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1  Flordia Debtor / Post a Question / Re: Question - SOL on Cable Bill? (FL) on: May 11, 2011, 04:54:54 PM
An unpaid cable bill falls under civil contract law.
SoL is determined by the causes of action alleged by the plaintiff and the documents the plaintiff enters into the record of the court.
Open Accouint CoA, Account Stated CoA are 4 year SoLs.
Breach of Contract can be 5 years if the documents on their face show the liability of the defendant and the amount of liability without resort to additional (parol or spoken) testimony. The documents must comply with the Florida Evidence Code, Chapter 90, for best evidence and business record exception to the hearsay rule, and also all affidavits must come from someone with personal knowledge, not from a third party debt collector.
2  Flordia Debtor / Post a Question / Re: SOL question on: February 13, 2009, 08:25:49 PM
Hello all. I'm new here and I've found this site to be quite helpful! I have a question about the FL borrowing statute. If a debt happened in another state and the cause of action arose there but is tolled in that particular state, how does that effect SOL in FL? Does the state law honor the tolling of the other state?


The FL borrowing statute allows FL to borrow a shorter SoL from a foreign state.
3  Flordia Debtor / Post a Question / Re: How bankruptcy Trustee verifies debtor's property/assets? on: February 13, 2009, 08:17:20 PM
How does a FL bankruptcy Trustee verify the accuracy of debtor's personal property
and assets listed in debtor's bankruptcy filing?

If you plan to file Chapter 7 then ask your BK attorney.

Personal property is not that big of an issue in Chapter 13.

The trustee could search your premises if they so choose, but I don't think they ever do that as they simply don't have the time to devote to small fry BK cases.

Typically, a creditor might raise the issue if they have knowledge of an asset which you don't declare in your filing.
4  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: January 04, 2009, 09:38:20 PM
Thank you. I will be checking those as time permits. The Feb hearing is on the motion to dismiss. I would assume they would have to produce the documents by then to be able to keep the case. I have filed my answer and defenses and counter claims and the request for production of documents. They shouldn't need any more time to produce the required documentation. I'm counting on the dismissal if they don't produce the documentation by the hearing date. I don't see why they'd be allowed to have extra time.

With regards with caselaw, I see caselaw here on the attachment rule but I don't see any on dismissal based on lack of service.

Also, when I present this info in court, do I have to show it in exhibits and send them a copy? Do I have to mail the attorney a copy of the caselaw I plan to introduce? Thanks for all your help.

Memoranda of law are not evidence. They are merely legal arguments using case law authorities.
You should serve by mail on the opposing party any court paper you file with the court.
There is an rule of thumb 5 day in advance rule with court papers served by mail.
Have you been to the law library yet?
Look for Padavano's book: 'Florida Civil Practice'.
Padavano is pro-attachment rule dismissal and I believe has those case law authorities in his book.
 
5  Flordia Debtor / Post a Question / Re: Medical Collection Question on: December 23, 2008, 11:06:56 AM
You guys have helped tremendously with my case (posted here and still pending --> http://floridadebtor.com/debtforum/index.php/topic,406.30.html). I thank you all for that.

Now, I have a question about medical debt.

I have a friend who lives in Dade county. In early 2003, he had to have surgery in a local hospital in Dade. He didn't have medical insurance at the time. The total charge was $15,000. He was contacted for payment a few months after surgery by a local medical collection firm. He didn't have money to pay. He let this go and he has never made a single payment to this debt nor has he ever been contacted by anyone about this debt again after the initial contact in late 2003.

Is there an SOL that applies to medical as well? Can he be sued for this lawsuit even after all these years have gone by?

Thank you in advance.

Unless the FL legislature wrote a special limitations law for medical debt, which I don't think that they did, it falls under the limitations law for contracts, obligations and liabilities, which is 4 years if not founded on evidence sufficient in law to constitute a written instrument, or 5 years if founded on evidence sufficient in law to constitute a written instrument.

The written instrument does not have to be signed by the party to be charged to be a written instrument. It just has to be definite enough so that it clearly shows that an agreement was made and an obligation was created and it must be contemporaneous with the time of the agreement. The evidence of agreement and obligation must come from the writing and not from outside the writing. The writing can be a composite of several interlinked writings.
The writing must either show the amount of the obligation or the specific means of calculation such that an exact amount can be calculated. In other words, not just a formula, but formula and the data to calculate the amount of the obligation.

All of this is a compendium of all the FL written instrument case law that I have read and I think I have read them all, starting with McGill v. Cockrell, 1924.
6  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: December 23, 2008, 10:47:08 AM
So I just got back from court. I submitted all the paperwork: answer, affirmative defenses and counterclaims along with a memorandum in support explaining what occurred the day of the trial, the lack of service, etc. I also filed the request for production of documents. I sent copies of all these documents to the Plaintiff's attorney via certified mail, return receipt requested.

What next? Should I wait a few days and send their attorney a settlement letter - I dismiss with prejudice, they dismiss with prejudice? Is it a good idea to do this now or let them make the next move?

Now that the hearing for the MTD has been scheduled, I need to focus on caselaw for dismissal based on lack of personal service, and on the attachment rule since those were the topics I addressed in the MTD. I need caselaw backing those up. Any help you can provide would be great.

I thank you for all the help you have given me. If you can think of anything else I can do, please let me know.

Also, what happens at the hearing to discuss the MTD? What if the MTD is granted, what if it's denied? Do I have to appear for this hearing with any exhibits? Do I have to mail copies of those exhibits to the Plaintiff's attorney? I imagine the exhibits would be case law backing up my stance.


When you receive the return receipt on the first mailing, so that you have proof of receipt, then you can send them your settlement offer of mutual dismissal to leave them an out if they want it should they realize or decide they are not going to get the documents to prove their case.
As for case law, there is a lot posted on this website. But, you can find a law library in your area and start visiting it.
The Florida Jurisprudence 2d series is the best place to begin research of what Florida law is.
It goes through key legal topics and shows the applicable case law.
It's a 30-to-40 or so volume of burgundy colored books.
Another good series book is the Florida Statutes Annotated.
It breaks down Florida statutory law and shows the applicable case law for each statute.
This is another 30-to-40 volume series of dark red or brown books.
Then there are the experts books like those from Berman and from Padavano.
These cover in detail Florida procedural rules for litigation and appeals and go into great depth on the applicable case law.
Berman's book is Florida Civil Procedure. Padavano's book is Florida Civil Practice.
There are probably other 'experts' book in the law library as well.
The Southern Reporter has the individual appellate case rulings that are the applicable case law referred to in these law compendiums.

Is this February hearing just on the preliminary issue of dismissal or is it the actual trial of the case?


 
7  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: December 17, 2008, 03:54:26 AM
The judge may say that you would have not been harmed if you had not shown up, but I bet the judge being so busy as she claimed would have granted the default to the PLTF if you had not shown up.
8  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: December 17, 2008, 03:48:48 AM
I would just file and serve your possible counterclaim, your affirmative defenses and your objection to lack of personal service so that a record exists in the case and I would also document the judge not responding to your requests in court due to her excessive workload statement. You will have your defenses documented which you can refer to at the pending trial. Also, make your request for production of documents by the PLTF 10 days prior to trial if served by mail. The PLTF may get agravated by the nuisance of your reasonable request and possible counterclaim and decide you're not worth their trouble.
9  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: December 16, 2008, 07:05:25 AM
So I went to the pretrial this morning. I argued the insufficient service of process since the Plaintiff never served me. The judge disagreed and said that the fact I was there in person means that I was aware of the lawsuit and that was it. She didn't want to hear any more about it even though I brought up some case law. I mentioned the attachment rule and that seemed to have interested her. She said that if my Motion to Dismiss addresses that she would take it. I told her indeed it does. I handed the Plaintiff's attorney a copy of the motion to dismiss as I did the judge. The judge did agree with me when I said that a credit cardholder agreement was not enough to establish liability. The Plaintiff's attorney also agreed and said she would speak to their client about getting valid proof.  The judge said she would hear our case and gave us a court date in early Feb.

Is there anything I can do in the meantime?



Also, why did the judge deny the insufficient service of process I brought up? I mean, she herself told me I had not been served. The RCP clearly states that the Defendant needs to be served. I wasn't. She didn't want to hear more about it.

I thank all of you who have offered their assistance.



Did you argue that you are supposed to be served so that you can timely file your counterclaim?
Did you file a counterclaim?
Early Feb may give them less than 60 days to produce documents.
Who was the client this lawyer was referring to?
Also, you should request they produce documents before trial so that you are given a reasonable time to examine and file court papers in response before trial. The typical reasonable time is 5 days and 5 days are added if they mail them to you. So you should have requested they serve you with documents at least 10 days prior to trial if served by mail. That would cut down on their time.

There is plenty of case law about service and personal jurisdiction. Check the FL Case Law Section.
I don't recall how much I put there.
The judge is right to point out that you are aware of the case by making the personal appearance and thus personal jurisdiction is met, but there is the 5 day prior rule in small claims about filing counterclaims that the court could deny counterclaims if not filed timely under the rules.
The 5 day rule is the reasonable notice requirement to the PLTF on the counterclaims prior to the court date.
That case law about proper personal service and also about fraud upon the court could be used as the basis for an FDCPA violation.
If you had not been on the ball, that PLTF could have gotten a default judgment on you.
That's fraud upon the court since you would not have been given notice of the proceedings.
I would argue that attempted fraud upon the court is violative of the FDCPA and possibly the FCCPA (F.S. 559).
10  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: December 12, 2008, 09:19:43 AM
Your answer is overdone.
Just deny all allegations for lack of knowledge and claim the attachment rule is violated since no alleged agreement is attached. An anonymous agreement had no probative value whatsoever and does not satisfy the attachment rule.
You can move for dismissal for violation of the attachment rule but the judge is not likely to grant. But you can argue the cases in favor of attachment rule dismissal.
(There are cases against attachment rule dismissal also. Some jurisdictions are pro-dismissal and others are anti-dismissal for the attachment rule (1.130a). It depends which District Court jurisdiction you're in.)
The judge will give the PLTF the burden to come up with documents and the 60 days.
You can argue for less time.
You can assert affirmative defenses such as statute of limitations but don't try to prove it.
That would contradict your lack of knowledge.
You csn assert lack of privity since the PLTF admits to being a third party and has produced no evidence of proper assignment and privity.
The PLTF has the burden to prove SoL has not expired and proper chain of assignment when he supposedly will produce the evidence within 60 days.
If and when the PLTF produces his documents is when you can file court papers arguing matters of law about SoL and document types that may not be written instruments.
 
11  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: December 12, 2008, 08:56:31 AM
Thank you. Seems like I'm going to have time to fix the answer before I submit it. I'm still waiting to be served. No affidavit of service has been filed with the case yet.

So basically only raise defenses that apply? What I wanted to do here was state that a copy of the cardholder agreement is not enough to establish liability of anything. The document is anonymous and it has no copyright date. No copy of cashed checks and/or credit card statements have been included in the complaint.

I don't know what credit card this is and I certainly have not made any payments on it. I have not paid anything for the past 3+ years. I don't really know what the date of last payment is for this alleged account.

Can you give me some brief tips on how to re-word the answer so that I attack their lack of proof in the complaint? I mean, how can I sue you with a photocopied paper of a card holder agreement and write the name of the bank by hand? Any help would be appreciated. Thanks.

As for their non-existant evidence, 90% of their cases are defaults, so they never have to produce evidence most of the time.
If you force them to produce evidence to win and since this is small claims, they may decide to dismiss rather than pay for the documents to win.
JDBs typically attach junk documents to the complaint since most of their cases are uncontested defaults.
If you contest, they will have to produce credible probative evidence otherwise you can move to strike all their garbage documents that violate the FL evidence code, which is chapter 90 of the Florida Statutes.
12  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: December 12, 2008, 08:50:17 AM
The complaint says small claims which means amount in controversy under $5K.
Amount in Controversy is the other factor in subject matter jurisdiction, as the small claims court has subject matter jurisdiction for principle debt amounts $5K or less.
If the principle amount of the claim excluding post charge-off interest is $5K or less on the complaint, then SMJ for amount in controversy exists.
Start reading the FL Small Claims civil procedure rules.
Basically, in small claims, the DEFT denies the PLTFs complaint at pre-trial, then the PLTF is given 60 days to produce the evidence to meet its burden of proof.
The PLTF cannot do discovery on the DEFT in small claims unless the DEFT initiates discovery on the PLTF.
It boils down to whether the JDB PLTF can get authentic original creditor documents within 60 days.
They must be authentic, and supported by an affidavit from an original creditor records custodian, otherwise the DEFT objects on FL Evidence Code grounds of lack of personal knowledge, lack of authenticity, lack of best evidence, and violative of the Business Records exception to the Hearsay Rule and moves to strike.
Also in FL small claims, the DEFT must serve counterclaims on the PLTF 5 days prior to pre-trial.
In order for that to happen, the DEFT must be properly served personally by the PLTF.
If you weren't served, show up at pre-trial and move to quash for failure of personal service and continuance until properly served so that you can file counterclaims.
Also, the fact that they put a pretrial of your case on the docket and failed to serve you, may constitute grounds to move for an FDCPA counterclaim.
Might as well move for a counterclaim to offset a possible claim against you.

13  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: December 11, 2008, 10:57:21 AM
You have 95.11(2)(b) in your answer. That's the 5 year written instrument SoL.
It should only be there if more that 5 years has passed since the last payment.
Partial payments apply to the SoL calculation on the written instrument SoL only.
Complaints aren't dismissed on SoL unless the evidence of SoL expiration comes from the Complaint. The PLTF has the opportunity to disprove SoL expiration at trial.
Seems like you are fighting the 4 year/5 year SoL battle with this PLTF.
If the PLTF can produce several authentic original creditor billing statements, the court may deem them sufficient in law to constitute a written instrument and apply the 5 year SoL and rule for the PLTF.
14  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: December 11, 2008, 10:46:41 AM
Here is my answer in response to the claim I stated earlier in this post. Can you guys give me some feedback on my answer? Negative comments about my answer would be helpful. This is only a draft and I would like to make corrections, if needed. Just to give you some info regarding the documents the Plaintiff included: Plaintiff included the complaint (posted earlier) and a low quality photocopy of the credit card holder agreement on which the bank's name (original creditor maybe?) was written down by hand prior to making the copy. This document has no copyright date. Plaintiff included no further paperwork. That being stated, I have pasted the draft on my answer below (mostly based on a draft provided by Grossman - thank you). Please give me feedback. Thank you all

___________________________________________________________________________________

IN THE COUNTY COURT
IN AND FOR DUCKHEAD COUNTY FLORIDA


UNIFUND CCR PARTNERS,                               
         
              Plaintiff,

vs.                                                                                      CASE NUMBER:  12345678910 

MADSCIENTIST,
           
            Defendant.


Defendant, MADSCIENTIST, appearing pro se, for its reply to the Complaint of UNIFUND CCR PARTNERS, states as follows: All answers are presented in the order they correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

ANSWERS-AFFIRMARTIVE DEFFENSE

ANSWERS

1.Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained therein, and based on that denies generally and specifically each and every allegation contained therein.

2.Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein and based on that generally and specifically denies the allegations contained therein. Defendant demands strict proof thereof. Plaintiff has attached no evidence to support claim. The document the Plaintiff attached, the so-called “Agreement”, is incomplete to establish liability as it contains no evidentiary connection to Defendant.

3.Plaintiff's claims are unproven assumptions which Defendant denies and demands strict Proof thereof. Plaintiff's attached “Agreement” is incomplete and it contains no evidentiary connection to Defendant.

4.Plaintiff's claims are unproven assumptions which Defendant denies and demands strict Proof thereof.

5.Plaintiff's claims are unproven assumptions which Defendant denies and demands strict Proof thereof. The document the Plaintiff attached, the so-called “Agreement”, is incomplete to establish liability as it contains no evidentiary connection to Defendant.

6.Plaintiff's claims are unproven assumptions which Defendant denies and demands strict Proof thereof. The document the Plaintiff attached, the so-called “Agreement”, is incomplete to establish liability as it contains no evidentiary connection to Defendant.

7.Plaintiff's claims are unproven assumptions which Defendant denies and demands strict Proof thereof. Plaintiff has attached no evidence to support its claim.

AFFIRMATIVE DEFFENSES



1.As to all counts, Plaintiff has FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
       
      A. Plaintiff's attached written evidence fails to establish ownership of the alleged debt.
                       
                        B. Plaintiff's attached written evidence fails to establish alleged ownership or use of the
                             card.
                     
            C. This action is not founded on a written instrument where evidence of liability consists 
                 of a written and/or signed card holder account and security agreement.     
   
            D. The purported “Agreement” alleged in the complaint is an anonymous document
                  which does not provide probative evidence as to Defendant's privity to any 
                  agreement therefore fails the attachment requirements of rule 1.140(b)(6) and rule 1.130(a).
                             

                         E.  Credit Card Agreements are not written instruments under Florida Law. It is
                               impossible to establish any connection Defendant has to this alleged debt or any
                               liability of Defendant to this alleged debt from the attached “Agreement”. The   
                               attached “Agreement” is a generic, undated document, lacking an account
                               number or Defendant's signature, on which a bank's name has been written by hand.
                               No proof exists that it applies to any agreement with any party.

                          F. Plaintiff's attached exhibit is insufficient to establish liability.

                           I. Where a complaint is based on a written instrument, the complaint “does not
                               state a course of action until the instrument or an adequate portion thereof is         
                               attached to or incorporated in the complaint.” Safeco Ins Co. v Ware, 401,
                               So2d 1129, 1130 (Fla 4th DCA 1981).

2. As to all counts, all of Plaintiff's claims for the alleged debt are TIME BARRED. 

           A. Plaintiff's attached written evidence fails to establish use of the card, date of last
                                  payment on alleged account, or last charge for goods or services on alleged
                                  account.

                             B. Plaintiff's attached written evidence fails to establish any alleged legal liability of 
                                  Defendant.

                 C. Oral testimony and/or Payroll Evidence will be required to make complete the   
                      showing of any alleged legal liability incurred by Defendant.
                   
                  D. As such, Plaintiff's claims are not founded on a written instrument and
                       are governed by Florida's four-year Statute of Limitations on open accounts.
             
                              E. All of Plaintiff's claims for the alleged debt are TIME BARRED pursuant to F. S.
                                  95.11(2)(b) and F. S. 95.11(3)(k).

                                         I. Contract action is not founded upon a 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 elements of
                                 plaintiff's claim. ARDC Corp. v. Hogan, 656 So. 2Nd 1371 (Fla. App. 4 Dist.
                                1995), review denied 666 So. 2Nd 143.
                                     
                                        II. “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 
                                 statute of limitations it must be treated as an oral contract.” McGill v
                                 Cockrell, 101 So. 2D 199 (Fla. 1924) Id at 201.

3. Defendant claims Lack of Privity as Defendant has never entered into any contractual or
    debtor/creditor arrangements with Plaintiff.

            4. Plaintiff's complaint fails to allege a valid assignment and there are no averments as to the
    nature of the purported assignment or evidence of valuable consideration.
           
5. Plaintiff's complaint fails to allege whether or not the purported assignment was partial or
    complete and there is no evidence that the purported assignment was bona fide; Plaintiff's   
    complaint fails to allege that the Assignor even has knowledge of this action or that the   
    Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this
    information and it cannot be assumed without creating an unfair prejudice against the
    Defendant.
 
6. The Plaintiff is not an Assignee for the purported agreement and no evidence appears on the
    record to support any related assumptions.

7. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor   
    accepted payment from a third party for the purported debt, or a portion of the purported
    debt, or that the original creditor received other compensation in the form of monies or
    credits.

Respectfully submitted,

MADSCIENTIST
UTOPIA PLANITIA
MARS 87984525 SIGMA B

I certify that I have also sent a copy of this complaint answer via certified mail  to the plaintiff's attorney.

_______________________________________________________________________________________

I placed Florida Case Law under the Florida Case Law section so folks can see what the common law is.
If you use the Attachment Rule (1.130a) defense, be sure to read the Attachment Rule section in Florida Case Law.
The Court will not usually dismiss a complaint due to the Attachment Rule.
Also, evidence attached is not the determinining factor in a complaint failing to state a CoA.
To assess a complaint, all allegations are assumed true (evidence attached is irrelevent) and the determination is made whether the complaint alleges all the necessary elements of a CoA, which in most cases it does. There are some exceptions, such as Open Account, where the FL common law says that an itemized accounting must be attached to state an Open Account claim.
The Defenses Rule (1.140) lays out the preliminary defense motions that can dismiss a complaint.
If at least 4 years have accrued since the commencement of the alleged delinquency, assert the SoL Aff Def.
I don't have time to read your answer.
Basically, you're denying the allegations (due to claimed lack of knowledge) and raising defenses in the answer.
If your defenses are not sufficient in law to be effective, the PLTF can move to strike.
The PLTF must resolve all Aff Defs in its favor to obtain summary judgment.
The burden of proof is on the PLTF to move forward with the evidence to try to obtain summary judgment.






15  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: November 23, 2008, 06:07:50 AM
Also, if there is evidence in the case that you became aware of the lawsuit while it was occuring, then the judgment is not void since you have notice in the case.
The Default Judgment would only be voidable. 
You could vacate it with a non-collateral motion to vacate, which sends the case back to where it was prior to the default judgment: awaiting the answer of the defendant to the complaint.
You're back in the case and the case is on.
Don't appear in the case until you are certain you want to do that.
That does not mean not obtaining court filings.
Just don't let the clerk know your identity.
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