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Notice of Hearing for Dismissal - BofA vs. Me 7/18/06 Tips?


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Recieved this in the mail, sent on May 31.

You are hereby notified that hearing will be held in the above styled case on Defendants Motion to Dismission with Prejudice on TUESDAY JULY 18, 2006 at 9:45A.M.

and attached certificate of service.

Basically... I amended my answer, denied all things in the complaint other than my name, there are NO account numbers in the complaint, just an amount, affirmative defenses of unjust enrichment if the judgement was made in their claimed amount, past SOL and the plantiff failed to state a claim upon which relief can be granted, and fails to state facts sufficient to constitute a cause of action against me, wrote a letter to the judge asking it be dismissed, and then I get a letter with a hearing date for just that.

SO... what should I do to prepare for this?

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When was the case originally filed? Why is it being put on the motions calendar to be dismissed? What county are you in? They tried to serve my ex but it was returned unserved. I'm waiting to see if they reissue the summons or if they will put it on the books for dismissal.

Who is suing you BofA as original creditor, or a debt collector? Sounds like you are going to walk away from this one. I would show up at the hearing so that they don't get a default judgment against you. It seems like you did a superb job of filing your answers, and motions to strike affidavits etc. that they aren't pursuing the case. Just my opinion, but that is how it seems to be playing out. I'm going to see if I can find any prior posts from you on this situation. Keep posting I'm interested!!!

Chicaloca

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Look up all the civil codes of procedure for your court venue and state. Be able to cite the specific statute to back up your answers (and have copies):

You are claiming:

1. Affirmative defenses of unjust enrichment if the judgement was made in their claimed amount How do you figure this? State's usery laws, the fact that they didn't list fees, excessive legal fees?

2. past SOL Cite the statute for SOL and provide evidence claiming that it is out of SOL (credit report, letters they sent you, anything)

3. plantiff failed to state a claim upon which relief can be granted, and fails to state facts sufficient to constitute a cause of action against me Did they cite a statute in the complaint? If so, why is it wrong?

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Look up all the civil codes of procedure for your court venue and state. Be able to cite the specific statute to back up your answers (and have copies):

You are claiming:

1. Affirmative defenses of unjust enrichment if the judgement was made in their claimed amount How do you figure this? State's usery laws, the fact that they didn't list fees, excessive legal fees?

Didnt list fees. Claiming the 6516 is principal. Hard to have a credit limit of 2500 and then have a principal amount owed of 6500. They are attempting to lump all the fees and interest as principal as well.

2. past SOL Cite the statute for SOL and provide evidence claiming that it is out of SOL (credit report, letters they sent you, anything)

The SOL is REALLY close on this one. Ive been trying to find my bank statements for that month since I did a payment over the phone with them, and am having a hard time locating it. I may have to use the credit reports.

3. plantiff failed to state a claim upon which relief can be granted, and fails to state facts sufficient to constitute a cause of action against me Did they cite a statute in the complaint? If so, why is it wrong?

Cited no statutes, actually nothing at all within the complaint. No account numbers, nothing. I literally have no idea what it could be. I know what it probably is, but there is nothing otherwise supporting that.

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Am I interpreting this correctly, or does this section not apply to consumers? States 18% per annum simple interest.

Florida Statute 687.03

Title XXXIX

COMMERCIAL RELATIONS

Chapter 687

INTEREST AND USURY; LENDING PRACTICES

View Entire Chapter

687.03 "Unlawful rates of interest" defined; proviso.--

(1) Except as provided herein, it shall be usury and unlawful for any person, or for any agent, officer, or other representative of any person, to reserve, charge, or take for any loan, advance of money, line of credit, forbearance to enforce the collection of any sum of money, or other obligation a rate of interest greater than the equivalent of 18 percent per annum simple interest, either directly or indirectly, by way of commission for advances, discounts, or exchange, or by any contract, contrivance, or device whatever whereby the debtor is required or obligated to pay a sum of money greater than the actual principal sum received, together with interest at the rate of the equivalent of 18 percent per annum simple interest. However, if any loan, advance of money, line of credit, forbearance to enforce the collection of a debt, or obligation exceeds $500,000 in amount or value, it shall not be usury or unlawful to reserve, charge, or take interest thereon unless the rate of interest exceeds the rate prescribed in s. 687.071. The provisions of this section shall not apply to sales of bonds in excess of $100 and mortgages securing the same, or money loaned on bonds.

(2)(a) The provisions of this section and of s. 687.02 shall not apply to loans or other advances of credit made pursuant to:

1. A commitment to insure by the Federal Housing Administration.

2. A commitment to guarantee by the United States Department of Veterans Affairs.

3. A commitment to purchase a loan issued by the Federal National Mortgage Association; Government National Mortgage Association; Federal Home Loan Mortgage Corporation; any department, agency, or instrumentality of the Federal Government; or any successor of any of them, pursuant to any provision of the acts of Congress or federal regulations.

(B) This act shall apply only to loans or advances of credit made subsequent to the effective date of this act. All present laws shall remain in full force and effect as to loans or advances of credit made prior to the effective date of this act.

© Notwithstanding any other provision of this section, any lessor or merchant, or any person who lends money or extends any other form of credit, who is regularly engaged in the business of selling or leasing merchandise, goods, or services which are for other than personal, family, or household purposes, or any assignee of such lessor, merchant, or person who lends money or extends any other form of credit, who is the holder of a commercial installment contract, each of which persons or entities is subject to the laws of any jurisdiction of the United States, any state, the District of Columbia, the Commonwealth of Puerto Rico, or any territory or insular possession of the United States, may, if the contract so provides, charge a delinquency charge on each installment which is in default for a period of not less than 10 days in an amount not in excess of 5 percent of such installment. However, only one such delinquency charge may be collected on any installment, regardless of the period during which it remains in default. A delinquency charge imposed pursuant to this paragraph shall not be deemed interest or a finance charge made incident to or as a condition to the grant of the loan or other extension of credit and shall not be included in determining the limit on charges, as provided by this section, which may be made in connection with the loan or other extension of credit as provided by law of this state.

(3) For the purpose of this chapter, the rate of interest on any loan, advance of money, line of credit, forbearance to enforce the collection of a debt, or other obligation to pay interest shall be determined and computed upon the assumption that the debt will be paid according to the agreed terms, whether or not said loan, advance of money, line of credit, forbearance to enforce collection of a debt, or other obligation is paid or collected by court action prior to its term, and any payment or property charged, reserved, or taken as an advance or forbearance, which is in the nature of, and taken into account in the calculation of, interest shall be valued as of the date received and shall be spread over the stated term of the loan, advance of money, line of credit, forbearance to enforce collection of a debt, or other obligation for the purpose of determining the rate of interest. The spreading of any such advance or forbearance for the purpose of computing the rate of interest shall be calculated by first computing the advance or forbearance as a percentage of the total stated amount of such loan, advance of money, line of credit, forbearance to enforce collection of a debt, or other obligation. This percentage shall then be divided by the number of years, and fractions thereof, of the loan, advance of money, line of credit, forbearance to enforce collection of a debt, or other obligation according to its stated maturity date, without regard to early maturity in the event of default. The resulting annual percentage rate shall then be added to the stated annual percentage rate of interest to produce the effective rate of interest for purposes of this chapter. Moreover, for the purposes of this chapter, a loan, advance of money, line of credit, forbearance, or other obligation shall be deemed to exceed $500,000 in amount or value if:

(a) The outstanding principal indebtedness of such loan, advance of money, line of credit, forbearance, or other obligation initially exceeds $500,000; or

(B) The aggregate principal indebtedness of such loan, advance of money, line of credit, forbearance, or other obligation may reasonably be expected to exceed $500,000 during the term thereof, notwithstanding the fact that less than that amount in the aggregate is initially or at any time thereafter advanced in one transaction or a series of related transactions; or

© Such loan, advance of money, line of credit, forbearance, or other obligation exceeds $500,000 at any time, notwithstanding the fact that such indebtedness is or is not subsequently reduced to less than $500,000 and thereafter additional amounts are advanced in one transaction or a series of related transactions which in the aggregate do not exceed $500,000.

(4) If, as provided in subsection (3), a loan, advance of money, line of credit, forbearance, or other obligation exceeds $500,000, then, for the purposes of this chapter, interest on that loan, advance of money, line of credit, forbearance, or other obligation shall not include the value of property charged, reserved, or taken as an advance or forbearance, the value of which substantially depends on the success of the venture in which are used the proceeds of that loan, advance of money, line of credit, forbearance, or other obligation. Stock options and interests in profits, receipts, or residual values are examples of the type of property the value of which would be excluded from calculation of interest under the preceding sentence.

(5) As amended by chapter 79-592, Laws of Florida, chapter 79-274, Laws of Florida, which amended subsection (1):

(a) Shall apply only to loans, advances of credit, or lines of credit made on or subsequent to July 1, 1979, and to loans, advances of credit, or lines of credit made prior to that date if the lender has the legal right to require full payment or to adjust or modify the interest rate, by renewal, assumption, reaffirmation, contract, or otherwise; and

(B) Shall not be construed as diminishing the force and effect of any laws applying to loans, advances of credit, or lines of credit, other than to those mentioned in paragraph (a), completed prior to July 1, 1979.

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Looks like that one is incorrect... however... 516.02 Consumer Finance...

Title XXXIII

REGULATION OF TRADE, COMMERCE, INVESTMENTS, AND SOLICITATIONS

Chapter 516

CONSUMER FINANCE

View Entire Chapter

516.02 Loans; lines of credit; rate of interest; license.--

(1) A person must not engage in the business of making consumer finance loans unless she or he is authorized to do so under this chapter or other statutes and unless the person first obtains a license from the office.

(2)(a) A person who is engaged in the business of making loans of money, except as authorized by this chapter or other statutes of this state, may not directly or indirectly charge, contract for, or receive any interest or consideration greater than 18 percent per annum upon the loan, use, or forbearance of money, goods, or choses in action, or upon the loan or use of credit, of the amount or value of $25,000 or less.

(B) The prohibition in paragraph (a) applies to any lender who, as security for any such loan, use, or forbearance of money, goods, or choses in action, or for any such loan or use of credit, makes a pretended purchase of property from any person and permits the owner or pledgor to retain the possession thereof or who by any device or pretense of charging for services or otherwise seeks to obtain a greater compensation than is authorized by this chapter.

© A loan for which a greater rate of interest or charge than is allowed by this chapter has been contracted for or received, wherever made, is not enforceable in this state, and each person who in any manner participates therein in this state is subject to this chapter. However, this paragraph does not apply to loans legally made to a resident of another state by a person within that state if that state has in effect a regulatory small loan or consumer finance law similar in principle to this chapter.

(3) A licensee may offer lines of credit not exceeding $25,000 and may charge, contract for, and receive interest charges and other charges pursuant to s. 516.031, except that a licensee may not offer a credit card.

(4) This chapter does not apply to any person who does business under, and as permitted by, any law of this state or of the United States relating to banks, savings banks, trust companies, building and loan associations, credit unions, or industrial loan and investment companies. This chapter also does not apply to title loans as defined in 1s. 538.03(1)(i) or pawns as defined in s. 538.03(1)(d). A pawnbroker may not be licensed to transact business under this chapter.

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And even better....

Title XXXIII

REGULATION OF TRADE, COMMERCE, INVESTMENTS, AND SOLICITATIONS

Chapter 516

CONSUMER FINANCE

View Entire Chapter

516.031 Finance charge; maximum rates.--

(1) INTEREST RATES.--Every licensee may lend any sum of money not exceeding $25,000. A licensee may not take a security interest secured by land on any loan less than $1,000. The licensee may charge, contract for, and receive thereon interest charges as provided and authorized by this section. The maximum interest rate shall be 30 percent per annum, computed on the first $2,000 of the principal amount as computed from time to time; 24 percent per annum on that part of the principal amount as computed from time to time exceeding $2,000 and not exceeding $3,000; and 18 percent per annum on that part of the principal amount as computed from time to time exceeding $3,000 and not exceeding $25,000. The original principal amount as used in this section shall be the same amount as the amount financed as defined by the federal Truth in Lending Act and Regulation Z of the Board of Governors of the Federal Reserve System. In determining compliance with the statutory maximum interest and finance charges set forth herein, the computations utilized shall be simple interest and not add-on interest or any other computations. When two or more interest rates are to be applied to the principal amount of a loan, the licensee may charge, contract for, and receive interest at that single annual percentage rate which if applied according to the actuarial method to each of the scheduled periodic balances of principal would produce at maturity the same total amount of interest as would result from the application of the two or more rates otherwise permitted, based upon the assumption that all payments are made as agreed.

(2) ANNUAL PERCENTAGE RATE UNDER FEDERAL TRUTH IN LENDING ACT.--The annual percentage rate of finance charge which may be contracted for and received under any loan contract made by a licensee under this chapter may equal, but not exceed, the annual percentage rate which must be computed and disclosed as required by the federal Truth in Lending Act and Regulation Z of the Board of Governors of the Federal Reserve System. The maximum annual percentage rate of finance charge which may be contracted for and received is 12 times the maximum monthly rate, and the maximum monthly rate shall be computed on the basis of one-twelfth of the annual rate for each full month. The commission shall by rule establish the rate for each day in a fraction of a month when the period for which the charge is computed is more or less than 1 month.

(3) OTHER CHARGES.--

(a) In addition to the interest, delinquency, and insurance charges herein provided for, no further or other charges or amount whatsoever for any examination, service, commission, or other thing or otherwise shall be directly or indirectly charged, contracted for, or received as a condition to the grant of a loan, except:

1. An amount not to exceed $10 to reimburse a portion of the costs for investigating the character and credit of the person applying for the loan;

2. An annual fee of $25 on the anniversary date of each line-of-credit account;

3. Charges paid for brokerage fee on a loan or line of credit of more than $10,000, title insurance, and the appraisal of real property offered as security when paid to a third party and supported by an actual expenditure;

4. Intangible personal property tax on the loan note or obligation when secured by a lien on real property;

5. The documentary excise tax and lawful fees, if any, actually and necessarily paid out by the licensee to any public officer for filing, recording, or releasing in any public office any instrument securing the loan, which fees may be collected when the loan is made or at any time thereafter;

6. The premium payable for any insurance in lieu of perfecting any security interest otherwise required by the licensee in connection with the loan, if the premium does not exceed the fees which would otherwise be payable, which premium may be collected when the loan is made or at any time thereafter;

7. Actual and reasonable attorney's fees and court costs as determined by the court in which suit is filed;

8. Actual and commercially reasonable expenses of repossession, storing, repairing and placing in condition for sale, and selling of any property pledged as security; or

9. A delinquency charge not to exceed $10 for each payment in default for a period of not less than 10 days, if the charge is agreed upon, in writing, between the parties before imposing the charge.

Any charges, including interest, in excess of the combined total of all charges authorized and permitted by this chapter constitute a violation of chapter 687 governing interest and usury, and the penalties of that chapter apply. In the event of a bona fide error, the licensee shall refund or credit the borrower with the amount of the overcharge immediately but within 20 days from the discovery of such error.

(B) Notwithstanding the provisions of paragraph (a), any lender of money who receives a check, draft, negotiable order of withdrawal, or like instrument drawn on a bank or other depository institution, which instrument is given by a borrower as full or partial repayment of a loan, may, if such instrument is not paid or is dishonored by such institution, make and collect from the borrower a bad check charge of not more than the greater of $20 or an amount equal to the actual charge made to the lender by the depository institution for the return of the unpaid or dishonored instrument.

(4) DIVIDED LOANS.--No licensee shall induce or permit any borrower to split up or divide any loan. No licensee shall induce or permit any person, or any husband and wife, jointly or severally, to become obligated to the licensee, directly or contingently or both, under more than one contract of loan at the same time, for the purpose, or with the result, of obtaining a greater finance charge than would otherwise be permitted by this section.

(5) UNPAID INTEREST UPON REFINANCING.--If all or part of the consideration for a new loan contract is the unpaid principal balance of a prior loan with the licensee, the principal amount payable under the new loan contract may include not more than 60 days' unpaid interest accrued on the prior loan.

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