9/18/2011) : 3 Page: UAE AON A Faxuuie COUNTY COURT ATP N es FOR ORANGE COUNTY, FLORIDA DORK oe CASENO: Capital One Bank (USA), NA. Palos COMPLAINT FOR DAMAGES vs, ATTORNEY BAR NO: 0051972 LUIS) Defendant(s). Plaintiff Capital One Bank (USA), N.A. complains of Defendant(s), LUIS , and would respectfully show the following: JURISDICTION 1. This is an action for damages that are within the jurisdictional limits of this court exclusive of interest cost and attorney's fees. SERVICE 2. Defendant(s) may be served at the address listed on the court summons. VENUE 3. Venue of this action is proper in the county named above. because the Defendant(s) is/are a resident(s) of this county. FACTS CAPITAL ONE BANK (USA), * (“the Issuer") issued a credit card in Defendant(s)‘ name under its account number 5291152059028619. Defendant(s) received and used (or authorized the use of) the card and thereby became obligated to pay for the charges incurred with the card. 5. On or about 30 days from the date of the last payment, which was September 10, 2007, Defendant(s) defaulted on the obligation to make monthly payments on the credit card73/15/2011 account, and the card was subsequently canceled. The entire balance on the credit card account is presently due and payable in full. 6. The credit card account was charged off to profit and loss by the Issuer. ‘Thereafter, the account was sold to Plaintiff. The total account balance purchased by Plaintiff was $2,025.28. FIRST CAUSE OF ACTION ~ BREACH OF CONTRACT 7. The issuance of a credit card constitutes the offer of a contract. See, ¢.g., Bank One, Columbus, N.A. v. Palmer, 63 Ohio App. 34 491, 492, 579 N.E.2d 284, 285 (Ohio Ct. App. 1989). Use-of a credit card constitutes acceptance of the terms of the cardmember agreement. See, e.g., Grasso v. First USA Bank, 713 A.2d 304 (Del: 1998); Read v. Gulf Oil Corporation, 114 Ga. App. 21, 150 $.E.2d 319, 320 (1966); Petroleum Co. v. MeMillan, 168 S.W. 24 881 (Tex. Civ. App. 1943). Even in the absence of such an agreement the issuance of the credit card constitutes an offer of credit, and the use of the credit card constitutes the acceptance of the offer of credit. Feder v. Fornmoff, 474 N.S. 24 937 (N.Y. 1984), citing Empire Nar'l Bank v. Monahan, 82 Mise. 24 808, 370 N-¥.8.2d 840 (N.Y. County Ct. 1975), 8. By using and/or authorizing the use of the credit card Defendant(s) accepted the contract with the Issuer and became bound to pay for all charges incurred with the credit card. Defendant(s) also became subject to all of the terms and conditions of the Issuer's cardholder agreement, 9. The Issuer sent to Defendant(s) monthly bills reflecting, inter alia, all charges incurred withthe credit card, the monthly payment due, and the total balance due. TT the best of Plaintift’s knowledge and belief Defendant(s) did not ever send to the Issuer any disputes of the monthly bills or the charges reflected thereon. Each monthly statement informed Defendant(s) of the duty to submit any disputes of the cherges set forth in such statement, in writing, within sixty FaxCore/3/15/2011/ days from the date of the statement. Defendant(s) failure to submit such disputes constitutes aa admission of the account balance. See, eg. American Express Travel Related Servs. v. Silverman, 2006 Ohio 6374, 2006 Ohio App. LEXIS 6327 (Ohio Cz. App. Dec. 5, 2006). 10. Defendant(s) defaulted in the payment obligation.on the credit card. Such breach of contract proximately caused the Issuer damages in the amount of the balance due on the credit ‘card account. That obligation has been assigned to Plaintiff, who is the party entitled to enforce the contract and receive payment of the ctedit card balance. 1L. Defendant(s) sare presently indebted to Plaintiff in the amount of $2,023.28, that being the balance due through the date the account was charged-off, Plaintiff is also entitled to recover contractual interest at the rate provided for in the Issuer's contract with Defendant(s) or the monthiy statements. See Olvera v. Blitt & Gaines, P.C., 431 F.3d 285 (7th Cir. 2005). Plaintiff sceks judgment for such sums, together with post-judgment interest at the-mexirum rate allowed by law. 12, Pursuant to the tertne of the cardholder agreement Plaintiff is entitled to recover reasonable atiomey’s fees and court costs for the pursuit of this action. Such amount is subject 10 determination. by the Court, and Plaintiff requests that the Court award attorney's fees in the amount that it determines to be reasonable in this action, together with all taxable costs. ‘SECOND CAUSE OF ACTION ~ UNJUST ENRICHMENT 13. In the alternative, and without waiving the foregoing, Defendant(s) received and used (or authorized the use of) the credit card knowing that the Issuer expected to be tepaid for all charges incurred with the card, together with interest thereon. With each use ofthe eredit card the Issuer paid money on Defendant(s)’ behalf to the merchant with whom the credit card was, fare liable for repayment of such sums under the doctrine of unjust FaxCore