableness of the charges. Welsch Furnace Co, Inc. v. Vescovo, 805 S.W.2d 727, 728 (Mo.App. 1991). "Such evidence consists of proof that: 1) Defendant requested plaintiff to furnish merchandise or services; 2) plaintiff accepted the offer of the defendant by furnishing such merchandise or services; and 3) the charges were reasonable." Id.
Even if this court were to accept plaintiff's assertion that providing credit to a credit card holder amounted to providing a service for purposes of maintaining a suit on account, an issue this court need not and does not address, the evidence was silent as to the reasonableness of any charge that was made to defendant. A party bringing a cause of action cannot prevail if one or more elements of the cause of action are not supported by substantial evidence. Vintila v. Drassen, 52 S.W.3d 28, 38 (Mo.App. 2001); Mills Realty, Inc. v. Wolff, 910 S.W.2d 320, 322 (Mo.App. 1995). Further, as asserted by defendant, defendant scrupulously objected throughout the trial to any evidence that was outside plaintiff's pleadings.
Plaintiff's attorney assured the trial court at the commencement of trial that plaintiff had no credit card agreement signed by defendant; that plaintiff was "suing on an account theory, suit on account."

Q. My question is, you, being Citibank of South Dakota, didn't provide any merchandise, did you?

A. No.
Q. You didn't provide any goods to the defendant, did you?
A. No, just a service.

Q. And you didn't come out and perform any services for the defendant and charge him for that, did you?

Defendant's point is granted. The judgment is reversed. The case is remanded. The trial court is directed to enter judgment for defendant.

Also,See Associated Bearings Co. v. Southwest Latex Supply, Inc., 962 S.W.2d 918, 919 (Mo. App. 1998) (in an action to recover on an account, the plaintiff must prove that the defendant requested plaintiff to furnish merchandise or services, plaintiff accepted defendant's offer by furnishing such merchandise or services, and the charges were reasonable);