sahm1998

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About sahm1998

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  1. I have a *friend* who had a suit filed by this firm in small claims a couple of weeks before SOL was up...no attachments whatsoever to the complaint...went to pre-trial and denied knowledge of the debt...they were ordered to provide documentation to prove the alleged debt within 30 days...nothing was ever received to prove the alleged debt...they were not given leave to do discovery on the defendant until the alleged debt was documented...no letters, motions, reminders sent to the firm by defendant...waited them out without knee-jerk reaction...law firm sued by someone else for FDCPA violations during this time frame...friend did not participate in the class action settlement...court filed LOP on its own motion...friend showed up for the LOP hearing...case dismissed because no cause shown and the firm did not respond in any way or show up in person or by telephone to contest the dismissal...appeal not filed on the court's dismissal...plaintiff was an OC not a JDB...alleged debt is now past SOL...it can be done. It's a strategy that worked for my friend. As a side note, my friend did not stop studying and was prepared for MSJ if one was filed. The small claims rules are friendly in that if the defendant does not INITIATE discovery, then the plaintiff cannot do so without leave of the court. Read the rules of procedure, the laws governing your particular situation, and use them if they benefit YOU would be the moral to the story here. What works in one state does not necessarily work in another, YMMV. And, yes, 1.420(e) is the LOP rule that applies here.
  2. From what I've read here, your 10 months with no activity is in August, and you're closing in January 2015 on your house. This particular law firm files these suits to get quick default judgments for the most part. If you actually have FDCPA violations, then you have leverage to get a smaller settlement. If not, then a dismissal for LOP stops the tolling of the SOL, and then it may be too late for them to bring suit again. It won't be removed from your credit report and won't be listed as PIF without a settlement of some sort being reached. Fl does recognize a shorter SOL from another state, did you check to see if you can use this option to get it out of court? If your OC is in Delaware the SOL is 3 years, and you can use that instead of 4-5 for Fl. As for a time limit on discovery, the limit is whatever a judge says it is. You could send the law firm a letter asking them to comply with your discovery requests, which would show that you made an attempt to follow the rules of procedure and they did not. This does not get recorded on the docket unless you file it with the court and does not re-set your 10 month clock with the court insofar as a dismissal for LOP goes.
  3. Dismissal for lack of prosecution within 6 months is for small claims. If you're in circuit court, you have to wait 10 months. You should also know that if YOU file any motions whatsoever, then the 10 month clock starts over. The firm you're dealing with is extremely sloppy and lazy, and they count on people not knowing the rules of procedure or the law, and having a knee jerk reaction to being sued. For example, if the company suing you is from out of state, they are required to file a surety bond with the clerk of court within 30 days of filing the lawsuit, but you have to give them notice giving them 20 days to comply. Also, they are required to be registered with the state to do business in this state - have you looked them up to see if their registration is current? Another law that they don't comply with is the 30 day notice of assignment before filing suit against you. This law firm has been sued for FDCPA violations in the past. The other issue is that if YOU file the motion to dismiss for LOP after the 10 months, some courts in Fl have ruled that the motion shows activity on the docket, so, if possible, let the court file the dismissal on it's own motion. In the end you have to do what you feel is in your best interest with your particular situation.
  4. This is your main problem. On appeal, the appellate court also wants a transcript of the trial. Without that you would have to have sworn testimony of what happened in court signed by the judge who heard the case (at least that's my understanding). I'm not trying to bring you down, but it also depends on the judge you had - we have quite a few "rubber stamper" judges in the Florida court system. Look at other cases the judge ruled on that are similar to yours. We have one in our county who has not ruled once for a defendant - all of his rulings are in favor of the plaintiff no matter what evidence is presented or not presented. He is a new judge who was a former state attorney and is biased as all get out against defendants. Ask your attorney if there is a law that covers an appeal based on the judge's obvious bias, if that turns out to be what happened with your case. And, IMO, the issue of BofA to FIA is not the point - rather, this statement, "My account was originally opened with Wachovia, who then transferred it to MBNA, who then transferred it to Bank of America." is where there may be an issue of standing and ownership. Again, consult with your attorney because I'm just giving you my opinion based on what you've posted.
  5. I believe that if you filed the motion, it is your responsibility to ask for a hearing on the motion. Call the clerk of court tomorrow and verify that this is the procedure in your county.
  6. To expand on Credator's strategy and advice of knowing yourself - know your local judges (check previous cases to see how they typically rule), know your rules of procedure for your state (there may just be something in there that is very favorable to you if you use it properly), know the DC attorney (check previous cases and how they conduct their business, are they sloppy, do they currently have pending litigation against them for FDCPA violations, etc.), and most importantly are you able to pay what they are asking for in the settlement as far as payments - taking into consideration a potential job loss, unforeseen emergency that causes you to be unable to meet the terms of your settlement, etc. After educating yourself on all the issues, then make a decision.
  7. I'll take a stab at deciphering this, as I'm not busy at the moment. This CC was initially yours. It was linked to brother #1 and his business. You charged on the CC for about 6 months. Along comes brother #2, who wants to transfer the CC to HIS business name. He did the paperwork for BofA to "switch" the CC and make him the main Guarantor on the account. You assume the paperwork was done correctly since you have no negative reporting on your credit report. Since the time of the "switch", brother #2 paid some of the charges, then maxed out the CC and stopped paying on it. Brother #2 is ignoring BofA and you. You are still assuming that it was all transferred into his name because there is no negative reporting on your credit report. Now, BofA wants YOU to do some paperwork for them, even though you've explained the account was "switched" to brother #2's business and is in his name. Since the time of the "switch", you haven't received any statements on the account. Your banker called the fraud department at BofA to inquire about their procedures regarding transferring a CC from business #1 to business #2, when the primary guarantor on the account has no affiliation with business #2. Your banker told you that this cannot be done at all, and the BofA representative in the fraud department agreed with your banker. For this to happen, the owner of business #2 would have to be the primary guarantor on the account. Now, this part I don't get? You said it was brother #1 corporate card to begin with, and now saying they pulled your sister's info for inquiries? Something happened since the initial inquiry with BofA. Now, they're sending you a form that they would like for you to fill out for them, in which you would name yourself as a guarantor on the account so they can come after you for payment. Wonder how often that works for them? IMO, your banker is right. They've probably checked you out completely and realized that they have a better chance of getting money from you than they do from your brother #2. Ignoring the letter would be probably be in your best interests, unless you just want to pay your brother #2's bills. It appears that BofA is not suing you, just trying to get you to pay for this bill, is that right? Did I get it right? close?
  8. Thank you, Bruno & Huey. I'm still working on case law for the Memorandum and just wanted to make sure that what I had already written made sense to someone other than me:)
  9. This is the rule explaining what "discovery" is: RULE 1.280. GENERAL PROVISIONS GOVERNING DISCOVERY (a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise and under subdivision ( c) of this rule, the frequency of use of these methods is not limited, except as provided in rules 1.200, 1.340, and 1.370. [Emphasis added by me - this is what they usually send] Limits imposed for: RULE 1.340. INTERROGATORIES TO PARTIES The interrogatories shall not exceed 30, including all subparts, unless the court permits a larger number on motion and notice and for good cause. RULE 1.350. PRODUCTION OF DOCUMENTS AND THINGS AND ENTRY UPON LAND FOR INSPECTION AND OTHER PURPOSES The party to whom the request is directed shall serve a written response within 30 days after service of the request RULE 1.370. REQUESTS FOR ADMISSION The request for admission shall not exceed 30 requests, including all subparts, unless the court permits a larger number on motion and notice and for good cause, or the parties propounding and responding to the requests stipulate to a larger number. [Emphasis added] "Directing" you to do something is "ordering" you to do it, so she in effect gave the Plaintiff leave to direct discovery at you and you won't be able to use my previous post of stating a leading objection. *sigh* You are required to answer the interrogatories within 30 days after service. As for whether or not you should request discovery, that's up to you. Technically, I believe they will be in compliance with the judge's order if they give you the statements with the MSJ they are most likely going to file before the trial date - so, if you want to see what they have before then, you may want to at least send a request for production of documents. No, it would not look professional at all to handwrite your answers. If you can scan the document into an editable format, Word or something similar, then you would be able to type your answers using their specific format. Otherwise, you'll just have to type your own document and copy the notary area as best you can. Here's the rule about documents being filed with the court: RULE 1.280. (g) Court Filing of Documents and Discovery. Information obtained during discovery shall not be filed with the court until such time as it is filed for good cause. The requirement of good cause is satisfied only where the filing of the information is allowed or required by another applicable rule of procedure or by court order. All filings of discovery documents shall comply with Florida Rule of Judicial Administration 2.425. The court shall have authority to impose sanctions for violation of this rule. The only thing the Plaintiff will usually file is a Notice to the court that they sent you a discovery request that defines which form of discovery they used (i.e., Notice of Plaintiff's First Set of Interrogatories), and that lets the court know the "time clock" has started in case the Plaintiff has to file a motion to compel you to respond (which would also probably include a request for sanctions asking for payment of attorney fees to bring the motion). So, no defense and it's entirely possible the clerk of court just hasn't updated your file because they are innundated with these cases. All the rules for court procedure are located here: http://www.floridabar.org/tfb/tfblegalres.nsf/d64b801203bc919485256709006a561c/e1a89a0dc5248d1785256b2f006cccee If you will read the rules of procedure, then many of your questions would be answered. There doesn't appear to be any rule governing how you send it, although personally I'd send them separately in order to have two different green cards - one showing I responded within the time allowed on the interrogatories and one showing they recieved my request for discovery in case they try to file MSJ while discovery is still ongoing - but definitely certified mail return receipt requested. If you're concerned about saving money or even if you're not, then you should definitely send this Notice of Cost Bond from Chevy10 to both the attorney and a copy to the court (everyone in FL should if it's an out of state plaintiff, IMO): Chevy10 Posted 26 October 2012 - 06:10 PMBelieve it or not they actually posted the cost bond.LVNV FUNDING LLC Plaintiff, vs. CHEVY10 Defendant(s) ____________________________________________/ NOTICE OF FAILURE OF PLAINTIFF TO POST NONRESIDENTIAL COST BOND ON BEHALF OF DEFENDANT YOU ARE HEREBY NOTIFIED by Defendant CHEVY10 (hereinafter “Defendant”) that Florida Statute 57.011 requires nonresidential Plaintiffs to post a cost bond with a surety approved by the Clerk of the Court in the amount of $100.00 within thirty (30) days of the filing of the action. Failure to post this bond within twenty (20) days of this Notice entitles the Defendant to dismissal of this lawsuit. The Defendant will seek such a dismissal and any other remedy provided for under applicable statutes or rules. The amount your being sued for is what determines which division of civil court you're in - it's under $5K, so it's small claims.
  10. I spent a couple of hours reviewing your particular clerk of court's online records for the past couple of years (cases with your named Plaintiff only), and the attorney in this case is obviously not familiar with the rules for small claims. You can use that to your advantage by knowing them yourself. The attorney habitually files MSJ, instead of MSD as per rule. Although they are pretty much the same thing, the attorney appears (to quote my father) to "not have sense enough to pour pi$$ out of a boot" when it comes to a defendant knowing the law and the rules. Just because an attorney has a license to practice law, doesn't mean they have any common sense. From what I could see on the clerk's records, the attorney files voluntary motions to dismiss when someone fights back. They vary with 1/2 being "with prejudice" and 1/2 being "without prejudice". The rest of the resolutions on the complaints filed are either judgments, stipulations by defendants, default judgments, or suggestion of bankruptcy. But, you can't assume that your case will be dismissed. You need to prepare as if you are going all the way to trial, and I can't stress that enough. If you study the rules and statutes as they pertain to your particular case, you can win this thing. Also, you might try googling your "attorney name", "fdcpa", "cach" - you may be surprised at what you see.
  11. Your welcome. That particular rule is exclusive to small claims court, so it would not work for someone in county civil or circuit court in FL. Also, I edited it after your comment to add additional verbiage to the response so OP can reaffirm the rule and the court's order.
  12. Okay, once again, STOP. According to what you posted in reference to your pre-trial, the judge told them to supply you with statements showing charges made to the alleged account, right? So, why in the name of everything good in this world are you responding, without a leading objection, to them serving discovery on you before providing what they were ordered by the court to provide to you? Now, IMO, this is what your response should look like: ------------------------------------------------------------------------------------------------------------------------------------------------------- DEFENDANT'S RESPONSE TO PLAINTIFF'S FIRST SET OF INTERROGATORIES OBJECTION: Pursuant to Florida Small Claims Rule 7.020( , which states: Discovery. Any party represented by an attorney is subject to discovery pursuant to Florida Rules of Civil Procedure 1.280–1.380 directed at said party, without order of court. If a party proceeding without an attorney directs discovery to a party represented by an attorney, the represented party may also use discovery pursuant to the above-mentioned rules without leave of court. When a party is unrepresented and has not initiated discovery pursuant to Florida Rules of Civil Procedure 1.280–1.380, the opposing party shall not be entitled to initiate such discovery without leave of court. However, the time for such discovery procedures may be prescribed by the court. [Emphasis added] Defendant is an unrepresented party in this action, proceeding Pro Se, and has not intitiated discovery. The court did not grant leave to the Plaintiff to initiate discovery directed at Defendant during the pre-trial hearing on 11/19/2012, rather it ordered Plaintiff to provide discovery to the Defendant, specifically statements containing charges allegedly made by the Defendant to the account which is the subject matter of this litigation. Plaintiff's interrogatories directed at Defendant do not comport with either the cited Rule in the Florida Small Claims Rules of Procedure or the previous order of the court; therefore, Defendant has no obligation or duty to respond without further order of the court. However, without waiver of the aforementioned Objection, and with preservation of the right to at any time revise, correct, add to, supplement, or clarify the responses contained herein, the Defendant will respond to Plaintiff's interrogatories in the interest of fair dealing with regard to the litigation process. ------------------------------------------------------------------------------------------------------------------------------------------------------- Personally, I would respond to the interrogatories (even though you don't have to by rule and court order) just to aggravate the attorney, as well as proving to the court that you are willing to follow the rules (or the spirit of them anyway) even if the Plaintiff's attorney does not. I'll look at your responses, which you are getting good advice on by the way, and see if there's anything else I can think of to add - but, you definitely need a leading objection based on rules of procedure, IMO. ***As a side note, can anyone tell me where the spell check is hidden?*** Edited to add additional response
  13. Would the denial of allegations in a complaint be considered a "dispute" for the purposes of FCRA? And, would the creditor be required to notice the CRA that the account was considered to be disputed in this instance?