I've been sued.........

[simba101]

I'm new to this board and new to the idea of a lawsuit. Basically, I'm pretty clueless on the subject.

I've been sued by a collection agency that purchased the debt of over $7k. I am in Florida. The account was opened in 1994, charged off in 2000, and I made a payment in 2001.

I responded to the summons stating that I wasn't aware of the debt and required validation via my signature, etc. Nothing happened for 2 months, until this week.

I received requests for admissions, interrogatories, production, etc. They only provided a copy of a credit card statement. They don't have my signature. Even in the original summons, they stated that the original signed agreement had been lost or destroyed.

I have no assets. I rent my home, I don't work, I still owe on my car which is about what it's worth. My husband works and we have a joint checking account. We are completely strapped for money and losing this would be devastating.

So my questions are:

1) If they don't have my signature, how can they prove this is mine and win?

2) If I lose this, obviously I don't have the money to pay it. What could they do to me to get the money? I have no assets and no source of income.

3) Can they prove the payment in 2001? If it weren't for the payment, this would be beyond the statute of limitations.

4) If I don't respond to the recent paperwork that I received, do they automatically win by default?

I appreciate any help and advice. I've read through a lot of this message board and the knowledge from the people here amazes me! I'd love to just hire one of you to handle this for me!

Simba

[codename_fortyseven]

I am not sure how the community property rules work in your state. I would find that out regarding the checking account. If you have no assets, no income, then you pretty much answered your own question. There isn't anything they CAN do.

You don't have wages to garnish. You don't have assets to seize. They can get a judgement and feel smug, but you are judgement proof, and they can't enforce it.

A credit card statement isn't proper validation. I wouldn't sign anything else I send them.

I'd ask them to prove the payment in 2001. Are you sure it restarts the SOL, btw?

If you don't respond, they could file a motion to compel, and will win by default eventually.

[simba101]

Where would I look for the community property rules in Florida? Sorry for my ignorance and thanks so much for your help.

Simba

[Guest]

You need to start looking at CMCHase's threads.

You did not answer the summons correctly and I hope you are able to amend your answer now.. you should be.

You might want to file a motion to amend your answer and deny all those things.. then answer with affirmative defenses that the account is SOL, they have no private right of action and they failed to state a claim.

Those might be good ways to start

Seriously though.. read CMChase's posts on how her lawsuit is dealing with things like this

[c m chase]

I read your other thread too, about the signature requirement...and have a couple of things to say about that. First of all, they CAN win a lawsuit without your signature. But that's not the whole shebang. There are more things you can do and ask for that will help out.

Secondly, don't base everything you know on what gdouglass says (the rude guy in the other thread). He's our resident black cloud and things aren't always exactly like he says.

I'm new to this board and new to the idea of a lawsuit. Basically, I'm pretty clueless on the subject.

Then....hi. Glad you made it to the board and the forum!

I've been sued by a collection agency that purchased the debt of over $7k. I am in Florida. The account was opened in 1994, charged off in 2000, and I made a payment in 2001.

Hmmm...first thing I see is a possible statute of limitations issue here. In Florida, SOL has been won on both a 4 year statue and a 5 year statute. You'll need to prove your case either way. Looks like, depending on the SOL date and the date you got sued, you could get this thrown out because of limitations.

First thing you need to do is find out when the date is that you made your last payment prior to the debt charging off. That date should be something like 6 months before the charge-off date. Check that info out and let us know. You can find out the information by looking at any records or credit reports having the ORIGINAL CREDITOR'S information on it.

I responded to the summons stating that I wasn't aware of the debt and required validation via my signature, etc. Nothing happened for 2 months, until this week.

What EXACTLY did you say in your answer? Did you deny the debt all together? What all did you ask for as far as validation?

I received requests for admissions, interrogatories, production, etc. They only provided a copy of a credit card statement. They don't have my signature. Even in the original summons, they stated that the original signed agreement had been lost or destroyed.

That's called Discovery. They're hoping you won't answer any of it and that means they will win on summary judgment (which means they're saying "there's no issue of evidence now and we'll win if it goes to trial). Don't let that happen. Answer the admissions right away and deny what you can (if you don't know for sure) and admit the easy stuff (like "your name is xxxx"). If you deny anything, they have to prove it. So let them.

As far as the interrogs and production requests, I don't know what FL rules say about that. You might answer any that you can...you could say you don't know most and want more time...you can say you asked for the same information and they refuse to give it to you...you'll have to play by ear on that one. READ CIVIL PROCEDURE. That will tell you what you can get away with.

I have no assets. I rent my home, I don't work, I still owe on my car which is about what it's worth. My husband works and we have a joint checking account. We are completely strapped for money and losing this would be devastating.

So my questions are:

1) If they don't have my signature, how can they prove this is mine and win?

That's really not an issue. But other things are. Espeically statute of limitations and getting an itemized statement of account, showing all charges and payments.

2) If I lose this, obviously I don't have the money to pay it. What could they do to me to get the money? I have no assets and no source of income.

Anyone with FL rules knowledge? I have no clue. Some states allow for garnishment and taking of property. I'd read up on that one to be sure. We'll try to get you past that point though.

3) Can they prove the payment in 2001? If it weren't for the payment, this would be beyond the statute of limitations.

Well, it might be anyway. Some states don't count that payment as resetting the SOL. Make sure of that before you assume. It could save you. And...as far as them proving the payment. MAKE THEM. Deny that you made the payment and ask for strict proof of it. Make them show the cancelled check or whatever.

You can request your own Discovery, too. That's where you'd ask for any contracts, all statements, itemized accounts, terms of agreement, payments made, etc. etc.

4) If I don't respond to the recent paperwork that I received, do they automatically win by default?

Yes, but not by default....by summary. Which, as far as you're concerned, is the same thing.

Also, read up on your state's rules for amending your answer in case you need to do that (which is very possible).

Good luck!

[KentWA]

To echo what c m chase has said, send your own discovery request. DO NOT MENTION THE 2001 PAYMENT. Only bring that up IF they claim it. Ask for everything you can think of. Also check with the Sec of State for your state and see if they are a registered corp. In most states if they are not a registered corp they can not maintain an action in court.

[simba101]

In the interrogatories, they are asking for the name and address of each banking institution which I have held any account over the past ten years, types of accounts, and beginning and ending dates that I held the accounts.

Do I have to provide this? Why are they asking for this?

They also ask that I set forth the factual basis for each and every defense and/or counter claim I assert against Plaintiff's claim. I read through CM Chase's case and read through the counterclaims that she used. Would I list some of these in response to this question?

Also, I understand that I can request admissions and interrogatories from them. I'm assuming that this is where I would ask for validation of the account, itemized proof of balance, proof of payments, SOL, etc. Do I just basically follow the format that they sent me and mail it to them and to the court?

[simba101]

CM Chase:

I responded to your questions in blue. Thanks!

First thing you need to do is find out when the date is that you made your last payment prior to the debt charging off. That date should be something like 6 months before the charge-off date. Check that info out and let us know. You can find out the information by looking at any records or credit reports having the ORIGINAL CREDITOR'S information on it.

I have a copy of my credit report and it doesn't show any last payment, including the 2001 payment. And they do mention this payment in the admissions.

What EXACTLY did you say in your answer? Did you deny the debt all together? What all did you ask for as far as validation?

I didn't research before I responded. Not too smart! I basically said that I have to record/knowledge of this account, asked for validation of the account with my signature on an agreement, etc. Nothing very detailed.

That's called Discovery. They're hoping you won't answer any of it and that means they will win on summary judgment (which means they're saying "there's no issue of evidence now and we'll win if it goes to trial). Don't let that happen. Answer the admissions right away and deny what you can (if you don't know for sure) and admit the easy stuff (like "your name is xxxx"). If you deny anything, they have to prove it. So let them.

Does this mean that they prove this before going to court and I will know what proof they have?

Well, it might be anyway. Some states don't count that payment as resetting the SOL. Make sure of that before you assume. It could save you. And...as far as them proving the payment. MAKE THEM. Deny that you made the payment and ask for strict proof of it. Make them show the cancelled check or whatever.

Sorry for my ignorance, but how do I find out if a payment in Florida resets the SOL or not? Can they just go to my bank and get a copy of the check?

Also, read up on your state's rules for amending your answer in case you need to do that (which is very possible).

Why would I need to amend the answer? Was my answer that far in left field because I didn't research anything first? Wouldn't it look odd that I change my answer now? Also, answering the admissions and interrogatories would basically do the same thing, correct? Doesn't the court see those?

I'm wondering if I just should file ch 7 seperate from my husband. I have over $17k in bad debt and no way to pay any of it.

One more question, this credit card was from 1994 and I got married in 1999. Even if they got a judgement, they couldn't touch anything of my husband's anyway, right? Would they be able to take money from our joint checking account even though he's the only one that contributes to it?

Thanks SO much for your help. I've enjoyed reading your case and can't wait to see what happens!

[c m chase]

In the interrogatories, they are asking for the name and address of each banking institution which I have held any account over the past ten years, types of accounts, and beginning and ending dates that I held the accounts.

Do I have to provide this? Why are they asking for this?

If they had any right to this information, it'd only be if they already have a judgment against you...and they don't. Answer that one with something like "Objection. Defendant's banking information is irrelevant to this matter."

If you were at an asset hearing, then you'd have to provide that....but not now. They're trying to find out if they DO get a judgment, how they can get their money from you.

They also ask that I set forth the factual basis for each and every defense and/or counter claim I assert against Plaintiff's claim. I read through CM Chase's case and read through the counterclaims that she used. Would I list some of these in response to this question?

Well, it kinda depends on if they violated any laws. If you're going to have a counterclaim, you have to base it on something. Find out if you have those violations and then we'll work on the counter.

As far as the basis for every defense...I think my answer was something along the lines of "Defendant is without any priviledged information" or something.

Also, I understand that I can request admissions and interrogatories from them. I'm assuming that this is where I would ask for validation of the account, itemized proof of balance, proof of payments, SOL, etc. Do I just basically follow the format that they sent me and mail it to them and to the court?

Exactly right.

[simba101]

To echo what c m chase has said, send your own discovery request. DO NOT MENTION THE 2001 PAYMENT. Only bring that up IF they claim it. Ask for everything you can think of. Also check with the Sec of State for your state and see if they are a registered corp. In most states if they are not a registered corp they can not maintain an action in court.

They are a registered corp and they mentioned the 2001 payment in the admissions.

[radarbeam]

FYI

Dealing with a credit card debt lawsuit in FL involves analyzing the complaint to see if the documentation is sufficient for the 5 year SoL (they must have your signature acknowledging the credit card holder agreement) and knowing the exact time of the breach of the agreement.

Here's something I posted on AoC that shows what the law is on this.

Here's how the 4 year SoL works on credit cards in Florida. It has nothing to do with open accounts since F.S. 95.11(2)( [5 year SoL] and (3)(k) [4 year SoL]have nothing to do with open accounts.

If the action is on the credit card holder agreement, which is the typical JDB lawsuit, and it is the only declared written instrument in the complaint, that it a certain 4 year SoL on a breach of contract action.

Why?

The Parol Evidence Rule and Klein v. Frank.

The rest of the defense is establishing the point of Breach of Contract CoA accrual and the assertion of F.S. 95.051(2) which bars any judicial tolling of the CoA accrual on a breach of contract, not founded on a written instrument.

CoA Accrual in Florida is deterimined by the Courts.

CoA Tolling, thanks to the Florida Legislature's plain language wording in F.S. 95.051(2) precludes any judicial expansion of CoA tolling from what the Legislature provided in F.S. 95.051(1) and the Tax, Probate and Guardianship statutes which is not Debtor/Creditor law and is not applicable to credit card debt. See Hearndon v. Graham, 767 So.2d 1179.

There is no statutory provided CoA tolling for oral contracts in Florida.

The Parol Evidence Rule and Klein v. Frank make certain that a Credit Card Holder Agreement is an oral contract since its construction is such that resort to parol evidence is necessary to establish liability of the defendant.

When the Credit Card goes delinquent, the point of first delinquency is the Point of Breach which in the point of CoA accrual for breach of contract actions where demand for payment is defined.

4 years after the date of the point of first delinquency, the credit card account is past SoL, for a breach of contract action based on a credit card holder agreement.

Klein v. Frank, C.C.A. 5, 1976, 534 F.2d 1104.

Klein v. Frank is Federal Circuit Court of Appeals case law for Florida.

It is the preeminent case law in Florida for Limitations on Contracts, as shown in Florida Statutes, Annotated, 95.11.

"Where resort to oral testimony was compelled to make complete the showing of any legal liability incurred by defendant arising out of letter concerning sale of plaintiff's action to recover for breach of contract to sell the shares and remit proceeds to him was governed by Florida's three-year limitation period governing actions on oral contracts, rather than the five-year period governing actions on written contracts." Klein v. Frank.

This means that if resort to parol evidence (evidence extrinsic from the writing declared as the basis to sue) is required to prove legal liability on a breach of contract action, then the contract is considered oral and the 4-year SoL ( F.S.95.11(3)(k) ) applies.

CoA accrual for Breach of Contract where demand for payment is defined is well defined: It traces to Fradley v. County of Dade, 187 So.2d 48, which clearly defines Breach of Contract CoA accrual as the point of the breach, which is the point of first delinquency for a credit card account.

State Farm Mutual Automobile Insurance v. Lee, 678 So.2d 818, Fla. 1996 establshes this for written contracts, Mosher v. Anderson, 817 So.2d 812, Fla. 2002, establshes the same for oral contracts.

As for 95.051(2): In re Southeast Banking Corp., 835 F. Supp 353, S.D. Fla. 1994, affirmed 69 F. 3d 1539, by the C.C.A. 11th Cir., clearly establishes that only those provisions for Tolling provided by the Florida Legislature in 95.015(1) and 95.051(2) may toll a CoA. There is no provision provided by the Legislature for Tolling a breach of contract not based on a written intrument!

The only way to get the five year SoL in Florida (to get around the parol evidence rule and Klein v. Frank) is to be able to prove legal liability exclusively from the 'attached to the complaint' writings declared on as the basis to sue. To prove legal liability, they must have the debtor's signature on one of the writings and the signed writing must incorporate by reference other writings that establish all of the essential terms of the agreement, which means a signed credit card application which incorporates the credit card holder agreement by reference into the agreement, must be declared and attached to the complaint in addition to the credit card holder agreement, which must be proven to be the correct one for the credit card account.

Anything less then hammer them for FDCPA, FCCPA and FDUTPA violations for bringing an anti-consumer fraudulent, frivilous action after 4 years of CoA accrual.

[radarbeam]

they stated that the original signed agreement had been lost or destroyed.

Hammer them with Klein v. Frank if you are past 4 years of CoA accrual.

[radarbeam]

Can they prove the payment in 2001? If it weren't for the payment, this would be beyond the statute of limitations.

Without evidence of your signature, the payment is immaterial due to F.S. 95.051(2).

There is no CoA tolling provision for an oral contract.

The point of first delinquency determines CoA accrual and you are past SoL 4 years later.

[radarbeam]

charged off in 2000

This means the point of the breach was sometime in 1999 or 2000.

A lawsuit filed in 2005 is time-barred.

Your lucky. The complaint verifies the SoL defense since it admits the lack of your signature. This is clearly a certain Dismissal for Failure to State due to time-barred. File you answer with your SoL defense and proof of First Delinquency. Assert the Parol Evidence Rule, Klein v. Frank, F.S. 95.051(2) and Hearndon v. Graham and In re Southeast Banking v. Brandt.

I will have to check the proper Civil Rule to cite to authorize the Dismissal but it may be Fla. R. Civ. P. 1.110(.

Motion to Strike all adverse party discovery motions since they are futile.

[simba101]

they stated that the original signed agreement had been lost or destroyed.

Hammer them with Klein v. Frank if you are past 4 years of CoA accrual.

I'm not used to all of the legal terms but I'm trying to understand all that you're saying. First of all, thank you for taking the time to help me.

Now, when you say "hammer them", do I just mention this in my response to the admissions and interrogatories or is there something else that I need to do?

And to make sure that I understand, because they can't produce my signature on the original agreement, it is considered an oral agreement, which means the sol begins with the first late payment. Am I paraphrasing correctly? And if that is the case, then would it even go to court because obviously the law would be on my side not theirs.

[radarbeam]

do I just mention this in my response to the admissions and interrogatories or is there something else that I need to do?

And to make sure that I understand, because they can't produce my signature on the original agreement, it is considered an oral agreement, which means the sol begins with the first late payment. Am I paraphrasing correctly? And if that is the case, then would it even go to court because obviously the law would be on my side not theirs

Don't answer any of their admissions and interrogatories. Period.

Motion to Strike them as they are futile, if you can prove the point of first delinqency is more than 4 years before the filing date of the lawsuit.

Klein v. Frank says it's an oral contract if resort to parol evidence is necessary. Without your signature, resort to parol evidence is necessary.

F.S. 95.051(2) says no CoA SoL tolling for an oral contract.

F.S. means Florida Statute.

You have to raise and prove the SoL defense to dismissal their CoAs.

Without them having your signature, you can plead and prove the SoL defense.

[radarbeam]

I responded to the summons stating that I wasn't aware of the debt and required validation via my signature, etc. Nothing happened for 2 months, until this week.

Did you raise the SoL defense in your answer to the complaint?

If not, file a motion to amend answer with the SoL defense.

[simba101]

I responded to the summons stating that I wasn't aware of the debt and required validation via my signature, etc. Nothing happened for 2 months, until this week.

Did you raise the SoL defense in your answer to the complaint?

If not, file a motion to amend answer with the SoL defense.

How do I file a motion to amend the answer? Do I just draft the amended answer and send it to the court? Thanks....you've given me some hope!

[admin]

Don't answer any of their admissions and interrogatories. Period.

Motion to Strike them as they are futile, if you can prove the point of first delinqency is more than 4 years before the filing date of the lawsuit.

I'm sorry, but this advise is bunk. You MUST answer their admissions and interrogatories, whether or not they have a case. Otherwise, they can get a summary judgement.

Klein v. Frank says it's an oral contract if resort to parol evidence is necessary. Without your signature, resort to parol evidence is necessary.

F.S. 95.051(2) says no CoA SoL tolling for an oral contract.

F.S. means Florida Statute.

You have to raise and prove the SoL defense to dismissal their CoAs:?:

Without them having your signature, you can plead and prove the SoL defense.

This seems like gibberish to me.

[radarbeam]

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.

[radarbeam]

You MUST answer their admissions and interrogatories, whether or not they have a case. Otherwise, they can get a summary judgement.

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.

[radarbeam]

This seems like gibberish to me.

You have obviously failed to hit the library and do the necessary research.

[radarbeam]

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.

[radarbeam]

You have obviously failed to hit the library and do the necessary research.

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.

[radarbeam]

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.