Chevy10

I won today against LVNV Funding

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I have been lurking on here since shortly after I was sued back in September. Thanks to everything I have read on here and some other research I have done, I received a Dismissal w/out Predjudice today in the mail. I don't see it on the docket yet but will be keeping an eye out for it.

I was too afraid to post anything before now in case there was anyone watching the posts. But I would like some critique if anyone wants to of what I filed and if i should have changed anything or done anything different. Since it was without predjudice I know they might come back, and I do have a couple of cards with MCM that I know will come for me at some point. And again any critique will just help me later, and if anything I filed would help someone else I want to do that as well.

Here is an overview of how it went:

September - I filed Answer with Jury demand and notice of cost bond (in FL out of state plaintiffs have to post a $100.00 bond)

Trial set for November

October - I filed Req to Prod and Admissions to Plaintiff; Plaintiff filed Motion for witness to appear at trial by telephone and Req to Prod to me along with Interrogs; I then filed a response in opposition to the telephone motion; Motion was granted by judge; Dismissal arrived. :BigDance:

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Is the dismissal from midland's attorney? If so, write them a letter saying thank you,, but you must decline. Tell them you want a dismissal with prejudice, trade line removed and no reselling.

If you need a sample, let me know.

Or not.

jpavv, are you volunteering to pay Chevy10's expenses if he takes your advice and loses?

I didn't think so.

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Or not.

jpavv, are you volunteering to pay Chevy10's expenses if he takes your advice and loses?

I didn't think so.

WOW!!! a bit harsh...just saying this is what was suggested to me here about a month ago, and with the help of Linda7, I got a dismissal "with" prejudice, TL removed and a few other goodies.

No one is forcing any one to do anything they don't want to do and everyone must do their own Due Diligence.

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Thanks for the trust but verify info.......... yes it's signed by Midlands attorney but not the judge yet. I will watch the docket carefully and show up if it's not dismissed. Also I will think about what you said JPAVV, I hadn't thought about that. Thats why I love this forum!

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As I said earlier I am hoping for any critiques of what I filed so I can make it better for round 2 if there is one or for MCM if they ever file. Plus if what I filed is good as is then maybe it might help another fellow Floridian beat these bottom feeders in the future.

IN THE COUNTY COURT IN AND FOR

XXXXXXX COUNTY, FLORIDA

LVNV FUNDING LLC

Plaintiff,

vs.

CHEVY 10

Defendant(s)

____________________________________________/

DEFENDANT’S ANSWER, AFFIRMATIVE DEFENSES

AND DEMAND FOR JURY TRIAL

Comes now the Defendant, cHEVY10, Pro Se, pursuant to applicable Florida Rules of Civil Procedure, and does hereby file the instant Answer and Affirmative Defenses to the claim alleged by Plaintiff, LVNV Funding LLC, and would state as follows:

1. Defendant admits that he had, at one time, an account with ORIGINAL CREDITOR.

2. Defendant admits he resides in XXXXXX County Florida.

4. Defendant denies all other allegations in this complaint.

4. As set forth in Rule 1.430 of the Florida Rules of Civil Procedure, Defendant demands a trial by jury on all issues as a matter of right.

FIRST AFFIRMATIVE DEFENSE

Defendant asserts the affirmative defense of a failure to state a cause of action on all counts. Plaintiff has failed to allege a date of breach and failed to attach required documentation in accordance with Florida Rules of Civil Procedure 1.130.

SECOND AFFIRMATIVE DEFENSE

Defendant asserts the affirmative defense of failure to comply with the time requirements set forth in Florida Statute 559.715 related to the collection of purchased/assigned debts. By not complying with Florida Statute 559.175, the Plaintiff, therefore, failed to prove they were the real party in-interest and thus lacks standing.

THIRD AFFIRMATIVE DEFENSE

Defendant asserts that there was no agreement between Defendant and Plaintiff, LVNV Funding LLC or Plaintiff’s predecessor on the alleged account as alleged in Count 1; Account Stated of the Complaint.

Plaintiff has provided no evidence that the alleged account and the account Defendant had at one time with ORIGINAL CREDITOR are indeed one in the same and it remains to be seen if Plaintiff can provide such evidence beyond a reasonable doubt, regardless “There can be no liability on an account stated if there has been no mutual agreement, and mere presentation of a claim and it’s retention without objection does not of itself create a liability.” See, Recreation Corp. of America v. Jack Drury & Associates, Inc 235 So.2d 867 (Fla. App. 4 Dist. 1970) “Failure to respond to demand for payment does not create obligation for account stated absent contractual agreement creating such liability.” See, Page Avjet Corp. v. Cosgrove Aircraft Sers., Inc. 546 So. 2dd 16, 18 (Fla. 3d DCA 1989). “Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.” See also, Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. App. 2 Dist. 1975)

Defendant asserts that Plaintiff, LVNV Funding LLC, has not attached any evidence of the alleged agreement stated in Count 1 of the complaint nor has Plaintiff attached a copy of the account, showing all items, time of accrual of each, and amount of each, as required, pursuant to F.R.C.P. 1.933.

FOURTH AFFIRMATIVE DEFENSE

Defendant asserts Court lacks subject matter jurisdiction due to Plaintiff’s pleadings being insufficient for Count 2; Open Account.

Defendant asserts that Plaintiff, LVNV Funding LLC has not attached a copy of the account, showing all items, time of accrual of each, and amount of each, as required, pursuant to F.R.C.P. 1.932. An itemized copy of the account must be attached to the complaint to state a valid claim; a statement of a lump sum balance dues is insufficient. See generally, H & H Design Builders, Inc v. Travelers’ Indemnity Co., 639 So.2d 697 (Fla. App. 5 Dist. 1994)

Defendant asserts that Plaintiff has not attached a copy of the original contract signed by both parties. Plaintiff has provided no evidence that the alleged account and the account Defendant had at one time with ORIGINAL CREDITOR are indeed one in the same and it remains to be seen if Plaintiff can provide such evidence beyond a reasonable doubt. “One party cannot unilaterally create a liability on an open account when no contract (either oral or written) exists out of which a debtor-creditor relationship could arise.” See, Cherokee Oil Co. v. Union Oil Co. of California, 706 F.Supp. 826 (M.D. Fla. 1989) affirmed 901 F.2d 1114.

FIFTH AFFIRMATIVE DEFENSE

Defendant asserts Court lacks subject matter jurisdiction due to Plaintiff’s pleadings being insufficient for Count 3; Money Lent.

Defendant asserts that Plaintiff, LVNV Funding LLC, has failed to plead facts sufficient to establish a claim pursuant to F.R.C.P. 1.936. Plaintiff has failed to meet its pleading burden in this cause of action. “a plaintiffs obligation to provide the …"grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do” see, Bell Atl. Corp. v Twombly, 550 U.S. 554, 570 (2007). “It should be noted the language of this pleading mimics a fill-in-the-blank pleading example provided in Florida Rule of Civil Procedure Form 1.936. Nevertheless, the Supreme Court in Twombly clearly requires more than “a formulaic recitation of the elements of a cause of action,” See also, Paladin Shipping CO. LTD. v Star Capital Fund LLC, US Dist. Court, (SD Fla. 2010)

SIXTH AFFIRMATIVE DEFENSE

Defendant asserts that Plaintiff, LVNV Funding LLC, has no standing to bring an action in this court for Count 4; Quantum Meruit.

Plaintiff cannot sue on an equitable theory, such as Quantum Meruit, to prove a debt if an express contract exits. Since this is an alleged consumer credit card debt it can be reasonably inferred that an express contract most likely exists if this is indeed a valid debt and that the alleged account and the account Defendant had at one time with ORIGINAL CREDITOR are indeed the same accounts. Defendant asserts that Plaintiff is using the Quantum Meruit legal theory to make an end run around their lack of evidence. See Ocean Communications, Inc. v. Bubeck, 956 So. 2d 1222 (4th DCA 2007) [32 Fla. L. Weekly D1344a].

WHEREFORE, Defendant, having fully answered the claim in this matter prays that this court enter Judgment against the Plaintiff and award to the Defendant, costs and such other relief as is just and equitable. Further the Defendant sayeth not.

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Believe it or not they actually posted the cost bond.

LVNV FUNDING LLC

Plaintiff,

vs.

CHEVY10

Defendant(s)

____________________________________________/

NOTICE OF FAILURE OF PLAINTIFF TO POST NONRESIDENTIAL COST BOND ON BEHALF OF DEFENDANT

YOU ARE HEREBY NOTIFIED by Defendant CHEVY10 (hereinafter “Defendant”) that Florida Statutes 57.011 requires nonresidential Plaintiffs to post a cost bond with a surety approved by the Clerk of the Court in the amount of $100.00 within thirty (30) days of the filing of the action. Failure to post this bond within twenty (20) days of this Notice entitles the Defendant to dismissal of this lawsuit. The Defendant will seek such a dismissal and any other remedy provided for under applicable statutes or rules.

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I will post the RTP and Admissions I sent if you guys want to see and if you are Ok critiqueing them for me.

LVNV FUNDING LLC

Plaintiff,

vs.

CHEVY10

Defendant(s)

____________________________________________/

DEFENDANTS RESPONSE IN OPPOSITION TO PLAINTIFFS

MOTION TO APPEAR TELEPHONICALLY (WITNESS)

Comes now the Defendant, CHEVY10, Pro Se, pursuant to applicable Florida Rules of Civil Procedure and respectfully requests this Honorable Court deny Plaintiffs Motion to Appear Telephonically (witness). In support of this motion, Defendant would state as follows:

1. Defendant understands that there may be circumstances where it would be appropriate for Plaintiffs witness to appear telephonically. However, trial is not one of those situations. Given that the trial will require the examination of the witness and the possible presentation of exhibits, it would not be prudent to allow Plaintiffs witness to participate in the trial telephonically.

2. The personal appearance of any witness for the Plaintiff is crucial at trial for the Court to weigh his/her credibility. Credibility determinations are based on not just the tone of voice, but also on other important physical actions such as eye contact, body language, and many other signals that just can’t be interpreted telephonically.

3. The Standard Jury Instructions - Civil Cases as approved by the Florida Supreme Court (as listed on wwwDOTfloridasupremecourtDOTorg/]Florida Supreme Court Home Page as of 10/04/2012), specifically identifies that "In evaluating the believability of any witness and the weight you will give the testimony of any witness, you may properly consider the demeanor of the witness while testifying;” as one of the factors to take into consideration when determining credibility of that witness. See Standard Jury Instructions - Civil Cases, 601.2 BELIEVABILITY OF WITNESSES, a. General considerations. See also Black's Law Dictionary 463, 596 (8th ed.2004) (defining “demeanor evidence” as the “behavior and appearance of a witness on the witness stand”) The Court must be able to see Plaintiffs witness as he/she provides testimony so that it may adequately weigh his/her credibility.

4. Defendant does not consent to Plaintiffs witness appearing telephonically. See Florida Rules of Judicial Administration 2.530(d) September 1, 2012.

Florida Rules of Judicial Administration 2.530(d)(1) provides:

(1) Generally. A county or circuit court judge, general magistrate, special magistrate, or hearing officer may allow testimony to be taken through communication equipment if all parties consent or if permitted by another applicable rule of procedure.

5. In closing my opposition to this motion is not to cause undue costs or waste of time, it's to make sure I'm fully getting the "whole big picture, both verbally and non-verbal" I cannot fully do that telephonically. As a Pro Se I will be the one cross-examining the witness and with that being the case, I need to be able to see if the witness gets nervous at certain questions or starts shifting in the chair. How the witness reacts to questioning determines possible follow up questions and different routes I may take with my line of questioning. This will all be determined by the "feel" and the "read" I'm getting from the witness. Notwithstanding all of the above, I also cannot verify the identity of Plaintiffs witness nor can I be sure that he/she is not reading from a "script" or being coached.

WHEREFORE, Defendant respectfully requests that the Court deny Plaintiffs Motion to Appear Telephonically (witness).

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Believe it or not they actually posted the cost bond.

LVNV FUNDING LLC

Plaintiff,

vs.

CHEVY10

Defendant(s)

____________________________________________/

NOTICE OF FAILURE OF PLAINTIFF TO POST NONRESIDENTIAL COST BOND ON BEHALF OF DEFENDANT

YOU ARE HEREBY NOTIFIED by Defendant CHEVY10 (hereinafter “Defendant”) that Florida Statutes 57.011 requires nonresidential Plaintiffs to post a cost bond with a surety approved by the Clerk of the Court in the amount of $100.00 within thirty (30) days of the filing of the action. Failure to post this bond within twenty (20) days of this Notice entitles the Defendant to dismissal of this lawsuit. The Defendant will seek such a dismissal and any other remedy provided for under applicable statutes or rules.

Every Florida member and even some of the other states should try to get this because I believe most states allow a bond for costs. I think if every mandates it the debt collectors will run away since each one files a thousand cases a day per state that is a good cost of litigaation tool.

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The only thing I have a problem with is the list of special defenses. Most of us here do not advise people to use a laundry list like that, usually they do not apply. Not being from Florida, I can't speak to their rules as you stated them, but I do know something about normal court procedure.

One, two, and five cite rules, so these are procedural mistakes they made. These might be better used as a motion to strike the complaint as fatally defective. They aren't really defenses, as they are curable mistakes.

Six is a bit argumentative, and challenges the legal sufficiency of the complaint. Again, an MTS would take care of this. At most, that count would be stricken. This is not a defense against the entire case.

The third defense is known as lack of privity, it does not apply in credit card cases.

Your argument is good, but you chose to field it as a bunch of special defenses rather than as a motion to strike the complaint. Keep that in mind for next time, when you send out the right stuff, they back down even quicker.

Edited by BrunoTheJDBkiller
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