[rubyruby27]

Have someone at FD that needs some help regarding her Court date on Friday.

She was successful in getting the Judge to force them to compel discovery, they sent it to her at the 11th hour she has one day to make a game plan.

They basically denied everything, including who the affidavit of debt person was- saying we don't know what they mean by that.

I just don't have the time to go through my stuff to help her.

I ask her to come here she may not due to the amount of information she would have to give.

Would anyone please read the last page on GulfBreezes post.

She has her head on straight and knows how to fight this case but some extra help on the last minute discovery and the denials would be very appreciative.

Thank you

[gulfbreeze]

Thanks for the invite rubyruby27.

Hopefully, someone can help me out. I filed a REQUEST FOR ADMISSIONS, REQUEST FOR PRODUCTION, AND INTERROGATORIES. Below is what I filed and their answers.

DEFENDANT NAME, appearing pro se, pursuant to Rule 1.370 Florida Rules of
Civil Procedure, requests Plaintiff Capital One Bank to admit to the truth of the following
statements of fact:
1. Plaintiff is not the true Plaintiff in this action.
2. Plaintiff sold this alleged debt to a third party.
3. Plaintiff sold this alleged debt to Trak America.
4. Plaintiff has knowledge that this alleged debt has been disputed by the Defendant.

Request for Admission.
ANSWERS 1-4.
DENIED

DEFENDANT NAME, appearing pro se, pursuant to Rule 1.350 Florida Rules of Civil Procedure, requests Plaintiff to produce for inspection and copying the original of the following documents and things at the offices of Plaintiff or such other place as the
parties may hereafter agree.
1. Any and all applications for credit, omitting nothing there from, made by or on behalf
of the Defendant to Capital One Bank.
2. Any and all documents, omitting nothing there from, bearing Defendant’s signature
that in any way supports the Plaintiff’s claim.
3. Any and all documents, omitting nothing there from, whether or not signed or alleged
to have been signed by the Defendant that in any way supports the Plaintiff’s claim.
4. Any and all charge slips, omitting nothing there from, signed or alleged to have been
signed by the Defendant under the open account with Capital One Bank.
5. Any and all charge slips, omitting nothing there from, whether or not signed or
alleged to have been signed by the Defendant under the open account with Capital
One Bank.
6. Any and all periodic billing statements issued to anyone, including the Defendant,
omitting nothing there from, both those showing actual purchases and those merely
showing the balance brought forward, under the open account with Capital One Bank
that is referred to in your complaint, or in any other way related to or part of the
balance upon which you are suing.
7. Any and all correspondence between Capital One Bank and the Defendant, omitting
nothing there from, related in any way to transactions that you allege are part of the
balance sued for under the open account with Capital One Bank, or the account sued
for in general.
8. Any and all correspondence between the Plaintiff and Defendant, omitting nothing
there from, related in any way to the open account with Capital One Bank that is
referred to in your complaint, or to the account sued for in general.
9. Any and all correspondence between the Plaintiff and Plaintiff’s attorney, omitting
nothing there from, related in any way to the open account with Capital One Bank
that is referred to in your complaint, or to the account sued for in general.
10. Any and all correspondence between the Plaintiff and Trak America, omitting nothing
there from, related in any way to the open account with Capital One Bank that is
referred to in your complaint, or to the account sued for in general.
11. Any and all correspondence between the Plaintiff and any other collection agency,
omitting nothing there from, related in any way to the open account with Capital One
Bank that is referred to in your complaint, or to the account sued for in general.
12. Any and all correspondence between the Plaintiff and any entity, omitting nothing
there from, related in any way to the open account with Capital One Bank that is
referred to in your complaint, or to the account sued for in general.

Request for Production
ANSWERS
Question 1&2
Objection. Overburdensome and vague, without waiving said objection see application already filed and docketed on September 25, 2007, as part of Planitiff's exhibits.
Question 3
Objection. Overburdensome and vague, without waiving said objection see application and statements already filed and docketed on September 25, 2007, as part of Planitiff's exhibits.
Question 4&5
Objection. Overburdensome and vague, relevance. Charge slips are not keep more than 60 days after purchase. Credit card holder is required to request charge slips in writing within said time.
Question 6
Objection. Overburdensome and vague, without waiving said objection see statements already filed and docketed on September 25, 2007, as part of Planitiff's exhibits.
Question 7&8
Objection. Overburdensome and vague, without waiving said objection see application, statements and terms and conditions already filed and docketed on September 25, 2007, as part of Planitiff's exhibits.
Question 9-12
Objection. Overburdensome and vague,protected by work-product and attorney-client priviledge, without waiving said objection see application, statements and terms and conditions already filed and docketed on September 25, 2007, as part of Planitiff's exhibits.

INTERROGATORIES
DEFENDANT NAME, appearing pro se, pursuant to Rule 1.340 Florida Rules of
Civil Procedure, propounds the following interrogatories to Plaintiff Capital One Bank:
1. How many other collection agencies has Plaintiff contacted in regards to this alleged
debt?
2. List each and every collection agency, omitting none there from, that has been
contacted regarding this alleged debt..
3. Has this alleged debt been sold to any third party?
4. If the answer to #3 is yes, what is the name, address and telephone number of that
third party.
5. Identify the person who signed the Affidavit of Debt or what ever they called,
including their full name, business name, business address and telephone number.

Response to Interrogatories
ANSWERS
1&2 Objection. Revevance, without waiving said objection, Zero/None.
3 Objection. Revevance, without waiving said objection, No
4 Not applicable.
5 Objection. Overburdensome and vague, relevance. Planitiff has no idea what "Affidavit of Debt" the defendant is referring to.

Seems their answers were just dodging any info. They objected to all of them and only gave answers in saying that the exhibits should speak for themselves. The whole purpose of the discovery was to find out what these exhibits are and how they came to be. Not to point out that they exist.

I need some help in figuring out how to approach this in court and tell the judge that hey failed to answer these questions.

Thanks in Advance

[hannah]

This court hearing on Friday...what is it for? The trial for the case or what?

[Enigma]

At this late hour, Ex Parte Motion to Compel and Sanctions.

[Enigma]

Since it's Capital One, are you past the 3 year SOL for VA?

[Enigma]

Since they answered Interrogatorie #5 the way they did, on Friday move the court to strike it.

As to #1, if you were dunned at all by any CA, bring that evidence to court. Plaintiff may have committed perjury.

[Enigma]

As to the Req for Prod. since they answered the way they did, anything they have already introduced or will introduce, move the court to strike it.

[gulfbreeze]

Originally Posted by hannah

This court hearing on Friday...what is it for? The trial for the case or what?

Thanks for replying...

the hearing on Friday is the final hearing for the case between crap1 and myself. this has been going on since Oct 2006.

quick run down.

i had a few credit cards with them. i stopped paying on this card ($1600 at that time) in may 2002. they waited until after i moved from AZ (July 2005) to Florida to file on Oct 2006. they are asking for $2300 plus another $3000 in additional fees and interest. at first, i disputed it as being nonenforceable since the sol had expired in AZ (3 years on open or stated accounts according to AZ statute) and Florida has a borrowing statute that denies them from enforcing it if it can not be maintained in the state where the tort occurred. after they submitted their evidence, i saw in the terms where it says VA LAWS apply no matter where I resided. VA says that it must be a written contract and signed to get 5 years, otherwise 3 years.

I am trying to get their evidence tossed (they originally had other stuff they submitted but after i noticed one of them being a MO receipt with a different account number, they have reduced it down to a 30 second acceptance with my signature only for a card with $500 limit but no terms or anything else, 6 months of statements, and the terms and condition).

I asked for a set of discoveries and they waited until after i had to file a motion to compel and was granted, right down to the last day, some 50 days later...two days before the final hearing. their answers are vague and incomplete.

they are fighting this using telephonic appearance with both the lawyer and their witness (supposedly, custodian to records but i don't know know they are).

the judge i have is not consumer friendly, so i have hired a court reporter for the final hearing in case i need to appeal.

I am fighting this as being past the SOL in VA. Warrant in Debt in VA requires the plaintiff to select between OPEN ACCOUNT or CONTRACT. Since they recognize open account, and this IMHO falls under open since it was a credit card where repeated use was expected with charges, and not a contract of traditional look...everything needed on one piece of paper with our signatures on it, i am asking FL to interpreted VA laws and apply the 3 year SOL and say this is not enforceable.

it's a long shot, but i feel that i should win. i just need any help you guys can find me today since it is set for Friday at 9am. if anyone has time, i have written a lot on this in the past year over in Florida debtor forum but summarized it here only because of time and space.

any help you could provided, would be greatly appreciated. thanks again...

[gulfbreeze]

Originally Posted by Enigma

Since it's Capital One, are you past the 3 year SOL for VA?

yes...
last paid/used card...may 2002
case filed.....oct 16 2006

4 years 5 months.

as for each states SOL:
AZ...3 years (open or stated) if not found on a written signed contract
VA...3 years (expressed or implied) if not found on a written signed contract
FL....4 years if not found on a written instrument

[gulfbreeze]

Originally Posted by Enigma

As to the Req for Prod. since they answered the way they did, anything they have already introduced or will introduce, move the court to strike it.

i thought so. they act like they dont know what i was talking about. i wanted proff from crap1 and who was providing the records along with anything else. they have failed to answer any of my questions and just apply objections to it all.

the funny thing is, they requested a 30 day extension to get them since they said they need more time to get them, but once denied this extension, they file this. they could have just submitted this and not bothered asking for more time. i think they were just worried and submitted this to avoid losing all their exhibits due to sanctions mentioned by the judge if not done by oct 3rd.

[gulfbreeze]

Originally Posted by Enigma

At this late hour, Ex Parte Motion to Compel and Sanctions.

i have filed a MTC and also a MTD. the first thing i will address will be this. i will ask the judge to toss their evidence based on their denial to answer the questions with OBJECTIONS and all. without their evidence, i will move to have this dismissed because they failed to show that it was not past the SOL in VA AZ or FL.

i might have to use the one statement with the last payment and the one page of the terms where it says VA laws apply to show the expired SOL. the one i will leave out will be the signed acceptance slip. or is there another way of handling this if all their evidence is toss3ed to show that the SOL has expired?

[gulfbreeze]

here is, in a nutshell, my defenses as stated to the judge on my MTD I filed earlier and will be what I base my defenses on...

Motion to Dismiss
In the County Court in and for xxxx County, Florida

Capital One Bank (Plaintiff) vs xxxxxxx (Defendant)

Case#xxxxxxx
Division IV
MOTION TO DISMISS

I, xxxxxx, respectfully request the court to grant my motion in the Defendant’s favor, based on the following:
Grounds for Affirmative Defense
Florida Statute 95.10:
95.10 Cause of action arising in another state.
When the cause of action arose in another state or territory of the United States, or in a foreign country, and its laws forbid the maintenance of the action because of lapse of time, no action shall be maintained in this state.
History.--s. 18, ch. 1869, 1872; RS 1295; GS 1726; RGS 2940; CGL 4664; s. 5, ch. 74-382.

This agreement was entered into by the defendant while living in Arizona. It was used in Arizona and ended while a resident in Arizona and the statue of limitations expired while in Arizona. Florida has no vested interest in this case as it was not used while in Florida and is barred according to this statute mentioned above.

Arizona Statute 12-543:

12-543 Oral debt; stated or open account; relief on ground of fraud or mistake; three year limitation

There shall be commenced and prosecuted within three years after the cause of action accrues, and not afterward, the following actions:
1. For debt where the indebtedness is not evidenced by a contract in writing.
2. Upon stated or open accounts other than such mutual and current accounts as concern the trade of merchandise between merchant and merchant, their factors or agents, but no item of a stated or open account shall be barred so long as any item thereof has been incurred within three years immediately prior to the bringing of an action thereon.
3. For relief on the ground of fraud or mistake, which cause of action shall not be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.
ALSO….

According to the Terms and Agreement supplied by the Plaintiff, it states that this account is governed by the State of Virginia.

As found on exhibit filed by the Plaintiff (page 2 of the Terms & Agreement submitted) …

“Applicable Law; Severability; Assignment.
No matter where you live, this agreement and your Account are governed by Federal Law and by Virginia law.”
Action Barred by the Statute of Limitations
• The Supreme Court of Virginia recognizes that an Open Account is distinct from a contract by providing a choice of an Open Account or a Contract on a Warrant in Debt. (see copy of the Warrant in Debt attached).
• This was an Open Account as there was a situation where there had been running or current dealings between the parties and the account had been kept open with the expectation of further dealings.
• The Virginia Legislature carved out a specific accrual time for an Open Account. Code of Virginia (1950) Section 8.01- 249 (see below)
• By so doing, and not addressing an Open Account in ' 8.01-246, the legislature thereby considers an OPEN ACCOUNT to be distinct from a written contract, oral contract quasi-contract or implied contract.
• From information and belief, the last charge for goods or services was April 2002.
• From information and belief, the last payment made by the Defendant was May 3, 2002.
• This action is time-barred by the Statute of Limitations § 8.01-246 as it have been longer than 3 years since either the last charge for goods or services or the last payment. Case filed October 16, 2006.
• In actions on an open account, [the accrual period begins] from the later of the (May 3, 2002) last payment or last charge for goods or services rendered on the account.
§ 8.01-246. Personal actions based on contracts.
(4). In actions upon any unwritten contract, express or implied, within three years.

§ 8.01-249.
(8). In actions on an open account, from the later of the last payment or last charge for goods or services rendered on the account.

(Code 1950, §§ 8-13, 8-17, 8-23; 1964, c. 219; 1966, c. 118; 1977, c. 617.)

OPEN ACCOUNT UNDER VIRGINIA LAW
STATUTE OF LIMITATIONS ON AN OPEN ACCOUNT
Is an Open Account the same as a contract? Is the statute of limitations different for the two?

Issues
Determining whether an obligation is based on an Open Account, a contract, or some third category (quasi-contract, oral contract or implied contract) is a daunting task because of an almost complete lack of definition of this term in the Virginia Code and common law.
Yet the Warrant in Debt [Form DC 412] (FORM SUPPLIED WITH MOTION IN BACK) calls for the Plaintiff when filing to state whether the claim is:

[i]“[ ] Open Account [ ] Contract [ ] Note [ ] Other (EXPLAIN).”[/I]

The judge needs to know this information to rule on the claim, including the appropriate statute of limitations.

WHAT IS A CONTRACT?
The Fairfax County Circuit Court held that

“In order to constitute a written contract, the >essential terms of the agreement must be obvious on the face of the writing without recourse to parole evidence.”

The Virginia Supreme Court has stated that "until all understand alike, there can be no assent, and, therefore, no contract."

Virginia courts have further discussed >service= contracts and have found "certainty and completeness" as essential elements of that type of contract. The essential elements include the:
1. nature and extent of the services to be performed,
2. person to whom the services will be rendered, and
3. compensation to be paid for the service.

An Open Account usually lacks: 1.) Specific mention of the nature and extent of the goods or services (medical treatment, hardware, etc.) to be purchased or performed except in a very general way and; 2.) There is no mention of the nature of charges or the payments required.

Open Accounts usually lack certainty and completeness. For instance, many give the beginning time but there is no contemplated ending date, simply because the agreement is open-ended; many specify the goods or services only in the most general terms; many may be signed by only one of the parties; and some make no mention of a contract but like in some medical treatment documents, may refer only to a Apolicy@ regarding financial responsibility.

Virginia common law, as well as the common law of other states, has drawn a distinction between contracts and Open Accounts. Whereas a contract envisions a single, defined interaction between parties, an Open Account is essentially a relationship in which a Aseries of individual but related transactions take place between the offeror and offeree.

The Supreme Court of Virginia settled the matter of first impression by distinguishing between running accounts that operate under a single continuing contract and Open Accounts.

The plaintiff-suppliers asserted that the builder’s initial application for credit constituted a single contract between the supplier and builder that encompassed all subsequent orders and deliveries of building materials. Under this view, the supplier could file a mechanic=s lien against any property that benefited from the material supplied in the orders placed by the builder, as long as the lien was filed within the statutory period of ninety days after the last delivery.
The defendant-builders, however, maintained that the initial credit application served to create an Open Account. Pursuant to this legal theory, there was no single continuous contract formed between the supplier and builder. Rather, each order and delivery of supplies constituted a separate contract. Therefore, the ninety-day statutory period to file a lien would begin to accrue upon the breach of each delivery contract.

The Virginia Supreme Court found for the builders, holding that in each instance, the initial credit application served to create an Open Account rather than a continuous contract. In doing so, the Court noted that the applications did not require the builders to purchase materials nor did they obligate the suppliers to provide materials in any definite time.

In a case of real Open Account, an agreement would not obligate a vendor to provide goods or services or a purchaser to seek goods or services from that vendor. Further, there would be an understanding that some type of line of credit was being extended to the purchaser for the purchase(s).

§ 8.01-246. Personal actions based on contracts.
2. In actions on any contract which is not otherwise specified and which is in writing and signed by the party to be charged thereby, or by his agent, within five years whether such writing be under seal or not;
4. In actions upon any unwritten contract, express or implied, within three years.
§ 8.01-248. Personal actions for which no other limitation is specified.
Every personal action accruing on or after July 1, 1995, for which no limitation is otherwise prescribed, shall be brought within two years after the right to bring such action has accrued.
OPEN ACCOUNTS FOR MEDICAL SERVICES
A number of states classify a patient=s relationship with a physician as an Open Account. Perhaps the most prominent is Louisiana that has statutorily defined an Open Account to "include debts incurred for professional services, including, but not limited to legal and medical services." Common law in Louisiana has further defined Open Accounts as existing in "a situation where there had been running or current dealings between the parties and the account had been kept open with the expectation of further dealings."

In determining whether a relationship may be classified as an Open Account, Louisiana courts consider whether:
- there are other business transactions between the parties;
- a line of credit was extended to one party;
- there are "running or current" dealings; and
- there are expectations of future dealings.

A decision by the Circuit Court of Richmond is illustrative of how Open Accounts may be established in the context of medical services in Virginia. In this case, Chippenham Hospital sought to recover for medical fees and hospital charges incurred by Mr. Shelton when he remained in the hospital for ten days past the twenty-one day period covered by Medicaid.

In finding for the hospital, the Richmond Circuit Court stated that by presenting himself to the emergency room at the Hospital, Mr. Shelton Aimpliedly agreed that if medical treatment was rendered, he would pay for it. Using this reasoning, the court found an implied contract.

Therefore, as to Mr. Shelton, the patient, we have a contract to pay for medical treatment on an open account, and, of course, the three-year statute of limitations applies to him.

There are clear distinctions between written contract, oral contract, quasi-contract or implied contract and Open Accounts but since some of the definitions are not specified in the Code of Virginia, it is up to the individual to research the operative case law to make these distinctions.

STATUTE OF LIMITATIONS
There may be a significant difference in the appropriate Statute of Limitations applied to different types of documents. If a document is an Open Account, as differentiated from a traditional written contract, a Plaintiff cannot avail itself of the five-year statute of limitations under the Code of Virginia (1950) Section 8.01-246(2.).

The statute of limitations for an Open Account requires a reading of three Virginia Code Sections.

First, the Code of Virginia (1950) Section 8.01- 249(8.) states that:
In actions on an open account, [the accrual period begins] from the later of the last payment or last charge for goods or services rendered on the account.

The legislature carved out a specific accrual time for an Open Account thereby giving plaintiffs a major time advantage in pursuing their claim. By so doing, and not addressing an Open Account in 8.01-246, the legislature thereby considers an Open Account to be distinct from a written contract, oral contract quasi-contract or implied contract. To bolster this position, the Supreme Court recognizes (as stated above) that an Open Account is distinct from a contract by providing a choice of Open Account or Contract on a Warrant in Debt.

Therefore, one can argue that you look to the limitation on the catchall statute, 8.01-248, and use the two-year limitations period.

Rule 3:16 General Provisions as to Pleadings.
(e) An allegation that an action is barred by the statute of limitations is sufficient without specifying the particular statute relied on.

Lastly:

IF FLORIDA STATUTES WERE APPLIABLE…..

 Last payment according to their statement submitted to the Courts as evidence, May 3, 2002.
 Date case filed in Small Claims in Florida, Oct 16, 2006.
 Time lapsed…nearly 4 ½ years.

Section 95.031, Florida’s Statutes, provides that “the time within which an action shall be begun under any statue of limitations runs from the
time the cause of action accrues.” Subsection (1) provides that “[a] cause
of action accrues when the last element constituting the cause of action
occurs.”

• A limitations defense is generally raised affirmatively in an answer or other responsive pleading, but may be asserted in a motion to dismiss if its applicability is demonstrated on the face of the complaint or exhibits.
See Koehler v. Merrill Lynch & Co., Inc., 706 So. 2d 1370 (Fla. 2d DCA 1998); S.A.P. V.
Dept. of Health & Reh. Servs., 704 So. 2d 583, 584 (Fla. 1st DCA 1997)

COUNT I (BREACH OF CONTRACT)

2006 Florida Statutes Title VIII Chapter 95

LIMITATIONS OF ACTIONS; ADVERSE POSSESSION

LIMITATIONS Florida Statute §95.11(3)(k)

95.11
Limitations other than for the recovery of real property.--Actions other than for recovery of real property shall be commenced as follows:

(3) WITHIN FOUR YEARS.
(k) A legal or equitable action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, wares, and merchandise, and on store accounts.

As for Count II (Unjust Enrichment)
§95.11(3)(j) on Count II

(2) Statute of Limitations: § 95.11(3)(j), Fla. Stat. (four years); Calder v. Uwanawich, 449 So. 2d 911, 912 (Fla. 3d DCA 1984).
(6) Unjust enrichment is unavailable when it is proven that an express contract exists. See, e.g., Williams v. Bear Stearns & Co., 725 So. 2d 397, 399 (Fla. 5th DCA 1998).

Supporting Florida Case Laws:

“Further, action is not founded on written instrument where evidence of liability consist partially of written cardholder account and security agreement but writing is incomplete to establish liability–According, contract is regarded as oral for stature of limitations purposes”
Portfolio Recovery Associates, LLC v Paul Fernandez 13 Fla L. Weekly Supp. 560, 561

“Contract action is not founded upon written instrument for purpose of statue of limitations, where written instrument is link in chain of evidence to prove cause of action, but does not on its face establish all elements of plaintiff’s claim.”
ARDC Corp v Hogan, 656 So.2d 1371 (Fla 4th DCS 1995), rev den. 666 So2.d 143 (Fla 1995)

“Where an agreement as set forth in writing is so indefinite as to necessitate resort to parole evidence to make it complete in applying the statue of limitation, it must be treated as an oral contract.”
McGill v Cockrell, 101 So.2d 199 (Fla. 1924) Id at 201.

Although evidence of liability relied on may be partly written, the transaction may be regarded as an oral one, if the writings are so indefinite or incomplete as to necessitate oral testimony to establish liability on the part of the defendant in terms of the transaction.
Johnson v. Harrison Hardware & Furniture Co. (1934) 119 Fla. 470, 152 So. 708, rehearing denied 119 Fla. 471, 160 So. 878.

“An open account is a debt created by a series of credit transactions.”
“An action on an open account accrues when the last payment on the account falls due.”
Hawkins v, Barnes, 661 So.2d 1271, Fla. App. 5 Dist. 1995.

RULE 1.130. ATTACHING COPY OF CAUSE OF ACTION AND EXHIBITS
(a) Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.

(d) Affirmative Defenses. In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms if justice so requires, shall treat the pleading as if there had been a proper designation. Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 1.140(b); provided this shall not limit amendments under rule 1.190 even if such ground is sustained.

• FORM 1.965. DEFENSE.
• STATUTE OF LIMITATIONS
• Each cause of action, claim, and item of damages did not accrue within the time prescribed by law for them before this action was brought.

Their written documents are unclear and ambiguous.

Such evidence is received, not for the purpose of importing into the writing an intention not expressed therein, but simply with the intention of elucidating the meaning of the words employed; and in its admission, the line which separates evidence which aids the interpretation of what is in the instrument, from direct evidence of intention independent of the instrument, must be kept steadily in view; the duty of the court being, to declare the meaning of what is written in the instrument, not of what was intended to be written.

"The parol evidence rule is based upon the idea that a completely integrated writing, executed by the parties, contains all of the stipulations, engagements, and promises that the parties intended to make, and that all of the previous negotiations, conversations, and parol agreements are merged into the terms of the instrument." Quimby v. Memorial Parks, Inc., 667 So.2d 1353, 1357 (Ala.1995) (quoting Alfa Mutual Ins. Co. v. Northington, 561 So.2d 1041, 1044 (Ala.1990)).

WHEREFORE, Defendant respectfully requests that this Court enter an Order dismissing Plaintiff’s claims with prejudice.
Thank you,



xxxxxx
(copy furnished to the office of : xxxxxxx (Attorney for the Plaintiff)

[gulfbreeze]

Originally Posted by Enigma

Since they answered Interrogatorie #5 the way they did, on Friday move the court to strike it.

As to #1, if you were dunned at all by any CA, bring that evidence to court. Plaintiff may have committed perjury.

is something like this (link below) what is needed to answer? thx

insolvency.gov.uk/pdfs/forms/2-29b.pdf

[gulfbreeze]

I am going thru my papers now, getting them all ready for tomorrow, and i just noticed something. The terms and condition that they submitted, starts out saying Welcome to Capital One blah blah and for opening this account etc etc... now the part that strikes me odd is, if they are claiming that this is the one I got when I opened it (and by the wording on the first paragraph) in 2000, why does it say on the last page "copyright 2002" ????

I also noticed that lots of their "evidence" that they initially submitted but have left off after i sent discovery, had a different account number...like 70% of it. The purpose of my discovery was to find out what they were going after and the proof they had. I had three accounts with them and it seems that they have used a majority of th einfo from another account. The statements have a different account number than all the rest. The acceptance with my signature has no account number on, attaching itself to any of them. How in the world will they be able to prove to the court that any of their "evidence" is for said account. I mean, it is just a bunch of paper and none of it seems to be attached to one another. Testimony, which they failed to say WHO was going to be the custodian and I will object since they did, will be needed to explain it all. Since it will need testimony, I will move to strike anything they say aas heresay and not able to prove that said "evidence" is in fact the proof needed to show to the court that a written signed contract exists, except expressed or implied on an open account...which is what I want since the SOL will be three years then....

Does this make sense to anyone else?