notice:pretrial conf,rec.2 days ago,Equable Ascent f.,Florida,HELP pls!

[janette]

Hi. Thank you for reading this.

I already found a lot of answer on this topic here.

My 2 questions are:

Can I do anything before the pretrial conference - send any papers, answers, questions to lawyer and resolve the problem without conference or (if I must go to conference) without court (the main event)?

I can't speak (and write) (but I can copy - paste ) in the "right language" for court and lawyers.. I'm not good at english!! I'm from North Europe.. I even don't understand half of what is written there, and it takes a lot of time to google and google translate.. And I just read that few days after receiving this notice is very important..

If Chase SOL is 3 years, Delinguency Date is 3 years and 8 months old, should I just send them Expired SOL letter and that's it?

I lived in NY at that time, moved to Florida in May 2010. In Florida SOL is 4 years...

Can they sue me based on FL SOL? If not, what should i send them?

If you are interested in more.. here are all facts..

My situation:

Received notice to appear for pretrial conference on Oct.30, 2012. Today is Nov.1. By their courier which wrote 6:39pm, 11/30/2012 and his ID.

Plaintiff: Equable Ascent Financial LLC fka Hilco Receivables LLC as a$$.of Chase Bank USA (WAMU)

c/o Bakkalapulo Law firm.... in Clearwater, Florida, Defendant - me.

Pretrial conference before a Judge on Nov.29, 2012

Facts common to all counts:

1. ... does not exceed 5000$

7. Defendant owes Plaintiff 2172.25$ that is due with interest since Sept.30, 2009

Plaintiff demands .... 2172.25 plus pre-judg.interest and costs of this suit.

9. Before the inst.of this action , Plaint. and Def. had business transactions between them and on Sept.30,2009 thay agreed to the resulting balance

(i don't have any agreement with them.. how I can agree??? )

11. Def.owes Plaint. 2172.25 that is due with 4.75% interest, on this account.

Attachments:

Exhibit A : Bill of sale.... Number of accounts 40483

signed by Chase bank on Oct.12,2009 (operations manager) and Hilco Receivables LLC on Oct.12,2009 by CEO

I WAS NOT in USA at that time! I left states on Oct.2,2009 and came back on January 8, 2010. I have stamp in my passport when I entered back, but not when I left... And there is not my signature or my name of course..

Exhibit 1: Number XXXXXXX, account (black marker, I can't see account), my name, my address where I live now... current balance 1900.00$

Charge off date Sept.30,2009, Contract Date March 16,2009, Delinquency date March 14, 2009 (3 years and 8 months has passed), last paid Febr.13, 2009, last paid amount 50$, orig.cred.Chase Bank

Exhibit A: (there is my old address), account summary, account number is hidden all the time..

That's it. Just Exhibit A (Bill of sale), and Exhibit 1 with my address, and another Exhibit 1 (is this cont.of first Exh.1?)

My question is: Can I do anything before the pretrial conference - send any papers, answers, questions to lawyer and resolve the problem without conference or (if I must go to conference) without court (the main event) in these next 2 days?

Thank you a lot in advance..

Edited November 2, 2012 by janette
forgot to add info about SOL

[BrunoTheJDBkiller]

Can you prove the date of the last payment you made? The account goes in to default 30 days later. That starts the clock. They have 3 years to file suit. Florida will let you apply Chase's SOL.

[kutuzov]

The account is clearly past SOL as per Delaware SOL, and Florida will take Delaware SOL no problem. I notice that they did not include a contract on the complain another issue for them.

For Chase to charge off an account got to have the delinquency date at least 6 month before that. The document they presented dates oct 2009, so if they sold the account just the day after charge off, that's may 2009, at the latest the alleged debt was past Statute of limitation in may 2012, with the documents they have presented.

"Florida courts consider the statute of limitations to be substantive, and

therefore the statute of limitations of the parties’ chosen forum will apply where there exists a contractual choice of laws provision." "Fulton County Adm'r v. Sullivan, 753 So. 2d 549 - Fla: Supreme Court 1999" Fulton County Adm'r v. Sullivan - Google Scholar

"Absent an argument by Defendants that Delaware law contravenes strong public policy of Florida, Delaware law applies to substantive matters, including the statute of limitations." McCorriston v. LWT INC., 536 F. Supp. 2d 1268 - Dist. Court, MD Florida 2008

McCorriston v. LWT INC - Google Scholar

"It is undisputed that in Delaware, a three year statute of limitations for collection suits applies:

No action . . . based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations . . . shall be brought after the expiration of 3 years from the accruing of the cause of such action; subject, however, to the provisions of §§ 8108-8110, 8119 and 8127 of this title. Del. Code Ann. tit. 10, § 8106." McCorriston v. LWT INC., 536 F. Supp. 2d 1268 - Dist. Court, MD Florida 2008

In an FDCPA case involving a debt buyer, Gaisser v. Portfolio Recovery Associates, LLC, Dist. Court, SD Florida 2008, one of the assertions made by the Plaintiff against Portfolio Recovery Associates (PRA) and their counsel, Robert J. Orovitz, P.A. was the filing of a lawsuit outside the statute of limitations. PRA had filed suit against Gaisser in the Broward Courty Court for a Providian National Bank credit card debt that the debt buyer claimed to own. The cardmember agreement for the account stated that the account was governed by the laws of New Hampshire. The statute of limitations in New Hampshire for this type of debt is three years.

The United States District Court of the Southern District of Florida stated that "Contrary to Orovitz's suggestion, Florida courts consider the statute of limitations to be substantive, and therefore the statute of limitations of the parties' chosen forum will apply where there exists a contractual choice of laws provision."

The court further stated:

"Because the three-year New Hampshire statute of limitations applied to the debt, and the period was not tolled under the statute, Defendants have not shown the state suit was timely filed." Gaisser v. Portfolio Recovery Associates, LLC - Google Scholar

Those are the case laws you might need, in addition download a chase credit card agreement out of thier website and take it with you, with the choice of law provision highlighted. Also check Florida rules of Civil procedure 1130 and demand for the original contract.

You might be able to ask for an interpreter but not sure.

[janette]

Thanks a lot kutuzov and BrunoTheJDBkiller!

Kutuzov, your posts are the most helpful in this whole forum!

I was not sure about how "Florida" looks at Delaware SOL.

Can I just send them the answer (to lawyer) or I need to wait until Nov.29 and appear on conference?

[kutuzov]

Thanks, but I belive thiers other people around more helpfull. Anyways, you do not need to send nothing to the lawyer, you need to go to the pre trial conference and tell the judge what I posted, that the debt is time barred and thier own documents show that, take a chase card holder agreement with you so you can show the choice of law, also advice the judge that the compliant is missing the contract therefore you got to get one, and that plantiff failed to comply to rule 1130 by not attaching the contract.

[janette]

great , thanks a lot!!!

[BrunoTheJDBkiller]

What court is this in? Small claims may not allow a motion, which you may need. It would be a motion to dismiss based upon a time barred debt, one page, we can show you how or find a sample you could use.

[kutuzov]

He/she can do a motion to dissmis orally in small claims the day of the pre trial conference, it's on the small claims procedual rules, I ain't looking for the rule now, but I'm sure it can be done. No need to file anything in written, he can move the court to dissmis on the day of pre trail, expect the JDB lawyer to be completely off guard.

[kutuzov]

Is here small claims rules 7090©

© Defensive Pleadings. Unless required by order of court, written pretrial motions and defensive pleadings are not necessary. If filed, copies of such pleadings shall be served on all other parties to the action at or prior to the pretrial conference or within such time as the court may designate. The filing of a motion or a defensive pleading shall not excuse the personal appearance of a party or attorney on the initial appearance date (pretrial Updated conference).

[BrunoTheJDBkiller]

Okay, wasn't sure what court, she did not say.

[kutuzov]

Nope, but it reads that the alleged debt is less than 5k, if it's less than 5k is small claims.

[saytar]

If it was me I would prepare a regular motion in writing and do as it says. Give it to all parties at the conference. Don't want anyone to forget........

[kutuzov]

yeap, i did that when I got sued, a motion to dissmiss based on Delaware SOL, but the guy here does not speak or write good english, so a more simple approach is maybe more desirable, and he got that chance at the pre trial conference.

Edited November 3, 2012 by kutuzov

[janette]

Sorry for late answer - it's Dade County Courthouse on 73 W.Flagler st, Miami

[janette]

Yep, English will be a little problem.. I will try my best at the conference.

I sent my case to few lawyers on Friday morning, asking would they take my case. Have not received any answers yet.. I guess it's cheaper just go by myself and give them these answers what you guys gave me

[kutuzov]

If the lawyer takes your case, the Plantiff will end paying his attorney fees, so it won't cost you money, but it depends on the attorney and how he/she handles it. It's a pretty easy dissmis, just have it all written so to try to read it. Also an attorney could countersure them for trying to collect on a time barred debt, so if you get lucky an attorney will not only win your case but also get you some cash.

[BrunoTheJDBkiller]

Janette, what is your language? My guess is something Scandinavian. Maybe even German.

[janette]

BrunoTheJDBkiller,

really close! Native is Latvian. Russian is second. Italian could be 4th, German 5th (few years in highschool)

saytar, that would be great - to give printed documents...

kutuzov, I hope somebody takes "my" case, I will call more offices next week..

The situation is - I'm girlfriend of the guy, who is sued. I can go to any court, even if it's in French, I don't care, I could handle it easy peasy

Knowing my bfr, he will wake up on Nov.29 and say he is not going anywhere I could go with him and manage the process, but I have 5 months old baby, I can't go anywhere.

[janette]

I found few samples "motion to dismiss" on google.

I hope somebody answers. Maybe I chose wrong lawyers.

If you know somebody who would be interested please let me know

We don't need any income from this case, I'm just worried we will lose because of our stupidity - not going to conference or becoming speechless there..

[kutuzov]

Keep in mind that even if you file a paper with the court, in this case a motion to dismiss, you still need to go to the pre trial conference and appear in court, so you still need to talk at court with the judge.

[BrunoTheJDBkiller]

If the boyfriend is being sued, you cannot speak for him in court, that is technically illegal, only a lawyer can do that.

Ja draugs ir iesūdzēt, nevar runāt par viņu tiesā, kas ir tehniski nelikumīgi, tikai advokāts var darīt.

[janette]

ok.

Thank you people. I will update.

[janette]

I got answers from lawyers, chose one of them. Filed Client Information intake about phone calls as well.

[kutuzov]

All right, I'm sure any of them can do a dissmiss based on Delaware SOL, and countersue them for dueing outside SOL. Good Job.

[janette]

Thank you very much. I'm smarter now