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Author Topic: My MSJ  (Read 10720 times)
Florida Debtor
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« Reply #15 on: December 27, 2006, 07:32:13 AM »

Quote from: "VexatiousLitigant"
What exactly would be the point of a counterclaim with no penalty?


I agree with you and so did the judge when they tried a "motion to dissmiss defendants counterclaims". I will be at the law library this week researching everything I can. So far I can find no case law on 559.715.

I guess I also need to review the notes on the bill as well but I dont know how to find it.

Once again here is the statue:
559.715  Assignment of consumer debts.--This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment within 30 days after the assignment. The assignee is a real party in interest and may bring an action in a court of competent jurisdiction to collect a debt that has been assigned to such assignee and is in default.

History.--s. 1, ch. 89-69; ss. 6, 13, ch. 93-275.

It looks pretty straight forward to me if you dont give notice of assignment you cant collect the debt.

Can anyone tell me what this means?

History.--s. 1, ch. 89-69; ss. 6, 13, ch. 93-275.

Is there a book for that?
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I am not a lawyer. It would not be wise to use anything I say as legal advise. Check for yourself.
DUSTY
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« Reply #16 on: December 27, 2006, 07:54:05 AM »

Don't have much time to research this statute, but I couldn't find any case law or thoughts other then before.  I would try to find the legislative reports.  I tried online as I've done before but, it doesn't go back that far.  

Try calling a legislature help line and track down the bills listed at the bottom of the statute that made the law and the related committee reports.  Make sure you have a strong case, or we'll get bad ruling.  Bad precedent is bad.
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VexatiousLitigant
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« Reply #17 on: December 27, 2006, 04:37:29 PM »

I think the JDB will appeal any adverse ruling under 559.715 assuming this is a larger JDB with a big Florida presence.
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DUSTY
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« Reply #18 on: December 27, 2006, 05:57:05 PM »

then we'd have to ante in for Perry Mason or something.  I hope I've been able to be helpful here.  I'm not nearly as knowledgable as some here, but I did check

"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"

This is a far different statute we posted earlier, take notice it was a 1987 case that has changed.  Hopefully the reasoning was the same.  Maybe the judge was thinking of a case that was a 'secured transation' and would be willing to accept the reasoning.  The fact that the law changed may be immaterial if it said notification must be given and the court case interpreted that to mean it affected the ability to collect.
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« Reply #19 on: December 30, 2006, 10:36:34 AM »

I went to the law library and found this using their westlaw account:

FlJUR ASSIGN * 20

III. Requisites of a Valid Assignment

* 20 Delivery

West's Key Number Digest, Assignments 35 to 39,45

Delivery and acceptance of possession is essential to the consummation of the assignment of a chose in action. For an assignee of a chose in action to acquire the right to stand in the shoes of the assigning creditor, he must acquire some "delivery or "possession" of the debt constituting a means of clearly establishing his right to collect, delivery of notice of assignment to the debtor fixed accountability of the debtor to the assignee. Proper notice to the debtor of the assignment is a manifestation of such delivery.

The delivery of a written assignment is sufficient to vest in the assignee the legal interest assigned, and absece of a seal on the assignment does not affect its validity.

Boulevard Nat. Bank of Miami v. Air Metal Industries 176 So. 2d 94 (Fla 1965)  
NOTE: I NEED A COPY OF THis CASE LAW!

I am reading the above as "the assignment is not compete untill the assignee give notice of assignent to thr debtor"
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« Reply #20 on: December 30, 2006, 03:11:55 PM »

...a right to recover money due on a contract which can not be enforced against a reluctant party without suit.
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« Reply #21 on: January 08, 2007, 03:51:19 PM »

I went to motions court today a presented two motions.

Motion to Preclude
Motion for Summary Judgement.


The other site pretty much admitted they did not comply with discovery and the judge said he would rule tommorrow on this at the trial. He pretty much said he would not let them enter any more evidence.

The  MSJ has 2 parts.
1. They debt is beond the SOL and they cant collect on it. Judge wants to rule on this at trial.

2. they did not give notice of assignment (559.715) and have not completed the assignment so they are barred from using the court to collect the debt.

The other side is claiming that 559.715 has no penalty and does have to be followed. They addmidded they are in violation of it.

The judge took all of my caselaw  and said he wil read and review everything tonight at home and rule on my MSJ tommorrow right before trial.

long day tommorrow.
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VexatiousLitigant
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« Reply #22 on: January 08, 2007, 09:27:56 PM »

Where is the 3rd part that says they are precluded from entering any evidence to prove their claim?
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imnotpaying
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« Reply #23 on: January 10, 2007, 12:57:46 PM »

I showed up for trial, the lawyer for the other side was very nice and said.

"you will probably win your case but you really wont get very much counterclaim money." secrectly I figured that myself. She offered a  mutual dismissal with prejudice  and I accepted. Game over.

I would really like to thank everyone for all of their help. Without your help I would have been paying these people money for a debt I did not owe.

I will lay out my whole case in the next few days here at Florida Debtor. I think it is probably a good template for what to so, and what not to do.
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VexatiousLitigant
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« Reply #24 on: January 10, 2007, 05:46:14 PM »

BOOOOOO!  Where's your killer instinct? Wink
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