[BP2008]

Seeking to use some Texas Case Law to find similar laws to defend a Junk Debt Buyer suit in California. Does anyone know how to find this out or familiar with CA cases or have anything to add?

Texas
1. A credit card agreement cannot be enforced
without evidence that it was actually offered
In order to prevail on a breach of contract
claim, a plaintiff must prove the existence of a
valid contract between the parties.

Engelman Irr.
Dist. v. Shields Bros., Inc., 960 S.W.2d 343, 352
(Tex. App.—Corpus Christi 1997), pet. denied,
989 S.W.2d 360 (Tex. 1998). Parties form a
binding contract when the following elements
are present: (1) an offer, (2) an acceptance in
strict compliance with the terms of the offer, (3)
meeting of the minds, (4) each party's consent to
the terms, and (5) execution and delivery of the
contract with the intent that it be mutual and
binding. Williams v. Unifund CCR Partners
Assignee Of Citibank, 2008 WL 339855 (Tex.
App.—Houston [1 Dist.] 2008) (not designated
for publication), Winchek v. American Express
Travel Related Services. Co., 232 S.W.3d 197,
202 (Tex.App.-Houston [1st Dist.] 2007, no
pet.).3


In a credit card case, proof that an
agreement was offered to the defendant is the
key to proving these elements of an enforceable
contract.

If a particular agreement was never
offered to a defendant, then it follows as a
matter of simple logic that there can be no
acceptance, no meeting of the minds or any of
the other requirements for establishing that the
agreement contains the terms of an enforceable
contract.
Beverick v. Koch Power, Inc., 186
S.W.3d 145, 152 (Tex. App.—Houston[1st Dist.]
2005, pet. denied).




Because the typical credit card plaintiff does
not have and does not offer any evidence of the
actual offer of a specific form of agreement to
the defendant, the typical plaintiff falls well
short of the standard required under Texas law
to prove the terms of an enforceable agreement.
Credit card plaintiffs typically reply that
even if they do not have evidence that any
specific contract was actually offered to the
defendant, the fact of the defendant’s use of the
card is evidence that there was some sort of
agreement between the parties.

However, more is required than evidence of
some sort of agreement before a Texas court will
enforce a contract. It is essential to the validity
of a contract that it be sufficiently certain to
define the nature and the extent of its material
obligations. T.O. Stanley Boot Co., Inc. v. Bank
of El Paso, 847 S.W.2d 218, 221 (Tex. 1992). In
a loan contract, the interest rate and repayment
schedule are material terms of the contract. If
those terms are missing the contract is not
not supply the missing terms. Id., 847 S.W.2d at
222. Accordingly, the mere use of a credit card,
while it may well indicate that some sort of
understanding existed between the parties, is not
sufficient to establish an enforceable agreement
between the parties because material terms such
as the amount of interest payable on the account,
the amount of the fees that the credit card issuer
may assess and the terms of repayment cannot
be determined from the mere use of the card.

The formation of a contract by use of the card argument is
especially suspect in the context of an arbitration
agreement. Without some proof that the card holder was
actually presented with a specific arbitration agreement
prior to using the card, it is simply too great a reach to
conclude that the card holder expected to be subjected to an
arbitration agreement merely because he used the card.


sufficiently definite to be enforced. A court may

Continued:


The formation of a contract by use of the card argument is
especially suspect in the context of an arbitration
agreement. Without some proof that the card holder was
actually presented with a specific arbitration agreement
prior to using the card, it is simply too great a reach to
conclude that the card holder expected to be subjected to an
arbitration agreement merely because he used the card.


Credit: Craig Jordan of Lesser and Jordan for the Info "How to Defend A Credit Card Case"

[Mr. Knowitall]

You can research California statutes here and case law here or here.