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Help with Motion to Dismiss CAP1 suit


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I am seeking to file a motion to dismiss because the original complaint posted below does not state a default date so there is no way for the Court to determine if this is a time-barred action which exceeds the SOL. A blank unsigned copy of their cardholder agreement was included with the Complaint. Any additional suggestions as to what I might include in my motion would be appreciated.

IN THE COUNTY COURT IN THE NINETEENTH JUDICIAL CIRCUIT

INT AND FOR ST. LucrE COUNTY, FLORIDA

CASE NUMBER: DIV:

CAPITAL ONE BANK (USA), N.A., a corporation,

Plaintiff,

VS. JUDGE NELSON

XXXXXXXXXX,

Defendant.

COMPLAINT- BREACH OF CONTRACT

The Plaintiff, CAPITAL ONE BANK (USA), N.A., sues the Defendant, XXXXXXXX, and alleges:

1. This is an action for damages that does not exceed $5,000.00, exclusive of interest, costs and attorney's fees.

2. The Plaintiff established a credit card account in the name of the Defendant and issued a credit card to the Defendant.

3. The credit card and the original credit card agreement (the "Agreement") were sent to the Defendant. Upon information and belief, Defendant is in possession of the original Agreement. A copy of the Agreement is attached and incorporated herein by reference.

4. Defendant, or others authorized by the Defendant, used the account to incur charges, thus accepting the ter-z.s. cif the ueement and ageenag to be bound thereunder.

5. Defendant breached the Agreement by failing to make payment when due.

6. Defendant owes Plaintiff $xxxxxxx.

7. All conditions precedent to bringing this action have occurred or have been waived.

8. Plaintiff is obligated to pay its attorneys a reasonable fee for eir services. The Agreement provides for

the recovery of attorney's fees, In the event of a default, a reasonabl orney fee would be $400.00.

WHEREFORE, Plaintiff demands judgment for damages and attorney fees.

Edited by goldrush
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Don't waste your time with this, it is not the responsibility of the court to conduct your defense. If you think the SOL is expired, you have to conduct discovery to get whatever document they have that shows the date of the last payment made. If that shows it is out of SOL, THEN you file the motion.

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