caramia1225

How to file Motion to Dismiss Because Dollar Amount Sought is Now Under Court Limit?

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Hi All,

I am in the midst of defending myself against American Express, represented by Zwicker & Associates in Florida.

Here are the short facts of this matter:

1) Fraudulent charges in the amount of $12,500 were made to my card.

2) I promptly reported the invalid charges.

3) Amex mishandled the claim and refused to remove the charges.

4) Amex tacked on interest and fees to this invalid amount and subsequently hired Zwicker to sue me.

5) I was sued in civil court ( local rules require suit amount between $5,000 - $15,000 for this venue).

6) This time, when I informed Zwicker in front of the judge that the amount sued for was reported as fraud, Zwicker had Amex contact me directly.

7) After two months of phonecalls, Amex removed the actual dollar amount of the fraudulent charges and assured me the interest and fees would be removed within 30 days.

8) 60 days later, the interest and fees have not been removed and Zwicker just sent me a letter threatening further litigation if I don't pay the adjusted balance. ( A balance of which now consists of the interest and fees accumulated on the fraudulent charges and have still not been removed from my account).

9) The adjusted amount that Zwicker is now asking for is under $5,000 which local rules require be heard in Small Claims Court.

I have already written a pretty good response to Zwicker threatening to sue them for the multiple FDCPA and FTCB violations and demanding voluntay dismissal with prejudice. As I imagine, the right hand does not know what the left hand is doing as it would be pretty brazen to continue suing me for interest and fees on fraudulent charges.

Meanwhile, Zwicker filed a "Notice of Cause at Issue" telling the court that all motions have been disposed of and requesting date for a trial.

So..... I have to file something here to protect myself should Zwicker try and move ahead despite my letter.

First, I will definitely file a Motion to Dismiss with Prejudice based on the facts previously stated, including that the case is now in the wrong venue, under $5,000. My concerns here is I hope my MTD is not too late. I just received the notice today asking the court for a trial date and I will be sending out my MTD on Monday. I do not know if the judge can say it's too late to file another motion.

Second, I am thinking I will file an Opposition to the Plaintiff's Notice of Cause at Issue. That a trial should not be set in this venue because it is admittedly now under $5,000 that the Plaintiff is looking to collect. The thing is, I can not find anything on such a situation. Anything about "venue" always talks about proper location, so I am not even sure how to state this.

Any ideas?

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How motions are handled will be detailed in your rules. In general, you would have the motion, which would be short concise statements of what you want the court to do and why, and then you would also have a memorandum or a brief detailing your arguments why. This is where you would cite statutes, rules and case law detailing your argument. In this case, it sounds fairly simple: The court lacks subject matter jurisdiction.

My advice: Start googling things like

"motion to dismiss florida filetype:pdf"

This will provide you examples, and it will be extra helpful if you can look up whether or not the motion was successful.

Also, use Google Scholar to search for case law backing up your claims, and obviously include the rules.

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usagi555,

Thanks so much for your advice and the resource links.

Yeah, I have been fighting a couple cases for a while now and think I have been through my rules 100's of times, yet some answers are just not there.

One of the things that I did not know was how to state that the case is now in the wrong court... " The court lacks subject matter jurisdiction" is very helpful. Thank you

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usagi555,

Thanks so much for your advice and the resource links.

Yeah, I have been fighting a couple cases for a while now and think I have been through my rules 100's of times, yet some answers are just not there.

One of the things that I did not know was how to state that the case is now in the wrong court... " The court lacks subject matter jurisdiction" is very helpful. Thank you

Yeah, well, you might want to make sure that terminology is proper for FL. It would be proper in Federal, but I don't know about FL. Perhaps, just "the court lacks jurisdiction" would be appropriate there. I don't know.

While you are supposed to know and follow the rules and the law, you are not supposed to be held to the same technical standards when it comes to pleading and motions. In other words, the deadlines and procedures apply to you, legal principals and laws apply to you, but if you don't have the jargon down or don't state things with quite the clarity of an attorney, you are not supposed to be punished.

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Well, that may not be the exact correct jargon, but just googling that phrase plus Florida is bringing up a lot of helpful stuff that I was not finding before....so thank you!

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It'll be a PITA, and there may not even be case law in existence for you to cite, but I recommend looking specifically for case law that deals when the dollar amount suddenly changes, knocking the case out of the court's jurisdiction. In other words, case law that specifically applies to your circumstances. You might find something important out, like because the court originally had jurisdiction, it can continue to hear the case. Or you might find something that supports your argument. Either way, it's something that you probably want to know.

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jurisdiction so you are basically stuck. Send a written dispute concerning the charges on the account and a motion for leave to file counterclaim/crosscomplaint/whatever it is.

The dispute long ago and expiration of the 21 day safe harbor provision makes you able to sue them back you might make some money on that.

also file a new amended answer disputing everything. Also do discovery on the fraud procedures and the specific communications relating to your dispute. Hitting them back will go along way to making them go away.

Make sure you file a dispute letter with them directly and reference the FDCPA, The FCBA, and any other statutes, also IIED and Consumer Harrassment, UCL claim and anything state related.

Make sure to send that letter before the 30 day deadline of the FCBA.

They will have to dump the suit within 21 days or they will be screwed.

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I would rather see you stay in your current court where you have the option of filing motions and have a real judge to deal with. If you go down to small claims you may lose those options. Did they provide a credit card statement from the month before the fraudulent charges were made to the account? That would show the only balance they would be allowed to pursue. I'd argue against interest too, since they refused to remove the fraudulent charges from the account. Heck, since you aren't even legally required to pay on fraudulent charges, you could even argue that the account never went into default and the case is moot.

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Thank you Seadragon and Bruno,

All good advice. Much appreciated!

Yeah, the credit card statements prove that my balance before the fraud occurred was $1063. They show a history of my paying my bill on time every month for over 3 1/2 years before the fraud.

At this point, the fact that Amex NOW reversed the fraud charges just shows their guilt. If they wanted to defend themselves saying I never reported the fraud or they did a proper investigation the first time it was reported...well, by reversing the charges now totally blew any kind of defense like that out of the water.

Now their lawyers are still harrassing me for the valid amount, the interest and fees on the fraud that have not been removed, plus their court costs, which is even further evidence of their mishandling of this whole thing.

At this point, I am going to contact an attorney I consulted with earlier this year. He came highly recommended by another attorney friend of mine and these credt cases are his specialty. I was going to try and do this on my own. I did successfully bring a conclusion to a JDB case this month that I was fighting pro se for about 2 1/2 years, but I think this may be out of my league as far as the time and research it will take someone like me with really no legal knowlegde. Plus, I understand they won't take a lot of what a pro se threatens seriously.

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You can do this, all you have to do is show the court that the balance sought bears no resemblance to the complaint. Considering the fact that the fraudulent charges were admitted to, how about this......reinstate the account at the original balance, you'll pay accordingly, and dismiss the case. Otherwise you face a massive countersuit for abject stupidity and anything else we can think of, and believe you me, we can think of a lot. How much do you think they'll pay Zwicker to go after a grand? That's what, three or four hours of work? No way. They'll dismiss.

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Okay, so let me ask you Bruno... If they originally brought the case for $14k, and now in the middle of it they admitted that $12,500 was fraud and $1,000 was interest, leaving me my $1,063 actual balance.... can't they just ammend their complaint and adjust the total they are seeking?

No matter what, it looks like I'll have to pay what I owe... $1,063. Even if I handle this myself, I'll have to pay that much. And even if they reinstate my account, they can cancel it at any time for any reason they want, so as I would like my account back, it'snot that big of a deal to me.

But if I get an attorney then I may be able to get a cash settlement against them. That's what I was thinking.

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It's doubtful you'll get an attorney to take this case, there isn't any money in it for them unless there is a clear FDCPA violation. That goes waay, as this is an OC and the FDCPA does not apply to them. It would apply to Zwicker, but do you really want to go down this road for this amount of money? Others will advise, Coltfan will tell you if you have a good violation. However, if you don't want to fight and can get them to start all over again in small claims with a new suit, arbitration will kill this, see Linda7.

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Already tried the arbitration route, judge denied. They are very strict here in Florida about waiving your rights to arbitration if you so much as even answer the complaint. I did not know any better when I originally answered, so when I tried to compel Arb, the judge denied because I "participated" in the case...lol.

Yeah, the fees for a lawyer to handle this case would be the same or more for me to settle it for what I actually owe.

I was going to negotiate myself, but I think I do have some good violations to go after. I received a recommendation for a lawyer at this website from a board member here. This lawyer apparently goes after violations exclusively on a fee contingent basis (collectionstopper.com).

I contacted this guy last night and forwarded my stuff this morning before I contact Zwicker myself. I'll see what he has to say. I looked him up on the Florida bar association website and he he seems legit. Anyway, I'll see what he has to say.

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