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Judgment received had hired attorney


deerandy
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I had a credit card small claims pretrial conference in 9/2012 and my attorney raised issues that it appeared to be a corporate account, etc. The plaintiff said they would provide documentation and the judge advised my attorney to file a Motion to Dismiss. I've heard nothing until yesterday....a default judgment in the mail from the plaintiff attorney. I faxed the copy and a letter to my attorney and he called and said it's a screw up and he will vacate or set it aside, etc. I'm worried. I understand there's only 10 days to appeal this. Any thoughts appreciated. I'm in Florida. Further, I have licenses that may require disclosure; I made it clear that I don't want a judgment in any event as an outcome and that I would make monthly payment over 5 years if necessary which I know they take. 

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In civil cases, if a complaint is properly answered, filed with the court, and a copy sent to the opposing party, there can be no default judgment.  I would think the same would apply to a corporate account.  If your attorney did what he was supposed to do, I don't see how the opposing party could get a default judgment. 

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"I faxed the copy and a letter to my attorney and he called and said it's a screw up."

 

Nobody will work harder on your case then you will.

http://www.hockmanlaw.com/CreditCard.html

 

In The County Court in and for "My" County, Florida

 

Capital One Bank

Plaintiff,

Vs.

My Name

Defendant,

CASE No: cv-12- xxxxx

MOTION TO DISMISS

Comes now the defendant My Name , pursuant to Florida rules of civil procedure and moves this honorable court an order dismissing plaintiff’s complaints on , one or more grounds stated as below.

1. Plaintiff filed the lawsuit against the defendant, on or about 9/2012 for a breach of credit card agreement.

2. Plaintiff fails to attach any contract or statement with defendant’s name on it and or signed contract between plaintiff and defendant.

3. Plaintiffs’ claim should be dismissed for failure to state cause of action in accordance with Florida law. In Samuels v King Motor Co. of Ft. Lauderdale, 782 So.2d 489 (Fla. 4th DCA 2001), the Fourth District Court held that to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. "Whether a complaint is sufficient to state a cause of action is an issue of law”.With reference to Plaintiff’s count for Breach of Contract, in order to sustain the burden of proof for a Breach of Contract the Plaintiff must attach a copy of the contract to the complaint. Fla. Rules of Civ. Pro. 1.130, states in part-(a) Instruments Attached.. --All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. In the instant case, the Plaintiff failed to attach a copy of the contract or any document that would establish a contractual relationship between the parties. Plaintiff failed to attach an itemized statement of charges or a statement. Not only did the Plaintiff fail to attach a bill, statement or contact to the complaint, the Plaintiff has not attached ANYTHING to its affidavit or the complaint that has the Defendant’s name or signature on it. In, Samuel v. King Motors of Ft. Lauderdale 782 So.2d 489 (Fla. 4th DCA 2001), where a complaint is based on a written instrument, the complaint does not state a cause of action until the instrument or an adequate portion thereof is attached to or incorporated in the complaint.

4. Court should consider dismissing plaintiff’s statement of claim, with reference to the affidavit of proof provided by the Plaintiff in support of it’s claim for damages, the court should note that, the affidavit is prepared by the Plaintiff’s employee. As the Plaintiff is not the original creditor, the records they keep are hearsay when the documents upon which the affiant relied is not admitted into evidence or attached to the complaint or affidavit. (See, Johnson v. State, 691 So.2d 43 (Fla. 2nd DCA 1997), testimony (in person or by affidavit) of a witness on a business record is inadmissible hearsay if the record has not been admitted into evidence). Additionally, the Florida Supreme court in Bolin v. State, 736 So. 2d 1160 (Fla. 1999), held that the business records exception of the hearsay rule cannot be applied when the business record is not in evidence. Consequently, the affidavit is nothing more than inadmissible, contradictory hearsay. (Also see, Hawkins v. State 884 So. 2d 496 (Fla. 2DCA 2004).

5. Defendant pleads to the court to dismiss based upon Plaintiff’s cause of action for Account Stated. The Plaintiff must establish a debtor/creditor relationship with the Defendant and established a course of business dealings between the parties. Additionally, it must be established that the Defendant was sent a statement and that the Defendant expressly or impliedly consented to the statement by failing to object. Consequently, there needs to be a copy of a statement and proof of mailing to establish a presumption of no objection. Then, the relationship between the parties and the usual course of business between them becomes a question of law. (See, Martyn v. Arnold, 18 So.2d 791 (Fla. 1985). For an account stated to exist, there must be agreement between the parties that a certain balance is correct and due and an express or implicit promise to pay this balance. Merrill-Stevens Dry Dock Co. v Corniche Exp., 400 So.2d 1286 (Fla. 3d DCA 1981). Also see, Carpenter Contractors Of America, Inc. and R & D Thiel, Inc. v. Fastener Corp. Of America, Inc., 611 So.2d 564 (Fla. 4th DCA 1992). there was no evidence that the parties agreed on any balance due and owing.

Finally, without any documentation of a contractual relationship or of an account, by one or more points claimed by defendant that Plaintiff has not proven that the Defendant was ever lent any money.

Therefore Defendant prays to the court to dismiss plaintiff’s statement of claim and award to the defendant cost, expenses and any other relief as court may find reasonable.

 

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was furnished by U.S. mail to Plaintiff's Lawyer, P.A. Attorney for plaintiff,1234 His Street , Suite x, Some Town, Fl 32561. This 21st day of January 2013

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  • 4 weeks later...

"I faxed the copy and a letter to my attorney and he called and said it's a screw up."

 

Nobody will work harder on your case then you will.

http://www.hockmanlaw.com/CreditCard.html

 

In The County Court in and for "My" County, Florida

 

Capital One Bank

Plaintiff,

Vs.

My Name

Defendant,

CASE No: cv-12- xxxxx

MOTION TO DISMISS

Comes now the defendant My Name , pursuant to Florida rules of civil procedure and moves this honorable court an order dismissing plaintiff’s complaints on , one or more grounds stated as below.

1. Plaintiff filed the lawsuit against the defendant, on or about 9/2012 for a breach of credit card agreement.

2. Plaintiff fails to attach any contract or statement with defendant’s name on it and or signed contract between plaintiff and defendant.

3. Plaintiffs’ claim should be dismissed for failure to state cause of action in accordance with Florida law. In Samuels v King Motor Co. of Ft. Lauderdale, 782 So.2d 489 (Fla. 4th DCA 2001), the Fourth District Court held that to state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. "Whether a complaint is sufficient to state a cause of action is an issue of law”.With reference to Plaintiff’s count for Breach of Contract, in order to sustain the burden of proof for a Breach of Contract the Plaintiff must attach a copy of the contract to the complaint. Fla. Rules of Civ. Pro. 1.130, states in part-(a) Instruments Attached.. --All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. In the instant case, the Plaintiff failed to attach a copy of the contract or any document that would establish a contractual relationship between the parties. Plaintiff failed to attach an itemized statement of charges or a statement. Not only did the Plaintiff fail to attach a bill, statement or contact to the complaint, the Plaintiff has not attached ANYTHING to its affidavit or the complaint that has the Defendant’s name or signature on it. In, Samuel v. King Motors of Ft. Lauderdale 782 So.2d 489 (Fla. 4th DCA 2001), where a complaint is based on a written instrument, the complaint does not state a cause of action until the instrument or an adequate portion thereof is attached to or incorporated in the complaint.

4. Court should consider dismissing plaintiff’s statement of claim, with reference to the affidavit of proof provided by the Plaintiff in support of it’s claim for damages, the court should note that, the affidavit is prepared by the Plaintiff’s employee. As the Plaintiff is not the original creditor, the records they keep are hearsay when the documents upon which the affiant relied is not admitted into evidence or attached to the complaint or affidavit. (See, Johnson v. State, 691 So.2d 43 (Fla. 2nd DCA 1997), testimony (in person or by affidavit) of a witness on a business record is inadmissible hearsay if the record has not been admitted into evidence). Additionally, the Florida Supreme court in Bolin v. State, 736 So. 2d 1160 (Fla. 1999), held that the business records exception of the hearsay rule cannot be applied when the business record is not in evidence. Consequently, the affidavit is nothing more than inadmissible, contradictory hearsay. (Also see, Hawkins v. State 884 So. 2d 496 (Fla. 2DCA 2004).

5. Defendant pleads to the court to dismiss based upon Plaintiff’s cause of action for Account Stated. The Plaintiff must establish a debtor/creditor relationship with the Defendant and established a course of business dealings between the parties. Additionally, it must be established that the Defendant was sent a statement and that the Defendant expressly or impliedly consented to the statement by failing to object. Consequently, there needs to be a copy of a statement and proof of mailing to establish a presumption of no objection. Then, the relationship between the parties and the usual course of business between them becomes a question of law. (See, Martyn v. Arnold, 18 So.2d 791 (Fla. 1985). For an account stated to exist, there must be agreement between the parties that a certain balance is correct and due and an express or implicit promise to pay this balance. Merrill-Stevens Dry Dock Co. v Corniche Exp., 400 So.2d 1286 (Fla. 3d DCA 1981). Also see, Carpenter Contractors Of America, Inc. and R & D Thiel, Inc. v. Fastener Corp. Of America, Inc., 611 So.2d 564 (Fla. 4th DCA 1992). there was no evidence that the parties agreed on any balance due and owing.

Finally, without any documentation of a contractual relationship or of an account, by one or more points claimed by defendant that Plaintiff has not proven that the Defendant was ever lent any money.

Therefore Defendant prays to the court to dismiss plaintiff’s statement of claim and award to the defendant cost, expenses and any other relief as court may find reasonable.

 

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was furnished by U.S. mail to Plaintiff's Lawyer, P.A. Attorney for plaintiff,1234 His Street , Suite x, Some Town, Fl 32561. This 21st day of January 2013

you forgot a incorporate a blank line for the judge to sign on. and you need two boxes ope for granted one for denied. courts hate to do any work.

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