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The Mystic Wave
The Mystic Wave, Paralegal
Category: Legal
Satisfied Customers: 427
Experience:  30 yrs. exp. in the legal profession. Specializing in Personal Injury, Criminal, Civil & more.
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Contract enforceability, Money lent- Debtor-creditor

Customer Question

Case: Plaintiff and Defendant are joint debtors, equally responsible for payment on a credit card which has an unpaid balance of $15,000.   Plaintiff has never paid out of pocket any monies towards satifying this debt, but is suing Defendant for $15,000 asking for judgment in the amount of the unpaid credit card debt, arguing that Defendant received the entire benefit of the debt incurred. Nothing is in writing between Plaintiff and Defendant. Does plaintiff have a cause of action against Defendant, or is it unenforceable due to lack of consideration paid directly by Plaintiff (who has not actually paid any out of pocket monies and has no out of pocket damages) and on statute of frauds grounds (nothing in writing)?
Submitted: 11 years ago.
Category: Legal
Expert:  The Mystic Wave replied 11 years ago.

Greetings:


The plaintiff is still responsible for the debt at this stage - the plaintiff must prove in a court of law that the purchases on the credit card did not go to him/her -- being a joint holder, means that if the debt is not paid, the creditor will seek all remedies in order to collect all monies due and owing, including interest, from all interested parties.


Bright Blessings.


Peace, Love & Happiness,


The Mystic Wave


 

Expert:  The Mystic Wave replied 11 years ago.

Greetings:


Note - If the plaintiff can prove that defendant incurred the debt, plaintiff has a case....why should plaintiff pay for something that he/she didn't purchase? The debt must be paid...see my response above.


If you have any questions, please let me know.


Bright Blessings.


Peace, Love & Happiness,


The Mystic Wave

Customer: replied 11 years ago.
Reply to TheMysticWave's Post: But the plaintiff hasn't paid anything for the debt incurred on the credit card which both defendant and plaintiff are both obligated on. The credit card company has paid the merchants for the items, plaintiff hasn't!   (I could see a cause of action if the credit card company collected payment from plaintiff and then plaintiff turned around and sought indemnification from defendant, but that is not the case. Plaintiff has suffered no out of pocket damages.) Besides, how can plaintiff sue defendant for monies which defendant charged to defendant's Visa card?
Expert:  The Mystic Wave replied 11 years ago.

Greetings:


Which party actually incurred the debt? In what capacity would plaintiff and defendant be joint debtors?


If the defendant incurred the debt and received entire benefit, which is quite a substantial sum, should the plaintiff truly be responsible at this stage? If it claims to be equal, then where's the plaintiff's half of the benefit? How much has the defendant paid? You state that nothing is in writing - but there is joint holding on the card....this may appear then as similar to a co-signing.....Collection agencies go after all interested parties to collect a debt which would be to seek out plaintiff and defendant. But, with all intents and purposes, by what you have stated, plaintiff claims that he/she did not incur the debt - thus, plaintiff is seeking legal remedies to protect self, proclaiming that he/she is not responsible.


Please let me know if you have further questions.


Bright Blessings.


Peace, Love & Happiness,


The Mystic Wave


 

Customer: replied 11 years ago.
The logic of your updated reply would render any contract creditor collection action in which there is a co-signor, null and void!   Wouldn't one joint debtor only have grounds for a cause of action against the other joint debtor if the first joint debtor actually was collected monies from for payment of the debt alleging incurred for the other's benefit?   How could one joint debtor sue the other for amounts that neither party has had to pay out of pocket yet?
Expert:  The Mystic Wave replied 11 years ago.

Greetings:


Thank you for your response.


Perhaps my logic is not one that you can follow - my apologies for that -  and perhaps I'm not following what you have written.


The way I am looking at your question is that monies have been expended by the use of a credit card - there is a debt of $15,000 - the plaintiff is claiming that he/she has not reaped any benefits from this expense of $15,000 and the credit card company has already paid the merchants...now the credit card company wants their money back for which it appears that they have turned it over to a collection agency.......If I am wrong, please correct me.


First and foremost who incurred the debt?


If the defendant incurred the entire debt - would it be fair for the plaintiff to pay? Should it be split down the middle -- $7,500 each? What does plaintiff get out of that reasoning?


Hypothetically, what if the plaintiff used the credit card and purchased $100,000 worth of merchandise and kept everything for self - would defendant truly be willing to pay their half of $50,000? I am not so sure of that - unless this was legally their responsibility. Realistically speaking, being a joint holder does not necessarily mean that it is split down the middle - 50/50 - unless fully agreed upon by the parties - for which there should be something in writing to that effect - (contract agreement would secure this fact)......


Even though both parties have not paid the $15,000 to date - the fact remains that it MUST BE PAID - thus, Plaintiff is suing defendant because defendant ran up the charges of $15,000 -  and because plaintiff wishes to protect his/her own credit status - plaintiff is not responsible for the outstanding debt - and if the collection company doesn't get their money soon in order to reimburse the credit card company...then the collection agency will take this matter to court going after both plaintiff and defendant.


If you can show me proof as to where plaintiff and defendant are equally responsible - and that everything is split 50/50, I may then be able to tell you that plaintiff's actions may not be justified.


There are many people who have joint bank accounts, whether it be married folks, mothers/daughters, fathers/sons, boyfriend/girlfriend - but certainly, if one person writes a check under this joint account - there is no law that says the other person must pay half  - the person who wrote the check, purchasing whatever merchandise they have so decided upon is the one responsible -- unless there has been some kind of a verbal agreement between the two people beforehand and/or there is something in writing that states the 50/50 split.


I trust that I have understood your question - and I believe I have addressed your concerns, if not, please let me know.


Bright Blessings.


Peace, Love & Happiness,


The Mystic Wave

 

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