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LadyEllen -> RE: Lawyer, Refuses To Pay Bank Of America Credit Card, Threatens To Sue (1/5/2010 9:19:28 AM)
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Seems to me that there could be a loophole or two - although its unlikely they havent long since been closed up.
Pinnel's case from the early 17th century is interesting - he was owed money and agreed to accept a lower sum before the debt was due. He then sued for the remainder when the debt was due but failed, because the earlier repayment provided him with additional consideration to support the new agreement to accept a lower sum in repayment. The same would apply had the debtor offered payment other than in money, offered payment in a differerent place, in a different currency etc, as long as the payment offered advantage to the creditor in some way - which need not be adequate advantage.
So if the bank agrees to accept GBP instead of US$ in satisfaction of the debt (unlikely, but you never know), you could get away with paying, effectively, a few cents in the dollar. Pinnel's case is so early it wouldnt be surprising if the same thinking was in US law, notwithstanding the closing of such a loophole and the bank's probable rejection of your offer.
Do you have promissory estoppel in US law? Basically one party agrees not to enforce its full legal rights and the other party relies on this. The promisor is then prevented from going back on the agreement. With this, the minimum payment and interest rate could be suspended for a period or cancelled altogether, and the bank would be unable to sue.
Misrepresentation is another good area to look into. If the bank offered terms in the contract which you relied on and which later came to be seen to be untrue, you have grounds to counter sue. Unfortunately this is likely only to apply to the actual credit agreement and not to the bumf they use to induce you to sign, and it would be very unlikely that after all these years such a problem in the terms and conditions had not been rectified in the bank's favour.
Anticipatory breach as our lawyer friend seems to opt for is an interesting one. Again the terms and conditions are the reference point and it would be surprising indeed to find that the bank did not have the option in the contract to basically do as it pleased with regard to interest rates, minimum payments, payment dates and credit limits, such that it might amend any or all at any time and remain adherent to its duties under the contract. Our lawyer friend might well find himself in breach, rather than the bank.
The problem ultimately amounts to this question - is the credit agreement such that it survives each amendment (to which the creditor has agreed) or is there a new agreement at each instance of amendment? If the former, then any well drafted agreement will have the creditor by the balls at all times, which is most likely the actual situation. If the latter then there are many defences to any suit against the creditor.
E
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