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Author Topic: Unifund has filed against me  (Read 35923 times)
madscientist
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« Reply #15 on: November 23, 2008, 04:31:10 PM »

Ok, I have been working on my answer all day. Also, is it a good idea to enter a motion to dismiss based on the Plaintiff not having provided any triable issues since ALL of its assumptions are based on an anonymous, undated, credit card holder agreement on which a bank's name has been written by hand on the agreement? The Plaintiff has provided nothing further to support its claims.

I'm working on the answer and will submit a draft for review by you guys. Any help would be awesome.

Grossman, your documents have provided invaluable help to me. Thank you so much.
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madscientist
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« Reply #16 on: November 24, 2008, 11:07:08 AM »

Here is my answer in response to the claim I stated earlier in this post. Can you guys give me some feedback on my answer? Negative comments about my answer would be helpful. This is only a draft and I would like to make corrections, if needed. Just to give you some info regarding the documents the Plaintiff included: Plaintiff included the complaint (posted earlier) and a low quality photocopy of the credit card holder agreement on which the bank's name (original creditor maybe?) was written down by hand prior to making the copy. This document has no copyright date. Plaintiff included no further paperwork. That being stated, I have pasted the draft on my answer below (mostly based on a draft provided by Grossman - thank you). Please give me feedback. Thank you all

___________________________________________________________________________________

IN THE COUNTY COURT
IN AND FOR DUCKHEAD COUNTY FLORIDA


UNIFUND CCR PARTNERS,                               
         
              Plaintiff,

vs.                                                                                      CASE NUMBER:  12345678910 

MADSCIENTIST,
           
            Defendant.


Defendant, MADSCIENTIST, appearing pro se, for its reply to the Complaint of UNIFUND CCR PARTNERS, states as follows: All answers are presented in the order they correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

ANSWERS-AFFIRMARTIVE DEFFENSE

ANSWERS

1.Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained therein, and based on that denies generally and specifically each and every allegation contained therein.

2.Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein and based on that generally and specifically denies the allegations contained therein. Defendant demands strict proof thereof. Plaintiff has attached no evidence to support claim. The document the Plaintiff attached, the so-called “Agreement”, is incomplete to establish liability as it contains no evidentiary connection to Defendant.

3.Plaintiff's claims are unproven assumptions which Defendant denies and demands strict Proof thereof. Plaintiff's attached “Agreement” is incomplete and it contains no evidentiary connection to Defendant.

4.Plaintiff's claims are unproven assumptions which Defendant denies and demands strict Proof thereof.

5.Plaintiff's claims are unproven assumptions which Defendant denies and demands strict Proof thereof. The document the Plaintiff attached, the so-called “Agreement”, is incomplete to establish liability as it contains no evidentiary connection to Defendant.

6.Plaintiff's claims are unproven assumptions which Defendant denies and demands strict Proof thereof. The document the Plaintiff attached, the so-called “Agreement”, is incomplete to establish liability as it contains no evidentiary connection to Defendant.

7.Plaintiff's claims are unproven assumptions which Defendant denies and demands strict Proof thereof. Plaintiff has attached no evidence to support its claim.

AFFIRMATIVE DEFFENSES



1.As to all counts, Plaintiff has FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
       
      A. Plaintiff's attached written evidence fails to establish ownership of the alleged debt.
                       
                        B. Plaintiff's attached written evidence fails to establish alleged ownership or use of the
                             card.
                     
            C. This action is not founded on a written instrument where evidence of liability consists 
                 of a written and/or signed card holder account and security agreement.     
   
            D. The purported “Agreement” alleged in the complaint is an anonymous document
                  which does not provide probative evidence as to Defendant's privity to any 
                  agreement therefore fails the attachment requirements of rule 1.140(b)(6) and rule 1.130(a).
                             

                         E.  Credit Card Agreements are not written instruments under Florida Law. It is
                               impossible to establish any connection Defendant has to this alleged debt or any
                               liability of Defendant to this alleged debt from the attached “Agreement”. The   
                               attached “Agreement” is a generic, undated document, lacking an account
                               number or Defendant's signature, on which a bank's name has been written by hand.
                               No proof exists that it applies to any agreement with any party.

                          F. Plaintiff's attached exhibit is insufficient to establish liability.

                           I. 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,
                               So2d 1129, 1130 (Fla 4th DCA 1981).

2. As to all counts, all of Plaintiff's claims for the alleged debt are TIME BARRED. 

           A. Plaintiff's attached written evidence fails to establish use of the card, date of last
                                  payment on alleged account, or last charge for goods or services on alleged
                                  account.

                             B. Plaintiff's attached written evidence fails to establish any alleged legal liability of 
                                  Defendant.

                 C. Oral testimony and/or Payroll Evidence will be required to make complete the   
                      showing of any alleged legal liability incurred by Defendant.
                   
                  D. As such, Plaintiff's claims are not founded on a written instrument and
                       are governed by Florida's four-year Statute of Limitations on open accounts.
             
                              E. All of Plaintiff's claims for the alleged debt are TIME BARRED pursuant to F. S.
                                  95.11(2)(b) and F. S. 95.11(3)(k).

                                         I. Contract action is not founded upon a 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 elements of
                                 plaintiff's claim. ARDC Corp. v. Hogan, 656 So. 2Nd 1371 (Fla. App. 4 Dist.
                                1995), review denied 666 So. 2Nd 143.
                                     
                                        II. “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 
                                 statute of limitations it must be treated as an oral contract.” McGill v
                                 Cockrell, 101 So. 2D 199 (Fla. 1924) Id at 201.

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.
           
5. 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; Plaintiff's   
    complaint 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.
 
6. The Plaintiff is not an Assignee for the purported agreement and no evidence appears on the
    record to support any related assumptions.

7. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor   
    accepted payment from a third party for the purported debt, or a portion of the purported
    debt, or that the original creditor received other compensation in the form of monies or
    credits.

Respectfully submitted,

MADSCIENTIST
UTOPIA PLANITIA
MARS 87984525 SIGMA B

I certify that I have also sent a copy of this complaint answer via certified mail  to the plaintiff's attorney.

_______________________________________________________________________________________






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madscientist
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« Reply #17 on: December 03, 2008, 10:44:54 AM »

Anyone?
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Fighting the Good Fight in FL
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« Reply #18 on: December 03, 2008, 11:51:34 AM »

madscientist ,

It looks good to me, but could probably use a good review by FraudFighter....


When is your pre-trial?
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madscientist
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« Reply #19 on: December 03, 2008, 02:23:00 PM »

Thanks. Pre-trial is 12/15 though I haven't received a summons yet. I still plan to submit this answer in person 5 days ahead of time (and also mail a copy to the Plaintiff's attorney).

FraudFighter, can you provide some feedback?

Thanks.
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madscientist
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« Reply #20 on: December 04, 2008, 07:25:14 AM »

Now that the time is drawing near, I have a few questions...

Should I file this answer 5 days before the pretrial or should I wait until I'm served? It looks like I am not going to be served before the pretrial. That being the case, should I go to court in person and request an enlargement of time? Am I required to bring an answer to the pretrial or can I submit the answer after the pretrial. Also, please go over my answer submitted earlier and give me your thoughts about it.

I thank you all for your help.
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madscientist
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« Reply #21 on: December 05, 2008, 07:17:53 AM »

Guys, the time is drawing near. I'm still not sure what to do. Should I file this answer or wait? I haven't been served yet. Should I go to the pretrial or skip it (since I haven't been served). Also, I have heard that it is common for the pretrial to be scheduled prior to being served. How can that be? How would you know there even is a pretrial? I found out about this suit because I check the court web site on a regular basis. Any advice on how to proceed would be great. Thanks.
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madscientist
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« Reply #22 on: December 05, 2008, 03:28:45 PM »

Anyone, please??
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Fighting the Good Fight in FL
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« Reply #23 on: December 06, 2008, 08:38:02 PM »

If I were you I would check the clerk of court website regularly and see if the summons ever shows up as being served. If it doesn't the case cannot go forward and you would have no reason to "play your hand", yet...

If it shows as being served, and you never actually recive proper service, you may have grounds to get any default judgement overturned. Though, I would most likely show up in court and beat them at their own game.

I think you may stand a good achance of beating them in court, but why take thet chance if you never get served.....

You will have to decide....
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madscientist
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« Reply #24 on: December 06, 2008, 09:11:03 PM »

Grossman, thanks. I'm still not sure what to do.... I checked the case file this week and there is no affidavit of service included and the case online doesn't show any other entries other than the pretrial. If I don't appear in court, will the plaintiff be there and win a default judgment? That's what I want to avoid. If I do show up, I must have filed an answer, correct? I mean, I can't show up there without having filed an answer?
My understanding is that I have 5 calendar days before the pretrial date to file an answer. Can you clarify these doubts? Thanks.
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Fighting the Good Fight in FL
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« Reply #25 on: December 07, 2008, 06:17:46 PM »

If the summons has NOT been served the case SHOULD be postponed at the pre-trial. The plaintiff has the option to try and serve the summons again (or wait to see if the first summons comes  back unserved) and usually the pre-trial is set again at a future date. It is highly unlikely that the judge will give a default judgment if the summons has NOT been served, and he would be wrong to do so. Usually you can tell if the summons was served on the clerk's website, or you can get the summons number and check with the sheriff. The clerk can give you the number to call.

That being said, if you filed an answer and the summons has not been served, the judge may very well give the plaintiff a default if you do not show up.

That is why it is very important that you check that a summons has not been served to someone else, someplace else (happens fairly often). The judge will have no way of knowing that you have been improperly served and WILL give the plaintiff a default if you do not show up. Most places, they only check to see if a summons was served if the defendant does not answer when their name is called in court.

The sheriffs are probably overwhelmed in the summons department right now and most likely weeks behind on serving people. Is you home address the same address that the suit has listed? Are you home during the day? Lots of reasons why you may not have been served yet, including the sheriff's office not putting high priority on small claims cases....hard to say why you have not been served.

It boils down to this, if the judge believes that the summons was served and YOU are NOT at the pre-trial, the plaintiff WILL get a default, even IF you file an answer.

If you file an answer, you better be at the pre-trial. If the summons is never served, there will be another chance to file an answer, if they ever get the summons served.

Your choice....

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Fighting the Good Fight in FL
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« Reply #26 on: December 07, 2008, 06:19:48 PM »

This case will never go away as long as they have a chance of serving you with a summons.....It will only go away after you fight them in court.
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mads
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« Reply #27 on: December 07, 2008, 07:40:09 PM »

Grossman, thank you. I'm going to check again tomorrow to see the status of the service. An affidavit of service needs to be included in the case file, correct? When I checked last week, there was nothing there. Without an affidavit of service they cannot get a default judgment.

Yes, the address on the claim is the correct address. I have gone over my survelliance video tapes and there has not been anyone here to serve any papers. I can guarantee that. Also, the court website doesn't show any entries regarding service.

I spoke briefly to an attorney about this and he suggested that I do absolutely nothing until I'm served. He told me that they can't get a default judgment without an affidavit of service in the case file.

When I checked the file last week, I saw the claim and an order for the sheriff to serve the summons but no affidavit of service.

What do you think?
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madscientist
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« Reply #28 on: December 08, 2008, 07:30:49 AM »

Ok. I think I have decided not to appear in the case. Not yet, anyway. I'm going to go to court on Wed this week and see if there is an affidavit of service. The affidavit of service should be included in the case file. If there is no affidavit of service, then I can't possibly get a default judgment. I need this extra time so I can read more caselaw and prepare. Although my answer is ready (thanks, Grossman), I need the extra time to prepare to act in court and learn about court procedures, etc.

Once the summons gets served, I will wait the appropriate time frame to file the answer and get involved in the case.

Is this a good course of action?
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fraudfighter
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« Reply #29 on: December 11, 2008, 10:46:41 AM »

Here is my answer in response to the claim I stated earlier in this post. Can you guys give me some feedback on my answer? Negative comments about my answer would be helpful. This is only a draft and I would like to make corrections, if needed. Just to give you some info regarding the documents the Plaintiff included: Plaintiff included the complaint (posted earlier) and a low quality photocopy of the credit card holder agreement on which the bank's name (original creditor maybe?) was written down by hand prior to making the copy. This document has no copyright date. Plaintiff included no further paperwork. That being stated, I have pasted the draft on my answer below (mostly based on a draft provided by Grossman - thank you). Please give me feedback. Thank you all

___________________________________________________________________________________

IN THE COUNTY COURT
IN AND FOR DUCKHEAD COUNTY FLORIDA


UNIFUND CCR PARTNERS,                               
         
              Plaintiff,

vs.                                                                                      CASE NUMBER:  12345678910 

MADSCIENTIST,
           
            Defendant.


Defendant, MADSCIENTIST, appearing pro se, for its reply to the Complaint of UNIFUND CCR PARTNERS, states as follows: All answers are presented in the order they correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

ANSWERS-AFFIRMARTIVE DEFFENSE

ANSWERS

1.Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegations contained therein, and based on that denies generally and specifically each and every allegation contained therein.

2.Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein and based on that generally and specifically denies the allegations contained therein. Defendant demands strict proof thereof. Plaintiff has attached no evidence to support claim. The document the Plaintiff attached, the so-called “Agreement”, is incomplete to establish liability as it contains no evidentiary connection to Defendant.

3.Plaintiff's claims are unproven assumptions which Defendant denies and demands strict Proof thereof. Plaintiff's attached “Agreement” is incomplete and it contains no evidentiary connection to Defendant.

4.Plaintiff's claims are unproven assumptions which Defendant denies and demands strict Proof thereof.

5.Plaintiff's claims are unproven assumptions which Defendant denies and demands strict Proof thereof. The document the Plaintiff attached, the so-called “Agreement”, is incomplete to establish liability as it contains no evidentiary connection to Defendant.

6.Plaintiff's claims are unproven assumptions which Defendant denies and demands strict Proof thereof. The document the Plaintiff attached, the so-called “Agreement”, is incomplete to establish liability as it contains no evidentiary connection to Defendant.

7.Plaintiff's claims are unproven assumptions which Defendant denies and demands strict Proof thereof. Plaintiff has attached no evidence to support its claim.

AFFIRMATIVE DEFFENSES



1.As to all counts, Plaintiff has FAILED TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED
       
      A. Plaintiff's attached written evidence fails to establish ownership of the alleged debt.
                       
                        B. Plaintiff's attached written evidence fails to establish alleged ownership or use of the
                             card.
                     
            C. This action is not founded on a written instrument where evidence of liability consists 
                 of a written and/or signed card holder account and security agreement.     
   
            D. The purported “Agreement” alleged in the complaint is an anonymous document
                  which does not provide probative evidence as to Defendant's privity to any 
                  agreement therefore fails the attachment requirements of rule 1.140(b)(6) and rule 1.130(a).
                             

                         E.  Credit Card Agreements are not written instruments under Florida Law. It is
                               impossible to establish any connection Defendant has to this alleged debt or any
                               liability of Defendant to this alleged debt from the attached “Agreement”. The   
                               attached “Agreement” is a generic, undated document, lacking an account
                               number or Defendant's signature, on which a bank's name has been written by hand.
                               No proof exists that it applies to any agreement with any party.

                          F. Plaintiff's attached exhibit is insufficient to establish liability.

                           I. 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,
                               So2d 1129, 1130 (Fla 4th DCA 1981).

2. As to all counts, all of Plaintiff's claims for the alleged debt are TIME BARRED. 

           A. Plaintiff's attached written evidence fails to establish use of the card, date of last
                                  payment on alleged account, or last charge for goods or services on alleged
                                  account.

                             B. Plaintiff's attached written evidence fails to establish any alleged legal liability of 
                                  Defendant.

                 C. Oral testimony and/or Payroll Evidence will be required to make complete the   
                      showing of any alleged legal liability incurred by Defendant.
                   
                  D. As such, Plaintiff's claims are not founded on a written instrument and
                       are governed by Florida's four-year Statute of Limitations on open accounts.
             
                              E. All of Plaintiff's claims for the alleged debt are TIME BARRED pursuant to F. S.
                                  95.11(2)(b) and F. S. 95.11(3)(k).

                                         I. Contract action is not founded upon a 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 elements of
                                 plaintiff's claim. ARDC Corp. v. Hogan, 656 So. 2Nd 1371 (Fla. App. 4 Dist.
                                1995), review denied 666 So. 2Nd 143.
                                     
                                        II. “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 
                                 statute of limitations it must be treated as an oral contract.” McGill v
                                 Cockrell, 101 So. 2D 199 (Fla. 1924) Id at 201.

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.
           
5. 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; Plaintiff's   
    complaint 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.
 
6. The Plaintiff is not an Assignee for the purported agreement and no evidence appears on the
    record to support any related assumptions.

7. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor   
    accepted payment from a third party for the purported debt, or a portion of the purported
    debt, or that the original creditor received other compensation in the form of monies or
    credits.

Respectfully submitted,

MADSCIENTIST
UTOPIA PLANITIA
MARS 87984525 SIGMA B

I certify that I have also sent a copy of this complaint answer via certified mail  to the plaintiff's attorney.

_______________________________________________________________________________________

I placed Florida Case Law under the Florida Case Law section so folks can see what the common law is.
If you use the Attachment Rule (1.130a) defense, be sure to read the Attachment Rule section in Florida Case Law.
The Court will not usually dismiss a complaint due to the Attachment Rule.
Also, evidence attached is not the determinining factor in a complaint failing to state a CoA.
To assess a complaint, all allegations are assumed true (evidence attached is irrelevent) and the determination is made whether the complaint alleges all the necessary elements of a CoA, which in most cases it does. There are some exceptions, such as Open Account, where the FL common law says that an itemized accounting must be attached to state an Open Account claim.
The Defenses Rule (1.140) lays out the preliminary defense motions that can dismiss a complaint.
If at least 4 years have accrued since the commencement of the alleged delinquency, assert the SoL Aff Def.
I don't have time to read your answer.
Basically, you're denying the allegations (due to claimed lack of knowledge) and raising defenses in the answer.
If your defenses are not sufficient in law to be effective, the PLTF can move to strike.
The PLTF must resolve all Aff Defs in its favor to obtain summary judgment.
The burden of proof is on the PLTF to move forward with the evidence to try to obtain summary judgment.






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