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Author Topic: Unifund has filed against me  (Read 35926 times)
fraudfighter
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« Reply #30 on: December 11, 2008, 10:57:21 AM »

You have 95.11(2)(b) in your answer. That's the 5 year written instrument SoL.
It should only be there if more that 5 years has passed since the last payment.
Partial payments apply to the SoL calculation on the written instrument SoL only.
Complaints aren't dismissed on SoL unless the evidence of SoL expiration comes from the Complaint. The PLTF has the opportunity to disprove SoL expiration at trial.
Seems like you are fighting the 4 year/5 year SoL battle with this PLTF.
If the PLTF can produce several authentic original creditor billing statements, the court may deem them sufficient in law to constitute a written instrument and apply the 5 year SoL and rule for the PLTF.
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madscientist
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« Reply #31 on: December 11, 2008, 01:40:34 PM »

Thank you. Seems like I'm going to have time to fix the answer before I submit it. I'm still waiting to be served. No affidavit of service has been filed with the case yet.

So basically only raise defenses that apply? What I wanted to do here was state that a copy of the cardholder agreement is not enough to establish liability of anything. The document is anonymous and it has no copyright date. No copy of cashed checks and/or credit card statements have been included in the complaint.

I don't know what credit card this is and I certainly have not made any payments on it. I have not paid anything for the past 3+ years. I don't really know what the date of last payment is for this alleged account.

Can you give me some brief tips on how to re-word the answer so that I attack their lack of proof in the complaint? I mean, how can I sue you with a photocopied paper of a card holder agreement and write the name of the bank by hand? Any help would be appreciated. Thanks.
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fraudfighter
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« Reply #32 on: December 12, 2008, 08:50:17 AM »

The complaint says small claims which means amount in controversy under $5K.
Amount in Controversy is the other factor in subject matter jurisdiction, as the small claims court has subject matter jurisdiction for principle debt amounts $5K or less.
If the principle amount of the claim excluding post charge-off interest is $5K or less on the complaint, then SMJ for amount in controversy exists.
Start reading the FL Small Claims civil procedure rules.
Basically, in small claims, the DEFT denies the PLTFs complaint at pre-trial, then the PLTF is given 60 days to produce the evidence to meet its burden of proof.
The PLTF cannot do discovery on the DEFT in small claims unless the DEFT initiates discovery on the PLTF.
It boils down to whether the JDB PLTF can get authentic original creditor documents within 60 days.
They must be authentic, and supported by an affidavit from an original creditor records custodian, otherwise the DEFT objects on FL Evidence Code grounds of lack of personal knowledge, lack of authenticity, lack of best evidence, and violative of the Business Records exception to the Hearsay Rule and moves to strike.
Also in FL small claims, the DEFT must serve counterclaims on the PLTF 5 days prior to pre-trial.
In order for that to happen, the DEFT must be properly served personally by the PLTF.
If you weren't served, show up at pre-trial and move to quash for failure of personal service and continuance until properly served so that you can file counterclaims.
Also, the fact that they put a pretrial of your case on the docket and failed to serve you, may constitute grounds to move for an FDCPA counterclaim.
Might as well move for a counterclaim to offset a possible claim against you.

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fraudfighter
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« Reply #33 on: December 12, 2008, 08:56:31 AM »

Thank you. Seems like I'm going to have time to fix the answer before I submit it. I'm still waiting to be served. No affidavit of service has been filed with the case yet.

So basically only raise defenses that apply? What I wanted to do here was state that a copy of the cardholder agreement is not enough to establish liability of anything. The document is anonymous and it has no copyright date. No copy of cashed checks and/or credit card statements have been included in the complaint.

I don't know what credit card this is and I certainly have not made any payments on it. I have not paid anything for the past 3+ years. I don't really know what the date of last payment is for this alleged account.

Can you give me some brief tips on how to re-word the answer so that I attack their lack of proof in the complaint? I mean, how can I sue you with a photocopied paper of a card holder agreement and write the name of the bank by hand? Any help would be appreciated. Thanks.

As for their non-existant evidence, 90% of their cases are defaults, so they never have to produce evidence most of the time.
If you force them to produce evidence to win and since this is small claims, they may decide to dismiss rather than pay for the documents to win.
JDBs typically attach junk documents to the complaint since most of their cases are uncontested defaults.
If you contest, they will have to produce credible probative evidence otherwise you can move to strike all their garbage documents that violate the FL evidence code, which is chapter 90 of the Florida Statutes.
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fraudfighter
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« Reply #34 on: December 12, 2008, 09:19:43 AM »

Your answer is overdone.
Just deny all allegations for lack of knowledge and claim the attachment rule is violated since no alleged agreement is attached. An anonymous agreement had no probative value whatsoever and does not satisfy the attachment rule.
You can move for dismissal for violation of the attachment rule but the judge is not likely to grant. But you can argue the cases in favor of attachment rule dismissal.
(There are cases against attachment rule dismissal also. Some jurisdictions are pro-dismissal and others are anti-dismissal for the attachment rule (1.130a). It depends which District Court jurisdiction you're in.)
The judge will give the PLTF the burden to come up with documents and the 60 days.
You can argue for less time.
You can assert affirmative defenses such as statute of limitations but don't try to prove it.
That would contradict your lack of knowledge.
You csn assert lack of privity since the PLTF admits to being a third party and has produced no evidence of proper assignment and privity.
The PLTF has the burden to prove SoL has not expired and proper chain of assignment when he supposedly will produce the evidence within 60 days.
If and when the PLTF produces his documents is when you can file court papers arguing matters of law about SoL and document types that may not be written instruments.
 
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madscientist
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« Reply #35 on: December 12, 2008, 10:26:02 AM »

Thank  you for your help. It's priceless. Sounds like I have a lot of homework to do during the weekend. I'm going to revise my answer based on the suggestions you gave me. I will show up at the pretrial. Do I have to mention how I found out about it? Also, should I take my answer with me to the pretrial (since I haven't  filed it yet as I was waiting to be served)?

Thank you, again, for your help.
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madscientist
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« Reply #36 on: December 15, 2008, 11:13:54 AM »

So I went to the pretrial this morning. I argued the insufficient service of process since the Plaintiff never served me. The judge disagreed and said that the fact I was there in person means that I was aware of the lawsuit and that was it. She didn't want to hear any more about it even though I brought up some case law. I mentioned the attachment rule and that seemed to have interested her. She said that if my Motion to Dismiss addresses that she would take it. I told her indeed it does. I handed the Plaintiff's attorney a copy of the motion to dismiss as I did the judge. The judge did agree with me when I said that a credit cardholder agreement was not enough to establish liability. The Plaintiff's attorney also agreed and said she would speak to their client about getting valid proof.  The judge said she would hear our case and gave us a court date in early Feb.

Is there anything I can do in the meantime?

Also, why did the judge deny the insufficient service of process I brought up? I mean, she herself told me I had not been served. The RCP clearly states that the Defendant needs to be served. I wasn't. She didn't want to hear more about it.

I thank all of you who have offered their assistance.

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fraudfighter
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« Reply #37 on: December 16, 2008, 07:05:25 AM »

So I went to the pretrial this morning. I argued the insufficient service of process since the Plaintiff never served me. The judge disagreed and said that the fact I was there in person means that I was aware of the lawsuit and that was it. She didn't want to hear any more about it even though I brought up some case law. I mentioned the attachment rule and that seemed to have interested her. She said that if my Motion to Dismiss addresses that she would take it. I told her indeed it does. I handed the Plaintiff's attorney a copy of the motion to dismiss as I did the judge. The judge did agree with me when I said that a credit cardholder agreement was not enough to establish liability. The Plaintiff's attorney also agreed and said she would speak to their client about getting valid proof.  The judge said she would hear our case and gave us a court date in early Feb.

Is there anything I can do in the meantime?



Also, why did the judge deny the insufficient service of process I brought up? I mean, she herself told me I had not been served. The RCP clearly states that the Defendant needs to be served. I wasn't. She didn't want to hear more about it.

I thank all of you who have offered their assistance.



Did you argue that you are supposed to be served so that you can timely file your counterclaim?
Did you file a counterclaim?
Early Feb may give them less than 60 days to produce documents.
Who was the client this lawyer was referring to?
Also, you should request they produce documents before trial so that you are given a reasonable time to examine and file court papers in response before trial. The typical reasonable time is 5 days and 5 days are added if they mail them to you. So you should have requested they serve you with documents at least 10 days prior to trial if served by mail. That would cut down on their time.

There is plenty of case law about service and personal jurisdiction. Check the FL Case Law Section.
I don't recall how much I put there.
The judge is right to point out that you are aware of the case by making the personal appearance and thus personal jurisdiction is met, but there is the 5 day prior rule in small claims about filing counterclaims that the court could deny counterclaims if not filed timely under the rules.
The 5 day rule is the reasonable notice requirement to the PLTF on the counterclaims prior to the court date.
That case law about proper personal service and also about fraud upon the court could be used as the basis for an FDCPA violation.
If you had not been on the ball, that PLTF could have gotten a default judgment on you.
That's fraud upon the court since you would not have been given notice of the proceedings.
I would argue that attempted fraud upon the court is violative of the FDCPA and possibly the FCCPA (F.S. 559).
« Last Edit: December 16, 2008, 07:07:36 AM by fraudfighter » Logged
madscientist
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« Reply #38 on: December 16, 2008, 07:26:17 AM »

Thank you, FraudFighter.

Unfortunately, the judge would not let us speak (either me or the Plaintiff's attorney). I tried to speak to her but she wouldn't listen. She told me literally "I have 400 cases today and unfortunately I don't have time to hear either of you recite caselaw right now. Let's set this for trial and argue it then." I kept trying to talk about the lack of due process. I also mentioned that I wanted to file counterclaims and I needed to work on my counterclaims. She said no. She said the fact I was there showed that I was privy to the lawsuit. She told me "you're not going to get this dismissed based on lack of service alone". I couldn't say anything else because she wouldn't let me speak! She wouldn't let the Plaintiff's attorney speak either who kept quiet ALL the time. Then she told her assistant to set us up for trial.

What should I do at this point? Should I send her a letter and the Plaintiff's attorney stating that I need the documents 10 days before trial?

I felt so frustrated I couldn't do anything. I'm still very frustrated about this.

Thanks.
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madscientist
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« Reply #39 on: December 16, 2008, 07:29:31 AM »

The client she was referring to is Unifund.
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Fighting the Good Fight in FL
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« Reply #40 on: December 16, 2008, 08:09:35 AM »

Getting the judge to accept your Motion to Dismiss is good news!!

As Fraudfighter pointed out, the judge will most likley NOT dismiss the case for lack of attachment, BUT, the judge agreeing to look at it can be taken as good news that the judge is not going to just let the plaintiff walk all over you and they had better have their act together.

Forget about the service as this is somehting you can always bring up on appeal IF you lose, b ut right now things look good for you!!

My experience in court with a JDB went similiar to how your case is going. I would be VERY suprised if they can get ANY more evidence before the court date. They would have attached it if they had it to start with. Since Unifund is a JDB, they will have to request the documents to prove their case from the original creditor and are HIGHLY unlikely to get the documents before the trial.

Did you file your answer with the court?
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madscientist
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« Reply #41 on: December 16, 2008, 08:27:52 AM »

No, I only filed the motion to dismiss. Should I file an answer as well? I was told it was an MTD or the answer. I also have an answer ready. Should I file that as well?

Thanks.
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madscientist
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« Reply #42 on: December 16, 2008, 09:25:00 AM »

My understanding is the court now has to settle the motion to dismiss before requiring an answer from the defendant (me). Is that true? How soon can I file my answer after the motion to dismiss has been file (it already has)?

Also, I have some questions...

1. Why did the judge didn't seem to care that I wasn't properly served? Serving of process is a requirement for a lawsuit and it is enough grounds for dismissal. There is plenty of caselaw about this.

2. I just checked the court website and the case now records the motion to dismiss and it has an entry stating "set hearing for 02/04/2009". It appears this is not an actual trial but a hearing.

3. Is there anything I can do in the meantime while I wait for the hearing date? If there is anything I can do I want to do it proactively.

4. If my motion to dismiss is denied, what happens next?

I would really appreciate it if you could answer the above questions with as much detail as possible.

I thank all of you for all the help you have provided.
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madscientist
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« Reply #43 on: December 16, 2008, 05:44:27 PM »

Guys, I think I messed up BIG time by not pushing much more to be allowed to file an answer in addition to the MTD. I pushed a lot but then I kind of held back when the judge became belligerent. I tried to argue the case and she said the pretrial was only for me and the opposing party to reach an agreement and then if no agreement, set the case for trial. She even told me "Mr madscientist, why did you appear in court if you were not served?" I replied "your honor, I believe the Plaintiff has not acted cleanly by not serving me and I was afraid of the default judgment had I not appeared here today." Then she said "no, without an affidavit of service, there wouldn't have been any consequences to not appearing here today. You shouldn't have come." I tried to argue but she wouldn't listen. I told her about the answer and motion to dismiss and she told me she would take the MTD now. I mentioned the answer but then she closed the file and set it aside. She goes "I have to call up the next case now, thank you." I didn't insist because I was afraid she would rule summarily against me so I let it go. I turned in the MTD, gave a copy to the attorney and left.

Am I doomed for not having filed an answer? Is there anything I can do at this point? I thank you all for all the help you have given me. Thank you.
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fraudfighter
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« Reply #44 on: December 17, 2008, 03:48:48 AM »

I would just file and serve your possible counterclaim, your affirmative defenses and your objection to lack of personal service so that a record exists in the case and I would also document the judge not responding to your requests in court due to her excessive workload statement. You will have your defenses documented which you can refer to at the pending trial. Also, make your request for production of documents by the PLTF 10 days prior to trial if served by mail. The PLTF may get agravated by the nuisance of your reasonable request and possible counterclaim and decide you're not worth their trouble.
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