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Author Topic: Being Sued - Start Here  (Read 4547 times)
Florida Debtor
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« on: April 12, 2010, 06:31:42 AM »

This is a first draft and probably contains omissions and mistakes. I am a much better internet programmer than I am a legal expert. I am posting this so you can help me correct mistakes and add info I have missed. If you comment on something (if I am wrong on something or another step is needed,  please add reference/case law so I can double check).

This is NOT legal advise. If you need legal advise hire a lawyer.
Once I check I will add your corrections - additions to this Howto.
 


Dealing with Smal Claims JDB Lawsuits. - Part 1.


The most common reason people end up at Florida Debtor is because they are being sued over an old credit card debt in Small Claims Court. This is an overview of how to deal with them.



Step 1. Make sure you are in small claims court.
If the complaint states that the suit is for less than $5000 and you have have to attend pre-trial mediation you are probably in small claims court. If you are not sure call the courthouse and ask. Be real nice to the court clerks as you may need their help later.


Step 2. If the collector has never contacted you before send them a certified DV letter (today) and then call them to establish contact and record the phone call. (buy a conector at Radio Shack (http://www.radioshack.com/product/index.jsp?productId=2123175&CAWELAID=107594033 dont order it. go buy it) and get a cheap tape recorder somewhere if you dont have one (flea market or garage sale) you could also buy one from Radio Shack too but if you look around you can find one cheaper.

Note that Florida is a 2 party state for recording. You need to tell them that you are recording the call and you need that to be on tape! It does not matter that they said they are recording you, you still need to tell them you are recording them. Dont talk a long time on the phone, just make sure you have on the recording that; You told them you are recording, the account # for the debt, and you contest the debt. DONT give them your Social security number, banking info, employment info, etc and dont admit to the debt. All they need is your name and the account #. Feel free to just hang up on them if needed but be nice to them as a judge might hear the recordings and you want to be the "good guy".

Step 3. Review the complaint and attached "proof" of the debt. They almost never attach enough proof and are not afraid to make stuff up. The most common thing they do is attach a generic credit card agreement, check and make sure the date on the aggreement matches the dates in the complaint. Unless they have solid proof attached to the complaint you will need to draft a motion to dismiss for "Failure to Attach".    

 http://www.nazarethlegal.com/userfiles/file/Ozsargin,%20Oktay%20F_-MOTION%20TO%20DISMISS-NO%20NOTE%20II.pdf?PHPSESSID=ec9eb3889a5db7cebef5aa7ef2899360

Step 4. Review possible affirmative defenses.
The most common is the Statute of Limitations (SoL). In Florida the SoL on credit card debt is commonly thought to be 5 years, but it can be argued that it is only 4 years. If the debt is over 5 years old and you can prove it with their complaint or your own docs, you can do a motion to dismiss, otherwise it will be part of your  affirmative defenses in your response to their complaint. Start date on the 5 year SoL starts when a payment was 30 days late and never made current.

A limitations defense is generally raised affirmatively in an answer or other responsive pleading, but may be asserted in a motion to dismiss if its applicability is demonstrated on the face of the complaint or exhibits. See Koehler v. Merrill Lynch & Co., Inc., 706 So. 2d 1370 (Fla. 2d DCA 1998); S.A.P. v. Dept. of Health & Reh. Servs., 704 So. 2d 583, 584 (Fla. 1st DCA 1997)

If the debt is between 4 and 5 year old read this:
http://floridadebtor.com/index.php/topic,60.msg1582.html#msg1582

more on affirmative defenses
http://www.answers.com/topic/affirmative-defense


Step 5. Counterclaims
This is where you countersue them. The most common will be FDCPA violations,
examples
attempting to collect on a debt that is not owed.
Contenued collection on a debt that validation has been requested but not provided.
(you did send that DV letter in step 1,  and you made that phone call right?)

you can find more on FDCPA violations here:
http://www.pennlawyer.com/fdcpa.htm
http://debtorboards.com/index.php/board,14.0.html

Pull your credit report (for free an https://www.annualcreditreport.com/cra/index.jsp ) . If the debt they are tring to sue you for is on your credit report contest it by sending a registered letter to the CRA  contesting it. If the person sueing you does not drop it add a FCRA violation to your counterclaim.

more on FCRA http://debtorboards.com/index.php/board,15.0.html

Also Florida has their own Debt Collection and Consumer Protection Laws.
http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=Ch0559/part06.htm&StatuteYear=2009&Title=%2D%3E2009%2D%3EChapter%20559%2D%3EPart%20VI

Review them and add any violations to your counterclaims.

This counterclaim seems to get them by suprise:
(a)   Plaintiff failed to give defendant written notice of assignment in violation of F.S ยง559.715.    

 
Step 6. Answer the complaint. The compaint will have numbered paragraphs, you will need to admit,  deny, or state you dont have enough info for each paragraph.


Step 7. Double check your ANSWERS, DEFENSES AND, COUNTERCLAIMS throughly. It would be great if you can have a lawyer or a paralegal review them too. Feel free to post your ANSWERS, DEFENSES AND, COUNTERCLAIMS   (minus your personal info and dates). You can also post it at debtorboards.com to get more eyes to review it.


Step 8. Call the court house and find out when your answers, counterclaims, and affirmative defenses have to be in by. You need to call because it is not clear  in the small claims rules and may vary from county to county.  http://www.floridabar.org/TFB/TFBResources.nsf/attachments/5e3d51af15ee8dcd85256b29004bfa62/$FILE/ATT9QYRJ/Small%20Claims.pdf?openelement

The clerks may tell you  dont have to do anything just show up for pretrial. Even if that is the case it is still a good idea to file and provide copies to the people suing you before the pretrail (the court may provide copies to the other side ask when you call). Dont send it early though, lawyers like to do everything on time but at the last possible minute. You should probably do the same.







« Last Edit: April 12, 2010, 06:44:27 AM by Florida Debtor » Logged

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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.
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