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Court Summons for Mediation, Florida

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Hi All,

OC First USA sold my account, and after several generations of sales, was bought by Premium Asset Recovery Corp, who hired Richard A. Russell, who appointed Neil V. Singh of Deerfield Beach (like, 3.5 hour drive from here) to telephone me and send me paperwork (I kindly reminded them in a registered letter that they contacted me after I sent a cease and desist, and to do so again would be foolhardy.)

In September, someone tried to serve me at work, and when they were told I didn't live there, they left and made no further attempts to serve.

Online court records show that a mediation conference was set up in September, but cancelled. It shows the summons was undeliverable. I received a "motion to appear telephonically" for the lawyer (not convenient for him to drive all that way and have to get a hotel room, poor dear) which the judge signed, for the date of the cancelled mediation. Is this motion only good for the date of the motion, or is it valid indefinitely? In other words, can they use that September motion to appear telephonically in January?

Next thing I know, I am actually being served on December 30, and it is a summons for a mediation conference on January 18 at the courthouse.

The thing is, the attorney attached a piece of paper that says this:

"1. This is an action for damages that do not exceed the sum of $5,000, exclusive of costs, interest, and attorney's fees.

2. Plaintiff purchased this charged off account; FUSA xxxx-xxxx-xxxx-xxxx on 5/02/05.

3. Plaintiff claims the amount of $1,126.36 as being due from the Defendant named herein, and as the basis of this action alleges:

a. $1,126.36 owed for FUSA xxxx-xxxx-xxxx-xxxx account for various credit card purchases, cash advances, financial charges and fees to date, Account # xxxx-xxxx-xxxx-xxxx and date of last transaction was 07/19/01. (bold mine)

Wherefore, Plaintiff demands judgment for damages against the Defendant's in the total sum of $1,126.36, plus costs, interest, and $350 for attorney's fees."

Statute of limitations is four years in Florida, and they admit the account is 4.5 years old in their own paperwork. Any suggested course of action on my part?

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Unfortunately, FL judges are NOT buying the 4 year SOL, they're almost unanimously ruling that a credit card is a written contract and bears the FIVE year SOL. So, you can certainly try the SOL affirmative defense, but don't be suprised if the judge disagrees and rules against you.

You should probably be prepared to negotiate a settlement.

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Your other option which probably is not the best course of action would be to file a motion to dismiss which may be called a demurrer based on the claim that the complaint itself states that the debt is over 4 years old.

While motions to dismiss have the plus side of a quick potential to end the case, the downside is that 1. You may be admitting to some of the allegations to the complaint 2. The motion to dismiss may be sustained with leave to amend allowing Plaintiff to file an amended complaint.

The big question which may require you to research Florida case law is the interpertation of SOL for a credit card account.

Otherwise, you should plan on filing an answer along with using the SOL affirmative defense.

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  • 4 weeks later...

Thanks for all the replies!

I had the mediation meeting, which I have never been to before. In my county, they must put one day aside a month to schedule mediations, because it was standing room only in the lobby. My appointment for 9:45 was taken at 11:20. The attorney called twice to see when we were going to get a "phone room" (that was the whole holdup, apparently--all the conference rooms with phones were taken.) The attorney was on speakerphone both times. She told the court clerks that she was on her cell phone and was trying to squeeze us in between her cases in court that day. They took her number down, which she said out loud for the whole seating area to hear, and after they hung up, the clerks raised eyebrows about the cell phone/court thing. When the mediator picked up the files, the clerk told him the attorney's cell phone number was in there. He said incredulously, "Her cell phone???!!" As a side note, I asked the clerk about the attorney appearing telephonically--I said I hadn't received a signed motion for one, and was there one on file? She said, Yes, one from September. I had that one, saying the attorney was allowed to appear telephonically on September 21, 2005. I said, But today is January 18. She said, Since the first summons for mediation had been undeliverable, to save the ATTORNEY the hassle of refiling, they let the telephone motion from September cover this January meeting.

Anyway, there were a stack of files for us First USA/Premium Asset people, and we all traipsed down to Conference Room 6, where we waited our turns to have a telephone mediation with an attorney that I had never heard of (meaning, ALL my paperwork had been signed by one attorney, and this one was NOT him).

I recorded the whole conversation. I had informed the mediator that I was going to record it, and he said fine, he would let the attorney know, but he never informed her (don't think it matters, as it said "You are being video and audio recorded--please act accordingly" on the door of the conference room.) I had a prepared statement, which I read, stating that the debt had never been validated, statute of limitations was up, etc., and she interrupted me near the end, saying that while she applauded me for trying to do the research, I was quite mistaken, and that she heard the SOL defense "all the time", and in FL a written contract is 5 years, not 4, and "just because you wrote a paper doesn't mean I'm going to dismiss this case." The mediator is writing furiously--he did not say a word through the whole thing except to introduce us--and finally he asked if I was going to agree to her demand for payment of $2496.32, and I said, "No, sir." and the lawyer said, "Mr. Mediator (that's what she said--not his name) put us down for a court date." I confirmed where I could be sent a summons, and I left.

They said I would be served in 30-60 days. I guess I will wait and see, now.

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My question is about interpretation of that statute. I am being told by a friend who used to be a debt collector for 15 years and now is in law school, that a credit card is revolving credit, and falls under the four-year "everything else" statute, while a "written contract" means things like mortgages, car loans, and other contracts where both parties sign to agree to the terms for a fixed amount. Any thoughts?

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The Florida SOL states that the SOL is five years for all debts "based on a written instrument." It does not mention anything about open or revolving debt, but it also does not define what a written instrument is. There is no case law to guide us here, either. I suppose it could be argued that the CC holder agreement or the sales slips are written instruments, but once again, no case law. You could always argue the SOL, and see if the judge accepts that. Just beware that the court may rule against you.

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