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Trying to stop Cap 1 SUMMARY JUDGMENT


david9041
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Trying to stop Cap 1 SUMMARY JUDGMENT , I thought that if I could Quash the Summons they would have to start over , first I filed a Motion To Quash , I thought my Motion had merit and it would be granted because the Process Server did not serve it but instead they lied on their Proof of Service .

But Cap 1 lawyer presented the false document and the Judge denied the Motion , I then filed a second Motion To Quash with proof the Process Server lied . And just now the 120 day limit expired so I filed a Third Motion , I think the Judge will grant it . But now I see that by Florida Statutes it won't help because -------------985.319 Process and service.(1) Personal appearance of any person in a hearing before the court obviates the necessity of serving process on that person. ---------------It seems to me now that they will keep going without the summons .

I keep coming up with Genuine Issues Of Material Facts , it slows them down but I need something else . The thing I think I can run with is the fact that the Cap 1 lawyer has submitted falsified documents . Florida Statutes ---------------92.525 Verification of documents; perjury by false written declaration, penalty.-------------

(2) A written declaration means the following statement: "Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true," followed by the signature of the person making the declaration, except when a verification on information or belief is permitted by law, in which case the words "to the best of my knowledge and belief" may be added. The written declaration shall be printed or typed at the end of or immediately below the document being verified and above the signature of the person making the declaration.

(3) A person who knowingly makes a false declaration under subsection (2) is guilty of the crime of perjury by false written declaration, a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The Question is will it fit , and what can I do with it ? If anyone has any ideas let me know .

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985.319 Process and service.(1) Personal appearance of any person in a hearing before the court obviates the necessity of serving process on that person.

I have only been saying this for the past 3 weeks but everyone kept insisting that I was wrong (except for merrybucks - he was the only one who agreed with me). Most states do indeed have laws that mirror this statute.

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You say some, I say most. It is really just semantics. There is no possible way to know the answer to that question without reading the statute of every state.

As far as the perjury goes, I can't see how you can trip the attorney up on perjury. Because he will just say to the best of my knowledge and belief the information in the affidavit of service is true.

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OP....what exactly is the false document the Cap1 lawyer submitted? If it is the affadavit of service, I think ualbany is correct....the lawyer is going by what the process server "told" him, and did not intentionally falsify anything himself.

Edited by bevj2
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Broke Bob , thanks ,they just sent an agreement but it has a 1005 date , the alleged account was 2003 , the Affidavit they sent with it was from a Cap1 worker in Va , I filed an objection , under oath he was insinuating that I agreed to an agreement two years before it existed . Plus he just stated a figure amount ,I requested a brake down accounting . But like I said it only slows them down , and yes I am getting ready to bail out and go the Arbitration way . Trueq is feeding me the info for that I just need more time . Thanks Trueq . In my Objection I claimed they were denying my rights to Arbitration because JAMS requests a copy of the alleged agreement with the Arbitration clause ( They Do ) What could I do about them presenting false evidence ? That has to be illegal correct Ualbany ? Give me a way that will stall them . Some kind of motion they would have to hold a hearing on ?

Trueq ,I did list that in my Arbitration complaint I can't use that CURE DEFAULT , I am still checking out the Florida equal .

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don't wait to long to pull arbitration lever.

Some judges will say you waived right to arbitration if you wait to day of SJ hearing.

You may have to defeat SJ at that point by saying they failed to answer discovery, your right to arbitrate has been denied by them hiding copy of contract, or submitting your affidavit and evidence directly disputing their affidavit and evidence!

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I have only been saying this for the past 3 weeks but everyone kept insisting that I was wrong (except for merrybucks - he was the only one who agreed with me). Most states do indeed have laws that mirror this statute.

He is citing a child deliquency statute and only applies to deliquency matters.

Instead, he should be looking at chapter 48 of the Florida Statutes, Fla. R. Civ. P. 1.070, and Fla. R. Civ. P. 1.140.

Simply showing up does not subject you to jurisdiction here in the Sunshine state as long as you follow Fla. R. Civ. P. 1.140. Failure to follow that rule will result in a waiver of several possible defenses.

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Bevj2 , I had told the lawyer in person , told them in a fax , told the Judge in the Motion , copied the Motion to the lawyers and all of this was done before they submitted it (Yes they knew ). We were out of the state , its 3 cases ,two are mine and one is my wife's , they even described me in the Proof of Service and on my wife's they stated they gave it to me . These things are the reason you hear me complain so much about the JDB's and the courts .

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Bevj2 , I had told the lawyer in person , told them in a fax , told the Judge in the Motion , copied the Motion to the lawyers and all of this was done before they submitted it (Yes they knew ). We were out of the state , its 3 cases ,two are mine and one is my wife's , they even described me in the Proof of Service and on my wife's they stated they gave it to me . These things are the reason you hear me complain so much about the JDB's and the courts .

Okay...:) However, as you stated in your first post, I'm not sure that this will be enough to get a dismissal due to the Florida statute you cited. I'm sure you've done some research for case law on this subject, did you find anything that may help you? What are your other arguments (issues of material facts) that you are considering?

One question....what happens if the judge comes back and sustains your motion to quash? Does the case get dismissed without prejudice?

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FlaLawyer , I see what you mean , I did not see that part , so am I still where I thought I was . If the Judge grants my Motion to Quash , he will then dismiss the cases ? I filed the Motion below I called it a motion to strike , right after they filed their SM, that case has been on hold since I filed it . The one I am expecting now is one of the other cases , the Judge gave them 20 days and then told me I would have 20 days

JUVENILE JUSTICE; INTERSTATE COMPACT ON JUVENILES

Date xxxx

IN THE COUNTY COURT IN THE SIXTH JUDCIAL CIRCUIT IN AND FOR THE PASCO COUNTY , FLORIDA No.__51-2009-S-C-xxxx - WS/S

CAPITAL ONE BANK

Plaintiff

Vs.

Xxxxxxxxxxxxxxxxxxxx

Defendant

MOTION TO STRIKE PLAINTIFF'S MOTION FOR SUMMARY FINAL JUDGMENT AND ATTORNEY'S FEES

COMES Now Defendant, xxxxxxxxxxxxxxxxxand files this MOTION TO STRIKE PLAINTIFF'S MOTION FOR SUMMARY FINAL JUDGMENT AND ATTORNEY'S FEES , and requests the Court to grant this motion based on facts stated below:

Reasons correspond with Plaintiffs numbered statements

1 . Plaintiff has not followed Rule 1.510© , Plaintiff has presented , Falsified Documents , Hearsay Evidence , And to the Defendant's knowledge no Affidavit's as claimed . Plaintiff has refused to answer interrogatories or admissions and has refused to furnish proper documents .

2 . There are several genuine issue's as to material fact , and Plaintiff has not sustained its burden of proof .

3 . The amount of $xxxxxxxxxxx, plus interest has not been documented , and no accounting has been stated .

4 . The Agreement filed , shows no connection to the Defendant , and it is impossible for Defendant to have agreed to the filed agreement .

Also Defendant contends Plaintiff is violating the Defendant's civil rights , prosecution without proper Service .

WHEREFORE, Defendant, xxxxxxxxxxxxxxRespectfully submits that the Court should grant the Defendant's MOTION TO STRIKE PLAINTIFF'S MOTION FOR SUMMARY FINAL JUDGMENT AND ATTORNEY'S FEES

_________________________________

Xxxxxxxxxxxxxxxxxxxx

Xxxxxxxxxxxxxxxxxxxxxx

Port Richey Fl 34668

CERTIFICATE OF SERVICE

The undersigned certifies that the above documents were served on all parties in the above cause by depositing in the U.S. Mail, postage prepaid, in an envelope addressed to : Rubin & Debski P . A , P . O . 47718 , Jacksonville , Fl 32247 Datexxxxxxxxxxxxxxxxx

__________________________

Xxxxxxxxxxxxxxxxxxxx

Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Port Richey Fl 34668

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Bevj2 , yes a poster on this site sent me some case law , real good ones , all won on appeal so I would think they will help . If the Judge sustains my motion to quash ,I don't have a clue as to what happens then , right now we have 5 active cases , and having a hard time keeping up with them . I always find lots of (issues of material facts) and I file lots of Motions , I am sure the Judge would love to give me the death penalty .

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