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So.. today Midlands attorney sends me a motion to strike my affirmative defenses for some reason of FL civil procedure.

I'm going to fire back a Motion to Strike their affidavit as hearsay.

Still waiting to hear if judge granted my motion for 60-day continuance.

Talked to local NACA lawyer today who wants 750-1200 flat fee to take care of this. Would it be worth it? I gave him a recap and he applauds my efforts and says I'm doing a "great job." I'm kind of confident I can wear them down but they are exhausting me too.

What do you think?

I want to dismantle their complaint.

I'm attacking their generic photocopied affidavit which could literally be applied to anything, any "Loan" to any person.

But I need your help guys? Did someone post some info on Florida case law citing third party evidentiary rules and that affiant could not have had personal knowledge of the debt? And some statues about hearsay in business records, so I can reference this in my motion to strike? Could someone send me a link to a thread or something?

THX!

cs38

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...I answered your other thread here:

http://www.creditinfocenter.com/forums/there-lawyer-house/312274-motion-strike-jdb-affidavit.html

Though, this post is more informative than your other. Providing more details allows us to provide better assistance through advice, resources, etc. :mrgreen:

If they are motioning to strike your affirmative defenses, I'm guessing you just answered your complaint. At which point, it may be premature to motion to strike their affidavit...maybe not, depending on the rules of Florida court (which I'm not familiar with--so sorry).

You need to find to find the rules of the court you are in, to see if you can deem what the next course of action is allowed at this point in your case.

If you've consulted an attorney (as you state) they could definitely guide you if you find this is too much for you to handle on your own.

There is no shame whatsoever in assessing yourself and coming to a realization that this is more than you wish to take on due to work schedule, home and family demands, other demands for your time, etc.

Only you can say if it the attorney's fee, is worth it to you or not. Having completed a case recently pro-se I can say the following:

It's a lot of work, study and just when you think you are done learning, there's more to learn. ;) I wish I was kidding. But I'm not.

We bought a book, checked paralegal guides out from the library, I read from here at least an hour a day (sometimes more than that) and I studied strategies from those who'd tried their cases and were successful on this board. I took a lot of notes and asked a lot of questions. I read about the law firm representing our jdb, and the jdb (from this site and others).

We also spent some time observing the judge who would eventually hear our case. I wanted to go to the law library, too--but unfortunately could not get to one in the nine months of our case.

Some have won doing all of this.

Some have won doing less than this.

Some have won doing some combination.

Bottom line, they made the commitment, rolled up their sleeves and got busy.

I've also seen those post saying it was a bit much for thier situation and they turned it over to an attorney. Nothing at all wrong w/that.

I sincerely hope this is helpful...let us know what you decide.

:)++

Edited by tigger
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I didn't see your defenses, but based on what people here usually do, I can bet they don't apply and you'd be better off without them. The ONLY ones that REALLY work are the statute of limitations and lack of standing to sue. Even that one is tricky because you've just shifted the burden of proof to yourself. My recommendation is to reply to the motion with something along the lines of "Defendant does not object and will replead accordingly." Then submit a new answer w/o any defenses unless the SOL was expired.

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tigger and legaleagle, thanks so much!

I'm going at it, rather adventurously pro se wise.

I sent an opposition to their motion for summary judgment, saying that there are material facts in dispute that plus my continuance might give me enough time to negotiate a reasonable settlement. (I actually find this legalese more draining, exhausting or sidetracking though it's arguably useful and somewhat fascinating too) :mrgreen:

Im tired of getting these bs court file notices and sending off my own with dupes, hence my considering settlement.

I received an offer to settle a 9000.00 ish debt for 2500.00 but it arrived late after the deadline. They always say theyll settle only on that day and that it's a one-time great offer, but theyd be crazy not to accept from 30-40% from me, which is all I'm offering. They want 60% (3000/5000) on the lawsuit one. If I set aside 5000 on a debit card, I might be able to settle them both this or next month.

These are the last two credit cards I have to pay off until the Midland clowns decided sued me on one of them. (they own the other one too.)

tigger, btw..your recent pro se case, what was the result? May I read about it on a thread here in the forum?

Thanks guys!

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tigger and legaleagle, thanks so much!

I'm going at it, rather adventurously pro se wise.

I sent an opposition to their motion for summary judgment, saying that there are material facts in dispute that plus my continuance might give me enough time to negotiate a reasonable settlement. (I actually find this legalese more draining, exhausting or sidetracking though it's arguably useful and somewhat fascinating too) :mrgreen:

Im tired of getting these bs court file notices and sending off my own with dupes, hence my considering settlement.

I received an offer to settle a 9000.00 ish debt for 2500.00 but it arrived late after the deadline. They always say theyll settle only on that day and that it's a one-time great offer, but theyd be crazy not to accept from 30-40% from me, which is all I'm offering. They want 60% (3000/5000) on the lawsuit one. If I set aside 5000 on a debit card, I might be able to settle them both this or next month.

These are the last two credit cards I have to pay off until the Midland clowns decided sued me on one of them. (they own the other one too.)

tigger, btw..your recent pro se case, what was the result? May I read about it on a thread here in the forum?

Thanks guys!

I know it's a lot of work. But it doesn't hurt to fight, as you never know what they have (evidence wise)...and if they can even prove they have a right to sue you on the alleged debt. Many here didn't think they had it to go through a court case, and amazed themselves by going the distance (yours truly included) ;).

But again, if you aren't up for the fight due to other issues--there's nothing wrong with trying to settle the debts. It's all up to you.

Before you decide if you'd like to settle, do yourself a favor and read the informative article below:

Debt Settlement Advice | Settling Your Debts

If you at least know your rights BEFORE you start to negotiate, you have a better chance of getting what you want. In addition learning what these types of companies pay for debts, may change your mind about settling...personally, they'd have to drag me through court to prove they had a right BEFORE I offered to pay them a dime--but I'm stubborn like that (and hate what these companies do). For me it's the principle. :evil:

The article above will help you in terms of your rights and how to negotiate settlements if you decide to go that route.

It's nice of you to ask about our case, (thank you) we won. The thread is here:

http://www.creditinfocenter.com/forums/there-lawyer-house/311788-its-over-we-won-case-dismissed.html

One of their big errors during the trial was here:

http://www.creditinfocenter.com/forums/there-lawyer-house/311183-affiant-signed-affidavit-debt-so-bogus.html

Hope this helps--Good luck! :mrgreen:

Edited by tigger
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I wouldn't give Midland ten cents, but that's just me. If you put them through the wringer in court, they may just give up. Even if they win and get a judgment, they'll still make a deal with you rather than wait ten years to collect. Do you realize the windfall you'd be giving these vultures? Bet they paid less than $200 for your account.

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I wouldn't give Midland ten cents, but that's just me. If you put them through the wringer in court, they may just give up. Even if they win and get a judgment, they'll still make a deal with you rather than wait ten years to collect. Do you realize the windfall you'd be giving these vultures? Bet they paid less than $200 for your account.

I would really relish making these people very sorry that they sued me. I'm using every resource I have, mostly my time, energy and research skills, and writing ability to let them know they're in for a fight.

But at some point, it just gets exhausting.

Yeah, maybe $200 calculated into whatever toxic debt package they bought, plus their 300 dollar filing fee, they've already lost 500 plus their rent-a-lawyer and the other para-legals costs. So I still want it to cost them and make them sorry.

I think next is doozie ten-pager for production of documents, interrogatory, propoundment, or should I put the fire to their heels with a struck affidavit, statute of frauds and no legal standing to sue MSJ?...

I want to make these vultures cry, or at least repel them permanently.

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...I answered your other thread here:

http://www.creditinfocenter.com/forums/there-lawyer-house/312274-motion-strike-jdb-affidavit.html

Though, this post is more informative than your other. Providing more details allows us to provide better assistance through advice, resources, etc. :mrgreen:

If they are motioning to strike your affirmative defenses, I'm guessing you just answered your complaint. At which point, it may be premature to motion to strike their affidavit...maybe not, depending on the rules of Florida court (which I'm not familiar with--so sorry).

You need to find to find the rules of the court you are in, to see if you can deem what the next course of action is allowed at this point in your case.

If you've consulted an attorney (as you state) they could definitely guide you if you find this is too much for you to handle on your own.

There is no shame whatsoever in assessing yourself and coming to a realization that this is more than you wish to take on due to work schedule, home and family demands, other demands for your time, etc.

Only you can say if it the attorney's fee, is worth it to you or not. Having completed a case recently pro-se I can say the following:

It's a lot of work, study and just when you think you are done learning, there's more to learn. ;) I wish I was kidding. But I'm not.

We bought a book, checked paralegal guides out from the library, I read from here at least an hour a day (sometimes more than that) and I studied strategies from those who'd tried their cases and were successful on this board. I took a lot of notes and asked a lot of questions. I read about the law firm representing our jdb, and the jdb (from this site and others).

We also spent some time observing the judge who would eventually hear our case. I wanted to go to the law library, too--but unfortunately could not get to one in the nine months of our case.

Some have won doing all of this.

Some have won doing less than this.

Some have won doing some combination.

Bottom line, they made the commitment, rolled up their sleeves and got busy.

I've also seen those post saying it was a bit much for thier situation and they turned it over to an attorney. Nothing at all wrong w/that.

I sincerely hope this is helpful...let us know what you decide.

:)++

I think motions can be filed at any time according to civil procedure in Florida, think I read that somewhere...I need to read up on it more, luckily my 60-day continuance (not sure if it has been granted yet, I see it has been filed in the docket, no word from judge yet, dont see why not) will give me time to do that, to read up on FL civil procedure.

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Make your motion verbally in open court not in writing before the court date. When you file a written motion before the court date it tells the other side what your strategy is and gives them time to think about their objection to the motion.

When you make a verbal motion the judge will ask the other side if they have any objections, when you spring it on them and they don't expect it they have less time to make a good objection.

Never ever give the enemy any clue as to what you are going to do, find their weakness and exploit it.

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So I guess that would be the part, if there is another hearing (i requested phone teleconference in case Im outta town) ive only had one physical court appearance. The plaintiffs atty asked for "permission to approach the bench" and then I dont know what she said or what documents she gave the judge, except she whined and begged to the judge that I had admitted to the debt of with the OC in my first answer.

So if im in meet n confer via telephone or otherwise, i ask to approach the bench and say ,"I object. Plaintiff has no legal right to sue and cannot proceed in this manner." and maybe "whether i had a debt with OC is immaterial. What is material to this case, is if midland and I have any contract or agreement and if they have a right to sue. We have no contract. And they have no right to sue. And I can cite case law to prove this if need be. " hows that?

Then the judge asked why my statements say Suntrust when OC is BofA. Plaintiffs atty says "bofa bought suntrust," then judge says "you have to show a relationship b/t suntrust and bofa".

They've provided nothing showing any relationship between Suntrust and BofA either. I might use the judge's exact wording in my objection, as it might help.

Thats three big holes in their case.

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Make your motion verbally in open court not in writing before the court date. When you file a written motion before the court date it tells the other side what your strategy is and gives them time to think about their objection to the motion.

When you make a verbal motion the judge will ask the other side if they have any objections, when you spring it on them and they don't expect it they have less time to make a good objection.

Never ever give the enemy any clue as to what you are going to do, find their weakness and exploit it.

I agree 100% and the exact strategy I use. However, make sure the rule of procedure allow for this type of move. In other words make sure the other side is not entitled, by rule(s), to have advance notice.

For example, I sprang on the other side at the very last minute I owed the debt. They had tons of evidence about the liability of the debt and you can tell assumed I would be like everybody else and just deny, deny. They were gearing up to come at me with the old we are going to prove this is your debt. We prove that you owe us.

When I stipulated to the debt and then immediately asked the judge to move to the issue of standing, they were screwed. I stopped them dead in their tracks, no warning, just a shrug of the shoulders and "yeah, so what, not to them."

Standing is a key element to prove at trial We were at trial. What could they say? We were not ready for an all out challenge to standing. They were at trial, they could not get it continued because they announced ready and being ready means having your case together.

Not telling you to give advance warning or not, but if you argue something too early, that you can legally argue later (not waved), your tipping off the other team.

I would have still beat that JDB. They had no witnesses from the OC in court. However, it was a lot more fun watch the :shock: on their faces.

All strategy my friend. Find what works best for you and what you feel comfortable with, but in my opinion, as stated by BTO429, surprising them is the way to go.

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There's also the part where if one doesnt bring up certain claims or defenses early in the answer phase that one loses the right to bring it up later in the trial, I read that somewhere about affirmative defenses.

I've gotten this far, so I've got to see where it leads, if it gets too aggravating, I'll have to make a tough decision.

Like you said, they'll probably settle anyway even with a judgement, though I'd rather not have a judgement against me, especially when I've mostly resolved my other similarly unsecured debts.

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I think next is doozie ten-pager for production of documents, interrogatory, propoundment, or should I put the fire to their heels with a struck affidavit, statute of frauds and no legal standing to sue MSJ?...

Watch what you send them, excessive idiotic discovery can get you sanctioned. Statute of frauds does not apply. Their affidavit is on them, don't oppose it until you are in front of a judge and they have no witness. Affidavits can't testify. Standing to sue is related to ownership of the account, also on them to prove, not for you to disprove. You give these creeps any money, and Coltfan and I will personally come to your house and put an a** whooping on you. LOL. Just kidding, that's the way we feel about JDBs. We prefer that our posters do NOT come here, ask for information, and then throw in the towel after we show them how to win.

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I think next is doozie ten-pager for production of documents, interrogatory, propoundment, or should I put the fire to their heels with a struck affidavit, statute of frauds and no legal standing to sue MSJ?...

Watch what you send them, excessive idiotic discovery can get you sanctioned. Statute of frauds does not apply. Their affidavit is on them, don't oppose it until you are in front of a judge and they have no witness. Affidavits can't testify. Standing to sue is related to ownership of the account, also on them to prove, not for you to disprove. You give these creeps any money, and Coltfan and I will personally come to your house and put an a** whooping on you. LOL. Just kidding, that's the way we feel about JDBs. We prefer that our posters do NOT come here, ask for information, and then throw in the towel after we show them how to win.

Legal eagle,

Are you saying that it is a waste of time to file motion to strike affidivant or even to subpeona the Affiant? Doesn't the plaintiff"s case depend on the affidivant? I am fighting an fia card services in Arkansas and need to know if I am spinning my wheels.

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Wait until court, they know that in order for an affidavit not to be struck for hearsay they have to prove the affidavit. If they do not bring the person that signed the affidavit to court that is their own fault.

They are hoping tha you are like the vast majority of consumers and A) KNOW LITTLE OR NOTHING ABOUT THE LAW AND HOW TO CHALLENGE A SUIT, OR B) Do not even bother to show up, actually they are hoping like hell that you choose this path, as most consumers do. It also makes there job easy.

When they produce the affidavit the judge will ask you<(which is required by law) if there are any objection as to them entering this affidavit into evidence as exhibit a,b, or what ever.

You then ask the Plaintiff if the person who signed the affidavit is in court today, if they say no you then say objection your honor if there is no witness to cross examine as to the validity of this affidavit it is hearsay under the hearsay rules of the court and I ask the court for a motion to strike.

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creditstudent,

Go to the local courthouse and study the pleadings that have been filed in similar cases like yours.

In drafting your motion, you need to apply the facts of your case to the rule of law, then show the court how the rule applies to your case by citing primary authorities (statutes, constitutional law, Fl supreme court decisions, etc.).

When responding to motions, don't get drawn into the opponent's argument. Rather, read the cases they are citing in their brief and determine if they are citing it out of context, thus leaving out arguments that are actually favorable to your position. Law seldom works in one direction and if you read the cases they have cited, you will likely find a string of precedents that refutes their position.

Start by zeroing in on the main implausibility of your opponent's motion and take it out. Once you get rid of it, focus on arguments that support your position and drive those points home. The easiest way for you to do it is by using a case that mirrors your position and transfering the "analysis" and "conclusion" to your case. Create a series of arguments that expose your opponent's arguments as fallacies. Look for authorities that don't go against your position.

Remember, they have the burden of going forward and proving their case. Your focus should be proving that they can't prove their case. Try to find a lawyer on craigslist that will review your court papers on a page by page basis.

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Legal eagle,

Are you saying that it is a waste of time to file motion to strike affidivant or even to subpeona the Affiant? Doesn't the plaintiff"s case depend on the affidivant? I am fighting an fia card services in Arkansas and need to know if I am spinning my wheels.

It all comes down to your strategy. As the Gunny said, don't send the enemy a map showing him where all your defensive positions are located. Let them find out the hard way. It is their responsibility to provide the affiant, not yours. As for this,

Go to the local courthouse and study the pleadings that have been filed in similar cases like yours

You could spend two years digging through court records and never find what you want. Complete waste of time in my opinion. No lawyer alive ever did this. And this:

Try to find a lawyer on craigslist

I would go to the Gunny's house and hope that he had a bazooka so he could shoot me in the head with it before I did this. You want a prostitute? Go to Craigslist. You want a lawyer? Go to your local courthouse for a week and take notice of who shows up every day to work cases. That's the guy you want.

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Legal eagle

[You could spend two years digging through court records and never find what you want. Complete waste of time in my opinion. No lawyer alive ever did this.

Not only should someone unfamiliar with pleadings spend time looking at actual court pleadings to understand their format and types of responses raised in those pleadings, but it will enlighten them as to how it is done. Law students and paralegals do study court pleadings. Likewise, when you work for a law firm, you study the format and previous pleadings used by the firm and build a collection of documents, inclusing those filed by the opponents.

You don't know what you are talking about.

And this:

Try to find a lawyer on craigslist

I would go to the Gunny's house and hope that he had a bazooka so he could shoot me in the head with it before I did this. You want a prostitute? Go to Craigslist. You want a lawyer? Go to your local courthouse for a week and take notice of who shows up every day to work cases. That's the guy you want.

Unlike you, those lawyers are licensed to practice law and have met an objective evaluation process to practice law. If you are going to thrash members of the legal profession for advertising their services on Craigslist, at least go to law school so you can base it on having actually worked in the legal profession, rather than acting out fantasies of being lawyer on a message board, which you are not.

Have a nice life.

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I do agree with Cal para. Im a law student and I can not count the hours I have spent looking at court pleadings in class and tearing them apart and finding a weakness in their pleadings.

I think I spent one whole semester just learning this, and now I still have to do it for class.

I try to tame it down a lot and not write like an attorney, while I'm on the forum, I do this so most anyone can understand.

We all know that to read a court document before you actually learn how to read them is like trying to learn another language. It actually is another language.

From what I have seen an the attorneys that I know, don't advertise on craigs list, not saying that some don't, you can find about anything on c list.

I won't advertise there, it has a bad rep in my area.

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You don't know what you are talking about

In your dreams, Mr. expert. I'll take you on any day of the week. Fantasies, huh? I have more court experience than you ever dreamed of, and a win loss record that would put most lawyers to shame. Your advice is idiotic. I could find more case law on Google Scholar in five minutes than any paralegal could discover in court houses in a week. I just racked up another victory over a prominent attorney who let a paralegal do all the work. They only made 45 glaring errors in three pleadings. That shows what they know. I also forced the second biggest law firm in my state into a malpractice settlement and got two attorneys reprimanded for their conduct. You can take that and your five posts and you know what you can do with them.

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You can take that and your five posts and you know what you can do with them.

Winner.

Legaleagle, I'm sure this is just someone having a little fun with you. No one of solid mind would try and establish themselves on a message board, with just 5 posts and tell a respected and esteemed member that they are FOS over what you have said in this thread.

If anything, their own logic applies - sift and learn. Not that they don't have valid points, but seriously, this is funny stuff.

-RD

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