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Plaintiff replied to my Affirmative Defenses, now what? Florida


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So the Plantiff has replied to my Affirmative defenses and provided 12 months of generic credit card statements and an affidavit of account. I read in the Florida Civil Rules of procedure that you can Motion to Strike at any time. Should I motion to strike now or should I wait until pre-trial hearing to see what happens and motion to strike after pre-trial?

Also when I get to the pre-trial hearing I am assuming that when I deny the debt is mine and ask for proof we will be sent into the discovery phase and at that point that is when I will send in my request for discovery, Correct?

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  • 2 weeks later...

My DH did not get a pre-trial hearing. The case was filed, an answer was sent back to the court and Zakheim, the lawyer for Discover, finally filed for MSJ and MSJ hearing has been set for two weeks from now.

Can he file anything at this time to get a pre-trial hearing? Zakheim has only supplied a copy of a statement and also a copy of an employee from DFS stating the account statement is correct.

Would it be okay if he springs his motions to strike the account stated and open account at the MSJ hearing? Should he file them immediately with the court?

Thanks all.

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File your opposition to Plaintiff's Motion for Summary Judgment and challenge each assertion made by Plaintiff in its motion also challenge Discover's Legal Standing to file suit in Florida, generic agreements not specifically identifying the Defendant are inadmissible as evidence, also the affidavit by the DFS Services LLC is inadmissible due to having no foundation, that is no detailed records to back up the Affidavit. I'm also curious whose name is on the "Affidavit?"

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  • 2 weeks later...
Anyone in Florida know if I should just wait until I hear from the court or should I file any motions?
Should I motion to strike now or should I wait until pre-trial hearing to see what happens and motion to strike after pre-trial?
My DH did not get a pre-trial hearing. The case was filed, an answer was sent back …the lawyer filed for MSJ and MSJ hearing has been set for two weeks from now. Can he file anything at this time to get a pre-trial hearing?

BoscoMama and FloridaGator2

In Florida you are not required to file an answer or engage in discovery before pretrial in small claims court. In fact the rules are set up for the Atty to ask for leave of the court to start Discovery if defendant is not represented.

In Florida Small Claims no defensive pleading is required. However, it is not uncommon for defense counsel to bring an Answer with Affirmative Defense 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.

Why not file your Answer before trial (in that scary 20 day window)?

It is not required in RCPs and is not your best tactic in FL as a newb Pro Se. Wait until pretrial conference (mediation) before you offer official answer. If not, you open the door to other issues that any experienced Atty will take advantage of – and pull you into – before you can research and prepare. You find out a lot of valuable info for your defense in mediation. IF an OC your best way to establish negotiation on any future (suitable) settlement placed on the table.

Mediation is required by most Florida courts. It is a settlement process where a neutral intermediary attempts to get the case settled. The mediator cannot make any binding decisions. If you reach a settlement, the mediator will help draft the settlement agreement. Everything at the mediation is confidential and the mediator cannot be used as a witness against you.

You will usually have an opening stage where the mediator talks about his role in the mediation. Then each party will give a statement about his or her case. After that, the mediator may go into break-out sessions known as caucusus. While in the break out section the mediator will talk to each party individually trying to work out a settlement. When the mediator discusses the case with each party she will usually discuss what is good about the case and what is bad. This can lead to the impression that the mediator is working for the other side.

I’m noticing many filing Discovery before pretrial conference and mediation here in FL – why? What is your hurry to do their job for them?

Why not find out if they even have a case first – at pretrial – find out what the trialable issues are first in pretrial mediation!

Don’t do the work for them – its in your best interest as a inexperienced Pro Se litigator to provide yourself time to defend, to negotiate - to learn. At pretrial don’t let the Atty determine or spell out all the pretrial orders for you both. Don't let Atty set a trial 30 days from now - ask for time to prepare, for discovery, admissions, interogs, hearing on trialable issues, Object to tele appearances , etc.

Why would you be surprised if Plaintiff files an SJ once your in Discovery!

The time for a 'motion to strike' is before the SJ. You need to attack the issues of controversy in any material facts.

If its a MSJ you are fighting you need to file an affidavit to create a genuine issue of material fact. Otherwise, the judge may just take the plaintiffs affidavit in support of their MSJ as the only evidence before him and grant their motion.

A JDB filing a MSJ? That is something that only happens against a pro se.

Please remember as you read suggestions here on the boards that each state has different rules of civil procedures – if you assume another will work in place of your own states – you will find this creates new issues for your own defense.

Read and learn your own states RCPs, then read your own state rules of evidence, take a look at the 'secret' Canons of judicial conduct.

Your opposition is an experienced Atty – I have been spanked more times then I care to mention – but with each I have to back-track and correct on the defense, when I should have been prepared (defend the time necessary) to negotiate or attack what material facts exist offensively.

Affirmative defenses are bound by the rest of the rules governing pleadings (R. 1.110). Since Florida is a fact pleading state you have to state facts that support the affirmative defenses. Just listing defenses will not suffice. If the Plaintiff's lawyer choses not to contest the affirmative defenses lack of specificity then they may survive.
Read Conklin v. Boyd, 189 So.2d 401 (Fla. 1st DCA 1996). It states that the only MTD that will be moot due to an answer being filed is a Motion to Dismiss for More Definite Statement. All other motions to dismiss are not moot as long as the grounds are repeated in the Answer.

Just remember, if you file a MTD directed at the Complaint and the Plaintiff files an Amended Complaint before your hearing correcting the issue, then that motion will most likely be rendered moot.

The safest route is to file you MTD then set it for hearing. That will stay the deadline for a responsive pleading in a number of cases. Review the rules of civil procedure to verify.

Call the court and add the MTC/S to the docket for that hearing time. Then send a Notice of Hearing to the court and opposing counsel. If it is not on the docket and not noticed it usually will not be heard.

Also, review the timelines for response to MSJ under the Flordia Rules of Civil Procedure. You will usually need to submit an affidavit in response to raise an issue of material fact.

Edited by FL4answer58
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Quote:

Originally Posted by BoscoMama

My DH did not get a pre-trial hearing.

Check to see if your circuit has Rules of Civil Procedure posted.

(a) MANDATORY PRETRIAL MEETING. No later than ten (10) days prior to docket sounding (or ten (10) days prior to the pretrial conference, if one is scheduled), trial counsel and all unrepresented parties shall meet together. Attendance at this meeting (in person or by telephone) is mandatory. Plaintiff's attorney (or if Plaintiff is unrepresented, Defendant's attorney) shall arrange a mutually agreeable time, date and place for this meeting. If the parties are unable to agree, counsel shall promptly notify the Court in writing and the Court will then set the time, date and place for the meeting

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Originally Posted by FloridaGator2

Anyone in Florida know if I should just wait until I hear from the court or should I file any motions?

If you know the debt is not yours and you have proof, Florida statute and constitution should be used as proof for Dismissal, so File for Dismissal. A hearing can be set for burden of proof on both parties. If yours is right then you win period. How ever if you already entered into a pre trial hearing then that is when you need to oppose.

The information is not intended to be legal advice. If you need legal advice, you should contact a lawyer through your local legal aid organization. Always talk to a competent lawyer, if you can, before taking legal action. The public service information is accurate as of the date noted in the materials. Sometimes the laws change. Most of the information provided on is specific to Florida State law.

Edited by ink
aditions
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