JoeSS870

Being sued by JDB Main Street Acquisition Corp

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OK. I live in Florida and being sued by Main Street Acquisition Corp. I heard that they didn't have a license to operate in Florida as a collection agency and that there licenses were revoked in 2009. I went to check out the status of there license at the Florida Office of Financial Regulation and see if they ever renewed one. I notice that the Original license date is 10/19/2011 and the status effective date was 12/13/2011. There Status is currently approved. What I was wondering was if the license when in effect 10/19/2011 or 12/13/2011? I was served two days ago the 20th, but these papers have been filed with the court since Nov 4, 2011. Any help would be appreciated.

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OK. I live in Florida and being sued by Main Street Acquisition Corp. I heard that they didn't have a license to operate in Florida as a collection agency and that there licenses were revoked in 2009. I went to check out the status of there license at the Florida Office of Financial Regulation and see if they ever renewed one. I notice that the Original license date is 10/19/2011 and the status effective date was 12/13/2011. There Status is currently approved. What I was wondering was if the license when in effect 10/19/2011 or 12/13/2011? I was served two days ago the 20th, but these papers have been filed with the court since Nov 4, 2011. Any help would be appreciated.

I would contact the Office of Financial Regulation and ask. That's the best way to get an accurate answer.

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Florida licenses are renewable at the end of each year, regardless when obtained the prior year. All licenses expire every December.

Accoriding to FLOFR online records, Main Street obtained or renewed its license in October 2011 (which would have been set to expire this month). They recently "renewed," their license for 2012.

So, if you're wondering whether Main Street was licensed in November, the answer appears to be "yes."

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Alright, thanks Nascar. I was a little confused about that, because I knew that they got a license on 10/19/2011 , but was wondering if that license didn't go into effect on the 12/13/11 or not. Thanks for helping me clear this up. Also is there a way to check licenses from previous years? Like I said in my first post I heard their license was revoked in 2009. I don't know if that true of not because there is no proof, that I have seen stating that. I was wondering because if they lost there license in 2009, did they renew in 2010? Because they contacted me by mail and if they weren't licenses their in violation of the law here in FL.

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Hey guys, I was wonder when I was served my summon, the only evidence the JDB provided was a Bill of Sale, which only shows the Sale from the OC to the JDB. My name , account number, is not stated in the bill of sale. This means they have not provided proof that my account from purchased from the OC to the JDB. So I'm writing up a Motion for Discovery, should I ask for proof of a bill of sale which includes my information or something that shows they purchased this from the OC ?

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Hey guys, I was wonder when I was served my summon, the only evidence the JDB provided was a Bill of Sale, which only shows the Sale from the OC to the JDB. My name , account number, is not stated in the bill of sale. This means they have not provided proof that my account from purchased from the OC to the JDB. So I'm writing up a Motion for Discovery, should I ask for proof of a bill of sale which includes my information or something that shows they purchased this from the OC ?

Read your court's Rules of Civil Procedure regarding discovery. It's usually a request, not a motion. The rules will explain Interrogatories, Admissions, and Production of Documents.

They've already provided a bill of sale. In a Request for Production of Documents, I would request "Beginning with a balance of -0-, all billing statements evidencing all charges, payments, interest, and fees in order to provide a complete accounting of the alleged debt."

It would help if you'd answer the questions in the following link:

http://www.creditinfocenter.com/forums/there-lawyer-house/242744-qs-answer-when-posting-forum-please-read.html

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1. Who is the named plaintiff in the suit? Main Street Acquisition Corp.

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) The Law Office of ERSKINE & FLEISHER

3. How much are you being sued for?$7000.00

4. Who is the original creditor? (if not the Plaintiff) HSBC BANK NEVADA

5. How do you know you are being sued? (You were served, right?) I was served

6. How were you served? (Mail, In person, Notice on door) In Person

7. Was the service legal as required by your state? Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

They are a debt collector, they only contacted me once and that was by mail.

9. What state and county do you live in? Florida, Nassau County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) June, 2009

11. What is the SOL on the debt? To find out: 5 years

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Suit served

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) Yes

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

20 days to respond to suit

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

The only thing they sent with the summon is a Bill of Sale, which states the sale from the OC to the JDB. None of my information is listed in the Bill of Sale.

Sorry about not posting this earlier, I a newbie to all this stuff.

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The first thing you must do is answer the Complaint. Answer each allegation by admitting or deny (preferably deny). Since the debt is not outside the SOL, you can't include the SOL as an Affirmative Defense. I would include Lack of Standing.

Lack of Standing. Plaintiff has not proven ownership of the alleged account and, therefore, has not proven standing to sue.

If you have trouble answering the allegations, you can post them if you choose. I'm sure you'd get suggestions on how to respond to them.

Does the Complaint name a cause of action such as breach of contract or account stated? You're sure no affidavit was included?

Again, be sure to carefully follow your court's Rules of Civil Procedure. They will explain how your answer should be formatted and when you may send discovery requests.

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Well, I'm currently working on my answers to the summons, but I'm wondering if I should include a Affirmative Defense or not. I mean does it help to go ahead and include it or should I wait and hold off ,so the Plaintiff doesn't have a idea what I'm planning as my defense.

Does the Complaint name a cause of action such as breach of contract or account stated? You're sure no affidavit was included?

The only thing I see is in a paragraph which states "The Defendant promised to repay the unpaid principal and interest extended to same or others by Plaintiff's predecessor in interest of money paid or received by same the Defendant failed to do so and went into default".

Does the above the cause of action ? It sounds like it to me, but I'm not certain. Also no affidavit was included the only thing that was attached to this summons was a Bill of Sale which includes only the OC and JDB (Plaintiff) and doesn't show my account, name on the Bill of Sale either.

Edited by JoeSS870

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Well, I'm currently working on my answers to the summons, but I'm wondering if I should include a Affirmative Defense or not. I mean does it help to go ahead and include it or should I wait and hold off ,so the Plaintiff doesn't have a idea what I'm planning as my defense.

Does the Complaint name a cause of action such as breach of contract or account stated? You're sure no affidavit was included?

The only thing I see is in a paragraph which states "The Defendant promised to repay the unpaid principal and interest extended to same or others by Plaintiff's predecessor in interest of money paid or received by same the Defendant failed to do so and went into default".

Does the above the cause of action ? It sounds like it to me, but I'm not certain. Also no affidavit was included the only thing that was attached to this summons was a Bill of Sale which includes only the OC and JDB (Plaintiff) and doesn't show my account, name on the Bill of Sale either.

It's your call as to whether or not you raise Lack of Standing as a defense or not. There's FL case law that states that "lack of standing" is waived if not raised as an affirmative defense.

"There is no question that lack of standing is an affirmative defense that must be raised by the defendant and that the failure to raise it generally results in waiver." Kissman v. Panizzi, 891 So. 2d 1147 - Fla: Dist. Court of Appeals, 4th Dist. 2005

But, there's also case law that says it's not waived.

"That is, when read in light of Love, the language that the University cites supports the conclusion that standing may not be raised for the first time on appeal; however, it does not necessarily require that standing be raised only by means of an affirmative defense." Maynard v. FLORIDA BOARD OF EDUCATION, Fla: Dist. Court of Appeals, 2nd Dist. 2008

I suppose it would depend on how your court of appeals or the FL Supreme Court has ruled.

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OK. I live in Florida and being sued by Main Street Acquisition Corp. I heard that they didn't have a license to operate in Florida as a collection agency and that there licenses were revoked in 2009. I went to check out the status of there license at the Florida Office of Financial Regulation and see if they ever renewed one. I notice that the Original license date is 10/19/2011 and the status effective date was 12/13/2011. There Status is currently approved. What I was wondering was if the license when in effect 10/19/2011 or 12/13/2011? I was served two days ago the 20th, but these papers have been filed with the court since Nov 4, 2011. Any help would be appreciated.

Does Fla regulation require that Main Street ( or all Debt Collectors)have a" location manager" at each location where they conduct collection business ? Are "location managers" required to be licensed and bonded in Florida ? If so required, does Main Street have a Location Manager in Florida who is licensed and bonded in the state of Florida ? I suggest contacting the Florida Office of Financial Regulation and determine this..

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Thanks, BV80 for the information. What other types of affirmative defense would apply to this case. I mean I've looked online and seen where people have used

Statue of Frauds because the JDB didn't provide any proof of any written agreement.

Stating that the JDB hasn't proven that they are authorized and licensed to collect in the State of Florida.

Lack of Privity as the Defendant has never entered into any contractual or debitor/credior arrangements with the plaintiff.

Should I include the Bill of Sale in the affirmative defense or should I just strike it down with a motion?

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Informed, thanks for the information, I'm going to look into that.

Also, the state of Tenn code.."all debt collectors must have in their employe" 'solicitors" who solicit accounts for collection, and those solicitors must be furnished a registration id card in their name by the State of Tennessee"...check your state law for any such language.

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Thanks, BV80 for the information. What other types of affirmative defense would apply to this case. I mean I've looked online and seen where people have used

Statue of Frauds because the JDB didn't provide any proof of any written agreement.

Stating that the JDB hasn't proven that they are authorized and licensed to collect in the State of Florida.

Lack of Privity as the Defendant has never entered into any contractual or debitor/credior arrangements with the plaintiff.

Should I include the Bill of Sale in the affirmative defense or should I just strike it down with a motion?

You must remember that you must be able to prove any defense you raise. You can't claim a defense applies but not back it up.

Statute of Frauds does not apply to credit card agreements. You don't have a signed contract with a credit card company. Most cardmember agreements state that your use of the card indicates your acceptance of the terms and conditions. That's an implied contract. Therefore, cc agreements are not considered contracts that must be in writing.

You saw online that the JDB is licensed. Using that defense would be a waste of time.

Lack of privity could apply, but if there's FL case law stating that an assignee steps into the shoes of the creditor, they can prove privity.

BUT that goes back to the bill of sale that doesn't mention your name or account number. If you can show they haven't proven standing, then privity doesn't matter. If they don't have standing, they don't have privity. The best defenses against a JDB with a valid debt are standing and the SOL.

Regarding the bill of sale, I wouldn't mention it in your defense. I would simply state that the Plaintiff hasn't proven ownership of the account and, therefore, hasn't proven standing to sue.

Regarding a Motion to Strike, read your court rules. Find out when such a motion should be made. If you decide to file the motion, you should have FL case law to back up your claim that the bill of sale is hearsay.

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Thanks, again BV80 for the help and understanding of affirmative defense. So I know that I will answer the summon and add a affirmative defense of lack of standing. I know I'm thinking a little ahead of myself because I will have to wait and see, but would it be best to go ahead and think about my request for products of documents and admissions?

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Thanks, again BV80 for the help and understanding of affirmative defense. So I know that I will answer the summon and add a affirmative defense of lack of standing. I know I'm thinking a little ahead of myself because I will have to wait and see, but would it be best to go ahead and think about my request for products of documents and admissions?

I believe in being proactive. See what your rules state about discovery requests. In my state, we can send requests at different times. In other words, I could send a Request for Production of Documents, then send a Request for Admissions based upon the documents they provided. If they provide very few documents, admissions may not be necessary.

In some states, though, all requests must be sent at the same time. Also, the number of requests may be limited. Just make sure the rules you're reading apply to your court. I know that in Georgia, for instance, discovery is not allowed in Magistrate Court, but it's allowed in other GA courts.

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Well this is what I found in the FL Civil Procedure

RULE 1.280. GENERAL PROVISIONS GOVERNING DISCOVERY

(a) Discovery Methods. Parties may obtain discovery by one or more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise and under subdivision © of this rule, the frequency of use of these methods is not limited, except as provided in rule 1.200 and rule 1.340.

and

1.200 states only this about a discovery

(a) Case Management Conference. At any time after responsive pleadings or motions are due, the court may order, or a party, by serving a notice, may convene, a case management conference. The matter to be considered shall be specified in the order or notice setting the conference. At such a conference the court may:

(1) schedule or reschedule the service of motions, pleadings, and other papers;

(2) set or reset the time of trials, subject to rule 1.440©;

(3) coordinate the progress of the action if complex litigation factors are present;

(4) limit, schedule, order, or expedite discovery;

(5) schedule disclosure of expert witnesses and the discovery of facts known and opinions held by such experts;

(6) schedule or hear motions in limine;

(7) pursue the possibilities of settlement;

(8) require filing of preliminary stipulations if issues can be narrowed;

(9) consider referring issues to a magistrate for findings of fact; and

(10) schedule other conferences or determine other matters that may aid in the disposition of the action.

So I'm trying to figure out what 1.200 about the Case Management Conference is stating? Does it mean if notified by the court that your not suppose to expedite discovery?

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Oh boy. I'm not sure about that. If I understand it correctly, 1.200 seems to mean that if the court orders a case management conference, or if a party requests it, then the court MAY apply what's in the list. Hopefully someone with more knowledge or experience with FL law will chime in.

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After a little research, I came across a couple of site that say that the case management conference allows judges to take control a complex case or any case for that matter which he/she believes is getting out of hand. Pretty much the judge will step in, if he/she thinks they need to. The Judge also does this to stop the waster of money and time as well.

I'm still going to see what else I can find though for a more definitive answer.

Update*** It seems what I've read as well that CMC (Case Management Conference) is geared more family law, but can be used in any case. Most of the cases I've read and talked about seems to be divorce related cases.

Edited by JoeSS870

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Should I add a Claim for relief to my affirmative defense??

Also, although I believe they are licenses to operate in my state as my debt collector, could I add on my affirmative defense that they didn't provide proof they are authorized to do business in this state. This way they need to provide it?

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Should I add a Claim for relief to my affirmative defense??

Also, although I believe they are licenses to operate in my state as my debt collector, could I add on my affirmative defense that they didn't provide proof they are authorized to do business in this state. This way they need to provide it?

I'm not sure that lack of a license is an affirmative defense. Also, since they are licensed, such a defense would be a waste of time.

When I was sued, I focused on the bill of sale and ownership. Your bill of sale shows nothing. Also, FL has good rules regarding the authentication of documents.

The Plaintiff must show that any documents they submit are valid business records. In the case of a JDB, they have to show that copies of records are true copies made or transmitted by someone with personal knowledge. They can do that with a live witness or with an affidavit stating as much.

Rules of Evidence provide the guidelines for authenticating documents.

FL Rules of Evidence

90.803(6)(a)

90.803 Hearsay exceptions; availability of declarant immaterial

6) RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY.—

(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph © and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness.

The above is an exception to the hearsay rule. Hearsay is permissible under certain circumstances. Notice the title of 90.803 states that the availability of a declarant (witness) is immaterial. That means the means they can bring a live witness OR provide an affidavit. If they do either one of those, the documents are subject (allowed) to the hearsay exception in 90.803(6).

If they provide an affidavit, that affidavit must follow the guidelines in 90.902(11) that was mentioned above.

90.902 Self-authentication

(11) An original or a duplicate of evidence that would be admissible under s. 90.803(6), which is maintained in a foreign country or domestic location and is accompanied by a certification or declaration from the custodian of the records or another qualified person certifying or declaring that the record:

(a) Was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person having knowledge of those matters;

(B) Was kept in the course of the regularly conducted activity; and

© Was made as a regular practice in the course of the regularly conducted activity,

provided that falsely making such a certification or declaration would subject the maker to criminal penalty under the laws of the foreign or domestic location in which the certification or declaration was signed.

If they don't provide a live witness or an affidavit that complies with the above rule, then their evidence is not authenticated. Therefore, it's not subject to the hearsay exception in 90.803(6)(a) and is inadmissible hearsay.

This would apply to their bill of sale and any statements they provide.

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Yea I was planning on focusing mainly on the bill of sale and lack of ownership.

Like I said before their Bill of Sale doesn't provide any information that shows that its was my account they purchased. I know in most complaints that JDB that they usually include the account # in the complaint, in my case the JDB doesn't provide anything. Does this work in my favor ?

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