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Author Topic: Hearing for MSJ...... Beating the Deadline!  (Read 26452 times)
fraudfighter
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« Reply #30 on: August 29, 2006, 08:57:48 AM »

Quote from: "rubyruby27"
Don't forget to file a Final Judgment not just a motion to grant msj.

Fraud

Can I amend my MSJ to add addtional case law?


The 20 day advance of hearing rule only applies to evidence not memoranda of law.

You can file/serve a separate memo of law after serving the MSJ.
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fraudfighter
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« Reply #31 on: August 29, 2006, 09:09:41 AM »

Quote from: "rubyruby27"
billing statements, according to this I cured in 6/02, by making up the missed payments only, not by paying the late fees.

So what they did was never figure in the late fee or interest on the over due amount.  That only effected my balance, not what was in default.

No matter what I paid I always paid late since there is a late fee each month of 29.

If this means the debt was cured then I am in trouble and I need to find the law/rule or whatever it was that said all late fees. interest and payments must be cured for the debt to be cured.

I think that is in some banking rule since this was a bank card.

Do you know off the cuff the florida law on curing a debt.  Is it all of the amount in default, interest, late fees, payments or just payments.

Thinking I need to get these statements precluded for being late.


I don't know any of the top of my head.
This is probably a matter of the law of the contract, it would seem.

It's driven by the terms of the agreement. If the agreement says a late fee means a default, then the account is in default.
If the agreement, or even the statement, says paying the past due amount on the last statement cures the default, then the default is cured.

Maybe you should move to preclude for violation of court rules since they were late.
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fraudfighter
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« Reply #32 on: August 29, 2006, 11:42:44 AM »

Defaulted accounts typically post a Past Due amount which is different from the balance.

If the past due amount is paid by the due date, then the default is, in effect, cured and the account is returned to good standing.

If a late fee was assessed, that means you did not pay the past due amount in time.

If the past due amount was not paid in time, then a new past due amount is calculated for the next monthly statement.

If a late fee was assessed, then there would not have been a timely payment of the past due amount, and a new past due amount would take effect. There should be evidence of interest charges on the outstanding balance being added along with the late fee to the next month's balance. That additional interest and fee would make last statement's past due amount less that the current past due amount and should leave the account in default status.

These CC companies also can deny charging privileges if they see that your credit rating has tanked even if you pay the past due amount.
Is that an indicator of default as well? I'm not sure.
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rubyruby27
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« Reply #33 on: August 29, 2006, 12:20:34 PM »

Here's what they say about Default/immediate repayment of balance in Full

Your acct will be considered in default if any of the following conditions or events occur.

1.  You fail to pay a minimum payment  by the due date shown on the monthly statment on which that minimum payment was initially billed

If I was charged a late fee each month then I never cured the default according to this paragraph.

The rest don't apply.

Then it says if your acct is in default, we can refuse to authorize further transactions on your account, refuse to honor superchecks written on the account, close your account an any other credit card accounts with us, require that the cards be returned to us and require you to pay the entire outstanding balanve on your account, provided that we have given you any applicable notices which may be required  by law.
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rubyruby27
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« Reply #34 on: August 29, 2006, 12:52:43 PM »

Under review criteria

If your acct is subject to the standard variable rate terms, the account will be reviewed each month to determin if is in "good standing".  The acct will not be considered to be in good standing if you fail to makw a required minimum payment by that payment's due date and continue to fail to make that minimum payment by the daue date shown on the nect succeding billing statement  (the second due date)

Then it says to get into good standing you must make the minimum payment on time for 6 months, then any new charges made will be at the lower interest rate.  The amt owed on the old balance will be paid at the higher rate.

Other fees--I think I found my loophole

1.  If a required payment is in default under this agreement a 29 late fee may be charged each month until  all payments on the acct are current.

My take on this is any payment (after second payment missed) not made on time the acct is in default and a 29 late fee may be charged each month until all payments on the acct are current. Since I was charged a late fee every month the acct was never brought current because all payments were late the acct was never cured.

That's my argument if I lose on the motion to preclude.
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rubyruby27
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« Reply #35 on: August 29, 2006, 03:47:33 PM »

Sorry I stole your thread Salt but hopefully some of this will help your too.

Thinking out loud

I Reread 95.051 Tolling
I don't see anything that says even curing will toll the default.  95.051 says no disability or other reason shall toll the running of any statute of limitations except those specified in this section.


Bear with me if 95.031 says the cause of action accures when the last element constituting the case of action occurs, is the first written demand for payment.  If a payment whether full or partial is made and that cures the default then tolling occurred. Since that payment restarted the clock.

I know my rationale is flawed, and I understand why it is flawed, but it seems to me it could be argued, that once it goes into default and time starts to run nothing can restart the SoL including curing the default since that would toll.

Do you see where I am coming from?

Are you in South Florida, are you safe from ernesto, not that bad but if you are on the water or low lying area it could be bad.

Hope you are safe, keep us posted if you are in harms way.

Actually statutes below:

The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:

If it is a written contract any payment partial or full will restart the clock.
(f)  The payment of any part of the principal or interest of any obligation or liability founded on a written instrument.

2)  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.

95.031  Computation of time.--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.

(1)  A cause of action accrues when the last element constituting the cause of action occurs. For the purposes of this chapter, the last element constituting a cause of action on an obligation or liability founded on a negotiable or nonnegotiable note payable on demand or after date with no specific maturity date specified in the note, and the last element constituting a cause of action against any endorser, guarantor, or other person secondarily liable on any such obligation or liability founded on any such note, is the first written demand for payment, notwithstanding that the endorser, guarantor, or other person secondarily liable has executed a separate writing evidencing such liability.
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fraudfighter
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« Reply #36 on: August 29, 2006, 07:02:02 PM »

Quote from: "rubyruby27"
Sorry I stole your thread Salt but hopefully some of this will help your too.

Thinking out loud

I Reread 95.051 Tolling
I don't see anything that says even curing will toll the default.  95.051 says no disability or other reason shall toll the running of any statute of limitations except those specified in this section.


Bear with me if 95.031 says the cause of action accures when the last element constituting the case of action occurs, is the first written demand for payment.  If a payment whether full or partial is made and that cures the default then tolling occurred. Since that payment restarted the clock.

I know my rationale is flawed, and I understand why it is flawed, but it seems to me it could be argued, that once it goes into default and time starts to run nothing can restart the SoL including curing the default since that would toll.

Do you see where I am coming from?

Are you in South Florida, are you safe from ernesto, not that bad but if you are on the water or low lying area it could be bad.

Hope you are safe, keep us posted if you are in harms way.

Actually statutes below:

The running of the time under any statute of limitations except ss. 95.281, 95.35, and 95.36 is tolled by:

If it is a written contract any payment partial or full will restart the clock.
(f)  The payment of any part of the principal or interest of any obligation or liability founded on a written instrument.

2)  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.

95.031  Computation of time.--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.

(1)  A cause of action accrues when the last element constituting the cause of action occurs. For the purposes of this chapter, the last element constituting a cause of action on an obligation or liability founded on a negotiable or nonnegotiable note payable on demand or after date with no specific maturity date specified in the note, and the last element constituting a cause of action against any endorser, guarantor, or other person secondarily liable on any such obligation or liability founded on any such note, is the first written demand for payment, notwithstanding that the endorser, guarantor, or other person secondarily liable has executed a separate writing evidencing such liability.


The default is the wrongful act that gives rise to the cause of action.
If the default is cured, the wrongful act no longer exists, so how could a CoA then exist? The injured party is no longer injured.

Curing of the default would open the door to the possibility of a subsequent default, and if it occurred, this would constitute a new wrongful act giving rise to a new CoA and a new limitations period.
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SaltCreek
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« Reply #37 on: August 29, 2006, 07:43:40 PM »

No problem Ruby... I enjoy reading whats going on... can use every scrap of knowledge I can get....... Just FYI though..... my email on this site was wrong, just changed it..... late nights  :oops:  had a dot com instead of the correct dot net. It's fixed today.
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ummons This!!
rubyruby27
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« Reply #38 on: August 30, 2006, 08:37:06 AM »

I know the theory is flawed, it was just a possible, highly improbable theory.  I knew that was the reason but what can I say I am grasping at anything I can think of.

I found part of what I was looking for FDIC rule 5000 reaging.

This really doesn't help me but that is where I read all monies must be paid ie payments, interest, late fees.

So my best hope is to get this precluded, if that doesn't work my arguement:

 "If a late fee was assessed, then there would not have been a timely payment of the past due amount, and a new past due amount would take effect."

" There should be evidence of interest charges on the outstanding balance being added along with the late fee to the next month's balance. That additional interest and fee would make last statement's past due amount less that the current past due amount and should leave the account in default status. "


I need to find case law or statutes that say if all monies are not paid the account is in default ie interest and late fees, guess I might be the first test case if I lose.

The next statement after I paid the money that might have cured says

balance 1986
payments 0
purchases other fees 29
finance charge 42

new balance 2057
 sched mini payment 41
overlimit past due 39
total amount due 80

If I lose I lose, just wish I had this info at the beginning or I had called the OC to find why this acct number was different then the one I paid the large sum to, also explains why the other account number was deleted from my CR.

I need to hit the library, not sure what I am looking for but I have to do something after all this.

Thanks Fraud  for listening to my insane ideas.
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fraudfighter
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« Reply #39 on: August 30, 2006, 08:54:21 AM »

Quote from: "rubyruby27"
I know the theory is flawed, it was just a possible, highly improbable theory.  I knew that was the reason but what can I say I am grasping at anything I can think of.

I found part of what I was looking for FDIC rule 5000 reaging.

This really doesn't help me but that is where I read all monies must be paid ie payments, interest, late fees.

So my best hope is to get this precluded, if that doesn't work my arguement:

 "If a late fee was assessed, then there would not have been a timely payment of the past due amount, and a new past due amount would take effect."

" There should be evidence of interest charges on the outstanding balance being added along with the late fee to the next month's balance. That additional interest and fee would make last statement's past due amount less that the current past due amount and should leave the account in default status. "


I need to find case law or statutes that say if all monies are not paid the account is in default ie interest and late fees, guess I might be the first test case if I lose.

The next statement after I paid the money that might have cured says

balance 1986
payments 0
purchases other fees 29
finance charge 42

new balance 2057
 sched mini payment 41
overlimit past due 39
total amount due 80

If I lose I lose, just wish I had this info at the beginning or I had called the OC to find why this acct number was different then the one I paid the large sum to, also explains why the other account number was deleted from my CR.

I need to hit the library, not sure what I am looking for but I have to do something after all this.

Thanks Fraud  for listening to my insane ideas.


Was this an MBNA account?

MBNA always creates a new account number for the charged-off account when a credit card account defaults.
You see a defaulted MBNA account on your credit report with an account  number that was never yours. Disputing it as not mine or wrong account number does not get rid of it. MBNA keeps verifying it.
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rubyruby27
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« Reply #40 on: August 30, 2006, 06:23:30 PM »

no, it wasn't MBNA, but nice to know that info.

WF bought the account (factoring) in 97 but did not change the acct number until 2001.

Guess I will use common sense argument if necessary.  Wish VL was getting FL case law, some of the IL case law would be good for me.

I think the UCC will work also. Im going to try.

Thanks for the help if you think of anything that might help let me know.
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