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16  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: December 07, 2008, 06:19:48 PM
This case will never go away as long as they have a chance of serving you with a summons.....It will only go away after you fight them in court.
17  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: December 07, 2008, 06:17:46 PM
If the summons has NOT been served the case SHOULD be postponed at the pre-trial. The plaintiff has the option to try and serve the summons again (or wait to see if the first summons comes  back unserved) and usually the pre-trial is set again at a future date. It is highly unlikely that the judge will give a default judgment if the summons has NOT been served, and he would be wrong to do so. Usually you can tell if the summons was served on the clerk's website, or you can get the summons number and check with the sheriff. The clerk can give you the number to call.

That being said, if you filed an answer and the summons has not been served, the judge may very well give the plaintiff a default if you do not show up.

That is why it is very important that you check that a summons has not been served to someone else, someplace else (happens fairly often). The judge will have no way of knowing that you have been improperly served and WILL give the plaintiff a default if you do not show up. Most places, they only check to see if a summons was served if the defendant does not answer when their name is called in court.

The sheriffs are probably overwhelmed in the summons department right now and most likely weeks behind on serving people. Is you home address the same address that the suit has listed? Are you home during the day? Lots of reasons why you may not have been served yet, including the sheriff's office not putting high priority on small claims cases....hard to say why you have not been served.

It boils down to this, if the judge believes that the summons was served and YOU are NOT at the pre-trial, the plaintiff WILL get a default, even IF you file an answer.

If you file an answer, you better be at the pre-trial. If the summons is never served, there will be another chance to file an answer, if they ever get the summons served.

Your choice....

18  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: December 06, 2008, 08:38:02 PM
If I were you I would check the clerk of court website regularly and see if the summons ever shows up as being served. If it doesn't the case cannot go forward and you would have no reason to "play your hand", yet...

If it shows as being served, and you never actually recive proper service, you may have grounds to get any default judgement overturned. Though, I would most likely show up in court and beat them at their own game.

I think you may stand a good achance of beating them in court, but why take thet chance if you never get served.....

You will have to decide....
19  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: December 03, 2008, 11:51:34 AM
madscientist ,

It looks good to me, but could probably use a good review by FraudFighter....


When is your pre-trial?
20  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: November 22, 2008, 07:18:25 PM
madscientist,

Check your messges......
21  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: November 21, 2008, 09:07:04 AM
In Florida it is typical that the pre-trial is schedule before you are served.

No one here can help you until you post a copy of the claims against you. You should be able to get this from the clerk of courts. What county are you in?

AFTER you get served, you MUST file an answer in the time stated on the summons. If the the pre-trial falls before that date, you can request that the pre-trial be set back until after the date you must file your answer.

I would recommend looking around this site and starting to get you answer ready, but until you post the claims against you, we cannot be of much help.
22  Flordia Debtor / Post a Question / Re: Personal guarantee for LLC debt on: October 02, 2008, 03:42:57 PM
All the more reeason to seek out the advice of a lawyer. Sounds like a contradiction in the law and that may impact how or IF the FDCPA applies....

Hopefully you can work something out with yellowbook before it gets to court!!
23  Flordia Debtor / Post a Question / Re: Personal guarantee for LLC debt on: October 02, 2008, 02:04:18 PM
http://en.allexperts.com/q/Business-Debt-3120/Laws-protect-personal-guarantor.htm
24  Flordia Debtor / Post a Question / Re: Personal guarantee for LLC debt on: October 02, 2008, 01:53:18 PM
From the IRS website:

For IRS purposes, how do I classify a limited liability company? Is it a sole proprietorship, partnership or a corporation?

A limited liability company (LLC) is an entity formed under state law by filing articles of organization as an LLC. Unlike a partnership, none of the members of an LLC are personally liable for its debts. An LLC may be classified for Federal income tax purposes as if it were a sole proprietorship (referred to as an entity disregarded as separate from its owner), a partnership, or a corporation. If the LLC has only one owner, (see Publication 555, on community property states), it will automatically be treated as if it were a sole proprietorship (a disregarded entity), unless an election is made for it to be treated as a corporation. If the LLC has two or more owners, it will automatically be treated as a partnership unless an election is made for it to be treated as a corporation. If the LLC does not make a classification election, a default classification of partnership (multi-member LLC) or disregarded entity (single-member LLC) will apply. The election referred to is made using the Form 8832 (PDF), Entity Classification Election. If a taxpayer does not file Form 8832 (PDF), a default classification will apply.

******************************************************************************************************************************
From About.com:

Does the FDCPA Protect Sole Proprietorships?

Yes! The same rights afforded to individuals under the FDCPA also protect sole proprietors. The FDCPA does not release you from your debt obligations, but it does control how debt collectors can pursue business owners for their business' debt.

Most small business owners today own sole proprietorships. If you are a sole proprietor, or in many cases, involved in a partnership, you may be personally responsible for any debts that your business has incurred.


Laws that apply to debt collection from individuals also apply to collection procedures from business owners when the business’ debt is their own personal responsibility.


I guess the question is did you set up your LLC as a sole proprietorship?Huh

I would definitley look up an attorney......



25  Flordia Debtor / Post a Question / Re: Now the shoe is on the other foot (I'm the defendant) on: October 02, 2008, 12:02:07 PM
FD,

As was revealed on DebtorBoards. com, this debt arose from his business, so I believe the FDCPA does NOT apply here, though the issue of the OP being a personal guarantor of the debt may have some impact......any info anyone has on that would be appreciated. Does being a personal guarantor turn this into consumer debt?Huh?

Also, the OP was an LLC when the debt was incured, so I assume he has some protections under those state and federal laws....
26  Flordia Debtor / Post a Question / Re: Capital One Bank USA, NA v Gregorich on: September 12, 2008, 09:51:27 AM
A question comes to mind. I see this case is in the eleventh judicial circuit and it is NOT an appeals case.

How would a small claims court judge view referencing this case in another judicial circuit in Florida?

Would he even look at it as it is NOT an appeals case?
27  Flordia Debtor / Post a Question / Re: Capital One Bank USA, NA v Gregorich on: September 12, 2008, 09:44:49 AM
This is GREAT!! I could have used this 2 years ago!! So this pretty much brings home the point that Virginia's SOL applies based upon the customer agrement?

This really gives a great defense against account stated (2 years under Virgina law).
28  Flordia Debtor / Post a Question / Re: Plaintiff's motion for summary final judgment and attorney's fee on: September 12, 2008, 09:40:09 AM
Keeping my fingers crossed for you!!
29  Flordia Debtor / Post a Question / Re: Plaintiff's motion for summary final judgment and attorney's fee on: September 08, 2008, 10:04:17 AM
Couldn't OP file a Motion to Dismiss for failure to prosecute (or whatever it is called)? Seems like it has been well over abyear since the plaintiff acted on anything....
30  Flordia Debtor / Post a Question / CACH LLC suit on: June 02, 2008, 04:01:36 PM
Just wanted to provide an update on my case, and hopefully some encouragement for other facing JDBs in court.

I filed my answer and affirmative defenses (SOL and failure to state a claim) within the time limit.

Went to the pre-trial in April and met with the mediator and JDB attorney (via phone). Mediation was a joke. I offered ~1/3 of what they were seeking. The attorney said no way. The mediator then suggested to me to offer ~ 2/3 and I said no way. I told the JDB attorney I will see you in court.

Judge set trial date for June and issued an order for both sides to submit any evidence they wished to use in court no later than 15 days prior to court date. JDB attorney filed nothing by that date. I thought about filing some evidence in support of my SOL defense but decided I would wait to see what happened at trial since they had nothing more than a generic CC agreement as their case. I was hoping they would show up and judge would rule in my favor.

I also prepared a Motion to Strike the CC agreement just in case I needed it at trial.

1 day before trial and JDB submitted a voluntary dismissal. Hope I have seen the last of them, but we will see….

Thanks to FloridaDebtor, Fraudfighter, Ruby and all others who have made this website possible by sharing your experience and advice.

Fight the good fight!!
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