sinfulcolors

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About sinfulcolors

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  1. @BV80 violating FDCPA and FCCPA. Falsely representing the character, amount or legal status of a debt. I also submitted proof of last payment.
  2. Hi Everyone.... So today was the hearing for the MTD based on the cost bond. The attorney was kind enough to file the bond prior to the hearing and the judge denied the motion. He also said something that I thought was strange. He said you can't file a MTD and submit your Answers. So I guess, I should have file a MTD based on the SOL instead of filing Answers and the MTD based on the bond. Anyways, I'm confused now. I will continue with the next step. Oh and by the way, the attorney told the judge they will have their answers to the counterclaim next week.
  3. Update: They filed a motion for an extension of time to answer the counterclaim. The hearing for the motion to dismiss for not posting a non-resident cost bond still holds and they still haven't posted the $100. Should I file another motion to dismiss for SOL or is that a given with my affirmative defenses and counterclaim?
  4. Filed my paperwork and also filed a Motion to Dismiss for Failure to Post a Non-Resident Costbond... @LawKitty recommended. Now we wait.
  5. Thank you everyone who has offered advice, I really do appreciate it. I got everything printed and will be filing at the end of this week. @Anon Amos I did post "Answers, Affirmative Defenses and Counter Claim" my answers are about two pages and my affirmative defenses another 2 pages and the rest is counterclaim and certificate of service.
  6. Well I'm almost done with my Answers, Affirmative Defenses and Counter Claim. It is about 8 pages long. The one thing I am not positive on is how to cite a case. I have seen it underlined, underlined and italic, just italic. Does anyone know the proper form? I did mention that I am unschooled in law but I would rather have something as close as possible to the real deal.
  7. Thanks @graym & @BV80. @BV80, in your post #32, regarding the referencing of contracts. This was more of graym’s thinking. I said from the beginning that I didn’t believe that Account Stated was on a written instrument but Graym had found in American Law Reports with the possibility that Account Stated could be written (see Post #22) and advised me to find something to challenge that. I found it under Patricia Farley v Chase as you did. I feel a lot better now that I have two cited cases confirming my SOL. Thanks Graym for pushing me to find the "icing on the cake"
  8. @BV80 & @shellieh98 what do you think about this: The cause of action for an account stated is based on the agreement of the parties to pay the amount due upon the accounting, and not any written instrument.” Whittington v. Stanton , 58 So. 489, 491 (Fla. 1912).
  9. I think we are missing the biggest part and that is what makes a written contract a written contract. I got this from the Florida Bar: Contract Valid in Florida: Offer, Acceptance, and Mutual Consent Every contract must include a specific offer and acceptance, and it must be consented to by both parties of their free will. Neither party can be coerced or forced to sign the contract, and both parties must agree to the same terms. Consideration There must be something of value exchanged between the parties. The thing of value may be money or services, but both parties must give something (otherwise, it is a gift, not a contract). Sound Mind Both parties must be of "sound mind." This definition requires that neither party be a minor, both must be sober (not under the influence of drugs or alcohol when signing the contract), and neither can be mentally deficient. Legal Purpose The contract must be for a legal purpose. It cannot be for something illegal, like a selling drugs or prostitution. Signatures are required on a written contract. Also, I found some this: If evidence of liability is partially in writing but the writings are incomplete to establish liability, then the contract is regarded as oral for statute of limitations purposes. See ARDC Corporation v. Hogan, 656 So. 2d 1371 (Fla. 4th DCA 1995) (“(i)n order that a contract be founded upon a written instrument, the instrument must contain a contract to do the thing for the nonperformance of which the action is brought.”); Ball v. Roney, 112 Fla. 186, 150 So. 240 (1933); Schrank v. Pearlman, 683 So. 2d 559 (Fla. 3d DCA 1996), rev. den. 691 So. 2d 1081 (Fla. 1997). So a statement is missing a few pieces to be considered a written contract: 1. It doesn't include signatures. 2. It doesn't say what will happen if payment is not received.
  10. @graym They don't have it and you need it prove it. Why are you under the impression that account stated is on a written instrument? @BV80 Yes, all those cases are published and the case I cited from DCA is in my district. There are some good cases out there proving CC are not written agreements. Felicien, Pincus, Gelsey, Fernandes and Borak.
  11. I haven't filed yet. I want to make sure I have all my ducks in a row.
  12. An action for unjust enrichment is governed as an action on a contract not founded on a written obligation and must be commenced within four years after accrual.” Venditti-Siravo, Inc. v. City of Hollywood, Fla., 418 So.2d 1241 (Fla. App. 4 Dist. 1982) Fowler v. Towse, 900 F.Supp. 454 (S.D. Fla. 1995) If they filed their claim based on a written instrument, they had to attach it to the Complaint. RULE 1.130. ATTACHING COPY OF CAUSE OF ACTION AND EXHIBITS Instruments Attached.All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments
  13. "...action is not founded on written instrument where evidence of liability consists partially of written cardholder account and security agreement but writing is incomplete to establish liability -- Accordingly, contract is regarded as oral for statute of limitations purposes." PORTFOLIO RECOVERY ASSOCIATES, LLC, Appellant, v_ PAUL FERNANDES 13 Fla. L. Weekly Supp. 560a 2006 The claim is not based on a written contract. Please remember they filed their claim under Account Stated and Unjust Enrichment. Thus, proof of an express contract between parties defeats a claim for unjust enrichment founded on an implied contract. It, therefore, follows that where a claimant recovers for breach of the implied covenant of good faith due to the breach of an express contractual provision, the claimant cannot also recover for unjust enrichment. Diamond “S’’Dev. Corp. v. Mercantile Bank, 989 So. 2d 696, 697 (Fla. 1st DCA 2008); Ocean Communications, Inc. v. Bubeck, 956 So. 2d 1222, 1225 (Fla. 4th DCA 2007).
  14. Account Stated falls under 4 years in Florida April 17, 2014 Florida Rules of Civil Procedure 187 FORM 1.933. ACCOUNT STATED COMPLAINT Plaintiff, A. B., sues defendant, C. D., and alleges: This is an action for damages that (insert jurisdictional amount). Before the institution of this action plaintiff and defendant had business transactions between them and on .....(date)....., they agreed to the resulting balance. Plaintiff rendered a statement of it to defendant, a copy being attached, and defendant did not object to the statement. Defendant owes plaintiff $.......... that is due with interest since.....(date)....., on the account. WHEREFORE plaintiff demands judgment for damages against defendant. NOTE: A copy of the account showing items, time of accrual of each, and amount of each must be attached. From my understanding in the Florida Rules of Civil Procedure, they were suppose to attach more than one statement in order to show a history of business transactions. I also found this case ruling which I am going to use. https://www.nclc.org/images/pdf/unreported/Felicien.pdf%C2'> Florida Credit Research v Felicien