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imnotpaying
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« on: December 06, 2006, 01:42:01 PM »

Hi Everyone,
Here is my new MSJ - any thoughts?


Quote

COMES NOW, the Defendant, Pro Se, and files this Motion for Summary Judgment, and as grounds therefore would show this Court that:

1.   This alleged debt is barred by the Statue of Limitations as explained in “Defendant’s Memorandum in Support of Motion for Summary Judgment.”

2.   Plaintiff is barred from collecting this debt because they did not “give the debtor written notice of such assignment within 30 days after assignment” per F.S. 559.715. Court asked for proof of written notice at the motion hearing for Plaintiff’s “Motion to Dismiss Counterclaim”, and Defendant has requested proof though discovery. Plaintiff has provided no such proof.
a.   “the assignee MUST give the debtor written notice of such assignment within 30 days after the assignment.” F.S. 559.715

WHEREFORE, Defendant respectfully requests that this Court enter an Order dismissing Plaintiff’s claims with prejudice.



Quote


DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT

The Following shows why this debt is barred by the statute of limitations;

1.   Plaintiff states the charge-off January xx, 2002 in their “Account Verification Statement.”

2.   Any cause of action for breach accrues from the time of the breach, which is at least 180 days prior to the charge-off date, making the time of the alleged breach at or before July 20, 2001.
3.   It is well settled in this jurisdiction and elsewhere, that a cause of action for breach of contract accrues and, therefore, the statute of limitations begins to run, at the time of the breach.


(case law supporting paragraph 3)
A. F. Pylant, Inc. v Escambia Treating Co. 276 F.2d 924 (Fla. CA5 1960);
Briggs v Fitzpatrick 79  So 2d 848 (Fla. 1955);
In re Shambow's Estate 153 Fla. 762, 15 So 2d 837 (18 Kan. 1041943);
Roth v State Farm Mut. Auto. Ins. Co. 581 So 2d 981, 16 FLW D 1647 (Fla. 2nd DCA 1991);
Donovan v State Farm Fire & Casualty Co. 574 So 2d 285 (Fla. 2nd D.C.A, 1991);
Mason v Yamms 483 So 2d 832, 11 FLW 541 (Fla. 2nd DCA, 1986);
Aetna Cas. & Sur. Co. v Board of Public Instruction 795 So 2d 4(Fla. 2nd DCA 1967) 7; Fradlev v County of Dade 187 So 2d 48 (Fla. 3rd DCA 1966).



4.    Plaintiff’s written evidence is incomplete to establish liability. Oral testimony and/or Parol Evidence will be required to make complete the showing of any alleged legal liability incurred by defendant. As such their claims are governed by the four-year Statute of Limitations.
Klein v. Frank, 534 F.2d 1104. C.A.5 1976.
ARDC Corp. v. Hogan, 656 So.2d 1371 (Fla. App. 4 Dist. 1995), review denied 666 So.2d 143.
PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13   Fla. L. Weekly Supp. 560a 2006
McGill v Cockrell, 101 So.2d 199 (Fla. 1924) Id at 201.

5.   No tolling applies for actions not founded on a written instrument.
Hospital Constructors Ltd. Ex rel. Lifemark Hospitals of Florida, Inc v Lefor 749 So.2d 546 (Fla 2nd DCA 2000)

6.   “The nature of the claim, and not the specific form of action selected by a plaintiff to assert it, determines the applicable statute of limitations.”
 PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13   Fla. L. Weekly Supp. 560a 2006

The above shows that this debt is governed by the four-year Statute of Limitations and that that period expired on or around July xx, 2005.

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fraudfighter
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« Reply #1 on: December 06, 2006, 09:00:58 PM »

Quote from: "imnotpaying"
Hi Everyone,
Here is my new MSJ - any thoughts?


Quote

COMES NOW, the Defendant, Pro Se, and files this Motion for Summary Judgment, and as grounds therefore would show this Court that:

1.   This alleged debt is barred by the Statue of Limitations as explained in “Defendant’s Memorandum in Support of Motion for Summary Judgment.”

2.   Plaintiff is barred from collecting this debt because they did not “give the debtor written notice of such assignment within 30 days after assignment” per F.S. 559.715. Court asked for proof of written notice at the motion hearing for Plaintiff’s “Motion to Dismiss Counterclaim”, and Defendant has requested proof though discovery. Plaintiff has provided no such proof.
a.   “the assignee MUST give the debtor written notice of such assignment within 30 days after the assignment.” F.S. 559.715

WHEREFORE, Defendant respectfully requests that this Court enter an Order dismissing Plaintiff’s claims with prejudice.



Quote


DEFENDANT’S MEMORANDUM IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT

The Following shows why this debt is barred by the statute of limitations;

1.   Plaintiff states the charge-off January xx, 2002 in their “Account Verification Statement.”

2.   Any cause of action for breach accrues from the time of the breach, which is at least 180 days prior to the charge-off date, making the time of the alleged breach at or before July 20, 2001.
3.   It is well settled in this jurisdiction and elsewhere, that a cause of action for breach of contract accrues and, therefore, the statute of limitations begins to run, at the time of the breach.


(case law supporting paragraph 3)
A. F. Pylant, Inc. v Escambia Treating Co. 276 F.2d 924 (Fla. CA5 1960);
Briggs v Fitzpatrick 79  So 2d 848 (Fla. 1955);
In re Shambow's Estate 153 Fla. 762, 15 So 2d 837 (18 Kan. 1041943);
Roth v State Farm Mut. Auto. Ins. Co. 581 So 2d 981, 16 FLW D 1647 (Fla. 2nd DCA 1991);
Donovan v State Farm Fire & Casualty Co. 574 So 2d 285 (Fla. 2nd D.C.A, 1991);
Mason v Yamms 483 So 2d 832, 11 FLW 541 (Fla. 2nd DCA, 1986);
Aetna Cas. & Sur. Co. v Board of Public Instruction 795 So 2d 4(Fla. 2nd DCA 1967) 7; Fradlev v County of Dade 187 So 2d 48 (Fla. 3rd DCA 1966).



4.    Plaintiff’s written evidence is incomplete to establish liability. Oral testimony and/or Parol Evidence will be required to make complete the showing of any alleged legal liability incurred by defendant. As such their claims are governed by the four-year Statute of Limitations.
Klein v. Frank, 534 F.2d 1104. C.A.5 1976.
ARDC Corp. v. Hogan, 656 So.2d 1371 (Fla. App. 4 Dist. 1995), review denied 666 So.2d 143.
PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13   Fla. L. Weekly Supp. 560a 2006
McGill v Cockrell, 101 So.2d 199 (Fla. 1924) Id at 201.

5.   No tolling applies for actions not founded on a written instrument.
Hospital Constructors Ltd. Ex rel. Lifemark Hospitals of Florida, Inc v Lefor 749 So.2d 546 (Fla 2nd DCA 2000)

6.   “The nature of the claim, and not the specific form of action selected by a plaintiff to assert it, determines the applicable statute of limitations.”
 PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13   Fla. L. Weekly Supp. 560a 2006

The above shows that this debt is governed by the four-year Statute of Limitations and that that period expired on or around July xx, 2005.


I hope the judge agrees on 559.715.
You should state the date of the complaint to show the four year limitations period expired prior to the complaint date.
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imnotpaying
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« Reply #2 on: December 06, 2006, 09:33:26 PM »

Quote

I hope the judge agrees on 559.715.


I think he will. He brought it up at the last hearing. JDB tried to have it dissmissed). Judge did not dissmiss it and said it isc both a danfence as well as a counterclaim.

The judge did ask about case law on it but I cant find any anywhere. If anyone has or can find caselaw on 559.715 please post it.
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DUSTY
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« Reply #3 on: December 07, 2006, 04:42:06 PM »

This is a case I found that deal with a different 'assignment' but LOOK the court said the assignment was valid, but the Debtor didn't have to pay because they didn't receive notice as required by Florida Statute.  You could use the same arguement but, that in this case it's FS 559.715 that dictates the notice of assignment.  It's gotta be good, if you can't find a direct ruling come on guys shoot it down!

Sorry I gotta figure out how to format here

PRIOR HISTORY: [**1]
An Appeal fiom the Circuit Court of Dade County, Robert
Newman, Judge.
COUNSEL:
Simon, Schindler, Hurst & Sandberg and Thomas M.
Pllaum, fbr Appellant.
Judith Kazer Lamet and David L. Swimmer. for
Appellee.
.IUDGES:
Hubbart, Baskin, and Ferguson, JJ.
OPINION BY:
PER CURIAM
OPINION:
[*5121 This is an appeal by the defendant City of North Miami liom a linal judgment requiring it to pay
sums allcgcdly due under an assignment held by the plaintifi'American Fidelity Fire Insurance Company as
assignee. We reverse for entry of a final judgment in favor of the del'endant City of North Miami based on the
tbllowing, briefly stated legal analysis.  

First, wc assume, without deciding, that the assignment
herein made by R.J.L. Trading Company to Seitlin and Company was a valid one - notwithstanding the fact
that the contract between R.J.L. Trading Company and the City of North Miami prohibited any assignment without
the consent of the City of North Miami, which we find the latter justifiably retused - on the theory that (a) Article 9
oi Florida's Unifbrm Commercial Code [$ 6'19.102(l)(a), Fla.Stat.(1985)l governs this assignment as i t creates
a security interest therein, and (b) the above contract [**2] provision prohibiting the said assignment was,
therefore, ineffective under Section 679.318(4), Florida Statutes (1985). FLorida First Nat'l Bank at Key West v.
Fryd Constr. Corp., 245 So.2d 883, 886 (Fla. 3d DCA 197 l); Mississippi Bank v. Nickles & Wells Constr Co.,
421 So.2d 1056 (Miss. 1982); Aetna Casualty & Surety Co. v. Bedford-Sluyvesant Restoration Constr. Corp.,90
A.D.2d 471, 455 N.Y.S.2d 265 (1982); American Bank of Commerce v. Cily of McAlester, 555 P.2d 581 (Okla.
1976).

Second, thc DEFENDENT CITY OF N MIAMI BEACH WAS NEVER NOTIFIED to pay the assigneD undcr thc abovc sccurity rn-terest
assignment as requircd by Scction 679.318(3) ol' Florida's Uniform Commercial Code and was therefore
,, privileged to pay. as i t did, its creditor R.J.L. Trading 1l\ Company, the assignor under the assignment. WE REJECT
\l \,r,. uigurn.n, THAT THE ASSIGNMENT ITSELF. which was grvcn \\ lro ttt."Citv of North Miami, constitutes sufficicnt notice to l t l
I Jnay the above assignee, as there is nothing in the assign-I ment which requests the City oi North Miami to pay thc ' said assignee. Esnte of Haas v. Metro-Goldwyn-Maver,
lnc.,617 f.2d 1136 (sth Cir. 1980); Vacura v. Haar's Equip., |nc.,364 N.W.2dl**3) 387 (Minn. 1985); Firsr
Nat'l Bank at E. Sl. Louis v. Board of Educ., School Dist. No. 189, 68 ILl.App.3d 21, 385 N.E.2d 8l l , 24 l l l . Dec.
670 (App.Ct. 1979); American Bank of Contnterce v. Citv of McAlester, 555 P2d 58i| (Okla. 1976).

Third, this bcing so, i t is plain that thc DEFENDENT 'City of North Miami is NOT INDEBTED UNDER THE PRESENT ASSIGNMENT
to thc prcscnt holdcr of same as assigncc - namcly, American Fidelity Firc Insurance Company - and there-fore
the final judgment in t-avor of the latter on the said assignment was erroneously entered below.
The final judgment under rcview is, therefore, re-versed and the cause is remanded to the tnal coun with
directions to [*513] enter judgment in favor of thc dc-fendant City of North Miami.
Reversed and remanded.
19 of 250 DOCUMENTS
City of North Miami, a political subdivision of the State of Florida, Appellant v. American
Fidelity Fire Insurance Company, a foreign corporation, Appellee
No.86-1394
Court of Appeals of Florida, Third District
505 So. 2d 511; 1987 FIa. App. LEXIS 7348; 3 U.C.C. Rep. Sem. 2d (Callaghan) 837; 12 Fla.
L. Weekly 849
March 24, 1987, Filed
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VexatiousLitigant
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« Reply #4 on: December 07, 2006, 05:50:42 PM »

The above, translated into English.

Quote



505 So.2d 511, 12 Fla. L. Weekly 849, 3 UCC Rep.Serv.2d 837



District Court of Appeal of Florida,
Third District.
CITY OF NORTH MIAMI, a political subdivision of the State of Florida, Appellant,
v.
AMERICAN FIDELITY FIRE INSURANCE COMPANY, a foreign corporation, Appellee.

No. 86-1394.

March 24, 1987.
Rehearing Denied May 7, 1987.


City appealed from judgment of the Circuit Court, Dade County, Robert Newman, J., requiring it to pay sums allegedly due under assignment. The District Court of Appeal held that: (1) city, which was never notified to pay assignee under security interest assignment as required by law, was privileged to pay its creditor, and (2) assignment itself, which was given to city, did not constitute sufficient notice to city to pay assignee, as opposed to its creditor, the assignor.
Reversed and remanded.


West Headnotes

[1] KeyCite Notes

38 Assignments
   38V Rights and Liabilities
     38k93 k. Payment of Debt Assigned. Most Cited Cases

City, which was never notified to pay assignee under security interest assignment, was privileged to pay its creditor. West's F.S.A. § 679.318(3).

[2] KeyCite Notes

38 Assignments
   38V Rights and Liabilities
     38k93 k. Payment of Debt Assigned. Most Cited Cases

Assignment itself, which was given to city, did not constitute sufficient notice to city to pay assignee, as opposed to its creditor, where there was nothing in assignment which required city to pay assignee.

*512 Simon, Schindler, Hurst & Sandberg and Thomas M. Pflaum, Miami, for appellant.
Judith Kazer Lamet and David L. Swimmer, Miami, for appellee.

Before HUBBART, BASKIN and FERGUSON, JJ.


PER CURIAM.
This is an appeal by the defendant City of North Miami from a final judgment requiring it to pay sums allegedly due under an assignment held by the plaintiff American Fidelity Fire Insurance Company as assignee. We reverse for entry of a final judgment in favor of the defendant City of North Miami based on the following, briefly stated legal analysis.

First, we assume, without deciding, that the assignment herein made by R.J.L. Trading Company to Seitlin and Company was a valid one-notwithstanding the fact that the contract between R.J.L. Trading Company and the City of North Miami prohibited any assignment without the consent of the City of North Miami, which we find the latter justifiably refused-on the theory that (a) Article 9 of Florida's Uniform Commercial Code [§ 679.102(1)(a), Fla.Stat. (1985) ] governs this assignment as it creates a security interest therein, and (b) the above contract provision prohibiting the said assignment was, therefore, ineffective under Section 679.318(4), Florida Statutes (1985). Florida First Nat'l Bank at Key West v. Fryd Constr. Corp., 245 So.2d 883, 886 (Fla. 3d DCA 1971); Mississippi Bank v. Nickles & Wells Constr. Co., 421 So.2d 1056 (Miss.1982); Aetna Casualty & Surety Co. v. Bedford-Stuyvesant Restoration Constr. Corp., 90 A.D.2d 474, 455 N.Y.S.2d 265 (1982); American Bank of Commerce v. City of McAlester, 555 P.2d 581 (Okla.1976).

[1] [2]  Second, the defendant City of North Miami was never notified to pay the assignee under the above security interest assignment as required by Section 679.318(3) of Florida's Uniform Commercial Code and was therefore privileged to pay, as it did, its creditor R.J.L. Trading Company, the assignor under the assignment. We reject the argument that the assignment itself, which was given to the City of North Miami, constitutes sufficient notice to pay the above assignee, as there is nothing in the assignment which requests the City of North Miami to pay the said assignee. Estate of Haas v. Metro-Goldwyn-Mayer, Inc., 617 F.2d 1136 (5th Cir.1980); Vacura v. Haar's Equip., Inc., 364 N.W.2d 387 (Minn.1985); First Nat'l Bank at E. St. Louis v. Board of Educ., School Dist. No. 189, 68 Ill.App.3d 21, 24 Ill.Dec. 670, 385 N.E.2d 811 (App.Ct.1979); American Bank of Commerce v. City of McAlester, 555 P.2d 581 (Okla.1976).

Third, this being so, it is plain that the defendant City of North Miami is not indebted under the subject assignment to the present holder of same as assignee-namely, American Fidelity Fire Insurance Company-and therefore the final judgment in favor of the latter on the said assignment was erroneously entered below.

The final judgment under review is, therefore, reversed and the cause is remanded to the trial court with directions to *513 enter judgment in favor of the defendant City of North Miami.

Reversed and remanded.

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DUSTY
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« Reply #5 on: December 08, 2006, 05:40:50 AM »

I also did find an old Penn. Supreme Court ruling quoted by a recent US District Court of Penn (2006 US Dis. LEXIS 21052) regarding notice's assignments(apparently judgements) where 'debtor' must be notified.  Even recording at the courthouse did not satisfy the notice to 'debtor'.

'debtors should not be required to periodically ascertain who owns their debts'

And the 1853 Penn Supreme Court "The general rule seems to be established (and so it ought to be) that a secret transfer has no power in it against the debtor."

It appears that this general thought has prevailed and is widely accepted that by statute it's enlarged, I guess from the common law 'general rule' to the statutory rule inour case of 559.715 which dictate that the notice must occur within 30 days.
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CrzyAmeriCan
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« Reply #6 on: December 16, 2006, 06:12:58 PM »

Did you ever file this? How did it turn out?

Inquiring minds want to know.
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imnotpaying
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« Reply #7 on: December 16, 2006, 06:26:06 PM »

Quote from: "CrzyAmeriCan"
Did you ever file this? How did it turn out?

Inquiring minds want to know.


I filed a MSJ and a motion to precude. Motion hearing isc in about 3 weeks and the trail date is a couple of days later.
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CrzyAmeriCan
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« Reply #8 on: December 17, 2006, 09:14:11 AM »

I think (not sure yet) my attorney might have included 559.715 in my MSJ. I will see when I get copies of everything. I was going to at a minimum file a complaint.

I have pretty clear evidence that a the JDB purchased account in July 04 and first dunning letter sent Jan 05. They provided a bill of sale and I have the letter that says on it "first notice".

Thats why I am so curious Wink
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DUSTY
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« Reply #9 on: December 17, 2006, 08:03:42 PM »

I'll try to dig up the contruction and staff comments etc... re: the Bill that made this Statute 559.715 (apparently passed in 1989 and modified in 1993), has anyone tried that before (I'm sure someone has peeked).  I know it's the last resort of interpretation left to a judge absent any precedent.

The question is does that make the assignment incomplete and/or allow a COA?
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« Reply #10 on: December 19, 2006, 07:01:36 PM »

Quote from: "DUSTY"

The question is does that make the assignment incomplete and/or allow a COA?


I did not claim it a defense, only a counter claim. The Judge said it was a defense and a counterclaim. The JDB said it was a counterclaim but had no penalty. The Judge said that it did because it voilates 559.72(9)


(9)  Claim, attempt, or threaten to enforce a debt when such person knows that the debt is not legitimate or assert the existence of some other legal right when such person knows that the right does not exist;
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VexatiousLitigant
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« Reply #11 on: December 20, 2006, 07:34:50 AM »

Why not claim it as a defense?
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« Reply #12 on: December 26, 2006, 08:35:40 PM »

Quote from: "VexatiousLitigant"
Why not claim it as a defense?


I did not understand the game well enough. I really thought 559.715 was a long shot. The Judge made me aware it is a defence as well:


UPDATE: The other side has sent an opposistion to my summary judgement. They said nothing about the Sol claim but are going to fight 559.715. They are tring to cliam that it is a counter cliam only with no penalty for not following it. They then state even if there was a penalty it would only be $1000 (559.72) and they would still be allowed to collect the debt. THis is pretty much what they tried before with and lost.
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fraudfighter
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« Reply #13 on: December 27, 2006, 04:17:16 AM »

Quote from: "Florida Debtor"
Quote from: "VexatiousLitigant"
Why not claim it as a defense?


I did not understand the game well enough. I really thought 559.715 was a long shot. The Judge made me aware it is a defence as well:


UPDATE: The other side has sent an opposistion to my summary judgement. They said nothing about the Sol claim but are going to fight 559.715. They are tring to cliam that it is a counter cliam only with no penalty for not following it. They then state even if there was a penalty it would only be $1000 (559.72) and they would still be allowed to collect the debt. THis is pretty much what they tried before with and lost.


Well, they filed no opposition to your SJ motion based on SoL, thus you move the court to rule in your favor and emphasize to the court that no opposition was filed to your SJ. They can't introduce any evidence at the SJ hearing according to the SJ rule. The SJ is decided on the evidence submitted prior to the hearing. (Although a memorandum of law can be submitted at the hearing, which is really all they can argue: that the SoL is supposed to be 5. But without an actual written instrument in evidence, it's not in their case. SJ for DEFT.) Then move for summary judgment on your counterclaim on the 559.715-559.772(9) violation.
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« Reply #14 on: December 27, 2006, 07:22:00 AM »

What exactly would be the point of a counterclaim with no penalty?
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