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Sued by "assigned" OC in FL...weird, I know!


sahm1998
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This is exactly what I received as the complaint (names were changed):

In the County Court in and for, Panhandle County, Florida

Small Claims Division

Case No. (it was blank)

Dxxxxxxx Bxxx, Plaintiff

vs

sahm1998, Defendant

STATEMENT OF CLAIM

Plaintiff, Dxxxxxxx Bxxx, sues Defendant, sahm1998, and alleges:

1. That this is an action for damages that is within this Court's jurisdictional limitations.

2. Plaintiff is a foreign limited liability company authorized to do business in Florida.

3. Defendant, sahm1998, is an individual, is sui juris, and is a resident of Panhandle County, Florida.

4. The Defendant entered into a credit agreement with Dxxxxxxx Bxxx for an extension of credit.

5. The credit account number with Dxxxxxxx Bxxx was XXXXXXXXXXXXXXX.

6. The Plaintiff is the owner and holder of the debt pursuant to an assignment agreement from the original creditor, Dxxxxxxx Bxxx.

7. That all conditions precedent to the bringing of this action have been met or waived.

8. Defendant caused various charges to be made through the use of said card.

COUNT I (BREACH OF CONTRACT)

Plaintiff realleges all of the allegations set forth in paragraphs 1 - 8 above.

9. The Defendant breached the agreement referred to in paragraph 4 by failing to pay the sums of money due in accordance with the terms and conditions of that contract.

10. The Defendant owes Plaintiff the principal sum of $4xxx.xxx plus interest, and costs as a result of the Defendant=s failure to abide by the terms and conditions of the credit agreement entered into between the original creditor and Defendant.

11. Demand for payment has been made.

12. Plaintiff performed under the credit agreement by financing the purchase of goods and services by the Defendant.

13. Defendant performed by making payments toward the purchase of goods and services by the Defendant on the aforementioned credit card.

WHEREFORE, Plaintiff demands judgment for damages of $4xxx.xx against the Defendant, sahm1998, plus interest, costs and disbursements in the institution of this suit, and any other relief which this Court deems just and proper.

COUNT II (UNJUST ENRICHMENT)

Plaintiff realleges all of the allegations set forth in paragraphs 1-3 and 5-8 above.

14. The Defendant received a financial benefit, which was in fact appreciated by the Defendant.

15. The Defendant accepted the financial benefit.

16. By virtue of the circumstances surrounding the use of the credit card, the Defendant knowlingly requested the funds in issue and/or knowingly and voluntarily accepted the benefits bestowed.

17. It would be inequitable for this Court to allow the Defendant to retain the benefits or to be unjustly enriched at the expense of the Plaintiff or allow the Defendant to retain the value of the funds in issue without repaying the Plaintiff the value of same.

18. The Plaintiff has no adequate remedy at law if the relief sought is not afforded.

WHEREFORE, Plaintiff demands judgment for damages of $4xxx.xx against the Defendant, sahm1998, plus interest, costs and disbursements in the institution of this suit, and any other relief which this Court deems just and proper.

Attorney for Plaintiff

Signature of Attorney

**There were NO attachments other than a generic letter from the attorney stating he would appear via telephone for the pre-trial. My husband took service of the summons. As this was filed in small claims court, an answer is not required in Florida. Pre-trial was initially scheduled for 11/08/11, but re-scheduled for 12/06/11 (don't know why or who re-scheduled, I just received a notice in the mail that is was changed). The SOL for Florida is 4 years (or 5 years if there's a contract), but for Delaware is 3 years. I planned to show up at the pre-trial and deny (except for #4), and let them prove their case through discovery after looking at some of the excellent advice for Florida on this forum:)

I'm just wondering if I should have an answer ready to file "just in case"? Plus, the fact the complaint says that Dxxxxxxx Bxxx has an assignment agreement from the OC in paragraph 6 is a bit confusing. I have also read that unjust enrichment cannot co-exist with breach of contract? The complaint almost looks like a "copy and paste" job for a JDB? The attorney's firm is also a JDB in Florida, so it's really puzzling to me. Any thoughts?

I have checked my local clerk's records and the dismissals are either from bankruptcy or stipulated settlements by the Defendants, so, no help there because it appears that no-one in my neck of the woods is fighting these suits.

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Nothing odd about it. It's just a routine, run of the mill, JDB lawsuit. Your sure that no answer is required? If so, then time to get discovery rolling (per the court rules).

Thanks for responding Coltfan. This is not a complaint from a JDB. The OC is *Discover* Bank and the Plaintiff is *Discover* Bank, so why would they need to be 'assigned' the debt? And they are a Bank, not an LLC. It's confusing and makes me question if Discover really is the Plaintiff or the attorney's office is trying to pull a fast one. In answer to your question, according to everything I've read about Florida small claims, an answer is not required and discovery does not commence until the trialable issues are determined at the pre-trial conference.

Edited by sahm1998
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#6 is the classic pleading a JDB will use. I'm with you. I don't see how they can receive an assignment from the OC and then sue in the OC name. You might have an FDCPA violation. We both have to be missing something.

They better hope Discover is not the owner and they are suing in their name anyway. That could get ugly and expensive for them fast.

Only thing I can think of is they used a different name but the account was still serviced by Discover, only in a different name. Even if that was so, I still don't understand the assignment statement.

Edited by Coltfan1972
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http://www.floridabar.org/TFB/TFBResources.nsf/0/5E3D51AF15EE8DCD85256B29004BFA62/$FILE/Small%20Claims.pdf?OpenElement

RULE 7.020. APPLICABILITY OF RULES OF CIVIL PROCEDURE

(a) Generally. Florida Rules of Civil Procedure 1.090(a), (B), and ©; 1.190(e); 1.210(B); 1.260; 1.410; and 1.560 are applicable in all actions covered by these rules. (B) Discovery. Any party represented by an attorney is subject to discovery pursuant to Florida Rules of Civil Procedure 1.280–1.380 directed at said party, without order of court. If a party proceeding without an attorney directs discovery to a party represented by an attorney, the represented party may also use discovery pursuant to the above-mentioned rules without leave of court. When a party is unrepresented and has not initiated discovery pursuant to Florida Rules of Civil Procedure 1.280–1.380, the opposing party shall not be entitled to initiate such discovery without leave of court. However, the time for such discovery procedures may be prescribed by the court.

RULE 7.050. COMMENCEMENT OF ACTION; STATEMENT OF CLAIM

(a) Commencement. (1) Statement of Claim. Actions are commenced by the filing of 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 or the material part thereof shall be attached to the statement of claim. All documents served upon the defendant with initial process shall be filed with the court.

RULE 7.090. APPEARANCE; DEFENSIVE PLEADINGS; TRIAL DATE

(a) Appearance. On the date and time appointed in the notice to appear, the plaintiff and defendant shall ap-pear personally or by counsel. (B) Notice to Appear; Pretrial Conference. The summons/notice to appear shall specify that the initial ap-pearance shall be for a pretrial conference. The initial pretrial conference shall be set by the clerk not more than 50 days from the date of the filing of the action. The pretrial conference may be managed by nonjudicial per-sonnel employed by or under contract with the court. Nonjudicial personnel must be subject to direct oversight by the court. A judge must be available to hear any motions or resolve any legal issues. At the pretrial confe-rence, all of the following matters shall be considered: (1) The simplification of issues. (2) The necessity or desirability of amendments to the pleadings. (3) The possibility of obtaining admissions of fact and of documents that avoid unnecessary proof. (4) The limitations on the number of witnesses. (5) The possibilities of settlement. (6) Such other matters as the court in its discretion deems necessary.

© Defensive Pleadings. Unless required by order of court, written pretrial motions and defensive pleadings are not necessary. If filed, copies of such pleadings shall be served on all other parties to the action at or prior to the pretrial conference or within such time as the court may designate. The filing of a motion or a defensive pleading shall not excuse the personal appearance of a party or attorney on the initial appearance date (pretrial Updated 10/05/2011 Florida Small Claims Rules Page 9 of 36

conference).

RULE 7.110. DISMISSAL OF ACTIONS

(B) Involuntary Dismissal. Any party may move for dismissal of an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court. After a party seeking affirmative relief in an action has completed the presentation of evidence, any other party may move for a dismissal on the ground that upon the facts and the law the party seeking affirmative relief has shown no right to relief without waiving the right to offer evidence in the event the motion is not granted. The court may then determine them and render judgment against the party seeking affirmative relief or may decline to render any judgment until the close of all the evidence. Unless the court in its order for dismissal otherwise specifies, a dismissal under this subdivi-sion and any dismissal not provided for in this rule, other than a dismissal for lack of jurisdiction or for improper venue or for lack of an indispensable party, operates as an adjudication on the merits.

I think they blew it. No contract attached, ask for dismissal?

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legaleagle - That was my thought process. I don't want to tip them off to their errors until we're actually in front of the judge because then they would have time to correct the complaint before pre-trial and I'm not about to do their job for them. I'm intending to do an 'oral' motion to dismiss at that point. If the judge denies the MTD and lets them file an amended complaint, and they don't correct all their errors, then they don't get a third chance. At least that's how I read the procedures. I'm thinking that the attorney asked for the pre-trial to be rescheduled because someone from their office has been calling my husband's work number for a couple of weeks now ~ too bad for them that he doesn't choose to answer.:twisted: Almost makes me wonder if they filed this complaint as an attempt to scare me and have no intention of following through to trial.

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I would ask for dismissal with prejudice now, see what happens. They can only amend or revise the complaint according to the rules, not in response to a motion to dismiss. You have a legitemate reason to have this thrown out, I suggest you pursue it BEFORE they realize their own mistake and DO correct it. They usually have 30 days to amend a complaint without having to ask the court for permission. These are lawyers....you aren't. If they are so stupid that they don't even know the rules of procedure, too bad for them, and I'd say that to the judge. Don't ever give the opposition a second chance at anything. They won't give you one.

If they have been calling your husband and he is not a party to the suit, that sounds like an FDCPA violation. Others here can advise you about that, I never really studied it.

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In discovery, ask for proof of the assignment. If the assignment is a bill of sale from Discover to them, then Discover is not the real party in interest.

FL Rules of Civil Procedure:

RULE 1.210. PARTIES

(a) Parties Generally. Every action may be prosecuted in the name of the real party in interest, but a person-al representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that per-son‘s own name without joining the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if that person‘s presence is necessary or proper to a complete determination of the cause. Persons having a united interest may be joined on the same side as plaintiffs or defendants, and anyone who refuses to join may for such reason be made a defendant.

That says that the JDB could sue for Discover Bank if Discover has authorized them to do so. A bill of sale would indicate Discover sold the account. Therefore, Discover Bank would no longer have an interest in the account and could not be the Plaintiff.

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I would ask for dismissal with prejudice now, see what happens. They can only amend or revise the complaint according to the rules, not in response to a motion to dismiss. You have a legitemate reason to have this thrown out, I suggest you pursue it BEFORE they realize their own mistake and DO correct it. They usually have 30 days to amend a complaint without having to ask the court for permission. These are lawyers....you aren't. If they are so stupid that they don't even know the rules of procedure, too bad for them, and I'd say that to the judge. Don't ever give the opposition a second chance at anything. They won't give you one.

If they have been calling your husband and he is not a party to the suit, that sounds like an FDCPA violation. Others here can advise you about that, I never really studied it.

I'm really considering asking for dismissal. The ROP for amended and supplemental pleadings states:

RULE 1.190. AMENDED AND SUPPLEMENTAL PLEADINGS

(a) Amendments. A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion. Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading within 10 days after service of the amended pleading unless the court otherwise orders.

Since they filed the suit on 9/23/11, they are well past the 20 days allowed without leave of the court. Also, the rule for filing papers with the court states:

RULE 7.080. SERVICE OF PLEADINGS AND PAPERS OTHER THAN STATEMENT OF CLAIM

© Filing. All original pleadings and papers shall be filed with the court either before service or immediately thereafter. The court may allow a copy to be substituted for the original of any document.

I just checked the court docket again and there haven't been any other filings since the original complaint. You are definitely right about second chances. I think that they may have enough rope to hang themselves at this point:)

As for the phone calls to my husband (he is not a party to the suit), no-one is leaving a message when the machine picks up so probably not an FDCPA violation? He checks the caller ID and sees that they've called and takes a picture of it 'just in case'.

Edited by sahm1998
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In discovery, ask for proof of the assignment. If the assignment is a bill of sale from Discover to them, then Discover is not the real party in interest.

FL Rules of Civil Procedure:

RULE 1.210. PARTIES

(a) Parties Generally. Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person‘s own name without joining the party for whose benefit the action is brought. All persons having an interest in the subject of the action and in obtaining the relief demanded may join as plaintiffs and any person may be made a defendant who has or claims an interest adverse to the plaintiff. Any person may at any time be made a party if that person‘s presence is necessary or proper to a complete determination of the cause. Persons having a united interest may be joined on the same side as plaintiffs or defendants, and anyone who refuses to join may for such reason be made a defendant.

That says that the JDB could sue for Discover Bank if Discover has authorized them to do so. A bill of sale would indicate Discover sold the account. Therefore, Discover Bank would no longer have an interest in the account and could not be the Plaintiff.

That's the way I interpreted it as well. Since they didn't attach anything to the complaint, who knows what the real situation is. Should it go past the MTD, I will definitely be asking for all of this during the discovery process.

I wonder if this is an error from some bonehead attorney that often represents JDBs, and they did a cut and paste from a boilerplate document, and forgot to edit the part about assignment.

They do represent JDBs, notably Midland, from the info I've found on this attorney. Truly not my fault if they can't remember whether they're suing on behalf of a JDB or OC:) I'd love to be a fly on the wall when he gets the discovery request (assuming that the MTD isn't granted).

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  • 2 weeks later...

Okay, now they are starting to annoy me. Another continuance for pre-trial, it is now set for 01/31/2012. Has this happened to anyone here? Any opinions about why this keeps getting rescheduled? Perhaps it's because I didn't go with my knee-jerk reaction to file an answer in the heat of the moment, and instead started reading first? You would think they would be running to the courthouse assuming that they were going to get an easy judgment! Seriously, all they're doing is giving me even more time to learn, which is probably not a good thing for them.

I've been spending quite a bit of time reading the rules of procedure and the evidence rules ~ that's why I haven't posted anything recently, plus the pre-trial keeps getting put off, so nothing to update from that standpoint.

I did find something in the ROP that was interesting.

RULE 1.170. COUNTERCLAIMS AND CROSSCLAIMS

(a) Compulsory Counterclaims. A pleading shall state as a counterclaim any claim which at the time of serving the pleading the pleader has against any opposing party, provided it arises out of the transaction or occurrence that is the subject matter of the opposing party‘s claim and does not require for its adjudication the presence of third parties over whom the court cannot acquire jurisdiction. But the pleader need not state a claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon that party‘s claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on the claim and the pleader is not stating a counterclaim under this rule.

After reading the prospectus for the OC, I saw that there are currently 8 pending class action lawsuits filed against them in federal court for their "fee based products", one of the suits is for my state. Supposedly, they proposed a global settlement in June, but the judge has not signed off on it yet. This probably explains the increase in complaints being filed by the OC locally. I believe that the products being sued over were part of this alleged account, so does this rule cover my not filing a counterclaim at this time or could it possibly be a motion of some sort because the plaintiff is currently involved in litigation that may materially affect the amount of their claim? Or, maybe use this info to question the amount of the damage they are claiming at trial? Any thoughts?

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so does this rule cover my not filing a counterclaim at this time or could it possibly be a motion of some sort because the plaintiff is currently involved in litigation that may materially affect the amount of their claim?

I read this to mean that you would not have a counterclaim if A., you had filed a separate action against them, perhaps an FDCPA violation or state violation, or B. that you were part of a class action suit against them as you noted. If you are not one of the plaintiffs in the class action suit, I assume that would not apply to your situation or stop any counterclaim, as it would not be repetitive. You cannot sue someone twice for the same violation, the theory is double recovery, which is a no-no in any court. This may be why they added that.

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