Jump to content

Chevy10

Members
  • Posts

    28
  • Joined

  • Last visited

Everything posted by Chevy10

  1. Got a dismissal from Portfolio today, my second win. Now one more to go!
  2. Thanks all, so I assume I am pretty out of luck here........ I will contact the attorney as soon as I can.
  3. I know the tow yard had sent me and the lien holder (the bank) notices as they were required, they had held the car much longer than the statute required them to before they sold it. I believe it's FS 713.78, it basically states that if the car is >3 yrs old they can sell it after storing it for 35 days, they held it much much longer than that but the bank never paid it and I couldn't since I had no job. But it is legit from everything I read and everyone I talked to, it never mattered that the bank had a lien. Since it was never actually repossessed I have no clue how UCC will affect this. But before it was towed I had stopped making payments many months before. In either case the bank never sent me an intent to repossess.
  4. I'm located in Florida and I found out that I am being sued by Autouest (I misspelled the company name on purpose) for an amount on a car loan. I have not been served as of yet so I am holding off on posting the questionnaire until I receive the complaint. This situation is unique in that the vehicle was towed (not repossessed) by a tow yard a while back. The tow yard contacted me and the bank to have the fees paid. I, not having a job at the time could not redeem my vehicle. The bank ignored it and the tow yard eventually gained title and sold the vehicle. Fast forward to today and now a 3rd party, Autouest is suing. I assume they purchased this account at some point from the original bank. I do not know alot about the law but since the car was never repossessed what defenses can I use for this? I can say that it should be within the 5 year Florida SOL. I also never received ANY intent to repossess nor was there ever a UCC filed with the clerk of court or the Florida UCC database. On it's face am I out of luck here or is there something to work with? I know there is not much information yet but I will advise as soon as I am served. Thanks in advance for any advice.
  5. Racecar, thanks for the great information!!!!
  6. Thanks for the info Bruno, while they do not show in the list of Credit card banks, nor National bank Associations on that website, I think that would be beyond him anyway. Not sure what he needs to do to defend against this. I had a decent understanding thanks to what I read here for my case but that was a JDB. Not sure exactly what he can do against an OC.
  7. Oh and a quick question about Usury, I know that the United States Supreme Court in the Marquette National Bank v. First of Omaha Svc. Corp. -439 U.S. 299 (1978) kind of made it a moot point for national banks........ does that ruling apply to foreign banks such as Barclays? Now the card was a Juniper card originally but I find no evidence where Juniper was a national bank either. Neither bank appears to be a national bank association under Title 12 of the USC. Would that mean no state usury preemption?
  8. I am aware of that Beergoggles, I already told him he needed to be here, but he is probably the least internet/computer saavy person I have ever met. Would be much appreciate if you look while I try to get him on here with his own account. But thanks for advising that!
  9. Barc Bank Del Plaintiff v My Friend Defendant _______________________ Comes Now the Plaintiff Barc Bank Del, a corporation organized and existing under the laws of the United States of America, engaged in interstate commerce and owner of the defaulted debt at issue, sue(s) the Defendant(s). My friend, and states as follows: ACCOUNT STATED ______________ 1. This action is within the jurisdictional limits of this court. 2. Defendant(s) is/are resident(s) of this county. 3. All conditions precedent have occured. 4. Before the institution of this action Plaintiff and Defendant had business transactions between them and on 6/29/10 they agreed to the resulting balance for the account number xxxxxxxxxxxxxxxxx. 5. Plaintiff rendered a statement of it to Defendant and Defendant did not object to the statement. 6. Defendant owes Plaintiff $2,xxx.xx, since 6/29/2010 on the account. Wherefore, Plaintiff demands judgment for $2,xxx.xx, court costs and any other relief this court may deem just and proper against Defendant(s). Attached is 1 final Mastercard statement, 1 account activity page showing the 30.24% interest, 1 generic card agreement.
  10. Racecar, here is the questions you needed from my buddy. I can have him make his own account if you want. Supplying the complaint next. Have your friend come over and answer these 1. Who is the named plaintiff in the suit? B@rcl@y's B@nk Del@w@re 2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) H@yt, H@yt, and L@nd@u 3. How much are you being sued for? <$2,500.00 would be small claims 4. Who is the original creditor? (if not the Plaintiff) The Plaintiff is the Original Creditor 5. How do you know you are being sued? (You were served, right?) Served by Sheriff 6. How were you served? (Mail, In person, Notice on door) In Person 7. Was the service legal as required by your state? Yes Process Service Requirements by State - Summons Complaint 8. What was your correspondence (if any) with the people suing you before you think you were being sued? None 9. What state and county do you live in? Florida 10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Late 2009 or early 2010 11. What is the SOL on the debt? 5 yrs 12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Suit Served 13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No 14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No 15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? Served yesterday, must appear this coming Tuesday. 16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They provided a statement, an activity document showing 30.24% interest, and a generic card agreement.
  11. He should know sometime this afternoon, don't know what time he told the sheriff he would be home. Will have him fill the form out.
  12. Hey guys, a buddy of mine that knows i won against the JDB that was suing me called me up yesterday, a sheriff left a note on his door, when he called they said they were looking to serve him. He called me and I checked the dockets, it's B@rcl@ys Bank suing, not a JDB. They are using H@yt, H@yt, and L@nd@u here in FL. Cruddy thing is this is small claims so they get a pretrial (I know he can file an answer at the pretrial like i did), the pretrial is 11/20 (they took a long time to serve him). I know he can file for an extension or just file the answer but what is a good strategy to defend against an OC (they will have the paperwork I am sure). He will have the summons sometime this afternoon. Any help from the experts would be appreciated, I do not know the default date but he said it is less than 2 yrs ago.
  13. Ok, so it sounds like in the case of Florida's requirements for the affidavit then move to strike when they submit it and work the hearsay/live witnesses at trial?
  14. Sahm1998, keep in mind something else I found, and coltfan feel free to chime in since I remember reading in your posts that you like to save defeating affidavits till the end. Florida has very strict requirements on whats required from a notary in their Jurat, in statute 117.05 the notary must include whether they personally know or have verified that the person they are notarizing has proven they are who they say they are. If you wait until a MSJ or trial I would think (coltfan please correct me if my thinking here is flawed) you can get the affidavit stricken (that was one of my strategies) and make a win that much easier as it seems almost no other state has the same requirements as FL on the notary jurat. See this site, it has the affidavit, the motion used, and the order. http(colon)//getoutofdebt(dot)org/34546/strategy-on-how-to-defeat-a-motion-for-summary-judgment-in-florida-specifically-and-other-states-generally
  15. lol, I can always add that last one in if I get sued again........ or if they comeback for round 2. And yes I the admissions are all Coltfans, I think several if not all the RTPs the more more I think back to the searches I did. I also believe I used your material in my opposition to appearing telephonically, tailored for Florida of course.
  16. Thank you coltfan! I based them off what I read on here, specifically some of your I saw during searches.
  17. This post is just so I can let SAHM1998 know.......... can't reply to PM till I hit 10 posts. Didn't know that.
  18. Here are the admissions DEFENDANT, CHEVY10'S FIRST REQUEST FOR ADMISSIONS Comes now the Defendant, CHEVY10, Pro Se, pursuant to Rules 1.280 and 1.370, Florida Rules of Civil Procedure, and requests Plaintiff, admit or deny the truth of the following within the time allowed by law. DEFINITIONS A. “Plaintiff” – The term “Plaintiff” refers to LVNV FUNDING LLC. B. “Defendant” – The term “Defendant” refers to CHEVY10, an individual. C. The word “documents” as used herein includes all written, typed, printed, or reproduced matter, pictures, drawings, or diagrams of every nature whether inscribed by hand or by some mechanic, electronic, photographic, or other means, and also includes recordings and other means of providing sound reproductions of oral statements and conversations, which are in the possession, custody or control of Plaintiff, LVNV FUNDING LLC, or its attorneys or any employee, agent, bailee, custodian, affiliate, subsidiary, or representative of it. REQUESTS FOR ADMISSIONS 1. Admit or Deny, that Plaintiff, is not the original creditor, which allegedly extended credit to the Defendant, which such extension of credit is the subject matter of this lawsuit against the Defendant 2. Admit or Deny, there is a written assignment and or bill of sale or other written document, alleging to show the Plaintiff was transferred or assigned ownership of the alleged account which is the subject matter of the Plaintiff's lawsuit against the Defendant. 3. If your answer to admission #2 is admitted, Admit or Deny, that such assignment and or bill of sale or other written document, as described in admission #2 and admitted to in admission #2, is currently, or will be, or is anticipated to be, in the possession, control, or readily obtainable possession of the Plaintiff prior to trial. 4. Admit or Deny, that Plaintiff allegedly purchases defaulted alleged debts and/or accounts as a regular course of business. 5. Admit or Deny, that Plaintiff is not an affiliate or subsidiary of Credit One Bank. 6. Admit or Deny, that Plaintiff does not produce or originate any billing statement records on the behalf of ORIGINAL CREDITOR. 7. Admit or Deny, that the Plaintiff, at the time of the alleged default on the alleged account, which is the subject matter of this lawsuit, had no records in their possession and/or immediate custody and/or control with Defendant's name, address, phone number, or social security number on any such record. 8. Admit or Deny, that Plaintiff, at the time of the alleged default on the alleged account, which is the subject matter of this lawsuit, maintained no records that referenced the Defendant in any manner. 9. Admit or Deny, that Plaintiff does not have in its custody, legible copies of any documents with Defendant's signature on it. 10. Admit or Deny, Plaintiff’s witness has no direct, personal, firsthand knowledge of the record keeping procedures and/or practices of ORIGINAL CREDITOR. 11. Admit or Deny, Plaintiff’s witness has no direct, personal, firsthand knowledge that Defendant allegedly defaulted on the alleged account and debt which is the subject matter of this lawsuit. 12. Admit or Deny Plaintiff’s witness does not have in their immediate possession, or custody and control, all records pertaining to the alleged account and debt of the Defendant, which is the subject matter of this lawsuit. 13. Admit or Deny, Plaintiff’s witness does not maintain all the alleged business records for the alleged account and alleged debt, which is the subject matter of this lawsuit. 14. Admit or Deny, Plaintiff’s witness has simply read information off a computer screen, computer generated document, or other documentation that was, electronically or otherwise, provided to Plaintiff by the alleged original creditor, ORIGINAL CREDITOR. 15. Admit or Deny, Plaintiff’s witness is only advised of the alleged balance allegedly owed to the Plaintiff by the Defendant, and has no direct, personal, firsthand knowledge of the alleged account and alleged debt as it was incurred. 16. Admit or Deny, Plaintiff’s witness is not a business records custodian of ORIGINAL CREDITOR. 17. Admit or Deny, Plaintiff’s witness is only able to testify in regards to the subject matter of this case, based on what “somebody else” advised them or what “somebody else’s” records indicate. 18. Admit or Deny, Plaintiff’s witness has no direct, personal, firsthand knowledge if the information request/provided in the Defendant’s First Request to Produce is in fact true and correct, only that Plaintiff’s witness believes the information is true and correct because “somebody else” said so. 19. Admit or Deny, Plaintiff’s witness cannot attest to the authenticity of the alleged records, in the immediate possession and/or custody of Plaintiff, that were allegedly provided to the Plaintiff by ORIGINAL CREDITOR which allegedly show that Defendant is legally indebted to Plaintiff in the amount of $X,XXX.XX. 20. Admit or Deny, that all records allegedly held by Plaintiff, which allegedly prove Defendant is indebted to the Plaintiff, are not Plaintiff’s own business records which were originated by and kept in the regular course of business by Plaintiff. 21. Admit or Deny, Plaintiff allegedly bought Defendant's alleged defaulted account as part of a bulk sale transaction. 22. Admit or Deny, that Plaintiff does not have in its custody, a written agreement or contract, signed by Defendant, between the Defendant and ORIGINAL CREDITOR. 23. Admit or Deny, that as of the date Plaintiff’s Complaint was drafted, Plaintiff had no evidence admissible at trial that proves Defendant owes the alleged debt. 24. Admit or Deny, that Defendant owes no amount of money whatsoever to Plaintiff for the alleged account which is the subject matter of this action. 25. Admit or Deny, that Defendant is not indebted in any way whatsoever to Plaintiff for any amount of money, for any debt of any type, from any source, as of the date of this request. Respectfully submitted:
  19. Posting my RTP and admissions for SAHM1998 as they requested them, if anyone wants to critique feel free. DEFENDANT, CHEVY10’S FIRST REQUEST FOR PRODUCTION OF DOCUMENTS Comes now the Defendant, CHEVY10, Pro Se, pursuant to Rules 1.280 and 1.350 of the Florida Rules of Civil Procedure, and requests Plaintiff to produce the documents listed herein for inspection and/or copying at the Defendants place of residence, CHEVY10'S ADDRESS, within the time allowed by law. Should a document requested not exist please state as much in the response. IN RESPONSE TO THIS REQUEST FOR PRODUCTION OF DOCUMENTS, PLAINTIFF MAY MAIL OR OTHERWISE PROVIDE DEFENDANT WITH TRUE AND CORRECT COPIES OF THE DOCUMENTS REQUESTED HEREIN. DEFINITIONS A. “Plaintiff” – The term “Plaintiff” refers to LVNV FUNDING LLC. B. “Defendant” – The term “Defendant” refers to CHEVY10, an individual. C. The word “documents” as used herein includes all written, typed, printed, or reproduced matter, pictures, drawings, or diagrams of every nature whether inscribed by hand or by some mechanic, electronic, photographic, or other means, and also includes recordings and other means of providing sound reproductions of oral statements and conversations, which are in the possession, custody or control of Plaintiff, LVNV FUNDING LLC, or its attorneys or any employee, agent, bailee, custodian, affiliate, subsidiary, or representative of it. D. If Plaintiff, LVNV FUNDING LLC, intends to claim any privilege recognized in the law against revealing any information which is requested, or producing any document, or in revealing any document, in addition to the foregoing information, state the applicable ones of the following: the date of and participants to any communication; the number of pages of any document, the persons who received such document, the relationship of such person to LVNV FUNDING LLC, whether such document contains facts, opinions, or both; and state the privilege you intend to claim. E. No demand should be interpreted as an implicit or explicit restriction on any other demand. F. If still in existence, original documents should be produced and, if not, any copies in existence should be produced. DOCUMENTS REQUESTED REQUEST NO. 1: Copies of, and proof of mailing for, any and all communications and/or documents sent to Defendant, at any address, by Plaintiff, stating that LVNV FUNDING LLC is the alleged “assignee” of the alleged account. REQUEST NO. 2: Copies of any and all affidavits Plaintiff intends to use or may introduce at trial. REQUEST NO. 3: Copies of any and all documents that are in the Plaintiff's possession, in the immediate custody and/or control of Plaintiff, or readily available to the Plaintiff, that establish the exact date the alleged account went into default. REQUEST NO. 4: Any contract(s), document(s), or sales slip(s), bearing Defendant’s signature, that are in the Plaintiff's possession, in the immediate custody and/or control of Plaintiff, or readily available to the Plaintiff, that Plaintiff intends to use or may introduce at trial evidencing that the alleged account contained in Plaintiff’s complaint and the account Defendant had at one time with ORIGINAL CREDITOR are one in the same account. REQUEST NO. 5: Any and all itemized monthly statements, credit card statements, or “business records” that ORIGINAL CREDITOR provided to Plaintiff, that are in the Plaintiff's possession, in the immediate custody and/or control of Plaintiff, or readily available to the Plaintiff, that demonstrate the alleged debt and amount of debt is true and correct which Plaintiff intends to use or may introduce at trial. REQUEST NO. 6: Any and all documents evidencing any contract, agreement, assignment, or other means from ORIGINAL CREDITOR, or any “predecessor(s)” that allege to show/prove ownership to Plaintiff of the alleged account, that are in the Plaintiff's possession, in the immediate custody and/or control of Plaintiff, or readily available to the Plaintiff, which Plaintiff intends to use or may introduce at trial. REQUEST NO. 7: Any and all notes, documents, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the current action before this court which Plaintiff intends to use or may introduce at trial. REQUEST NO. 8: A complete and accurate history of the interest charged on the alleged account, showing the exact dates the interest rates changed and list the various rates that were charged during the history of the alleged debt and the exact method of amortization. REQUEST NO. 9: Copies of any and all documents, not requested above, that support or evidence all allegations Plaintiff intends to use or may introduce at trial. REQUEST NO. 10: Provide the name, address, title and telephone number of all witnesses Plaintiff may or intends to call at Trial, as well as a synopsis of their testimony and their capacity as custodian of the matters to which they may testify. REQUEST NO. 11: In the event that Plaintiff obtains any documents or other evidence after answering this request that Plaintiff intends to use or may introduce at trial, Plaintiff is to amend this request by providing copies to Defendant. Respectfully submitted:
  20. Torden, I received a "Voluntary Dismissal Without Predjudice" from the attorney that should also be with the court, not sure till Monday, when I checked with the clerk on Friday when I received it and they said they are a day or so behind. So should I wait to see if the court gets their dismissal? or just go ahead and work up a MTD with predjudice? Bruno, many thanks for the critique, so I should have used a motion to strike rather than use them as defenses? I can definitely see your point. In my research I did see where the issues with the rules of civil procedure would be curable. Many good points to think about. I am looking forward to any other opinions! Thanks so much!
  21. I will post the RTP and Admissions I sent if you guys want to see and if you are Ok critiqueing them for me. LVNV FUNDING LLC Plaintiff, vs. CHEVY10 Defendant(s) ____________________________________________/ DEFENDANTS RESPONSE IN OPPOSITION TO PLAINTIFFS MOTION TO APPEAR TELEPHONICALLY (WITNESS) Comes now the Defendant, CHEVY10, Pro Se, pursuant to applicable Florida Rules of Civil Procedure and respectfully requests this Honorable Court deny Plaintiffs Motion to Appear Telephonically (witness). In support of this motion, Defendant would state as follows: 1. Defendant understands that there may be circumstances where it would be appropriate for Plaintiffs witness to appear telephonically. However, trial is not one of those situations. Given that the trial will require the examination of the witness and the possible presentation of exhibits, it would not be prudent to allow Plaintiffs witness to participate in the trial telephonically. 2. The personal appearance of any witness for the Plaintiff is crucial at trial for the Court to weigh his/her credibility. Credibility determinations are based on not just the tone of voice, but also on other important physical actions such as eye contact, body language, and many other signals that just can’t be interpreted telephonically. 3. The Standard Jury Instructions - Civil Cases as approved by the Florida Supreme Court (as listed on wwwDOTfloridasupremecourtDOTorg/]Florida Supreme Court Home Page as of 10/04/2012), specifically identifies that "In evaluating the believability of any witness and the weight you will give the testimony of any witness, you may properly consider the demeanor of the witness while testifying;” as one of the factors to take into consideration when determining credibility of that witness. See Standard Jury Instructions - Civil Cases, 601.2 BELIEVABILITY OF WITNESSES, a. General considerations. See also Black's Law Dictionary 463, 596 (8th ed.2004) (defining “demeanor evidence” as the “behavior and appearance of a witness on the witness stand”) The Court must be able to see Plaintiffs witness as he/she provides testimony so that it may adequately weigh his/her credibility. 4. Defendant does not consent to Plaintiffs witness appearing telephonically. See Florida Rules of Judicial Administration 2.530(d) September 1, 2012. Florida Rules of Judicial Administration 2.530(d)(1) provides: (1) Generally. A county or circuit court judge, general magistrate, special magistrate, or hearing officer may allow testimony to be taken through communication equipment if all parties consent or if permitted by another applicable rule of procedure. 5. In closing my opposition to this motion is not to cause undue costs or waste of time, it's to make sure I'm fully getting the "whole big picture, both verbally and non-verbal" I cannot fully do that telephonically. As a Pro Se I will be the one cross-examining the witness and with that being the case, I need to be able to see if the witness gets nervous at certain questions or starts shifting in the chair. How the witness reacts to questioning determines possible follow up questions and different routes I may take with my line of questioning. This will all be determined by the "feel" and the "read" I'm getting from the witness. Notwithstanding all of the above, I also cannot verify the identity of Plaintiffs witness nor can I be sure that he/she is not reading from a "script" or being coached. WHEREFORE, Defendant respectfully requests that the Court deny Plaintiffs Motion to Appear Telephonically (witness).
  22. Believe 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 Statutes 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.
  23. As I said earlier I am hoping for any critiques of what I filed so I can make it better for round 2 if there is one or for MCM if they ever file. Plus if what I filed is good as is then maybe it might help another fellow Floridian beat these bottom feeders in the future. IN THE COUNTY COURT IN AND FOR XXXXXXX COUNTY, FLORIDA LVNV FUNDING LLC Plaintiff, vs. CHEVY 10 Defendant(s) ____________________________________________/ DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES AND DEMAND FOR JURY TRIAL Comes now the Defendant, cHEVY10, Pro Se, pursuant to applicable Florida Rules of Civil Procedure, and does hereby file the instant Answer and Affirmative Defenses to the claim alleged by Plaintiff, LVNV Funding LLC, and would state as follows: 1. Defendant admits that he had, at one time, an account with ORIGINAL CREDITOR. 2. Defendant admits he resides in XXXXXX County Florida. 4. Defendant denies all other allegations in this complaint. 4. As set forth in Rule 1.430 of the Florida Rules of Civil Procedure, Defendant demands a trial by jury on all issues as a matter of right. FIRST AFFIRMATIVE DEFENSE Defendant asserts the affirmative defense of a failure to state a cause of action on all counts. Plaintiff has failed to allege a date of breach and failed to attach required documentation in accordance with Florida Rules of Civil Procedure 1.130. SECOND AFFIRMATIVE DEFENSE Defendant asserts the affirmative defense of failure to comply with the time requirements set forth in Florida Statute 559.715 related to the collection of purchased/assigned debts. By not complying with Florida Statute 559.175, the Plaintiff, therefore, failed to prove they were the real party in-interest and thus lacks standing. THIRD AFFIRMATIVE DEFENSE Defendant asserts that there was no agreement between Defendant and Plaintiff, LVNV Funding LLC or Plaintiff’s predecessor on the alleged account as alleged in Count 1; Account Stated of the Complaint. Plaintiff has provided no evidence that the alleged account and the account Defendant had at one time with ORIGINAL CREDITOR are indeed one in the same and it remains to be seen if Plaintiff can provide such evidence beyond a reasonable doubt, regardless “There can be no liability on an account stated if there has been no mutual agreement, and mere presentation of a claim and it’s retention without objection does not of itself create a liability.” See, Recreation Corp. of America v. Jack Drury & Associates, Inc 235 So.2d 867 (Fla. App. 4 Dist. 1970) “Failure to respond to demand for payment does not create obligation for account stated absent contractual agreement creating such liability.” See, 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.” See also, Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. App. 2 Dist. 1975) Defendant asserts that Plaintiff, LVNV Funding LLC, has not attached any evidence of the alleged agreement stated in Count 1 of the complaint nor has Plaintiff attached a copy of the account, showing all items, time of accrual of each, and amount of each, as required, pursuant to F.R.C.P. 1.933. FOURTH AFFIRMATIVE DEFENSE Defendant asserts Court lacks subject matter jurisdiction due to Plaintiff’s pleadings being insufficient for Count 2; Open Account. Defendant asserts that Plaintiff, LVNV Funding LLC has not attached a copy of the account, showing all items, time of accrual of each, and amount of each, as required, pursuant to F.R.C.P. 1.932. 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. See generally, H & H Design Builders, Inc v. Travelers’ Indemnity Co., 639 So.2d 697 (Fla. App. 5 Dist. 1994) Defendant asserts that Plaintiff has not attached a copy of the original contract signed by both parties. Plaintiff has provided no evidence that the alleged account and the account Defendant had at one time with ORIGINAL CREDITOR are indeed one in the same and it remains to be seen if Plaintiff can provide such evidence beyond a reasonable doubt. “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.” See, Cherokee Oil Co. v. Union Oil Co. of California, 706 F.Supp. 826 (M.D. Fla. 1989) affirmed 901 F.2d 1114. FIFTH AFFIRMATIVE DEFENSE Defendant asserts Court lacks subject matter jurisdiction due to Plaintiff’s pleadings being insufficient for Count 3; Money Lent. Defendant asserts that Plaintiff, LVNV Funding LLC, has failed to plead facts sufficient to establish a claim pursuant to F.R.C.P. 1.936. Plaintiff has failed to meet its pleading burden in this cause of action. “a plaintiffs obligation to provide the …"grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do” see, Bell Atl. Corp. v Twombly, 550 U.S. 554, 570 (2007). “It should be noted the language of this pleading mimics a fill-in-the-blank pleading example provided in Florida Rule of Civil Procedure Form 1.936. Nevertheless, the Supreme Court in Twombly clearly requires more than “a formulaic recitation of the elements of a cause of action,” See also, Paladin Shipping CO. LTD. v Star Capital Fund LLC, US Dist. Court, (SD Fla. 2010) SIXTH AFFIRMATIVE DEFENSE Defendant asserts that Plaintiff, LVNV Funding LLC, has no standing to bring an action in this court for Count 4; Quantum Meruit. Plaintiff cannot sue on an equitable theory, such as Quantum Meruit, to prove a debt if an express contract exits. Since this is an alleged consumer credit card debt it can be reasonably inferred that an express contract most likely exists if this is indeed a valid debt and that the alleged account and the account Defendant had at one time with ORIGINAL CREDITOR are indeed the same accounts. Defendant asserts that Plaintiff is using the Quantum Meruit legal theory to make an end run around their lack of evidence. See Ocean Communications, Inc. v. Bubeck, 956 So. 2d 1222 (4th DCA 2007) [32 Fla. L. Weekly D1344a]. WHEREFORE, Defendant, having fully answered the claim in this matter prays that this court enter Judgment against the Plaintiff and award to the Defendant, costs and such other relief as is just and equitable. Further the Defendant sayeth not.
×
×
  • Create New...