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In Florida: Got Motion and Notice of Lack of Prosecution


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Hi everyone. A while back I mentioned I had a $8000 credit card lawsuit that has been just "sitting" for over a year. Here is the major information on this.

1. I got summons 11/08 (Florida / Cap One account)

2. That same month I sent request for production of documents, pro se notice of appearance, denial of debt (sworn statement), cease telephone communication, etc.

3. About a month later (the end of 08) a got a motion from OC lawyer for enlargement of time.

4. They finally sent some of the stuff I asked for…around Jan of 2009.

5. 17 months later I get (from the Court not OC lawyer) Motion and Notice Of Lack of Prosecution.

Here is exactly what I recently got in the mail: I will follow with my key questions about it. I am new to all of this so any help / advice will be tremendously appreciated.

MOTION AND NOCE OF LACK OF PROSECUTION

PLEASE TAKE NOTICE, that it appears on the face of the record that ten (10) months has elapsed immediately preceding service of this notice since any record activity has taken place, and no stay has been issued or approved by the court, and it does not affirmatively appear from the filing of pleadings, order of court, or otherwise, that this action is being prosecuted in accordance with the Florida Rules of Civil Procedure therefore:

1. The Clerk of the Court shall give appropriate notice of these proceedings by mailing a copy hereof to counsel of record for all parties or to the parties themselves, if they are not represented by counsel. Pursuant to rule 1.420(e), if no such record activity occurs within 60 days following the service of this notice, and if no stay is issued or approved during such 60-day period, this action may be dismissed by the court on its own motion or the motion of any interested person, whether a party to the action or not.

2. The action may be dismissed after reasonable notice to the parties, unless a party shows good cause why this action should remain pending. Good cause must be shown in writing at least five (5) days prior to the hearing set in Paragraph 3.

3. If a showing of good cause is filed as provided in Paragraph 2, a hearing shall be held on Tuesday, the 24th day of August, 2010 at 9:30 A.M. before the judge at the County Courthouse (the give the address also). At this hearing will (a) determine whether good cause has in fact been shown, and (B) schedule this matter for further proceedings. ATTENDANCE AT THE ABOVE HEARING IS NOT NECESSARY IF, PURSUANT TO A SHOWING OF GOOD CAUSE, AN ORDER OF GOOD CAUSE IS PRESENTED BY THE COURT PRIOR TO THE HEARING.

Question 1: Am I understanding this Motion and Notice right? What I read (from paragraph 3) is there will not even be a hearing if the plaintiff doesn’t file something to establish good cause. Is that right?

Question 2: If the plaintiff doesn’t file anything within 60 days should I file something or just let the Court dismiss the cause on their own?

Question 3: Let’s say the plaintiff does file something and there will be a hearing and I need to show up. Any advice on what I should or should not say or do at a Lack of Prosecution Hearing?

Question 4: I owed about $8000 when the lawsuit was first filed….by the time of the Lack of Prosecution hearing it will have been almost 2 years. Will I have to pay 27% interest on top of the amount on lawsuit for all of that time? That will be another $4000+ !!! It doesn’t seem right that I would have to pay all of that interest as I haven’t done anything to stall the case.

Question 5: And this is a big one. When I first filed my response to the suit I sent a typical sworn denial letter, and asked them to validate the debt and to send me all the usual things asked for (according to this site). I, however, didn’t assert any type of “defenses” and I never asked for a jury trial, I also didn’t say anything about arbitration. (I didn’t have the credit card agreement at the time so I didn’t even know that option was available to me.) Now my question is can I still assert defenses? Can I still ask for a jury trial? And can I still “elect” arbitration?

Any help or advice on my case will be GREATLY appreciated.

Edited by GettingBackUp
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