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  1. #1
    Join Date
    Aug 2009
    Posts
    2

    Default Interstate Collections Law

    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"

  2. #2
    Join Date
    Sep 2005
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    Default Re: Interstate Collections Law

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

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