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mcb11902

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Everything posted by mcb11902

  1. Did you get something for your pledge, like public television has premiums for a certain dollar amount donation?
  2. If you settle with some creditors and then file bankruptcy, the money you pay those creditors, if paid within a certain time period, would be considered a preferential transfer and the trustee can seek to recover the money from them.
  3. Most of the Florida courts are requiring the filing of the original note before a foreclosure is granted or at least that the attorney produce the original note at the summary judgment hearing even if they don't have the attorney file it. And I'm talking commercial foreclosures here; they're even more stringent on residential foreclosures. We do, however, file other documents with faxed signatures.
  4. I don't know how it is in Iowa, but in Florida, when something falls due on a weekend, unless there is a court order that specifically states something needs to be filed by a date certain, you have until the next business day to file it.
  5. When was the last time you paid on the account and when did they file the action against you?
  6. Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Substitute service may be made on the spouse of the person to be served at any place in the county, if the cause of action is not an adversary proceeding between the spouse and the person to be served, if the spouse requests such service, and if the spouse and person to be served are residing together in the same dwelling. That being said, you're in small claims court. You appeared; so the court probably felt you had notice even if you weren't personally served. The judge should enter orders on the motions; they'll be mailed to you.
  7. Is the affidavit made on personal knowledge?
  8. What are your costs? Taxable costs are usually filing fees, service fees, witness fees, etc.
  9. They may have filed for removal also on the basis of diversity; the OC is in one jurisdiction, you're in a different jurisdiction. Federal courts have "typically" been thought to be fairer than state courts when diversity is involved. Federal court records are on line; you can check through Pacer to find out if it's actually been filed yet. They have to file for removal within 30 days of receipt of the complaint. 28 USC 1446 spells out the removal procedures. Their notice should state the reason for removal.
  10. You can raise statute of limitations in a motion to dismiss if the statute of limitations is obvious from the complaint. For example, the statements of account attached to the complaint show the last payment as being made in 2000 and the complaint was filed in 2007. That's obviously outside the statute of limitations in Florida whether it's 5 years for a written agreement or 4 years for everything else. But remember, I'm only talking Florida here.
  11. ( How Presented. Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time. No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert any defense in law or fact to that claim for relief at the trial, except that the objection of failure to state a legal defense in an answer or reply shall be asserted by motion to strike the defense within 20 days after service of the answer or reply. If you're making a motion to dismiss on one of those 7 grounds listed above, you don't answer the complaint too. You have to have a hearing on the motion to dismiss; more than likely the plaintiff will be given a chance to amend the complaint. If the complaint still is wrong, you move to dismiss again. I always move to dismiss on failure to state a cause of action because the plaintiff usually has forgotten something and can't produce the item. They usually don't even bother to set a hearing on the motion to dismiss; I just wait out the year and let the court dismiss on their own motion. Once you file an answer, you've put the case at issue. Statute of limitation can be raised in a motion to dismiss or as an affirmative defense but failure to attach an exhibit is raised in a motion to dismiss.
  12. You either move to dismiss or answer, don't do both. And you would do the motion to dismiss before you do an answer, not the other way around.
  13. Make sure you definitely answer the request for admissions in the 30 days; otherwise, everything is deemed admitted.
  14. In Florida, the case must be idle for 10 months before the court will dismiss. Normally, I just let it sit and do nothing. The law used to be 12 months of inaction so about 12 or 13 months with no action in the case, the court will do a notice of intent to dismiss for lack of prosecution. Then the plaintiff usually has 60 days to make a showing of good cause why the case shouldn't be dismissed. If they don't make a showing of good cause, the court will dismiss the action.
  15. The attorney would take 35% of the $5,000.
  16. www.sunbiz.org will give you info on the partners.
  17. If this is the original creditor (your mortgage hasn't changed hands), there is a procedure in Florida for establishing a lost instrument.
  18. Do a motion to continue; make sure you have a good reason for the continuance, not that you just want to put it off. Then call the Judicial Assistant, get a couple hearing dates, you may even be able to do it on the Uniform Motion Calendar; you'll then have to call the plaintiff's attorney and clear the time on his/her calendar. The Uniform Motion Calendar is typically 5 minutes. If you can't do it in 5 minutes, then the next least amount of time is 15 minutes. Then you call the Judicial Assistant back, tell her the date and then you'll have to do a notice of hearing. You'll have to go to the hearing and be prepared to argue why you need the continuance and how long you need. The hearing on the motion for continuance will need to be before your next scheduled hearing.
  19. Just check you rules about how they can serve someone. Technically, only the mailman can leave mail in your mailbox. But if your state has something like nail and mail and they follow through and mail you a copy in addition to leaving it in your mailbox, you may be out of luck. I was able to prove I wasn't home when the document was left at my house and the plaintiff had no one there to say otherwise.
  20. Actually I used improper served about a year ago and was successful. We don't have nail and mail in Florida and the process server left the summons and complaint stuck in my door. Our court records are on line; when I saw that an affidavit of service was filed, I immediately filed a motion to quash service. Plaintiff set it for hearing. I went down to the courthouse with a copy of my time sheet to prove I was at work at the time of service and my bus pass to prove I'd taken the bus to work that day and express buses only run in the morning and late afternoon. The process server didn't appear to testify; plaintiff's attorney said that someone was home and refused to open the door. I live alone; there was no one home. The judge gave me the benefit of the doubt and quashed service.
  21. For a letter, just indicate with a cc notation that you sent a copy to the plaintiff's attorney.
  22. Generally, in Florida, interest is charged to the date of payment, then the payment is deducted and interest begins to run again until your next payment. 9% interest on $11,000+ is just over $84 a month. Assuming that's the case here, if you want to tell me the date and amount of each payment and the exact date of the agreement, I can give you an approximation of what your balance should be and then you can always send them a letter and ask why there's a discrepancy between what you feel you owe and what they are saying you owe.
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