LEB in Pro Se

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About LEB in Pro Se

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  1. Hello, I filed Chapter 7 but I filed the Schedules on November 18, 2019, the Monday after an Order Dismissing case was entered on November 14, 2019. The Order states, "The case is dismissed without prejudice and without a discharge effective on the 15th day from entry of this Order." I have to file a motion to vacate or for reconsideration of the Order within 14 days. It is now the 19th and just today, I received the notice in the mail. On Sunday 17th, I accessed PACER and I saw it on the docket as an entry but could not retrieve the notice to read it. Upon seeing this on PACER, I emailed the Trustee that same night, which was Sunday 17th, stating why I was late filing the Schedules and that I would be filing them the very next day. The trustee barely responded today via an email stating that the case was dismissed and nothing else. I had also provided the Trustee all the documents requested of me. I am sure I can still save this by petitioning the Trustee but I need help with the language. I believe I am not supposed to file this with the Bankruptcy Clerk. Also, aren't the 14 days not supposed to include holidays and weekends? Please help?
  2. Yes with Midland but that case is going away. Credit repair started a while back and a lot has been wiped out, nothing to do with Suncoast and Midland cases because those cases were already filed with the Clerk.
  3. Suncoast blocked me from accessing my checking/savings account long ago. They demanded I pay a ridiculous monthly and would grant me access to my regular account. They took the money out of my account and applied it towards the credit card balance. I did draft a motion and ready to file it. I did list the reasons and included the email to the plaintiff's attorney asking to settle days before the Order was signed. I am going to attempt to file it, regardless. The bankruptcy attorney I met stated that I have no income coming in so Suncoast cannot garnish my wages. I am not W-2. I am independent and get I-9 but I haven't had income paid directly to me in 5 months. I had to use up my advanced in commissions and I have a $4K+ IRS debt so I qualify for Chapter 7. But my debt for bankruptcy would only consist of the IRS balance and Suncoast. I would hate to file BK just for that. All else is in credit repair. Suncoast not only has that arbitration clause preventing arb but it has a bankruptcy clause. Since I am not an attorney, I interpreted to say that it cannot be discharged in BK however you are all correct, the BK attorney I met with here in Florida stated that this would violate BK laws. All of your suggestions are highly appreciated. If anyone has any more suggestions on the MTN to Set Aside, please let me know. I do not know how to cite case law. I am sure this would help.. maybe...
  4. What does judgment proof mean? If it's about showing my finances to prove I'm in ruin, that's easy. I met with a lawyer (young lady) and she stated that I can't even file a Motion to Set Aside but she didn't even read my motion.
  5. @Clydesmom Please help omg. they issued final judgement YESTERDAY. What can i do??? They close the case?? What can I do today??
  6. Thank you everyone so much. Is there a simple template to use when filing an Answer after default? They tried to default me before the 20 day extension. Please help me Thank you so much!!
  7. @nobk4me I may just have to do that but I believe this has a clause that states it cannot be discharged in Bankruptcy. Please help. Should I at least file an Answer?
  8. @Clydesmom Thank you so much! Should I file any type of answer or just write/email them requesting to settle? I knew that I will have to settle. I did try to settle with them PRIOR to them filing suit but they were demanding an unreasonable high monthly payment in the hundreds and denied to modify the loan. Again, thank you so much. And yes, you're right, I am aware of the no attorney fees. Did not mean to copy/paste that. Thank you for your help!
  9. Hello Everyone. THANK YOU FOR EXISTING!! AND A HUGE THANK YOU BEFOREHAND FOR ANY AND ALL OF YOUR SUGGESTIONS. Please help? Wondering if the Affirmative Defense I used to accompany my Answer filed in response to Midland's Complaint was appropriate or should I amend it? I filed it last week with Motion to Compel Mandatory Contractual Arbitration and to Dismiss Plaintiff's Complaint or Stay the Case Pending Mandatory Contractual Arbitration. I included the Affidavit supporting my Exhibit of the Card Agreement. I attended Mediation and got the impasse. My concern is that after further research tonight, I came across "Account Stated" from reading another case and I realized that Midland's Complaint includes it, as well: "1. ACCOUNT STATED". My point is... should I amend to include the following Affirmative Defense listed below, under point 1.? I only listed the "Lack of Subject Matter Jurisdiction..." affirmative defense. Should I amend and refile with a motion stating my right to do amend, to include the following short version of Affirmative Defense #1 or the long version? Mediation was April 9th and Plaintiff has NOT filed anything since. Right now, this is pending Judge's rule on my Order. Short version without Account Stated Affirmative Defense: Defendant plead the following Affirmative Defenses: 1. The Plaintiff lacks standing to pursue the claims asserted against the Defendant because the Plaintiff is not a proper party, has an invalid assignment, is not the real party in interest, is not the Owner of the alleged instrument or debt necessary to give them Standing to pursue the claim, and due to the Defense checked below: x Improper Venue (place). 2. Lack of Subject Matter Jurisdiction – The underlying contract contains a mandatory contractual Arbitration clause which the Defendant has elected to exercise. Therefore, this Court does not have jurisdiction to hear this matter. LONG VERSION: The following Affirmative Defense I found in another case I pulled up from the Hillsborough County Clerk of Court (FLORIDA) where defense counsel included this. (Bank of America is the plaintiff in that case.) Should I use the following Affirmative Defense or the above? I'm keeping Affirmative Defense 2. Lack of Jurisdiction - it will not be deleted. My question is AD for Account Stated. FAILURE TO STATE A CAUSE OF ACTION FOR ACCOUNT STATED Plaintiff has failed to plead and provide any evidence as to the elements of an account-stated theory of recovery. Plaintiff failed to attach copies of account statements showing transactions, time of accrual of each, and amount of each. See Form 1.933, Fla. R. Civ. P., requirements for an account-stated claim; see also Mercado v. Lion’s Enterprises, Inc., 800 So. 2d 753 (Fla. 5th DCA 2001) (holding that, for an account stated to exist, there must be an agreement between the parties that a certain balance is correct and due and an express or implied promise to pay this balance); Merrill-Stevens Dry Dock Co. v. “Corniche Express”, 400 So. 2d 1286 (Fla. 3d DCA 1981) (judgment for defendant where there was a dispute as to the performance, the value, and whether the services, if performed, were authorized). Although the failure to object to a creditor’s periodic billing may establish an account stated, there can be no liability if there has been no mutual agreement. See Recreation Corp. of America v. Jack Drury & Associates, Inc., 235 So.2d 49 (Fla. 4th DCA 1970). Therefore, the presentation of a claim and its retention without objection are insufficient facts to establish the presumption that an account has been stated. See McKissick v. Bilger, 480 So. 2d 211 (Fla. 1st DCA 1985); Page Avjet Corp. v. Cosgrove Aircraft Serv., 546 So.2d 16, 18 (Fla. 3d DCA 1989). Furthermore, there is no evidence that any billing statements were actually received by Defendant, precluding an action for account stated. Farley v. Chase Bank, U.S.A., N.A., 37 So. 3d 936 (Fla. 4th DCA 2010); see also Bryson v. Banking, 75 So. 3d 783 (Fla. App. 2011) (holding that unauthenticated copies of default letters are legally insufficient for summary judgment purposes). As a matter of federal law, including the Truth in Lending Act and Regulation Z, “a cardholder’s failure to object to the disputed charges within a reasonable time . . . [does] not constitute ratification and acceptance of those charges.” DBI Architects, P.C. v. Am. Express Travel-Related Serv. Co., 388 F.3d 886, 891 (D.C. Cir. 2004) (quoting Crestar Bank, N.A. v. Cheevers, 744 A.2d 1043, 1048 (D.C. 2000)). These federal laws and regulations, found at 15 U.S.C. § 1601 et seq. and 12 C.F.R. 226.12, respectively, preempt any inconsistent Florida law and judicial opinions. There has been no mutual agreement to pay. Although Plaintiff has alleged there was an agreement, the documents attached to Plaintiff’s complaint do not support this allegation. See F.D.I.C. v. Brodie, 602 So.2d 1358 (Fla. 3d DCA 1992). There can be no liability on an account stated if there has been no mutual agreement to pay a certain amount in satisfaction of an outstanding debt. Dutch Inns of America, Inc. v. Jenkins, 301 So.2d 119 (Fla. 3d DCA 1974). The original creditor did not accurately account for all payments made by Defendant and, therefore, the amount stated is based upon account stated is based upon errors and mistakes, rendering the amount asserted unreliable and inaccurate. Defendant has had no prior transactions with Plaintiff and has made no prior agreement with Plaintiff to pay any amount. WHEREFORE, Defendant demands this Court dismiss with prejudice the above-styled action. THANK YOU!!
  10. Hi everyone, I am being sued by Suncoast Credit Union. I want to file the Answer and Affirmative Defenses. The problem here is that Suncoast is filing as the original creditor and there is NO arbitration clause. My first question is, may I file a motion requesting arbitration? I cannot compel mandatory arbitration absent the arbitration clause in the credit card agreement. Question 2: I have no idea which Affirmative Defenses to use and wondering if the following is appropriate. The Complaint does not state "Account Stated." It lists the following 7 allegations to Answer which I have admitted to the first 2 and denied the rest. This is all that the Complaint has. It includes the Exhibits A-C. Exhibit B is a statement dated August 2018, that does not show any transaction details at all. I need help and would like to know if the following Affirmative Defense would apply/be appropriate and what other defenses should I include? 1. This is an action for damages which does not exceed $5,000..... (ADMITTED) 2. On December 31, 2013 Suncoast Schools Federal Credit Union converted from a federally chartered credit union to a federally insured state-charted credit union named Suncoast Credit Union which is the successor in interest to Suncoast Schools Federal Credit Union. Attached... Exhibit A.... (ADMITTED) The rest of the allegations I denied and they are: 3. Defendant requested a Visa card from Plaintiff, and Plaintiff issued a Visa card to Defendant after Defendant(s)'s request for a card. 4. Defendant(s) owes PLaintiff the sum of $13,350.91 plus interest in connection with Defendant(s)'s use of the Visa charge card under the Visa credit card plan. 5. Attached hereto as Exhibits B and C are a statement of account showing the current balance and a copy of the terms and conditions of the Visa credit card plan. 6. Defendant(s) expressly agreed to pay all of Plaintiff's costs of collection, including reasonable attorney's fees, incurred by the Plaintiff. Plaintiff alleges that a reasonable attorney's fee in this matter would be a minimum of $500.00 and will seek an award of such amount in the event that a default judgment is entered against the Defendant(s). In the event that his matter is contested, Plaintiff intends to seek additional attorney's fees based upon the hours spent, services rendered and other reasonable factors. 7. All conditions precedent to the filing of this complaint have been complied with by the Plaintiff. WHEREFORE, Plaintiff demands judgment against the Defendant in the sum of $13,350.91 together with interest, attorney's fees, and court costs. Do you think the following AFFIRMATIVE DEFENSE would be appropriate? And if so, what other defense should I include if any? FAILURE TO STATE A CAUSE OF ACTION FOR ACCOUNT STATED Plaintiff has failed to plead and provide any evidence as to the elements of an account-stated theory of recovery. Plaintiff failed to attach copies of account statements showing transactions, time of accrual of each, and amount of each. See Form 1.933, Fla. R. Civ. P., requirements for an account-stated claim; see also Mercado v. Lion’s Enterprises, Inc., 800 So. 2d 753 (Fla. 5th DCA 2001) (holding that, for an account stated to exist, there must be an agreement between the parties that a certain balance is correct and due and an express or implied promise to pay this balance); Merrill-Stevens Dry Dock Co. v. “Corniche Express”, 400 So. 2d 1286 (Fla. 3d DCA 1981) (judgment for defendant where there was a dispute as to the performance, the value, and whether the services, if performed, were authorized). Although the failure to object to a creditor’s periodic billing may establish an account stated, there can be no liability if there has been no mutual agreement. See Recreation Corp. of America v. Jack Drury & Associates, Inc., 235 So.2d 49 (Fla. 4th DCA 1970). Therefore, the presentation of a claim and its retention without objection are insufficient facts to establish the presumption that an account has been stated. See McKissick v. Bilger, 480 So. 2d 211 (Fla. 1st DCA 1985); Page Avjet Corp. v. Cosgrove Aircraft Serv., 546 So.2d 16, 18 (Fla. 3d DCA 1989). Furthermore, there is no evidence that any billing statements were actually received by Defendant, precluding an action for account stated. Farley v. Chase Bank, U.S.A., N.A., 37 So. 3d 936 (Fla. 4th DCA 2010); see also Bryson v. Banking, 75 So. 3d 783 (Fla. App. 2011) (holding that unauthenticated copies of default letters are legally insufficient for summary judgment purposes). As a matter of federal law, including the Truth in Lending Act and Regulation Z, “a cardholder’s failure to object to the disputed charges within a reasonable time . . . [does] not constitute ratification and acceptance of those charges.” DBI Architects, P.C. v. Am. Express Travel-Related Serv. Co., 388 F.3d 886, 891 (D.C. Cir. 2004) (quoting Crestar Bank, N.A. v. Cheevers, 744 A.2d 1043, 1048 (D.C. 2000)). These federal laws and regulations, found at 15 U.S.C. § 1601 et seq. and 12 C.F.R. 226.12, respectively, preempt any inconsistent Florida law and judicial opinions. There has been no mutual agreement to pay. Although Plaintiff has alleged there was an agreement, the documents attached to Plaintiff’s complaint do not support this allegation. See F.D.I.C. v. Brodie, 602 So.2d 1358 (Fla. 3d DCA 1992). There can be no liability on an account stated if there has been no mutual agreement to pay a certain amount in satisfaction of an outstanding debt. Dutch Inns of America, Inc. v. Jenkins, 301 So.2d 119 (Fla. 3d DCA 1974). The original creditor did not accurately account for all payments made by Defendant and, therefore, the amount stated is based upon account stated is based upon errors and mistakes, rendering the amount asserted unreliable and inaccurate. Defendant has had no prior transactions with Plaintiff and has made no prior agreement with Plaintiff to pay any amount. WHEREFORE, Defendant demands this Court dismiss with prejudice the above-styled action and award attorneys’ fees to Defendant pursuant to Fla. Stat. 57.105 and any other relief to which Defendant is entitled. THANK YOU EVERYONE!!