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1  Flordia Debtor / Post a Question / Re: A record that is silent on a determinative issue ......... on: July 21, 2009, 03:15:30 PM
First.. Look at the definition of foreclose:

a. To deprive (a mortgagor) of the right to redeem mortgaged property, as when payments have not been made
b. To bar an equity or a right to redeem
c. To prevent the occurence of; prevent from happening
d. To shut out : PRECLUDE
e. To hold exclusively
f.  To deal with or close in advance

Second, the case you are referring to primarily deals with the burden of showing waiver or tolling of statute of
limitations after the statute of limitations is raised by defendant as affirmative defense. 

Third,  how are you trying to apply this case law to your argument?  In what context, what theory are you using it to support?

Do you have the actual opinion or was that cited in another opinion? It would have to be read in the full context before an explaination could be given.  If you could, please provide the link to where you found it.

2  Flordia Debtor / Internet Resources / Florida Legal Links - Updated Editions on: July 20, 2009, 09:09:25 AM

Florida Litigation Guide

FL Supreme Court Briefs and Opinions

University of Florida's Guide to Finding Cases

Florida Discovery Handbook 2007

Florida Rules of Civil Procedure 2009

Florida Statutes
3  Flordia Debtor / Post a Question / Re: Lawyer owned JDB Corp - Quick question on: July 17, 2009, 10:28:04 PM
The debt is owned by corp.  The pupose of their business in their articles just says "any and all lawful business".  I went to the Florida Division of Finance's website that allows you to verify  licenses http://www.flofr.com/Downloads/licensecheck.htm and the company is not registered.

4  Flordia Debtor / Post a Question / Lawyer owned JDB Corp - Quick question on: July 17, 2009, 12:34:20 AM
A corp out of Tampa is a Florida For Profit Corporation that according to their articles of incorporation "engages in any and all lawful business" which also includes JDB.  The incorporator and registered agent as listed at sunbiz is a licensed attorney in Florida and his firm is a separate Florida Profit Corporation. Both Corps share the same address.  Of course the firm is representing the Corp. on the debt that was "assigned" to them.  Communications from the firm all have the little disclosure - "This is a communication from a debt collector.  We are attempting to collect a debt... yada yada yada.  There have been no communications from the alleged actual purchaser of the debt.  Everything comes from the lawyer/debt collector.

I know under FS 559.553 attorneys who are debt collectors are exempt from having to register as a debt collector; however in the instance described above should the Corp be registered as a debt collector or are they getting around it by just buying the debt and having the debt collector lawyer do all the actual collecting?  My gut tells me they are getting around it.

5  Flordia Debtor / Post a Question / Re: Can a plaintiff request the Court to deny defenses? on: June 22, 2009, 01:07:33 PM
This crazy lawyer is still mailing to the wrong address.  He has not sent one single pleading to the correct address even after being notified via affidavit of the corrrect address.

I have been checking the clerk's website and he has filed a request for mediation, a request for telephonic attendance at mediation, and a request for non jury trial.  I contacted the clerk's office this morning and had her check the certificate of service and he is still mailing all the stuff to the wrong address.  We are not getting anything in the mail. 

I want to get sanctions against this guy as he is hindering the defense.  Been trying to research the subject but have been unsuccessful.  If anyone knows an good strategy for this I would appreciate it.  Even the letter he attached to his complaint was the wrong address on it so we were never notified by them per FS 559 as it pertains to the assignment of consumer debt.

The 35 days to respond to discovery ends tomorrow for him.  He probably will mail that to the wrong address also.

How in the devil can he do a request for mediation, then do a request for a non jury trial all at the same time?

I did find out that if the judge orders mediation I have 15 days to object.

Any input would be appreciate.  Thanks
6  Flordia Debtor / Post a Question / Re: Can a plaintiff request the Court to deny defenses? on: May 22, 2009, 09:52:22 AM
We are preparing some discovery while working on this response.  We are pretty sure the last payment on the account was February or March 2004.  We are really going to have to dig for the records and see what there is.. between Jeanne, Frances and Charlie we took a pretty good hit.  Bunch of stuff got damaged/destroyed (inc. home  Cry ).  They filed suit in April 2009.  should be good on the 5 year SOL for breach and since, (as of now), they did not attach any contract from the OC nor an assignment agreement Bill of sale etc..the 4 year SOL should apply.  Date of last payment is not showing on CR.  Charge off is the end of 2004.

They filed a very generic Complaint - Count I money lent and II unjust enrichment, yet they "refer" to a credit card agreement, breaching the agreement and an assignment from OC throughout the complaint.  They just didn't use BOC as a count - We are guessing they have incomplete records.  Going to wait and see what turns up in discovery.  When we send them responses to the discovery (rogs, rfp, admissions) they attached to their Reply, we are going to enclose some for them.  Based on the discovery they sent, (more questions than usual but within limit) they want us to prove their case.

Just have to get this response postmarked by the 28th and prepare an affidavit as to correct address, years at the address, never receiving correspondence from them due to incorrect address.  The OC sent the statements to the correct address, they should have it.

Any further input would be appreciated.  Have completed the response to their reply and drafted it as if it was a MTS defenses, requesting the court to deny.
7  Flordia Debtor / Post a Question / Re: Can a plaintiff request the Court to deny defenses? on: May 21, 2009, 03:31:30 PM
I am in County Court.  I have filed my answers and defenses. 5 days after they received my answer and defenses they did the previous referenced Reply.  Yes I can prove my defenses.

I understand that they can deny my defenses.  Most JDB do if nothing more than to CYA.

However, they are asking the Court to deny my defenses - which to me is sneaking in the back door on a MTS my defenses or maybe even a SJ.  Just on a humbug I called a paralegal with a general question on a request to deny defenses (who double checked with an attorney) and was told that a motion is required when a party is requesting the Court to deny (strike) a pleading or portion thereof.  That a ruling would be required which would require a hearing.  She said I was correct in attacking as an underlying MTS and that if I don't address the issue it is possible that my defenses could be stiken for failure to object and a SJ could be issued.  To respond/reply to a deffndants answers and defenses that way is some type of legal strategy some lawyers use when dealing with pro se litigants. There isn't a request to deny - only motion to strike. 

In hindsight maybe we should have done a MTD instead of answering.  They did attach their initial contact letter advising they purchased the debt and a homemade statement showing nothing more than a balanced owed.  Problem with that is they mailed the initial contact letter to an address that hasn't been used since 1977, they tried to serve the complaint at that address and even after being given he correct address (that has been residence for 17 years) on the complaint they mailed they still mailed the Reply to the old address.  Take care of all that with an affidavit.

I have the DV letters from a previous JDB and a collection agency so...

Thanks for the input, it is very much appreciated!  This forum is great!
8  Flordia Debtor / Post a Question / Can a plaintiff request the Court to deny defenses? on: May 20, 2009, 07:41:26 PM
Suit involves Midland.  I responded timely to the complaint with answers and defenses.  SOL, Accord and Satisfaction, No valid assigment, attacking FRCP 1.130 failure to attach documents to state a cause of action etc...

Plaintiff timely filed a "Reply to Defendant's Affirmative Defenses".  A very simple two paragraph reply that states:

Plaintiff denies each and every affirmative defense contained therein and demands strict proof thereof.
Wherefore, plaintiff respectfully requests this honorable court deny the affirmative answers and grant the relief requested by Plaintiff and such other relief as this Court deems reasonable and necesssary.

How can you request the court to deny affirmative defenses? Federal and local rules have provisions for and allow  a party to make a MTS defenses for insufficiency, being rudendant, etc.... But a request to deny.  That would require a ruling, which requires a hearing which requires a motion.

I have started to draft a response to this and want to know if I can use the theory of an underlying MTS. Something like this:

Although the Plaintiff captioned the pleading as “Reply to Affirmative Defenses” it appears the Plaintiff is also requesting this Honorable Court to “strike” the affirmative defenses; however, the Plaintiff failed to raise any argument concerning the relief sought.

Then move into case law about MTS etc...

Any input is welcomed
9  Flordia Debtor / Post a Question / Re: MTD v Answer to Complaint on: May 02, 2009, 11:16:15 AM
Quote from: gulfbreeze
If your plaintiff is moving for summary judgment, you may be past the time for filing a MTD, which must be with or before the complaint is answered.

Need some guidance any input is appreciated.

Relative just served with a simple complaint from Midland Count I money lent, Count II unjust enrichment, (read between the lines credit card and open account - they reference credit account and credit card in their opening paragraph)  Only attached the alleged "initial we bought your debt letter" and an in house statement which just shows the amount due as averred in the complaint.  Both heresay.   Not the original JDB, all previous CA's and JDB have been dv'd.

We do not know whether to answer the complaint or file a MTD.  Based on the info quoted above can he incorporate a MTD in his answer  i.e. after all defenses simply state:

Plaintiff’s complaint is based on an alleged credit card agreement between Defendant and OC.  The Plaintiff is not a party to this relationship unless Plaintiff can establish it acquired OC's right, title, and interest in and to an alleged account between Defendant and OC.  Florida Rules of Civil Procedure 1.130 require a party to attach all documents to the pleading, which form the foundation of the Plaintiff's cause of action.  Winn-Dixie Stores, Inc. v.  Sams, 281 So2d. 47 (Fla 3d DCA 1973).   The foundation of Plaintiff's cause of action includes OC's assignment/sale of Defendant's alleged account to Plaintiff.  The documents filed with the court  by the Plaintiff  do not establish the existence of a valid assignment between OC and Plaintiff,  the terms and conditions of any agreement(s) between OC, Plaintiff or Defendant, nor does it establish any right, title, chain of title and interest upon which Plaintiff is suing  or can bring this cause of action.
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. Contractors Unlimited v. Nortax Equipment Co. Southeast, 833 So2d. 286 (Fla. 5th DCA 2002); Safeco Ins. Co. of America v Ware, 401 So2d 489 (fla. 4th DCA 2001); Samuels v King Motor Co. of Fort Lauderdale, 782 So2d 489 (Fla. 4th DCA 2001).  Plaintiff,  Midland Funding LLC, as successor in interest to XXXXXX, failed to present sufficient ultimate facts to state a cause of action or show it is entitled to relief on its claim of credit card, open account, money lent, and unjust enrichment. 
WHEREFORE, Defendant, XXXXXX respectfully requests this Court to dismiss with prejudice, this action and Plaintiff’s demands for judgment, interest, costs, attorney fees and disbursements and any further relief this Court deems just and proper.

He is asserting SOL, non-compliance with F.S. 559.715, Lack of Privity, Accord and Sat., no valid assignment and, failure to comply with FRCP 1.130, parol rule evidence, documents attached are hearsay and not Business Records under the Business Records exception to the Hearsay Rule of the FL Evidence Code and are inadmissible and I know it's not a defense but I threw in the alleged debt has been disputed.


10  Flordia Debtor / Post a Question / Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (Fla. 4th DCA 2001). on: May 01, 2009, 03:10:05 PM
Anyone have a hard copy of the above referenced case and Safeco Ins Co. v. Ware, 401, So2d.. Would be handy to have for a hearing.

11  Flordia Debtor / Post a Question / Happy Day MTD w/prejudice re: JDB is Grasping at Straws on: March 31, 2009, 10:09:31 AM
I showed up to the hearing today on Motions to Strike and the plaintiff's attorney appeared telephonically to say they were dismissing the complaint. He asked the JA if he could speak to me:

"After reviewing the file again and your pleadings I have decided not to proceed forward and am going to dismiss with prejudice."  He then went on to say "Mrs. XXXX you were a formidable defendant and I did not mean to offend you but I really thought the pleadings were prepared by an attorney. There really isn't too much we can do but dismiss."

I thanked him and told him to have a great week! The Judge came out of his office after the phone call and asked what was up - the JA told him the plaintiff was dismissing with prejudice. His reply - good and looked at me said "job well done", turned around and walked away. I am thinking he would have dismissed it anyway!!

I am soooo happy. That makes 2 Unifund cases this year that I have had dismissed. Stick a fork in me I am done!!

12  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: March 30, 2009, 03:53:50 PM
Technically you were not personally served; however you went to the courthouse and picked up a copy of the compliant and responded within the allotted timeframe.  So I don't think the court will consider that not served.

As part of your defenses did you put forth the argument of SOL, no cause of action (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.”  Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489 (Fla. App. 4 Dist. 1992); See also Contractors Unlimited, Inc. v. Nortrax Equipment Co. Southeast, 833 So.2d 286 (Fla. 5th DCA 2002);

I'd have to do some research on what constitutes service..
13  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: March 30, 2009, 11:40:48 AM
It means the Judge is going to decide - a non-jury trial.  You get to present your arguments and issues raised as your defenses. If they have not presented sufficient information for a cause of action you may be able to get the case dismissed. 
This is a good one to use as part of your attack on their failure to show chain of assignment and thus proof of bona fide assignment:

“Person not a party to nor in privy with a contract does not have right to sue for its breach.”
White v. Exchange Corp.167 So.2d 324 (Fla. 3rd DCA 1964)

 If they have not complied with your discovery requests then they can not enter any of the docs as evidence at trial and you should ask the judge to strike them all.

 You need to have all of your supporting information lined up.  Case law for case of action, SOL defense, your arguments refuting their affidavits, bill of sale and anything else they filed with the court or gave to you as a result of discovery.

I came across this order (unsigned) but it references a bunch of case law that may help you also.  Look it over: http://www.fljud13.org/pdfs/judges/Huey_credigyReceivablesvsRobertCuellar.pdf

Also I filed a complaint against them in 12/07 for not being registered as a collection agency since 2001.  They have just registered March 19, 2009.  I have a call into the Division of Finance to get a written disposition of my complaint.  I raised that as an affirmative defense also.  You can follow this link https://real.flofr.com/ConsumerServices/SearchLicensingRecords/Search.aspx.

Make sure they were in good standing with the State at the time they filed suit against you: www.sunbiz.org. Check under corporations, partnerships and ficticious names.  I am sure in their complaint they averred being a foreign corporation licensed to conduct business in the State.  There was a period of time in the fall of  07 to I think mid 08 that they were not in good standing.

Hope this helps, I am no legal expert.. just pretty good a research.  Still getting my stuff together for my hearing.
I will let you know the outcome.
14  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: March 30, 2009, 07:32:10 AM
Mad,  Have you this recent PA case involving Unifund?  May be helpful

15  Flordia Debtor / Post a Question / Re: Unifund has filed against me on: March 11, 2009, 06:17:52 PM
the judge wanted me to send a letter to her and send a copy to the Plaintiff stating that I have made attempts to communicate with the Plaintiff regarding a time line for their continuance and I have not been successful in getting a response from the Plaintiff on a time schedule to resume hearings, therefore I needed the judge to set hearings and send a notice to the Plaintiff.

You did what the judge requested of you.  The Judge is actually helping you.  The letter serves as a two fold purpose - 1. you identify a problem and then you addressed it writing to the one person who can make the Plaintiff move being the Judge and 2.  The letter basically serves as a one last attempt at good faith to resolve the problem.  JA is absolutely correct - the ball IS in their court now. 

The Plaintiff who is the source of the problem is now aware that you are not fooling around but more importantly the Plaintiff knows that by that letter the Judge is aware also.  I would wait about 15 days (10 to reply + 5 days mail time just like a pleading) after the Plaintiff received the letter and contact the JA again, just advise that it has been over 15 days since the Plaintiff received the letter and still no word and how do we proceed from here.  Believe me she is also keeping up with the time and the Judge will have no choice but set a hearing if the Plaintiff does not respond.
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