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31  Flordia Debtor / Post a Question / Re: Notice of Deposition for a Judgement on: December 18, 2007, 11:39:20 AM
Quote from: "tdx27"
I had a car repossessed a few years ago. Recently, a judge awarded the collection agency for the car maker a judgement against me for the amount owed.

I filed a head of household and a notice of homestead to the court and I told the court that my bank account was used for my household as I am taking care of my disabled wife.

Now, I recieved a notice to appear at a court reporter for them to take a deposition. They want me to bring 3 months bank statements and cancelled checks, stocks or bond ownership, most recent W-2, most recent pay stub, copy of motor vehicle registration and title and a copy of the deed to my house.

Can they ask for this information? Since I filed the notice of homestead, etc. they can not garnish my wages or my bank account per Florida Statutes.

I have every intention of telling them I can not make it on the date they are asking me to show up. They did not coordinate this date with me and I can not attend. The way I see it, they need to coordinate the date with me.

Also, why to collection agencies and attorney's feel that they can just mail something to you and say that you recieved it? The postal service is only running at 80 to 90 percent accurate, yet they don't have to verify you recieved what they sent. That is just a pet pieve I have encountered during the reposession. If they say they mailed it, that is as good as gold even if you never recieved it. But, it doesn't work the other way around.

Thanks in advance for any advice!


They can file a writ of garnishment regardless of whether you have exemptions to garnishment. The law requires you to file an exeption claim after receipt of the notice of the garnishment. Then there is a hearing on your exemption if they file a timely objection to your exemption claim. The judge decides whether you have a valid exemption claim. You have the burden of proof to prove your claim of exemption at the hearing.

The law assumes that an affidavit of service by mail is sufficient to prove service.


They want to get you under oath and depose you on your assets.
Your assets become important since you apparently have the head of family exemption to garnishment and the homestead property exemption to judgment lien attachment.

You can object to any inquiry on bank records or homestead property since you have state exemptions of head of family and homestead.

Cars, stocks, etc. are unprotected assets that they can execute on.
32  Flordia Debtor / Post a Question / Interrogatorie Question on: December 04, 2007, 01:20:33 PM
Quote from: "grossman"
You can't be held in contempt of court on a debt in Florida, so not answering that interrogatory does not have any consequences.

Fraud, are you sure about this?

I have seen cases (online, through clerk of courts) in Florida where the Plaintiff has dragged the Defendant back to court to force an answer to a post judgment interrogatory and the Judge has ruled in favor of the Plaintiff AND also given court costs to the Plaintiff ($200 - 300).

Does not answering only apply if you file bankruptcy? What can the judge do if you don't answer?


That's not a fine due to contempt of court.

Explain how they were 'forced'.

Most of the time, the plaintiff just waits, accrues interest, and pounces with a writ of garnishment when the defendant is vulnerable to garnishment, unless the defendant has seizable assets, which they usually don't with most of the poeple who get sued on credit card debt.
33  Flordia Debtor / Post a Question / Interrogatorie Question on: November 28, 2007, 01:46:14 AM
No. If you are filing bankruptcy, you have to disclose your assets which is the purpose of the Interrogatories in Aid of Execution of a state case.

You can't be held in contempt of court on a debt in Florida, so not answering that interrogatory does not have any consequences. These debt collectors have the means to search for your assets on their own.
34  Flordia Debtor / Post a Question / Pretrial conference - Need some guidance!!! on: September 15, 2007, 01:13:14 AM
Quote from: "tiaguis"
Credit Report shows last payment as jun 2005.


So.. should I just wait to the pretrial?
Or should I submit an ANSWER?

I initially thought on offering a settlement, but I don't know if that is the route i should take.  money is tight and I do have more accounts to fix... so I need a good plan.


Last Payment is not relevant on the 4 year SoL.
It's the DOFD date: date of first delinquency.
DOFD can be significantly earlier than last payment.

You can ask them what they had in mind regarding a settlement, but they will likely ask for alot.

Under the FL small claims rules, it is an expedited process, so the DEFT is supposed to have defenses and counterclaims ready 5 days before the pre-trial conference.
35  Flordia Debtor / Post a Question / Pretrial conference - Need some guidance!!! on: September 14, 2007, 12:05:32 PM
Quote from: "tiaguis"
Thank you all for your comments / replys.  I feel lower levels of stress seeing that I have your support

Here is what the statement of claim says:
It says
Erin C...
vs
me and my wife

Statement of Claim Florida Br ID #...

Comes now, the plaintiff, E C M, LLC, assinee of Providian N B, a corporation organized and existing under the laws of the u. s. a., which is engaged in interstate commerce.   The plaintiff is the owner of the defaulted debt in issue, which is the subject matter of this action, and sues the defendant(s) name and name, which is within the jurisdiction of this court, and states the following:

1.  That the defendant(s) requested the issuance of credit from the plaintiff's predecessor in interest (the assignor named above) on or about 06/18/2002.  The credit account was under the account number ####, and that the defendant(s) defaulted by virtue of non payment.  The defualt date as a result of non payment was on or about 4/24/2007.  
2. The defaulted debt that is the damages due under the credit agreement for non payment (that is the chose in action with the predecessor in interest (assignor) and that there is still due the sum of $$$$3K, from the defendant(s) which has not been paid in full to date although due demand has been made.
3. The assignor conferred upon the defendant a monetary benefit, which as in fact accepted by the defendant, which would lead a reasonable man to believe that the defendant(s) not only accepted the benefits conferred upon same, but that under the circumstances the Defendant(s) assented to re-pay the Plaintiff's predecessor in interest and pursuant to equitable principles of unjust enrichment the Plaintiff is entitled to recovery sice the defaulted debt was assigned to name.

WHEREFORE, the plaintiff demands judment in the amount of $$$3K plus court costs, prejudgment interest and attorneys fees pursuant to contract if any and law.
Dated: 5/2007
signed by LOCAL LAWYER

Court Filling fee: $255; Sheriff Fee: $40

If you would like to settle your case please call our Toll Free number ####.


It's not based on a written instrument since they don't cite one as the basis of their claim. So the 4 year SoL applies.

Since the 4 year SoL applies, no partial payment affects the running of the limitations period. It runs from the point of the breach, which is the commencement of the delinquency.
They claim 4/24/2007 as the point of the breach.
36  Flordia Debtor / Post a Question / Re: Pretrial conference - Need some guidance!!! on: September 13, 2007, 05:05:26 PM
Quote from: "tiaguis"
Hi all,
I've been reading about the subject for a few months now, but until a month ago I received a notice to appear at a pretrial conference.

It is overwhealming... so much information to go thru and understand... wow.

Here is a quick summary:
Plaintiff(s): Erin Capital Managment, LLC. assignee of Provid1an National
Bank.
Date: Nov 13
What I received:
1. Notice to appear
2. Statement of Claim - signed by local lawyer on behalf of ERIN
3. Affidabit of Debt  (mentions exhibit A, but nothing is attached).

We did have an account with providian. ON credit report appears as a CO

What I noticed:
no SOL yet.  Last payment 06/2005
statement of claim has:
wrong account number
incorrect default date: 04/24/07
Amount is high to what the credit limit was.

I'd like to guidance on how to proceed and what my options are

I am working on fixing my credit.  I am not sure I want to go to pretrial by myself... but I don't want to get a judgement either.

Looking forward to your comments
Thanks


What does their Statement of Claim allege?
What causes of action does it allege? Breach of Contract? Open Account? Account Stated?

They do not have prima facie proof of their case at this time.
It is premature to consider mediation, since mediation means money out of your pocket.
Deny their claim at the pretrial thus forcing them to comply with the rule of law (in this case, the Florida Evidence Code).
You can argue that they have failed to state a claim at the pretrial as the document which they claim their claim is based on is not attached nor supported by testimony of a competent witness with personal knowledge.
You can argue that their affidavit is not based on personal knowledge of a member of the alleged business that created the alleged account, thus it violates the Florida Evidence Code.
They do not have proof that they are in privity with you on any agreement and argue that you have never entered into any agreement with ECM LLC.
37  Flordia Debtor / Post a Question / UPDATE ON CRAP ONE!!!!!! on: August 14, 2007, 09:08:46 PM
Quote from: "rubyruby27"
I found it and yes it bolsters your defense.


Would you please post this case here?
38  Flordia Debtor / Post a Question / UPDATE ON CRAP ONE!!!!!! on: August 13, 2007, 12:29:41 PM
Quote from: "gatormommy"
hi fraud

ok this all the info:

the date of filing of complaint was 2/26/07.  the complaint had the customer agreement attached.  causes of action were breach of contract, account stated, and money lent.

i asked for discovery and was sent: another customer agreement, a bunch of statements, signed card acceptance, phone records, proof of last payment, and the back of a statement.  when they sent their msj affidavit was attached.  

does the appeal get heard in circuit court?  i live in alachua county and that is where my small claims case was heard.  does a different judge hear it?

the notice of appeal has been filed and fees have been paid, i just checked again.


So they do have evidence.

"a bunch of statements" -
Are these OC monthly statements?
What is the statement date of the most recent OC one?


The Circuit court operates in Appellate capacity for County court appeals.
A three judge panel of Circuit court judges will be assigned to the appeal.


"proof of last payment" -
What is the date of that last payment?
Is it a copy of a personal check?


Is there an affidavit of an OC record custodian in support of these OC documents in the case record?

This case may be a conflict of law case between VA and FL law.
If VA law says this type of agreement is an Open Account exclusively, then that appears to trump FL law that an FL judge might apply as sufficient as a composite to constitute a written instrument.

The trial court judge apparently applied the VA law, since the agreement says that VA was the choice of law of the agreement.  

That FL CoA Forms clause clearly implies that attachment is required, but the attachment rule is unsettled law. Some FL jurisdictions apply it strictly, due to the Defenses rule (1.140), where the DEFT must have full disclosure in order to state all defenses, otherwise they are waived. Some believe that the CoA is stated even if the attachments are missing, since the attachments are part of going forward with the evidence.

Berman takes the weak view on the attachment rule.
Padavano takes the strict view on the attachment rule.
Since Padavano was a 1st DCA judge, the strict view may apply in the 1st DCA, which may explain why this trial judge applied it strictly.
39  Flordia Debtor / Post a Question / UPDATE ON CRAP ONE!!!!!! on: August 12, 2007, 07:06:58 PM
GM:

Please list and describe the PLTF's exhibits of the original creditor account documents placed on the record of the trial court.

What is the date of filing of the complaint?

What causes of action were listed in the complaint?
Breach of Contract?
Open Account?
Account Stated?
40  Flordia Debtor / Post a Question / UPDATE ON CRAP ONE!!!!!! on: August 12, 2007, 06:47:45 PM
Quote from: "gatormommy"
all they sent was a notice of appeal, it hasn't been filed yet.  they attached the order of dismissal.

if they are appealing the order of dismissal, what happens if it's overturned?  do they get a judgment or does the case get retried?

i don't have a copy of the appeals process.  i looked up my circuit (8th) and it's actually in the 1st district.

ruby thankyou so much for all your present help and future help.  this is all quite overwhelming.



A notice of appeal is not a notice of appeal until it is filed with the appellate clerk of the trial court.

Florida Jurisprudence "Appellate Review" chapter is the place to go to learn about the appellate process. Berman also has an FL Appellate Procedure book. They have I believe 70 days to file their initial brief according to the appellate procedure.

If this is small claims, which is county court, then the appellate court would be the Alachua County Circuit Court. The Notice of Appeal should say so.

You won at the trial court, so you are the appellee. The appellee has the option of filing a reply brief in response to the initial brief or not filing a reply brief.

Since they attached no documents, they can only argue law. So they have to attack the VA law issue, the SoL issue and the attachment issue with arguments of law.  The higher court has de novo authority on all issues of law.

The higher court can affirm or vacate the trial court's order. If they vacate it, they will provide instructions to the trial court. If only matters of law are at issue, the higher court could reverse the decision. But, since they seems to have no evidence, that possibility is remote.
41  Flordia Debtor / Post a Question / Re: UPDATE ON CRAP ONE!!!!!! on: July 19, 2007, 05:53:04 PM
Quote from: "gatormommy"
hi

i just wanted to let everyone know that i had a kinda victory at the plaintiff's hearing for msj.  even though i did things the wrong way, as the opposing attorney so diligently pointed out, the judge did not make a ruling.  he decided that he was going to take a fews days to decide.

i brought up the whole virgnia law argument.  i have peaked the judge's curiosity.  i'm not out of the woods yet, but i'm hoping if he was going to rule in the plaintiff's favor he would've done it today.

i was talking with the opposing attorney, he was actually representing capital one's attorneys in miami and he said that capital one will not settle and if the judge rules in my favor they will appeal.

so again i'm asking for help.  the miami attorneys have case law about a judge, in miami, that said a credit card account is a contract and uses the 5 year statute (the plaintiff was also capital one).  since i got the judge to agree that the card member agreement is governed by virginia law, is there anything case law saying a credit card agreement is not a written instrument?  can anyone clarify for me exactly what needs to be in a written agreement.  the opposing lawyer pointed out the i was contradicting myself in saying the the credit card was not a written contract and that it was an open-end agreement, but then i was relying on the 'contract.'  he kept calling the 'customer agreement' the 'contract.'

the judge said that we could supplement our arguments with anything we could find.

p.s the judge (and even the opposing attorney) said that this was a great pro se agrument and that i brought up valid agruments and asked if i was a law student. :oops:  so great job everyone, thanks for all the information.


You're making a number of imprecise descriptions. Being precise is essential.
Just because a credit card account is a contract does not make it founded on a written instrument. There are certain tests for the writing to be considered a written instrument. If PLTF throws out a illegible or incomplete writing that does not on its face prove that a defendant acknowledged the obligation for a specific account and shows how the correct amount was calculated or will be calculated, then parol evidence is required to make the writing complete and thus the action is not founded on the written instrument, thus it is insufficient in law for the 5 year written instrument SoL to apply. Focus on arguing that they have no writing SUFFICIENT IN LAW for the longer SoL to apply.
But, really, if VA law says these agreements are open accounts then argue that VA looked at both types of agreements and concluded that these agreements are exclusively open accounts thus making it an absolute defense to a written instrument claim.
42  Flordia Debtor / Post a Question / Re: DOES SOL START FROM DATE OF FILING OR DATE SERVED? on: July 18, 2007, 02:06:45 PM
Quote from: "debtfree"
Hi Everyone I was wondering I have a case coming to trial where this question may end up being important.

DOES SOL START FROM DATE OF FILING OR DATE SERVED?


The SoL commences to run when the cause of action accrues which is the point of the breach on a breach of contract action.

The filing of a complaint with a cause of action on the breached agreement tolls the running of the limitations period.

It's the date the complaint was filed for the end date.
It's the commencement of the delinquency for the start date.
43  Flordia Debtor / Post a Question / Re: Calling all legal Minds! How do I challenge this Eviden on: June 19, 2007, 08:59:22 PM
Quote from: "bigman"
As many of you know my Wife has a case with Asset Acceptance.  to summarize, after 3 years of legal cloak and dagger by the Plaintiff thanks to the Judge they are still in the summary Judgment phase.  He is unable to award them the Judgment because we show a legitimate issue with the material facts of the case, but he refuses to set it for trial (as he is supposed to by law) because with the embarrassing lack of evidence they posses they would lose, and apparently he does not want that.  Through discovery i have asked for a full account history, statements, canceled checks, proof of ownership etc...

To date this is what they have provided and they acknowledge they have nothing else.  



1.  Signature Card

This card has my wife Name and her social, and a couple of telephone numbers we don't recognize and a PO box we don't recognize.  It also States that a $45.00 check or Money Order is required for the card to be processed and that it needed to have been mailed by June 22, 1999.  My issues with the card are as follows:

The card does not identify what company it is from (in small writing near the bottom it does say "make checks payable to Providian)

There is nothing that links the card to this specific account

There is no copy of a $45.00 money order or check (there are 2 boxes you can check on the card one says "check" the other says "money" order.  Neither one is checked)

There is no postmark or any evidence showing when the card was mailed.

How can I challenge this card?



2. Purchase and Sale Agreements

They have provided 2 purchase and sale agreements.  One is from Arrow Financial purchasing from Providian and One from Asset Acceptance Purchasing from Arrow.  

A. Arrow from Providian Document

It alleges in the writing accounts were purchased on dec 18 of 2002.  There are no accounts listed, and no account schedule attached so you can't tell which accounts were purchased.  

It is signed by someone allegedly from Providian, but it is not dated.  There is no signature from Arrow Financial on the document.  So in essence there is no execution or date of execution on this document.

B. Asset From Arrow Document

 There are Signatures from both companies on this doc and they are dated.  However again there is no Original account schedule or list of accounts purchased. (They attached an excel spreadsheet to this one with this alleged account included, but Wright v Asset Acceptance UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO, WESTERN DIVISION Supreme Court, blows that out the water).

How can I challenge this.  Can I get this out based on chain of ownership?



3.  Affidavit from Asset acceptance employee

This employee says the records were maintained under his supervision and that he had intimate and personal knowledge of the details of this case.  he says he knows my wife received the card, used the card, and that she owes a specific amount.  He then goes on to list the date of Charge off and the date the account was opened as the same date.  Through discovery we asked for the documents under his supervision, specifically the ones that gave him the information necessary to support his statements under oath.  To date we have received nothing.  (remember the plaintiff has said in there answer that they have sent everything they have)

How would I get this out?  motion to strike or some other motion.  I would assume the basis would be hearsay, but i would love to find out how to do it right.  

Hopefully the legal eagles will fly in and help me put this thing together


Compel/preclude motioning on their Discovery failures - establish foundation for SJ due to preclusion rulings. You can't move for SJ without preclusion orders from their discovery failures because they have suffiicient evidence currently to prevent you from proving conclusively that you are entitled to SJ.
Strike motion on non-personal knowledge affidavit: schedule a deposition of the AACC "records custodian."

Motion to set the case for trial (any party can): if judge denies - it may an appealable interlocutory order - or it may not - if this is a county trial case - due to general law being required to authorize county appeals per the FL constitution. See F.S.A. Chapter 59 for general law, especially the case law annotations, on appeals.

Contravert affidavit their evidence also.

Whatever effort you've put in so far, it does not appear that you've touched on the proper resources yet. All of the case holdings I've posted on this site were from my copying from the law sources at the law library.
You have a good starting list now to find the proper law authorities.
It is alot of work that you will be bearing the burden.
Don't rely on other internet sources - most internet "advice" is marginal at best and totally erroneous at worst - and does not contain the law authorities you need to authorize your pleadings.
Those FL law sources are the best places to start.
You will likely have to copy and read dozens upon dozens of cases as well, from those whose holdings appear applicable.
44  Flordia Debtor / Post a Question / Calling all legal Minds! How do I challenge this Evidence on: June 18, 2007, 09:43:53 PM
Quote from: "rubyruby27"
Everything is hearsay which is parol evidence which violates the best evidence rule.  

Everything they have submitted is hearsay it must come from the OC.

The JDB can't testify the account is hers as they didn't give her credit.  They don't have anything but a computer generate paper saying she owes anything.

You would motion to strike all thier evidence based on parol evidence.  

Then do a motion for summary judgment, you have to do a personal affidavit.

You need to use FLorida laws  11th district, not Ohio's.

This is a Florida site, if this is an Ohio case, the info we are giving may not work for your state.

Look at all of Fraudfighters post.  Go to the law library and start reading Bermans reference book on rule for civil procedure.  That was the best advice Fraud gave me when I was going through a suit.


You can learn what arguments founded in law to use by getting thyself to a law library and using the proper law reference books. Berman's Florida Civil Procedure is essentially the Florida Rules of Civil Procedure Annotated. Thus, he covers under what rule you can move to strike and what law authorities to use. Also, there is Padavano's Florida Civil Practice that also can explain how to do what you need to do in detail with useful law authorities to authorize your pleadings. Then, there is Florida Statutes Annotated, Chapter 90, the Florida Evidence Code, that has the relevant case law mapped to the statute subdivisions. Then, Florida Jurisprudence 2d. It contains many topics of law. Find the appropriate topics and FlaJur provides the framework of the law to give you the big picture as well as the detailed picture and lots of law authorities.

It all comes down to putting in the research effort to seal the deal.
45  Flordia Debtor / Post a Question / I got served, replied and now I am in trouble & need hel on: June 01, 2007, 10:19:40 PM
Quote from: "gulfbreeze"
RULE 7.020. APPLICABILITY OF RULES OF CIVIL PROCEDURE

(a) Generally. Florida Rules of Civil Procedure 1.090(a), (b), and (c); 1.190(e); 1.210(b); 1.260; 1.410; and 1.560are applicable in all actions covered by these rules. (b) Discovery. Any party represented by an attorney is subject to discovery pursuant to Florida Rules of Civil Procedure 1.280–1.380 directed at said party, without order of court. If a party proceeding without an attorney directs discovery to a party represented by an attorney, the represented party may also use discovery pursuant to the above-mentioned rules without leave of court. When a party is unrepresented and has not initiated discovery pursuant to Florida Rules of Civil Procedure 1.280–1.380, the opposing party shall not be entitled to initiate such discovery without leave of court. However, the time for such discovery procedures may be prescribed by the court. (c) Additional Rules. In any particular action, the court may order that action to proceed under 1 or more additional Florida Rules of Civil Procedure on application of any party or the stipulation of all parties or on the courts own motion.

BUT....as I mentioned, this was if you were talking about in the beginning (when the plaintiff was seeking info before the trial). It seems yours is about them getting info for your assets because they have a judgment or are getting one.


We're in execution now. This is all post-decretal process now under rules of execution. This 7.020 rule is a small claims rule pre-judgment. It's non-applicable to execution.
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