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About radarbeam

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    Impressive 100+ postings
  1. Bottom Line: this person will suffer no 1.380 sanction if she/he produces the evidence of the first delinquency and it's more than 4 years before the case filing. Courts impose discovery sanction based on the severity of the transgression. It's no transgression to file a motion to strike discovery coupled with proof of futility and a motion to dismiss. But, this person can play it safe and file answers or objections.
  2. I object to your discovery request as it is immaterial and irrelevent to this discussion.
  3. Procedural case law authorities go into far greater detail than any Civil Procedure Rule in explaining how the rule may be applied. So you are wrong.
  4. As for the minor quibble about objecting to discovery: You missed the pro se disclaimer. This precludes any issue being made of pro se pleadings. There is no stronger objection than a motion to strike.
  5. You are missing the point. I am simply pointing out the option of Striking Discovery if it's futile, which it is, if the DEFT can prove the SoL defense on the complaint, which can be done in this case.
  6. I'm very right about Klein v. Frank, F.S. 95.051(2) and Heardon v. Graham, In re Southeast Banking Corp. This gives you the ammo to prove a 4 year SoL defense when they don't have your signature in evidence in the case after 4 years of CoA accrual.
  7. The information I provided comes straight from Florida Statutes, Annotated, which happens to be where Florida law resides. Come up with case law that trumps it (there is none) as shown in the F.S.A.
  8. What are the plaintiff's admissions and interrogatories?
  9. Here's a sample filing: This uses Orlando as an example. IN THE COUNTY COURT FOR ORANGE COUNTY, FLORIDA SCUMBAG JDB, ) Plaintiff, ) ) -vs- ) CASE NO. xx-2005-CC-xxxxx-x ) NEW B. Debtor, ) Defendant, ) APRIL 15, 2005 DEFENDANT'S MOTION TO AMEND ANSWER, MOTION TO STRIKE DISCOVERY AND MOTION TO DISMISS I, New. B. Debtor, Defendant, Pro Se, state regarding this Motion to Amend Answer, Motion to Strike Discovery and Motion to Dismiss: 1. Pro se pleadings are to be treated with leniency. See Picking v. Pennsylvania Railroad Co., 151 F.2d 240, Pucket v. Cox, 456 F.2d 233. 2. In accordance with the following new evidence (proof of your date of first delinquency), I amend my answer. 3. Defendant's Exhibit "A" proves that the date of first delinquncy occured ..... 4. Under Florida law, the point of the breach is the point of Cause of Action acrrual for a breach of contract action. See Mosher v. Anderson, State Farm Mutual Automobile Insurance v. Lee, Fradley v, County of Dade, Creviston v. GMAC. 5. A credit card account revolves monthly. The point of breach on a credit card acccount is the first monthly delinquency. 6. The plaintiff's complaint verifies that the plaintiff's action in an action on an oral contract since the complaint verifies that no writing exists that could prove the existance of a contract without resort to parol evidence. See Klein v. Frank ..... 7. Cause of Action tolling is determined only by the statutory provided mechanisms in F.S. 95.051(1) and (2). See Hearnson v. Graham... and In re Southeast Banking Corp. .... 8. There is no provision under Florida law for tolling of a cause of action on an oral contract: F.S. 95.051(2). 9. The time between the date of cause of action accrual and the filing of the plaintilff's action exceeds the Statute of Limitations of F.S. 95.11(3)(k)and thus all of the plaintiff's counts are time-barred. 10. I motion to strike all of the plaintiff's attempts at discovery as they are utterly futile as a matter of fact and of Florida law. 11. I motion to dismiss all of the plaintiff's actions as they are all time-barred and the plaintiff is precluded from stating a claim from which relief could be sought. I testify to these facts under penalty of perjury. (Acknowleged Signature) I certify that this filing was served on the adverse party ..... (Signature) This will get you started. You'll need to add the FDCPA violation for filing a time-barred lawsuit.
  10. With all due respect, it's not gibberish. it's the key to proving a 4 year SoL defense after 4 years of CoA accrual against the typical JDB lawsuit which doesn't produce evidence of a signed writing by the defendant acknowledging the credit card agreement (the proverbial 'essential terms'). If you had done the research like I did, you would realize it.
  11. Assert that pro se pleadings are to be treated with leniency. Picking v. Pennsylvalia Railroad Co., 151 F.2d 240, Pucket v. Cox, 456 F.2d 233.
  12. You have obviously failed to hit the library and do the necessary research.
  13. Wrong. You Motion to Strike for futility as I said. This give you the opportunity to file your SoL defense to explain the basis of the futility.
  14. What county are you located in? What you need to do is find a law libary in your area. The book to use to proper write procedural filings is Trawick's Florida Pleading and Practice - Forms. You can find it in any Florida law library. It will show you how to properly write the caption for your filings and how to title them and commence them with a lead paragraph. If you properly execute your case and if the point of first delinquency is more than 4 years before the filing date of the case, you can easily defeat them and put $1K FDCPA statutory damage money in your pocket. Kimber v. Federal Financial Corp.. 688 f. Supp. 1480, (M.D. Ala. 1987) says it's an FDCPA violation to file a time-barred lawsuit. What you have ahead of you are several weeks of hard work to prepare the pleadings you will need to defeat the adverse party. You will have to become an "Attorney in Fiction', a pro se litigant. You will have to find a law library, learn how to read case citations and what law books they refer to, and then copy the case law holdings and case law itself to get yourself up to speed to prepare your defense, and then you'll have to serve the adverse party with your motion for dismissal and damages, schedule a hearing with the court and then argue against them in front of the judge. In Florida, the Florida Statutes, Annotated is the most important law finder book. After that, comes the Florida Digest, Second Series. That's where you look up the law and the case law authorities to proper plead your case. The case citations take the form of xxx So.2d yyy, or xxx So. yyy, or xxx F. Supp. yyy, or xxx F. Supp 2d yyy, or xxx F. 2d yyy, or xxx F.3d yyy. The xxx is the volume number in the series where the case resides. The yyy is the page number in that xxx volume. So.2d is the Southern Reporter, Second Series: it contains Florida District and Supreme case law since the late 1930s. It runs from volume 1 to somewhere in the vicinity of volume 890, where the latest law is. The lower the volume number the older the cases. So. is the Southern Reporter. It contains old pre-late 1930's case law. It runs from volume 1 to 200. The big cases that Klein v. Frank rests on come from late 1930s Florida Supreme Court rulings which are found in the Southern Reporter series. F. Supp or F. Supp 2d, Federal Supplemental and Federal Supplemental, Second Series are US District Court rulings. F. 2d or F. 3d, Federal Reporter, Second Series and Federal Reporter, Third Series contain the US Circuit Court of Appeals rulings. Also, there are US Supreme Court case cites, xxx S. Ct. yyy.
  15. Did you raise the SoL defense in your answer to the complaint? If not, file a motion to amend answer with the SoL defense.