Need Help Answering Summons in Florida

[just want out]

Received Summons toady - Being Sued by Crown Asset Mgmt. (Original Creditor - Providian)

To date - I had no contact with this party - have not contacted them and admitted to nothing. Do I answer the Summons and ask for Validation of Debt??

ANY HELP WITH RESPONDING TO THIS IG GREATLY APPRECIATED!!

Summons was delivered and signed by my boyfriend - not me -

Do I have any grounds for "improper service?"

Basic Background:

Being sued for $14,084.00. They have the date of last payment as June 18, 2003. I know "Affirmative Defense" could apply if SOL is 4 years - too many descepancies on this board as to whether Florida SOL is 4 or 5 years for CC??

There are "22" stated items - do I put an answer to each one of them?

1. This is an action for the damages that is within the jurisdiction limits of this court.

2. Defendant is resident of this County.

3. In the event this matter is resolved by way of default a reasonable attorney's fee would be $750.00.

4. Plaintiff through its assignors, at Defendant's special instance and request issued a Providian CC. Account # XXXXX to the Defendant (it says to see Exhibit "A" - there was no exhibit "A" attached.)

5. Defendant, by execution of the application and by use of the Providian credit card, have accepted the terms and conditions outlined in the card hold agreement ( Card holder agreement is attached - nothing with my name or signature.)

6. The Defendant has breached the agreement by failing to comply with the terms of the agreement.

7. Defendant caused various charges to be made through the use said card.

8. Defendant did not object to the statement.

9. Defendant owes Plaintiff the sum of $14,084.00 that is due with interest.

10. Defendant's last payment on Account XXXXX was on June 18, 2003.

11. Plaintiff has made demand upon Defendant for payment.

12. Defendant has failed and refused to pay the sum due and owing to the Plaintiff.

13. All conditions precedent to the bringing of this action have occurred.

14. Plaintiff is obligated to pay the undersigned a reasonable fee for which the defendant is liable pursuant to the cardholder agreement.

15. The defendant requested a credit card account, which is now owned by the Plaintiff, and the account was opened and the card holder agreement was sent to the Defendant.

16. Before this institution of this action Plaintiff and Defendant had a business transaction between them and they agreed to the resulting balance. (I THINK NOT!!!!)

17. Plaintiff rendered a Statement of it to Defendant and the Defendant did not object to the statement. (AGAIN - WHAT??)

18. Defendant owes Plaintiff $14,084.00 that is due with interest.

19. The Defendant received a finacial benefit, which was in fact appreciated by the Defendant.

20. The Defendant accepted the benefits.

21. By virtue of the circumstances surrounding the use of the credit card, the Defendant knowing requested the funds in issue and/or knowingly and voluntarily accepted the benefits bestowed.

22. It would be inequitable for this court to allow the Defendant to retain the benefits or to be unjustly enriched at the expense of the Plaintiff or allow the Defendants to retain value of the funds in issue without repaying the Plaintiff the same value.

[merrybucks]

You must answer the summons or they will get a default judgment. I would address each point in my answer. You probably have 20 to 30 days to answer it will say in your summons. Providian sold to Washington Mutual and their records are lacking. They probably don't have your original application or any Providian Statements, however they will be able to provide statements from Washington Mutual. When Providian was purchased the accounts were sold off to lots of different banks, that is why they don't have very good records.

[Debt Guy]

I can't see any reason service on your boyfriend would not meet FL requirements. But, to be sure, go to this link, click on your state and read away: http://www.serve-em.com/servicemap.html

FL SOL for bank credit cards is 5 years. It is 4 years for department store charge cards. It think there is a sticky from Ladynred on this matter.

I am not an expert on FL procedures. My thinking is that you do not in your ANSWER need to admit or deny all the "stated items" as you would a request for admissions.

In my opinion, your answer needs to merely state your defenses to the lawsuit.

You should expect to receive a request for admissions, interrogatories and request for documents. That will be a definitive list of issues where yo will respond to each individually.

You should go ahead and start thinking about your own discovery. If you don't know how, you can probably wait to receive their requests and use it as a go-by.

You need to go ahead and obtain a copy of the local rules of civil procedure. You might find it online at the court's web site. If not, you can obtain it from the court clerk.

Sounds like your legal training is on the skimpy side. There are some pretty good resource materials available at nolo.com.

Alternatively, you might consider trying to settle this. FL is very debtor friendly. But, judgments last a really long time.

[just want out]

I have learned a lot with my research thus far for answering my summons.

At what point can I TRY to use SOL without admitting the debt is mine? As well - how do I ask them for Discovery about the debt etc? Too many arguments about 4 or 5 year SOL in FL.

"I still have the "return to sender" request I made in Dec 2006 in attempts to have the account verified with the Creditor."

[mcb11902]

If you and your boyfriend live together, then service was good. If you don't live together and he was just visiting, then I would contest service. I would also file a motion to dismiss stating that defendant's complaint fails to state a cause of action. The motion to dismiss may or may not be set for hearing. If it is set for hearing, then you need to be prepared to argue Fla. R. Civ. P. 1.130 ATTACHING COPY OF CAUSE OF ACTION AND EXHIBITS, which states:

(a) Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.

They didn't attach Exhibit A, they didn't attach the assignment; they have no cause of action against you without proving that they have standing to sue.

It looks like they're also trying to state a cause of action for an open account. To state a cause of action for an open account, they need to attach a copy of the account showing the items, the time of accrual of each and the amount of each. This is a 4 year statute of limitations.

It also looks like they're trying to state a cause of action for account stated. The basis of an action on an account stated is the statement of the account ascertaining and fixing the sums due that constitute the debt. They haven't attached a statement of the account. This is also a 4 year statute of limitations.

It looks like they're also trying to state a cause of action for unjust enrichment which has a 4 year statute of limitations in Florida.

If they set it for hearing, you won't get it dismissed; the court will allow them to amend. But it will buy you some time (more time to learn; you're making them do more work; you put the other side on notice that you're not going to just roll over). And when and if they file an amended complaint, they should attach that documentation.

If you decide to go this route instead of answering and they set it for hearing, let me know. I have applicable case law that shows what they need to include in each cause of action. If you decide to answer, the standard answers in Florida are "admitted," "denied," or "without knowledge." And make sure you list statute of limitations as an affirmative defense. Is the party who is suing you the same party you attempted to get verification from? Or are they someone different who now has the account?

[just want out]

Thank you very much for taking the time to really read and respond to my situation!

If I may be so forward to ask for additional opinions - I would greatly appreciate it.

You talk about filing a motion to dismiss based on no cause and SOL. Do I file a motion before answering the summons? Do I answer the summons with motions attached? I just received the summons and am in my 20 day reply period.

I had prepared my "Answers" and "Defenses" can you tell me if you think this is accurate, inaccurate or just plain overkill?

GENERAL ALLEGATIONS:

ANSWERS

In response to complaint, the Defendant disputes the alleged debt, defendant denies allegation and demands strict proof thereof..

1. This is an action for the damages that is within the jurisdiction limits of this court.

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

2. Defendant is resident of this County.

Agree

3. In the event this matter is resolved by way of default a reasonable attorney's fee would be $750.00.

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.

COUNT I (Contract – Credit Card)

4. Plaintiff through its assignors, at Defendant's special instance and request issued a Providian CC. Account # XXXXXX to the Defendant. (See exhibit “A” attached hereto).

There was NO exhibit "A" attached.

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

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.

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.

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

5. Defendant, by execution of the application and by use of the Providian credit card, have accepted the terms and conditions outlined in the card hold agreement

(Card holder agreement is attached - nothing with my name or signature.)

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

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.

6. The Defendant has breached the agreement by failing to comply with the terms of the agreement.

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

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.

7. Defendant caused various charges to be made through the use said card.

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

8. Defendant did not object to the statement.

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

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

9. Defendant owes Plaintiff the sum of $14,084.00 that is due with interest.

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

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

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.

10. Defendant's last payment on Account # XXXXX was on June 18, 2003.

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

Defendant alleges that this action is time-barred by applicable statute of limitations.

11. Plaintiff has made demand upon Defendant for payment.

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

12. Defendant has failed and refused to pay the sum due and owing to the Plaintiff.

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

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

13. All conditions precedent to the bringing of this action have occurred.

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

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

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

14. Plaintiff is obligated to pay the undersigned a reasonable fee for which the defendant is liable pursuant to the cardholder agreement.

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

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

COUNT II (Account Stated)

15. The defendant requested a credit card account, which is now owned by the Plaintiff, and the account was opened and the card holder agreement was sent to the Defendant.

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

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

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

16. Before this institution of this action Plaintiff and Defendant had a business transaction between them and they agreed to the resulting balance.

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

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

17. Plaintiff rendered a Statement of it to Defendant and the Defendant did not object to the statement.

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

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

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

18. Defendant owes Plaintiff $14,084.00 that is due with interest.

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

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

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 may be entitled to receive if alleged debt could be validated.

COUNT III

19. The Defendant received a financial benefit, which was in fact appreciated by the Defendant.

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

20. The Defendant accepted the benefits.

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

21. By virtue of the circumstances surrounding the use of the credit card, the Defendant knowing requested the funds in issue and/or knowingly and voluntarily accepted the benefits bestowed.

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

22. It would be inequitable for this court to allow the Defendant to retain the benefits or to be unjustly enriched at the expense of the Plaintiff or allow the Defendants to retain value of the funds in issue without repaying the Plaintiff the same value.

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

The Defendant is at this time without knowledge or information sufficient to form a belief as to the truth of the allegation contained therein, and on that basis generally and specifically denies the allegation contained therein, and leaves the Plaintiff to provide proof. Defendant demands strict proof thereof.

DEFENSES:

As and for a First Defense

Defendant alleges that this action is time-barred by applicable statute of limitations.

As and for a Second Defense

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 Third Defense

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

I have 17 of them too long for the post but you get the idea...

AND

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

[mcb11902]

Yes, you have to do your motion to dismiss first; if you answer, the judge won't even look at your motion to dismiss and you send a signal to opposing counsel that you don't know what you're doing. You may very well not know what you're doing, but the idea is to let him think you do know what you're doing and he doesn't want to mess with you.

I wouldn't even bring in the SOL right now; that creates an issue of fact. I would just do the motion to dismiss based on the other things I mentioned. You want to come into court on the motion to dismiss and say this guy's complaint is so deficient, he can't sue me. Once the other attorney gets your motion to dismiss, he may just fold and not set the motion for hearing. And then you don't do anything. You just want to let it sit; the court will file a notice of intent to dismiss in about a year. A hearing will be set and usually the notice of intent to dismiss states that the attorney has to file a statement why the action shouldn't be dismissed and it must be filed 5 or 10 days or whatever before the hearing. Don't worry about your answer now if you're going to file the motion to dismiss.

At the very least, the assignment needs to be attached to the complaint to prove the assignee has standing to sue and you need a statement of account showing the balance they've sued for is in fact owed. Their complaint is not well drafted. There are form complaints that should have been followed.

If you want to answer instead, the answer is too wordy. Just remember, "admit," "deny" or "without knowledge."

1. Without knowledge

2. Admit

3. Without knowledge

4. Without knowledge

5. Without knowledge.

6. Without knowledge.

7. Without knowledge.

8. Without knowledge.

You get the idea; just remember if you admit or deny something, you're stuck with it. Then you need to do affirmative defenses, like statute of limitations. Just make sure the ones you choose, fit the situation. Make sure you understand them, just don't throw in boiler plate you find somewhere. You probably want to counterclaim against them too for violation of the FDCPA because they didn't respond to your request for verification (assuming the entity who is suing is the same entity you sent the request to). And then you're going to have to do discovery to get the assignment, to get a copy of the account statement, etc.

[merrybucks]

In my state you have to answer the summons first or they wil file an MSJ by default. Once you answer then you can file your motion to dismiss. Check the court rules where you live.