contract-law breach-of-contract digital-contract
To successfully sue for breach of contract, what evidence does the plaintiff have to provide to prove that a contract existed?
<p>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.)</p>
<p>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.</p>
<p>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.</p>
<p>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.</p>
<p>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?</p>
<p>Wouldn't breach of contract require, as a minimum, material evidence that a contract was in play?!</p>

<p>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 <a href="https://www.consumerfinance.gov/complaint/" rel="nofollow noreferrer">relevant complaint</a> with the card issuer.</p>
<p>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 (<a href="https://www.law.cornell.edu/uscode/text/15/1643" rel="nofollow noreferrer">15 USC 1643</a>)</p>
<blockquote>
<p>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.</p>
</blockquote>
<p>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.</p>
<p>You will also want to consult <a href="https://www.ftc.gov/enforcement/rules/rulemaking-regulatory-reform-proceedings/fair-debt-collection-practices-act-text#804" rel="nofollow noreferrer">federal regulations regarding debt collection</a>. 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.</p>

<p>Evidence-wise, as pointed by @user6726, the plaintiff <em>initially</em> does not have to provide anything but testimony/affidavit which basically says &quot;yes we do have contract with the defendant on such and such terms&quot;.</p>
<p>But your biggest trap at this point has nothing to do with evidence. It's the <em>procedure</em>.</p>
<blockquote>
<p>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</p>
</blockquote>
<p>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.</p>
<p>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.</p>

<blockquote>
<p>what are the chances that the judge will dismiss?</p>
</blockquote>
<p>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 <em>opposition to motion for summary judgment</em>. In that response she needs to establish why there is a <em>genuine issue of material fact</em> which warrants (1) discovery (which I <em>assume</em> has not occurred), and (2) possibly trial.</p>
<p>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 <em>credible</em> evidence of the alleged opening of that account weakens his claim.</p>
<p>If by &quot;<em>we offered as much</em>&quot; you mean the <a href="https://www.investopedia.com/terms/a/accumulated-value.asp" rel="nofollow noreferrer">accumulated value</a> 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.</p>
<p>Other than that, it is unclear (1) <em>when</em> the complaint pleadings &amp; 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 <em>drafted</em> the &quot;lengthy rebuttal&quot; or you actually <em>filed</em> it in court, and so forth.</p>
