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Author Topic: I got served, replied and now I am in trouble & need hel  (Read 50993 times)
Dragon
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« on: September 13, 2006, 08:53:27 PM »

I just got served a lawsuit by a law office that represents a JDB who purchased the account for credit debt of $11K+ I just started to learn about credit issues and I am still learning and reading. I responded to the suit and replied with affirmative defenses & counterclaims. The lawyers are Jacobson, Sobo & Moselle. They are at h++p://www.floridacollections.com/

I also found this on them h++p://jacobson-sobo-moselle.com/
Please help if you can while I keep posting. Thanks to all on this BBS!
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Dragon
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« Reply #1 on: September 13, 2006, 09:11:07 PM »

In the County Court, Broward County Florida - Division Civil

Unifund CCR Partners assignee of Citibank, Plaintiff,
vs.
DRAGON, Defendant.
 

Complaint

Plaintiff sues Defendant(s) and alleges that:

1. This is an action for damages that are within the jurisdiction of this court.
2. At all times material hereto, Defendant(s) had a credit card account (hereinafter referred to as the "Account") with a third-party (hereinafter referred to as the "Credit Grantor").
3. Plaintiff purchased the "Account" and is the present owner with full power to perform all acts necessary for the collection, settlement, adjustment, compromise or satisfaction of the "Account".
4. Defendant(s) has agreed by contract (hereinafter referred to as the "Agreement"), a copy of which is attached hereto as an Exhibit, to pay all costs of collection including reasonable attorney's fees.
5. Plaintiff has retained Jacobson, Sobo & Moselle and has agreed to pay them a reasonable fee for their services.
6.  Plaintiff seeks a minimum of $1 ,400.00 for attorney's fees based on an hourly rate of $175.00, an estimated minimum of 4.0 hours and a contingency risk multiplier of 2.0.
7. Credit Grantor extended credit to Defendant(s) pursuant to the "Agreement".
8. All conditions precedent to the enforcement of the "Agreement" have been performed, excused, or waived.
9. Defendant(s) breached the "Agreement" by failing to make payments when due.
10. As a direct and proximate result of Defendant(s) breach of the "Agreement" Plaintiff has been damaged in the amount ~11 ,562.64, which amount represents the amount due on the "Account" and not paid.
11. Defendant(s) has agreed in the "Agreement" to pay interest on the outstanding balance to Plaintiff at the rate established therein.
12. Defendant(s) owe Plaintiff interest on the outstanding balance of $11,562.64 from January 1, 2006 at the rate of 19.80% per annum.
 
Wherefore, Plaintiff demands judgment for damages of $11,562.64 plus interest, costs and attorney's fees.
   
Jacobson, Sobo & Moselle Attorneys for Plaintiff
Post Office Box 19359 Plantation, Florida 33318-0359


ATTACHED TO THE COMPLAINT was a completely unreadable copy of an unsigned credit card agreement.
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Dragon
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« Reply #2 on: September 13, 2006, 09:12:03 PM »

IN THE COUNTY COURT IN AND FOR BROWARD COUNTY, FLORIDA


In re:

Unifund CCR,
      Plaintiff,                      
   
           and

Dragon,
      Defendant   )

Case No. 06-XXXX

Judge XXX

Civil Division


ANSWER


COMES NOW, Dragon, In Proper Person, appearing specially and not generally, and hereby files this ANSWER and demands affirmative relief with clean hands, grounded, and therefore states:

1.   In response to paragraph #1, the Complaint states legal conclusions to which no response is necessary. However, defendant denies the allegation and demands strict proof and a ruling on jurisdiction.
2.   Denied. In response to paragraph #2, defendant denies the allegation and demands strict proof thereof.
3.   Denied. In response to paragraph #3, defendant denies the allegation and demands strict proof thereof.
4.   Denied. In response to paragraph #4, defendant denies the allegation and demands strict proof thereof.
5.   Denied. In response to paragraph #5, defendant denies the allegation and demands strict proof thereof.
6.   Denied. In response to paragraph #6, defendant denies the allegation and demands strict proof thereof.
7.   Denied. In response to paragraph #7, defendant denies the allegation and demands strict proof thereof.
8.   Denied. In response to paragraph #8, defendant denies the allegation and demands strict proof thereof.
9.   Denied. In response to paragraph #9, defendant denies the allegation and demands strict proof thereof.
10.   Denied. In response to paragraph #10, defendant denies the allegation and demands strict proof thereof.
11.   Denied. In response to paragraph #11, defendant denies the allegation and demands strict proof thereof.
12.   Denied. In response to paragraph #12, defendant denies the allegation and demands strict proof thereof.

AFFIRMATIVE DEFENSES

1.   Defendant demands due process and waives no rights and reserves any and all rights under law and equity.
2.   This action is not founded on written instrument where evidence of liability consists of a written cardholder account and security agreement. Plaintiff's Complaint violates the Statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint was not in writing and signed by Defendant or by some other person authorized by Defendant and who was to answer for the debt, default, or miscarriage of another person.
3.   Plaintiff’s attached exhibit is incomplete to establish liability. As such plaintiff’s claim is governed by the four-year Statute of Limitations and is time-barred.
4.   Plaintiff used false and misleading representations, including but not limited to the following:
     a) Plaintiff has filed this action to collect a debt which is not due and owing.
     b) Plaintiff has filed an action that is time-barred by the Statute of Limitations. Plaintiff’s cause of action and complaint is barred by the applicable statue of limitations.
     c) Plaintiff has misrepresented the character and amount of the debt.
5.   Plaintiff violated the FDCPA.  Said violations include, but are not limited to the following:      
      (a) By making false, deceptive misleading representations in connection with the collection of the debt in violation of 15 U.S.C. §1692e;
      (b) By giving a false representation of the character, amount, or legal status of the debt in violation of 15 U.S.C. §1692e (2) (A);
       (c) By attempting to collect an amount which is not legally owed, and to take any action that cannot be legally taken and/or is not intended to be taken in violation of 15 U.S.C. §1692e;
       (d) By the use of false representation or deceptive means to attempt to collect a debt in violation of 15 U.S.C. §1692e (10);
       (e) The use or distribution of any written communication which creates a false impression as to its source, authorization or approval in violation of 15 U.S.C. §1692e (3).
       (f) Otherwise using false, deceptive, misleading and unfair or unconscionable means to collect or attempt to collect a settled and/or debt barred by the applicable statute of limitations in violation of 15 U.S.C. 1692e, 1692e(5), and 1692f.
       (g) Plaintiff violated the FDCPA as may be uncovered by discovery in this matter.
6.   Plaintiff is barred under the Fair Debt Collection Practices Act, hereinafter called ‘FDCPA’, from collecting attorney fees, interest, collection fees, and any amount not specifically provided for by agreement.
7.   Plaintiff is not licensed as a consumer collection agency in Florida. The Plaintiff is not a collection agency licensed or authorized to conduct a collection agency business in this state in accordance with statute. The plaintiff is not authorized or licensed to collect claims for others in this state, solicit the right to collect or receive payment of a claim of another. Plaintiff is not authorized or licensed to advertise or solicit, either in print, by letter, in person or otherwise, the right to collect or receive payment of a claim for another, nor to seek to make collection or obtain payment of a claim on behalf of another. The Complaint fails to allege any exception or exemption to these requirements. The Plaintiff is not any of the following: an attorney at law; a person regularly employed on a regular wage or salary in the capacity of credit men or a similar capacity, except as an independent contractor; a bank, including a trust department of a bank, a fiduciary or a financing and lending institution; a common carrier; a title insurer or abstract company while doing an escrow business; a licensed real estate broker; an employee of a licensee; nor a substation payment office employed by or serving as an independent contractor for public utilities.
8.   The Complaint fails to allege or prove that Plaintiff is licensed and has procured a bond as required by law.
9.   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; 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.
10.   Plaintiff provided no evidence of a rendered account statement.
11.   Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.
12.   Plaintiff violated the Florida Consumer Collection Practices Act. Said violations include, but are not limited to, the following:  
(a)   Plaintiff failed to give defendant written notice of assignment in violation of F.S §559.715.    
(b)   Plaintiff violated the Florida Consumer Collection Practices Act as may be uncovered by discovery in this matter.
13.   Plaintiff failed to provide proof of a valid assignment to them. Plaintiff's complaint further 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.
14.   Plaintiff is not an Assignee for the purported agreement and no evidence appears on the record to support any related assumptions.
15.   Plaintiff voluntarily, with knowledge inherent, made an assumption of risk and is not entitled to judgment and not entitled to equitable, pecuniary or statutory damages under the doctrine of Volenti non fit injuria.
16.   Plaintiff’s damages are the result of acts or omissions committed by non-parties to this action over whom Defendant has no responsibility or control. Plaintiff’s alleged damages are the result of acts or omissions committed by Plaintiff.
17.   Plaintiff’s prejudgment interest violates the standard of equity and there is no evidence of pecuniary loss.
18.   Plaintiff’s actions are precluded, as Plaintiff's demands for interest are usurious and violate state and federal laws.
19.   Plaintiff is not the real party in interest and Plaintiff has failed to name all necessary parties.
20.   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.
21.   Plaintiff and the Plaintiff’s counsel are engaging in intrinsic fraud and unclean hands since they know their action is not founded on a valid written instrument when they filed their claim.
22.   Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time.
23.   Plaintiff moves the court to dismiss for failure to state a cause of action.

COUNTERCLAIM

   1.   Defendant demands a claim for $1000 for each count the FDCPA violations.

Wherefore, Defendant prays that Plaintiff’s Complaint be dismissed, and that the relief prayed for by the Plaintiff is denied and Defendants claim be granted. Defendant prays that he be allowed costs and other relief at law and in equity to which Defendant is justly entitled.
 

CERTIFICATE OF SERVICE
I, Dragon, do HEREBY CERTIFY that a true and correct copy of the foregoing were filed in court, served this 23 day of August, 2006, to: Jacobson, Sobo, Moselle, PO Box 19359, Plantation, FL 33318-0359 (954) 587-1968
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Dragon
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« Reply #3 on: September 13, 2006, 09:19:23 PM »

In the County Court In and for Broward County, Florida

Unifund CCR Partners assignee of Citibank, Plaintiff,
vs.
Dragon, Defendant

I
Plaintiff's Motion to Strike Defendant's Affirmative Defenses
Plaintiff moves this court to strike Defendant's Affirmative Defenses and as grounds therefore alleges that:

1. Defendant's First Affirmative Defense is not a defense to the claim but merely a demand for due process rights.
2. Defendant's Second Affirmative Defense fails as a matter of law because a copy of the written contract is attached as an exhibit to the complaint.
3. Defendant's Fourth Affirmative Defense fails as a matter of law because it fails to allege ultimate facts to support the defense. A defense of fraud must be as to the underlying transaction against which the defense is raised. The fraud complained of in Defendant's Fourth Affirmative Defense is fraud in the filing of the lawsuit and is not a
defense to the underlying claim. Moreover, Defendant has failed to allege that he has reasonably relied on the alleged misrepresentation to his detriment.
4. Defendant's Fifth and Sixth Affirmative Defenses fail as a matter of law because a violation of the FDCPA does not act as a defense to the underlying claim. Any violation would merely give rise to an independent claim by the Defendant against the Plaintiff.
5. Defendant's Seventh, Eighth, and Twelfth Affirmative Defenses fail as a matter of law because the failure to obtain a proper license under the FCCPA or otherwise violate the FCCPA does not act as a defense to the underlying claim. Any violation would merely give rise to an independent claim by the Defendant against the Plaintiff.
6. Defendant's Ninth, Tenth, Thirteenth, and Fourteenth Affirmative Defenses fail as a matter of law because they merely assert that Plaintiff has failed to sufficiently prove its case, which is not required at the initial pleading stage. Plaintiff is only required to plead ultimate facts to support its claim and is not required to plead all of the details of said facts.
7. Defendant's Fifteenth, Seventeenth, Nineteenth, and Twenty-First Affirmative Defenses are unintelligible as phrased but appears to be a mere denial of Plaintiff's claim and is, therefore, not an affirmative defense.
8. Defendant's Sixteenth Affirmative Defense fails as a matter of law because the defense asserted only applies to a claim in negligence, and Plaintiff has not sued in negligence.
9. Defendant's Twenty-Second and Twenty-Third Affirmative Defenses are not defenses as pled.

I hereby certify that on 8-29-06 true and correct copy of this motion was furnished by mail to: Dragon

Jacobson, Sobo & Moselle Attorneys for Plaintiff
Post Office Box 19359 Plantation, Florida 33318-0359
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Dragon
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« Reply #4 on: September 13, 2006, 09:21:25 PM »

In the County Court In and for Broward County, Florida
 
Unifund CCR Partners assignee of Citibank, Plaintiff,
vs.
Dragon, Defendant.


Plaintiff's Motion to Dismiss Defendant's Counterclaim

Plaintiff moves this court to dismiss Defendant's Counterclaim and as grounds therefore alleges that:
1. Defendant's Counterclaim consists of a single sentence: "Defendant demands a claim for $1000 for each count [sic] the FDCPA violations."
2. Defendant's Counterclaim fails to allege a short and plain statement of the ultimate facts showing that the pleader is entitled to relief as required by Fla. R. Civ. P. 1.110(b).

I hereby certify that on 8/29/06 copy of this motion was furnished by mail to: Dragon
   

Jacobson, Sobo & Moselle Attorneys for Plaintiff
Post Office Box 19359 Plantation, Florida 33318-0359
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Dragon
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« Reply #5 on: September 13, 2006, 09:22:31 PM »

In the County Court In and for Broward County, Florida

Unifund CCR Partners assignee of Citibank, Plaintiff,
vs.
Dragon, Defendant.

Motion for Sanctions
 
Plaintiff moves the court for an award of attorney's fees pursuant to Florida Statute §57.105(1) against Defendant for filing Defendant's Answer, Affirmative Defenses, and Counterclaims, which defenses and claims are contrary to existing law and unsupported by material facts.
To avoid the possibility of the above sanctions, Defendant and Defendant's attorney, have 21 days to withdraw the pleading or make appropriate corrections pursuant to Florida Statute §57.105(4). This motion shall not be filed with the court prior to expiration of the 21-day period pursuant to Florida Statute §57.1 05(4).

   I hereby certify that on 8/29/06 a true and correct
copy of the foregoing was furnished by mail to: Dragon

Jacobson, Sobo & Moselle Attorneys for Plaintiff
Post Office Box 19359 Plantation, Florida 33318-0359
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Dragon
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« Reply #6 on: September 13, 2006, 09:24:58 PM »

They've scheduled a hearing on October 17, 2006 on their motions without asking me if I was available that day.

As you can see, I need help. I am going to have to file a motion to amend ASAP.
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Dragon
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« Reply #7 on: September 13, 2006, 09:28:03 PM »

I see one thing I forgot to plead in my answer:  That unreadable card agreement is no proof of anything, under any state's law, as far as I know. One cannot even be sure it applied to the specific account.  Never mind that  the blacked-out sections indicate that this was not even the current agreement at the time of default, and they are trying to make it look like one, by hand-editing it.  While this can be done in a way that it's legal, the fact that the sections were not properly crossed out (so the original text remains readable, and the handwritten notations do not meet the standard of initialing a change, that won't "fly"...those handwritten notations being illegible does not help them, either.

Therefore, I should have brought that up, moving the court to dismiss the case based on lack of evidence.  As a defense, I should have brought up that the documents attached do not meet the requirements of the courts and/or FL law, and the pleading is therefore deficient and void.  


I found the rule for amended pleadings:

RULE 1.190. AMENDED AND SUPPLEMENTAL PLEADINGS
(a) Amendments. A party may amend a pleading once as a matter of course at any time before a responsive
pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been
placed on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may
amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend
a pleading, the party shall attach the proposed amended pleading to the motion. Leave of court shall be given freely
when justice so requires. A party shall plead in response to an amended pleading within 10 days after service of the
amended pleading unless the court otherwise orders.
(e) Amendments Generally. At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any error or defect in the proceedings which does not affect the substantial rights of the parties.

In my response, do you think I should raise fraud as an affirmative defense? How hard is it to plead the circumstances constituting the nine elements with particularity, and therefore not be allowed to raise that defense by the simple use of one word, "Fraud."' I think the rules require that in all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity.

How do I ask for leave of the court, via motion and does it have to set for a hearing or will the judge enter an order?

Can anyone help further as to how the law in FL should be pled in such a defense? I will post my Motion to Amend soon.

BTW I HAVE UNTIL THIS COMING TUESDAY TO DO SOMETHING.
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Dragon
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« Reply #8 on: September 13, 2006, 09:36:40 PM »

MOTION FOR LEAVE TO AMEND AFFIRMATIVE DEFENSES AND COUNTERCLAIM

Dragon, the defendant, In Proper Person, responds to the plaintiff’s Motion for Sanctions, Motion to Dismiss Defendant’s Counterclaim and Motion to Strike Defendant’s Affirmative Defenses. Defendant, pursuant to 1.190 of the Florida Rules of Civil Procedure and applicable Local Rules, and hereby files this Motion for Leave to Amend Affirmative Defenses and Counterclaim, and states:

1.   Moving counsel did not make a good faith effort to confer with the undersigned.
2.   Plaintiff has not supplied a signed contract described in his complaint, which shows that there is no factual basis for the complaint.
3.   Respondent moves to amend its response to include an affirmative defense of fraud.
4.   No prejudice will result to plaintiff by the granting of this Motion.
5.   In addition, defendant will suffer great prejudice if he is precluded from amending his pleadings and affirmative defenses.
6.   This is obviously a matter that falls within the discretion of the Court and it is evident that such an exercise of the discretion by the Court would in no way jeopardize the plaintiff's case, whatever it may be.
7.   It is anticipated that defendant may reveal through discovery additional material relevant to the issues raised by its Counterclaim and that defendant may in fact request a future opportunity to further align its claims once defendant initiates the process of discovery.
8.   Defendant has filed concurrently herewith a Memorandum of Law In Support of its Motion for Leave to File its Amended Affirmative Defenses and Counterclaim.
9.   The court should liberally construe defendant’s pleadings to ensure defendant’s right to litigate and all of its defenses to this action.
10.   Upon thoroughly reviewing Respondent's Motion to Amend and the attached amended pleading, the court should easily find good cause shown for granting Respondent's motion, pursuant to local rules.
11.   The right to self-representation is a right of high standing, not simply a practice to be dishonored by a Court depending on its assessment of the desiderata of a particular case. Implicit in the right to self-representation is the obligation on the part of the Court to make reasonable allowances to protect Pro Se litigants from inadvertent forfeiture of important rights because of their lack of legal training. The Court's duty is even broader in the case of a Pro Se defendant who finds himself in court against his will with little time to learn the intricacies of civil procedure and law.

WHEREFORE, the Defendant, Dragon, requests that the relief sought be granted in the interest of equity, and that the court enter an order granting defendant’s motion for leave to amend his Answer, Affirmative Defenses & Counterclaims.
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Dragon
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« Reply #9 on: September 13, 2006, 09:40:23 PM »

From Fla. R.Civ.P.

FORM 1.965. DEFENSE. STATUTE OF LIMITATIONS
Each cause of action, claim, and item of damages did not accrue within the time prescribed by law for them before this action was brought.

FORM 1.969. DEFENSE. STATUTE OF FRAUDS
The agreement alleged in the complaint was not in writing and signed by defendant or by some other person authorized by defendant and was to answer for the debt, default, or miscarriage of another person.
NOTE: This form is for one of the cases covered by the Statute of Frauds. It must be varied to meet the facts of other cases falling within the statute.
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rubyruby27
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« Reply #10 on: September 13, 2006, 10:16:29 PM »

Will try to help you tomorrow if possible, more likely Friday or this weekend.

You need to reread the RCP's and look up case laws on Breach and SoL.

Look up what affirmative answers and  counterclaims are.

Everything is on this site or DB.

Calm down and look at what they wrote in response to what you wrote and see if and where you went wrong.  Some of your defenses are counterclaims.  You can only get a total of 1,000 per action (per lawsuit)
You need to look up Fla Laws cedit card protection.  You can claim violation of state laws too.

Once you do that you will see where you went wrong and how to correct the problem.

Now that they filed you will have to file motions to oppose thier motions along with amended answers and counterclaims.
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Dragon
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« Reply #11 on: September 13, 2006, 10:29:52 PM »

Quote from: "rubyruby27"
Will try to help you tomorrow if possible, more likely Friday or this weekend.

THANK YOU!!!!!!

You need to reread the RCP's and look up case laws on Breach and SoL.

I will try to find it. I have not had much luck finding cases online except what's posted here.

Look up what affirmative answers and  counterclaims are.

I found something on that & posted it but I don't fully understand them

Everything is on this site or DB.

Calm down and look at what they wrote in response to what you wrote and see if and where you went wrong.  Some of your defenses are counterclaims.  You can only get a total of 1,000 per action (per lawsuit)
You need to look up Fla Laws cedit card protection.  You can claim violation of state laws too.

Once you do that you will see where you went wrong and how to correct the problem.

Now that they filed you will have to file motions to oppose thier motions along with amended answers and counterclaims.

Yes, I have to ether do a motion for leave to amend or withdraw my response, but I don't know that if I withdraw it as required under the 57 statute that I lose due to non-response (default)?

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rubyruby27
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« Reply #12 on: September 13, 2006, 10:33:48 PM »

You will motion to amend.

There is plenty of case law on Breach and SoL here.

Look under Fed Statute-- or search for post from me titled more caselaw.
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fraudfighter
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« Reply #13 on: September 14, 2006, 01:14:31 PM »

Quote from: "Dragon"
MOTION FOR LEAVE TO AMEND AFFIRMATIVE DEFENSES AND COUNTERCLAIM

Dragon, the defendant, In Proper Person, responds to the plaintiff’s Motion for Sanctions, Motion to Dismiss Defendant’s Counterclaim and Motion to Strike Defendant’s Affirmative Defenses. Defendant, pursuant to 1.190 of the Florida Rules of Civil Procedure and applicable Local Rules, and hereby files this Motion for Leave to Amend Affirmative Defenses and Counterclaim, and states:

1.   Moving counsel did not make a good faith effort to confer with the undersigned.
2.   Plaintiff has not supplied a signed contract described in his complaint, which shows that there is no factual basis for the complaint.
3.   Respondent moves to amend its response to include an affirmative defense of fraud.
4.   No prejudice will result to plaintiff by the granting of this Motion.
5.   In addition, defendant will suffer great prejudice if he is precluded from amending his pleadings and affirmative defenses.
6.   This is obviously a matter that falls within the discretion of the Court and it is evident that such an exercise of the discretion by the Court would in no way jeopardize the plaintiff's case, whatever it may be.
7.   It is anticipated that defendant may reveal through discovery additional material relevant to the issues raised by its Counterclaim and that defendant may in fact request a future opportunity to further align its claims once defendant initiates the process of discovery.
8.   Defendant has filed concurrently herewith a Memorandum of Law In Support of its Motion for Leave to File its Amended Affirmative Defenses and Counterclaim.
9.   The court should liberally construe defendant’s pleadings to ensure defendant’s right to litigate and all of its defenses to this action.
10.   Upon thoroughly reviewing Respondent's Motion to Amend and the attached amended pleading, the court should easily find good cause shown for granting Respondent's motion, pursuant to local rules.
11.   The right to self-representation is a right of high standing, not simply a practice to be dishonored by a Court depending on its assessment of the desiderata of a particular case. Implicit in the right to self-representation is the obligation on the part of the Court to make reasonable allowances to protect Pro Se litigants from inadvertent forfeiture of important rights because of their lack of legal training. The Court's duty is even broader in the case of a Pro Se defendant who finds himself in court against his will with little time to learn the intricacies of civil procedure and law.

WHEREFORE, the Defendant, Dragon, requests that the relief sought be granted in the interest of equity, and that the court enter an order granting defendant’s motion for leave to amend his Answer, Affirmative Defenses & Counterclaims.


The door to amend is automatically open to you under F.S. 57.105(4). The legislature has given you that automatically to avoid the possibility of sanction.

You did not raise failure to attach or statute of limitations as your defense.

Statute of Frauds is not a defense unless the agreement was time definite and for more than a year. A credit card agreement is not time-definite and therefore the SoF defense does not apply.

There are loads of idiot legal information on the internet credit/debt blogs.
You obviously scooped up some. It takes lots of time researching at the law library to have the knowledge to overcome the internet crap.

Has the agreement been breached for more than 4 years?

CCHAs are not written instruments under FL Law. So, the 5 year SoL does not apply. They will argue that it does. You will argue that it does not using the Fernandes case, if more than 4 years of CoA accrual have occurred. Has it?

As for failure to attach: they will argue that this anonymous thing is probative as to evidencing the agreement the claim is based on; you will argue that it is anonymous and contains no probative value as to any specific claim, thus there is no document attached that evidences the alleged claim as is required by rule 1.130(a) and thus you move for dismissal. This may not result in dismissal since the faliure to attach failure to state dismissal is based on an action founded on a written instrument: "an action based on a written instrument fails to state a claim if the written instrument is not attached." The problem is the CCHA is not a written instrument because it is anonymous. So, you'll be arguing the nature of the claim is not founded on a written instrument for your 4 year SoL argument, while you are trying to argue that the nature of the claim is supposedly based on a written instrument in order to argue for it's dismissal since there is no attached written instrument, just this anonymous document.

These arguments will be decided through the finder of fact's discretion.
The SoL argument will be much stronger if it is legal plausible given at least 4 years of CoA accrual.

Try both and best of luck.
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fraudfighter
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« Reply #14 on: September 14, 2006, 01:17:27 PM »

Have you contacted the local bar's lawyer referral service and asked for a referral to a lawyer who defends debtors in state court (should eliminate the BK cretins).
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