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1  Flordia Debtor / Post a Question / Sued by Captial One - Where to start? on: January 17, 2007, 09:46:59 AM
Quote from: "grossman"
I am kind of worried about the Virginia part. I figure my options are:

1. Fight it in court. MTD, etc...Force them to produce signatures and such.....

2. Settle with them before court date.......not my prefered option.

3. Go to required pre-trial mediation and see what happens...........



1. Fight it in court. MTD, etc...Force them to produce signatures and such.....

If the debt is recent they may not need signatures. They have to prove you owe the debt and have a right collect it though. I just fought the law team you are up againest. They are not afraid to keep tring to collect on stuff they dont have the paperwork to rightfully collect. They seem to be over worked and you can bog them down in paperwork though.

I would do discovery on them. They wont respond, you will have to have the judge compel everything so you will want to request discovery, them send a "good faith letter" in 30 days, them do a motion to compel, then ask for a motion hearing.  

2. Settle with them before court date.......not my prefered option.

If you do choose to settle and make payments they will try and make you give up your right to refuse garnishment. Probably not a good idea to do that. Pay in full or make them change there terms.

3. Go to required pre-trial mediation and see what happens...........

You have to answer the complaint and do your defenses and counterclaims BEFORE pre-trial. Mediation sucks, if you admit you owe the debt they will just try to make you pay the whole thing. If you deny the debt they will set it for trial. At my pre-tial the lawyer for the JDB ran it. Not much mid-ground

You probably will want to review my case on this site as I fought the same lawyers with the same complaint. I made mistakes but I did at least get them to give up at the end. Review mine (imnotpaying), rubyruby27's and fraudfighter's posts here and at http://debtorboards.com/.

Seems like your next step is answers, defenses, counterclaims. ... and discovery. You might try a motion to dismiss for failure to attach, but they probably have attached enough.

(Note: Im not the most legaly compedent here. Double-check eveything.
2  Flordia Debtor / Post a Question / Sued by Captial One - Where to start? on: January 16, 2007, 08:38:26 PM
Are you being sued by Hayt, Hayt and Landau? your complaint loks nearly identical to mine.
3  Flordia Debtor / Post a Question / mutual dismissal with prejudice - game over on: January 10, 2007, 12:57:46 PM
I showed up for trial, the lawyer for the other side was very nice and said.

"you will probably win your case but you really wont get very much counterclaim money." secrectly I figured that myself. She offered a  mutual dismissal with prejudice  and I accepted. Game over.

I would really like to thank everyone for all of their help. Without your help I would have been paying these people money for a debt I did not owe.

I will lay out my whole case in the next few days here at Florida Debtor. I think it is probably a good template for what to so, and what not to do.
4  Flordia Debtor / Post a Question / My MSJ on: December 16, 2006, 06:26:06 PM
Quote from: "CrzyAmeriCan"
Did you ever file this? How did it turn out?

Inquiring minds want to know.


I filed a MSJ and a motion to precude. Motion hearing isc in about 3 weeks and the trail date is a couple of days later.
5  Flordia Debtor / Post a Question / MOTION TO PRECLUDE on: December 12, 2006, 07:12:20 PM
Hopefully this is checkmate. Please let me know if you see any problems with it.

Quote

MOTION TO PRECLUDE
 Comes now Defendant, pro se, and hereby states the following:
1.   This action was commenced on 5/xx/2006 by Plaintiff filing a Summons and Complaint with the Court.
2.   Defendant, pro se, filed an Answers, defenses, counterclaims and, discovery request on 6/xx/2006 (production of documents).
3.   Defendant, pro se, sent Plaintiff a “Good Faith” letter reminding them that the 30 day period was expiring to comply with  the discovery request dated 6/xx/2006  and, that if  Defendant did not receive the requested documents, Defendant would be forced to ask the court for a motion to compel.
4.   On 11/xx/2006 the court issued an “ORDER TO COMPEL ON DOCUMENTS DATED 6/xx/06 - 30 DAYS TO RESPOND”
6.   This 30 period expired on 12/xx/2006 (35 day period expired 12/xx/2006.)
7.    As of 12/xx/2006 Plaintiff has not complied with the court’s “ORDER TO COMPEL ON DOCUMENTS DATED 6/xx/2006”. Plaintiff has not raised any objections or provided the Defendant with the requested documents.

FIRST RELIEF PRAYED FOR
9.   Now therefore, as a result of Plaintiff’s ’s failure and refusal to comply with the Court’s order to comply with the defendants discovery request, Defendant has been irrevocably harmed in her ability to narrow the issues for the Court to consider, and Defendant prays that the Court grant an Order to Preclude Plaintiff from producing any evidence, testimony, documents or other written, electronic or verbal matter at this motion hearing and at Trial.

SECOND RELIEF PRAYED FOR
10. In the event the Court grants the above Relief, Defendant asserts that Plaintiff has no issues of law or fact to raise and Defendant therefore prays that this court grant Defendant’s Motion for Summary Judgment and issue an Order of Summary Judgment against the Plaintiff.
6  Flordia Debtor / Post a Question / My MSJ on: December 06, 2006, 09:33:26 PM
Quote

I hope the judge agrees on 559.715.


I think he will. He brought it up at the last hearing. JDB tried to have it dissmissed). Judge did not dissmiss it and said it isc both a danfence as well as a counterclaim.

The judge did ask about case law on it but I cant find any anywhere. If anyone has or can find caselaw on 559.715 please post it.
7  Flordia Debtor / Post a Question / My MSJ on: December 06, 2006, 01:42:01 PM
Hi Everyone,
Here is my new MSJ - any thoughts?


Quote

COMES NOW, the Defendant, Pro Se, and files this Motion for Summary Judgment, and as grounds therefore would show this Court that:

1.   This alleged debt is barred by the Statue of Limitations as explained in “Defendant’s Memorandum in Support of Motion for Summary Judgment.”

2.   Plaintiff is barred from collecting this debt because they did not “give the debtor written notice of such assignment within 30 days after assignment” per F.S. 559.715. Court asked for proof of written notice at the motion hearing for Plaintiff’s “Motion to Dismiss Counterclaim”, and Defendant has requested proof though discovery. Plaintiff has provided no such proof.
a.   “the assignee MUST give the debtor written notice of such assignment within 30 days after the assignment.” F.S. 559.715

WHEREFORE, Defendant respectfully requests that this Court enter an Order dismissing Plaintiff’s claims with prejudice.



Quote


DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT

The Following shows why this debt is barred by the statute of limitations;

1.   Plaintiff states the charge-off January xx, 2002 in their “Account Verification Statement.”

2.   Any cause of action for breach accrues from the time of the breach, which is at least 180 days prior to the charge-off date, making the time of the alleged breach at or before July 20, 2001.
3.   It is well settled in this jurisdiction and elsewhere, that a cause of action for breach of contract accrues and, therefore, the statute of limitations begins to run, at the time of the breach.


(case law supporting paragraph 3)
A. F. Pylant, Inc. v Escambia Treating Co. 276 F.2d 924 (Fla. CA5 1960);
Briggs v Fitzpatrick 79  So 2d 848 (Fla. 1955);
In re Shambow's Estate 153 Fla. 762, 15 So 2d 837 (18 Kan. 1041943);
Roth v State Farm Mut. Auto. Ins. Co. 581 So 2d 981, 16 FLW D 1647 (Fla. 2nd DCA 1991);
Donovan v State Farm Fire & Casualty Co. 574 So 2d 285 (Fla. 2nd D.C.A, 1991);
Mason v Yamms 483 So 2d 832, 11 FLW 541 (Fla. 2nd DCA, 1986);
Aetna Cas. & Sur. Co. v Board of Public Instruction 795 So 2d 4(Fla. 2nd DCA 1967) 7; Fradlev v County of Dade 187 So 2d 48 (Fla. 3rd DCA 1966).



4.    Plaintiff’s written evidence is incomplete to establish liability. Oral testimony and/or Parol Evidence will be required to make complete the showing of any alleged legal liability incurred by defendant. As such their claims are governed by the four-year Statute of Limitations.
Klein v. Frank, 534 F.2d 1104. C.A.5 1976.
ARDC Corp. v. Hogan, 656 So.2d 1371 (Fla. App. 4 Dist. 1995), review denied 666 So.2d 143.
PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13   Fla. L. Weekly Supp. 560a 2006
McGill v Cockrell, 101 So.2d 199 (Fla. 1924) Id at 201.

5.   No tolling applies for actions not founded on a written instrument.
Hospital Constructors Ltd. Ex rel. Lifemark Hospitals of Florida, Inc v Lefor 749 So.2d 546 (Fla 2nd DCA 2000)

6.   “The nature of the claim, and not the specific form of action selected by a plaintiff to assert it, determines the applicable statute of limitations.”
 PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13   Fla. L. Weekly Supp. 560a 2006

The above shows that this debt is governed by the four-year Statute of Limitations and that that period expired on or around July xx, 2005.

8  Flordia Debtor / Post a Question / question about time on: November 30, 2006, 12:33:54 PM
I am about to put a MSJ motion. (waitng for motion to compel to complete)
 I know that I have to ask for the court  date to be set at least 20 days after the filing. If I mail to papers to the other side to I have to alow 25 days (5 extra days for maling?

If  I overnight the papers does the 5 day rules still apply?
9  Flordia Debtor / Post a Question / ltr to the courts on: November 01, 2006, 06:34:49 PM
Im sorry you have had such a disaster with the courts and your case.


 Once you correct the Summary Judgement and all that is left is your counterclaims... could you just offer them a cheap way out and see if they take it?

i.e if your trying for $5000 in your counter claimns maybe you could try to see if they would settle by paying you $2000 or even $1000. They got to be getting tired of it too and they may not not realize how tired you are because you are winning.

Seems like a settlement offer would not hurt at this piont.
10  Flordia Debtor / Post a Question / New motion to dismiss counterclaim from credigy on: October 31, 2006, 10:19:56 AM
Once Again thanks for everyone’s help.

I think I see a clear endgame to this. I need your opinion.

First a little news. The court messed up and "compelled" the wrong discovery request. I went to the court and corrected it and they are sending out an amended order. I told them I would need at least 60 days for the "motion to compel" to complete and have time to file more motions - They just canceled the trail date.

As a bonus  I got my 2nd second discovery request answered pretty quick :=)

A quick evidence review.

They have nothing from the OC.

In their notice of filing they provided  the following:

8 invoices from First Select
A generic bill of sale with no real information.
An undated Account Verification Statement from Credigy. Basically a printout of what is in their computer. The Account Statment does state the "Charge off Date" is 1/xx/2002.  (they filed suit 5/2006)

An affidavit statement stating the affiant had reviewed the books for credigy and determined I owed the money. In my 2nd discovery request (one the the court compelled) I asked for the documents the affiant had reviewed to determine that I owed money.

They replied to that question by sending the exact documents they sent before.

8 invoices from First Select
A generic bill of sale with no real information.
An undated Account Verification Statement from Credigy

I am waiting for the amended motion to compel to run out. I expect they will object to most of the questions but they are going to have to answer some, and it is going to show they do not have any more proof than what has already been presented.


They simply do not have documentation required for a 5 year SoL. I plan to do another MSJ and argue Portfolio vs Fernadez,  Klein v. Frank, ARDC Corp. v. Hogan etc.

I am not going to worry about my counter-claims or anything else but SoL. If I win the Judge will just set the my counter-claims for trail..... and the judge has already said they have to drive to the trial which about 2 1/2 hours one way.

Also if I win using Fernandez I will have also shown that they know they did not have the proof for a 5 Sol. (the attorneys fighting me also fought and lost the Fernandez case) That proves one of my counter claims.  

I have watched the judge and he does things by the law and really likes to see case law so I feel pretty good about this plan.

your thoughts?
11  Flordia Debtor / Post a Question / New motion to dismiss counterclaim from credigy on: October 28, 2006, 09:21:30 AM
I had a great day in motions court. Learned some stuff too.


The lawyers for the JDB forgot to file a motion to appear telephonicly so I objected when they called in. It was fun to watch them try to weasel out by saying it did not matter becasue there is no penalty for not filing and the Judge is required to anyway. The Judge said "well, I wonder why everyone files those funny telephonc motions then?" The Judge asked them to look that up and show it to him. I could hear them typing away on a computer looking it up.  The Judge upheld my motion but said, "All this will do is force them to file a motion and reschedule the hearing in a few days."

I then went ahead and let them have their motion hearing. Damage done. The lawyer made a complete idiot out of himself.  It was pretty obvous the attorny thought the Judge was a stupid country judge. (he does have a thick draw). The Judge played the "stupid country judge" for the rest of the hearing. The 10 minute motion hearing took over an hour.

Credigies lawyers filed a motion to dismiss 2 counterclaims.

The first one was "Credigy bought the debt and is not a debt collector according to the FDCPA." They tried to argue that "that they. the lawyers, were the debt collectors, credigy just buys the debt. The judge did not buy it.
Dismissed

The other disputed counterclaim was "credigy did not give notice of assignment per FS 559.715. "

This got real interesting. They claimed that the stuff they sent in their notice of filing satisfied the requirement, and that it did not matter because the law had no penalty. The judge said "It looks to me like if you  dont give notice of assignment you dont have the right to collect the debt."

The judge then made them look up the rule and read it to them.  

"This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment within 30 days after the assignment. "

The way they read it was classic. They read the whole thing slowly until they got to the word "must". Then they read the rest real fast. It took everything I had to keep from laughing.

The lawyer then said "well it is an affirmative defense not a counter claim"


The Judge said "well lets see, read me the "Florida Consumer Collection Practices Act" and we will see if it violates any thing." He made them read  F.S. 559.72 (Prohibited practices) in its entirty. I tried to hand the Judge a copy of the "Florida Consumer Collection Practices Act" but he stopped me and gave me the "shhhh" sign. He was having way to much fun messing with them.

Then the Judge took 5 minutes to review his list and said "It looks like #9 applies so it is both a countercllaim and an affirmative defense. [#9 Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate or assert the existence of some other legal right when such person knows that the right does not exist]

The Judge then told me very directly "You need to have proper caselaw for 559.715 when you come to trial.

The other side then asked if they could just motion verbaly to appear telephonicly at the trial. The judge said, No, you need to be here in person, this trial is way to complicated to do on those new fangled phones, ..... and I am not convined this person really owes you any money.

The lawyer was so pissed you could hear his voice trembling on the phone.

Thanks to fraudfighter, ruby, hannah for all of your help.
12  Flordia Debtor / Post a Question / enlargment of time on: October 20, 2006, 08:31:20 PM
or can I do something as simple as:

Defendant request that the trail date be moved 30 days to allow time to review Discovery and file additional motions
13  Flordia Debtor / Post a Question / enlargment of time on: October 20, 2006, 08:21:18 PM
Would "just cause" be?

I am requesting a 45 day enlargment of time to insure I can file a Motion for Summary Judgement and still have 20 days to set a motion hearing before trial?
14  Flordia Debtor / Post a Question / enlargment of time on: October 20, 2006, 10:58:32 AM
I am only going to have about 12 days from the time my order to comple discovery has to be completed untill the time of my trial.

I think I need a "motion for an enlargment of time".

does anyone have a working copy of one?
15  Flordia Debtor / Post a Question / New motion to dismiss counterclaim from credigy on: October 19, 2006, 04:33:58 PM
OK, thanks for everyones help. I have submitted an opposistion to their motion to dismiss with a memo including case law and even pages from their website clearly showing that they are debt collector and are bound by the FDCPA -  even if they bought the debt.

I believe at this point they kmow they cant win and are tring to minimize their losses.

I got a reply to my motion to comple discovery today. They resent the exact documents they sent in ther notice of filing:

6 bogus invoices from "First Select", an Account verification statment they made up on their computer and a bill of sale with no information on what they bought.

I asked quite clearly for anything from Associates National Bank (the alleged OC) and anything with my signature and anything showing any proof I owed the debt . They dont have any real proof connecting me to this debt. I have been in front of the judge twice in this case and have figured out that is all the judge real cares about.

I know they dont have it, they know they dont have it, and they  know  I know they dont have it :-) I think it is pretty close to game over for them.

Surprisingly they have not yet motioned to appear telephonicly at the new motions hearings they have set. I plan to object if they do. Last hearing they called in 45 minutes late and they hung up before the hearing was over (the judge still did my motion to compel exparte anyway).

I am not sure if I should do another MSJ or not or just wait untill trail.

any thoughs?
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