Any advice from the brilliant minds would be great

[gator944]

Still worrying myself silly over this. After an attempt was made to serve my wife with a summons, she went to the county courthouse and picked up the following documents. When picking them up the clerk did take her name, but advised that she would still have to be "officially served" for it to be valid.

Midland has never contacted my wife, therefore, no arrangements have ever been made as the attached complaint states. We've never heard of Midland until the process server showed up.

We were planning on going to court, but only as flies on the wall. The county clerk of court website notes the summons as "unserved". My fear is that they may have posted a legal notice in some obscure newspaper and use that as their substitute service.

Would you guys provide me with some feedback on what you would do? Should we attack this head-on and make the Attorney provide proper validation of the debt, or should we just lay low? Should we even go to court? From what I understand, before anything ever starts at the front tables in court, the attorney's call out names of defendants or goes to each person and ask if anyone has talked to them yet. If that's the case, it would make it difficult for us to remain invisible. I mean, what if they ask us who we are or have we been talked to yet, and we tell them we're just observing, can I then speak up if they try to push through a summary judgement?

If we attack it in court, I was planning to write a validation letter and hand it to the attorney (one for him to keep and one with a receipt line for him to sign for our files) and tell him he has 30 days.

Some sidebar info:

The attorney has only been a member of Florida Bar since Nov of 2006.

This attorney has about 25 other cases in this court on this day at the same time.

The debt is within SOL, but we don't have the loot to pay it.

There is less than year left on the SOL.

[gator944]

I guess my attachments were too large and didn't upload. Here's another stab at it.

[gator944]

Well you can certainly tell I'm a newby. Can't get the attachments quite right so I will type the meat of the complaint and affidavit here.

COMPLAINT:

COMPLAINT

The Plaintif, Midland Funding LLC sues the Defendant(s) Gator's Wife and alleges:

COUNT I-OPEN ACCOUNT

1. This is an action for damages which does not exceed $5000.00.

2. The Defendant made purchases of various and diverse consmer goods and/or effected cash advances through the use of his credit account obtained from the Plantiff on account number 5555555555555555.

3. Defendant has failed to pay the balance due on the account.

4. Defendant(s) owe(s) the Plaintiff $3000.00 that is due with interest according the attached account (Exhibit A).

WHEREFORE, Plaintif demands judgment against the Defendant(s) for damages of $3000.00 and any further relief this court deems just and proper.

COUNT II-ACCOUNTS STATED

5. Plaintiff repeats and realleges the allegations of paragraph 1 and 2 as if fully set forth herein.

6. Before the institution of this action, Plaintiff and Defendant had business transactions between them and on March 12, 2007, they agreed to the resulting balance.

7. Plantiff rendered a statement of account to Defendant and Defendant did not object to the statement.

8. Defendant(s) owe(s) the Plaintiff $3000.00 that is due with interest according to the attached account (Exhibit A).

WHEREFORE, Plaintiff demands judgment against the Defendant(s) for damages of $3000.00 and any further relief this court deems just and proper.

AFFIDAVIT:

After first being sworn upon oath, (Midland Employee), deposes and states as follows:

1. I am employed by Midland Credit Management, Inc., servicer of this account on behalf of Midland Funding LLC is the current owner of , and/or successor to, the obligation sued upon. I make the statements herein based upon my personal knowledge.

2. That Midland Funding LLC acquired and was assigned all right, title and interest in the defendant's ASPIRE VISA account number 5555555555555555 (Midland Credit Management, Inc. account number 5555555555) to Midland Funding LLC by its predecessor in interest.

3. My person knowledge of relevant financial information concerning Midland Credit Management, Inc.'s account number 5555555555, is: (1) defendant failed to make payments on the account and is delinquent in making the payments due and owing on the account; (2) demand has been made for defendant to make full or partial payment of the balance due on the account described above more than thirty (30) days prior to making this affidavit; (3) defendant has failed or refused to make the payments as demanded; (4) I or persons reporting to me retained counsel for the purpose of collecting the delinquent debt owed on the defendant's account on behalf of plaintiff Midland Funding LLC; and (5) there was due and owing to Midland Funding LLC the sum of $3000.00.

4. That the final statement of account reveals that the defendant owed a balance of $3000.00 on 2006-04-02; and that such balance will continue to earn interest at a rate of ____% as an annual percentage reate, until judgment is entered herein, after which interest on the unpaid balance shall accrue as set forth with the terms of the judgment.

Signed and Notorized

[debtorshusband]

We seem to be in similar situations, although 3000 miles apart. But since California courts probably operate a little differently than Florida courts, that makes it kind of hard.

First, what do you mean by "an attempt was made to serve my wife"?

They do need to serve you properly, and I understand your fear that they may try to sneak by with "sewer service."

If you can keep up to date on things through the court website, that's great. Keep a close watch. Until a proof of service is filed, any court date is likely to be continued to allow time for service. Find out from your courthouse if that's the case in Florida. Has some court date been set?

You're definitely walking a fine line between essentially performing their service for them, and making sure they don't get a default judgement against you.

Ideally, nothing will happen in the courts until you're served. Then, it's too late to write a DV letter. DV letters are in response to dunning letters from a collection agency or collection attorney, and apparently they haven't sent you any (although they may later lie and say they have.) Once served, you'll need to respond as required. In California, that's by filing formal answer or denial with the courts. (BTW, I strongly advise seeking legal counsel) You will probably need to address each point in their complaint: wife never had credit card with Plaintiff (Midland), never had any business transaction with Plaintiff, never received statement from Plaintiff, etc. At some point, the Affidavit should be attacked as hearsay: an employee of Midland can't possibly have first-hand knowledge of what went on between your wife and Aspire Visa.

As the suit winds through the court system, you will have the opportunity through Discovery to ask for proof of ownership, an accounting of the amount claimed, etc. They will send you a Request for Admissions and Interrogatories, and you will send them the same.

Some more thoughts: Although "account stated" is a common cause of action in collection cases, it's one which may be defeated against Junk Debt Buyers, since the pre-requisites are that there be a relationship, and an agreement, between the parties. Here is some info on accounts stated which I unearthed during my research; these are all Florida cases:

“Mere failure to object to an account sent by mail to one who has had no dealings with sender does not give rise to presumption of acquiescence of debt.”

C. & H. Contractors, Inc. v. McKee, 177 So.2d 851 (Fla. App. 2 Dist. 1965)

“Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.”

Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. App. 2 Dist. 1975)

“Account stated claim involves agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.” South Motor Co. of Dade County v. Accountable Const. Co., 707 So.2d 909 (Fla. App. 3 Dist. 1998)

“”Account stated” is agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.”

Nants v. F.D.I.C., 864 F.Supp. 1211 (S.D.Fla. 1994)

“There can be no liability on an account stated if there has been no mutual agreement, and mere presentation of a claim and its retention without objection does not of itself create a liability.”

Recreation Corp. of America v. Jack Drury & Associates, Inc. 235 So.2d 49 (Fla. App. 4 Dist. 1970)

“An account stated must be based on prior dealings resulting in a subsisting debt. It may not rest upon a liquidated demand.”

Nicolaysen v. Flato, 204 So.2d 547, certiorari denied 212 So.2d 867 (Fla. App. 4 Dist. 1967)

“Basic premise of an account stated action, which presupposes some indebtedness, is that the statement fixing the various sums that constitute the debt is correct and not the existence of the debt itself.”

Nicolaysen v. Flato, 204 So.2d 547, certiorari denied 212 So.2d 867 (Fla. App. 4 Dist. 1967)

Good luck.

DH

[mcb11902]

Florida Rules of Civil Procedure Form 1.932 and 1.933:

FORM 1.932. OPEN ACCOUNT

COMPLAINT

Plaintiff, A. B., sues defendant, C. D., and alleges:

1. This is an action for damages that (insert jurisdictional amount).

2. Defendant owes plaintiff $.......... that is due with interest since .....(date)....., according to the attached account.

WHEREFORE plaintiff demands judgment for damages against defendant.

NOTE: A copy of the account showing items, time of accrual of each, and amount of each must be attached.

FORM 1.933. ACCOUNT STATED

COMPLAINT

Plaintiff, A. B., sues defendant, C. D., and alleges:

1. This is an action for damages that (insert jurisdictional amount).

2. Before the institution of this action plaintiff and defendant had business transactions between them and on

.....(date)....., they agreed to the resulting balance.

3. Plaintiff rendered a statement of it to defendant, a copy being attached, and defendant did not object to the

statement.

4. Defendant owes plaintiff $.......... that is due with interest since .....(date)....., on the account.

WHEREFORE plaintiff demands judgment for damages against defendant.

NOTE: A copy of the account showing items, time of accrual of each, and amount of each must be attached.

Read the "NOTE" portion under each form.

In addition, see H & H Design Builders v. Travelers' Indemnity Company, 639 So.2d 697, "to state a valid claim on open account, claimant must attached 'itemized' copy of account."

[mcb11902]

Also, assuming you've reproduced all allegations of the complaint, they haven't established that the court has jurisdiction over you. Do you reside in Polk County?

[Methuss]

File a graduated denial answer as your first step after being served. There is a post in the forums here on how to do it. That eliminates their account stated affidavit and forces them to bring in real witnesses to testify first hand knowledge. Then you pick their witnesses apart if they even bother to show for trial.

They are hoping you don't show and can get a default. Don't make it that easy for them. Midland rarely has chain of title or any credible witness to back up their junk debt claims.

Edit> One more thing. Aspire = CompuCredit (the parent company). I've done rounds with CompuCredit before over a VISA card account I never opened. Out of the blue I get a statement from them in the mail one day for $3100. They seem to pad their income by fabricating accounts on innocent consumers and having no proof to back it...not a single sales slip...and "recreated" statement copies. Beware dealing with them. They are snakes. Make a mistake and you will get bit.

[gator944]

I was hoping for a few opinions on what my approach should be. I never dreamed I'd get this kind of help.

First, Debtorshusband, Let me thank you for all of that case law. As for "an attempt was made to serve my wife": when the Process Server showed up at our door (mid-day, I was at work)and asked for her by her maiden name, she paniced and said there was no one here by that name. When asked what her name was, she gave them, of course, her married name. The Process Server said thank you and left without it being served.

Again, the case law you provided is priceless!

MCB,

The case you referenced makes our defense virtually bullet-proof. On top of DH's "Account Stated" defenses, your case law referring to the "valid claim on open account" and the proper documentation, nails it shut. I was aware of the notes in Civil Claims Rules of Procedure, but Small Claims Rules makes no mention of this proper documentation. Does this still apply?

Yes, we do live in Polk County, so we are in the correct jurisdiction.

Methuss,

Thanks for heads up on the graduated denial answer. I was going to have everything prepared (just in case) by her court date on the 18th, and I didn't know there was one on this site.

The unserved subpeona is actually for a pretrial conference/mediation. For this a written response is not accepted by the court. The Defendant must appear, but again, she hasn't been served yet. I think we might go ahead and attack it since I'll have all of written answers in hand. We can file our responses when we go to the courthouse on the 18th. What do you guys think?

Also, upon pulling a copy of her credit report, we have found Midland Funding is reporting this on it. Any suggestions on getting this removed?

I want all of you to know how grateful I am for your help and responses. You probably think it was just a few minutes of reading and typing, but the peace of mind you have given my wife and I is immeasurable. It's people like you that make this site so incredible. Again, my humblest thanks.

Gator

[flacorps]

If they can't get the summons served, they must make a new one called an "alias" summons. If that doesn't work, they create a "pluries" summons. Their service options do not include publication ... what they can do is perform substituted service on the secretary of state, who will send CMRRR to your last known address and accept service of process on your behalf. Use the search "online sunshine" with the big G to see the Florida Statutes regarding service of process.

They're on a 120 day clock per the FRCP. If they can't serve it in that time period they need to explain to the judge why not or the case gets dismissed.

[mcb11902]

Small claims is a different animal. I honestly don't know. I do know that according to the Small Claims rules, if the claim is based on a written document, they need to attach it. Looks like they're going on a 4 year statute of limitations. You mentioned you have less than a year to go on the statute of limitations. Are you sure? When did you first go into default? Was the affidavit attached as Exhibit A?

Florida Rules of Small Claims:

Service of process shall be effected as provided by law or as provided by Florida Rule of Civil Procedure

1.070(a)–(h). Constructive service or substituted service of process may be effected as provided by law. Service of

process on Florida residents only may also be effected by certified mail, return receipt signed by the defendant, or

someone authorized to receive mail at the residence or principal place of business of the defendant. Either the clerk

or an attorney of record may mail the certified mail, the cost of which is in addition to the filing fee.

This is the pertinent portion of the Florida Rules of Civil Procedure 1.070(a)-(h) that is referenced in the Florida Rules of Court for Small Claims:

RULE 1.070. PROCESS

(a) Summons; Issuance. Upon the commencement of the action, summons or other process authorized by law shall

be issued forthwith by the clerk or judge under the clerk’s or the judge’s signature and the seal of the court and delivered

for service without praecipe.

( Service; By Whom Made. Service of process may be made by an officer authorized by law to serve process,

but the court may appoint any competent person not interested in the action to serve the process. When so appointed,

the person serving process shall make proof of service by affidavit promptly and in any event within the time during

which the person served must respond to the process. Failure to make proof of service shall not affect the validity of

the service. When any process is returned not executed or returned improperly executed for any defendant, the party

causing its issuance shall be entitled to such additional process against the unserved party as is required to effect

service.

© Service; Numerous Defendants. If there is more than 1 defendant, the clerk or judge shall issue as many

writs of process against the several defendants as may be directed by the plaintiff or the plaintiff’s attorney.

(d) Service by Publication. Service of process by publication may be made as provided by statute.

(e) Copies of Initial Pleading for Persons Served. At the time of personal service of process a copy of the initial

pleading shall be delivered to the party upon whom service is made. The date and hour of service shall be endorsed

on the original process and all copies of it by the person making the service. The party seeking to effect personal

service shall furnish the person making service with the necessary copies. When the service is made by publication,

copies of the initial pleadings shall be furnished to the clerk and mailed by the clerk with the notice of action to all

parties whose addresses are stated in the initial pleading or sworn statement.

(f) Service of Orders. If personal service of a court order is to be made, the original order shall be filed with the

clerk, who shall certify or verify a copy of it without charge. The person making service shall use the certified copy

instead of the original order in the same manner as original process in making service.

(g) Fees; Service of Pleadings. The statutory compensation for making service shall not be increased by the

simultaneous delivery or mailing of the copy of the initial pleading in conformity with this rule.

FORM 1.968 FLORIDA RULES OF CIVIL PROCEDURE FORM 1.976

(h) Pleading Basis. When service of process is to be made under statutes authorizing service on nonresidents of

Florida, it is sufficient to plead the basis for service in the language of the statute without pleading the facts

supporting service.

So, yes, they can serve you by publication. How frequently does it really happen? Not frequently. But the good news is that the court's docket is on line so you can check it.

[gator944]

Yes, the affidavit was attached as Exhibit A. The complaint only has two documents aside from the summons itself. The Complaint and the Affidavit were all that was on file.

[gator944]

Well, I chose not to do their job for them. So far, so good. The Calendar entry was for 1/18/08, but on 1/16/08 the Clerk of Courts website showed Calendar Entry Deleted. I checked the website this morning to find on 1/22/08 "Voluntary Dismissal". Another storm may be brewing, but my wife and I are going to enjoy the calm for now.

I do have the answer to the Complaint typed up and tucked away on my computer for if and when this starts to rumble again.

Thanks again for everyone's help with this!!!