Jump to content

Well I finally got served by Livingston Financial


Recommended Posts

I received the service today. They didn't attach anything more than a computer generated statement. I was really expecting more than this. Please let me know what you think. I will be posting this as exact as I can. I should be back in an hour after picking up my daughter so I can get started on what to do with this.

In Count 2 I noticed they say we had business together, how so? They didn't own the account per their complaint in 2008, unless they say I did by virtue of them buying it.

(they left the case # blank if that matters)

In the County Court in and for LilSweetie's County Florida

Livingston Financial LLC as successor in interest to US Bank Case #

Plaintiff

Vs

LilSweetie

Defendant

COMPLAINT

Plaintiff, Livingston Financial LLC as successor in interest to US bank sues Defendant, LilSweetie and alleges:

JURISDICTIONAL AND FACTUAL ALLEGATIONS

1) This is an action for damages that exceeds $5,000.00 but is less than $15,000.00.

2) Upon Defendants request, Plaintiff or its successor(s) established a credit account in the name of defendant, LilSweetie, and issued a credit card to same Defendant(s).

COUNT 1

3) Plaintiff readopts and realleges the jurisdictional and factual allegations of this Complaint.

4) This Count is pursuant to FRCP form 1.936 approved by the Florida Supreme Court **This appears to be for Money Lent**

5) Defendant(s), LilSweetie owe(s) Plaintiff $9000.00 that is due with interest since August 29th, 2008, for money lent by Plaintiff to defendant.

WHEREFORE, Plaintiff demands judgment against Defendant(s), LilSweetie for damages, plus court costs and interest.

COUNT 2

6) Plaintiff readopts and realleges the jurisdictional and factual allegations of this Complaint.

7) This Count is pursuant to FRCP form 1.933 approved by the Florida Supreme Court **This appears to be for Account Stated**

8) Before the institution of this action the Plaintiff and Defendant, LilSweetie had business transactions between them and on August 29th, 2008, they agreed to the resulting balance.

9) Plaintiff or its Successor(s) rendered a statement of it to Defendant, LilSweetie a copy being attached, and the Defendant, LilSweetie did not object to the statement.

10) Defendant, LilSweetie owes Plaintiff $$9000.00 that is due since August 29th, 2008 on the account.

WHEREFORE, Plaintiff demands judgment for damages against Defendant, LilSweetie for damages, including court costs, and such other relief as this Court deems reasonable.

COUNT 3

11) Plaintiff readopts and realleges the jurisdictional and factual allegations of this Complaint.

12) This Count is pursuant to FRCP form 1.932 approved by the Florida Supreme Court. **This appears to be for Open Account**

13) Defendant, LilSweetie owes Plaintiff $$9000.00 that is due since August 29th, 2008, according to the attached account.

WHEREFORE, Plaintiff demands judgment for damages against Defendant, LilSweetie including court costs, and such other relief as this Court deems reasonable.

Sprechman & Associates PA

Attorney for Plaintiff

By Scott E. Modlin Esq

As for count 1, since this alleged debt is a credit card, wouldn't that have arose due to a contract? Then the only remedy would be pursuant to a contract, how can it be money lent?

Now as for counts 2 and 3, from what I understand and have researched FCRP Form 1.932 and 1.933 both require an accounting of every item, time of

accrual of each item, and the amount of each item be attached to

the complaint. So I believe a final statement showing the total is not enough for open account and account stated.

Also they can't collect fees and interest as those are only pursuant to contract. There is no contract attached.

Many thanks in advance!

Edited by lilsweetie
Link to comment
Share on other sites

Here is the alleged statement, there is no notary, no affidavit, no card agreement. This is all I got, a computer print out. the address on this statement......... I have never lived at in my entire life.

Livingston Financial LLC

C/O World Credit Investors LLC

PO BOX 3935

Barrington, IL 60010-3935

LilSweetie

***** Some Dr

My City, FL 00000-0000....................................Account # blacked out

Balance Due $9,000.00

Placement date............Summary...............................Amount

07/05/2011............Debtor Balance.........................$9000.00

..............................Livingston Financial...............................

..............................For Assignments Originating....................

..............................from US BANK/US BANK..........................

Send inquiries to:

Livingston Financial LLC

C/O World Credit Investors LLC

PO BOX 3935

Barrington, IL 60010-3935

“This statement is an account summary. It is not a credit card statement.”

Edited by lilsweetie
Link to comment
Share on other sites

The initial complaint is only to give you the basic cause of action against you and give you enough information about what they are alleging.

In other words, it's like a speeding ticket. The cop says you were going 75 in a 60. However, you could have all kinds of defenses and the ticket does not have to list the calibration of the radar gun, the certificates the officer has, the details of you speeding, like I was sitting on a blind curve using XXX radar gun. I had reasonable suspicion the car was speeding so I aimed my gun at the gun and then initially clocked the going ect.... you get the point.

The complaint just needs to ID you, them, the cause of action, why the court can hear the case, the law they are suing you under, and then what they want the court to give them (relief, judgement).

Link to comment
Share on other sites

Hi!! I'm also from Florida

1) What they attached as exhibits? they need to attach at least the contract and the monthly statements, if they don't you could get the case dismiss for not following proper procedure. don't remember now the rule number but check out the actual book http://www.doh.state.fl.us/ig/ADR/General/FLorida%20Rules%20for%20Civil%20Procedures.pdf

2) If the debt is from 2008 it might be SOL, in Florida they DO accept choice of laws. And that means if is a choice of laws from Delaware or Virginia as examples, the SOL there is 3 years and not 4. Check the contract and search for a goberning law. It will say something like this agreement is governed by Federal and such state law.

Try to get that data and we see.

Link to comment
Share on other sites

8) Before the institution of this action the Plaintiff and Defendant, LilSweetie had business transactions between them and on August 29th, 2008, they agreed to the resulting balance.

Did you ever make payments to them or agree to the balance?

Link to comment
Share on other sites

Read also rule 1190. It is very important that you respond to the complain and put your affirmative defenses there too. After you respond the complain they cannot ammend it, that means that all the evidence should be on the initial complain, if it's not then it will be dismissed for inproper procedure. That said if they only got a piece of s***t on the initial procedure then they don't have nothing at all. Another thing is that in florida Discover is not necesary, they need to come with all the papers. They are the ones that need to prove the case not you.

They fail to attach a proper chain of custody, as per FDCPA, you don't see a bill that the JDC bought from the OC right?

They fail to attach a monthly statement and the contract right?

and they fail to have any evidence other than that paper that you owe them anything right?

I think you should win this one easy, they are looking for a default judgement. I searched my court and 99% of the cases are settled or go with default judgements, they don't expect the people to defend themselves.

Link to comment
Share on other sites

I agree they are probably (well likely) looking for a default. However, all the issues with the initial complaint, as far as attaching documents, seem like easy defects to "cure"

I have a different take. I pretty much know your right and they can't prove their case. I'd rather let them get into the trial stage or at least deeper in the court case before I started blowing holes in their case.

In other words, if you hit them right now with all their defects, they can easily cure the defects with little effort. However, as you also pointed out, if you get this party rolling and then start in with demanding documents, they are in trouble.

The flip side is they might hit the road with a motion to dismiss for not following procedure (actually that would be failing to state a claim). I'm just going on the assumption the documents have to be attached. I have no idea about Florida procedure.

In my opinion no need to tip off your opponent this early in the game. You don't see a pro football team busting out their fake punt play in a pre-season game. They save it where the play can do some damage. I'd hold back a little and hit them hard when they are too far into the case where they have to make a real financial decision.

Link to comment
Share on other sites

Hi!! I'm also from Florida

1) What they attached as exhibits? they need to attach at least the contract and the monthly statements, if they don't you could get the case dismiss for not following proper procedure. don't remember now the rule number but check out the actual book http://www.doh.state.fl.us/ig/ADR/General/FLorida%20Rules%20for%20Civil%20Procedures.pdf

Thanks for this information, I see you put the rule in a later post. I will check into what it reads!

2) If the debt is from 2008 it might be SOL, in Florida they DO accept choice of laws. And that means if is a choice of laws from Delaware or Virginia as examples, the SOL there is 3 years and not 4. Check the contract and search for a goberning law. It will say something like this agreement is governed by Federal and such state law.

Unfortunately they have North Dakota choice of law (6yr SOL) so I don't think I can use this.

Try to get that data and we see.

Hope that tells you what you want to know kutuzov. Let me know if you want any more info!

Link to comment
Share on other sites

Not attaching a contract or cc statements to an account is not always fatal to a case. You need to check some FL case law. Also, a judge might consider Livingston's statement to be sufficient since it was attached to the Complaint.

In regard to answering the allegations, did you ever make payments to Livingston or agree to the balance? I'm referring to allegation #8.

Link to comment
Share on other sites

I would do this approach but I DO NOT have a lot of court experience just read the book.

1 File an answer with affirmative defenses, list all the affirmative defenses you can use, AFTER 20 days of filing you CANNOT ammend it.

2 Go to court and state your defenses, just relax and let them try to prove thier case, they probably got nothing, and the judge might dismiss it right there. If not;

3 File a motion to Dismiss after that, they got 14 days to object it, if they don't then is automatically granted. If they do you got 5 days to file a memorandum I think is call to object thier objections.

Then if all that fails, they might move to Summary judgement, chances are you should well get it dismiss long before that.

Anyway what bank issued the cc? you could claim SOL.

Link to comment
Share on other sites

Did you ever make payments to them or agree to the balance?

Hey BV80, I can say without a doubt that no payments were ever made after August 2008. I can also say without a doubt that no agreements were ever made with US Bank, Livingston, whoever this World Credit company is, or Sprechman.

Short of my husband filing BK on this debt in 2009 nothing has happened on our end with it. I still regret not filing with him but it is what it is, so now I am going to fight them. Still no evidence this is the same debt and I am even more leery of it since the address on the statement is one I never lived at. We have been in the same house since 2003.

Link to comment
Share on other sites

Kutuzov, I am not sure about Rule 1.130, see below:

Rule 1.130 Attaching Copy of Cause of Action and Exhibits

(a) Instruments Attached.

All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.

(B) Part for All Purposes

Any exhibit attached to a pleading shall be considered a part thereof for all purposes. Statements in a pleading may be adopted by reference in a different part of the same pleading, in another pleading, or in any motion.

Operational aspects of the Attachment Requirement.

Applicable to both affirmative and defensive pleadings

Although practitioners commonly think of this rule solely in terms of the necessity of attaching documents to affirmative pleadings, such as complaints, which would otherwise face risk of dismissal, the rule also requires attaching documents “upon which … defense [may be] made”

Berman says: The author is unaware of any case law addressing the failure to attach documents upon which defenses are made. Experience suggests that practitioners are generally either unaware of this requirement or have rarely sought to enforce it.

The Effect of a Failure to Attach.

(a) A Substantive or Procedural Defect?

The rules of civil procedure are just that, procedural rules. They do not and cannot create substantive law.

See Banyard v. Wainwright, 322 So.2d 473 (Fla. 1975);

Lundstrom v. Lyon, 86 So.2d 771 (Fla. 1956);

State v. J.A. Jr., 367 So.2d 702 (Fla. App. 2 Dist. 1979)

Thus, it stands to reason that the attachment rule cannot change the substantive elements of a cause of action. For example, all of the elements of a common law claim to recover damages for fraud based upon a written fraudulent misrepresentation can be set forth in a complaint (or other pleading), sufficient to state a cause of action under applicable Florida common law, whether or not the document is attached. Thus, the failure to comply with the procedural requirement to attach, while it may subject the pleading to dismissal for non-compliance with Rule 1.130, should not result in dismissal under Rule 1.140(B)(6) for failure to state a cause of action. Nor is there any other category of Rule 1.140(B) that would appear to apply. It would tend to follow, then, that a motion to dismiss for failure to comply with Rule 1.130 should not toll the time for response to the pleading, as would otherwise be provided under Rule 1.149(a)(2) for motions to dismiss under subdivision (B) of that rule. Any tolling effect should require an express stay order from the court. Nevertheless, some courts have stated that a complaint based on a written instrument cannot state a cause of action until the instrument or an adequate portion thereof is attached to or incorporated in the pleading in question.

See Contractors Unlimited, Inc. v. Nortrax Equip. Co. Southeast, 833 So.2d 286, 288 (Fla. App. 5 Dist. 2002) (Because of Rule 1.130(a), “[a] complaint based on a written instrument does not state a cause of action until the instrument or an adequate portion thereof, is attached to or incorporated in the complaint.”) (citations omitted);

Safeco Ins. v. Ware, 401 So.2d 1129 (Fla. App. 4 Dist. 1981) (citing Trawick, Florida Practice & Procedure s. 6-15 (1980));

Fraser v. Southeast First Bank, 395 So.2d 1187 (Fla. App. 5 Dist. 1981) (suggesting that defendants might have moved to dismiss the amended complaint pursuant to Rule 1.140(B) for failure to attach an account sued on).

Link to comment
Share on other sites

Is telling you that the writting instrument of the complain should be attached. That is at a minimun the last monthly balance and the contract. If they sue you for breach of contract they got to attach the contract. There's a case in Florida that the Plantiff attached a contract but in spanish instead of english and it got dismissed just because of that, so with no contract there's no case. I don't have the case info on top of my head but you can google it, you might find it.

Link to comment
Share on other sites

I DO NOT have a lot of court experience.
1 File an answer with affirmative defenses, list all the affirmative defenses you can use.

:trainwreck:

Horrible, horrible, horrible advice

No court experience and pleading affirmative defenses in a credit card case are just a train wreck waiting to happen. Just can't sugar coat it, sorry, but that will get ugly real quick.

2 Go to court and state your defenses, just relax and let them try to prove thier case.

Yeah right, relax after stating your defenses. All those affirmative defenses are YOUR defenses to prove. They are the ones that will be relaxing while you try to explain how your affirmative defenses apply in this case. By the way one of those affirmative defenses that the "book" will tell you to lose has been destroyed (in cases like this) by the U.S. Supreme Court 9-0. Not sure how relaxing it's going to be arguing to a state court judge that they need to rule in your favor and overturn a unanimous U.S. Supreme Court. That does not sound relaxing to me.

They probably got nothing

Now that's probably true!

And the judge might dismiss it right there

And that is not true.

3 File a motion to Dismiss

Before or after you plead a bunch of affirmative defenses and relax. A motion to dismiss means you take all the facts that the other side is alleging and assume they are correct, and still with you putting up no defense means you win. In other words if 100% what they allege is true you would still win.

or

The court lacks jurisdiction

or

A procedural error (problem with that is those usually can be easily cured)

after that, they got 14 days to object it, if they don't then is automatically granted.

Probably true, but trust me they will be objecting.

If they do you got 5 days to file a memorandum I think is call to object thier objections.

It's called a reply and in this case would be called a waste of paper.

Then if all that fails, they might move to Summary judgement, chances are you should well get it dismiss long before that.

Oh they will move for summary judgement that is something else that is dead on. Problem is the last part. You won't have this dismissed long before that.

Sorry to be so blunt, it's nothing personal at all, but dang, if you use this strategy you just need to get out your checkbook and pay them and save the court costs and headache.

It should be a felony to charge somebody for that kind of advice if that is what was given you in the "book" you got. Just horrible !! Filing a motion to dismiss 1/2 way through the case? a laundry list of affirmative defenses? and just sit back and relax? :confused:

Link to comment
Share on other sites

Is telling you that the writting instrument of the complain should be attached. That is at a minimun the last monthly balance and the contract. If they sue you for breach of contract they got to attach the contract. There's a case in Florida that the Plantiff attached a contract but in spanish instead of english and it got dismissed just because of that, so with no contract there's no case. I don't have the case info on top of my head but you can google it, you might find it.

She's not being sued for breach of contract.

Link to comment
Share on other sites

So when drafting my reply I have to answer each number? Some seem to have to do with jurisdiction and procedure.

You answer each number.

3) Plaintiff readopts and realleges the jurisdictional and factual allegations of this Complaint.

This refers back to #1 and #2. If it were me, I'd state:

3. Admitted in part and denied in part. Defendant admits Allegation #1 based upon information and belief. Defendant denies Allegation #2.

Something like that. They did the same thing with #6.

Link to comment
Share on other sites

How would this work as an answer?

DEFENDANT, LILSWEETIE'S

ANSWER

Comes now the Defendant, LILSWEETIE, files this Answer to the Complaint filed by the Plaintiff, Livingston Financial LLC, and would state as follows:

JURISDICTIONAL AND FACTUAL ALLEGATIONS

1. Admitted only in that this is an action for damages that exceeds $5,000.00 but is less than $15,000.00 . It is denied in that Plaintiff has failed to plead sufficient ultimate facts or attach required documents to qualify its capacity or authority or the action it asserts so as to gain the subject matter jurisdiction of this court. Strict proof thereof, with clear and convincing evidence, is demanded.

2. Denied in that Plaintiff failed to plead sufficient ultimate facts to identify the credit account referenced, that Defendant established the alleged account, and further essential facts sufficient for Defendant to respond. Plaintiff has failed to plead sufficient ultimate facts to establish that is indeed the assignee of the alleged account, how it acquired the assignment to the alleged account, nor how the predecessor(s), if any, acquired assignment to the alleged account. Strict proof thereof, with clear and convincing evidence, is demanded.

COUNT 1; MONEY LENT

3. Admitted in part and denied in part. Defendant admits in part and denies in part allegation #1 based upon information and belief. Defendant denies allegation #2 based upon information and belief.

4. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation contained in #4 of the Complaint and denies generally and specifically the allegation contained therein.

5. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation contained in #5 of the Complaint and denies generally and specifically the allegation contained therein.

COUNT 2; ACCOUNT STATED

6. Admitted in part and denied in part. Defendant admits in part and denies in part allegation #1 based upon information and belief. Defendant denies allegation #2 based upon information and belief.

7. Defendant denies in that Plaintiff has failed to plead facts sufficient to establish an accounting of every item, time of accrual of each, and the amount of each pursuant to F.C.R.P 1.933. Strict proof thereof, with clear and convincing evidence, is demanded.

8. Defendant denies.

9. Defendant denies. (should I deny? I do recall receiving 2 letters from Messerli but I cannot locate them and do not recall what was in them, and we have the one from Sprechman.)

10. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation contained in #4 of the Complaint and denies generally and specifically the allegation contained therein.

COUNT 3; OPEN ACCOUNT

11. Admitted in part and denied in part. Defendant admits in part and denies in part allegation #1 based upon information and belief. Defendant denies allegation #2 based upon information and belief.

12. Defendant denies in that Plaintiff has failed to plead facts sufficient to establish an accounting of every item, time of accrual of each, and the amount of each pursuant to F.C.R.P 1.932. Strict proof thereof, with clear and convincing evidence, is demanded.

13. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation contained in #4 of the Complaint and denies generally and specifically the allegation contained therein.

Respectfully submitted:

April 02, 2012

________________________

LILSWEETIE

0000 LilSweetie's Dr

My City, FL 00000

(000) 000-0000

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing has been furnished by U.S. Mail, this 2nd day of April, 2012, to Scott E. Modlin Esq, 2775 Sunny Isles Blvd, Suite 100, Miami, Florida 33160-4007.

______________________________

LILSWEETIE

Edited by lilsweetie
Link to comment
Share on other sites

1. Admitted only in that this is an action for damages that exceeds $5,000.00 but is less than $15,000.00 . It is denied in that Plaintiff has failed to plead sufficient ultimate facts or attach required documents to qualify its capacity or authority or the action it asserts so as to gain the subject matter jurisdiction of this court. Strict proof thereof, with clear and convincing evidence, is demanded.

I would respond only to what they state in each allegation. That allegation didn't include any other facts. If I had to deny anything in #1, I'd state that I admit it's an action, but I deny there are any damages. I don't know if that would be proper, though.

They didn't refer to their right to sue or that they're the owners of the account. I wouldn't bring that up, yet.

3. Admitted in part and denied in part. Defendant admits in part and denies in part allegation #1 based upon information and belief. Defendant denies allegation #2 based upon information and belief.

Refer back to what I pointed out before.

I would deny 9, 10, and 13. Regarding 10 and 13, I, personally, wouldn't state "without knowledge or sufficient information to form an opinion as to the truth", because you know you don't owe them a penny.

Check your rules regarding answers to the complaint. If they state that you have to provide an explanation if you deny, I'd simply add:

No evidence has been provided to support this allegation.

They can provide what they will deem "evidence", but it won't support the allegation. :)

Edited by BV80
Link to comment
Share on other sites

What about #9? And if I do not begin attacking Assignment/Chain of title now, when do I do so?

My mind was on #2. That's the allegation where they that you established an account with them or their "successors".

First problem, which I just noticed. They mean to say their "predecessor". A predecessor is someone comes before the current JDB...meaning the OC.

Livingston is actually the successor to the OC. The way they worded it, they (Livingston) established the account...not the OC. A successor to Livingston would take over after Livingston. If there was a successor to Livingston, then Livingston wouldn't be suing, because they would have sold that account to the successor (new JDB).

That being said, it's probably just an error because they're stupid.

I wouldn't say "denied in that". Plant a firm "Denied." Then offer the explanation if you want. Considering what they stated in the allegation, I made respond with:

Denied. Defendant never requested and has never had an account with Plaintiff or its successor(s).

I've been pondering #1 for a while. I have a problem with their claim of damages. It could very well mean just what it says. They claiming damages. You could admit that, because that's what they are claiming. It's not about it being true or not. Hopefully some others will weigh in on that.

In #3 and #6 where you stated "Defendant denies allegation #2 based upon information and belief." Take out "based upon information and belief". There's no information and belief about it. You know you didn't have an account with them or US Bank.

Regarding the assignment and chain of title, see what your court rules state about discovery. You don't argue the case in your answer. You simply respond to the allegations. If you feel like you must say something about the lack of assignment/ownership, you could use Lack of Standing for an affirmative defense.

That being said, you say you never had an account with US Bank. Is it possible US Bank took over an account that you had with another bank?

Link to comment
Share on other sites

That being said, it's probably just an error because they're stupid.

On the fence with this one? Let me help you, they are not probably they are. What is more offensive than their stupidity, is their assumption that all debtors are too stupid to realize how stupid they are.

Link to comment
Share on other sites

I've been pondering #1 for a while. I have a problem with their claim of damages. It could very well mean just what it says. They claiming damages. You could admit that, because that's what they are claiming. It's not about it being true or not. Hopefully some others will weigh in on that.

Exactly !!

1. I'm the President of the United States of America.

Now admit or deny that I just claimed I'm the president.

Sure you'll admit that is what I claimed. Just like sure you can admit that is what they claimed.

In my opinion, less is better answering a lawsuit. I'd just say admitted to number one. However, if you can't bring yourself to that, then, #1 requires no response as the clear language in the complaint speaks for itself. Personally, I'll admit to anything you want to claim, as long as I'm just admitting that's what you are claiming.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.