racecar

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Everything posted by racecar

  1. I agree they would not have much if any documentation at this time. Just a spreadsheet with some numbers. File the Motion.
  2. http://www.creditinfocenter.com/community/topic/314030-the-strategy-and-steps-of-arbitration/ I would send a letter to plaintiffs law firm electing arbitration with Jams also send a copy of the credit agreement with arbitration. Then answer plaintiffs complaint electing arbitration with Jams as an affirmative defense and request the trial court stay proceedings pending arbitration with your motion. You will need a copy of the credit agreement with arbitration to give to the court as proof of a valid agreement to arbitrate. I would not send a copy to the OC if it is a JunkDebtBuyer bringing the case.
  3. I think that is an easy fix for the plaintiff. He would be back in court in a week to ten days with a real attorney instead of the rental attorney(default judgment collector) they would use. Pre-trial is plaintiff friendly. I would save the motions for later on. I would answer the complaint and then send discovery. We all have our own strategy on winning you have to pick the one that works for you.
  4. WHAT LAW APPLIES Find A BOA credit agreement that says this This Agreement is made in Delaware and we extend credit to you from Delaware. This Agreement is governed by the laws of the State of Delaware (without regard to its conflict of laws principles) and by any applicable federal laws. The Delaware SOL is three years. You can file a brief motion to amend your complaint. Leave to amend is granted liberally by the Courts. http://www.creditinfocenter.com/community/topic/315171-this-victory-is-golden-law-of-delaware-and-sol/ RESURGENCE FINANCIAL LLC v. CHAMBERS, No. We hold that (1) Delaware's statute of limitations governs Resurgence's causes of action because the credit card agreement contains a Delaware choice-of-law clause and one of the original contracting parties was a Delaware corporation;  (2) applying Delaware law, the action is barred by the three-year limitations period of title 10, section 8106 of the Delaware Code 1 ;
  5. If you don't answer their BS interrogatories and request for admissions they will be deemed admitted and you lose. Post them up and we will help you answer them.
  6. The complaint includes the identification of the parties involved. The plaintiff’s reason for filing a lawsuit. The type of relief that is sought. That's all they need to do. I might be getting old what have I missed.
  7. That brings a tear to my eye(very beautiful answer) That's not a denial letter see below Defendant and for its answer to the Plaintiffs' Complaint You are answering the plaintiffs complaint not making any denial letters. (forget about any denial letters your being sued not used not needed) To go with your answer you can make your own affidavit.
  8. Your answer to plaintiffs complaint is your denial of the allegations and your answer to the complaint contains new matter your ready you need nothing else.
  9. This complaint is for the recovery of money no different than any other complaint. What more information do you need? Now its time to defend INSTALLMENT LOAN with HOUSEHOLD FINANCE The amount owing on this account is $12,000 plus accrued interest Asset is now the holder of said account, purchasing the same, and entitled to all rights as of owner thereof. defendant(s) has failed to pay Plaintiff prays for a judgment against the defendant 1.Asset is a DELAWARE LIMITED LIABILITY COMPANY registered to do business in the State of Ohio and the Defendant(s) is subject to this court’s jurisdiction (we live in Franklin county though?) 2. The defendant(s) entered into an agreement for INSTALLMENT LOAN with HOUSEHOLD FINANCE, account number xxxxxxxxxxxxxxxxx. 3. Asset is now the holder of said account, purchasing the same, and entitled t oall rights as of owner thereof. 4. The agreement required periodic payments by the defendants(s), which, on this account, defendant(s) failed to make, and is in default. 5. The amount owing on this account is $12,000 plus accrued interest at the statutory rate from March 15, 2011, plus the cost of this action 6. Asset has notified the defendant(s) of the above mentioned account and that the defendant(s) has failed to pay for same. WHEREFORE, Plantiff prays for a judgment against the defendant(s) for 12,000, plus accrued interest at the statutory rate from march 15, 2011, and costs of this action.
  10. There’s 2 ways to stay an upcoming sale: (1) File a civil action and get a Temporary Restraining Order (10 to 14 days) and injunctive relief. (2) Declare bankruptcy for the purpose of delaying the sale You can initiate a civil action and sue the bank. You as a debtor have the right to challenge the bank to produce proof of claim before they can proceed with the sale. The Trustee is not obliged to stop the sale unless: (a) Ordered by the court through a preliminary injunction or a temporary restraining order ( b )Made personally liable for the action through a Notice of Cease and Desist
  11. PLD-050 General Denial - California Courts general denial POS-030 PROOF OF SERVICE BY FIRST ... - California Courts proof of service http://www.leginfo.ca.gov/.html/ccp_table_of_contents.html THE CODE OF CIVIL PROCEDURE OF CALIFORNIA http://california-discovery-law.com/ discovery
  12. http://www.creditinfocenter.com/community/topic/315171-this-victory-is-golden-law-of-delaware-and-sol/ Contracts not in writing: 3 years, (A.C.A. 16- 56-105)
  13. Meet and confer Plaintiff name plaintiff your name defendant case # 12345 To Attorney Name The agreement you propose is unacceptable The defendant will agree to a dismissal with prejudice. It is further stipulated that no changes or additions to, or modifications of this stipulation shall be valid unless set forth in writing and executed by all parties hereto. It is further stipulated that copies of this stipulation may be used in lieu of the original for all purposes. Respectfully Submitted, Your name address phone
  14. "without notice to the other apply to this court for an order that judgment be entered in accordance with this stipulation." Achtung Achtung Achtung !!!!!!! Warning Warning Warning!!!!! No happy dance yet they are wanting you to agree to them getting a stipulated judgment against you. Send them a letter saying you will agree to dismissal with prejudice that the agreement they propose is unacceptable. They may counter back without prejudice or file for summary judgment. Don't mess around on this send the letter to the law firm. Things you should consider. First, it is challenging and time consuming to represent yourself. In addition to knowing the area of law that is the subject of your lawsuit, there are many rules that have to be followed every step of the way, and failure to follow the rules can have serious consequences. If you cannot afford a lawyer, you may wish to look for a lawyer who will represent you “pro bono”which means without charge. http://www.mnlegalservices.org/
  15. http://www.dbainternational.org/events/annual-conference/2013/ Click here for the final attendee list
  16. I think BV is making sure the case law is current.
  17. http://documents.jds...ae5e8735e87.pdf PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
  18. http://getoutofdebt.org/34546/strategy-on-how-to-defeat-a-motion-for-summary-judgment-in-florida-specifically-and-other-states-generally
  19. Something you could raise opposition to plaintiff's summary judgment with just put in your facts. The party opposing the Motion for Summary Judgment must file written opposition no later than 5 days prior to the hearing on the motion (if the response is served by mail) and 2 days prior to the hearing on the motion if the response is served by hand-delivery or fax. IN THE COUNTY COURT FOR THE 11TH JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE COUNTY, FLORIDA CASE NUMBER: xx-xxxxx CC xx DISCOVER BANK Plaintiff, vs. xxxxxxxxxxxxxxx Defendant. ___________________/ OPPOSITION TO MOTION FOR SUMMARY JUDGMENT Comes now the defendant, xxxxxx xxxxx, pro se, and files Opposition to this Motion for Summary Judgment in response to Motion for Summary Judgment filed herein by Plaintiff, Discover Bank, as follows: 1. Defendant argues the Plaintiff has not attached a copy of the account, showing items, time of accrual of each, and amount of each, as required, pursuant to Fla.R.Civ.P form 1.932 for open account. “An itemized copy of the account must be attached to the complaint to state a valid claim; a statement of a lump sum balance dues is insufficient.” H & H Design Builders, Inc v. Travelers’ Indemnity Co., 639 So.2d 697 (Fla. App. 5 Dist. 1994) 2. Defendant argues the Plaintiff has not attached a copy of the account, showing items, time of accrual of each, and amount of each, as required, pursuant to Fla.R.Civ.P form 1.933 for account stated. 3. Defendant argues no copy of the original contract signed by both parties has been admitted into evidence for an open account. “One party cannot unilaterally create a liability on an open account when no contract (either oral or written) exists out of which a debtor-creditor relationship could arise.” Cherokee Oil Co. v. Union Oil Co. of California, 706 F.Supp. 826 (M.D. Fla. 1989) affirmed 901 F.2d 1114. 4. Defendant argues no copy of the original contract signed by both parties has been admitted into evidence for account stated. “Failure to respond to demand for payment does not create obligation for account stated absent contractual agreement creating such liability.” Page Avjet Corp. v. Cosgrove Aircraft Sers., Inc. 546 So. 2dd 16, 18 (Fla. 3d DCA 1989). “Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.” Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. App. 2 Dist. 1975) 5. Defendant argues the affidavit attached is hearsay, as the affiant is an employee of DFS Services LLC, and not a direct employee of Discover Bank, the plaintiff, and is inadmissible as evidence due to having no foundation as no detailed accounts accompanied the affidavit. The affidavit is insufficient to meet even the minimal requirements necessary for a judgment. 6. The Plaintiff has not proven ownership of the account. The Plaintiff also has the burden of proof to show this account has not been written off or bad debt insurance has not been collected. 7. The Plaintiff has not proven the right to sue in the state of Florida. 8. Court lacks subject matter jurisdiction due to Plaintiff’s pleadings being insufficient and there being no competent fact witness in the record. Wherefore, the Defendant respectfully requests that this motion be denied and a dismissal of this complaint with prejudice be granted and filed along with any other relief this court deems just. I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed by U. S. Mail this eighth day of September, 2010 to Zakheim & Associates, P. A., attorney for Plaintiff, 1045 S. University Dr, Ste #202, Plantation, FL 33324. By: _______________________________ defendent
  20. SUMMARY JUDGMENT IS INAPPROPRIATE WHEN DISCOVERY IS PENDING 1. Law Where discovery is not complete, the facts are not sufficiently developed to enable the trial court to determine whether genuine issues of material facts exist. See Singer v. Star, 510 So. 2d 637, 639 (Fla. 4th DCA 1987). Thus, where discovery is still pending, the entry of Summary Judgment is premature. See Smith v. Smith, 734 So. 2d 1142, 1144 (Fla. 5th DCA 1999)("Parties to a lawsuit are entitled to discovery as provided in the Florida Rules of Civil Procedure including the taking of depositions, and it is reversible error to enter summary judgment when discovery is in progress and the deposition of a party is pending."); Henderson v. Reyes, 702 So. 2d 616, 616 (Fla. 3d DCA 1997)(reversing the entry of Summary Judgment where depositions had not been completed and a request for the production of documents was outstanding.); Collazo v. Hupert, 693 So. 2d 631, 631 (Fla. 3d DCA 1997) (holding that a trial court should not entertain a motion for summary judgment while discovery is still pending); Spradley v. Stick, 622 So. 2d 610, 613 (Fla. 1st DCA 1993); Singer v. Star, 510 So. 2d 637 (Fla. 4th DCA 1987). SUMMARY JUDGMENT IS INAPPROPRIATE WHEN MATERIAL FACTUAL DISPUTES EXIST 1. Legal Standard for Summary Judgment The requirements for filing a motion for summary judgment and the standard for considering the motion are set forth by Rule 1.510( c ), Fla.R.Civ.P: The motion shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued and shall specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence ("summary judgment evidence") on which the movant relies. The movant shall serve the motion at least 20 days before the time fixed for the hearing, and shall also serve at that time copies of any summary judgment evidence on which the movant relies that has not already been filed with the court. The adverse party shall identify, by notice mailed to the movant's attorney at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies. To the extent such summary judgment evidence has not already been filed with the court, the adverse party shall serve copies on the movant by mailing them at least 5 days prior to the day of the hearing or by delivering them to the movant's attorney no later than 5:00 p.m. 2 business days prior to the day of hearing. The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. A summary judgment, interlocutory in character, may be rendered on the issue of liability alone although there is a genuine issue as to the amount of damages. Summary judgment is only proper when there are no genuine issues of material fact and when the moving party is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510( c ); Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So. 2d 126, 130 (Fla. 2000).
  21. https://docs.google.com/file/d/0B_oFTG4nuzFXYWFjZGI1MzMtNDA2ZS00OTNiLTkwNzctZWQxMDBkNGMyN2I2/edit?usp=drive_web&pli=1&hl=en_US# BV I was thinking the same thing Note to UNCLEBUCK The party opposing the Motion for Summary Judgment must file written opposition no later than 5 days prior to the hearing on the motion (if the response is served by mail) and 2 days prior to the hearing on the motion if the response is served by hand-delivery or fax.
  22. http://www.creditinfocenter.com/community/topic/315171-this-victory-is-golden-law-of-delaware-and-sol/ victory-is-golden-law-of-delaware-and-sol/