FloridaGator2

WooHooo I WON!!!!!

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Well temporarily, JDB did not call in for the hearing and the Judge Denied Plantiff's motion for summary judgment and dismissed the case without prejudice.

I didn't even have to say a word and I never even filed an opposition to the Plantiff's summary judgment. I had solely just shown up to ask the judge for an extension because I was never notified of the hearing by mail.

While waiting for the judge was looking at the affirmative defenses that I had drafted over 8 months ago with this puzzled look on his face. He asked me if I worked with a lawyer previously or if I had practiced law in the past, I had told him no. He says "Sir, how did you put this all together." I said "Through extensive research your honor", He said "Very Impressive Sir, I am very impressed":Dxdancex He said that I just need to be more specific on my affirmative defenses but other than that it all looked great.

One reason I think that the JDB never called in was because I had never responded to their motion for summary judgment and figured I wouldn't show and that it would be a slam dunk for them.

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Great to see that judge had the good sense and respect for your time to rule as he did. If they are not going to even show up it kinda shows how much importance they put on that one weak case when they have thousands others, but even with that said I would assume there are a number of judges that would have probably given them another opportunity to show up.

Wonder why they didn't show, I could see them assuming you wouldn't show, but wouldn't they have had to still show up to get a judgement. The same result might have happened if both parties failed to show, I would think.

If they sue you again, make sure you file an opposition to any motion they write, then again on second thought maybe that helped you as you wrote.

In any case congratulations, hope to be in your spot one day.

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Gator, congrats!!!:D

Could you please specify your defenses and point out which laws you referred to in your case, so we can all benefit from your experience?

Thank you!

If I ever have to go through this again I will definitely have to make my affirmative defenses more specific. I think there would be some defenses I used that I would remove and add other ones.

AS A FIRST AFFIRMATIVE DEFENSE:

Plantiff has not has not completed conditions precedent to filing this lawsuit. Plaintiff did not complete the conditions precedent to filing this lawsuit as it did not meet the requirements of Florida Statute section 559.715 when it did not notify defendant of the transfer of the alleged debt via “written notice of such assignment within 30 days after the assignment.”

AS A SECOND AFFIRMATIVE DEFENSE:

JDB has not proven that they are authorized and licensed to collect claims for others in the State of Florida, or solicit the right to collect or receive payment of a claim of another.

AS A THIRD AFFIRMATIVE DEFENSE:

JDB has not proven that XXX BANK, N.A. is the real party in interest. Defense demands proof of ownership specifically that the alleged account is still the legal property of XXX BANK, N.A. with all of the original creditor’s rights and privileges intact.

AS A FOURTH AFFIRMATIVE DEFENSE:

Plaintiff’s action is barred by the statute of frauds (§725.01 Florida Statutes) that precludes actions to enforce a verbal contract for service to be performed within the space of one year, because the contract complained of contemplated Defendant would work for Plaintiff more than one year, and contract is not in writing.

AS A FIFTH AFFIRMATIVE DEFENSE:

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

Fla. Sm. Cl. R. 7050(a) provides that a case shall be commenced by filing a Statement of Claim in Concise Form, which shall inform the Defendant of the basis and the amount of the claim. If the claim is based on a written document, a copy of the material part thereof shall be attached to the Statement of Claim:

a. Plaintiff has failed to attach a credit card application, request or agreement that bears the signature of the alleged Defendant wherein he agreed to pay the original creditor.

d. Plaintiff has failed to attach a copy of the account showing items, time of accrual of each, and amount of each. See Form 1.933, Fla. R. Civ. Pro. for an account stated claim.

e. Plaintiff has failed to state facts essential to a cause of action for a credit card or other contractual debt, including the date of the alleged contract, dates and amounts of alleged charges, fees or other debts incurred under the contract and the date of the alleged payment default.

AS A SIXTH AFFIRMATIVE DEFENSE:

JDB has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

AS A SEVENTH AFFIRMATIVE DEFENSE:

Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

AS AN EIGHTH AFFIRMATIVE DEFENSE:

Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

AS A NINTH AFFIRMATIVE DEFENSE:

Plaintiff has concealed Defendant's legal arbitration right to waive Plaintiff from this court venue by not producing a signed copy of the agreement to be in breach.

AS A TENTH AFFIRMATIVE DEFENSE:

Had Defendant been properly notified of his contractual arbitration rights, this case never would have proceeded in this Venue, therefore this action is premature.

AS AN ELEVENTH AFFIRMATIVE DEFENSE:

Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

AS A TWELTH AFFIRMATIVE DEFENSE:

Defendant demands his right to a Jury Trial.

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