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wm58
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« on: January 24, 2007, 04:38:55 PM »

Received ummons from Calvary Portfolio Services LLC ( Did look up, they are not even lic in the state to do business) atty:Wagner & Hunt, asking anyone who has dealings with these people to help.

Complaint:

Plaintiss, by and through its undersigned counsel, sues defendent and states the following:
1)Damages in this action do not exceed $5,000.00.
2) plaintiff Calvary Portfolio services, LLC as assignee of Calvary Investments, LLC as assignee of advanta is authorized to do business in Florida and regularly conducts business in Florida.
3)Defendent XXXXXXX, at all times material hereto, resides in XXXXX County, Florida.

Count 1-Breach of Contract

Plaintiff repeats and realleges each and every material allegationset forth in paragraphs 1 and 3 above and incorporates the same by reference.
4) Plaintiff and defendent entered into a contract pursuant to which plaintiff opened a credit card account number XXXXX and issued a credit card to defendant.
5) A true and correct copy of the agreement applicable to the account is attached hereto as Exhibi A and is incorporated herin by reference.
6) Defendant indicated acceptance of the terms of the agreement (exhibit A) by keeping, signing, or using the credit card or credit card account.
7) On or about 7/02 defendent breach the contract between the parties by non-payment.
8) As a direct result of the breach by defendant, Plaintiff has been damaged in the sum of XXXXX that is due and owing with interest since the date of breach.  This balance is subject to increase due to the ongoing accumulation of delinquency charges and interest as provided for by agreement )exhibit A).
9) demand has been made for the amount of XXXX. Defendant has/have failed to pay the amount.
10) The terms of the agreement ( Exhibit A) provide that if the account is referred out for collections to an attorney, the defendant agrees to pay court cost and attorney fees.
11) Plaintiff has retained the services of the undersigned law firm to represent it and Plaintiff is entitled to recover reasonable attorney fees pursuant to the agreement (exhibit A)
12) all conditions precedent to the bringing of this actin have been performed, have occured or have been waive.

Werefore, based upon the forgoing, plaintiff respectfully request this Honoable Court enter a judgementr against the defenant in the amount of XXXXX, plus interest, costs, attorney fees pursuant to contract, as well as any other relief this court deems just and proper.


Count 2-Unjust Enrichment

Plaintiff repeats and realleges each and every material allegation set forth in paragraphs 1 through 3 above and incorporates the same reference.

13) defendant purchased goods or services with the credit card issued to them causing XXXX to be posted to the credit card account, as identified in paragraph 4 hereinabove.
14) As a result the purchase of said goods and services be defendant, defendant knowingly and voluntarily accepted the benefits conferred by the Plaintiff of receiving those goods or servies.
15) Plaintiff has demanded payment from defenant for the sum of XXXX, but defendant have failed to pay said sum.
16) Plaintiff alleges that it would be inequitable for defendant to retain the benefit of the goods or services purchased by defendant without paying plaintiff for the charges defendant caused to be made to the subject account. 17) The failure of defendant to pay the plaintiff the sums due and owing has caused the defendant to be unjustly enriched at the expense of the plaintiff.

Wherefore, based upon the foregoing, plaintiff requests this honorable court enter a judgement against the defendant in the amount of XXXX, plus interest, costs and any other relief this court deeems just and proper.




                 Bruce E. Wagner, Esq
                 Wagner & Hynt, PA


Now as for as exhibit A

it is a copy of a card agreement that could have been copied from anywhere.

Please give guidence in responding to these JDB and their atty.
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rubyruby27
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« Reply #1 on: January 24, 2007, 05:17:53 PM »

Did you type the date of breach correctly.  7/02

By thier own paperwork it is outside the statute of limitations.  They didn't file anything with the courts claiming written.

Start reading this board.
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wm58
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« Reply #2 on: January 24, 2007, 05:43:33 PM »

Is there a basic sheet to start with for me to start filing in, and get suggestions from the board? Also you read right as the date....
What about there statement the Clavary if liscensed inthe state when they are not listed?
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rubyruby27
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« Reply #3 on: January 24, 2007, 07:29:23 PM »

Cavarly Port. isn't licensed but thier other company SPV is and thier attorney is a member of the Florida bar.

I don't remember, this is a question for Fraud, I think it is unclean hands.

Unless they have your signature on a app with the acct # on it with the agreement then its oral--actually the agreement needs the sign.

It's not a fill in the blanks form.  You need to know and understand what you have to say in Court.

Look up FL Statute 57.104 or 105--It has to do with frivilous law suits-Time barred is frivilious

What is your goal not pay and have them go away or try and get violations if the continue with this suit.

If you want to get violations write them a letter and tell them if this  acct is proven to be yours it would be outside the SoL.  That way they have been put on notice and if they continue it's a  clear violation (if you don't write the letter there is case law it is still a violation)

What do you want to do.

I would personally file a MTD-based on if this acct is proven to be mine it is SOL. and the courts do not have jursidction on out of statute suits.

It is not outside the 5 yr written any admission this acct is yours the 5 yrs will apply unless this is a store card. ie penny's, sears, macy's target etc.

When is your pre trial conference.

You have to file the MTD prior to filing your answers.

You have to read and research this site and go to www.debtorboards.com and to infinitecredit.com.  Research the caselaws and how to write a MTD

What I know or think I know I got from Fraud so read all my post and Frauds (esp his).  Also imnotpaying threads---read and learn

If you read all this stuff to get somewhat of an understanding, things start to fall into place.

You will see examples of how others have done thier motions.  If you post your motions we all will critique it.
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fraudfighter
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« Reply #4 on: January 24, 2007, 08:27:43 PM »

Quote from: "wm58"
Received ummons from Calvary Portfolio Services LLC ( Did look up, they are not even lic in the state to do business) atty:Wagner & Hunt, asking anyone who has dealings with these people to help.

Complaint:

Plaintiss, by and through its undersigned counsel, sues defendent and states the following:
1)Damages in this action do not exceed $5,000.00.
2) plaintiff Calvary Portfolio services, LLC as assignee of Calvary Investments, LLC as assignee of advanta is authorized to do business in Florida and regularly conducts business in Florida.
3)Defendent XXXXXXX, at all times material hereto, resides in XXXXX County, Florida.

Count 1-Breach of Contract

Plaintiff repeats and realleges each and every material allegationset forth in paragraphs 1 and 3 above and incorporates the same by reference.
4) Plaintiff and defendent entered into a contract pursuant to which plaintiff opened a credit card account number XXXXX and issued a credit card to defendant.
5) A true and correct copy of the agreement applicable to the account is attached hereto as Exhibi A and is incorporated herin by reference.
6) Defendant indicated acceptance of the terms of the agreement (exhibit A) by keeping, signing, or using the credit card or credit card account.
7) On or about 7/02 defendent breach the contract between the parties by non-payment.
Cool As a direct result of the breach by defendant, Plaintiff has been damaged in the sum of XXXXX that is due and owing with interest since the date of breach.  This balance is subject to increase due to the ongoing accumulation of delinquency charges and interest as provided for by agreement )exhibit A).
9) demand has been made for the amount of XXXX. Defendant has/have failed to pay the amount.
10) The terms of the agreement ( Exhibit A) provide that if the account is referred out for collections to an attorney, the defendant agrees to pay court cost and attorney fees.
11) Plaintiff has retained the services of the undersigned law firm to represent it and Plaintiff is entitled to recover reasonable attorney fees pursuant to the agreement (exhibit A)
12) all conditions precedent to the bringing of this actin have been performed, have occured or have been waive.

Werefore, based upon the forgoing, plaintiff respectfully request this Honoable Court enter a judgementr against the defenant in the amount of XXXXX, plus interest, costs, attorney fees pursuant to contract, as well as any other relief this court deems just and proper.


Count 2-Unjust Enrichment

Plaintiff repeats and realleges each and every material allegation set forth in paragraphs 1 through 3 above and incorporates the same reference.

13) defendant purchased goods or services with the credit card issued to them causing XXXX to be posted to the credit card account, as identified in paragraph 4 hereinabove.
14) As a result the purchase of said goods and services be defendant, defendant knowingly and voluntarily accepted the benefits conferred by the Plaintiff of receiving those goods or servies.
15) Plaintiff has demanded payment from defenant for the sum of XXXX, but defendant have failed to pay said sum.
16) Plaintiff alleges that it would be inequitable for defendant to retain the benefit of the goods or services purchased by defendant without paying plaintiff for the charges defendant caused to be made to the subject account. 17) The failure of defendant to pay the plaintiff the sums due and owing has caused the defendant to be unjustly enriched at the expense of the plaintiff.

Wherefore, based upon the foregoing, plaintiff requests this honorable court enter a judgement against the defendant in the amount of XXXX, plus interest, costs and any other relief this court deeems just and proper.




                 Bruce E. Wagner, Esq
                 Wagner & Hynt, PA


Now as for as exhibit A

it is a copy of a card agreement that could have been copied from anywhere.

Please give guidence in responding to these JDB and their atty.


What is the date of filing of the complaint?

Is Exhibit A a document consistent with the type of credit card? Look for any inconsistency that shows conflict between this exhibit and the alleged account, in order to show that exhibit A is fraudulent and subject to being struck.


Ruby is right. If all they have are an anonymous document, that is non-probative as to your liability, you want to move to dismiss their case for failure to attach a document that their claim is based on as Exhibit A is non-probative and anonymous.

If the breach occurred July 2002, that is the point at which the limitations period began to run. If they filed their complaint after July 2006, their case is time-barred, as the nature of their case is clearly not founded on a written instrument as defined by Florida law.

Filing a time-barred claim is frivolous under F.S. 57.105 and also violative of the FDCPA.

The UE claim is a 4 year 95.11(3)(k) action and is clearly time-barred due to the 7/02 admission, so you should be able to get that one dismissed easily.
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wm58
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« Reply #5 on: January 25, 2007, 12:40:19 PM »

ANSWER

COMES NOW, the defendant, XXXXXXX, pro se in answer to the Plaintiff’s, CALVALRY PORTFOLIO SERVICES, LLC, Complaint.


1. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained in paragraph 1 of the Complaint, and based on that denies generally and specifically each and every allegation contained therein.
2.To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.
3.To the extent a response is required Defendant is at this time agrees with this claim.
4. To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.
5. To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.
6. To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.
7. To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.
8. To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.
9. To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.
10. To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.
11. To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.
12. To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.
13. To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.
14. To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.
15. To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.
16. To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.
17. To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.


II. AFFIRMATIVE DEFENSES
Defendant's defenses are:
1. All of Plaintiffs claims for the alleged debt are time barred pursuant to F.S.
95.11(2) and F.S. 95.11(3)(k), (attached exhibit #1). PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13 Fla. L. Weekly Supp. 560a 2006

2.This alleged account is an open-end credit agreement and does not fall under the
Florida Statutes for written contracts for the following reasons:
(i) They are excluded under Florida Statues of Interest and Usury; Lending
Practices § Fla. Stat. Ann. §687.0304 (West 1990), (attached exhibit #2).
(ii) They are excluded under the Federal Truth In Lending Act Title 15 § 103,
(attached exhibit #3). It is not plausible for a credit card agreement to be classified as an
open-end agreement while it is active, but to be claimed to be a closed end “written”
contract after default based §Section 226.28 of Regulation Z.

3. Defendant claims Lack of Privity as Defendant has never entered into any
contractual or debtor/creditor arrangements with Plaintiff.

4. 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.

5. 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.

7.Plaintiff is not an Assignee for the purported agreement and no evidence appears
on the record to support any related assumptions.


8. 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.

9. 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.

10. Plaintiffs damages are the result of acts or omissions committed by Plaintiff.
11.Plaintiff’s prejudgment interest violates the standard of equity and there is no
evidence of pecuniary loss.
12. Plaintiff's damages are limited to real or actual damages only.
13. Defendant reserves the right to plead additional affirmation defenses that may
become available to her later.
III. COUNTERCLAIM

14. Plaintiff is a “debt collector” as defined by the Fair Debt Collection Practices Act.

15. Defendant is a “consumer” as defined by the Fair Debt Collection Practices Act.

16. Plaintiff is attempting to collect a “debt” as defined by the Fair Debt Collection Practices Act.

17. The amount in controversy does not exceed the maximum allowed by this court.

18. This court has subject matter jurisdiction provided by section § 813 of the Fair Debt Collection Practices Act.

COUNT 1
19. Plaintiff has misrepresented the amount character or legal status of the debt in violation of Fair Debt Collection Practices Act § 808.

COUNT 2
20. Plaintiff fail to respond to Defendants request for Validation of debts in violation of Fair Debt Collection Practices Act § 809.

COUNT 3
21. Plaintiff has provided false information to consumer reporting agencies in violation of Fair Credit Reporting Act 15 USC 1692e(2)(A).

COUNT 5
22. Plaintiff has communicated credit information which is known or which should be known to be false, by reporting the account as "Open." Fair Credit Reporting Act 15 USC 1692e(A collection account cannot be listed as an 'open' account and listing the account as OPEN is a "misrepresentation of the character of the account". Martinez v. Albuquerque Collection Services, Inc., 867 F.Supp. 1495 (D.N.M. 1994). I did not open any accounts with CALVARY PORTFOLIO SERVICES, LLC, nor did CALVARY PORTFOLIO SERVICES, LLC extend to me any credit.

COUNT 4
23. Plaintiff has used unfair or unconscionable means to collect or attempt to collect any debt by reporting the account as "Open" to result in a greater negative impact to Plaintiff's credit scores. Fair Credit Reporting Act 15 USC 1692f


DAMAGES


24. The Fair Debt Collection Practices Act, Federal Fair Debt Collection Practices Act, Fair Credit Reporting Act provides for statutory damagages in the amount of $1,000 per violation. Section 1681s-2 of the Fair Credit Reporting Act creates a cause of action for a consumer against a furnisher of erroneous credit information (Nelson v. Chase Manhattan).


PRAYER FOR RELIEF


WHEREFORE, the Defendant requests that the Plaintiff’s action be dismissed in its entirety, and that judgment be entered against Plaintiff in the amount of $1,000 per violation.




___________________________ Date: __________


Please give me any advise you may have!!!!!!!!!!!!!!
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wm58
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« Reply #6 on: January 25, 2007, 01:00:51 PM »

This is my first draft, would appreciate all the input I could get, to make sure I have covered all my facts on this.

As to a little background on this.  I have been trying to clear up my credit for the past year.  I noticed Cavalry on my report, and disputed it.  Sent them a validation letter which they did not respond to, nor did they respond to Equifax, Equifax confirmed with me that they deleted this item, since they would not validate.  Thought this item was done, never heard anything, until now that I receive this summons.  Also they list as a assinee name of Advanta,this names does not appear anywhere on my credit report.

Also there so called Exhibit A, looks like they copied from a application for a credit card.  There is no application with my signature anywhere.

Do I need to file MTD at the same time I submit this to the court?
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VexatiousLitigant
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« Reply #7 on: January 25, 2007, 01:29:54 PM »

Why do those AoC defenses still make their way to this board?

You need to concentrate on the following things.

1) Making them prove a valid assignment.

2) Striking any affidavits attached to the complaint where the JDB assignee claims personal knowledge of the account as hearsay.

2) SOL defense by demonstrating the attached cardholder agreement is not a written contract, therefore 4 year SOL applies.

In layman's terms 1, 2 & 3 boil down to "they can't bring this suit, they have no knowledge of the account and even if they do it's too old to sue on in Florida".

Stick to those three concepts.
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wm58
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« Reply #8 on: January 25, 2007, 02:38:49 PM »

ok, I am new at this, so should I submit a MTD based on the SOL?  If so I found this:

Plaintiff’s attached 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.

a. "...action is not founded on written instrument where evidence of liability consists partially of written cardholder account and security agreement but writing is incomplete to establish liability -- Accordingly, contract is regarded as oral for statute of limitations purposes." PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13 Fla. L. Weekly Supp. 560a 2006

b. “Where resort to oral testimony was compelled to make complete the showing of any legal liability incurred by defendant arising out of letter concerning sale of plaintiff's stock, timeliness of plaintiff's action to recover for breach of contract to sell the shares and remit proceeds to him was governed by Florida's three-year limitation period governing actions on oral contracts, rather than the five-year period governing actions on written contracts."
Klein v. Frank, 534 F.2d 1104. C.A.5 1976.

c. “Contract action is not founded upon written instrument, for purpose of statute of limitations, where written instrument is link in chain of evidence to prove cause of action, but does not on its face establish all elements of plaintiff’s claim.” ARDC Corp. v. Hogan, 656 So.2d 1371 (Fla. App. 4 Dist. 1995), review denied 666 So.2d 143.

d. “Where an agreement as set forth in writing is so indefinite as to necessitate resort to parol evidence to make it complete in applying the statue of limitation it must be treated as an oral contract.” McGill v Cockrell, 101 So.2d 199 (Fla. 1924) Id at 201.

Please give guidence:
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Florida Debtor
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« Reply #9 on: January 25, 2007, 05:21:43 PM »

Quote from: "wm58"
ok, I am new at this, so should I submit a MTD based on the SOL?  If so I found this:

Plaintiff’s attached 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.

a. "...action is not founded on written instrument where evidence of liability consists partially of written cardholder account and security agreement but writing is incomplete to establish liability -- Accordingly, contract is regarded as oral for statute of limitations purposes." PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13 Fla. L. Weekly Supp. 560a 2006

b. “Where resort to oral testimony was compelled to make complete the showing of any legal liability incurred by defendant arising out of letter concerning sale of plaintiff's stock, timeliness of plaintiff's action to recover for breach of contract to sell the shares and remit proceeds to him was governed by Florida's three-year limitation period governing actions on oral contracts, rather than the five-year period governing actions on written contracts."
Klein v. Frank, 534 F.2d 1104. C.A.5 1976.

c. “Contract action is not founded upon written instrument, for purpose of statute of limitations, where written instrument is link in chain of evidence to prove cause of action, but does not on its face establish all elements of plaintiff’s claim.” ARDC Corp. v. Hogan, 656 So.2d 1371 (Fla. App. 4 Dist. 1995), review denied 666 So.2d 143.

d. “Where an agreement as set forth in writing is so indefinite as to necessitate resort to parol evidence to make it complete in applying the statue of limitation it must be treated as an oral contract.” McGill v Cockrell, 101 So.2d 199 (Fla. 1924) Id at 201.

Please give guidence:


The above is from one of my pleadings, It worked for me but your milage may vary. I also had a Motion to Dismiss for SoL that I never got to use. I dont know if it is good or bad but it might be a good starting point.

------------------------------------------------



COMES NOW the Defendant, me, appearing pro se, and states the following;
1.   Plaintiff failed to state a claim upon which relief can be granted. No triable uses exist as all of Plaintiff's actions are precluded by the Statute of Limitations.

          FACTS
(a)   Paragraph #6 of the complaint states the charge off date or the date of purchase is January 17, 2002.
(b)   The Plaintiff did not purchase the debt before the charge off date.
(c)   As stated in the Plaintiff’s complaint the charge off date is on or before January 17, 2002.
(d)   The computation of time as provided for in F.S. §95.031 starts before the charge off date.
(e)   Plaintiff’s written evidence is incomplete to establish liability.
(f)   Oral testimony will be required to make complete the showing of any alleged legal liability incurred by defendant.  
(g)   The following case law applies:
(1)"...action is not founded on written instrument where evidence of liability consists partially of written cardholder account and security agreement but writing is incomplete to establish liability -- Accordingly, contract is regarded as oral for statute of limitations purposes."    
PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13   Fla. L. Weekly Supp. 560a 2006

(2) “Where resort to oral testimony was compelled to make complete the showing of any legal liability incurred by defendant arising out of letter concerning sale of plaintiff's stock, timeliness of plaintiff's action to recover for breach of contract to sell the shares and remit proceeds to him was governed by Florida's three-year limitation period governing actions on oral contracts, rather than the five-year period governing actions on written contracts."
Klein v. Frank, 534 F.2d 1104. C.A.5 1976.



BRIEF
2. Plaintiff did not provide the written evidence needed to meet the requirements stated in PORTFOLIO RECOVERY ASSOCIATES, LLC, v_ PAUL FERNANDES or Klein v. Frank and as such their claim is governed by the four-year Statute of Limitations §95.11 (3).


PRAYER and Demand for Relief

WHEREFORE, Defendant prays that Plaintiff’s Complaint be dismissed, and that the relief prayed for therein be denied.


Dated
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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.
wm58
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« Reply #10 on: January 25, 2007, 06:59:27 PM »

Thank you, like I said I'm new at this and I am just asking any guidence which will be very much appreciated.  

I still have to answer to the summons, (like I said I'm new at this), and from what research I've read on this post and other post, and as to state laws, please bear with me, so do I file this first or my answers?
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wm58
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« Reply #11 on: January 25, 2007, 08:39:53 PM »

The date of the court filing is 8/02/06-amazing exactly 1 month past the SOL.
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rubyruby27
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« Reply #12 on: January 25, 2007, 09:05:18 PM »

MTD must be entered to the Courts prior to any answers.

You do the MTD submit it to the courts.  Then you file your answers.  Read the RCP on MTD.


In your MTD you need to state with prejudice.

Your violations must be specific-They violated 1692(?) then state what they did and when.


Complaint:

Plaintiss, by and through its undersigned counsel, sues defendent and states the following:

1)Damages in this action do not exceed $5,000.00.

To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.

2) plaintiff Calvary Portfolio services, LLC as assignee of Calvary Investments, LLC as assignee of advanta is authorized to do business in Florida and regularly conducts business in Florida.
same answer

3)Defendent XXXXXXX, at all times material hereto, resides in XXXXX County, Florida.

If this is true you say ADMITTED

Count 1-Breach of Contract

Plaintiff repeats and realleges each and every material allegationset forth in paragraphs 1 and 3 above and incorporates the same by reference.

4-12

To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.


4) Plaintiff and defendent entered into a contract pursuant to which plaintiff opened a credit card account number XXXXX and issued a credit card to defendant.
5) A true and correct copy of the agreement applicable to the account is attached hereto as Exhibi A and is incorporated herin by reference.
6) Defendant indicated acceptance of the terms of the agreement (exhibit A) by keeping, signing, or using the credit card or credit card account.
7) On or about 7/02 defendent breach the contract between the parties by non-payment.
Cool As a direct result of the breach by defendant, Plaintiff has been damaged in the sum of XXXXX that is due and owing with interest since the date of breach. This balance is subject to increase due to the ongoing accumulation of delinquency charges and interest as provided for by agreement )exhibit A).
9) demand has been made for the amount of XXXX. Defendant has/have failed to pay the amount.
10) The terms of the agreement ( Exhibit A) provide that if the account is referred out for collections to an attorney, the defendant agrees to pay court cost and attorney fees.
11) Plaintiff has retained the services of the undersigned law firm to represent it and Plaintiff is entitled to recover reasonable attorney fees pursuant to the agreement (exhibit A)
12) all conditions precedent to the bringing of this actin have been performed, have occured or have been waive.

Werefore, based upon the forgoing, plaintiff respectfully request this Honoable Court enter a judgementr against the defenant in the amount of XXXXX, plus interest, costs, attorney fees pursuant to contract, as well as any other relief this court deems just and proper.


Count 2-Unjust Enrichment

Plaintiff repeats and realleges each and every material allegation set forth in paragraphs 1 through 3 above and incorporates the same reference.


13-17 To the extent a response is required Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.

13) defendant purchased goods or services with the credit card issued to them causing XXXX to be posted to the credit card account, as identified in paragraph 4 hereinabove.
14) As a result the purchase of said goods and services be defendant, defendant knowingly and voluntarily accepted the benefits conferred by the Plaintiff of receiving those goods or servies.
15) Plaintiff has demanded payment from defenant for the sum of XXXX, but defendant have failed to pay said sum.
16) Plaintiff alleges that it would be inequitable for defendant to retain the benefit of the goods or services purchased by defendant without paying plaintiff for the charges defendant caused to be made to the subject account. 17) The failure of defendant to pay the plaintiff the sums due and owing has caused the defendant to be unjustly enriched at the expense of the plaintiff.

Wherefore, based upon the foregoing, plaintiff requests this honorable court enter a judgement against the defendant in the amount of XXXX, plus interest, costs and any other relief this court deeems just and proper.

II. AFFIRMATIVE DEFENSES
Defendant's defenses are:
1. All of Plaintiffs claims for the alleged debt are time barred pursuant to F.S. 95.11(2) and F.S. 95.11(3)(k),provide copies for the Judge to read

Go to law library and you make copies and attach them to your pleadings for the Judge to read.

A.   The Appellate Courts upheld the trial court decision, a case based on its finding that the credit card account was an open account subject to the four year statue of limitations.” “ No error in dismissal of statement of claim for breach of contract, account stated, and unjust enrichment for debt incurred on credit card based on expiration of four-year statute of limitations.”  “Further, action is not founded on written instrument where evidence of liability consist partially of written cardholder account and security agreement but writing is incomplete to establish liability–According, contract is regarded as oral for stature of limitations purposes”
Portfolio Recovery Associates, LLC v Paul Fernandez 13 Fla L. Weekly Supp. 560, 561 (2006)

B.  The nature of the claim, and not the specific form of action selected by a plaintiff to assert it, determines the applicable statue of limitations” See 20 Am Jur. 2d, Credit Cards ss46 (2005).

C.    “Contract action is not founded upon written instrument for purpose of statue of limitations, where written instrument is link in chain of evidence to prove cause of action, but does not on its face establish all elements of plaintiff’s claim.”ARDC Corp v Hogan, 656 So.2d 1371 (Fla 4th DCS 1995), rev den. 666 So2.d 143 (Fla 1995)

D.   “Where an agreement as set forth in writing is so indefinite as to necessitate resort to parol evidence to make it complete in applying the statue of limitation  it must be treated as an oral contract.” McGill v Cockrell, 101 So.2d 199 (Fla. 1924) Id at 201.

2.This alleged account is an open-end credit agreement and does not fall under the
Florida Statutes for written contracts for the following reasons:
(i) They are excluded under Florida Statues of Interest and Usury; Lending
Practices § Fla. Stat. Ann. §687.0304 (West 1990), (attached exhibit #2).
(ii) They are excluded under the Federal Truth In Lending Act Title 15 § 103,
(attached exhibit #3). It is not plausible for a credit card agreement to be classified as an open-end agreement while it is active, but to be claimed to be a closed end “written”
contract after default based §Section 226.28 of Regulation Z.

3. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with Plaintiff.

4. 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.

Did they provide a copy of bill of sale.

5. 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.  

If they bought this acct they are the OC now--thats how some judges see it.

7.Plaintiff is not an Assignee for the purported agreement and no evidence appears on the record to support any related assumptions.

Again is there a bill of sale

8. 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.

9. 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.

10. Plaintiffs damages are the result of acts or omissions committed by Plaintiff.

11.Plaintiff’s prejudgment interest violates the standard of equity and there is no evidence of pecuniary loss.

12. Plaintiff's damages are limited to real or actual damages only.
13. Defendant reserves the right to plead additional affirmation defenses that may become available to her later.

III. COUNTERCLAIM

14. Plaintiff is a “debt collector” as defined by the Fair Debt Collection Practices Act.

15. Defendant is a “consumer” as defined by the Fair Debt Collection Practices Act.

16. Plaintiff is attempting to collect a “debt” as defined by the Fair Debt Collection Practices Act.

17. The amount in controversy does not exceed the maximum allowed by this court.

Are you sure about this, also if you have the money and time bump this to Federal.  It will cost you 350.

18. This court has subject matter jurisdiction provided by section § 813 of the Fair Debt Collection Practices Act.

I really am not good at this part, or I should say decent.  

If you  get a Pacer acct- open up one with a debit card you can get immed access.  You would look up section 480 which is consumer debits and look at how attorneys write up violations.

Cost nothing to open it up, it cost you .08 per page to look at cases.


COUNT 1
19. Plaintiff has misrepresented the amount character or legal status of the debt in violation of Fair Debt Collection Practices Act § 808. Be specific with the exact statue

COUNT 2
20. Plaintiff fail to respond to Defendants request for Validation of debts in violation of Fair Debt Collection Practices Act § 809.

COUNT 3
21. Plaintiff has provided false information to consumer reporting agencies in violation of Fair Credit Reporting Act 15 USC 1692e(2)(A).

COUNT 5
22. Plaintiff has communicated credit information which is known or which should be known to be false, by reporting the account as "Open." Fair Credit Reporting Act 15 USC 1692e(A collection account cannot be listed as an 'open' account and listing the account as OPEN is a "misrepresentation of the character of the account". Martinez v. Albuquerque Collection Services, Inc., 867 F.Supp. 1495 (D.N.M. 1994). I did not open any accounts with CALVARY PORTFOLIO SERVICES, LLC, nor did CALVARY PORTFOLIO SERVICES, LLC extend to me any credit.

COUNT 4
23. Plaintiff has used unfair or unconscionable means to collect or attempt to collect any debt by reporting the account as "Open" to result in a greater negative impact to Plaintiff's credit scores. Fair Credit Reporting Act 15 USC 1692f


DAMAGES


24. The Fair Debt Collection Practices Act, Federal Fair Debt Collection Practices Act, Fair Credit Reporting Act provides for statutory damagages in the amount of $1,000 per violation. Section 1681s-2 of the Fair Credit Reporting Act creates a cause of action for a consumer against a furnisher of erroneous credit information (Nelson v. Chase Manhattan).

You forgot to add Florida credit card protection acct violation
PRAYER FOR RELIEF  they don't do this anymore at least not what I could find.

WHEREFORE, the Defendant requests that the Plaintiff’s action be dismissed in its entirety, and that judgment be entered against Plaintiff in the amount of $1,000 per violation.

It's a total of up to a 1000 per action for FDCPA, FCRA is upto 1000 per violation (i think)

FCCP is also up to 1000 per action

Redo your pleadings and post them for others to help.
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Florida Debtor
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« Reply #13 on: January 25, 2007, 09:05:24 PM »

Quote from: "wm58"
Thank you, like I said I'm new at this and I am just asking any guidence which will be very much appreciated.  

I still have to answer to the summons, (like I said I'm new at this), and from what research I've read on this post and other post, and as to state laws, please bear with me, so do I file this first or my answers?


You want to file your answer and yout Motion to dismiss at the same time I believe. The Judge will then accept one or the other.
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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.
rubyruby27
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« Reply #14 on: January 25, 2007, 09:12:14 PM »

I think perhaps I am wrong the MTD must be filed first prior to any other pleadings.  That just means date and time stamped first.

I think a MTD- is saying there are no triable issues if you file answers first then there might be triable issues.

Must read the RCP's
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