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Is plaintiffs evidence/affidavit insufficient?


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Hello, and an a priori thanks to everyone for this superb web site. Have been studying things here for a while. But, as a newbie, would like to make sure that I am reaching right conclusions.

Answering the Admin's Questions should provide background, my questions follow later:

1. Being sued by a JDB who purchased the debt, in Florida, small claims court.

2. For $1400 + costs + fees + prejudgement interest (all unspecified amounts)

3. OC was a credit card company/bank (a VISA card), not the plantiff

4. & 5. Was served, at home, by a Sheriff's Deputy

6. The JDB sent me letters which I, unfortunately, ignored

7. I'm in Florida

8. Don't know exact date of last payment. Only one I have record of was in June 2003, but there may have been a few since then. None since early 2005 or maybe earlier. All were to the OC, though.

9. Stauts of case? We have a pre-trial hearing/mediation in late October.

10. & 11. Never disputed, never DV'd (yes, I know, now, from reading this forum that I should have).

12. Summons does not SEEM to require a response, but does state that any counterclaim must be filed at least 5 days prior to the pre-trial conference. Court Clerk said by phone that I can answer if I want to, but won't loose by default in small claims if I don't. He said it is not like Circuit Civil court. This is an important factor in my strategy, below. Fl. Small Claims rules don't even mention replying to a complaint.

13. Evidence attached to my copy of the summons is the pleading, and an affidavit of an employee of the JDB (NOT the OC) stating that, in addition to the usual crap (he is over 18, authorized, maintains books of JDB, etc.):

He has reviewed the books of the JDB with respect to my indebtedness and they reflect that I have an outstanding balance of $1400

"The account originated with the assignor named above and was on sold, transferred, and set over [sic]" to the JDB ***NOTE that the date of sale of the debt to the JDB is missing***

That the JDB has full power and authority to do and perform, all acts for collection, etc.

There were no uncredited payments

That a copy of the statement of account is attached here to as Exhibit A, and remains unpaid. ***Note that my served copy of the complaint and Affidavit do not have any Exhibits attached. Further, the Court Clerk said by phone that their computer system shows no Exhibits attached either***

14. SOL on the debt is probably 5 years in Florida, if I understand what I have read on this and other forums correctly, as it is a VISA card, not a store card.

My Proposed Strategy and Questions:

1. Get my fanny down to the court house and get copies of everything in the file to make SURE that the JDB/Plaintiff did not attach the Exhibit to the Affidavit.

2. If they failed to attach any proof that I owe them anything, then I need to determine absolutely whether or not I need to formally file an answer in a Florida Small Claims action within the 20 day limit, after service, that a normal Circuit Civil action has to be answered in. That was a lousy sentence, sorry, but you get the idea.

3. If it is really true that I don't have to answer in 20 days in small claims, I will probably hold off until the 5-days-before-pre-trial deadline, to avoid letting the plaintiff know that I plan to deny the claim. On the other hand, if I have to answer sooner to insure that I don't default, then, of course, I will.

4. In either case, will keep a low, polite, and gentle profile, just denying the plaintiff's claims, and requesting strict proof thereof. I won't tip my hand that I am preparing a solid defense by studying case law, "Sheppardizing" the cases, and preparing briefs and a case book for the judge (a binder with copies of the cases to hand to the judge if he wants to see them). Save that surprise for the JDB's attorney in court.

Your comments and suggestions on my strategy are solicited and welcome.

Now, if this works, I'm concerned about what to tell the judge at the pre-trial if he actually asks me "Is the debt yours?" or "Did you have a credit card issued by XYZ and use it or incur this debt?" I don't want to admit it, don't want to look like I'm dancing around to avoid telling the truth, and don't want to commit perjury either. I hear that they are pretty informal at small claims court and am concerned that, in order to get to the heart of the matter, the judge might just ask such a question directly.

If they really did not attach anything to an affidavit that is from their own guy is this really a big break for me? Don't they have to prove that the account with the OC actually existed and that I used it to rack up the debt that they bought? I mean that they could easily provide an affidavit from their own employee stating that virtually anyone owes them money on some, unproven account they claim to have bought. Right?

Thanks in advance.

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bump . . . Please, I really need to know what to do about this.

Can they introduce the so-called "statement of account," Exhibit A, at a later date? For example just before, or even at, the pre-trial conference?

Must the judge, in Florida Small Claims, adhere to the same standards of evidence that a judge would in Circuit Court? Does the plaintiff need to prove the whole chain of custody of the records? Must the custodian of the records appear in Small Claims? Or, in Small Claims, is it sufficient just for them to say "we have this account that the defendant owes," and thus shift the burden of proof on to me?

If the judge is too relaxed about the rules of evidence, chain of custody, etc. is there any way to appeal to Circuit. I sure don't want to take it to County court because that is the same judge!

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