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1  Flordia Debtor / Post a Question / Re: In FL.If a person walks away,lender sues,get judgement,can they garnish? on: September 08, 2010, 02:38:56 PM
IOW is a mortgage ,a unsecured debt ,after the lender gets back the prized property?

I would think so...but not the whole mortgage, just the amount still owed. Usually, a deed in liue of forclosure wipes the whole mortgage out, but not neccessarily. It will depend upon the deal you make with your lender.

Is  a DJ after the collateral is returned,then an unsecured debt ,just like a CC debt?

No. a Judgment is not the same as a debt, which has a SOL that judicial action must be taken witihn. A judgment is enforced by the courts and has a SOL of 20 years in Florida, and can be renewed continously...

So even if the creditor got a judgment , its not garnish-able?

That will depend upon the garnishee's situation. HOH and such...

An added wrinkle. Would it follow the judgee (if you will)to another state?

 I do belive that judgments can be transfered, via the courts, to other states.

You need to understand the difference between owing a debt and the judgement. If the house sells for less than the mortgage, then the lender may or may not pursue a defeciency judgment through the courts. A DJ is not a garuantee for the lender but I am not knowledgable on the exact procedure they follow to get one.
2  Flordia Debtor / Florida Case Law / Re: Statute of Limitaions - Written instrument on: June 26, 2010, 09:58:01 PM
Everything you need is within this topic. Florida Debtor summed it up pretty well:
"You don't really because FL's contract-based limitations laws aren't defined that way. They are defined based on whether the claim is based on a writing that meets the test of what constitutes a written instrument or not.
The plaintiff has the right to chose the theories of recoevery to pursue judgment on. However, the law also says that regardless of what theory is alleged by the plaintiff, the SoL is determined by the nature of the claim.
You could argue that the nature of the claim is of an open account based on the Hawkins v. Barnes case (which is what you described above), since that is applicable law to defining what is an open account action in Florida. TILA is federal lending practices law and no definition for that narrow purpose applies to state common law breach of contract causes of action. If the composite set of documentation did not constitute a written instrument as defined by FL law (such as the Fernandes case, ARDC Corp. v. Hogan, McGill v. Cockrell, etc.) then the nature of the claim is not founded on a written instrument."

The judge will rule if it is a 4 or 5 year SOL based upon the submitted evidence. Fraudfighter says that the Fernandes case will help the judge to rule in favor of the 4-year SOL. Take a copy with you to court!!

If you need more specific answers about your case, we will need more specific information...
3  Flordia Debtor / Post a Question / Re: This board was down for a few days. on: March 24, 2010, 08:17:04 AM
You are the man!!
4  Flordia Debtor / Post a Question / Re: Edited version of suit by HSBC on: February 24, 2010, 01:36:25 PM
If you confer with them ( via phone or mail):

1. Admit to nothing...on the phone or in writing.

2. My understanding is that any information relayed in settlement negotiations outside of court cannot be used in court or court filings.

3. I would not answer ANY discovery demands until you go to court and see what the judge has to say. He or she may send you guys to mediation...

4. All your answers should go to the court and the opposing attorney. File nothing that isn't required by the court. The plaintiff can demnand all they want, but the judge is in charge here.

5. It never hurts to file a MTD...
5  Flordia Debtor / Post a Question / Re: Edited version of suit by HSBC on: February 24, 2010, 07:54:04 AM
Look here for the rules: http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/10C69DF6FF15185085256B29004BF823/$FILE/Civil.pdf?OpenElement

If you intend to fight this, read the rules and know them well....especially the part about discovery. It is up to them to bring the proof, not you.

The 10 day window may be as you suspect, a chance to save going to court if you can cut a deal. However, it will probably involve a stipulated payment agreement that Rubin and Debski will file with the court and use to get a quick default judgement if you do not keep the terms. Or they may even use the agreement to get the judge to go ahead and give them a judgement.

I am not an attorney and will not give you legal advice....you may want to go talk to an attorney if you are in civil court.

Do you plan to fight this or settle? A call to see what they are offering may not hurt, but don't expect a great deal.
6  Flordia Debtor / Post a Question / Re: Edited version of suit by HSBC on: February 24, 2010, 07:32:32 AM
What county?
7  Flordia Debtor / Post a Question / Re: I am being sued by HSBC via Rubin and Debski and am unsure of my next step? on: February 23, 2010, 03:43:37 PM
First of all, not to fall over myself with gratitude, but, thank you!

your post was how I originally found this site and your case was what gave me hope!
More than $5k, but less than $15K - my bad for not knowing what amount constitutes small claims.
No pre-trial anything as yet. What would that look like and how would it happen?
I have not agreed to anything, at least as far as I know.

Look on the complaint and summons given to you to see what court you are in. I believe you are in county civil and not small claims due to the amount you are being served for....this is important as the rules are a slightly different for small claims and county civil .

Not sure if your judicial civil court requires a pre-trial confernce in your county...you will need to look at your clerk of court site and see what your local rules are...

Have you gone to court yet?

8  Flordia Debtor / Post a Question / Re: Credit card company said they could garnish wages or put lein on house on: February 23, 2010, 01:36:46 PM
I believe in Florida they can only garnish or place a lien AFTER they get a judgment (correct me if I am wrong).

You have not been sued yet, have you?
9  Flordia Debtor / Post a Question / Re: I am being sued by HSBC via Rubin and Debski and am unsure of my next step? on: February 23, 2010, 01:34:04 PM
You may want to read my post titled CACH LLC Suit at http://floridadebtor.com/debtforum/index.php/topic,381.msg2519.html#msg2519. I was also sued by Rubin and Debski.

In my case they were collecting on a HSBC debt that had been sold...not sure if that is the same in your case as they claim HSBC BANK NEVADA as the Palintiff, but that might be a lie...

If they cannot produce evidence then you may luck out.

First let's answers some questions...

Is this in small claims?

Did you go through a pre-trial confernce?

Did you agree to discovery?
10  Flordia Debtor / Post a Question / Re: SERVED BY CACH LLC. ... NOW WHAT? on: August 27, 2009, 07:47:11 AM
I concur with everything Florida Debtor has written.

1. The FIRST and MOST IMPORTANT thing you need to do is file a written answer to the summons with the Clerk of Courts WITHIN the TIME ALLOWED. Look for examples here and at debtorboards and follow their format. You will need to answer EACH of CACH's allegations specifically in your answer. You can then post you answer here (with no identifiable information) and we will look it over.

2. File a Motion to Dismiss as Florida Debtor suggested. Same info as I gave you in number 1.

2. The next step is to then SHOW UP for the pre-trial conference and defend your rights. You need to understand the Florida Small Claims Rules:
3. I have fought CACH LLC in Brevard county and beat them...well, at least got them to go away until the debt was outside the SOL. And I believe you can do the same.

4. Check your email.

What date you have to file an answer by?
11  Flordia Debtor / Post a Question / Re: SERVED BY CACH LLC. ... NOW WHAT? on: August 26, 2009, 11:04:34 AM

As was mentioned in an earlier post, the first thing you need to do is relax, calm down, take a deep breath and come to the understanding that panic will NOT help in this situation. Things are probably not as bad as they seem. It may seem like a lot of jargon that you don't understand in these legal proceedings but it can all be understood IF you are willing to commit the time and energy to learning about what is going on. You can learn all you need to know from this site and www.debtorboards.com.

Let's answer a few questions first:

1. What county are you in?

2. When do you need to reply to the summons? (There should be a place on the summons where it says how many days you have to answer;usually 20 in Florida.)

3. Are there any other attachments to the summons than the 2 affidavits and the generic credit card agreement?
12  Flordia Debtor / Post a Question / Re: Recieved Pre-Trial Summons for May 20th. For SOL account please help on: April 30, 2009, 03:17:22 PM
When I looked at the clerk of court web site they tried to summon me back in June of 08 with no luck. 

Then most likely this debt is NOT out of SOL. You need to see when they filed the case as that will determine whether they are within the SOL or not since SOL typically starts from the first deliquency without the account ever being current again...if that is April '04 and they did not file before the same date in April '08 then it is SOL and you have an affirmative defense.....maybe. Was this account entered into in Florida or another state? What does the credit card agreement say?

I successfully fought off an old Orchard Bank credit account last year......you need to read up on the defenses against JDBs on this site and also try www.debtorboards.com. Everything you need is on this site here though AND is Florida specific......you ned to definitely file an answer with afffirmitave defenses and possibly a counterclaim if they have violated the FDCPA.

You should definitely show up at the pre-trial and talk to the mediator...might be able to work out a deal...but I would bet you could beat this if you want to fight.
13  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: January 15, 2009, 11:20:35 AM
I would suspect that ANYTHING you submit to the court must me mailed to the opposing attorney.....
14  Flordia Debtor / Post a Question / Re: Medical Collection Question on: December 22, 2008, 01:31:31 PM
15  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: December 16, 2008, 08:09:35 AM
Getting the judge to accept your Motion to Dismiss is good news!!

As Fraudfighter pointed out, the judge will most likley NOT dismiss the case for lack of attachment, BUT, the judge agreeing to look at it can be taken as good news that the judge is not going to just let the plaintiff walk all over you and they had better have their act together.

Forget about the service as this is somehting you can always bring up on appeal IF you lose, b ut right now things look good for you!!

My experience in court with a JDB went similiar to how your case is going. I would be VERY suprised if they can get ANY more evidence before the court date. They would have attached it if they had it to start with. Since Unifund is a JDB, they will have to request the documents to prove their case from the original creditor and are HIGHLY unlikely to get the documents before the trial.

Did you file your answer with the court?
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