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31  Flordia Debtor / Florida Case Law / Affidavits on: August 22, 2006, 11:22:07 AM
Inadmissible affidavits

“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)

“An affidavit based on information and belief rather than personal knowledge is not admissible into evidence and should not be considered by trial court on a motion for summary judgment.”  Fla. R. Civ. P. 1.510(e).
Thompson v. Citizens National Bank of Leesburg, 433 So.2d 32 (Fla. 5th DCA 1983)

“Affidavit based on information and belief rather than personal knowledge was not admissible into evidence and should not have been considered by trial court in connection with motion for summary judgment.” F.S.A. 90.604, Fla. R. Civ. P. 1.510(e)
Campbell v. Salman, 384 So.2d 1331 (Fla. 3rd DCA 1980)

“Affidavit filed by plaintiff in support of motion for summary judgment in action on open account for goods sold and delivered was insufficient to establish lack of material issue of fact, where it did not identify account, merely stated conclusions, did not set forth such facts as would be admissible in evidence, was not specific as to who allegedly owed the account, did not show that it was made on personal knowledge, and did not deal with issue raised by counterclaim, looked on as a defense.” Fla. R. Civ. P. 1.110(d), 1.510(e).
Silber v. Campus Sweater & Sportwear, 313 So.2d 409 (Fla. 1st DCA 1975)

“Where movants based summary judgment motion on facts contained in unsworn complaint, unsupported by affidavit or other competent evidence, nonmovant’s objection to summary judgment was well taken.”
Schrank v. Pearlman, 683 So.2d 559 (Fla. 3rd DCA 1966)
32  Flordia Debtor / Post a Question / Please Review my Arguments Hearing for Rehearing on: August 22, 2006, 06:50:23 AM
Quote from: "gt95stang302"
I was just reviewing the Portfolio vs Fernandes case, in the beginning of the document...

"the trial court dismissed the case based on its finding that the credit card account was an open account subject to the four year statue of limitations."

And in the notes:

"Apparently the trial court summarily disposed of the statement of claim on beign apprised of the last payment date."

"No statement of account was attached to the statement of claim"

"The cited cases are distinguishable from those where the written instrument obligated the debot ro purchase defined goods or services and pay for them at a contemporaneously determined or determinable rate."

"Example:  Smith agrees in writing with Jones if Jones loans him money Smith will repay it with 10% interest.  If Jones later sues Smith claiming Smith borrowed money and did not repay it, whether Smith is liable to Jones is dependant on whether and how much he borrowed.  Suit to recover the money loaned is not founded on a written instrument"

Basically, with this combined case law, there is a 4 year SOL on CC?

I think what the Fernandes court said was:
Store credit cards are always 4 years even if founded on a writen instrument, and you did not have enough evendence for a 5 year SoL anyway. It also does a good job of explaining the requirements for an action to be founded on a written instrument.

fraudfighter did a briliant review of why it is nearly impossible for a credit card action to founded on a written insterment here:

The Fernandes Case: a high threshold to FL written instrument-hood
33  Flordia Debtor / Florida Case Law / Composite documents: on: August 21, 2006, 03:52:58 PM
“Several writings, such as letters or telegrams, may constitute a valid and binding written contract when they evidence a complete meeting of the minds of the parties and an agreement upon the terms and conditions of the contract.”
Edgewater Beach Corp. v. Sugarman, 15 So.2d 260 (Fla. 1943)

“A complete contract may be gathered from such writings and be so connected with each other as to constitute one paper.”
McCay v. Seaver, 124 So. 44 (Fla. 1929)
Webster Lumber Co. v. Lincoln, 115 So. 498 (Fla. 1927)

“Where several different writings constitute a contract, they will be construed together.” Maas Bros., inc. v. Dickinson, 195 So.2d 193 (Fla. 1967)
34  Flordia Debtor / Post a Question / Re: Please Review my Arguments Hearing for Rehearing on: August 21, 2006, 12:14:45 PM
Hi gt95stang302 - I am not a lawyer, not even close. Please double check everything yourself.

Quote from: "gt95stang302"
I have a Hearing on the Plantiffs Motion for a Rehearing of the on my motion to dismiss.  Here are my arguements against the rehearing:



A rehearing should be denied based upon the plaintiffs violation of the Florida Rules of Civil Procedure.  The Plaintiff received notice on or about 6/1/2006 of the hearing for my motion for Dismissal with Prejudice to occur on 7/18/2006.  The Plaintiff had approximately 48 days of advanced notice of the hearing.  According to the Florida Rules of Civil Procedure, Rule 1.090(d), Motions should “be served a reasonable time before the time specified for the hearing”.  I was served with the motion requesting telephonic attendance on 7/18/2006, and according to the postmark and certificate of service dated 7/12/2006, this only left three business days for the motion to arrive, which is hardly a reasonable amount of time before the hearing.

The Plaintiff states that I do not have jusiticible grounds to move for dismissal according to Florida Rule of Civil Procedure 1.420(b).  However, I disagree.  Rule 1.420(b) states that I may move for dismissal because the Plaintiff has failed to comply with the rules of civil procedure.

Rule 1.350(b) states that when a party requests production of documents, a written response will be served within 30 days.  It has now been 92 days since this document was serviced to the Plaintiff, and 89 since it was delivered, and I have received no response to my request for documents.

You need to do a motion to compel I think. Then a motion to strike or a motion to preclude if they do not respond. If they never objected you can do a exparte motion for an order to compel. You can find one here:


In addition to the violations of civil procedure, a rehearing should also be denied due to insufficient evidence presented.  A rehearing on this matter is unnecessary according to rule 1.530(e).  The only evidence in this matter is a copy of a “Visa or Mastercard Cardmember Agreement”.  There are no statements regarding any contract between myself or the Plantiff.  The Plantiff has not provided any proof that there is any type of debt that exists between the Plantiff and myself.  Unless the attorney present is an employee of the Plantiff, there is no possible way he could have personal knowledge of any such accounts.  Upon review of the complaint, it is stated that the principal amount of the alleged debt is stated to be $6516.87, and

I have never held any credit accounts with any debtor with a credit limit greater than $2500,

Not a good argument to me. They could just claim interest and lates fees must have ran it past the limit.

 so therefore, this debt cannot be mine unless the principal amount is grossly misstated.  The Plaintiff failed to show a cause of action for this suit, and should be denied according to rule 1.130(a), as “Instruments Attached.  All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.”  This case should also be dismissed according to 1.140(b)(6), “A complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint.”  
See Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (Fla. 4th DCA 1992)
See also Contractors Unlimited, Inc. v. Nortrax Equipment Co. Southeast, 833 So.2d 286 (Fla. 5th DCA 2002)

A credit card is classified as an “open account”.  
 definition from Hawkins v, Barnes, “An open account is a debt created by a series of credit transactions.”  To further support this, “An open account is an unsettled claim or demand by one person against another, arising from items of labor and goods sold and delivered, with the expectation of further transaction subject to future settlements and adjustment.” From Central Insurance Underwriters. Inc. v. National Insurance Finance Co.  “This type of account must be based on a transaction creating a debtor and creditor relationship between the parties that usually, but not necessarily, is represented by records kept by one of both of them.” Creditor’s and Debtor’s Practice in Florida.  “One party cannot unilaterally create a liability on an open account when no contract (either oral or written) exists out of which a debtor-creditor relationship could arise.” from Cherokee Oil Co. v. Union Oil Co. of California.  And according to H & H Design Builders, Inc v. Travelers’ Indemnity Co., “An itemized copy of the account must be attached to the complaint to state a valid claim; a statement of a lump sum balance dues is insufficient.”  

Very interesting

Am I missing anything that would really pack a punch?

You may find some helpful info by reviewing the following threads at debtorboards.com

35  Flordia Debtor / Internet Resources / Bankruptcy Law on: August 19, 2006, 08:22:52 AM
Florida Bankruptcy Law

36  Flordia Debtor / Post a Question / MTD V MSJ-based on SoL on: August 19, 2006, 07:41:16 AM
This is how I adressed the 4-5 SoL in my MTD.

. Plaintiff’s attached 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.

a.  "...action is not founded on written instrument where evidence of liability consists partially of written cardholder account and security agreement but writing is incomplete to establish liability -- Accordingly, contract is regarded as oral for statute of limitations purposes."  PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13   Fla. L. Weekly Supp. 560a 2006

b. “Where resort to oral testimony was compelled to make complete the showing of any legal liability incurred by defendant arising out of letter concerning sale of plaintiff's stock, timeliness of plaintiff's action to recover for breach of contract to sell the shares and remit proceeds to him was governed by Florida's three-year limitation period governing actions on oral contracts, rather than the five-year period governing actions on written contracts."
Klein v. Frank, 534 F.2d 1104. C.A.5 1976.

c.  “Contract action is not founded upon written instrument, for purpose of statute of limitations, where written instrument is link in chain of evidence to prove cause of action, but does not on its face establish all elements of plaintiff’s claim.” ARDC Corp. v. Hogan, 656 So.2d 1371 (Fla. App. 4 Dist. 1995), review denied 666 So.2d 143.

d. “Where an agreement as set forth in writing is so indefinite as to necessitate resort to parol evidence to make it complete in applying the statue of limitation it must be treated as an oral contract.” McGill v Cockrell, 101 So.2d 199 (Fla. 1924) Id at 201.
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