Received Summons, need to file answers

[psilo]

1. Who is suing you?

Palisades Collection LLC

2. For how much?

$10,017.15 plus interest

3. Who is the original creditor?

Discover Bank

4. How do you know you are being sued?

Served at residence on 03/16/07

5. How were you served? Were you served?

Broward Sheriff

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

Missed out on the DV letter with Palisades, but mailed a DV to each law office that has contacted me for them. Palisades then responded with a bogus affidavit. My last communication with the Law firm was 12/26/05 in which I disputed the validity of the affidavit.

7. Where do you live?

Florida

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

August of 2002

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

Listed as Open. The lawsuit was filed on 02/14/06 and the sheriff attempted to serve me on 03/07/06, which came back “Not Served”.

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

Not with the credit bureaus but I did dispute with the Law Firm that Palisades assigned.

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

Yes

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?

Yes, the summons requires me to file my answers to the complaint.

The complaint states:

1. This is an action for damages that exceeds $5,000.00, but does not exceed $15,000.00, exclusive of interest, court costs and attorney’s fees.

2. The original credit grantor established a credit card account, bearing the number [Card Number here], in the name of the defendant and issued a credit card to the defendant.

3. The credit card and the original credit card agreement (the “Agreement”) were sent to the defendant. Upon information and belief, Defendant is in possession of the original agreement. A copy of the agreement is attached and incorporated herein by reference.

4. Defendant, or others authorized by the Defendant, used the account to incur charges, thus accepting the term of the agreement and agreeing to be bound thereunder.

5. Defendant breached the agreement by failing to make payment when due.

6. Plaintiff purchased and owns the Defendant’s defaulted credit card account and succeeded to all the rights of the original credit grantor.

7. Defendant owes plaintiff $10,017.15 plus interest on the credit card account.

8. All conditions precedent to bringing this action have occurred or have been waived.

9. Plaintiff is obligated to pay its attorneys a reasonable fee for their service. The Agreement provides for the recovery of attorney’s fees.

WHEREFORE, Plaintiff demands judgment for damages, plus interest, costs and attorney’s fees.

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

They attached a photocopy of an account agreement for “Providian National Bank”. There was nothing related to Discover Bank attached.

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

4 years

So now I need to file my answers and defenses, which I am not sure on how to do.

I was also wondering about the Time frame in which I was served after the opening of the case. Almost a year has passed and if I am reading Florida Civil Rule 1.070(j) correctly, this could be dismissed.

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

If this were available to me, would I use it in my answer as a defense? Or would it be filed as a separate motion before I file my answers?

I’m sure Ill have more questions, Thanks for any input.

[wm58]

you need to read RCP and understand what to file first. Also if you have access to a law library, use that. This should have been dismissed, based on what you have said. Read all you can on how to write your answer, affirmative defense, and counterclaims.

[vialna]

you need to reply to this complaint.

here is a site that is very helpful

http://whychat.5u.com/

you need to read the florida rules of civil procedure. this shows the order things must be filed in....also there is a website for florida debtors it is

http://www.floridadebtor.com/

i would also pull all 3 hard copies of cr. reports if you havent already and see what they show...hope this helps

[mcb11902]

Any idea why the sheriff wasn't able to serve you (were you out of the state; moved and didn't notify DMV)? There was nothing between the sheriff's attempted service on 3/7/06 and then when he finally served you on 3/16/07? When was the alias summons issued? I can't remember whether it's a Florida Statute or in the Rules of Civil Procedure, but there is a provision for dismissal of the case after 1 year if there hasn't been any record activity and no good cause for non-activity can be shown. This is not an option the judge has; it's mandatory. You'd also need to do some research on what constitutes record activity and what constitutes good cause.

[mcb11902]

It's in the Rules: 1.420(e):

(e) Failure to Prosecute. All actions in which it appears on the face of the record that no activity by filing of pleadings, order of court, or otherwise has occurred for a period of 1 year shall be dismissed by the court on its own motion or on the motion of any interested person, whether a party to the action or not, after reasonable notice to the parties, unless a stipulation staying the action is approved by the court or a stay order has been filed or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending. Mere inaction for a period of less than 1 year shall not be sufficient cause for dismissal for failure to prosecute.

[marko]

You need to go to the court house and see whats in your file. They may have filed for an extension of time to serve you.

[psilo]

They filed the case on 2/14/06.

A summons was issued the same day and came back unserved on 3/9/06.

There was no activity until 1/22/07 in which they requested an extension of time.

An extension was granted on 2/2/07 and an alias summons was issued on 3/6/07.

I'm still wondering if rule 1.070(j) still applies in this case seeing that close to a year had passed before they requested the extension.

I'm having a lawyer review my case tomorrow because I'm afraid that i just can't figure this out for myself. The stress is building and I don't want to lose on some silly technicality that could arise due to my lack of understanding of the law. Please keep posting your thoughts on this matter though because this site has helped me get my life back in order. This should be the last roadblock that I am facing and wish to thank you all for the advice that has been posted since I found this site.

[MissaFraQ]

How did it go with the lawyer today? I am curious

[nascar]

here is a site that is very helpful

http://whychat.5u.com/

Seems to be lots of questionable info on this site. Be careful.

[unusualsuspect]

They were probably in danger of getting the case dropped due to lack of prosecution... check and see where this stands right now.

[psilo]

Sorry to resurrect an old post but i would like to update the current status. I responded to the complaint and denied the allegations and listed my affirmative defenses on April 2, 2007. I also filed a motion to dismiss on the service process.

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

Shortly after that that, I had moved to a new residence and never heard back from the court on my motion. Fast forward to October 10, 2008 and I receive the plaintiff's first interrogatories to defendant, plaintiff's request for production, plaintiff's first request for admissions and the plaintiff's motion for summary final judgment and attorney's fees. I know i need to respond to the interrogatories, admissions and production request but i do not know what to do about the motion for summary judgment.

Their motion follows:

COMES NOW Plaintiff, [shady JDB], by and through its undersigned attorneys, and pursuant to Rule 1.510 of the Florida Rules of Civil Procedure, respectfully moves this court to enter summary final judgment against the defendant and award reasonable attorneys fees. in support thereof, plaintiff shows that:

1. Rule 1.510© of the Florida Rules of Civil Procedure provides that “[t]he Judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law” [emphasis added].

2. Plaintiff has filed an affidavit which constitutes sufficient evidence in support of its claim of the non-existence of a genuine issue as to any material fact. Therefore, Plaintiff has sustained its burden of proof and is entitled to a summary final judgment.

3. Defendant is liable to the plaintiff in the amount of [$$$$$], plus interest.

4. The agreement filed with the courting this action as an attachment to the plaintiffs complaint contains a provision whereby plaintiff is entitled to recover attorney’s fees.

WHERFORE, plaintiff respectfully requests this court to grant its motion for summary final judgment and award attorney’s fees and costs.

Correct me if I’m wrong, but I believe I need to file an opposition to summary judgment. I will be going to the courthouse to see what this “affidavit” contains but I also have an issue with #4 of their motion [“The agreement filed with the courting this action as an attachment to the plaintiffs complaint contains a provision whereby plaintiff is entitled to recover attorney’s fees.”] as the agreement filed with the complaint is a photocopy of an account agreement for “Providian National Bank”. There was nothing related to Discover Bank attached.

So if an opposition to the motion for summary judgment is correct, could anyone give some advice in putting it together? Also, is it proper for them to file the motion for summary judgment before I have had a chance to respond to their requests? I really don’t want to lose this case without making them work for it.

I appreciate any thoughts on this

[nascar]

First, make sure you don't allow the time to lapse on the Request for Admissions.

Second, in order to properly address the MSJ, you'll need to post the relevant allegations in the Complaint and your corresponding responses in the Answer. Make sure you take out the personally identifiable information.

Third, don't cut and paste from a template and expect it to work for you. You need to target your brief specifically at your situation.

Do you have a hearing date yet?

[psilo]

I'm posting the complaint and answers with affirmative defenses below.

1. This is an action for damages that exceeds $5,000.00, but does not exceed $15,000.00, exclusive of interest, court costs and attorney’s fees.

ANS:In response to paragraph #1, Plaintiffs conclusion is not subject to admission or denial

2. The original credit grantor established a credit card account, bearing the number [Card Number here], in the name of the defendant and issued a credit card to the defendant.

ANS:In response to paragraph #2, To the extent a response is required Defendant is at this time with out knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.

3. The credit card and the original credit card agreement (the “Agreement”) were sent to the defendant. Upon information and belief, Defendant is in possession of the original agreement. A copy of the agreement is attached and incorporated herein by reference.

ANS:In response to paragraph #3, To the extent a response is required Defendant is at this time with out knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.

4. Defendant, or others authorized by the Defendant, used the account to incur charges, thus accepting the term of the agreement and agreeing to be bound thereunder.

ANS:In response to paragraph #4, To the extent a response is required Defendant is at this time with out knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof

5. Defendant breached the agreement by failing to make payment when due.

ANS:In response to paragraph #5, To the extent a response is required Defendant is at this time with out knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof

6. Plaintiff purchased and owns the Defendant’s defaulted credit card account and succeeded to all the rights of the original credit grantor.

ANS:In response to paragraph #6, Plaintiffs claims of being an assignee are unproven assumptions which Defendant denies and demands strict Proof thereof.

7. Defendant owes plaintiff [$$$$$$] plus interest on the credit card account.

ANS:In response to paragraph #7, To the extent a response is required Defendant is at this time with out knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.

8. All conditions precedent to bringing this action have occurred or have been waived.

ANS:To the extent a response is required Defendant is at this time with out knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.

9. Plaintiff is obligated to pay its attorneys a reasonable fee for their service. The Agreement provides for the recovery of attorney’s fees.

ANS:In response to paragraph #9, To the extent a response is required Defendant is at this time with out knowledge or information sufficient to form a belief as to the truth of allegations contained therein, and on that basis, general and specifically denies each and every allegation contained in the therein and leaves Plaintiff to provide strict proof.

WHEREFORE, Plaintiff demands judgment for damages, plus interest, costs and attorney’s fees.

[psilo]

II. AFFIRMITIVE DEFENSES

As and for a First Defense

1. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fails to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

As and for a Second Defense

2. Defendant alleges that this action is time-barred pursuant to F.S. 95.11(3)(k) of the laws of Florida.

As and for a Third Defense

3. Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

As and for a Fourth Defense

4. Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

As and for a Fifth Defense

5. Defendant claims a Failure of Consideration, as there has never been any exchange of any money or item of value between the plaintiff and the Defendant.

As and for a Sixth Defense

6. Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

As and for a Seventh Defense

7. Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parol Evidence Rule.

As and for an Eighth Defense

8. Plaintiff’s Complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

As and for a Ninth Defense

9. Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

As and for a Tenth Defense

10. Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

As and for an Eleventh Defense

11. The Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

As and for a Twelfth Defense

12. Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

As and for an Thirteenth Defense

13. Defendant alleges that Plaintiff's actions are precluded, whereas Plaintiff's demands for interest are usurious and violate state and federal laws.

As and for a Fourteenth Defense

14. Defendant alleges that Plaintiff or the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no law that otherwise allows them.

As and for an Fifteenth Defense

15. Defendant invokes the Doctrine of Laches as the Plaintiff or the person or entity that assigned the claim to the Plaintiff waited too long to file this lawsuit, making if difficult or impossible for the Defendant to find witnesses or evidence or that evidence necessary to provide for Defendant's defense has been lost or destroyed.

As and for a Sixteenth Defense

16. Plaintiff has no Fiduciary Duty.

As and for a Seventeenth Defense

17. Plaintiff's alleged damages are the result of acts or omissions committed by the Plaintiff.

As and for a Eighteenth Defense

18. Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

As and for a Nineteenth Defense

19. Plaintiff's alleged damages are limited to real or actual damages only.

As and for a Twentieth Defense

20. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

Wherefore, Defendant prays that Plaintiff’s Complaint be dismissed, and that the relief prayed for by the Plaintiff is denied.

I am going to the courthouse this morning to see what they have filed and to inquire on any hearing dates. I'm sorry for the length of this post but i did not want to leave anything out from my answer that may have been relevant. I'll update once i have more information.