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Author Topic: UPDATE ON CRAP ONE!!!!!!  (Read 26675 times)
gatormommy
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« on: July 19, 2007, 03:33:18 PM »

hi

i just wanted to let everyone know that i had a kinda victory at the plaintiff's hearing for msj.  even though i did things the wrong way, as the opposing attorney so diligently pointed out, the judge did not make a ruling.  he decided that he was going to take a fews days to decide.

i brought up the whole virgnia law argument.  i have peaked the judge's curiosity.  i'm not out of the woods yet, but i'm hoping if he was going to rule in the plaintiff's favor he would've done it today.

i was talking with the opposing attorney, he was actually representing capital one's attorneys in miami and he said that capital one will not settle and if the judge rules in my favor they will appeal.

so again i'm asking for help.  the miami attorneys have case law about a judge, in miami, that said a credit card account is a contract and uses the 5 year statute (the plaintiff was also capital one).  since i got the judge to agree that the card member agreement is governed by virginia law, is there anything case law saying a credit card agreement is not a written instrument?  can anyone clarify for me exactly what needs to be in a written agreement.  the opposing lawyer pointed out the i was contradicting myself in saying the the credit card was not a written contract and that it was an open-end agreement, but then i was relying on the 'contract.'  he kept calling the 'customer agreement' the 'contract.'

the judge said that we could supplement our arguments with anything we could find.

p.s the judge (and even the opposing attorney) said that this was a great pro se agrument and that i brought up valid agruments and asked if i was a law student. :oops:  so great job everyone, thanks for all the information.
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rubyruby27
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« Reply #1 on: July 19, 2007, 05:03:28 PM »

I don't know what you said completely you need to read the fernandez case over and over.  There is a NY Judge that stated in thier opinion o a case what a writtten instrument is.
  Fraud posted this on this site its great, you have to read it several times.
Also you need to use the RCP's 1.130 that says a written instrument must be attached to the pleadings for them to claim 5 yr written.

the card agreement is nothing more than a card agreement it doesn't have anything on it that says its yours there is no card number or signature on it.  Who says its yours and it applied to your card.

Also what coa's did they claim are any of them with 5 yr sol or just 4 yr and the is how you would argue it this is also based on the RCP's.

Also on debtorboards in a sticky there is caselaw that fraud posted, it is a thread started by me about MSJ- all the caselaw you need is there.  It might also be on this site too, not sure if its the same.

Great Job.  I hope in your answers you wrote in the prayer or whatever that you wanted any fee's to be award by inherent powers, hopefully you win they appeal and then you can go for case law.
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fraudfighter
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« Reply #2 on: July 19, 2007, 05:53:04 PM »

Quote from: "gatormommy"
hi

i just wanted to let everyone know that i had a kinda victory at the plaintiff's hearing for msj.  even though i did things the wrong way, as the opposing attorney so diligently pointed out, the judge did not make a ruling.  he decided that he was going to take a fews days to decide.

i brought up the whole virgnia law argument.  i have peaked the judge's curiosity.  i'm not out of the woods yet, but i'm hoping if he was going to rule in the plaintiff's favor he would've done it today.

i was talking with the opposing attorney, he was actually representing capital one's attorneys in miami and he said that capital one will not settle and if the judge rules in my favor they will appeal.

so again i'm asking for help.  the miami attorneys have case law about a judge, in miami, that said a credit card account is a contract and uses the 5 year statute (the plaintiff was also capital one).  since i got the judge to agree that the card member agreement is governed by virginia law, is there anything case law saying a credit card agreement is not a written instrument?  can anyone clarify for me exactly what needs to be in a written agreement.  the opposing lawyer pointed out the i was contradicting myself in saying the the credit card was not a written contract and that it was an open-end agreement, but then i was relying on the 'contract.'  he kept calling the 'customer agreement' the 'contract.'

the judge said that we could supplement our arguments with anything we could find.

p.s the judge (and even the opposing attorney) said that this was a great pro se agrument and that i brought up valid agruments and asked if i was a law student. :oops:  so great job everyone, thanks for all the information.


You're making a number of imprecise descriptions. Being precise is essential.
Just because a credit card account is a contract does not make it founded on a written instrument. There are certain tests for the writing to be considered a written instrument. If PLTF throws out a illegible or incomplete writing that does not on its face prove that a defendant acknowledged the obligation for a specific account and shows how the correct amount was calculated or will be calculated, then parol evidence is required to make the writing complete and thus the action is not founded on the written instrument, thus it is insufficient in law for the 5 year written instrument SoL to apply. Focus on arguing that they have no writing SUFFICIENT IN LAW for the longer SoL to apply.
But, really, if VA law says these agreements are open accounts then argue that VA looked at both types of agreements and concluded that these agreements are exclusively open accounts thus making it an absolute defense to a written instrument claim.
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Fighting the Good Fight in FL
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« Reply #3 on: July 20, 2007, 08:09:51 AM »

Also remember that SOL on open accounts in Virginia is 3 years, not 4. Don't know if this helps your case or not.
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gulfbreeze
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« Reply #4 on: July 20, 2007, 08:34:03 AM »

you might look at my argument i am taking to the court that says when filing a case against someone in VA, that they must choose what type of suit it is. i pointed out that in the filing papers for va, the choices are:

OPEN ACCOUNT
CONTRACT
NOTE
Other (Explain)

this is found on a warrant in Debt Form DC 412

open account are 3 years and according to case laws, they cant file contract because they have no OFFICIAL CONTRACT paper to present.

its true, that a credit card can be looked at as a contract, but without written instrument, it is the lesser of the SOLs. I plan on pointing out that all their paperwork is worthless because they dont show them as being linked.

PS...I have one question

When is the necessary evidence needed when you say "Also you need to use the RCP's 1.130 that says a written instrument must be attached to the pleadings for them to claim 5 yr written."

When they first filed...nothing was attached. It wasnt until after the pretrial that they filed the evidence that they will consider WRITTEN INSTRUMENT....thx
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gatormommy
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« Reply #5 on: July 20, 2007, 06:57:11 PM »

thanks everyone, for the help.

the opposing attorney submitted a document that was, i guess the paperwork for when a msj is granted.  it said that the judge found that the credit card was a contract and that it fell under the 5 yr statute.  it is not case law and i don't know the details, there weren't any.

when i was researching today, i discoverd the rule about having to attach a cause of action to the claim.  the customer agreement is not a cause of action.  

i submitted the fernandes case and explained to the judge, in a cover letter, why i was using fl case law.  i just couldn't find any.  it seems that there isn't much caselaw because a lot of people give up and settle.  

basically, i said that va and fl statutes are very similar.  i chose va 1)because it was the only one that mentioned an open account (on the warrant in debt and when to start the running of the statute of limitations) 2)because the customer agreement stated va and fed law.

i didn't say this but i don't care which laws the judge chooses, the contract is not founded on a written instrument according to the fernandes case.

so when a judge doesn't rule right away and says that he is taking the msj under advisement, does he go back and read everything and do some research on his own?

another tid bit about the judge:  he called capital one's interest rate "unconsionable" (spelling?).  he also believes in "mitigation of damages."  i like the whole mitgation of damages thing too.  he believes that capital one should have known after six months of nonpayment that i wasn't going to pay and that they should have sued me earlier.  he also noticed that they sued me 3 mos before the 5yr statute expired.

sorry so long winded, thanks for stickin' with me.

gulfbreeze, capital one is not buying the whole va thing.  they are so arrogant that they just ignored it.  i guess it only matters what the judge thinks.  if by some miracle the judge rules in my favor, they said they will appeal.  i'm not saying i want to prolong this anymore but it would be nice to have some more caselaw on this.
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Fighting the Good Fight in FL
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« Reply #6 on: July 20, 2007, 08:22:33 PM »

This is HH&L for Crap One?
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gatormommy
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« Reply #7 on: July 20, 2007, 08:59:41 PM »

yeppers!!!
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rubyruby27
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« Reply #8 on: July 20, 2007, 10:00:08 PM »

how long to you have to supplement your argument.

You need to go back and read Frauds post he essence told you how to state to the court in simple terms what florida says is a written instument.  You have to use several different FS and caselaw to back it up.

Also was there a court reporter at the hearing?  It will be difficult for them to appeal without a written record of the hearings.

You need to probably to a Supplemental Memorandum of Law in Support of xxxxx (wahtever it was)

Below is a post by FraudFighter--you need to read it and probably use most of it.

Defendant moves for summary judgment on the grounds that the pleadings and papers filed in this action show that defendant is entitled to judgment as a matter of law, as Plaintiff failed timely to file its claims within the applicable limitations period.

Section 95.11(2)(b) of the Florida statutes provides, in relevant part, for a five-year limitations period for filing an “action on a contract, obligation, or liability founded on a written instrument.” However, Section 95.11(3)(k) provides, in relevant part, for a four-year limitations period for filing an “action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, ware, and merchandise, and on store accounts.”

The Complaint alleges three Counts. Count One, styled “Breach of Contract,” alleges breach of “a written agreement between the parties.” Count Two is styled “Account Stated.” Count Three is styled “Quantum Meruit.”

Section 95.11(3)(k)’s four-year limitations period obviously applies to counts Two and Three, and so those Counts are time-barred.(1(on bottom of page)) However, in the memorandum filed in support of its motion for summary judgment, plaintiff argues that Section 95.11(2)(b)’s five-year period applies to Count One. That argument requires the assumption that the “Cardmember Agreement” that was attached as an exhibit to plaintiffs motion and Memorandum constitutes a “written instrument” under Section 95(2)(b). However that “Cardmember Agreement” (an inexplicable different version of which was attached to the Complaint) was not executed by the defendant or anyone acting on her behalf and so is not a legal “written instrument” on which an action can be “founded.” thus Count One is governed by Section 95.11(3)(k)’s four-year limitations period and is time-barred.

If, arguendo, one or the other unsigned “Cardmember Agreement” pamphlets were to be deemed to be a binding contractual document under which the plaintiff could bring an action, then neither Section 95.11(2)(b)’s five-year period nor Section 95.11(3)(k)’s four-year limitations period would govern. That is because both versions of the “Cardmember Agreement” expressly provide that the Agreement will be governed by the laws of the State of Delaware, and the applicable limitations period under Delaware law is only Three years. Title 10, Section 8106 of the Delaware Code provides, in relevant part, that:

----------------------------------------
See Colorado National Bank of Denver v. Story, 261 Mont. 375, 862 P.2d 1120 (Mont. 1993) (“account stated” claim is not one “founded upon a written instrument.”)
----------------------------------------

No action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations . . . Shall be brought after the expiration of 3 years from the accruing of the cause of such action.

In Delaware law, “this language has consistently been applied to actions alleging a breach of contract with the exception of those under seal.” Consolidated Rail corporation v Liberty Mutual Insurance Company 2002 WL 32080503 (Del. Super.) at *4. In the instant case, there is no evidence of a formally executed contract “under seal” the requirements for which are strictly enforced under Delaware law, Id. at *4-*5. Rather, the instant action appears to be more akin to one “based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations.” Title 10 (double s sign) 8106, DEL.CODE, supra. Thus under Delaware law all three Counts of the instant Complaint would be time-barred. Defendant is therefore entitled to summary judgment as a matter of law.

Here is part of my MSJ it will give you caselaw.

The case law was provided by Fraudfighter.

Let me say that Fraud helped me more than he will ever know--the best advice he gave me was go to the law library and look up reference books on rcps.  I am telling you to do the same.

You are on the verge of losing this, you can win if you submit case laws to back you up so the Judge has something to base an opinion on.  If they do appeal no Judge wants to be reversed.

MOTION FOR SUMMARY JUDGMENT

            
1.     Defendant pro se moves pursuant to Fla R.C.P. 1.510 that the court enter a summary judgment in her favor dismissing this action, upon grounds there is no genuine issue in the cause as to any material fact, and defendant is entitled to final  judgment as a matter of law in that:

2.     Plaintiff failed to state a claim upon which relief can be granted. No triable issues exist because all of Plaintiff's actions are precluded by the Statute of Limitations.

3.     The Statue of Limitations  for credit card actions is four years.  The Plaintiff’s cause of action is Breach of Contract and Unjust Enrichment.  All The plaintiff(s) claims for the alleged debt are time barred pursuant to  FS 95.11(3)(k)(p).  
     
A.     “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).

B.     The Appellate Courts upheld the trial court decision,  “ 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 statute of limitations purposes” Portfolio Recovery Associates, LLC v Paul
 Fernandez 13 Fla L. Weekly Supp. 560, 561 (2006).

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, 88 Fla 54, 101 So.2d 199 (Fla. 1924) Id at 201.

E.      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.               

5.     Computation of time FS 95.031--Except as provided in subsection (2) and in s. 95.051 and elsewhere in these statutes, the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues. “ is the first written demand for payment.”

A.     “Cause of action on contract accrues and statue of limitations begins to run from time of breach of the contract.” “Intent of statute setting for the limitations period for contract actions is to limit commencement of actions from time of their accrual.”  State Farm Mutual Automobile Insurance Co v Lee, 678 So.2d 818 (Fla 1996)

B.     Fradley v. County of Dade , 187 So. 2d 48 (Fla. 3d DCA 1966) (holding that where plaintiff elected to bring action on breach of contract theory, cause of action accrued from time of breach or neglect, rather than from time when consequential damages resulted or became ascertained).

6.      Plaintiff’s attached written evidence (exhibit “A”, card agreement dated 2/02)  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.      Florida Rule of Civil Procedure 1.130(a) provides that all contracts or documents “upon which action may be brought...shall be incorporated in or attached to the pleadings .”

B.     Where a complaint is based on a written instrument, the complaint “does not state a course of action until the instrument or an adequate portion thereof is attached to or incorporated in the
 complaint.” Safeco  Ins Co. v Ware, 401 So.2d 1129, 1130 (Fla 4th DCA 1981).

C.      ...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 Fernandez 13 Fla. L. Weekly Supp. 560a 2006.

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, 88 Fla 54, 101, 199 Fla. 1924) Id at 201.

7.      No disability or other reason shall toll the running of any statute of limitations except those specified in this section, s. 95.091, the Florida Probate Code, or the Florida Guardianship Law.

A.      “No tolling provision 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)

B.     “Only those circumstances expressly provided by Florida’s tolling statute will toll statute of Limitation.” In reference to Southeast Banking Corp.  855 F.3d 353 (S.D. Fla 1994) affirmed 69 F.3d 1593)

C.     “A determination of whether a cause of action is time-barred pursuant to the expiration of a statute of limitations may require two different analyses: First, whether the case of action accrued and, if so, when; second whether a statutory tolling provision applies.”  Heardon v Graham, 767 So.2d 1179 (Fla. 2000) Id at 1185.

D.    “Courts not write exceptions into statutes when the legislature has not.” Federal Ins. Co v Southwest Florida Ret. Ctr., Inc, 707 So.2d 1119 (Fla 1998)

8.     It is an FDCPA violation to file an action on a time-barred debt.
 
A     Kimber v. Federal Financial Corp. (M.D. Ala. 1987) 668 F.Supp. 1480 Kimber argues that … to collect on a debt that appears time-barred … constitutes an unfair and unconscionable practice offensive to § 1692f.  The court agrees with Kimber.

9.     The Plaintiff has not provided the courts with any material evidence just paper, paper issues aren’t material issues.  All of these competent facts render the adverse party’s pleadings as mere paper issues as defined in Hardcastle v Mobley, 143 So2d 715, Fla 3rd DCA 1962 and Connolly v Sebeco, Inc, 89 So.2d  482, (Fla 1956).

10.    “When...pro se, allegations must be read liberally and court must hold to a less stringent standard than those drafted by attorney’s.”  Raber v Osprey Alaska, 187 F.R.D. 675 (M.D. Fla. 1999).  “Where a pro se pleads in a suit, the court should endeavor to construe pro se pleadings
 without regard to technicalities.”  Picking v Pennsylvania R. Co., 151 F2d 240 (C.A. 3rd Cir., 1945)

I would get busy and file it soon, you may only have 5-10 days.  I am sure it is in the RCP's on how long you have to submit any additional pleadings.

I am not 100% sure but the evidence rule might be FS 90---everything you need is on this site to win mostly posted by Fraud.

Good Luck and keep us posted.
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gatormommy
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« Reply #9 on: July 31, 2007, 08:15:30 PM »

Well, my case has been dismissed.  I just checked the clerk of the court.  I haven't received any documentation yet.  What does "count closed" mean?  Count 1 was 'breach of contract.'  Does that mean my judge agrees with the Fernandes case?

07/31/2007 CASE CLOSED  
07/31/2007 COUNT CLOSED Civil Count No. 1
07/27/2007 ORDER OF DISMISSAL (SC) (CLOSES)


I wanted to thank everyone for all their help and support.  I couldn't have done this without you guys.

I know that Crap 1 is going to appeal.  So I will just rest on my laurels until I get their notice.
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rubyruby27
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« Reply #10 on: August 01, 2007, 12:52:47 AM »

Congratulations.

You need to go to the courthouse and see what happen, did HHL dismiss or the Judge agree with you.  

If the Judge agreed with you and you won--you need to submit to the courts a Final Order.

Gator where in the contract does it say VA law applies.  I can't read a card agreement as it is poor quality so any guidance on where to zero in on is appreciated.
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VexatiousLitigant
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« Reply #11 on: August 01, 2007, 02:34:41 PM »

What motions were pending?  If you had the only dispositive motion, you won.  If there was a pending MSJ against you, it could be either.
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VexatiousLitigant
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« Reply #12 on: August 01, 2007, 02:35:13 PM »

Actually it says order of dismissal, so without knowing how FL does things I'd say you won.  Otherwise I suspect it would say order of judgment or something similar.
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gatormommy
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« Reply #13 on: August 01, 2007, 03:49:21 PM »

ruby- i only have an enlarged photocopy of the aggreement.  the va law part is after 'changes in terms' and before 'severability.'  it actually says 'applicable law.'
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rubyruby27
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« Reply #14 on: August 01, 2007, 04:56:54 PM »

Thanks I'll see if I can find it.
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