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FL Summons, I have a few questions.


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Hello,

I've been sued for the first time and I have a few questions.

I guess first, here is my questionaire.

1. Who is suing you?

--Real Time Resolutions using a Jacksonville lawyer

2. For how much?

--$23,000

3. Who is the original creditor?

---American Liberty Mortgage

4. How do you know you are being sued?

--Summons served

5. How were you served? Were you served?

--Yes, by a cop, wife accepted

6. What was your correspondence (if any) with the people suing you before you think you were being sued?

--None

7. Where do you live?

--Tampa, FL

8. When is the last time you paid on this account?

--16 July, 2001 (according to the complaint)

9. What is the status of your case (if anything has been opened)? You can find this by a) calling the court or B) looking it up online (many states have this information posted daily).

--Haven't looked yet.

10. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

--No

11. Did you request debt validation before the suit was filed? If not, don't bother doing this now.

--No, not listed on my credit report. Although I did DV Owcen Financial when they had the loan before Real Time Resolutions.

12. Does your summons require a response? (Look hard!) If you don't get a questionnaire with your summons, you are still probably required to answer it in writing. 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?

--I must respond in writing within 20 days. (now 17)

--Failure to pay installment payment on an (equity loan) since 16 Jul 2001

--No questionaire

13. What evidence did they send with the summons? An affadavit? A statement from the OC? Anything else they attached as exhibits?

--They attached a copy of the promissary note with my signature and terms.

--Also a "Corporation Assignment of deed of trust" Washinton State

(no recording dates and a schedule A with propety address that is barley legible if not illegible)

--Also a "Washington assignment of deed of trust" From Empire Funding assigned TO: left blank

(also no recording dates but stamped by a notorary public in Georgia)

--The complaint also states they do not have any of these original documents

followed by legaleese about why they don't have them.

14. What is the SOL on the debt? To find out:

-- 5 years Florida

-- 6 years Washinton

I think I have at least two defenses:

1. Written contracts SOL is 5 years in FL where I live and where the lawsuit is filed, but 6 years in WA. which is where the transaction took place. SOL is still a few months away in WA.

2. There is no chain of debt assignment to Real Time Resolutions whose name is absent from any of the attachments.

No liens were attached to the condo according to the title search when I sold the condo in 2000, so I'm pretty sure none of the deeds were recorded (dumb bells!).

MY main question is:

Are these the only documents they can use, or can they produce other documents later on? Are they required to have original documents?

Anyone know of a link for Hillsborough county civil procedures? I can't seem to find anything on their website. I may try a paralegal if I can't find something on how to structure my response.

Quoting Divemedic "I'd rather lick a cow's rectum" than pay this CA.

I'll file bankruptcy first, which is what I almost did in 2001.

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Are these the only documents they can use, or can they produce other documents later on?

If you don't initiate discovery, they can produce anything they want, whenever they want. It's up to you to.

Are they required to have original documents

Not, necessarily; if they are shown to be accurate copies.

Anyone know of a link for Hillsborough county civil procedures?

Use Florida Rules of Civil Procedure.

I may try a paralegal if I can't find something on how to structure my response.

That would constitute UPL. No ethical paralegal should agree to draft a response to a lawsuit for you.

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The debt is actually a second mortage or promissory note for which they claim is secured by a property. The property was a condo that I sold back in 2000. Other than my main mortgage, there were no other liens on the title. Looks like they didn't record the second mortagage, or the title company screwed up.

One of the attachments to the complaint shows a Corporation Assignment of deed of trust from American Liberty (OC), to Empire Funding. but it doesn't look right because there are no recording dates on it, they're blank.

Another attachment shows a Washington assignment of deed of trust from Emprie Funding to nobody, its blank. The recording dates are also blank.

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OMG!!!!

I looked up my case and found this!

(03/05/2007 summons served on me, not listed yet)

Filing Date Party Description Text

02/22/2007 D002 ALIAS SUMMONS ISSUED

02/22/2007 D001 PLURIES SUMMONS ISSUED

02/21/2007 **General** LETTER TO CLERK FROM lawyer

07/19/2006 D001 ALIAS SUMMONS RETURN UNSERVED ON me

07/06/2006 D001 ALIAS SUMMONS ISSUED

07/05/2006 **General** LETTER TO CLERK FROM lawyer

02/06/2006 D001 SUMMONS RETURNED UNSERVED ON me

01/20/2006 P001 RECEIPT 01/20/2006 P001 CIVIL COVER SHEET

01/20/2006 P001 COMPLT/PET FILED FEE PAID

01/20/2006 D002 SUMMONS ISSUED

01/20/2006 D001 SUMMONS ISSUED

This guy has been trying to serve me since Jan 2006!!!!

I think I read this somewhere in the 10,000 posts I've read this week, but just to make sure.....

The SOL runs until I've been served RIGHT??

not when the case was filed RIGHT???

I can't find anything in the FL statues on this.

If it runs til I was served, do I need to cite a statute or case law when I

use SOL in my MTD or ANSWERS?

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SOL is tolled when the case is filed. But...

Service needs to be within 120 days, absent good cause shown for the delay.

This case perhaps should have been dismissed, and could still be dismissed if it could be shown that whatever they cited as good cause to keep the case from being dismissed for failure to serve wasn't really so.

If it were to be dismissed, it would be dismissed without prejudice. However, the dismissal would effectively be with prejudice since the SOL has run.

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Oh maaaaaan!!!!

I'm not sure why the previous attempts to serve me came back unserved. I've lived in this house for over 2 years now and my address is in the public record. It's even on my credit report which they have pulled every 6 months for a couple of years now. I haven't taken a vacation or anything, I'm pretty much a home body these days.

What would be a GOOD reason for them not to have served me?

Shouldn't the reason be in the summons? Could that be considered

an OMISSION? (I'm not even sure yet WHAT an omission is, but it sounds like one)

Sheesh, now I have alot more questions.....guess I better crank up the research time to 8hrs a night.

Maybe I could submit an MTD like this?

...heading...

COMES the defendant.........

MOTION TO DISMISS (WITH PREJUDICE?)

1. The date this case was filed by the plantiff is 6 Jan 2006, the date the defendant was served with summons is 5 Mar. 2007. The difference being 417 days, which is well past the 120 day limit for service pursuant to FS xxxxx#$*@.

2. The plantiff has stated in his own complaint that 16 AUG. 2001 is the date for cause of action. Any subsequent filing in this matter will be

time barred by the Statute of Limitations of 5 years for written contracts.

Closing........

Is this anywhere near what would work?

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Yes, I looked at that rule earlier.

I'm assuming then that the "letter to the clerk" before each summons issued would be their "excuse" as to why they should be allowed to serve me again.

02/21/2007 **General** LETTER TO CLERK FROM lawyer

07/19/2006 D001 ALIAS SUMMONS RETURN UNSERVED ON me

The period here is over 120 days, I would think they would need to dismiss the case at this point. The letter was too late. Maybe I have something here. Your right, I need to look at the letters and the case law for rule

1.070(j). Where might I look for the case law on this?

Thanks for your help. I'm starting to get very confident that I'm going to win this. This guys case is so full of holes, I'm starting to get idea's on counter claims just to make him sorry he ever heard my name!!!

Maybe I should look at the letters first.

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While I'm waiting to look at the letters on monday, I thought I'd post the actual complaint. It's word for word except for the names, dates and amounts.

R_e__ Ti_e Re_s

A foreign corporation,

Plantiff

Vs.

Me and (wrong name), his wife, (I wasn’t married at the time either)

Defendants

COMPLAINT

The plaintiff, losers INC, by and thorough its undersigned attorney, sues the defendants, me and wife, and alleges as follows:

1. This is an action for damages that exceeds $15,000

2. Plaintiff is a foreign corporation.

3. Defendants, me and wife are residents of Tampa, Hillsborough county, FL.

4. On sept , ’98, defendants me and wife executed and delivered a promissory mortgage note to OC, a copy of which is attached hereto as Exhibit A. (alleged wife never signed anything)

5. Plaintiff is the owner and holder of said note. (not proven by the attachments, nothing with plantiffs name on any of the attachments)

6. Defendants have failed to pay the installment payment due under said note on Jul ’01. on said note.

7. Defendants owe the plaintiff the principal sum of 22k that is due with interest since jun ’01.

8. Plaintiff is obligated to pay its undersigned attorney a reasonable fee for his services in this matter.

Count II

9. This is an action to reestablish a promissory mortgage note pursuant to Section 673.3091, Florida Statues.

10. On Sep ’98, Defendants me and wife, executed and delivered to plaintiff’s assignor a promissory mortgage note in the principal amount of 24k, a copy of said note being attached as Exhibit A.

11. The original promissory mortgage note was lost by plaintiff’s assignor or the plaintiff some time after sept. ’98 the exact date being unknown and the manner of loss being the inadvertent misplacement of said note by plaintiff or plaintiff’s assignor.

12. Plaintiff knows of no party other than defendants who are interested in the re-establishment of said note.

13. The plaintiff was in possession of said note and was entitled to enforce said note when loss of possession occurred. (contradicts number 11)

14. The loss of possession was not the result of the transfer or assignment of the note or a lawful seizure. (if it was misplaced, how would they know?)

15. The plaintiff cannot reasonably obtain possession of the said note because said note was inadvertently destroyed, its whereabouts cannot be determined, or it is in the wrongful possession of an unknown person.

16. The terms of said note are as stated on the copy of said note attached as exhibit A.

17. The plaintiff has the right to enforce said note by virtue of the assignment or series of assignments of said note which resulted in the plaintiff becoming the holder of said note, a copy or copies of said assignments being attached hereto as exhibit B. (nowhere on exhibit B shows the plantiffs name)

WHEREFORE, Plaintiff prays that the court will enter its order reestablishing the lost promissory mortgage note and grant such other and relief as may be just and proper.

Blowhard Attorney

By:________________

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You have an alleged wife?

Where is count 1? In order for a count 2, you have to have a count 1.

There are numerous problems with the complaint. First, where is the proof that you ever had a contract with them? Can anyone personally testify that you did? Obviously, no one can testify to the accuracy of their record keeping.

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You need to speak with a contract law attorney who specializes in UCC transactions. For the plaintiff to recover on a lost instrument, they must show proof that no one else will show up with the note and try to enforce it; or they must indemnify you against such an occurrance.

At first glance, I don't see how they can do that since they don't appear to have proof that they own it in the first place.

Anyway, this is more complicated than a creditor/debtor CFI action. I'm not sure, but I'll bet there is a Proof of Facts (POF) threshold established for this kind of action. If they know what is required and you don't, you'll be in and out of the courtroom in about 30 seconds. Don't try to handle this yourself.

Good luck!

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I may certainly need to go that route but I think it would be better to at least try and get this dismissed. I hope I have good grounds now.

I took a look at my case file downtown today.

The letters to the clerk are just re-submission's to have the summons served again. (because he had the wrong address, twice)

Letter:

Date xxx

Court xxx

Case xxx

Dear Sir,

Enclosed is an original and one copy of an Alias Summons. Please issue the Alias Summons directed to (defendant) and mail it back to me in the enclosed stamped return envelope.

The original summons was not served and should have been returned to your office by the xxxxxxxxx sheriff's department.

Signed_________________

Blowhard attorney

The second letter is basically the same thing with a different date.

Nowhere in the case file is a request for an extension of time or anything like it, nor has the court granted an extension.

Sooo, the original filing date is 417 days to the time I was served.

Rule 1.070(j)

Summons; Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading, the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period. A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1).

Kozel v.Ostendorf, 629 So.2d 817 (Fla. 1993) seems to be the case that

other cases refer to when dismissing a complaint on rule 1.070(j)

I just can't seem to find this case, but I read this opion of many that refer to Kozel v Ostendorf.

Kozel v.Ostendorf, 629 So.2d 817 (Fla. 1993

http://www.5dca.org/Opinions/Opin2006/012306/5D05-202.op.pdf

They all seem to talk about "good cause" for exceeding 120 days, and how you don't really even need a good cause if the case will be dismissed.

In the opions I read, they all seemed to have at least filed for an extension or motion or something to extend the time. They at least filed! In my case the plantiff didn't ask for an extension at all.

Well, watchyall think? Am I totally off course here or what?

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Question,

If I were to submitt an MTD before my answers, based soley on the 120 day rule of 1.070, would I waive my right to use other defenses in my ANSWERS?

Again, lemme know if I'm even on the right track here.

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Please critique my attempt at an MTD, thanks.

IN THE CIRCUIT COURT,

xxxxxxxxxx COUNTY, FLORIDA

CASE NO. xxxxxxxxxxxx

DIVISION: K

Losers, INC.

Plantiff

Vs.

Me

Defendant

MOTION TO DISMISS

Comes now defendant Me, appearing pro se, files this motion to dismiss complaint with respect to the Service Process as follows:

1. As determined from the court clerk records, the defendant was served with summons 417 days after the plaintiff filed the initial pleading.

2. In accordance with FRCP 1.070(j) If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading, the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period. A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1).

3. The plaintiff, Losers, INC. at no time filed a motion or notice for an extension of time for service, nor did the court order such an extension. As a result, the 120 day limit for service of summons was exceeded.

WHEREFORE, Defendant, me, respectfully submits that the Court should dismiss or deny the Plaintiff's complaint, filed herein Losers, Inc. The Defendant prays for Dismissal of the complaint by the Plaintiff.

By________________

Me

Xxxxx

Xxxxxx

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