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Author Topic: Unifund has filed against me  (Read 34253 times)
madscientist
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« on: November 18, 2008, 04:29:34 PM »

Hi guys. I hope you can help me out here. I just found out that there is a pending lawsuit against me filed by Unifund on 11/07/2008. I learned this by checking my county website which I do on a regular basis. The pre-trial is set for 12/15. I never received any notification or summons from anyone about this. Had I not checked the court site, I wouldn't know about it. I need guidance on how to proceed. I'm not sure what debt it would be about but it is most likely within FL SOL. I thank you in advance for all your help.
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madscientist
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« Reply #1 on: November 18, 2008, 04:57:45 PM »

Basically, since they haven't served, and will probably not serve, I'd like a game plan that

A. Gets me a copy of the summons. I need to know what it says
B. Gives me more time to prepare
C. Increases my chances of winning

If you could please provide as many details as possible. What to do now and how to fight back. Again, I'm in FL.

Thank you!
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madscientist
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« Reply #2 on: November 19, 2008, 07:40:23 AM »

I'm getting ready to go to the court house now to get the paperwork for the lawsuit. Once I have it, I'm going to post it here so that you guys can help me with it. I spent all night going through my surveillance video tapes and I can say without the shadow of doubt that there has been no process server here to deliver anything. I looked as far back as 5 weeks.

This is my first lawsuit so I would appreciate any guidance you can provide. Thank you.
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Florida Debtor
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« Reply #3 on: November 19, 2008, 09:58:00 AM »

The first step is to get a copy of the summons and post the claims here. You are going to need to answer the summons and maybe file counterclaims.

Because you were not served you should be able to get an extention of time.
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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.
madscientist
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« Reply #4 on: November 19, 2008, 01:37:21 PM »

Thank you for your reply. Alright, I went to court today and I spent half the day on that errand. The clerk was very helpful and told me that there was no summons on file. How can the be? She told me that the case was filed 11/07 but a summons had not been filed yet. A pretrial is scheduled for 12/15. She told me that I should be getting served soon. She didn't know why I hadn't been served yet. How is this possible? Does this happen frequently? I see that if I only have until 12/15 to file an answer, how come there is no summons? I appreciate your help.

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madscientist
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« Reply #5 on: November 19, 2008, 08:33:45 PM »

I've been doing research and I still can't figure out why I don't have a summons. I'm going to call the court tomorrow and see what else I can find out. Is this normal procedure? To have a pretrial date without having being served? I wonder if I don't get served a summons, how am I supposed to know how to defend myself?
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madscientist
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« Reply #6 on: November 20, 2008, 01:42:41 PM »

So I called the court again and spoke to a clerk. She told me that I should be served soon and that I would have time to file an answer since the counter starts the day you get served.

My concern is that the pretrial has already been set to Dec 15th, 2008. Any suggestions?
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madscientist
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« Reply #7 on: November 20, 2008, 07:41:57 PM »

Can someone help me, please??
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Fighting the Good Fight in FL
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« Reply #8 on: November 21, 2008, 09:07:04 AM »

In Florida it is typical that the pre-trial is schedule before you are served.

No one here can help you until you post a copy of the claims against you. You should be able to get this from the clerk of courts. What county are you in?

AFTER you get served, you MUST file an answer in the time stated on the summons. If the the pre-trial falls before that date, you can request that the pre-trial be set back until after the date you must file your answer.

I would recommend looking around this site and starting to get you answer ready, but until you post the claims against you, we cannot be of much help.
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madscientist
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« Reply #9 on: November 21, 2008, 12:53:17 PM »

Thanks guys! Ok, I went to court and picked up the complaint. Here is what it indicates.

I'm going to leave out some information so that if the plaintiff is monitoring these forums, I cannot be identified.

Attached to the complaint is a very, very low quality credit card service agreement without any dates or anything. Nothing else is included in the complaint. The complaint goes on to state the following

The Plaintiff (Unifund) hereby sues the Defendant, alleging as follows:

1. This is an action for damages that do not exceed $5,000, exclusive of interest, court costs and attorneys' fees.
2. This action is based upon a Credit Card Agreement entered into by Defendant with Defendant's original credit grantor. The original credit grantor issued Defendant a credit card or cards pursuant to the Agreement. A copy of the Agreement is attached hereto and incorporated herein by reference.
3. Defendant used the credit card(s) to incur charges and thus agreed to be bound by the terms of the Credit Card Agreement.
4. Plaintiff purchased Defendant's accelerated defaulted debt from the original credit grantor and succeeded to all the rights of the original credit grantor against the Defendant.
5. Defendant is in default under the Credit Card Agreement for failure to make payments when due.
6. The Credit Card Agreement provides for the recovery of all collection costs and attorneys' fees. Plaintiff is obligated to pay its attorneys a reasonable fee for their services.
7. Defendant is indebted to Plaintiff under the terms of the Credit Card Agreement in the amount of $$$$ plus all reasonable costs and attorneys fees if applicable.

WHEREFORE, Plaintiff respectfully requests this Court enter a judgment against the Defendant for damages in the amount of $$$, plus post-judgment interest from the date of judgment at the maximum rate allowed by law; all costs of this action and reasonable attorneys' fees, and for such other and further relief as this Court deems just and proper.

It is then signed by an attorney from the law firm.

What can I do in response to this? Can I answer without being served? Since the paperwork is already in my possession? Should I hand deliver my answer next week? Help, please!

Thank you all for your efforts.
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madscientist
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« Reply #10 on: November 22, 2008, 02:12:21 PM »

Grossman, I see that the statement of claim I have is very similar to yours and they also included a copy of the credit card agreement (with no copyright dates or anything) as their only evidence. Can you provide me with the details on the answer you used back then? I'm referring to this post

http://floridadebtor.com/debtforum/index.php/topic,381.0.html

I need help with this and I would appreciate it very much. Thank you.
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Fighting the Good Fight in FL
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« Reply #11 on: November 22, 2008, 07:18:25 PM »

madscientist,

Check your messges......
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fraudfighter
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« Reply #12 on: November 23, 2008, 06:02:44 AM »

Some basic legal constructs: personal jurisdicton and subject matter jurisdiction.

Both are essential elements for a plaintiff to be able to authorize the courts to act against the sued party.

A breach of contract type law suit does provide subject matter jurisdiction to the courts since it is of the type of cases the FL courts are authorized to adjudicate on. So SMJ is a given.

To obtain personal jurisdiction for a money judgment lawsuit in FL, the plaintiff has to obtain personal service on the defendant, which means that have to personally serve you or a member of your family at least 15 years of age at your normal place of abode.

Absent that, no personal jurisdiction .... except if you become aware of the case by other means.

If you show up in the case, all you can do is quash the illegal service and force them to reserve you in accordance with the law.

If you don't show up in the case, and they obtain default judgment without lawful personal service, then that judgment is void from the start.

Why? Lack of Due Process. You weren't given notice and opportunity to be heard. It's called fraud upon the court.

You can simply file a collateral lawsuit to vacate the void default judgment. Case disposed of.

The problem is that a process server filed an affidavit saying you were served.

You have the burden of proof to prove that process server wrong with the process server having the presumption of correctness.

Focus on the affidavit of service filed in the case and the date/time/place claimed that you were served. 

If you can conclusively prove that you were elsewhere at that date/time/place then you can disprove the process server's affidavit.

 
 

 
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fraudfighter
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« Reply #13 on: November 23, 2008, 06:07:50 AM »

Also, if there is evidence in the case that you became aware of the lawsuit while it was occuring, then the judgment is not void since you have notice in the case.
The Default Judgment would only be voidable. 
You could vacate it with a non-collateral motion to vacate, which sends the case back to where it was prior to the default judgment: awaiting the answer of the defendant to the complaint.
You're back in the case and the case is on.
Don't appear in the case until you are certain you want to do that.
That does not mean not obtaining court filings.
Just don't let the clerk know your identity.
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madscientist
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« Reply #14 on: November 23, 2008, 09:28:34 AM »

Thank you for your help, FraudFighter. I understand what you're saying perfectly. The problem is that I called the court and asked for the file number and I revealed my identity to the clerk, as I did when I personally went to pick up the paperwork. I don't know if this information would be recorded somewhere by the clerk or, since I gave the clerk the information verbally, it would not have become part of the record. Based on this, am I forced to appear at the pretrial conference? It's not that I don't want to appear, I'm just wondering what the appropriate course of action would be in this case.

Say that I want to submit an answer to this lawsuit. Can I do so by simply going to court, say next week, and filing an answer in person even though I have not been served for this lawsuit? Again, the only reason I found out about this is because I constantly monitor the court website and I saw my case in there.

If I want to focus on my answer, the plaintiff has provided no proof that this alleged debt is mine. There is an undated, anonymous photocopy of the credit card holder agreement. The name of the alleged original lender is hand written on the agreement and then the photocopy was made. There are no dates, no account number, no nothing. Any ideas on how to attack this? Examples would be very, very helpful.

Going back to the service argument, is there paper work that can be filed to waive a service if the defendant is already aware of the case? Is this a smart move or not? I'm ready to fight this and I need help on an working strategy.

Thank you all for your help.
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