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16  Flordia Debtor / Post a Question / New motion to dismiss counterclaim from credigy on: October 18, 2006, 05:02:23 PM
your thoughts?

Quote


OPPOSITION TO PLAINTIFFS' MOTION TO DISMISS COUNTERCLAIM

 The Defendant, appearing pro se, responds to the Plaintiffs’ Motion to Dismiss Counterclaim as follows:

It is well established that debt buyers are bound by the FDCPA. Plaintiff is a debt collector as defined by the FDCPA.
a.   “In our view, a party that purchases delinquent accounts from the party to which the debts were originally owed and attempts to collect them from the consumer debtors fits clearly within that definition [of the FDCPA].” FDCPA Staff Opinion: Brinckerhoff-Arbuckle – dated December 22,1993

b.   “In sum, it is our view that a party that obtains consumer obligations in default for the purpose of collection is a "debt collector" under the FDCPA, even if that party actually purchases the accounts from the original creditor.” Kimber v. Federal Financial Corp., 668 F. Supp. 1480, 1485 (M.D.Ala. 1987). Accord, Holmes, supra, at 1293.

c.   “Credigy’s collections operations and collection strategies are organized and managed to maximize the recovery of accounts in the most cost effective manner, either for external clients or for its own purchased portfolios.” Credigy’s web site - http://www.credigy.net


2.   Florida Statue 559.715 states in part; “the assignee must give the debtor written notice of such assignment within 30 days after the assignment.” Plaintiff alleges to have bought the debt on Dec 30, 2002. This would make the 30-day window from about Dec xx, 2002 to January xx, 2003. Plaintiff’s “Account Verification Statement” was provided on August xxth, 2006. The “multiple monthly billing statements” are all dated before Dec xx, 2002 and, are represented by the Plaintiff as alleged business records of “First Select”, not the Plaintiff. These alleged business records do not satisfy the requirements of Florida Statue 559.715 even if taken at face value.

For the foregoing reasons, Plaintiff’s Motion to Dismiss Counterclaim should be denied. Plaintiffs attempt to state they are “not a debt collector” appears frivolous to the Defendant. Should the court find that Plaintiffs motion is frivolous, the defendant asks that the Plaintiff be found guilty of contempt, and that sanctions, costs, and attorney fees be levied against the Plaintiff as the court deems fit.  
(Case Law supporting pro se attorney fees) Pickholtz v. Rainbow Technologies 284 F.3d 1365; 2002
17  Flordia Debtor / Post a Question / New motion to dismiss counterclaim from credigy on: October 16, 2006, 02:32:40 PM
I just got a new "motion dismiss counterclaim" from credigy. I think I am making them sweat a little bit.

There are two things they are trying to get dismissed:

1. They claim they are not subject "the term of the FDCPA because Plaintiff owns the subject debt, and is not a debt collector as defined by the FDCPA".

I counterclaimed they violated the FDCPA because they knowingly sued on a debt past the statue of limitations. Seems really weak to me. You would think they would would be trying to show the debt is within the statue of limitations.


2. I counterclaimed they did not provide notice of assignment within 30 days per FS 559.715.

They claim they bought this debt in 2002 and they resently provided an "Acco8unt Verification and Disclossure  statment . (the law says they have to provide written notice 30 days from assignment, their disclosoure stantment was provided about 4 years after they got were assigned the debt.

Am I missing somethin or are they shooting themselves in the foot?
18  Flordia Debtor / Post a Question / You can't Motion to Compel Discovery after MSJs are Denied?? on: September 25, 2006, 12:22:57 PM
I was just at motions court. My MSJ was denied but my Motion to compel discovery was approved.

you do have to sent an imformal (but registered) letter asking them to complete discovery before motioning to compel.
19  Flordia Debtor / Post a Question / Re: motions hearing - won 1 lost 1 on: September 20, 2006, 02:21:14 PM
Quote from: "fraudfighter"

You can file another MSJ later.
I assume their MSJ was also denied.
So it's the compel-preclude-MSJ path(Celotex v. Catrett).



Their MSJ was not heard
20  Flordia Debtor / Post a Question / motions hearing - won 1 lost 1 on: September 20, 2006, 02:08:21 PM
Now it makes sense. I just checked my mail and I got a letter  with their response to my addmissions. When I went to court I asked the clerk if they had sent addmissions and they said the file was already at the judge. I had assumed they had not filed a response to admissions but the bastards waited till the last possible second to do so.
21  Flordia Debtor / Post a Question / motions hearing - won 1 lost 1 on: September 20, 2006, 11:26:34 AM
Court Today sucked. I now know I am in front of a bad judge.

I arrived on time and waited a half hour for my case to be called. The Plaintiff had not called in so I had to sit down and wait another 45 minutes.

The Pliantiff finnally called. My motion for summary judgement was denied without the judge even allowing me to talk. My sumary judgement was based on the fact they never answered admissions. They still have not answered admissions and they did not file an opposistion to summary judgement.

That part lasted about 10 seconds. The judge then hung up on the Plaintiff before I could request my motion to compel discovery. He did grant it "exparte" though.
22  Flordia Debtor / Post a Question / Re: couple of questions about my hearing next week. on: September 14, 2006, 07:01:01 PM
Quote from: "fraudfighter"
Quote from: "imnotpaying"
I have a motions hearing next week and I have a couple of questions about protocal and stuff.

I have the following motions pending

Motion to Dismiss (based on SoL)

Motion for Summary Judgment (based on them not answering admissions and by default admidding everything)

Motion to comple discovery.

They have the following motions.

Motion for summary judgement based on the fact the Amanda siged an Affidavit saying see saw the debt and I owe it.

I have an oppossition to summary judgement showing that ussuies of fact still and I have an Affidavit that says I dont owe them money.

Here are my questions.

1. I set the motion date. Do I get to go first?

2. My motion for dismissal has no counterclaims. If my MTD is accepted will my MSJ still be heard or is the case over?

3. Can I ask to do the MSJ first and then do the MTD? Should I?



The motion for dismissal for SoL is really part of your argument for summary judgment. Discovery has already commenced and you've answered the complaint, I assume. Motion for dismissal occurs prior to answering a complaint under rule 1.140(b) or
at trial (bench or jury) after the plaintiff has presented his case in chief.
The latter is so that the defendant can end the case if the plaintiff failed to meet his burden and avoid his presentation of defense evidence.

Fold the MTD arguments in as part of your MSJ arguments.
You can amend within the 20 day window before the SJ hearing on everything but evidence.

Normally, if you are moving to compel discovery, you are also moving for continuance of SJ to complete discovery under subdivision f of the SJ rule 1.510.

So, if you are moving for SJ, that acts as an abandonment of discovery requests. (You're ready to conclusively prove with SJ.) You'll have to decide whether to move for compel and continuance or abandonment and SJ.

Definitely ask the court to proceed first, especially if you are going the compel/continuance route.


My court date is in 6 days. Can I still amemd my MSJ?
23  Flordia Debtor / Post a Question / couple of questions about my hearing next week. on: September 14, 2006, 04:58:16 PM
I have a motions hearing next week and I have a couple of questions about protocal and stuff.

I have the following motions pending

Motion to Dismiss (based on SoL)

Motion for Summary Judgment (based on them not answering admissions and by default admidding everything)

Motion to comple discovery.

They have the following motions.

Motion for summary judgement based on the fact the Amanda siged an Affidavit saying see saw the debt and I owe it.

I have an oppossition to summary judgement showing that ussuies of fact still and I have an Affidavit that says I dont owe them money.

Here are my questions.

1. I set the motion date. Do I get to go first?

2. My motion for dismissal has no counterclaims. If my MTD is accepted will my MSJ still be heard or is the case over?

3. Can I ask to do the MSJ first and then do the MTD? Should I?
24  Flordia Debtor / Post a Question / I had to vent on infinite credit on: September 09, 2006, 03:17:18 PM
http://www.infinitecredit.com/forums/showthread.php?p=12936&posted=1#post12936
25  Flordia Debtor / Post a Question / Your thoughts on my Op to MSJ on: September 07, 2006, 06:41:50 PM
Quote from: "fraudfighter"

Personal Knowledge! Point out facts or evidence with particularity which show a lack thereof.
If they admit that they are an employee of the JDB, then then fail to establish personal knowledge of the alleged facts or business records evidence.





I dont see how to do that. I have no idea what the affiants status is with the JDB. Here is what the Affidavit says:

Caption
----------------------------------
---------------------------------------------------

Before me, the authority, personally appeared < Amanda Sandage > to me well known, who reviewed the records in this matter and upon review of the records has personal knowledge of the facts set forth, and, after being duly sworn, deposes and says that:


1. I am familiar with the books and accounts of the Pliantiff, and I have ascertained that the above-named Defendant(s), is/are justly and duly indebted to the said Plaintiff in the sum of $1500 from the date of default 1/xx/2002. Affiant further states that the foregoing sum is now due and owing to the Plaintiff, and that the sum hereinabove mentioned is due with interest.

2. In addition to the above, affiant furtgher states that the above named Defendant(s) is/are not in the military service of the United States or any of its allied.  

FURTHER AFFIANTS SAYETH NAUGHT

------------------------------------------------------------
(SIGNATURES OF AMANDA AND NOTARY


Thats it. It does not state how or why Amanda would know anything or her quilifacations.
26  Flordia Debtor / Post a Question / Your thoughts on my Op to MSJ on: September 07, 2006, 02:37:11 PM
Quote from: "fraudfighter"
You've got enough to derail their SJ but you don't state with particularity why their witness is not competent and you argue that parol evidence exclusion is required for summary judgment here, when it really is not applicable given the 4 year SoL action. Resort to parol evidence is good because of the 4 year SoL implications. Exclusion of parol evidence would be applicable if the action was based on a written instrument with a 5 year SoL, then parol evidence would have to be excluded for the 5 year SoL to apply.


I remeved the paral evidence caselaw. Does this do a better job of impeaching their affiant?

3.   Plaintiff’s affidavit does not “show affirmatively that the affiant is competent to testify to the matters stated therein”, as required by ” F.S. 1.510 (e). Affiant does not state what her qualifications are and it is simply not possible for the Affiant to know the debt is owed by the Defendant without;
a.   any documentation from the original collector.
b.   any documentation containing the Defendants signature.
c.   any documentation showing the defendant ever made a payment.
d.   any documentation showing a clear chain of ownership of the debt from the origonal creditor.
27  Flordia Debtor / Post a Question / Your thoughts on my Op to MSJ on: September 07, 2006, 12:05:25 PM
OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT


The Defendant, appearing pro se, responds to the Plaintiffs’ Motion for Summary Judgment as follows:

The Motion for Summary Judgment filed by the Plaintiff on or about August xx, 2006 must be summarily denied for the following reasons:

1.   Both the Motion for Summary Judgment and included Affidavit was filed in bad faith. Plaintiff filed this document with full knowledge there are numerous genuine issues of material fact that need to be decided by the court. These include but are not limited to;

2.   Amanda Sandaze claims to have reviewed potential exhibits that show the Defendant is indebted to the Plaintiff. Defendant has requested these potential exhibits in discovery and has asked the court for an order to compel discovery. Defendant has not received any of the requested potential exhibits from Plaintiff, nor has Plaintiff objected to discovery requests. In accordance with Florida law, Defendant has demanded to see the potential exhibits that Amanda Sandaze claims to have seen. F.S. 1.510 (c) states “Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.” (see DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS and, defendant’s MOTION TO COMPEL DISCOVERY.)

3.   Plaintiff’s affidavit does not “show affirmatively that the affiant is competent to testify to the matters stated therein”, as required by ” F.S. 1.510 (e).
a.   “In face of answer denying all allegations of the complaint, affidavit containing statement by officer of plaintiff that the allegations of the complaint were true and that he was personally knowledgeable was insufficient to support motion for summary judgment.” Nour v. All State Pipe Supply Co., 487 So.2d 1204 (Fla. 1st DCA 1986)
b.   “Statements contained in affidavits, to be considered on motion for summary judgment, must be of such evidentiary value that they would be admissible at trial.”
Garwood v. Equitable Life Insurance Society of U.S., 299 So.2d 163 (Fla. 3rd DCA 1974)


4.   Plaintiff’s Affidavit is hearsay and presumes facts not in evidence.


5.   Documents included in Plaintiff’s notice of filing fail to show a prima facia statement of claim, even if the documents are taken at face value. Defendant believes these documents are questionable at best and the relevance and authenticity of these documents is a matter for the court to decide.

6.   Documents included in Plaintiff’s notice of filing and the documents attached to the complaint taken together are 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 as detailed in the DEFENDANT’S MOTION FOR DISMISS WITH MEMORANDUM IN SUPPORT (Hereafter MTD) and Defendant’s Twenty-Second Affirmative Defense [paragraph #41 of the complaint).
a. “Court on motion for summary judgment could not consider evidence which was inadmissible under parol evidence rule.” Evans v. Borkowski, 139 So.2d 472 (Fla. 1st DCA 1962), certiorari denied 146 So.2d 378
 
7.   Defendant served the Plaintiff with a Motion for Summary Judgment based on the fact the Plaintiff, by default, admitted all the Defendants requested admissions, confirmed many of Defendant’s affirmative defenses, and confirmed all of the defendant’s counter claims. (See DEFENDANT’S MOTION FOR SUMMARY JUDGEMENT WITH MEMORANDUM IN SUPPORT)

8.   Plaintiff alleges the defendants’ affirmative defenses are inadequate as a matter of law. Defendant argues, and in the previous paragraphs has shown, that defendant’s affirmative defenses are adequate as a matter of law. Plaintiffs’ alleged evidence provided in their Notice of Filing, Plaintiff’s failure to answer admissions, and Plaintiff’s failure to respond to discovery requests, confirms that the defendants affirmative defenses are well founded and genuine issues of material fact still remain.
a.   “When affirmative defenses are asserted, the plaintiff must either disprove those defenses by evidence or establish their legal insufficiency.” Howdeshell v. First Nat’l Bank of Clearwater, 369 So.2d 432 (Fla. App. 2 Dist. 1979) Accord Proprietors Ins. Co. v. Siegel, 410 So.2d 993 (Fla. App. 3 Dist. 1982)
b.   “Summary judgment is appropriate only where each affirmative defense has been conclusively refuted on the record.” Pandol Bros. v. NCNB Nat’l Bank of Fla., 450 So.2d 592 (Fla. App. 4 Dist. 1984)
c.   “Summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.”
Spears v. Albertson’s Inc., 848 So.2d 1176 (Fla. 1st DCA 2003)
d.   “Generally, the party moving for summary judgment has the burden to prove conclusively the nonexistance of any genuine issue of material fact.” Lawrence v. Pep Boys Manny Moe & Jack, Inc., 842 So.2d 303 (Fla. 5th DCA 2003)
e.   “A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the non-moving party.”
“If the evidence on a motion for summary judgment raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issue, it should be submitted to the jury as a question of fact to be determined by it.” Rule 1.510(c) Kitchen v. Ebonite Recreation Centers, Inc., 856 So.2d 1083 (Fla. 5th DCA 2003)

9.   Defendant filed the following briefs with the court within the allotted time, and well before the Plaintiff filed a Motion for Summary Judgment: Answers, Affirmative defenses, and Counterclaims, Defendant’s MTD, Defendant’s request for Admissions, Defendant’s Motion for Summary Judgment, DEFENDANT’S REQUEST FOR PRODUCTION OF DOCUMENTS, defendant’s MOTION TO COMPEL DISCOVERY.


10.    With the knowledge that the Plaintiff had these briefs in their possession well before the Plaintiff filed their Motion for Summary Judgment, combined with the fact that the Plaintiff has failed to respond to admissions and discovery requests, a reasonable person must conclude that not only is their Motion for Summary Judgment unfounded, their Motion for Summary Judgment and attached affidavit must have been made in bad faith.
a. “Affidavits Made in Bad Faith. If it appears to the satisfaction of the court at any time that any of the affidavits presented pursuant to this rule are presented in bad faith or solely for the purpose of delay, the court shall forthwith order the party employing them to pay to the other party the amount of the reasonable expenses which the filing of the affidavits caused the other party to incur, including reasonable attorneys' fees, and any offending party or attorney may be adjudged guilty of contempt.” F.S. Rule 1.510(g)


For the foregoing reasons, Plaintiff’s Motion for Summary Judgment should be denied, Plaintiff and Plaintiff’s council be should be found guilty of contempt, and sanctions be levied as the court deems fit.  
(Case Law supporting pro se attorney fees) Pickholtz v. Rainbow Technologies 284 F.3d 1365; 2002

Respectfully submitted,
28  Flordia Debtor / Post a Question / FYI-Court date set on: September 02, 2006, 03:35:04 PM
Quote from: "CrzyAmeriCan"
INP? Is that a member or is it short for something?


INP is me :-)

My court date is about 20 days away. I will of course let everyone know how it goes.
29  Flordia Debtor / Post a Question / Federal or State on: August 25, 2006, 12:34:16 PM
Quote from: "VexatiousLitigant"
Negative Citing References (U.S.A.)

   Declined to Extend by
Taylor v. Unifund Corp., 2001 WL 1035717 (N.D.Ill. Sep 01, 2001) (NO. 98 C 5921)

   Distinguished by
Citizen's Nat. Bank of Decatur v. Farmer, 77 Ill.App.3d 56, 395 N.E.2d 1121, 32 Ill.Dec. 740, 27 UCC Rep.Serv. 1001 (Ill.App. 4 Dist. Oct 05, 1979) (NO. 15523)

Fallimento C.Op.M.A. v. Fischer Crane Co., 995 F.2d 789, 20 UCC Rep.Serv.2d 944 (7th Cir.(Ill.) Jun 16, 1993) (NO. 92-3015)


I have no idea what that means
30  Flordia Debtor / Florida Case Law / Affidavits on: August 22, 2006, 11:23:37 AM
s. 185.2(5)
“Where answer raised issue of fact that was not met by plaintiff’s affidavit in support of motion for summary judgment, genuine issue of fact remained regardless of insufficiency of defendant’s counter-affidavit, and summary judgment for plaintiff was erroneous.”
Chereton v. Armstrong Rubber Co., 87 So.2d 579 (Fla. 1956)

“In face of answer denying all allegations of the complaint, affidavit containing statement by officer of plaintiff that the allegations of the complaint were true and that he was personally knowledgeable was insufficient to support motion for summary judgment.”
Nour v. All State Pipe Supply Co., 487 So.2d 1204 (Fla. 1st DCA 1986)

“The trial court should not enter a summary judgment due to technical difficulties in the nonmovant’s affidavit.”
Hammond v. Joyce, 756 So.2d 162 (Fla. 2nd DCA 2000)

“Plaintiff’s affidavit in support of summary judgment, stating “I believe that there is no defense to the cause of action set forth in my complaint,” was not sufficient proof to establish that there was no material issue of fact or that defendants’ affirmative defense was legally insufficient.”
Witts v. Cortman, 620 So.2d 197 (Fla. 2nd DCA 1993)
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