4.Without an attached “cause of action,” the Claim should be dismissed for failure tofollow the rules, failure to state a cause of action and failure to prosecute.5.Although
“oral” agreements are enforceable in Florida,
oral and impliedagreements for credit are not enforceable in Florida courts pursuant to two statutes of fraud:1)
which says, in pertinent part: “[A] contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for salehas been made between the parties and signed by the party against whomenforcement is sought....”;2)
F.S. 687.0304 (2) “CREDIT AGREEMENTS TO BE IN WRITING.
—Adebtor may not maintain an action on a credit agreement unless the agreement isin writing, expresses consideration, sets forth the relevant terms and conditions,and is signed by the creditor and the debtor.” and3)
F.S. 687.0304 (3)(b)
“ACTIONS NOT CONSIDERED AGREEMENTS.
— A credit agreement may not be implied from the relationship, fiduciary, or otherwise, of the creditor and the debtor.6.An "'oral agreement' does not overcome the Banking Statute of Frauds."
UniversityCreek Associates II, Ltd. v. Boston American Financial Group, Inc.
, 100 F.Supp 2d 1345, 1351,Case No. 98-6643-CIV-Highsmith, U.S. Dist. Ct. for the So. Dist. of Florida.7.In Florida, as shown above, credit agreements must be in writing and may not be“implied.” Furthermore, a “claim for promissory estoppel does not survive the statute of frauds.”(
Shore v. Seagate
, 842 So.2d 1010, at 1012 (Fla. 4
D.C.A., 2003)).8.In a weak attempt to provide a written agreement, Plaintiff filed a "
Notice of Filing Documents
" on 6 February 2012 (over 75 days ago) with a purported "Customer Agreement"attached. Said Agreement says, "In this Agreement the words "you," "your" and "yours" refer toeach person who signed the application for the account...." However, said Agreement fails tocontain any of the following: JAM's name; Junior's name; JAM's signature; Junior's signature; aninterest rate; a credit limit, a date of repayment; or the duration of agreement.9.Said "
Notice of Filing Documents
" says on the first page: "The Plaintiff is attempting tolocate the original application for the issuance of the credit card not attached."10.Because the Claim fails to provide a copy of a written contract signed by either JAM or Junior, the Claim appears to be based upon an
contract. The Claim, itself, does notallege the terms of any contract and unwritten contracts for credit are not enforceable in Floridacourts. Thus, the Claim should be dismissed with prejudice.(This paper is NOT confidential.)2