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JDB materially mis-quotes Fla. R. Civ. P.


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Hello all,

My JDB has sent me a notice that they are looking to subpoena my bank records.

I am sending out a motion to quash subpoena today.

I noticed that the jdb stated that per Fla. R. Civ. P., 1.351(B), an objection to the subpoena must be served within (15) days of the notice.

When I looked up the rule, it says (10) days...

What can I do with this information? I am already over the 10 days, because I assumed (15) days was accurate. I only learned about the discrepancy when I was preparing my objection.

I am sending my objection today and it will get to the court and Plaintiff after (10) days and within (15) days.

Can I attack the jdb with anything for mis-quoting this?

Seems it could be a dirty tactic for me to miss my deadline to object...

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You could turn that against them, for misleading you into filing late. If you have the letter they sent you use it as evidence.

File a Motion for dismissal on the grounds they intentionally misled you into filing late.

You could go as far as filing a Motion for sanctions for lack of candor before a tribunal, but you would have to prove they knowingly and intentionally misled you in order to get a judgment.

Do not lert them use the bona fide error in their defense, Supreme Courts have ruled that the bona fide error defense only holds ground in cases of clerical errors and not error of law.

They will try to say they made a clerical error, but your defense will be that it was done intentionally to misled you,as a least sophisticated consumer, into filing your papers late.

If they insist it was a clerical error, and they simply made a mistake, another argument you can bring up is the fact they did not perform due diligence. The fact that they are attorneys they should know that due diligence has to be performed in a law suit.

The fact that they as lawyers did not read and educate themselves on your states Rules of Trial Procedure constitutes a LACK of due diligence on their part, and they are responsible for the fact that you filed late.

If they try to put it back on your shoulders by saying you did not perform due diligence either, you counter them by showing that you did because you are the one that did go read the letter of the law, how else would you have known that their 15 day statement was untrue.

Edited by BTO429
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BTO,

Could the judge be hard-nosed, and state that a Pro Se is supposed to know the rules, as well? Hopefully, the judge would give the Defendant some leeway.

I would think that the judge could be hard-nosed, but what choice is there? If it were me, I would try it anyway and learn from the mistake. Never, ever trust those guys again. Not a single word. If they quote a deadline, confirm it independently.

On the other hand, if the judge is hard-nosed yet fair, the attorneys are going to get chewed on too.

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If they try to put it back on your shoulders by saying you did not perform due diligence either, you counter them by showing that you did because you are the one that did go read the letter of the law, how else would you have known that their 15 day statement was untrue.

Most courts go by the least sophisticated consumer rule. There fore the give pro se litigants a little leeway, but not a lawyer.

File it all the judge can do is say no, but if you do not file you definitely wont get a ruling on it.

wanna get into the federal side where the judges know more about things and give pro se litigants more room file fdcpa violations.

§ 807. False or misleading representations [15 USC 1962e]

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer. I would argue this point, I would say they misled you, intentionally, to file your paper work late.

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Thanks so much BTO429... great stuff!.. I just incorporated it into my Motion to Quash the subpoena.

At the first hearing this judge seemed fair in giving pro se some leeway on procedure. I included the false statement by the Plaintiff as the first item in support to quash subpoena. Hopefully, he sees this first and reads the rest of my reasons. The rest of my reasons are very strong.

Here's what I included about this in my Motion to Quash...

1.The Plaintiff served a “Notice of Production from Non-Parties” to the Plaintiff on August 18th, 2011. ( Exhibit 1 attached ). In this notice the Plaintiff states, “In accordance with Rule 1.351(B), Fla. R. Civ. P., any objection to production pursuant to said Rule must be served within (15) days of the date of this notice.” However, this information is false.

According to Rule 1.351(B), Fla. R. Civ. P., “If any party serves an objection to production under this rule within (10) days of service of the notice, the documents or things shall not be produced pending resolution of the objection in accordance with subdivision (d).”

The defendant moves that this is an intentional false statement of law by the Plaintiff to win judgment by misleading an unsophisticated pro se Defendant into filing a late objection.

This cannot be excused as a bona fide error, as Supreme Courts have ruled that the bona fide error defense only holds ground in cases of clerical errors and not error of law.

The Plaintiff(s) are lawyers, and as such, are aware that due diligence has to be performed in a law suit. The Defendant only learned of the false statement by the Plaintiff when reading Fla. R. Civ. P., in her preparation of objection to the subpoena.

Since, the Plaintiff either intentionally misled or failed to perform due diligence in serving their notice, they are responsible for Defendant’s objection being filed after (10) days. Furthermore, Plaintiff’s request should be denied altogether.

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