Fla PreTrial This Thurs!! Waving White Flag!!

[Torio]

Hello all. My first post, but I feel like I know many of you (FlaLawyer, Nascar, MG05, TrueQ, and even JohnnyG and David9041, and many others I can't think of at the moment. I thought I was on top of things having spent countless hours learning so much from this site, but today I realize that I haven"t a clue.

I've read the Fl Rules of Civ Proc and the Fl Small Claim Rules, my local court's rules (Bay County, Fl), and have done about a bazillion google searches. All the while believing that in Florida, I had till the PreTrial Conf -May 6th -aka THIS THURSDAY!!!!! to draft the Answer, Motions, and Pleadings.

Background: Husband's acct-helping him. Collection Atty-Zakheim & Associates (same as JohnnyG), Plaintiff/OC-Cap 1, C Card amt-$4200. Nope, never DV'd. Never spoke with or corresponded w/Zakheim in any manner. Served properly. SoL not an option (not even under Virginia SoL). **More details if anyone willing to help.**

Started to write today and suddenly realize I don't even know where to begin or if I even should. Have soo much info swimming around my brain that I"m completely lost. In hindsight, I spent too much time on things like whether the CAs documents matched up with the Civ P/Sm Cl Rules, attorney"s "Complaint" vs Rules "Statement of Claim", and Nonlawyer Representative (so I could help hubby-haha).

Anyhooooo, anyone willing to offer advice? I would greatly appreciate your comments on whether or not I've completely screwed up and if not, a nudge (or push as the case may be) in the right direction.

[trueq]

find a similar case where a pre-trial conference report was filed and copy the parts you need.

don't reinvent the wheel.

Start by doing a case search where a case went all the way...default judgment cases will not help you.

[FlaLawyer]

In Florida Small Claims no defensive pleading is required. However, it is not uncommon for defense counsel to bring an Answer with Affirmative Defenses and Jury Demand to the pretrial with copies for the court and opposing counsel.

If you want arbitration, file your motion to stay and to compel arbitration instead.

[Torio]

Thanks for responding TrueQ.

If I understand what you're suggesting, there are reports filed at the courthouse that "summarize" pre-trial conferences and I should use those to see what others did in similar cases?

And what do you mean by a case that "went all the way"?

[Torio]

FlaLawyer, thanks to you too!

So, you're saying I haven't missed the boat? I can still bring Answer w/Defenses to Pre-Trial? If so, this is GREAT news. This is the premise I was operating under based on the Small Claim Rules but read something else somewhere today and thought I had completely missed the window to file an Answer.

If I bring them on Thurs., do I file them right before the hearing? or after? Atty is appearing by telephone.

Also, if I attend w/my husband as a "NonLawyer Representative," I know that I have to put it in writing and have full authority to settle, but is there a specific form I need or a particular format to follow?

Thanks so much!!!!!!

[Torio]

FlaLawyer, regarding your reference to Arbitration.... I know that you and TrueQ are the experts on this subject and I have the utmost respect for you both, but it scares the heck out of me. I'm not sure I have the b*lls or brains to see it through. Given what you know about our case so far, is this likely one of the only good options we have?

[FlaLawyer]

Answer, Affirmative Defense, and Jury Demand. You can file the originals with the clerk and bring copies for the judge and opposing counsel. Make sure you tell the judge you want a jury. You can waive the right to jury later if you change your mind.

If it is an OC case, then they usually file an MSJ that may be tough to get around. Also, the OC does not always have the evidentiary problems seen with JDBs.

[Torio]

Thank you so much FlaLawyer. I can't tell you how much I appreciate your time, advice and support.

Regarding OC and evidentiary matter.... CA did not attach an affadavit from Cap1 employee or any evidence of relationship between them and Cap1.

They did provide copies of 3 Cap1 statements (not good, I know), 2 computer printouts, and generic Customer Agreement dated 2002. (We had no open c cards in 02 and I have seen this point argued successfully elsewhere.) Also, Statements and Summons are in husband's middle name only (not legal name).

Fom your experience, are any of these valid/worthwhile defenses? And, if so, just to be clear.....I would include them in Answer/Affirmative Defenses and NOT in a Motion to Dismiss, right??

And, I will include Demand for Jury Trial in Answer and of course Certificate of Service. Anthing else you feel may be helpful, please share. Thank you again. You're a lifesaver!!!!

[FlaLawyer]

When you are at the pretrial conference make sure you tell the judge you want a jury trial if you are seeking a jury.

[Torio]

Thanks, FlaLawyer. I did read your posts carefully and understand that I need to make the jury demand both verbally to the judge and in writing via the answer.

Anything else in my post you can comment on? I feel like you're getting tired of me but, I really am desperate for help. I've spent so much time on this and as I stated in my first post, I'm just really confused now. I have tried to convey how extremely grateful I am for your input.

I am just looking for feedback of what I'm planning and some direction. I know that all of you do this just to help others so maybe someone else would be willing to chime in and give FlaLawyer a break from me.

[Tigerfan]

Hi Torio

I'm just as clueless as you are when it comes to defending myself in the Summons/Pretrial Conf. I was served on Friday night and have a court date set for the 19th. I see everyone talking about filling a answer to the summons but how do you do that? I dont have anything on mine to sign or answer just a date and time to show up to court. Like you I've done countless google searches and research only to read mixed advice. Please let me know how your court date goes as I'm also ready to just throw in the towel and wav the white flag Good Luck

[Torio]

Hey Tigerfan. Thanks for your support!

I can tell you what little I know but it's a bit of "the blind leading the blind!!" Anyone reading, PLEASE correct any misstatements on my part!!!

There won't be anything to sign or answer in your Summons/Notice to Appear. Your "Answer" is a document that you prepare that addresses (answers) the plaintiff's Complaint (or Statement of Claim). In my Summons there are 2 main complaints: Count I-Breach of Credit Card Agreement with 7 statements (averments) listed below it and Count II-Account Stated with statements 8 through 11. In your Answer, you will admit or deny these statements. Following that, in the same document, you will list your Affirmative Defenses. These defenses are the reasons you believe that the plaintiff should not be entitled to collect the monies they are suing you for. There are lots of general reasons (defenses) and then some that may be specific to your case. And that's just for starters.......

You should probably start a different thread and post the details specific to your case, then others will know best how to help you. I see you're also in Florida which is important for them to know. Provide the plaintiff's name, type and amount of debt, activity so far - did you get a letter previously from the collector and if so did you respond with a Debt Validation letter? Have you spoken to or corresponded w/them at all? Are there circumstances that are unique to your situation that might be relevant?

I hope this helps you in some way. Good luck to you too!!!

[FlaLawyer]

Make sure you decide if you want arbitration before your pretrial conference. If you so must file a motion to stay case and to compel arbitration instead of filing your answer. Contact Trueq or MG05 concerning the arbitration process with Cap 1.

[Torio]

but as I said in an earlier post, Arbitration scares the heck out of me. And after having read the post below from MG05, I'm sure that's not the route I'm going to pursue.

Recent post from MG05 about Arbitration......."I don't know about the rest of you on this site but you have got to invest lots of time reading and absorbing this stuff. I warn everyone that if you don't have the basics of consumer law, pleadings, motions, affirmative defenses and so forth down do not attempt to arbitrate ... you will get your butt handed to you. I have literally studied almost every night since September 2009 for an hour or two because of my own situations and trying to help some friends. I speak almost daily with a couple of people on this site and we bounce ideas off each other. If your overwhelmed with this … and it is easy to get that way … DO NOT arbitrate. The stakes in court are high but in arbitration you could get eaten with lots of fees and added attorneys costs if you lose. Only one company has an agreement that protects you to an extent … but every other company and agreement the loser in arbitration could get stuck with the entire bill. Not trying to scare anyone but keeping it real … if you don’t want to learn the system and you don’t have an attorney please stay out of arbitration because you will lose if you don't know what you are doing."

(Sorry-don't know how to copy the actual post)

I wish I was further along in this process and as knowledgeable as many of you are, but I'm definitely a "newbie" and am just going to have to present the best case I can and hope the CA goes away because s/he's had a good day w/default judgments. I know my chances aren't very good but I posted in the hopes of getting some clarification (which you helped me with) and some advice on basic defenses relevant to my case.

I'm still asking for help if anyone has the time. Will be in court in less than 36 hours now.