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Past SOL in Florida


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ok, this is a repost on my help with pre-trail conference.

So, Florida Credit Solution is the CA and the lawyer have the same address.

I do not have any proof that my last payment was in Dec 03, but I know for a fact it was(I had to explain in order to get a mortgage and called Orchard). Orchard charged off the account in Sept 04.

So this is out of SOL to sue? Someone suggest to counter sue them for that fact.

Also, I looked up the case on the clerk of court web site they had tried to serve me in June of 08 but it was returned unserved...

So any help or advice would be greatly appreciated...I have until May 20th

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The Florida Statute for Limitations 95.11 references the commencement of legal action. If they filed the lawsuit in June 08 and you are using the 5 year statute for a written contract then they commenced the legal proceeding before the expiration of the statute.

If they do not have a written contract, then it is a 4 year SOL. Always raise SOL as a defense in your answer. They would have to come up with something to prove they are within the SOL. Have you pulled a recent CR to see when your last payment was?

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If they do not have a written contract it is a definite 4 year SOL and they would be out of SOL using the dates you provided.

If you have been served then you have 20 days from the date of service to file your answer and defenses at the court and get a copy in the mail to the plaintiff. Is the plaintiff the OC or the CA? What exhibits did they attach to the complaint if any?

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Could this be a defense...if Orchard bank was so concerned collecting the debt. A. When I wrote them in 07 they basically told me it was a zero balance account that was sold. B. They just sent me a new account with a 300.00 limit. Why would they issue a new card if I owe them money or stick to the SOL? Should I DV them it is out of the 30day window..cuz the pre trial is May 20..the only evidence attached to the summons is a FDCPA paper. No copies of statements, contracts etc..

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The plantiff is CA, the only thing attached is a Notice Required by the Fair Debt Collection practices Act. Thats all.

So how do I answer the summons and what would I put in my response?

I am disputing do to SOL and no proof I owe you the debt??

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If Orchard told you it was sold then the plaintiff in the matter is a JDB. If you received a notice of pre-trial conference for May 20 then you need to go. If they have not provided a valid assignment, bill of sale or any valid evidence (certified documents) that they have the title to or the right to collect the debt (chain of custody) then they do not have standing and have not stated a cause of action.

To state a cause of action, a complaint must allege sufficient ultimate facts to show that Plaintiff is entitled to relief. (See Samuels v King Motor Co. of Ft. Lauderdale, 782 So.2d 489 (Fla. 4th DCA 2001).

Cause of action on contract accrues and statute of limitation begins to run from time of breach of the contract.” State Farm Mutual Automobile Insurance Co. v. Lee, 678 So.2d 818, Fla. 1996.

Have you checked out the Forida Debtor Board - strictly relates to Florida

http://floridadebtor.com/debtforum/index.php

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No I have not checked that out but I will. So would you suggest answering stating that they do not have proof the actually own the debt, it is out of SOL, and show a copy for Orchard letter saying it was sold.

I just do not know how to respond to this summons and what I should do.

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the pre trial is May 20..the only evidence attached to the summons is a FDCPA paper. No copies of statements, contracts etc..

When is the 20 days up to respond to the complaint? You have to respond to the complaint and show up in court on the 20th. There are stickies that can help you with your response (sample pleadings, defenses) look them over and tweak them for your situation.

Also you need to look over Florida Small Claims Rules and Florida Rules of Civil Procedure. Both documents can be found here:

http://www.floridabar.org/TFB/TFBLegalRes.nsf/d64b801203bc919485256709006a561c/e1a89a0dc5248d1785256b2f006cccee?OpenDocument

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It does not say anything about responding to the complaint...All it says on the cover sheet is This Case will not be tried at that time do not bring witnesses etc... The purpose of the hearing is to record your appearnce, to enable the court to determine the nature of the case and set the trial date.

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Read the Rules of Small Claims Court. Seems to me you need to just show up. I have been sued but not in small claims so I am unfamiliar with those rules.

I do know this you must show up on the 20th and if you are given the opportunity to speak tell the Judge something like this:

The Plaintiff’s complaint is based on an alleged credit card agreement between Defendant and Original Creditor. The Plaintiff is not a party to this relationship unless Plaintiff can establish it acquired Original Creditor's right, title, and interest in and to an alleged account between me the Defendant and Original Creditor and establishes a debtor/creditor relationship between Defendant and Original Creditor, Plaintiff and Original Creditor, and Plaintiff and the Defendant. The Plaintiff has failed to state a claim upon which relief can be granted and the claim is time-barred.

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If they cannot produce a written contract with my signature on this case, that means they are past the 4 year SOL. I know with a signed contract it goes to 5 years. How do I find out what they have, I read they attach it to the summons, and there is nothing on the summons but a FDCPA.

Should I contact the law office and tell them to go away because they are way out of SOL and they do not have a bill of sale or anythign showing they actually own it?

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When I went to small claims we had to argue all that in court. Your area may have different procedures though.

We went up to the judge's bench, got sworn in, they presented their case and I presented my defense and attacked their case and the judge ruled. All standing right there for less than 10 minutes

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It does not say anything about responding to the complaint...All it says on the cover sheet is This Case will not be tried at that time do not bring witnesses etc... The purpose of the hearing is to record your appearnce, to enable the court to determine the nature of the case and set the trial date.

No written response is needed if it is small claims. However, you do have to show up to the pretrial conference. Regardless, I still file a written answer and affirmative defenses.

Also, if you want a jury you should make a written demand pursuant to the small claims rules.

Rule 7.090

© Defensive Pleadings. Unless required by order of court, written pretrial motions and defensive pleadings

are not necessary. If filed, copies of such pleadings shall be served on all other parties to the action at or prior to the pretrial conference or within such time as the court may designate. The filing of a motion or a defensive pleading shall not excuse the personal appearance

of a party or attorney on the initial appearance

date (pretrial conference).

RULE 7.150. JURY TRIALS

Jury trials may be had upon written demand of the plaintiff at the time of the commencement of the suit, or by the defendant within 5 days after service of notice of suit or at the pretrial conference,

if any. Otherwise jury trial shall be deemed waived.

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Sobe240:

I tried to reply to your pm, but the board will not let me.

For statute of limitations look up Florida Statutes section 95.11.

Additionally, some credit cards have a choice of law provision in the contract. That may govern the limitations period. Amazingly, some of the credit card companies have used states with a shorter limitations period.

In Florida small claims some people file written responses, some don't. As the rule above states, you need only file a written jury demand. Most laypeople show up to small claims in my jurisdictions without written responses. They deny the debt and tell the judge their defenses. The judge then sets the matter for hearing before the division the case has been assigned. Regardless, be ready to argue your motion. What cause of action did the Plaintiff file against you?

We have one judge handle pretrials for all the other divisions.

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