Motion to dismiss denied...can another motion to dismiss be filed?

[newgirl]

Good afternoon all! If anyone is familiar w/ Florida civil law, your input would be a shining light! I received a summons from a lawyer claiming to represent FIA Card Services. There was no signed contract attached to summons. I answered the summons by filing a motion to dismiss due to failure to attach a copy of the contract. It was denied. In December 2010, I responded to the denial of motion to dismiss as follows:

"....The Defendant requests documentation of the original signed contract, documentation of all accounting and proof of ownership of the alleged debt by the Plaintiff. This comes as a result of the Plaintiff, FIA CARD SERVICES, N.A. f/k/a BANK OF AMERICA, failure to attach the documentation upon which this action is based, according to Florida Rule 1.130. ....."

Yesterday, 3-10-11, I received a "notice of filing" from the attorney that had a generic "Bank of America Cardholder Agreement" attached and nothing else, no signatures, no proof of ownership, etc.

Any suggestions on my next step or how to respond to this? I am ridiculous in thinking that I can file another motion to dismiss since the Plaintiff did not produce requested docs? Any suggestions on where to go from this point?

[Downto0]

I'm not from Florida but I'd say that it is time to sue the attorney.

In regular court the litigators will be given more leeway to correct their mistakes than in court proceeding concerning FDCPA violations. Since the attorney did belatedly come up with a contract, that issue has been rectified. There still is the issue as to whether it is the correct contract. You could file a mtd if that contract does not cover the period when the account went delinquent or, if you have submited counterclaims, you could file a msj.

The attorney, however, violated the FDCPA by attempting to collect a debt for which they had no contract. Submitting it later doesn't matter here. What matters is that the attorney did violate the FDCPA and a violation cannot be undone.

I'm going to guess that the attorney has committed more than this violation. The ones who violate, violate as if no one will hold them accountable. If you file suit against the attorney for solid violations then the attorney may send you a letter and ask that you agree to mutually dismiss each others case.

This is one of the things you can do. There are lots of things that you could possibly do but without more information than what you have posted I could only guess as to the other things.

[BV80]

Good afternoon all! If anyone is familiar w/ Florida civil law, your input would be a shining light! I received a summons from a lawyer claiming to represent FIA Card Services. There was no signed contract attached to summons. I answered the summons by filing a motion to dismiss due to failure to attach a copy of the contract. It was denied. In December 2010, I responded to the denial of motion to dismiss as follows:

"....The Defendant requests documentation of the original signed contract, documentation of all accounting and proof of ownership of the alleged debt by the Plaintiff. This comes as a result of the Plaintiff, FIA CARD SERVICES, N.A. f/k/a BANK OF AMERICA, failure to attach the documentation upon which this action is based, according to Florida Rule 1.130. ....."

Yesterday, 3-10-11, I received a "notice of filing" from the attorney that had a generic "Bank of America Cardholder Agreement" attached and nothing else, no signatures, no proof of ownership, etc.

Any suggestions on my next step or how to respond to this? I am ridiculous in thinking that I can file another motion to dismiss since the Plaintiff did not produce requested docs? Any suggestions on where to go from this point?

FIA Card Services is the servicer of BofA accounts. It appears you are being sued by the original creditor. That's why there's no proof of ownership. OCs usually don't have to prove that. Also, signed contracts are not required in credit card cases. If they provide cc statements, unless you claim ID theft, those statements are usually enough to prove the existence of an agreement between the parties.

I assume you answered the Complaint before filing a Motion to Dismiss. Make sure the cardmember they provided is dated at the time you defaulted on the card.

I suppose your next step would be discovery requests. Statements to prove the amount claimed, for instance. To be honest, OCs are hard to defeat if they have any evidence at all.

[BV80]

The attorney, however, violated the FDCPA by attempting to collect a debt for which they had no contract. Submitting it later doesn't matter here. What matters is that the attorney did violate the FDCPA and a violation cannot be undone.

Who has no contract? FIA Card Services services accounts for BofA. The poster is being sued by the OC. But even if FIA was a JDB and could not prove ownership of the debt, how did the attorney commit an FDCPA violation? I'm not saying for sure that he didn't, but what's the violation?

[Guest usctrojanalum]

They will not need to produce anything with your signature on it to prevail. The use of a credit card is acceptance of it's terms. What you want them to produce is statements, and a payment history that correlates with those statements. If they do not have at least that, you should be able to beat them. If they do have that, figure out a way to settle.

[Downto0]

Who has no contract? FIA Card Services services accounts for BofA.

According to the op, Florida requires that documentation for the action be attached to the summons. Apparently, nothing was attached. The attorney belately sent in a generic contract but only after prompting from the op.

failure to attach the documentation upon which this action is based, according to Florida Rule 1.130. ....."

To me, this would signify that the attorney goofed and only realized their mistake after the op reminded them. A mistake, one made, is still a mistake and a violation of the FDCPA.

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

The attorney was trying to collect a debt without a contract which was required to be attached to the (I assume) summons. They have now corrected this error by submitting a contract but only at the behest of the op.

The fact that the attorney has now submitted the contract on which the action is based does not erase that they originally did not.

We can assume that the OC would have the proper documentation but, under the Florida law that the op has posted, that documentation should have accompanied the summons.

In addition, statements only prove an agreement if the debtor acknowledges the receipt of those statement. There is case law.

Edited March 11, 2011 by Downto0

[BV80]

According to the op, Florida requires that documentation for the action be attached to the summons. Apparently, nothing was attached. The attorney belately sent in a generic contract but only after prompting from the op.

I understand the rule, and I agree that he should have attached the agreement with the complaint. I was referring to your statement that it's a violation of the FDCPA.

Here's a quote from the Administrator in this thread http://www.creditinfocenter.com/forums/showthread.php?t=306702:

I very rarely see a contract attached. That's what was meant by "not unusual". It's also not illegal nor unethical. It's up to you to point out the hole in their case created by this obvious lack of documentation.

He didn't comply with a rule, but there was an agreement. He just didn't supply it when he should have. It's not illegal, so I'm not sure it would qualify as an FDCPA violation.

As we've found out, not all cases will be dismissed based upon that lack of compliance alone. If there's case law to support it, that would be great. No telling how many people would then have a counterclaim.

In addition, statements only prove an agreement if the debtor acknowledges the receipt of those statement. There is case law.

You should post that case law. It would probably help out some people.

Edited March 11, 2011 by BV80

[Downto0]

http://www.sconet.state.oh.us/rod/docs/pdf/4/2004/2004-ohio-623.pdf

Truth in Lending Act, a debtor has 60 days from receipt of disputed charges to notify the creditor in writing of billing errors to preserve the debtor’s rights.” Asset claims that Proctor waived the right to dispute the balance due. We disagree. Proctor never admitted that he received periodic statements. In the request for admissions, he stated that “I received some statements, but not since 1994.” Hence, we find that there is a genuine issue of material fact on whether Proctor waived the right to challenge the balance due.

The collector here is a JDB but the point is the same. Imagine that you paid your account off and threw the account statements out with the spring cleaning then 2 years later the oc said that you owed them money.

You could not prove that you paid the account off but neither could the oc prove that you didn't. In this type of case, most courts would give the most favorable judgment possible to the non moving party.

The cases that I have read where debtors lose is where they acknowledge receiving the statements but dispute the add-on charges. I've seen several Citi cases where they produce an affidavit from one of their personnel attesting to personal knowlege along with a year's worth of statements. If the debtor does not dispute receiving the statements then the contract/agreement, is more often than not, deemed valid and the debtor loses.

I don't have a specific case for the FDCPA violation I suggested but it is a general rule with the courts that a violation cannot be undone. In the op's case, the attorney attempted to collect a debt without a contract/agreement which supports the cause of the action.

The attorney working for an oc can no doubt come up with an agreement but the fact remains that they did not even though Florida law specifically states that they must when they send a summons.

I understand that if the collector later comes up with a valid agreement that the FDCPA violation I am suggesting would probably fail. This is why I said that the agreement itself must be established as valid.

One must keep in mind that the FDCPA is an exhaustive list of possible violations. If the collector did something wrong (unclean hands) by not following established law then they possibly do not deserve favorable judgment.

You know how it goes...throw it against the wall and see if it sticks. The op is looking for suggestions...this is one - go after the attorney, the oc is hard to get.

This would not be the lonely violation to file suit upon.

Edited March 11, 2011 by Downto0

[newgirl]

Thank you all for the input. This may be redundant but when I was served, the summons had absolutely no proof to support the claim. After I responded to the denial of motion to dismiss by asking for original documentations, the attorney (who I have just found out is actually a JDB) sent a photocopy of a cardholder agreement. The tri-fold agreement that you get periodically in the mail, no name, no account number, no statements, etc. There has been no proof whatsoever. Would it be appropriate to file a motion to compel? Please excuse my ignorance. I am learning as I go and reading your posts and responses gives me hope!!

[fightemdontfold]

So can one prevail in a lawsuit against a JDB if the JDB suing them never provides any proof, is that what you are saying Downto0?? Just wanted to affirm if that was the case for future reference in my case.

And as far as the JDB not having to provide a signed contract, I have read that a few times, however I am a bit puzzled. In the opposition to my motions to dismiss in my case the JDB lawyers claimed that they were intending on providing a signed contract. Of course it has been 3 momths and they haven't provided squat. Even if they are not required, could I use that against them if they later say they don't have to.

I think it is kinda assinine that they don't have to provide that, why have a signed agreement if it doesn't have to be provided.

If its use is agreement to the terms, then they do need to provide an original terms and conditions of the card.

A motion to compel would be done after sending out discovery and then they fail to anwser it in the time required by the rules of the court. Have you sent them actual discovery requests and production of docs and request for admissions??

Photocopys are often not good enough, it might depend on the judge.

[newgirl]

I have not asked for discovery. My statement in my response was this:

"....The Defendant requests documentation of the original signed contract, documentation of all accounting and proof of ownership of the alleged debt by the Plaintiff. This comes as a result of the Plaintiff, FIA CARD SERVICES, N.A. f/k/a BANK OF AMERICA, failure to attach the documentation upon which this action is based, according to Florida Rule 1.130. ....."

3 months after I filed this answer, the JDB attorney sent the generic cardholder agreement and nothing else.

[BV80]

Downto0,

The case law you cited is great for Ohio residents. If it's not posted on this site, you should post it at the following link and label it for Ohio.

http://www.creditinfocenter.com/forums/showthread.php?t=228720

[BV80]

And as far as the JDB not having to provide a signed contract, I have read that a few times, however I am a bit puzzled. In the opposition to my motions to dismiss in my case the JDB lawyers claimed that they were intending on providing a signed contract. Of course it has been 3 momths and they haven't provided squat. Even if they are not required, could I use that against them if they later say they don't have to.

In my opinion, the reason JDB lawyers say that is because they're either not too bright, or they're hoping that the threat of producing a signed contract will cause the defendant to fold.

I think it is kinda assinine that they don't have to provide that, why have a signed agreement if it doesn't have to be provided.

You usually don't sign an agreement with a cc company. You may sign an application, but that's not the cardmember agreement, and the cardmember agreement is never signed. Also, some people apply over the phone or online. In those cases, there's not even an application with your signature.

If its use is agreement to the terms, then they do need to provide an original terms and conditions of the card.

When you say "an original terms and conditions", what do you mean?

[fightemdontfold]

If that alone was your response, you really didn't deny the debt, you just requested proof. I am not sure if that was really the best way to anwser the complaint. The anwser should be a rather simple denial of the claims. You ask for proof later on in the discovery phase. Actually your affirmative defenses would also mention that you demand proof, but the anwser itself should just deny the claims, from my research.

If it has been 3 months and they haven't tried to file for a motion for summary judgement then I guess your response hasn't made the JDB smell blood but I would be interested to see if the folks on the board here might advise that your anwser might need to be amended slightly.

[fightemdontfold]

BV80, yeah I don't want to take this thread off the topic, but yeah I am leaning toward the lawyers not being too bright and also doing all they can to not appear like doofusses after their tardiness anwsering discovery. I think my offensive nature in the early stages of the thing made them scramble, I sure as hell am going to bring it up later on if they claim they don't have to, the court might agree but I will like to hear them explain why they said that they would.

The terms and conditions would be the contract. Whatever was allegedly agreed to in the application for the alleged account.

[BV80]

I have not asked for discovery. My statement in my response was this:

"....The Defendant requests documentation of the original signed contract, documentation of all accounting and proof of ownership of the alleged debt by the Plaintiff. This comes as a result of the Plaintiff, FIA CARD SERVICES, N.A. f/k/a BANK OF AMERICA, failure to attach the documentation upon which this action is based, according to Florida Rule 1.130. ....."

3 months after I filed this answer, the JDB attorney sent the generic cardholder agreement and nothing else.

Who is named as the Plaintiff on the Complaint? Just because the attorney is also a JDB or a debt collection attorney, doesn't mean the Plaintiff is a JDB. You can also check your credit report to see what Bank of America is reporting. If their entry states "sold/transferred", then they sold the debt. If it doesn't say that, you're being sued by the original creditor.

[newgirl]

My credit report states that FIA fka BOA has charged off the debt.

[BV80]

The terms and conditions would be the contract. Whatever was allegedly agreed to in the application for the alleged account.

The problem with the terms and conditions is that they can be amended. If you've ever received those little fold-out papers with your statement, that's usually amendments to the cardmember agreement. Most cardmember agreements state that use of the card indicates your acceptance of the terms and conditions. Every time you use the card, you've agreed to the terms and conditions in that amended cardmember agreement.

The terms and conditions may have been amended since you first opened the account, and the terms and conditions on the application may no longer apply. Therefore, the creditor must present the agreement that was in effect when you defaulted on the card.

[BV80]

My credit report states that FIA fka BOA has charged off the debt.

Charged off does not mean sold. Unless it says "transferred/sold" or something to that effect, they still own the debt.

[Downto0]

the attorney (who I have just found out is actually a JDB

Things are quite a bit different since the revelation that the collector is actually a JDB. Bofa does someitmes sue but they usually wash their hands of the bad debt.

What you have then is a JDB who has bought a debt and hired an collection attorney to collect via the court system. The very first thing you should ask for is assignment. They won't have it. They'll tell you that they do, but they won't.

The problem you will be running into is that most judges will give the collection attorney a reasonable chance to collect because the attorney is a local attorney and the judge probably knows and has coffee with him. Right, the good old boy network.

You say that you answered the summons by filing a mtd. Is that it? Or did you deny the allegations in the summons? It looks like this action has been going on for at least 4 months. Is the mtd the only thing that has been ruled on? Did you have affirmative defense...counterclaims?

I would not worry a lot. If you are denying the debt, ask for assignment/contract you will win. Even if something goes wrong (fat chance), be sure to object to all the ruling you don't agree with so that you can reserve your right to appeal.

First off...does the contract have a date on it and is that date before your last delinquecy, the delinquency where you never brought the account back to date? If the date is past you last date of delinquency then it's not proper. The contract freezes at the date of last delinquency. Any contract after that is not your contract. If you cannot find a date then your argument would be that it still is not your contract because there is no discernable date which would indicate that it is. Now the JDB has the burden of proof to show that it does.

[BV80]

Things are quite a bit different since the revelation that the collector is actually a JDB. Bofa does someitmes sue but they usually wash their hands of the bad debt.

What you have then is a JDB who has bought a debt and hired an collection attorney to collect via the court system. The very first thing you should ask for is assignment. They won't have it. They'll tell you that they do, but they won't.

Just because the attorney is a debt collection attorney or a JDB does not mean he purchased the debt in this case. The poster stated that BofA's TL said "charged off". Unless it says sold or transferred, he's representing the OC.

Edited March 12, 2011 by BV80

[Downto0]

The op may only have one yearly report that is getting a little old or bofa and the new owner may not have reported the transfer...which may be a FCRA violation...unless they have not reported at all.

I'm going with the op's statement that she found out that a JDB attorney is collecting. I believe the term is a misnomer since collection attorneys are not JDB's nor JDB's collection attorneys. I haven't seen any such animal.

The way the owner of the account took 4 months to come up with a contract and never sent documentation in with the summons...sounds like a JDB to me.

[BV80]

I asked the poster to confirm the name of the Plaintiff. Also, since she's relatively new, she might be confusing a debt collection lawyer with a JDB.

[Downto0]

Yea, it took me a while to understand the basics of the credit report and I'm still learning.

[newgirl]

OK - found and reviewed my credit reports that I got back in December '10. They all say "charged off as bad debt/profit and loss write off/bad debt". on the summons, the plaintiff is listed as FIA fka BOA and the attorney is "Marcadis & Associates" in Tampa, Fl. I Googled them and, as expected, there were many complaints about this outfit. Would I be opening the proverbial can of worms if I called BOA and asked if the debt was sold? Ok ok..that might be a silly question!!!!

I never filed a denial. I immediately filed a motion to dismiss based, as a matter of law, on FL. S. 1.130. Should I file a motion to produce documents even though I asked for that in my response to the motion denying dismissal? Again, Marcadis & Assoc did send a generic cardholder agreement with no name, no account numbers, no dates, no statements of charges or payments.