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My wife is being sued for breach of contract in the state of Washington, in the United States of America. The allegation is that she opened a credit card account, made a single charge, and failed to pay it off. I have no knowledge of what she may have done, and because it was 4 years ago she has no memory of the event. (And I think she is being totally honest.)

We suspect Identity Theft, but would pay what is owed if the plaintiff were able to show that it is a legitimate claim. We offered as much, and expressed in good faith a desire to meet and settle out of court. The attorney ignored us, and proceeded to file a motion for summary judgement.

The plaintiff is a collection agency, not the original bank where my wife allegedly opened the account, and they have not been able to produce a signed credit card application or any other evidence showing that she knowingly and willingly entered into an agreement with them.

I think that this is a no brainer, (no contract no claim, right?!) and I have drafted a lengthy rebuttal to every erroneous statement of fact they have listed in their motion for judgement. Before I go through the bother of submitting a motion to dismiss to the court I just wanted to ask if my presumption is valid.

If all they can produce is a photocopy of a bank record of an account in her name, and cannot prove by her signature (digital or otherwise) that she knowingly and willingly entered into a contractual agreement, and we swear under oath that we have no knowledge that she ever did, and allege that the most likely explanation is that she is a victim of identity theft, what are the chances that the judge will dismiss?

Wouldn't breach of contract require, as a minimum, material evidence that a contract was in play?!

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    Where is that happening? Are you thinking the applicable laws the same all over the world, or that this site is dedicated to whatever place you are living in?
    – Greendrake
    Dec 9 '20 at 0:08
  • @Greendrake, you mean to tell me you don't know where I live?! Seriously though, i would expect that there would be some commonality in the basic requirements, at least in the legal systems of the English speaking modern Western Nations.... If I narrowed it down to district court of the county I may not get many responses. But, thanks for pointing that out. I edited my question. Dec 9 '20 at 1:24
  • The law school basics of contract formation is offer, acceptance, and consideration. Two parties must mutually assent to be bound to the terms contemplated. As a practical matter, this will come down to a cost-benefit analysis which considers the amount of the charge vs. potential expenses of litigation. Which is not comforting, I recognize.
    – A.fm.
    Dec 9 '20 at 1:37
  • Sorry, walking and typing on mobile and accidentally hit submit prematurely.
    – A.fm.
    Dec 9 '20 at 1:42
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As a preliminary comment, since the collection agency apparently has a professional attorney who is going straight for the throat, you may want to retain the services of an attorney to review your lengthy rebuttal, and perhaps make his own informed arguments. Presumably you have also filed the relevant complaint with the card issuer.

Material evidence, that is, tangible stuff, is not required to establish the existence of a contract: it can also be established with testimony. A signature is also not mandatory for there to be a contract: the signature simply serves as proof of an agreement. Per (15 USC 1643)

the burden of proof is upon the card issuer to show that the use was authorized or, if the use was unauthorized, then the burden of proof is upon the card issuer to show that the conditions of liability for the unauthorized use of a credit card, as set forth in subsection (a), have been met.

The issuer can testify that your wife opened an account and made a charge, and that alone is sufficient to make the case, unless you have evidence that makes it more likely that she did not authorize the charge. It would help if you had some idea what evidence of authorization they have – your attorney would know how to get that information.

You will also want to consult federal regulations regarding debt collection. It is not clear how you first heard of this issue, i.e. did you receive a notice from the bank, or the collection agency; or did you first learn about this by getting served? At any rate, you cannot be held liable for credit card debts on legitimate card except as provided for in 15 USC 1643, which includes a $50 limit on liability for unauthorized use, and there is no special exception that if a card is fraudulently obtained, you become fully liable.

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Evidence-wise, as pointed by @user6726, the plaintiff initially does not have to provide anything but testimony/affidavit which basically says "yes we do have contract with the defendant on such and such terms".

But your biggest trap at this point has nothing to do with evidence. It's the procedure.

The attorney ignored us, and proceeded to file a motion for summary judgement. ... I have drafted a lengthy rebuttal to every erroneous statement of fact they have listed in their motion for judgement. Before I go through the bother of submitting a motion to dismiss

If the plaintiff has provided their evidence/affidavit, your motion to dismiss the whole proceeding will not work: the plaintiff now has a case which needs to be resolved by the court.

The correct move would probably be to file a statement of defense, an affidavit (that there was no contract) and an objection to the motion for summary judgement. You need to either research the exact procedure/rules/forms that apply in your jurisdiction (and the case law too) to avoid shooting in the dark, or get an attorney.

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  • I probably will seek out an attorney at this point, but I was planning to file an affidavit not only rebutting the plaintiffs statements point by point, but also stating our version of the truth. With the plaintiff's testimony rebutted wouldn't our unopposed affidavit then stand as the final truth, or would the matter still need to go to court? (perhaps the rebuttal and our affidavit of truth should be separate...) Dec 9 '20 at 3:57
  • @MichaelHall Where parties do not agree as to what happened, a hearing might be required. Your mere filing of an opposing affidavit does not resolve the case but only tells the judge that it has to be resolved by looking at what both parties say, not by way of summary judgment. 2nd sentence fixed.
    – Greendrake
    Dec 9 '20 at 4:13
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what are the chances that the judge will dismiss?

Basically none. There are too many gaps in your description, but a motion to dismiss seems unlikely to succeed because you nowhere purport that your wife has conclusive evidence to dismantle plaintiff's claim. Instead, she needs to file an opposition to motion for summary judgment. In that response she needs to establish why there is a genuine issue of material fact which warrants (1) discovery (which I assume has not occurred), and (2) possibly trial.

Generally speaking, there is no need for contracts to be in writing. However, the fact that the financial industry is heavily regulated supports the presumption that contracts with financial entities ought to be in writing. Accordingly, plaintiff's inability to produce credible evidence of the alleged opening of that account weakens his claim.

If by "we offered as much" you mean the accumulated value of the alleged charge from four years ago, it is unclear what prompts the plaintiff to maintain its action. This is perhaps the most viable argument in a motion to dismiss, since bringing/opposing court proceedings for vexatious purposes or to harass the adversary is unlawful.

Other than that, it is unclear (1) when the complaint pleadings & summons were served upon your wife; (2) whether she filed her responsive pleadings (and if so, what were these); (3) whether she failed to timely answer the motion for summary judgment, or to answer any request(s) for admissions; (4) whether you only drafted the "lengthy rebuttal" or you actually filed it in court, and so forth.

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  • There are a lot of procedural questions in your answer. As Greendrake pointed out, I recognize that they could beat me procedurally and I plan to seek proper legal advice in that regard. However, the question was specific to evidence. You state "you nowhere purport that your wife has conclusive evidence to dismantle plaintiff's claim." This is true, we cannot prove that she did not open the account. But isn't this the logical fallacy that our legal system is constructed to prevent? That the claimant has burden of proof because you cannot prove a negative? Dec 9 '20 at 17:17
  • They are suing breach of contract with no contract in evidence. Their presumption is that because the account existed in my wife's name that she knowingly and willingly participated in its creation. To me it is a clear cut case of identity theft, but we don't need to prove that, do we? Dec 9 '20 at 17:18
  • @MichaelHall "This is true, we cannot prove that she did not open the account", which is why a motion to dismiss would not succeed (but don't forget my remark about your previous offer of settlement). Your wife's argument should not be of the sort "Dismiss the lawsuit because I am not supposed to prove a negative", but to detail why "Plaintiff's evidence is easy to fabricate, and therefore it in and of itself does not prove that I am the one who opened the account. Accordingly, my rights to due process imply that I should be allowed to conduct discovery". Dec 9 '20 at 17:48
  • I hear you, thanks for that perspective! Dec 9 '20 at 18:12

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