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motion for summary judgement- florida

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My mother got a Motion for Summary Judgement in the mail today, from an apparent lawsuit from Citibank (but I think its from a third party debt collector--not sure). I really don't even know how this case has been progressing because she hasn't been opening her mail etc due to being sick. I doubt she has responded to any of this stuff. I am trying to help her because it seems that this can have scary repercussions and she thinks just ignoring it will make it go away/somehow go in her favor and I know this is not the case.

My questions are, if they have a judgement against her what can happen? Can they take her house or garnish her wages? She lives in Florida.

I would like to help her send in some sort of response. Is it too late for that? I have no idea how to proceed. It seems this is very much at the end and it might be too late to help her. What, if anything, can be done at this point? I have read some stuff on here about Arbitration but is it too late for that? I see here in the letter that it says something about "Defendant has admitted the allegations contained in Plaintiff's Complaint, An admission in an answer binds the party and no proof is required." I hope she really did not admit it and that she just didn't respond? If she did admit it is there no hope for her? :confused: Any help would be appreciated. Thanks.

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Read Florida's Court Rules of Civil Procedure and find out what the rule is concerning service of a summons (how it must be served). Then I'd go to the courthouse and look in the file. See what they state in the "proof of service". My point is...if your mom was never served or improperly served you can get the judgment vacated.

Next see what the rules state about vacating a judgment. You only have a certain amount of time to act upon that. Once that window passes you would probably have to appeal the case.

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If she has an open bank account, might be a good idea to close it ASAP.

And I don't believe the house is any danger....not in Florida....they do have a Homestead Act....plus, unsecured CC judgments don't as a rule, involve going after homes.

Edited by LearningasIgo

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Good to know the house is not in danger. I will try to get a look at the file and see what has been going on. Is there a window involved in responding to the motion? 30 days? 10 days? Is one even given time to respond?

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Is there a window involved in responding to the motion? 30 days? 10 days? Is one even given time to respond?

To respond to the judgment? Yes...check your court rules about judgments. In my state one has 10 days to file a Motion to Vacate.

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There should be a hearing date for the MSJ: look at the docs what is the hearing date.

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Adsoft is right. I got ahead of myself. You can write an opposition to the MSJ...reasons why the MSJ should not be granted. Again check to see how your mom was served...if at all. If the service was improper...that can be a reason to oppose MSJ.

If you want to make sure that Citibank is the Plaintiff...pull your mom's credit report. If Citi no longer owns the debt...the tradeline will read "sold/transferred". If it simply states "charged-off" then Citi still owns it and is the Plaintiff.

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Adsoft is right. I got ahead of myself. You can write an opposition to the MSJ...reasons why the MSJ should not be granted. Again check to see how your mom was served...if at all. If the service was improper...that can be a reason to oppose MSJ.

If you want to make sure that Citibank is the Plaintiff...pull your mom's credit report. If Citi no longer owns the debt...the tradeline will read "sold/transferred". If it simply states "charged-off" then Citi still owns it and is the Plaintiff.

She said she had been served and sent in a response saying "That it wasn't her intention to not pay, but had fallen ill and didn't have the funds." Something along those lines. I talked to her and she doesn't really want to spend any time to do anything about it or address it all in any way. I don't have the time nor expertise to deal with this, so I gave her the name of a pro bono laywer in the area that deals with issues like these (along with all of the helpful information I found here and other sites) and she didn't care for the information. You can't help someone who doesn't want to help themselves. She is a grown woman and unfortunately I will have to let her deal (or not deal) with this all by herself. Thanks for all of your advice.

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She said she had been served and sent in a response saying "That it wasn't her intention to not pay, but had fallen ill and didn't have the funds." Something along those lines. I talked to her and she doesn't really want to spend any time to do anything about it or address it all in any way. I don't have the time nor expertise to deal with this, so I gave her the name of a pro bono laywer in the area that deals with issues like these (along with all of the helpful information I found here and other sites) and she didn't care for the information. You can't help someone who doesn't want to help themselves. She is a grown woman and unfortunately I will have to let her deal (or not deal) with this all by herself. Thanks for all of your advice.

I don't know what the laws are in FL regarding the enforcement of judgments...but if your mom owns her home did it not bother her that a judgment could mean a lien on her home?

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Appears they took her letter as an answer to the complaint and are now moving for SJ based on her " can't pay" plea.

Her house is probably safe. As far as bank accounts, you may want to ask a lawyer.

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Guest usctrojanalum

Yep, it looks like they are motioning for a summary judgment because she basically admitted she owed the debt in her answer. To be honest, I am not sure what can be done at this point if anything.

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My husband used this form for a credit card Motion for Summary Judgement in FL civil court.

IN THE COUNTY COURT FOR THE 11TH

JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE

COUNTY, FLORIDA

CASE NUMBER: xx-xxxxx CC xx

DISCOVER BANK

Plaintiff,

vs.

xxxxxxxxxxxxxxx

Defendant.

___________________/

OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Comes now the defendant, xxxxxx xxxxx, pro se, and files Opposition to this Motion for Summary Judgment in response to Motion for Summary Judgment filed herein by Plaintiff, Discover Bank, as follows:

1. Defendant argues the Plaintiff has not attached a copy of the account, showing items, time of accrual of each, and amount of each, as required, pursuant to Fla.R.Civ.P form 1.932 for open account. “An itemized copy of the account must be attached to the complaint to state a valid claim; a statement of a lump sum balance dues is insufficient.” H & H Design Builders, Inc v. Travelers’ Indemnity Co., 639 So.2d 697 (Fla. App. 5 Dist. 1994)

2. Defendant argues the Plaintiff has not attached a copy of the account, showing items, time of accrual of each, and amount of each, as required, pursuant to Fla.R.Civ.P form 1.933 for account stated.

3. Defendant argues no copy of the original contract signed by both parties has been admitted into evidence for an open account. “One party cannot unilaterally create a liability on an open account when no contract (either oral or written) exists out of which a debtor-creditor relationship could arise.” Cherokee Oil Co. v. Union Oil Co. of California, 706 F.Supp. 826 (M.D. Fla. 1989) affirmed 901 F.2d 1114.

4. Defendant argues no copy of the original contract signed by both parties has been admitted into evidence for account stated. “Failure to respond to demand for payment does not create obligation for account stated absent contractual agreement creating such liability.” Page Avjet Corp. v. Cosgrove Aircraft Sers., Inc. 546 So. 2dd 16, 18 (Fla. 3d DCA 1989). “Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.” Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. App. 2 Dist. 1975)

5. Defendant argues the affidavit attached is hearsay, as the affiant is an employee of DFS Services LLC, and not a direct employee of Discover Bank, the plaintiff, and is inadmissible as evidence due to having no foundation as no detailed accounts accompanied the affidavit. The affidavit is insufficient to meet even the minimal requirements necessary for a judgment.

6. The Plaintiff has not proven ownership of the account. The Plaintiff also has the burden of proof to show this account has not been written off or bad debt insurance has not been collected.

7. The Plaintiff has not proven the right to sue in the state of Florida.

8. Court lacks subject matter jurisdiction due to Plaintiff’s pleadings being insufficient and there being no competent fact witness in the record.

Wherefore, the Defendant respectfully requests that this motion be denied and a dismissal of this complaint with prejudice be granted and filed along with any other relief this court deems just.

I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed by U. S. Mail this eighth day of September, 2010 to Zakheim & Associates, P. A., attorney for Plaintiff, 1045 S. University Dr, Ste #202, Plantation, FL 33324.

By: _______________________________

defendent

Here is the answer he gave and was given a denial of the summary judgement. It may not match her exact summons, but you can work it out.

Good luck.

Edited by BoscoMama

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