Florida Debtor
August 17, 2017, 02:44:17 AM *
Welcome, Guest. Please login or register.

Login with username, password and session length
News: Florida Debtor - Now even better!
 
   Home   Help Search Login Register  
Pages: [1] 2 3 4
  Print  
Author Topic: Need Guidance  (Read 24684 times)
Teri
Newbie
*
Posts: 27


View Profile
« on: December 18, 2006, 12:50:42 AM »

I am being sued by a large CC issuer.  The account was charged off in early 2002.  Went through several rounds of collection agencies.

Last collection agency to attempt collection told me that the debt was bought by a JDB.  I have searched the FL CA database and the name of the JDB is not listed.

CA says they will sue, I say go for it.  I DV them, they send a letter stating that they have received my DV letter and it may take 30-180 days to get docs.  Several months go by no word.

Several months ago I get a phone call from an attorneys office claiming to represent the CC issuer.  The paralegal I talk to reads mini-miranda and says the phone call my be recorded.  I turn on my recorder too.

She goes through how the debt is mine and that I owe $xxxx.00 and if I don't pay they will sue.

I tell her the last collection agency that called said that JDB bought it.  I tell her that CC issuer has no standing and that JDB cannot sue either since they are not registered in FL.

She does some typing and CONFIRMS that JDB did buy it and it is no longer with CC issuer.

I tell her I'll respond to their letter by disputing the debt.  She confirms my address and states that letter is in the mail.  She then says she will note in their system that I am disputing the debt and she will get the docs for verification.

Months go by no word.  Then I get a process server at my door and the attorneys office is suing me.  I call the attorney of record and tell her that I disputed this debt months ago, it was noted in your system that it was disputed and I have not heard any thing at all.  I then say that I thought that JDB bought it and that CC issuer no longer had it.  She (attorney) confirms that CC issuer DOES NOT own the debt but JDB does.  But yet the Complaint is in the name of the CC issuer and no the JDB.  She further confirms that I have disputed the account.

The amount of the debt when the last CA called was (for example) $3,000.  The attorneys office calls the debt has grown to $4,500 and the lawsuit states $5,700.00.  Go to love their math skills.

Here is the Complaint:

Quote
COMES NOW the Plaintiff, by and through its undersigned counsel and sue(s) the Defendant(s), and states as follows:

GENERAL ALLEGATIONS

1. This is an action for damages that is within the jurisdictional limits of this Court.

2. Defendant(s) is/are resident(s) of this County.

COUNT I (Contract-Credit Card Account #xxxx xxxx xxxx xxxx)

Plaintiff realleges paragraphs 1 and 2 above and further states:

3. Plaintiff, at Defendants special instance and request issued a credit card to the Defendant(s).

4. Defendant(s), by execution of the application and/or by use of the credit card, have accepted the terms and conditions of the credit card
holder agreement. (See Exhibit “A” attached hereto).

5. The Defendant(s) has breached the Agreement by failing to comply with the terms of the Agreement.

6. Defendant(s) caused various charges to be made through the use of said card.

7. Defendant(s) did not object to the statement.

8. Defendant(s) owe Plaintiff the sum of $xxxx.xx that is due with interest. (See Exhibit “B” attached hereto).

9. Plaintiff has made demand upon Defendant(s) for payment.

10. Defendant(s) has/have failed and refused to pay the sum due and owing to the Plaintiff.

11. All conditions precedent to the bringing of this action have occurred.

12. Plaintiff is obligated to pay the undersigned a reasonable fee for which Defendant(s) is/are liable pursuant to the cardholder agreement.

WHEREFORE, Plaintiff demands judgment in its favor and against Defendant(s), in the principal amount due of $xxxx.xx, together with interest, court costs, reasonable attorneys fees and any other relief this court may deem just and proper.

COUNT II (Account Stated)

Plaintiff realleges paragraphs 1 and 2 above and further states that:

13. The Defendant(s) requested an account, which is owned by the Plaintiff, and the credit card holder agreement was sent to the Defendant. (See Exhibit “A” attached hereto).

14. Before the institution of this action Plaintiff and Defendant(s) had business transactions between them and they agreed to the resulting balance.

15. Plaintiff rendered a Statement of itto Defendant(s) and the Defendant(s) did not object to the statement.

16. Defendant(s) owes Plaintiff $xxxx.xx, that is due with interest at the rate of xx% per year on the account. <statutory interest rate not the cardholder agreement amount >

WHEREFORE, Plaintiff demands judgment in its favor and against the Defendant(s) in the principal sum of $xxxx.xx, together with interest, court costs,  reasonable attorney fees and any other relief which this Court may deem just and proper.

COUNT Ill (Unjust Enrichment)

Plaintiff realleges paragraphs 1 and 2 above and further states that:

17. The Defendant(s) received a financial benefit, which was in fact appreciated by the Defendant(s).

18. The Defendant(s) accepted the benefits.

19. By virtue of the circumstances surrounding the use of the credit card, the Defendant(s) knowingly requested the funds in issue and/or knowingly and voluntarily accepted the benefits bestowed.

20. It would be inequitable for this court to allow the Defendant(s) to retain the benefits or to be unjustly enriched at the expense of the Plaintiff or allow the Defendant(s)
 to retain the value of the funds in issue without repaying the Plaintiff the value of same.

WHEREFORE, Plaintiff demands judgment in its favor and against Defendant(s), in the principal amount due of $xxx.xx, together with interest, court costs, reasonable attorney’s fees and any other relief this court may deem just and proper.
Logged
Teri
Newbie
*
Posts: 27


View Profile
« Reply #1 on: December 18, 2006, 01:02:01 AM »

Exhibit A is nothing more than 7 pt text of a generic card holder agreement with no signature or any sort of identifying text that could tie the debt or the account to me.

Exhibit B is an Affidavit in Support of Claim:

Quote
BEFORE ME, the undersigned authority, personally appeared, _______________________ to me well known, who
 has personal knowledge after being duly sworn, deposes and says that:

1. I am the records custodian for the Plaintiff and I am in full charge and familiar with the books and accounts of Plaintiff.
 I have ascertained that, the above-named Defendant(s), is/are justly and duly indebted to the said Plaintiff at the time of filing the
 lawsuit for the sum of $xxx.xx, plus interest in the sum of $xxx.xx, for the total sum sued upon of $xxx.xx. Affiant further states
that the foregoing sum is now due and owing to the Plaintiff, and that the sum hereinabove mentioned is due with interest.

2. I have read all of the allegations contained in the Complaint and the same are true and correct to my personal knowledge.

3. In addition to the above, based on information provided, it is Plaintiffs belief that the above named Defendant(s) is/are not in the military
service of the United States or any of its allies.

FURTHER AFFIANT SAYETH NAUGHT.

The foregoing instrument was acknowledge before me this day of ________________, 20 by _______________________, who is personally known to me and who did take an oath.


Except for the court caption, this is exactly how it looks.  No name of the person swearing to the affidavit, no signature, no nothing.

There is no other exhibits attached.  No account statement, no calculation of charges, interests, etc.

I am working on my answer now. But I would like to get rid of Exhibit B either by filing a Motion in Limine and or a Motion to Dismiss for failure to State a Claim and or Failure to Attach and a Motion to Dismiss Plaintiff Lacks Standing.

My questions:

Is each a separately filed motions or is it all rolled into one?

If separate, in which order.
Logged
Florida Debtor
Administrator
Newbie
*****
Posts: 321


View Profile
« Reply #2 on: December 18, 2006, 06:50:25 AM »

Seems to me you would want to do a motion to dismiss for the folowing:

1. Failure to attach
2. Not registered in State to Sue
3. Statue of Limitations They have not presented proof of a written cobtract, as such they are governed by the 4 year Sol.
4. 559.715 failure to send notice of assignment.

You also want to do an answer, defences and counter claims. If they never sent you a dunning letter with a meranda you will want to DV them as well.
Logged

==========================
I am not a lawyer. It would not be wise to use anything I say as legal advise. Check for yourself.
rubyruby27
Administrator
Newbie
*****
Posts: 503


View Profile
« Reply #3 on: December 18, 2006, 10:55:30 AM »

You also may want to add SoL to the MTD-If this account is mine it is SoL-never admit it is yours at any time.  

If you know the last payment was early 2002 then it is beyond the SoL for oral.  

Breach in Florida is from THE FIRST 30 DAYS LATE-and the account was never brought current-thier is no tolling in Florida for partial or full payments as long as the account was never brought current.

Plenty of caselaw to back this up read the Ferandez vs Portfolio case to understand what is written read the NY case a must read.
Logged
Teri
Newbie
*
Posts: 27


View Profile
« Reply #4 on: December 18, 2006, 11:43:49 AM »

Thanks for the responses.  I've been reading the case law.

One question I have, do I combine everything into one MTD or do each one separate and file separate?
Logged
rubyruby27
Administrator
Newbie
*****
Posts: 503


View Profile
« Reply #5 on: December 18, 2006, 12:16:00 PM »

You can do a MTD on all issues, but if you lose that MTD on all issues you will have a very hard time to win you case.

You can win a partial MTD on some issues and then fight the other issues in Court, that is up to the Court .

You might consider doing just mtd on sol if you win that it is a done deal.  I don't know but if you claim SoL and win the other issues are mute.  I don't think the court will hear anything but the SoL issue at first for that reason--you probably need to concentrate on the SoL.

If you win the SoL they have no legal right to pursue your case so the other issues are mute to the court and they won't hear them.

You can always do a MSJ after 20 days on the other issues if you lose on the MTD on SoL.

It really is your call.  I did a MSJ on SoL and won but my case was really messed up.  I also didn't file a MTD and just showed up in Court for the pre trial hearing--didn't know what to do then.
Logged
Teri
Newbie
*
Posts: 27


View Profile
« Reply #6 on: December 18, 2006, 01:23:59 PM »

Thanks Ruby.

I'll get to work on the MTD SOL and attack the other issues in my answer.
Logged
fraudfighter
Moderator
Newbie
*****
Posts: 370


View Profile
« Reply #7 on: December 18, 2006, 03:45:09 PM »

Is the affiant for the statement of claim a JDB employee or an OC employee?

A SoL MTD won't work unless their complaint and their attachments proves SoL expiration. A SoL MSJ could work if you can conclusively prove SoL expiration, but since the argument involves an issue of law, the Judge may hold off on granting it and allow the case to proceed.

Additional defenses to raise:

You want to raise an Unclean Hands defense in your answer as a bar to the Unjust Enrichment claim.

You want to raise the Account Stated defenses in your answer:
Lack of Mutual Agreement
Lack of Rendering
Failure of Consideration
Failure to State a Claim - claiming an amount different that any possible rendered OC statement.
SoL - SoL is also a valid defense to Account Stated since Charge Off occured over 4 years ago and Charge-off is typically the last OC statement.
I would also raise a Failure to Attach defense on the Account Stated claim since they failed to attach any OC statement.

You want to move to strike their statement of claim as lacking personal knowledge - that will kill their ability to move for summary judgment.

The 20 day delay on movement for Summary Judgment only applies to the Plaintiff, the party moving for affirmative relief, not the defendant. That is to allow the defendant the 20 days to answer the complaint.

You also want to state a Waiver and Estoppel defense as a defense against claims of post-charge-off contractual interest.

If this PLTF is the JDB, you also raise a Lack of Privity defense.
Logged
Teri
Newbie
*
Posts: 27


View Profile
« Reply #8 on: December 18, 2006, 08:22:29 PM »

Quote from: "fraudfighter"
Is the affiant for the statement of claim a JDB employee or an OC employee?

The statement is totally blank.  It is as if they just printed off the computer and forgot to get someone to sign it.

A SoL MTD won't work unless their complaint and their attachments proves SoL expiration. A SoL MSJ could work if you can conclusively prove SoL expiration, but since the argument involves an issue of law, the Judge may hold off on granting it and allow the case to proceed.

Additional defenses to raise:

You want to raise an Unclean Hands defense in your answer as a bar to the Unjust Enrichment claim.

You want to raise the Account Stated defenses in your answer:
Lack of Mutual Agreement
Lack of Rendering
Failure of Consideration
Failure to State a Claim - claiming an amount different that any possible rendered OC statement.
SoL - SoL is also a valid defense to Account Stated since Charge Off occured over 4 years ago and Charge-off is typically the last OC statement.
I would also raise a Failure to Attach defense on the Account Stated claim since they failed to attach any OC statement.

You want to move to strike their statement of claim as lacking personal knowledge - that will kill their ability to move for summary judgment.

Not quite sure how to do this.

The 20 day delay on movement for Summary Judgment only applies to the Plaintiff, the party moving for affirmative relief, not the defendant. That is to allow the defendant the 20 days to answer the complaint.

You also want to state a Waiver and Estoppel defense as a defense against claims of post-charge-off contractual interest.

If this PLTF is the JDB, you also raise a Lack of Privity defense.


The Complaint is in the name of the CC issuer and not the JDB.  According to counsel and her paralegal the JDB bought it.

I've done a little research on the JDB and it seems that the JDB and the CC are in bed with each other.  The OC got smacked big time in a DE court for the actions of the JDB.  The OC tried to worm out of it but the DE court said the OC and the JDB were a partnership and not distinct entities.
Logged
fraudfighter
Moderator
Newbie
*****
Posts: 370


View Profile
« Reply #9 on: December 19, 2006, 09:26:16 AM »

Quote from: "Teri"
Quote from: "fraudfighter"
Is the affiant for the statement of claim a JDB employee or an OC employee?

The statement is totally blank.  It is as if they just printed off the computer and forgot to get someone to sign it.

A SoL MTD won't work unless their complaint and their attachments proves SoL expiration. A SoL MSJ could work if you can conclusively prove SoL expiration, but since the argument involves an issue of law, the Judge may hold off on granting it and allow the case to proceed.

Additional defenses to raise:

You want to raise an Unclean Hands defense in your answer as a bar to the Unjust Enrichment claim.

You want to raise the Account Stated defenses in your answer:
Lack of Mutual Agreement
Lack of Rendering
Failure of Consideration
Failure to State a Claim - claiming an amount different that any possible rendered OC statement.
SoL - SoL is also a valid defense to Account Stated since Charge Off occured over 4 years ago and Charge-off is typically the last OC statement.
I would also raise a Failure to Attach defense on the Account Stated claim since they failed to attach any OC statement.

You want to move to strike their statement of claim as lacking personal knowledge - that will kill their ability to move for summary judgment.

Not quite sure how to do this.

The 20 day delay on movement for Summary Judgment only applies to the Plaintiff, the party moving for affirmative relief, not the defendant. That is to allow the defendant the 20 days to answer the complaint.

You also want to state a Waiver and Estoppel defense as a defense against claims of post-charge-off contractual interest.

If this PLTF is the JDB, you also raise a Lack of Privity defense.


The Complaint is in the name of the CC issuer and not the JDB.  According to counsel and her paralegal the JDB bought it.

I've done a little research on the JDB and it seems that the JDB and the CC are in bed with each other.  The OC got smacked big time in a DE court for the actions of the JDB.  The OC tried to worm out of it but the DE court said the OC and the JDB were a partnership and not distinct entities.


So, they attached a non-signed, non-verified blank affidavit form?
That's not an affidavit then. Nobody is providing sworn testimony.
Move to strike it if nobody has signed it.
It does not appear that their complaint and attachments proves SoL expiration on its face, so i don't believe the Judge could grant a SoL MTd.
You could seek to move for dismissal for failure to attach, coupled with a move to strike the non-affidavit. The judge will likely convert the MTD for failure to attach to a motion for more definite statement. But that will put them on the clock to produce their documentation, which then you can do the motion to compel and then preclude on.

You'll have to do some litigating in this case. It's going to take some work. But, you appear to be able to nuke them and then sue them for the FDCPA violation for suing on time-barred debt. It would be better to sue in federal court after obtaining the summary judgment against them. Then you have a slam dunk res judicata on the SOL defense which proves the FDCPA case. You could just send them a notice of intent to sue letter after defeating them in state court asking them to send you $1000 in damages to avoid losing on the FDCPA violation where attorney's fees would be added to the damages.

I would file an MTD for failure to attach, a motion to strike on the non-affidavit and an answer to their complaint. denying their allegations, raising the necessary defenses and you might put in counterclaims for any pre-lawsuit misrepresentations within the past year that you think you can prove. You could also submit a written admissions interrog in support of your defenses and counterclaims.

Include the Lack of Privity defense. They've provided no evidence of privity with you on an agreement.
Logged
fraudfighter
Moderator
Newbie
*****
Posts: 370


View Profile
« Reply #10 on: December 19, 2006, 09:47:36 AM »

I suggest you call the OC's recovery department to find out when and to whom the account was sold. When it was sold will tell you when the last possible OC statement could have been rendered. If it's more than 4 years before the date of filing of the complaint, then the account stated claim is time-barred. If they sold it, they'll tell you and give you the name and telephone number of the JDB they sold it to.
Logged
Teri
Newbie
*
Posts: 27


View Profile
« Reply #11 on: December 19, 2006, 12:33:08 PM »

Cool, thanks FraudFighter for the help.

I'll post my motions here.

Thanks again.
Logged
fraudfighter
Moderator
Newbie
*****
Posts: 370


View Profile
« Reply #12 on: December 19, 2006, 02:21:29 PM »

Teri,

based on your postings, you clearly appear to have a lot on the ball and will probably mop the floor with these cretins.
Logged
DUSTY
Newbie
*
Posts: 38


View Profile
« Reply #13 on: December 26, 2006, 10:53:08 PM »

Quote from: "rubyruby27"
You also may want to add SoL to the MTD-If this account is mine it is SoL-never admit it is yours at any time.


I know what you're saying, but I've heard of cases of that backfiring if it becomes clear that the account was yours.  

I'm communicating with a JDB now too and certainly don't want to reset the SOL.  Can that happen just by saying it was my account, that I've disputed all along...  

I've got to reply right away.
Logged
fraudfighter
Moderator
Newbie
*****
Posts: 370


View Profile
« Reply #14 on: December 27, 2006, 03:58:44 AM »

Quote from: "DUSTY"
Quote from: "rubyruby27"
You also may want to add SoL to the MTD-If this account is mine it is SoL-never admit it is yours at any time.


I know what you're saying, but I've heard of cases of that backfiring if it becomes clear that the account was yours.  

I'm communicating with a JDB now too and certainly don't want to reset the SOL.  Can that happen just by saying it was my account, that I've disputed all along...  

I've got to reply right away.


If the purpose of your conversation is to settle the issue, then you aren't acknowledging that you owe a debt for a specific amount where your acknowledgment would be implied as a new promise to pay.
There is FL case law that says settlement discussions cannot toll the limitations period. If more than 4 years of accrual has occurred, you're past the oral SoL. Thus nothing oral could affect the SoL.

Just state that the purpose of your discussion is too settle the allegation and don't admit that the account is yours.
Logged
Pages: [1] 2 3 4
  Print  
 
Jump to:  

Powered by MySQL Powered by PHP Powered by SMF 1.1.11 | SMF © 2006-2009, Simple Machines LLC Valid XHTML 1.0! Valid CSS!