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Posts posted by sinfulcolors

  1. 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.

  2. 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.

  3. 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"

  4. 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.

    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. 

  5. 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.


    1. 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

  6. "...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).

  7. Account Stated falls under 4 years in Florida


    April 17, 2014 Florida Rules of Civil Procedure 187




    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.'> Florida Credit Research v Felicien

  8. 1. Who is the named plaintiff in the suit?  Portfolio Recovery Associates, LLC

    2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)  Pollack & Rosen

    3. How much are you being sued for?  $6,500 + interest

    4. Who is the original creditor? (if not the Plaintiff)  HSBC Bank Nevada

    5. How do you know you are being sued? (You were served, right?) Served 4/19

    6. How were you served? (Mail, In person, Notice on door)  In person

    7. Was the service legal as required by your state?  Yes

    Process Service Requirements by State - Summons Complaint

    8. What was your correspondence (if any) with the people suing you before you think you were being sued?  Unaware of any correspondence

    9. What state and county do you live in?  Florida, Palm Beach

    10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)   2/24/2010  on CR

    11. What is the SOL on the debt? To find out:  4 years

    Statute of Limitations on Debts

    12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).  Suit served

    13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  No

    14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.  No

    15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?
    20 calendar days

    16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  Submitted a statement from OC from 9/9/2010 to 10/10/2010, account numbers whited out, showing a minimum payment due of $1,953.00. A past due amount of $1,686 Late charge billed on 10/04/2010 for $25 and Interest of $175. Days in billing cycle 31. They did not provide a copy of the assignment citing CACV v. DeWolf :  An assignment is not required to be attached to an initial pleading.

  9. I'm new here.  I was served by PRA on 4/19, case was filed on 3/27/14 in Florida.  Two counts listed:  Account Stated & Unjust Enrichment.  They submitted page 1 of a credit card statement from Sept 9, 2010 to Oct. 10, 2010 with a min payment due of $1,953.  I don't have any paperwork.  I pulled my CR and the last payment was on 2/24/2010 on both PRA account information and OC.  I am going to file my answers and affirm the SOL defense plus others. My question is, when would I file a motion to dismiss based on the SOL?