farmgirl2013

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About farmgirl2013

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  1. Thanks for the reply. No, the judge never ruled on it but it is included as received on the court website. Included in it (I'm paraphrasing): 1. dismissal for lack of standing. The documents attached (bills of sale) to the complaint don't establish plaintiff's standing because nothing references the specific account. 2. failed to state a cause of action, they failed to attach a written document showing they were a proper interest holder per FL rule 1.130 3. plaintiff didn't show a valid assignment of the debt I kind of rambled on a bit and upon reading this again basically played out how I would defend my case, including hearsay and a lack of an affidavit (probably why the attorney went ahead and got one). I may have shot myself in the foot with my motion to dismiss. This was my first lawsuit and I have to say I was hoping it would just go away . I have since been sued in my current state of residence by Midland and won at the trial. I feel I have a much better grasp of all of this now but unfortunately, that was not the case when I filed the motion for this case. I also never included a lack of jurisdiction defense (as I didn't live in FL when the suit was filed) because I misread the FL rules and thought that even though I lived out of state, since the alleged account started there, jurisdiction wasn't an issue. Seeing how things actually run now, I will call the court clerk on Monday and ask as to why the judge never ruled on the motion.
  2. I'm being sued by a JDB in FL. The attorney happens to be the president of the JDB company (nice huh?) >$5k, county court, Chase is OC. This started in 2013, I filed answer, motion to dismiss (unfortunately did not include anything re: jurisdiction since I lived in another state at the time) then nothing. Until: The court actually sent a motion to dismiss notice for lack of prosecution and the plaintiff had 60 days to reply "showing good cause in writing why the action should remain pending". Per the FL court website, the attorney filed a "Notice of Intent to use a sworn affidavit of custodian of business records" on the last day that he was able to. Now I have a motion to dismiss hearing at the end of March. My question is, if said affidavit has been in the custody of the attorney since before Feb 4 (the last date that he had to show cause to continue) is there anything I can use to win the motion to dismiss since it is obvious that he is just hoping for default judgements and wanting to drag this out? I live out of state and have a motion to appear telephonically that was approved by the court. I am hoping that the attorney will actually send me a copy of the supposed affidavit beforehand. I've browsed through the FL rules and can't find anything for sure regarding timely entering of evidence or something similar. The evidence is laughable, 3 "Bills of Sale" one from Chase that includes the sale of 17,993 accounts. A second one from Chase dated 2 months later that includes 7,200 accounts and finally one from the original purchaser of the accounts to the current JDB for 211 accounts. Nothing has any personal info. And an almost illegible copy of a cc statement.
  3. Thanks for the reply. Unfortunately, I did not mention improper venue. At the time, I recall looking into it and finding something in FL's code that said something to the effect of a lawsuit could be filed if it was where the cause of action started. I did include in my "answer to complaint" that I did not reside in the state at the time of the filing or at the time of service. I did not use venue as a defense though.
  4. I was sued by a JDB in Florida in June 2013. Due to my having moved out of state a year prior, I was not served in my current state until September 2013. I received a notice of lack of prosecution from the court in December 2014 which stated that the plaintiff had to show good cause in writing why the action should remain pending. Today I received a notice of hearing and the plaintiff's motion to appear telephonically. Via the Florida court's website, the attorney filed a notice of intent to use an affidavit of custodian of business records. This is in civil court for over $5000 I received with the initial paperwork 2 bills of sale that don't show my name or the alleged account and a copy of one monthly statement. Initially, I filed an answer to the complaint and a motion to dismiss. Since, I've done and heard nothing until the court's notice to dismiss. I no longer live in FL so I figure I'll also file a motion to appear telephonically. Should I also be filing a motion to compel discovery as I have no "affidavit of custodian of business records"
  5. I forgot to mention that the lawyer complimented me on my thoroughness after the ruling. He ran up to me a few minutes later, outside the courtroom and asked where I worked. I told him (I work for a large home improvement retailer). He said Really? You should work for an attorney.
  6. Kobe71, I'd be glad to let you know. The first documents they introduced were the alleged credit card statements. Because I was a bit nervous and didn't know if I should interrupt I didn't say anything although the judge didn't really look at them anyway. The next thing the lawyer introduced was the OC bills of sale to the first debt buyer "Thunderbolt Holdings" and a affidavit from Citibank. The bill of sale stated "a pool of accounts", no specific names and the file names were redacted. The affidavit also stated a pool of accounts. At that point I asked if I should object then (the judge gave direction before anything started and let everyone know that he would help them with knowing when it was their turn). I objected stating that the bill of sale and affidavit were not relevant as they did now specify my name of the alleged account. Immediately, the lawyer introduced a bill of sale and affidavit from Thunderbolt to Midland also without specific info and including redacted info. Included was a separate page that at the bottom stated it was printed by Midland from files received from Thunderbolt and at the top had exhibit A written by hand. This page had my name, address, alleged account number and last 4 of SS# among other things. The attorney stated that this page was printed from the redacted info. I objected to the bill of sale and affidavit because they did not specify anything. I also objected to exhibit A because it was not referenced in the affidavit or bill of sale. The judge took his time reading those documents and asked the attorney if he was aware that the references weren't there. Lawyer stated yes he was. The lawyer then introduced the final affidavit from a "legal specialist" at Midland that stated he had personal knowledge, etc, etc, etc. This affidavit did mention my name and the alleged account. To this I objected and quoted case law (or tried to) and said that "All statements on an affidavit must be made on first hand factual knowledge and clearly the legal specialist was not at the Citibank or Thunderbolt sales. The judge say okay, that's basically double hearsay. At this time the judge said he was sustaining my objection and not allowing anything in. Finally, the lawyer introduced the 2 "pre-legal" reminders which were their basis for account stated. These had been supposedly mailed to me previously. I was asked if I'd seen them and I said yes when the attorney gave them to me the last time we were here but not before then. I objected to them and again stated case law from Alabama's supreme court that a creditor had not proven a rendering of the statement of account when they had no testimony regarding their mailing practices. Additionally, I brought up that account stated must have "a meeting of the minds" regarding the amount owed and since these 2 papers, sent 1 month apart had different amounts, how could we have had a meeting of the minds. The judge asked the lawyer if he had an affidavit for this evidence, which he didn't. He also returned this to the attorney along with the account statements. The judge asked if the lawyer had anything else and if I had anything to add. I still wasn't sure how this was going, though I was hopeful but I'd read about this type of thing happening and then the lawyer asking for a summary judgment. So I said yes, rule 201 Judicial Notice of Adjudicative Facts allows me to introduce facts that cannot be reasonably disputed. I started rattling off class action suits against Midland which they'd lost. The judge stopped me and said he was going to make a judgment in my favor. I have to attribute part of my success on having a judge that was tolerant and not a stickler for precise legal jargon as long as what was said was backed by law. Be prepared. I got a binder and had my information separated by tabs for easy access. Read up on the rules of evidence in GA and rules of civil procedure, I printed out some of the rules and highlighted the relevant parts. Pay particular attention to whether each rule is applicable to the court you will be in. In AL, many civil procedure rules aren't used in district court but it doesn't state it until the very end of the rule, some of which are very lengthy. Search for relevant case law, you can use google scholar. It's a bit intimidating and nerve racking but do your homework so that you feel prepared. Good luck!
  7. I WON!!!!!!! They sued for breach of contract and account stated. Today, after 2 continuances, a motion to compel (that was ignored) and a lot of stress on my part I had my day in court. I was able to get all of Midland's evidence thrown out. This included bills of sale and affidavits from the OC and from the first purchaser and an affidavit from Midland on the alleged debt. Also thrown out were copies of the alleged account's statements, and 2 "pre-legal reminders" from Midland. The judge actually stopped me when I brought up Rule 201 Judicial Notice of Adjudicative Facts (I was going to bring up some of the class actions against Midland for robo-signing and using false affidavits. He then told me that he was not going to allow their evidence and since the rules of evidence are strict in district court, I did not need to continue as he was making a judgment in my favor. I asked if this was with or without prejudice and the judge informed me that per the law they have 14 days to refile. He then said but I don't think they will. LOL Thanks to all on here that answered my prior posts. I also found "Defending Junk Debt Buyer Lawsuits" by Peter A. Holland invaluable in coming up with defenses and objections. I do have to say that now I really understand why everyone recommends certified mail with return receipts. The attorney actually said they didn't receive anything that I sent until they got the compel order. Ya right.
  8. Thanks graym!! I really appreciate it. I am very hopeful that all will go well at trial.
  9. Yes thank you Clydesmom. That is why I was asking on here because someone may have an account with LexisNexis etc and have access. I don't have a local law library to go to.
  10. My trial date against Midland is on Wednesday. I have found a great deal of information here and online, in particular a paper titled "Defending Junk-Debt-Buyer Lawsuits" by Peter A Holland. In this paper he cites Am. Jur. 2d Accounts & Accounting section 26. I would like to be able to have the entire section available instead of just the cited part and cannot find access online. Thanks.
  11. Being sued by Midland. Court date was originally set for mid-March (Alabama moves quickly with these things), I filed a request for a continuance (I asked for 60 days) so I could request documents and it was then set for mid- April. In the response to my continuance, the court stated, defendant "is encouraged to contact the plaintiff's lawyer to seek copies of the documents she wants. If she is not satisfied, she may file a motion with the court requesting permission to conduct formal discovery." I sent a first request for documents on March 2 and have not received a reply. Should I just file a motion to conduct formal discovery or contact the lawyer with a second request. Per Alabama civil procedure after a formal discovery request, I need to show that I "endeavored to resolve the subject of the discovery motion through correspondence or discussions with opposing council."
  12. Also, after they received a copy of my request for a continuance, they sent what they called "a response to your request for validation of this debt". This included several copies of card statements. The copies are very poor and not even legible in certain parts. Other than keeping the copies to show in court if need be, can I require them to send me legible copies? They also have increased the alleged amount I owe by almost $300 since the summons was sent at the end of January.
  13. Yes, for the discovery requests. While I was reading through the rules of civil procedure: Rule 34 is titled Production of documents and things and entry upon land for inspection and other purposes. a) Scope talks about what you can request Procedure "The request may, without leave of court, be served upon the plaintiff after commencement of the action and upon any other party with or after service of the summons and complaint upon that party. The request shall set forth the items to be inspected either by individual item or by category and shall describe each item and category with reasonable particularity. The request may specify the form or forms in which electronically stored information is to be produced. The request shall specify a reasonable time, place, and manner of making the inspection and performing the related acts." It goes on to state the length of time to reply and then states: "A party who produces hard copies of documents for inspection that are not electronically stored shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the request." I am also confused. This rule seems to spell out that you can inspect and copy the documents but not that they will be sent to you by the plaintiff. I may be taking this too literally but I don't want to have a problem because of an error on my part.