Legal Question in Credit and Debt Law in California
I have come across the below affirmative defenses though am questioning whether this is valid for my particular credit collection lawsuit. The specific question I have is related to how I should word the below defenses if they are applicable. I do not know the substance of the agreement between the assignor (original creditor) and the assignee (Junk Debt Buyer � JDB) In my lawsuit, the attorney does not give reference to any outside agreement between the original creditor and the JDB.
In the first affirmative defense, I have read that the debtor does not have to have notice or approve of the assignment from an assignor to an assignee. Is it proper for me to allege that the statute of Frauds has been violated when I do no know if a contract was executed between the assignor and the JDB? Secondly to evaluate whether a violation of the Parole Evidence Rule applies in this situation? Thirdly, does Lack of Privity have relevance when the assignor does not have to notify me of the assignment? Lastly, how can I evaluate whether there is unjust enrichment when I do not have the ability to view the agreement between the assignor and assignee?
(1) Defendant is informed and believes, and thereon alleges, Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.
(2) Defendant is informed and believes, and thereon alleges, that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule.
(3) Defendant is informed and believes, and thereon alleges, Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.
(4) The Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than the Plaintiff is entitled to receive.
1 Answer from Attorneys
It is spelled "parol" evidence rule. Often, if the credit card company or its collectors no longer have the original signed agreement, it will allege that you received money that you used for your own benefit, and may not even plead a breach of contact cause of action at all. It will bring to trial all the statements it sent to you and allege that you had the opportunity to object to them, but you never did. Therefore, it will argue that the statements must be true that you spent all that money, and therefore should pay it all back with interest, and seek judgment based upon those facts.
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
