Premitive1

Being sued, pretrial conference 6/5, please advise

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I am brand new to these forums. I appreciate that there are many resources available on this forum that will be of use to me, and i promise that during the course of this case I will continue reading these sources, however I would also appreciate suggestions rendered specifically for my case.

There's a lot of work ahead of me, mostly at this point i'd just like some direction on what to worry about first. I've read a few articles and have some ideas, but i'm no lawyer :/

Pretrial conference set for June 5,

1. Who is the named plaintiff in the suit?

Equable Ascent Financial, LLC f/k/a Hilco Receivables, LLC

As asigness of Chase Bank USA, N.A (WAMU)

c/o Bakkalapulo Law Firm

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Bakkalapulo Law Firm

3. How much are you being sued for?

$4,494.80, plus pre-judgment interest, and costs of this suit

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

Chase

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

I received a Summons: notice to appear for pretrial conference

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

letter served to my mother

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

yes

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

The lawyer, Bakkalapulo called me various times. At the time I was unemployed, and he did warn me he would file suit

9. What state and county do you live in?

Miami-County, Florida

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

2/17/2009

11. What is the SOL on the debt?

5 years

12. What is the status of your case?

I do not know, and will certainly be looking in to this

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

no

14. Did you request debt validation before the suit was filed?

no

15. How long do you have to respond to the suit? I don't know. I will upload the complaint shortly.

16. What evidence did they send with the summons?

  • notification under the fair debt collection practices act 15usc1692g,as amended
  • billing statement from Chase bank to me, dated September 2009. Account numbers are blackened, and the bottom of the page says "this statements is a fascimile"
  • Bill of sale from Chase Bank to Hilco Receivables, dated 10/12/9
  • titled "exhibit 1", three pages, with only one line, including a blackened account number, my personal information, balance, charge off date, contract date, delinquency date, last paid

Edited by Premitive1
adding text

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after consulting with some people I'm going to try to negotiate with the creditor (not the lawyer)

but not sure about how to go about it,

what number should I throw out? what information should I include in my plea?

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after consulting with some people I'm going to try to negotiate with the creditor (not the lawyer)

but not sure about how to go about it,

what number should I throw out? what information should I include in my plea?

It would be improper to negotiate directly with the creditor at this point as they are represented by an attorney and a lawsuit has been filed. You are stuck dealing with the lawyer.

Equitable Ascent is a Junk Debt Buyer. While it is your decision as to whether or not to settle, I would personally never pay a JDB a dime unless under court order. That means that they would have to whip my tail in court.

JDBs can be destroyed in court by Pro Se defendants who learn the rules and hammer on both standing and hearsay. Especially standing. EA will have a very difficult time proving that they own the debt.

All that said, I doubt they paid more than $250 for that debt. If you do want to settle, keep that in mind. In the very hypothetical and nearly impossible situation that I was actually considering settling with a JDB, I would file a response, and when I sent an endorsed copy of the response to the attorney, it would include a letter of my intent to defend vigorously. After that, I'd send discovery requests, and when they objected to legitimate reqeusts, I'd give them a choice: Settle for a rock bottom price or face my motion to compel.

Then I'd brace myself for the 1099-c that they might be sending me.

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What are they suing for? breach of contract account stated? both?

not sure about Wamu but Chase got Delaware as goberning law. Your last payment was feb 17 2009. When did they filed? (probably 5 days before they serve you). Check the first delinquency date, should be somewhere in march 2009. If they filed law suit after that date in march 2012, that they probably did according to the info you provided, they are suing out of SOL as per Delaware statute of limitations.

Check this one:

http://www.creditinfocenter.com/forums/there-lawyer-house/313436-will-governing-law-prevail-here.html

I'm guessing they are suing on account stated only, cause they don't attach a contract as exhibit. Check this one is important.

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

2/17/2009

When was suit filed? If it was after 2/17/2012, it is a good argument that the SOL is dead on arrival. The OC specifies DE law, that is 3 years.

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after consulting with some people I'm going to try to negotiate with the creditor (not the lawyer)

but not sure about how to go about it,

what number should I throw out? what information should I include in my plea?

I know you are new to this, but when this junk debt buyer entity doesn't have the requisite evidence to win in court, why would you want to pay them a dime.

Their bill of sale is surely insufficient if it only speaks of a portfolio of accounts and does not specifically show a sale between the original creditor and all junk debt buyers leading up to your current one which must list your name, account number and balance.

Don't let them off easy by not exposing their deficiencies.

Fact is, they can't produce a legitimate bill of sale specifically showing your name, account number and balance because it does not exist.

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The pre-trial hearing was rather simple and easy going. The lawyer hired by the plaintiff pulled each defendant she was there to sue one at a time to the side and got all of them to agree to settle except me.

I told her that based on the evidence presented to me in the complaint I did not feel it was in my best interest to settle, and also denied all the entire complaint outright.

When we went to the judge she explained for me (which I found rude, but she didn't say anything I felt was disparaging or detrimental so I kept that to myself) that I was denying the entire complaint. The judge ordered us to voluntary mediation (not voluntary in the sense that I can choose not to go, even though I denied the complaint) in 90 days. We have 60 days from June 5 to do discovery. I'm a month late and just got around to it today.

Obviously simplest thing seemed to be to get a preset from somewhere on the forum,and I'll thank Admin for their thread full of presets.

Follows is the version of request for production of documents I've made. In the complaint my full account number is never stated, and what i include is the most complete version of it i can find. How should I format that? and also the references to the plaintiff.

"PRODUCTION OF DOCUMENTS From Defendant to Plaintiff

1. The alleged credit application from Account Number 4191302(redacted)7146 bearing the defendant’s signature;

2. The alleged credit agreement from Account Numbers 4191302(redacted)7146 that states interest rate, grace period, terms of repayment, et cetera;

3. Itemized statements or credit card statements from Account Number 4191302(redacted)7146 that demonstrate how the alleged amount of $4494.80 was calculated;

4. A contract, agreement, assignment, or other means demonstrating that Equable Ascent Financial, LLC f/k/a Hilco Receivable, LLC had the authority and capacity, and was legally entitled to collect on the alleged debt from Account Number 4191302(redacted)7146;

5. Letter(s) sent to defendant by Equable Ascent Financial, LLC f/k/a Hilco Receivable, LLC, demonstrating an attempt to collect on the alleged debt, Account Number 4191302(redacted)7146;

6. A notarized statement, if presently existing or otherwise, by a person with original knowledge of the alleged debt, as it was constituted, and who can testify, or be so interrogated in a deposition, that the alleged debt was incurred legally;

7. Any and all further documents that you believe establish that plaintiff had an outstanding account or debt related to Account Number 4191302(redacted)7146;

8. Any further documentation, beyond what has been previously requested, that clearly establishes defendant’s liability and/or responsibility to the alleged debt;

9. Any and all written communication, received by the plaintiff and/or plaintiff’s attorney from the defendant, regarding the reporting of the alleged account to any credit reporting agency, as well as plaintiff’s and/or plaintiff’s attorney accessing of defendant’s credit report(s).

10. Any and all communications from plaintiff and/or plaintiff’s attorney to the defendant explaining why plaintiff and/or plaintiff’s attorney may have reported the alleged debt to any credit reporting agency, as well as obtaining defendant’s credit report(s);

11. Any and all credit report(s) plaintiff and/or plaintiff’s attorney obtained from any credit reporting agency concerning the defendant;

12. Any and all notes, memoranda, or likewise, be they handwritten, computerized, or typed, regularly kept in the normal transaction and business of collecting debts, that relate to the defendant and/or Account Number 4191302(redacted)7146;

13. The plaintiff’s Articles of Incorporation;"

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one further inquiry, i have not yet responded to the complaint. When am I supposed to do that? Am I supposed to do that? Did I do that at the pre-trial hearing?

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from the florida rule book. i may as well send a response to the complaint anyway, though would prefer confirmation. I would probably go a general denial, or should i be specific?

"© The Answer. In the answer a pleader shall state in short and plain terms the pleader's defenses to each claim asserted and shall admit or deny the averments on which the adverse party relies. If the defendant is without knowledge, the defendant shall so state and such statement shall operate as a denial. Denial shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part of an averment, the pleader shall specify so much of it as is true and shall deny the remainder. Unless the pleader intends in good faith to controvert all of the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or may generally deny all of the averments except such designated averments as the pleader expressly admits, but when the pleader does so intend to controvert all of its averments, including averments of the grounds upon which the court's jurisdiction depends, the pleader may do so by general denial."

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Usually you get 20-30 days. Check your rules and send it in, otherwise they'll default you for failure to plead. Then you have to open the default and make the court do unecessary work.

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In Florida Small claims, you don't need to answer in written, what you did on the pretrial conference, was an oral answer to the complain. You don't need to answer again you already did that in front of the judge. I'm not sure about the affirmative defenses if you void them already (if you got any), or you can still file those. I'll check that.

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RULE 7.150. JURY TRIALS

Jury trials may be had upon written demand of the plaintiff at the time of the commencement of the suit, or by the defendant within 5 days after service of notice of suit or at the pretrial conference, if any. Otherwise jury trial shall be deemed waived

You lost your right to ask for a jury trial, not a biggy anyway.

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. © Additional Rules. In any particular action, the court may order that action to proceed under 1 or more additional Florida Rules of Civil Procedure on application of any party or the stipulation of all parties or on the court’s own motion.

and the main rule says:

RULE 1.110. GENERAL RULES OF PLEADING

(d) Affirmative Defenses. In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms if justice so requires, shall treat the pleading as if there had been a proper desig-nation. Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 1.140(B); provided this shall not limit amendments under rule 1.190 even if such ground is sustained.

The pretrial was on 6/5 right? so 26 days ago? I think you could still ammend the answer to include afimative defenses, I belive is 30 days if I recall correctly.

I'll look into that, cause if you can amemd it you should include statute of limitations as an affirmative defense since Chae is Delaware and this debt is SOL, and Florida accept that with plenty of case laws.

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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 par-ty may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a mo-tion 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.

(B) Amendments to Conform with the Evidence. When issues not raised by the pleadings are tried by ex-press or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings. Such amendment of the pleadings as may be necessary to cause them to conform to the evidence and to raise these issues may be made upon motion of any party at any time, even after judgment, but failure so to amend shall not affect the result of the trial of these issues. If the evidence is objected to at the trial on the ground that it is not within the issues made by the pleadings, the court may allow the pleadings to be amended to conform with the evidence and shall do so freely when the merits of the cause are more effectually presented thereby and the objecting party fails to satisfy the court that the admission of such evidence will prejudice the objecting party in maintaining an action or defense upon the merits.

© Relation Back of Amendments. When the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading, the amendment shall relate back to the date of the

original pleading.

(d) Supplemental Pleadings. Upon motion of a party the court may permit that party, upon reasonable no-tice and upon such terms as are just, to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. If the court deems it advisable that the adverse party plead thereto, it shall so order, specifying the time therefor.

(e) Amendments Generally. At any time in furtherance of justice, upon such terms as may be just, the court may permit any process, proceeding, pleading, or record to be amended or material supplemental matter to be set forth in an amended or supplemental pleading. At every stage of the action the court must disregard any er-ror or defect in the proceedings which does not affect the substantial rights of the parties.

(f) Claims for Punitive Damages. A motion for leave to amend a pleading to assert a claim for punitive damages shall make a reasonable showing, by evidence in the record or evidence to be proffered by the clai-mant, that provides a reasonable basis for recovery of such damages. The motion to amend can be filed sepa-rately and before the supporting evidence or proffer, but each shall be served on all parties at least 20 days be-fore the hearing.

You'll try to amend the answer to include Statute of Limitations as an afirmative defense, you can use this rule section a or d.

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Start Discovery, since after the settlement thing, or before they might hit you with a motion for sumary judgement, cause you just denied everything and they will say a general denial is not a sufficient defense. Hit them as soon as you can with Discovery, and do an amended answer to include SOL as an affirmative defense. That's what I think is in your best interest right now.

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