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Author Topic: New motion to dismiss counterclaim from credigy  (Read 13411 times)
hannah
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« Reply #15 on: October 30, 2006, 01:41:12 PM »

Great job!! Congrats!!

Post a copy of 559.715 here and I'll see if I can find any caselaw...
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ell-Behaved Women Seldom Make History...
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« Reply #16 on: October 30, 2006, 03:08:27 PM »

Quote from: "fraudfighter"
Quote from: "imnotpaying"


The Judge then told me very directly "You need to have proper caselaw for 559.715 when you come to trial.

.


Mr. VL, could you look for case law to help with this, please.

Nothing in the Annotated Statutes for .715, but here is .72

1. Validity

Public interest in proscribing harassment of a debtor through contact with his employer about an obligation to a third party transcends the finance company's interest in choosing that particular means of collecting a debt so that statute prohibiting such communications does not unconstitutionally abridge finance company's right of free speech. Harris v. Beneficial Finance Co. of Jacksonville, 338 So.2d 196 (1976), certiorari denied 97 S.Ct. 1591, 430 U.S. 950, 51 L.Ed.2d 800. Constitutional Law Key Number graphic 90.1(1)

Since this section prohibiting communications to a debtor's employee in order to collect the debt is restricted to communications made in collecting consumer claims, the statute is not void for overbreadth. Harris v. Beneficial Finance Co. of Jacksonville, 338 So.2d 196 (1976), certiorari denied 97 S.Ct. 1591, 430 U.S. 950, 51 L.Ed.2d 800. Consumer Protection Key Number graphic 2.1

Communication directed solely to the collection of a debt is purely commercial; although that does not serve to strip it of all constitutional guarantees, such communications may be more readily curbed in the public interest than can speech which conveys political, social or religious thought. Harris v. Beneficial Finance Co. of Jacksonville, 338 So.2d 196 (1976), certiorari denied 97 S.Ct. 1591, 430 U.S. 950, 51 L.Ed.2d 800. Constitutional Law Key Number graphic 90.2

2. Construction and application

Florida Consumer Collection Practices Act (FCCPA), which prohibits enforcement of a debt when a person knows the debt is not legitimate or asserts the existence of a legal right that is known not to exist, appears to contemplate reliance on the legal status of a debt and, thus, consideration of whether other sections of the statutory code have been violated. Kaplan v. Assetcare, Inc., S.D.Fla.2000, 88 F.Supp.2d 1355. Consumer Protection Key Number graphic 10

Debtor's claims against creditor for violations of statute governing the collection of consumer debt, as well as intentional infliction of emotional distress, assault, and battery, were not compulsory counterclaims in creditor's previous action to enforce promissory notes, and thus debtor's failure to assert such claims in creditor's earlier action did not warrant dismissal of debtor's present action. Wagner v. Strickland, App. 1 Dist., 908 So.2d 549 (2005). Judgment Key Number graphic 585(4)

District Court of Appeal would not apply tipsy coachman rule to affirm trial court's dismissal of debtor's action against creditor for violation of statute governing collection of consumer debt and other claims, even though trial court could have exercised its discretion to dismiss complaint without prejudice for failure to perfect service within 120 days of filing complaint, where there was no indication in the record that trial court did exercise its discretion to dismiss the complaint for failure to perfect service. Wagner v. Strickland, App. 1 Dist., 908 So.2d 549 (2005). Appeal And Error Key Number graphic 854(2)

Store's cashing of check, made payable to cash, that consumer had previously given to salesman in consumer transaction, did not subject store's collection practices to provisions of Consumer Collection Practices Act, where salesman was not connected to store other than through cashing third-party check. St. Pierre v. Winn Dixie Stores, Inc., App. 4 Dist., 592 So.2d 1252 (1992). Consumer Protection Key Number graphic 10

Terms of insurance policy providing coverage for collection agency in event of suit against it for any violation of individual's right of privacy covered actions brought under this section prohibiting certain practices in the collection of consumer claims and § 559.77 providing civil remedy. Collection Bureau of Orlando, Inc. v. Continental Cas. Co., App. 4 Dist., 342 So.2d 1019 (1977). Insurance Key Number graphic 2312

Provisions of F.S.A. § 559.72 do not exempt delinquency or debtor information held by utilities commission for mandatory inspection requirements of F.S.A. Ch. 119. Op.Atty.Gen. 92-9, Jan. 31, 1992.

3. Construction with federal laws

For preemption purposes, provision of Florida consumer protection law that prohibited debt collectors from asserting existence of any legal right which they knew did not exist, and establishing four-year limitations period on suits for violations, was not, as invoked by student loan borrower to recover for debt collector's alleged misrepresentation of legal right accorded to him under "wage garnishment" provision of the Higher Education Act (HEA), an obstacle to accomplishment of Congress' objectives under the HEA, either by permitting borrower to evade lack of any private right of action under the HEA, or because four-year limitations period was longer than one-year period that would have applied had borrower asserted such claims under the Fair Debt Collection Practices Act (FDCPA) and allegedly discouraged lenders from participating in federal student loan programs; borrowers could evade lack of any private right of action simply by pursuing claims under the FDCPA, and nature of remedy available to borrowers under Florida law was such that lenders would not have been discouraged. Cliff v. Payco General American Credits, Inc., C.A.11 (Fla.)2004, 363 F.3d 1113. Colleges And Universities Key Number graphic 9.25(2); States Key Number graphic 18.25

Where student loan borrower's cause of action against debt collector under Florida consumer protection law was based on debt collector's alleged misrepresentation of legal right established by "wage garnishment" provision of the Higher Education Act (HEA), it was clear that debt collector could have complied with both the HEA and with Florida consumer protection law, such that the latter was not impliedly preempted on ground that it was allegedly impossible to comply with both laws. Cliff v. Payco General American Credits, Inc., C.A.11 (Fla.)2004, 363 F.3d 1113. Colleges And Universities Key Number graphic 9.25(2); States Key Number graphic 18.25

"Notwithstanding any provision of State law" clause in "wage garnishment" provision of the Higher Education Act (HEA) preempts only those provisions of state law that would otherwise prohibit or hinder ability of guaranty agency to garnish student loan borrower's wages; it did not preempt state law consumer protection claims which borrower sought to assert for collection agent's alleged violation of requirements of "wage garnishment" provision. Cliff v. Payco General American Credits, Inc., C.A.11 (Fla.)2004, 363 F.3d 1113. Colleges And Universities Key Number graphic 9.25(2); States Key Number graphic 18.25

Florida Consumer Credit Practices Act (FCCPA) is narrower in scope than the federal Fair Debt Collection Practices Act (FDCPA). In re Cooper, Bkrtcy.N.D.Fla.2000, 253 B.R. 286. Consumer Protection Key Number graphic 10

4. Intent

Florida Consumer Collection Practices Act (FCCPA) requires an allegation of knowledge or intent by the debt collector in order to state a cause of action. Kaplan v. Assetcare, Inc., S.D.Fla.2000, 88 F.Supp.2d 1355. Consumer Protection Key Number graphic 10

Alleged debtor's allegations that debt collection services, hospital, and other entities acted jointly and in concert in circumvention of Florida's insurance code and that each defendant was the agent or employee of each of the other defendants were sufficient to allege knowledge or intent by debt collector, as required to state cause of action under the Florida Consumer Collection Practices Act (FCCPA). Kaplan v. Assetcare, Inc., S.D.Fla.2000, 88 F.Supp.2d 1355. Consumer Protection Key Number graphic 38

Title company's conduct in refusing to close sale unless vendor agreed to withholding of alleged debt to third-party insurance agency was in violation of this section and such violation entitled vendor to actual damages, costs, and attorney's fees; however, absent a malicious intent to injure vendor, this conduct could not be characterized as wanton, malicious or gross and outrageous and, thus, vendor was not entitled to punitive damages. Tallahassee Title Co. v. Dean, App. 1 Dist., 411 So.2d 204 (1982). Consumer Protection Key Number graphic 8; Consumer Protection Key Number graphic 40; Consumer Protection Key Number graphic 42

5. Knowledge

To qualify as person who "knows" that debt is not legitimate, so as to be liable under the Florida Consumer Credit Practices Act (FCCPA) for attempting or threatening to collect a debt which is not owed, debt collector must have actual knowledge of impropriety, or of overreach, of claim. In re Cooper, Bkrtcy.N.D.Fla.2000, 253 B.R. 286. Consumer Protection Key Number graphic 10


6. Practices emanating outside state

This section prohibiting abusive tactics in collecting consumer claims did not apply where allegedly offending call emanated from Michigan and was made to Rhode Island. Ford Motor Credit Co. v. Sheehan, App. 1 Dist., 373 So.2d 956 (1979), certiorari dismissed 379 So.2d 204. Consumer Protection Key Number graphic 10

7. Extensions of credit

Payment of cash in exchange for check is not "extension of credit," within meaning of Consumer Collection Practices Act. St. Pierre v. Winn Dixie Stores, Inc., App. 4 Dist., 592 So.2d 1252 (1992). Consumer Protection Key Number graphic 10

8. Improper disclosure

Creditor was not privileged under Consumer Collection Practices Act to inform debtor's intimate friend who was not living with debtor of existence of debtor's debt, in view of fact that such friend was not a member of debtor's family and did not have legitimate business need for such information. Heard v. Mathis, App. 1 Dist., 344 So.2d 651 (1977). Torts Key Number graphic 438; Torts Key Number graphic 351

Debtors could not recover from creditor as result of creditor's action in informing debtor's friend of existence of debtor's debt, in absence of evidence that such disclosure affected debtor's reputation. Heard v. Mathis, App. 1 Dist., 344 So.2d 651 (1977). Torts Key Number graphic 438; Torts Key Number graphic 351

Under this section proscribing disclosure, to a person other than debtor or his family, of information affecting debtor's reputation, with knowledge that other person does not have legitimate business need for the information, the following elements are necessary for a good cause of action: (1) that there was a disclosure of information to person other than member of debtor's family, (2) that such person does not have a legitimate business need for the information, and (3) that such information affected debtor's reputation. Heard v. Mathis, App. 1 Dist., 344 So.2d 651 (1977). Torts Key Number graphic 438

9. Harassment

Provision of this section prohibiting willful communication with such frequency as can reasonably be expected to harass the debtor or his family largely commits to juries double role of defining appropriate standards and applying them on the case-by-case basis, after considering not only frequency of the calls but also the legitimacy of creditor's claim, plausibility of the debtor's excuse, sensitivity or abrasiveness of the personalities and all other circumstances that color the transaction. Story v. J. M. Fields, Inc., App. 1 Dist., 343 So.2d 675 (1977), certiorari denied 348 So.2d 954. Torts Key Number graphic 438

Purpose as well as frequency of calls are relevant in determining whether a creditor or collection agency has harassed a debtor, within meaning of consumer collection practices legislation; proof of numerous calls alone does not make a jury issue where the creditor calls only to inform or remind the debtor of the debt, to determine reasons for nonpayment, to negotiate differences or to persuade the debtor to pay without litigation; however, such communications may be considered harassing when they continue after all such information has been elicited and reasonable efforts at persuasion and negotiation have failed. Story v. J. M. Fields, Inc., App. 1 Dist., 343 So.2d 675 (1977), certiorari denied 348 So.2d 954. Torts Key Number graphic 438

Where information as to existence of debt and reasons for nonpayment have been communicated to debtor and reasonable efforts at persuasion and negotiation have failed, communication beyond that point can reasonably be expected to "harass" the debtor or his family since it tends only to exhaust a resisting debtor's will; if the creditor intends such effect, further communication is willful and actionable under consumer collection practices legislation; if such communication evidences a purpose to inflict insult and injury or is wholly without excuse, punitive damages may be awarded. Story v. J. M. Fields, Inc., App. 1 Dist., 343 So.2d 675 (1977), certiorari denied 348 So.2d 954. Damages Key Number graphic 91.5(3)

Threatening telephone calls made by business concerns to contracting consumers to the effect that their "credit rating will be ruined" and that, should the case go to court, they will "automatically lose" are acts and practices that violate § 5 of the Federal Trade Commission Act and § 501.204, which prohibits unfair and deceptive acts and practices in the conduct of any trade or business. These practices are also in violation of this part, "Consumer Collection Practices." Op.Atty.Gen., 077-32, March 28, 1977.

10. Threats

Letter sent by collection agency to debtor on promissory note in which agency indicated that debtor might be additionally liable for attorney's fees did not constitute unlawful threat within meaning of subsec. (9) of this section. Fox v. Barnett Recovery Corp., App. 5 Dist., 544 So.2d 1157 (1989). Consumer Protection Key Number graphic 10

11. Simulated legal process

Medical professional association's mailing to patient a copy of claim to be filed in court for nonpayment of medical account unless payment was received immediately violated statute prohibiting collecting consumer claims by use of communications simulating legal or judicial process and association was liable for $500 to personal representative of patient. Steiner and Munach, P. A. v. Williams, App. 3 Dist., 334 So.2d 39 (1976), certiorari denied 345 So.2d 429. Consumer Protection Key Number graphic 10

Complaint which alleged, inter alia, that defendant credit exchange company's "demand" for payment of debt unlawfully simulated legal or judicial process, and that such "demand" violated statute in that it gave the appearance of being issued or approved by governmental agency, stated a prima facie cause of action under statute providing, inter alia, that in collecting consumer claims no person may use a communication which simulates in any manner legal or judicial process, or which gives the appearance of being authorized, issued or approved by a governmental agency. Tester v. National Credit Exchange, Inc., App. 1 Dist., 299 So.2d 46 (1974). Torts Key Number graphic 447

12. Intentional infliction of mental distress

Although creditor did not directly communicate to debtor false information concerning alleged injury to debtor's children but communicated such information to debtor's mother, who furnished debtor's address and phone numbers and, in turn, informed debtor of the alleged injuries, such did not absolve creditor from liability for intentional infliction of emotional distress since creditor was the causative force which set into motion the communications resulting in such distress and, also whether or not creditor intended to inflict severe emotional distress was immaterial. Ford Motor Credit Co. v. Sheehan, App. 1 Dist., 373 So.2d 956 (1979), certiorari dismissed 379 So.2d 204. Damages Key Number graphic 57.40

Debtor's testimony that on being told of telephone call wherein creditor's employee identified herself as hospital employee and advised debtor's mother that one or both of debtor's children had been involved in a serious automobile accident and that caller was attempting to locate debtor the debtor was extremely worried, upset and nearly out of his mind for a period of seven hours while he attempted to discover the condition of his children was sufficient proof of emotional distress; while debtor's testimony, considered alone, was not proof of severe emotional distress, when combined with conduct of the creditor its submission to jury was entirely appropriate. Ford Motor Credit Co. v. Sheehan, App. 1 Dist., 373 So.2d 956 (1979), certiorari dismissed 379 So.2d 204. Damages Key Number graphic 208(6)

Depending on the circumstances, use of the word "Debtor" may be actionable under this section providing that in collecting consumer claims no person shall mail any communication to a debtor in an envelope or post card carrying language calculated to embarrass debtor; for example, contents of letter may have been accidentally folded so as to inadvertently cause the words to appear in the window of the envelope and use of the word may have been a calculated attempt to embarrass the recipient; while term "Debtor" may have a legal meaning which is without derogatory connotation, for the general public the word is loaded with unpleasant associations and emotional overtones. Hansen v. Central Adjustment Bureau, Inc., App. 4 Dist., 348 So.2d 608 (1977). Consumer Protection Key Number graphic 10

Medical professional association was not liable on basis of intentional infliction of mental and emotional distress as result of mailing unexecuted claim to patient concerning amount due for services, in absence of physical impact or showing that association's conduct was deliberate and calculated to produce mental and emotional distress or that association knew its action would probably produce such injury to patient and his wife. Steiner and Munach, P. A. v. Williams, App. 3 Dist., 334 So.2d 39 (1976), certiorari denied 345 So.2d 429. Damages Key Number graphic 57.40

13. Person

Automobile financing company was a "person" within meaning of Consumer Collection Practices Act; although the act did not define the term "person," it was not restricted to debt collectors. Schauer v. General Motors Acceptance Corp., App. 4 Dist., 819 So.2d 809 (2002), rehearing denied, clarification granted. Consumer Protection Key Number graphic 10

Under statutes allowing a debtor to bring a civil action against "a person" violating provisions of this part providing that "no person shall" engage in certain prohibited consumer collection practices, word "person" was not limited to collection agencies, but applied to persons generally and included all corporations. Cook v. Blazer Financial Services, Inc., App. 1 Dist., 332 So.2d 677 (1976). Torts Key Number graphic 441

14. Debt collectors

Company in business of repossessing vehicles did not constitute "debt collector" within meaning of Fair Debt Collections Practices Act (FDCPA) and Florida consumer collection practices statute, in absence of any evidence that company contacted debtors by any means or that debt was assigned to company. Seibel v. Society Lease, Inc., M.D.Fla.1997, 969 F.Supp. 713. Consumer Protection Key Number graphic 10


15. Identification of collecting agent

In debtor's action against debt collector to recover damages allegedly sustained as result of collector's statutory violations, there was no evidence to support claims that collector violated the provisions of this section proscribing misrepresentations and prohibiting refusal by a debt collector to provide adequate identification of himself when requested to do so, or violated Truth in Lending Act provisions [15 U.S.C.A. § 1692e] prohibiting a debt collector's false representation that he is an attorney. Carrigan v. Central Adjustment Bureau, Inc., 1980, 502 F.Supp. 468. Consumer Protection Key Number graphic 39

16. Consumer claims

Florida Consumer Collection Practices Act prohibiting person from claiming, attempting, or threatening to enforce "consumer claim" when such person knows that claim is not legitimate necessarily applied to portions of debt. Sandlin v. Shapiro & Fishman, M.D.Fla.1996, 919 F.Supp. 1564. Consumer Protection Key Number graphic 10


16.5. Jurisdiction

After dismissing borrowers' federal claim against lender under Fair Debt Collection Practices Act (FDCPA), district court would not exercise its discretion to retain supplemental jurisdiction over borrowers' claim against lender for alleged violations of Florida Consumer Collection Practices Act, even though underlying statute appeared to provide greater protection to consumers than FDCPA and borrowers appeared to have viable claim under that statute. Craig v. Park Financial of Broward County, Inc., M.D.Fla.2005, 390 F.Supp.2d 1150. Federal Courts Key Number graphic 18

17. Pleadings

Allegations that law firm representing mortgagee sought to collect impermissible payoff fee from mortgagors stated claim under Florida Consumer Collection Practices Act prohibiting claim, attempt, or threat to enforce consumer claim which is not legitimate. Sandlin v. Shapiro & Fishman, M.D.Fla.1996, 919 F.Supp. 1564. Consumer Protection Key Number graphic 38

In order to state claim against debt collector under the Florida Consumer Credit Practices Act (FCCPA), for attempting or threatening to collect a debt which is not owed, complaint must contain an allegation of knowledge or intent. In re Cooper, Bkrtcy.N.D.Fla.2000, 253 B.R. 286. Consumer Protection Key Number graphic 10; Consumer Protection Key Number graphic 38

Court will not enter judgment under the Florida Consumer Credit Practices Act (FCCPA) without more than the conclusory allegations of plaintiff. In re Cooper, Bkrtcy.N.D.Fla.2000, 253 B.R. 286. Consumer Protection Key Number graphic 38

Complaint alleging that defendant mailed to plaintiff an envelope with a window type opening, in which, directly above plaintiff's name and address, appeared the word "Debtor" and that such was done with intent of conveying meaning that plaintiff was a confirmed and habitual debtor and that such words were read by defendant's employees as well as postal employees, exposing plaintiff to ridicule and distrust, would state cause of action under Consumer Collection Practices Act if amended to allege that defendant was collecting consumer claims. Hansen v. Central Adjustment Bureau, Inc., App. 4 Dist., 348 So.2d 608 (1977). Torts Key Number graphic 438

Buyer's complaint alleging that defendant seller, knowing buyer's account was satisfied, attempted to effect the collection of an amount not due sufficiently stated cause of action based on alleged violation of statute governing consumer collection practices, and circuit court had jurisdiction of such claim based on such statute. Williams v. Streeps Music Co., Inc., App. 4 Dist., 333 So.2d 65 (1976). Torts Key Number graphic 438

Complaint which alleged inter alia, that defendant credit exchange company's "demand" for payment of debt unlawfully simulated legal or judicial process, and that such "demand" violated statute in that it gave the appearance of being issued or approved by governmental agency, stated a prima facie cause of action under state providing, inter alia, that in collecting consumer claims no person may use a communication which simulates in any manner legal or judicial process, or which gives the appearance of being authorized, issued or approved by a governmental agency. Tester v. National Credit Exchange, Inc., App. 1 Dist., 299 So.2d 46 (1974). Torts Key Number graphic 447

17.5. Discovery

Court order requiring debt collection agency to produce telephone records and correspondence involving other debtors did not violate state Consumer Collection Practices Act because agency was not collecting a consumer debt in responding to an order of the court compelling the production of documents. Florida First Financial Group, Inc. v. De Castro, App. 4 Dist., 815 So.2d 789 (2002). Consumer Protection Key Number graphic 10

18. Class actions

Typicality requirement of class action rule was satisfied for particular subclass of condominium unit and home owners, who claimed that law firm which represented condominium association in foreclosure actions failed to include due dates on claims of lien in violation of Florida Consumer Collection Practices Act (FCCPA), since all class members were sent same letter, condominium unit owners had incentive to aggressively pursue interests of homeowners, factual distinction between homeowners and condominium owners was irrelevant to plaintiffs' claim, and plaintiffs were willing to craft subclass of condominium owners in event that homeowners did not have valid claim. Agan v. Katzman & Korr, P.A., S.D.Fla.2004, 222 F.R.D. 692. Federal Civil Procedure Key Number graphic 182.5

Commonality requirement of class action rule was satisfied, in lawsuit brought by condominium unit owners under Fair Debt Collection Practices Act (FDCPA) and Florida Consumer Collection Practices Act (FCCPA) against law firm that represented condominium association in foreclosure actions, since each class member received similar form letters and claims of lien; attachment of account ledger to letter did not change either factual or legal questions presented by class members and commonality was not destroyed because amount of debt on form letter varied between class members or because list of account transactions varied between class members. Agan v. Katzman & Korr, P.A., S.D.Fla.2004, 222 F.R.D. 692. Federal Civil Procedure Key Number graphic 182.5

Numerosity element of class action rule was satisfied, in lawsuit brought by condominium unit owners under Fair Debt Collection Practices Act (FDCPA) and Florida Consumer Collection Practices Act (FCCPA) against law firm that represented condominium association in foreclosure actions, since owners made reasonable estimate that proposed class was 1,176 and joinder of such large number of proposed class members was impractical. Agan v. Katzman & Korr, P.A., S.D.Fla.2004, 222 F.R.D. 692. Federal Civil Procedure Key Number graphic 182.5

Commonality requirement of class action rule was satisfied where named plaintiffs asserted that each prospective class member received one of two variations of a collection letter, and that the letter violated the Fair Debt Collection Practices Act (FDCPA) and the Florida Consumer Collection Practices Act (FCCPA). Fuller v. Becker & Poliakoff, P.A., M.D.Fla.2000, 197 F.R.D. 697. Federal Civil Procedure Key Number graphic 182.5

Typicality requirement of class action rule was satisfied in suit alleging that debt collection letter violated the Fair Debt Collection Practices Act (FDCPA) and the Florida Consumer Collection Practices Act (FCCPA), where each of the prospective members received a variation of the same collection letter as the named plaintiffs. Fuller v. Becker & Poliakoff, P.A., M.D.Fla.2000, 197 F.R.D. 697. Federal Civil Procedure Key Number graphic 182.5

19. Summary judgment

District court would not enter summary judgment in plaintiff's favor in action under Florida Consumer Collection Practices Act without more than plaintiff's conclusory allegations. Gill v. Kostroff, M.D.Fla.2000, 82 F.Supp.2d 1354. Federal Civil Procedure Key Number graphic 2494.5

Genuine issue of material fact existed as to whether credit card company and its attorney knew when they disclosed information to consumer's employer through income execution that debt was false, precluding summary judgment for consumer in action against company and attorney under Florida Consumer Collection Practices Act. Gill v. Kostroff, M.D.Fla.2000, 82 F.Supp.2d 1354. Federal Civil Procedure Key Number graphic 2494.5

Documents filed by borrower with county court in suit against lender alleging that lender's agent sent her a collection letter in violation of the Florida Consumer Collection Practices Act were not authenticated or supported by any affidavit or other evidentiary proof in response to lender's motion for summary judgment and affidavit, which established that it had not received timely notice of borrower's bankruptcy filing, and thus, borrower's documents were insufficient to demonstrate that lender was liable under the Act. First North American Nat. Bank v. Hummel, App. 2 Dist., 825 So.2d 502 (2002). Judgment Key Number graphic 185(4)

20. Instructions

Trial court did not err in failing to instruct jury that debtors were entitled to damages of $500 for each violation of this section prohibiting certain practices in the collection of consumer claims. Peters v. Collision Clinics Intern. Inc., App. 4 Dist., 404 So.2d 116 (1981). Consumer Protection Key Number graphic 36.1

21. Jury questions

Proof of almost daily calls amounting to more than 100 in a five-month period, which calls continued after debtor told creditor's representative to quit calling and to go to court, was sufficient to present to jury issue of actual damages in suit under consumer collection practices legislation; however, since the calls were without invective and were made during normal business hours and the demand for payment was not without cause, the calls were not malicious and issue of punitive damages was properly withdrawn. Story v. J. M. Fields, Inc., App. 1 Dist., 343 So.2d 675 (1977), certiorari denied 348 So.2d 954. Damages Key Number graphic 208(1); Damages Key Number graphic 208(Cool

22. Attorneys fees

Plaintiff who prevailed on claim for damages as result of defendant's prohibited consumer collection practices was entitled to award of attorney's fees that exceeded contingency fee contained in contract between plaintiff and his attorney, since plaintiff's claim was a public policy enforcement case, and contractual fee arrangement did not cap fees awarded in such cases. R. Martin Salzgeber, D.D.S., P.A. v. Kelly, App. 2 Dist., 826 So.2d 366 (2002), rehearing denied, review denied 839 So.2d 699. Consumer Protection Key Number graphic 42

Debtor's counterclaim against creditor to recover for alleged violation of Consumer Collection Practices Act, which counterclaim was one of first impression under the Act, and was based on creditor's disclosure to debtor's friend of existence of debtor's debt, was neither ill founded nor brought for purposes of harassment, and therefore, creditor was not entitled to award of attorney's fees. Heard v. Mathis, App. 1 Dist., 344 So.2d 651 (1977). Consumer Credit Key Number graphic 18
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imnotpaying
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« Reply #17 on: October 31, 2006, 10:19:56 AM »

Once Again thanks for everyone’s help.

I think I see a clear endgame to this. I need your opinion.

First a little news. The court messed up and "compelled" the wrong discovery request. I went to the court and corrected it and they are sending out an amended order. I told them I would need at least 60 days for the "motion to compel" to complete and have time to file more motions - They just canceled the trail date.

As a bonus  I got my 2nd second discovery request answered pretty quick :=)

A quick evidence review.

They have nothing from the OC.

In their notice of filing they provided  the following:

8 invoices from First Select
A generic bill of sale with no real information.
An undated Account Verification Statement from Credigy. Basically a printout of what is in their computer. The Account Statment does state the "Charge off Date" is 1/xx/2002.  (they filed suit 5/2006)

An affidavit statement stating the affiant had reviewed the books for credigy and determined I owed the money. In my 2nd discovery request (one the the court compelled) I asked for the documents the affiant had reviewed to determine that I owed money.

They replied to that question by sending the exact documents they sent before.

8 invoices from First Select
A generic bill of sale with no real information.
An undated Account Verification Statement from Credigy

I am waiting for the amended motion to compel to run out. I expect they will object to most of the questions but they are going to have to answer some, and it is going to show they do not have any more proof than what has already been presented.


They simply do not have documentation required for a 5 year SoL. I plan to do another MSJ and argue Portfolio vs Fernadez,  Klein v. Frank, ARDC Corp. v. Hogan etc.

I am not going to worry about my counter-claims or anything else but SoL. If I win the Judge will just set the my counter-claims for trail..... and the judge has already said they have to drive to the trial which about 2 1/2 hours one way.

Also if I win using Fernandez I will have also shown that they know they did not have the proof for a 5 Sol. (the attorneys fighting me also fought and lost the Fernandez case) That proves one of my counter claims.  

I have watched the judge and he does things by the law and really likes to see case law so I feel pretty good about this plan.

your thoughts?
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cisco3280
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« Reply #18 on: November 14, 2006, 06:56:02 AM »

bump bump
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eware of Floridian Consumers !!
VexatiousLitigant
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« Reply #19 on: November 29, 2006, 07:23:00 AM »

Update?  I need more stories on the "I'm a little slow here" judge.
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DUSTY
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« Reply #20 on: December 02, 2006, 07:22:06 PM »

Following with great interest.  Seems like you have a judge who actually reasons.  Have you found case law that proves 'his theory' that they misrepresent their ability to collect the 'debt' if they don't notify as per 559.715.  I see an early X-Mass for all in Florida and your good year! :lol:
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DUSTY
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« Reply #21 on: December 02, 2006, 08:10:52 PM »

"A debt collector violates 559.72(9), only if the debt collector knows that the claim is no legitimate.  It is not enough to prove that the debt collector should have known."  
 
Williams v. Steeeps Music Company, Inc., 333 So.2d 65 (Fla. 4th DCA 1976); Kaplan v Assetcare, Inc., 88 F. Suppp.2d 1355 (S.D. Fla. 2000)
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DUSTY
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« Reply #22 on: December 05, 2006, 04:12:31 PM »

Quote from: "hannah"
Great job!! Congrats!!

Post a copy of 559.715 here and I'll see if I can find any caselaw...


Any case law yet!?

How about what is necessary to perfect 'assignment'.  Florida requires notice of assignment.   JDB alleged it was assigned the debt, that wasn't true becasue they didn't perfect the assignment.

I know you guys know this better than me, hey Fraudie?  Let's make sure we get this right for all of us.
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