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Need Advice in FL - Sued by JDB Portfolio Recovery

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1. Who is the named plaintiff in the suit?
 

Portfolio Recovery As Assignee of XXX Bank

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

 

3. How much are you being sued for?

 

Under $5000

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

 

Major CC Company

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

 

Served

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

 

In person

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?

 

None

9. What state and county do you live in?

 

Florida

 

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

 

Within SOL by a little under a year

11. What is the SOL on the debt? To find out:

4 years in FL I believe

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

 

Attended pre-trial, denied their claim and scheduled a trial date.

 

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? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

 

No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?
 

No answer was required as it is was immediately set for pre-trial in Small Claims Civil Court. I went to pre-trial at which point I denied their claim and asked to proceed to trial.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

  • Complaint
  • Affidavit from their custodian of record
  • Statement of account on JDB letter head
  • Forward Flow Receivable Sale Agreement from XX Bank that does not mention me specifically just a file number with price of purchase redacted
  • one statement from cc account with no charges, payments, etc only past due fee and interest charged
  • Sheet with designation of email address they would like to be served with documents.

 

 

 

 

I'm looking for advice on what my next move should be . At this point I've appeared at Pre-trial. Prior to the pre-trial the JDB attorney called me aside to offer a payment plan. I basically responded with I have no relationship with this company and will wait to speak with the judge. 

 

When the judge addressed the court before people were called he said you could work with the mediators to work out a payment plan or deny the claim and request to proceed to trial. I denied the claim and requested a trial date.

 

I basically said that I have no relationship with this company, they are claiming to have purchased an account belonging to me, but have provided no signed contract or statements showing any activity or purchases by me. He asked if I was denying the account with XXX Bank and I said yes, there is nothing confirming that account belongs to me. He then addressed their rented-attorney and said maybe if you guys could provide defendant with what  is being asked for then this can be resolved before trial, but it wasn't a direct order to give me anything.

 

From a little online reading I guess my next move should be interrogatories and discovery, is that correct?

 

Also worth noting this same JDB tried to sue me before I showed up at pre-trial basically said something to a similar effect and requested trial. Then about 2 weeks before trial they filed a dismissal without prejudice. Last time they had less paperwork included with the summons. Since this is the second go around I figure they may try a little harder. Any help or advice is greatly appreciated. Considering talking to an attorney, but would hate to pay for one only to have them dismiss again then re-file later. Does anyone know how many times they can do that in FL before its considered harassment?
 

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11. What is the SOL on the debt? To find out:

4 years in FL I believe

 

 

Don't forget. Florida recognizes choice of law provisions with respect to statute of limitations. You didn't list your original creditor, but you need to find out if your terms and conditions reference laws of another state. Statute of limitations may well be expired. Who is the creditor?

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You need to check your rules of civil procedure for small claims court, as I believe they are different than county court. (in my state they are)  They will tell you how to proceed with discovery.  There are alot of people here from FL that may be able to offer some insight also. 

Yes do as nascar says and check the sol from borrowing state.  If it is a credit card from delaware, they have a 3 year sol.  The cardmember agreement may say that the laws of cc company's state govern the account, so your task would be to get the court to reconize this account falls under those laws.

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Don't forget. Florida recognizes choice of law provisions with respect to statute of limitations. You didn't list your original creditor, but you need to find out if your terms and conditions reference laws of another state. Statute of limitations may well be expired. Who is the creditor?

 

Thanks Nascar, I didn't know this which is why I am soo thankful to have found these forums!

 

The creditor is Capital 1 out of VA. It looks like VA SOL is 3 Years according to a website I found.

 

http://www.creditcards.com/credit-card-news/credit-card-state-statute-limitations-1282.php

 

The date of last payment on my account was March xx, 2010. According to the court website they filed the paperwork about 2 weeks before the three year mark. So my assumption would be that they can proceed then since the lawsuit was filed already correct?

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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.

 

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). Here 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, the Plaintiff has

not proven that the Defendant was ever lent any money.

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The Capital One "Customer Agreement" contains a choice of law

provision which reads "Applicable law. This Agreement will be governed

by Virginia law and federal law."

 

Fla.Sm.CI.R. 7.050(a) provides that a case shall be commenced by filing a

Statement of Claim. -Actions are commenced by the filing of a

statement of claim in concise form, which shall inform the Defendant

of the basis and the amount of the claim. If the claim is based on a

written document, a copy or the material part thereof shall be attached

to the statement of claim.

See also Safeco. Inc. Co. v. Ware, 401 So.2d 1129, 1130 (Fla. 4th DCA 1981); Capital One Bank

v. Jean C. Miller; 14 Fla..L.Weekly Supp. 585 (County Court, Florida Fourth Judicial District,

Duval County, Florida, 2006); World wide Asset Purchasing, LLC v. Johnson, county Court,

Florida Fourth Judicial Circuit, Duval County, Florida signed by Judge Kevin A. Blazs on April

2,2007; Capital One Bank. Inc. v. Donna M Carncross, County Court, Florida Fourth Judicial

District, Clay County, Florida, signed March 9, 2007, the Honorable Richard R. Townsend; and

Capital One Bank, Inc. v. Evelvn B. Havward, County Court, Florida Fourth Judicial District,

Clay County, Florida, signed March 9, 2007, the Honorable Richard R. Townsend; Palisades

Acquisition V LLC, v. Cleveland Davis, 13 Fla..L.Weekly Supp. 150 (County Court, Florida

Fourth Judicial District, Duval County, Florida, 2005).

 

 

 

Virginia law

concerning the applicable statute of limitations to this case.

Virginia Code Section §8.01-246(2) provides

In actions on any contract which is not otherwise

specified and which is in writing and signed by the

party to be charged thereby, or by his agent, within five

years whether such writing be under seal or not;

 

Virginia Code Section §8.01-246(4) provides in pertinent part

In actions based upon any unwritten contract, express or implied,

within three years.

 

Virginia Code Section §8.01-248 provides

Every personal action accruing on or after July 1, 1995,

for which no limitation is otherwise prescribed, shall be

brought within two years after the right to bring such

action has accrued.

 

"Breach of

Contract" is governed by Virginia's three year statute of limitations. See Virginia Code Section

§8.01-246(4). Virginia law provides that the statute of limitations is five years for a written

contract signed by both parties, however, in order to fall within this category a contract must

show "mutual assent between the parties as to all material terms of the deal" and "the terms and

conditions of a contract must be 'reasonably' certain." See Union Labor Life Insurance Company

v. The Sheet Metal Workers National Health Plan, 1991 U.S. 13613 (D.C. Dis!. 1991) (court

dismissed breach of contract claim for failure to state a cause of action and applied the three year

statute of limitations for quantum meruit and unjust enrichment claims), ARCD Corporation v.

Hogan; 656 So.2d 1371 (Fla. 4th DCA 1995) (Florida courts apply the statute of limitations for

 

 

unwritten contract where the "written instrument is 'a link in the chain of evidence to prove the

cause of action' but does not on its face establish all of the elements of plaintiffs claim."), See

also Portfolio Recovery Associates. LLC v. Fernandes, 13 Fla.L.Weekly Supp. 506a (Circuit

Court, 151h Judicial Circuit (Appellate) in and for Palm Beach County, Florida) (the Cardholder

Account and Security Agreement alone introduced at trial would not be enough to establish

liability and the action is not founded on a written instrument for purposes of the statutes of

limitations).

 

 

"Account Stated"  is governed by either Virginia's three year statute of limitations contained in Virginia

Code Section §8.01-246(4) or the lesser two year statute of limitations because it is not a claim

founded on a signed, written agreement as is provided above. See Virginia Code Section

§8.01-248.

 

  "Quantum Meruit" and is governed by Virginia's two year statute of limitations. See' Virginia Code Section

§8.01-248. See also Tao of Systems Integration. Inc. v. Analytical Services & Materials. Inc. ;

299 F.Supp. 2d 563 (E.D. Va. 2004), Union Labor; supra and Portfolio, supra.

 

In RMT Tech, the Fourth Circuit Court of Appeal held pursuant to Virginia law

the determination of the applicable statute of limitations is a procedural question and governed

by Virginia law even when the parties contract to have the laws of another state apply to

litigation. Therefore, if the parties contract to apply Virginia law, the Virginia courts have

determined this is a procedural question to be determined by Virginia law.

 

Florida law courts will enforce choice-of-Law provisions unless the law of the

chosen forum contravenes strong public policy,

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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.

 

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). Here 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, the Plaintiff has

not proven that the Defendant was ever lent any money.

Thanks racecar for all your info.

 

I'm still lost on the procedure. I know there are things that they are missing for them to meet the burden of proof and I've read through the rules of civil court for FL, but it all sounds Greek to me since I have no legal background :)

 

How does one go about approaching what is missing to basically to kill their claim? Would you file a motion or file the discovery and interrogatories to get to that place? Or is it just something you wait and tell the judge at the trial?  Sorry for sounding like a complete novice, but I don't want to not be prepared and look like an idiot.

 

Any help from anyone who is knowledgeable on the subject would be greatly appreciated!

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check your rules of civil procedure.on your discovery process.  In my state we only do discovery after we motion for a pre-trial conference, otherwise, we do "disclosure".  Calif. is kinda the same, they have a ccp96 which is basically send me everything your going to use at trial"  Each state has their own rules, some states go right into discovery with admissions, request for doc, and rogs.

 

Your rules will tell you.  If you dont do formal discovery, then there should be a form or something to fill out on the court site to request some sort of disclosure.  If you go to plain ole discovery, then you would make up a list of requests for documentation, admissions, and rogs.  There are alot of great examples posted around this site, just do a search, and a ton will come up.  Look in @FSUgirl07 's thread, I believe she is from FL also, and you can read how her case progressed, might give you a better idea of what to expect. 

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check your rules of civil procedure.on your discovery process.  In my state we only do discovery after we motion for a pre-trial conference, otherwise, we do "disclosure".  Calif. is kinda the same, they have a ccp96 which is basically send me everything your going to use at trial"  Each state has their own rules, some states go right into discovery with admissions, request for doc, and rogs.

 

Your rules will tell you.  If you dont do formal discovery, then there should be a form or something to fill out on the court site to request some sort of disclosure.  If you go to plain ole discovery, then you would make up a list of requests for documentation, admissions, and rogs.  There are alot of great examples posted around this site, just do a search, and a ton will come up.  Look in @FSUgirl07 's thread, I believe she is from FL also, and you can read how her case progressed, might give you a better idea of what to expect. 

 

Thanks Shellieh98, there was a lot of useful info on FSUgirl07's thread. I'm going to check out some of the links I found there. I'm hoping my case doesn't end up being as complex as hers :(

 

From what I read Discovery is an option at this point I just don't know if that's the correct thing to do or if I should be doing something else first. Here's the info on FL Civil Procedure pertaining to discovery. http://floridacivpro.com/rules-1-280-to-1-490/1-280-general-provisions-governing-discovery/

 

Feeling a little overwhelmed by all of this :) I set up a consultation with an attorney for next week as I don't want to make the wrong move and screw myself. Not sure if it will be financially feasible, but we shall see. I just need them to dismiss like the last time, then the SOL will be up for sure if it isn't already under the choice of law provisions.

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In small claims in Florida, Discover cannot be started by a counsel if the other party is pro se, unless the judge orders it. At this early stage I would motion to dismiss for any documents missing, if they sue for breach of contract, if they did account stated then use racecar case laws, if they used both then use both rule 1130 and those case laws. You can see a sample here:

 

 

http://www.creditinfocenter.com/community/topic/316286-another-florida-midland-funding-llc-summon/

 

Also if you take the time to post the complaint word by word it will help, change name and amounts. The first few pages attached are just added by the clerk, go directly to the page of the actual complaint, where it says:

 

1 Defendant live in such county so venue is proper

2 This is a complaint of less than 5k

etc.

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so looks like yours is discovery.  Do a search for the type of things you need to ask in the way of documents.  You are going to want them to produce original contract or cardmember agreement that governs the account. You will want a bill of sale on account. (looks like they sent that) 

 

What is the cause of action, breach of contract, account stated or both?

If it is breach of contract, you want the contract, and you want a complete history of the account-- all charges, credits, and signed sales slips of charges.  

If it is account stated, you want all statements from zero balance to charge off balance.

(dont tell them this, but they usually send the last statement after you paid, and if the account doesn't state that it is closed, then to bad so sad for them)  The last statement they send you needs to show the account is no longer open, like you are not doing business anymore.  cc companies will send you statements until you default, then they will send 3 more and charge off. (usually) Look on your credit report and see what date they listed the account as closed.

 

I am sure there is a ton of stuff I am forgetting, but others can weigh in.  I would ask for documents, and then what they dont produce, I would send admissions based on what they didnt give me.   It would be like "admit you do not have xxxx document"  

 

Here are some samples of requests, but others can weigh in and maybe par it down, or think of something else.

 

 


The Defendant Mickey Mouse acting as Pro Se, pursuant to the Order of the Court, propounds the following Written Requests for the Production of Documents to the Plaintiff, LVNV FUNDING LLC to be answered in detail, separately, in writing under oath.  Plaintiff’s answers to the Plaintiff’s production of Documents should be submitted to Mickey a Mouse at 123 any street, anytown,, usa 000000, as ordered by the Court.  Notice is hereby given that these Requests for Production of Documents shall be deemed continuing in nature, requiring supplemental answers up to and including the beginning of trial herein.

 

                                                                           DEFINITIONS

 

The following words, when used in these Interrogatories, are defined as follows:

 

  1. IDENTIFY, or PRODUCE when used in reference to a person means to provide the name, address, and home and work phone number for the person and title, if employed by the Plantiff, or in association to the Plaintiff or Heritage Chase.  When used in reference to a Document, such as might be described in © below, means to describe the media in which it is created, and or preserved, such as paper, or disk, or audio tape, the content of the document in a general way, the location of the document, Identify the possessor of the document and the date of the document’s creation.
  2. PERSON includes natural person, firm, association, organization, partnership, business, trust, corporation, or other entity.
  3. DOCUMENT means any writing or computer generated information, disk or record, in whatever form, and includes the original or a copy of handwriting, typewriting, printing, photo, photocopy, and computer, audio and video generated material, and every other means of recording upon any tangible thing and form of communicating or representation, including letters, word, pictures, sounds, or symbols, or combinations of them.
  4. ADDRESS means the street address, including the city, state, and zip code.

 

 

Requests for Production of Documents

 1. Produce the alleged original credit application from Heritage Chase credit card Account Number xxxxxxxxxxxxxxxx bearing the defendant’s signature establishing the account.

2.  Produce the alleged credit agreement from Heritage Chase credit card Account Number xxxxxxxxxxxxxxxxxxxx that states interest rates, grace period, terms of repayment, et cetera;

3.  Produce Itemized statements or credit card statements from Heritage Chase credit card Account Number xxxxxxxxxxxxxxxxxx9 that demonstrate how the alleged amount of $xxx.xx was calculated;

4.  Produce A contract, agreement, assignment, or other means demonstrating that LVNV Funding LLC  had the authority and capacity, and was legally entitled to collect on the alleged debt.  This would be Documents establishing the chain of custody of the alleged debt, starting with the original creditor, each one to show in clear detail the manner in which the debt was allegedly transferred to subsequent assignees. Ending with LVNV Funding LLC.   These documents should show the account number and name of the account holder.

 

5.  Produce and provide a copy of the Forward Flow Agreement which bears the alleged debt, and Heritage Chase credit card Account Number xxxxxxxxxxxxxxxxxxxxxx. 

 

 6.  Produce letter(s) sent to defendant by LVNV LLC, demonstrating an attempt to collect on the alleged debt, Heritage Chase credit card Account Number xxxxxxxxxxxxxxxxxxxxx


7.  Produce  A notarized statement(s), 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, as to how the alleged debt was kept and maintained.  If there was more than one assignee for alleged debt, documents from a person from each assignee on how records were kept and maintained, from Heritage Chase, to LVNV Funding LLC.


8.  Produce Any further documentation, beyond what has been previously requested, that clearly establishes defendant’s liability and/or responsibility to LVNV Funding LLC

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

11.  Produce 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 Heritage Chase credit card Account Number xxxxxxxxxxxxxxxxxxx.

 

12.  Produce Any recording, or transcript of any recording, of telephone calls in which defendant disputed the alleged amount owed.

 

13. Produce The plaintiff’s Articles of Incorporation.

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 The Defendant Mickey Mouse Pro Se, pursuant to the Order of the Court, propounds the following written Requests for Admissions to the Plaintiff to be answered in detail, separately, in writing under oath.  Said answers to these Requests for Admissions should be submitted to Mickey Mouse at 123 street, anytown USA 55555, as Ordered by the Court.  Notice is hereby given that this Request for Admission, shall be deemed admitted unless otherwise denied, continuing in nature, requiring supplemental answers up to and including the beginning of trial herein.  If you cannot or will not make any of the admissions requested below, state with specificity each and every fact or basis why you cannot make the admission or a qualified admission.


                                                                REQUESTS FOR ADMISSION


1. Admit that LVNV FUNDING LLC, is not the original creditor which allegedly extended credit to the Defendant, which such extension of credit is the subject matter of this lawsuit against the Defendant. 


 


2. Admit that Mickey Mouse has never entered into a contract, directly, with the Defendant 


 


3. Admit that LVNV FUNDING LLC is not an affiliate or subsidiary of  HERITAGE CHASE. 


 


4. Admit that LVNV FUNDING LLC does not produce or originate any billing statement records on the behalf of HERITAGE CHASE. 


 


5. Admit that LVNV FUNDING LLC did not allegedly purchase Defendant's alleged account and alleged defaulted debt with any other allegedly defaulted accounts, as part of the alleged  sale of accounts to LVNV FUNDING LLC.


 


6. Admit LVNV FUNDING LLC has no personal, first hand knowledge of the record keeping procedures and/or practices of  HERITAGE CHASE Credit Cards. 


 


7. Admit LVNV FUNDING LLC has no personal, first hand knowledge that Defendant allegedly defaulted on the alleged account and debt which is the subject matter of this lawsuit. 


 


8. Admit LVNV FUNDING LLV does not maintain all the alleged business records for the alleged account and alleged debt, which is the subject matter of this lawsuit. 


 


9. Admit LVNV FUNDING LLC is only advised of the alleged balance allegedly owed to Heritage Chase by the Defendant, and has no direct, personal, first hand knowledge of the alleged account and alleged debt.


 


10. Admit all records allegedly held by LVNV FUNDING LLC, which allegedly prove Defendant is indebted to the Plaintiff,  are not Plaintiff’s  own business records which LVNV FUNDING LLC originated and keep in Plaintiff's regular course of business. 


 


11. Admit LVNV FUNDING LLC allegedly bought Defendant's alleged defaulted account as part of a bulk sale transaction with HERITAGE CHASE. 


 


12. Admit LVNV FUNDING LLC has no document in their possession bearing Defendant's signature.


 


13. Admit the Defendant Mickey a Mouse never verbally agreed to pay LVNV FUNDING LLC any sum of money.


 


14. Admit LVNV FUNDING LLC is aware that simply taking somebody's else alleged business records, in which LVNV FUNDING LLC had no personal first hand knowledge of their creation and their authenticity, and then putting those alleged business records into a file maintained by LVNV FUNDING LLC, then referencing those records as LVNV FUNDING LLC business records, do not overcome the business records exception to hearsay.


 


15. Admit all of LVNV FUNDING LLC records, which allegedly show an obligation of the Defendant to LVNV FUNDING LLC are hearsay. 


 


16. Admit LVNV FUNDING LLC, at any point and time in the last five years, has been found, by a court of competent jurisdiction, to have used a robo signer to sign affidavits, the definition of “robo-signer” meaning auto signing and or simply stamping a name to the affidavit. 


17. Admit LVNV FUNDING LLC  in the alleged purchase agreement with HERITAGE CHASE where Mickey A Mouse became the alleged successor in interest to LVNV FUNDING LLC for the alleged account which is the subject matter of this lawsuit, involved more than five thousand accounts and/or debts being transferred in the same transaction.


 


18. Admit the Defendant has no liability, at all, to LVNV FUNDING LLC.


 


19. Admit LVNV FUNDING LLC has never, in the past three years, had a business relationship, of any kind, with Mickey A Mouse, the Defendant in this lawsuit. 


 


20. Admit LVNV FUNDING LLC should take nothing in their lawsuit against the Defendant.

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The following words, when used in these Interrogatories, are defined as follows:


 


  1. IDENTIFY, or PRODUCE when used in reference to a person means to provide the name, address, and home and work phone number for the person and title, if employed by the Plaintiff, or in association to the Plaintiff or Heritage Chase.  When used in reference to a Document, such as might be described in © below, means to describe the media in which it is created, and or preserved, such as paper, or disk, or audio tape, the content of the document in a general way, the location of the document, Identify the possessor of the document and the date of the document’s creation.
  2. PERSON includes natural person, firm, association, organization, partnership, business, trust, corporation, or other entity.
  3. DOCUMENT means any writing or computer generated information, disk or record, in whatever form, and includes the original or a copy of handwriting, typewriting, printing, photo, photocopy, and computer, audio and video generated material, and every other means of recording upon any tangible thing and form of communicating or representation, including letters, word, pictures, sounds, or symbols, or combinations of them.
  4. ADDRESS means the street address, including the city, state, and zip code.
  5. If an objection to a request is based upon a claim of privilege or attorney work product, Identify each document so withheld.  With regard to all documents or portions of documents withheld on this basis, Identify its creator; provide a brief description of the document, and state with particularity the basis of the claim of privilege, work product, or other ground of nondisclosure.
  6. When answering the Interrogatories, you must furnish all requested information, not subject to valid objection that is known by, possessed by, or available to you or your subsidiaries, employers, employees, managers, attorneys, consultants, agents, or representatives.
  7. Each numbered subpart of a numbered Interrogatory is to be considered a separate interrogatory for the purpose of objection.  Thus you must object separately to each subpart; and if you object to less than all of the subparts of a numbered interrogatory, answer the remaining subparts.
  8. If any information called for in these Interrogatories is with held on the grounds that such information is for any reason exempt from discovery, then:
  1.  State the ground or grounds for withholding such information
  2. Describe the type of information being withheld;
  3. Identify all persons who have knowledge of the information being withheld.
  1. You are under a duty to reasonably supplement your response to each question directly addressed to the identity and locations of persons having knowledge of discoverable matters, and other information that may come to you in the future.  For persons, state the person’s name, residence address, business address, telephone numbers, and name of his/her employer.  For Documents, state the author, addressee and recipient, date, a general description, a brief summary of its contents, and the name and address of the custodian or the original, or best copy or any other descriptive information necessary in order to adequately describe it in a subpoena duces tecum or in a request or motion for its production. In lieu of such identification, you may attach a copy of each document to your answer to these interrogatories.
  2. If any document requested has been lost, discarded, or destroyed, identify such document.  State the type of document, its date, the approximate date it was lost, discarded, or destroyed, the reason it was lost, discarded or destroyed, a summary of its substance, and the identity of each person having knowledge of the contents thereof.

 


                                                          INTERROGATORIES TO THE PLAINTIFF


  1.  Is LVNV FUNDING LLC the direct assignee of the alleged Heritage Chase Credit Card Account number xxxxxxxx? Or is LVNV FUNDING LLC an assignee of an assignee?  If there are additional assignees, identify each assignee, their business address, and telephone number.
  2. Identify when the alleged account was originally opened by the defendant and was subsequently charged off by Heritage Chase.
  3. Identify the person or persons answering these interrogatories.  Include their business address, business phone number and title within the Plaintiff’s Organization.
  4. Provide the following information for each person known to the Plaintiff who has knowledge of the facts relevant to this case, including but not limited to all persons interviewed by you, by your counsel, or by any person cooperating with you in this action, giving a brief description thereof, for each person you may call as a witness in this case.   Name, Address, and Phone Number, Place of Employment, Relation to Plaintiff, and The subjects and substance of the testimony the witness will give; and whether the witness is to be tendered as an expert witness.
  5. Provide the following information:
  1. Your full name
  2. Your full business Name
  3. Your business purpose (eg. Creditor, lender, collection agency, etc.)
  4. Form of Business Organization. (e.g. corporation, partnership, sole proprietorship, etc.)
  1.  In regards to the contract or agreement alleged in this action, please state the following:
  1.  Terms of the Contract or Agreement
  2. Credit Limit Amount Financed in the Alleged Contract or Agreement.
  3. Date and Monetary value of any valuable consideration received on the contract or agreement.
  4. Date and monetary value of any payments or credits alleged to be executed on the contract or agreement.
  1.  Provide the following information for each person who has had any involvement in any manner in any efforts on your behalf to collect any debt(s) purportedly owing by Defendant.
  1. His/Her position
  2. His/Her work address, telephone numbers
  3. Nature and purpose of his/her involvement.
  1.  Identify the persons or entities, regarding any debt which you have attempted to collect from Defendant, identify all documents related or relevant to your contractual agreements. (servicing, assignments, etc.) or other business relationships with said persons or entities.
  2. Plaintiff and Attorney.  Please each person who has had any contact or communication on your behalf regarding Defendant’s purported debt, state when, how where, and with whom said contact or communication occurred and in detail and with particularity the substance thereof.
  3. Attorney.  Describe all collection activities, which you were authorized to perform for LVNV FUNDING LLC, and identify the terms of the agreement between LVNV FUNDING LLC and you pursuant to which you sought to collect this account.
  4. Describe LVNV FUNDING LLC’s procedure and policy with respect to the Maintenance, preservation, and destruction of documents, stating in your answer whether any documents or thing relating to any information requested in these interrogatories or related in any way to this lawsuit have ever been destroyed or are no longer in your custody.  For each such document, please identify the document, how when, and why each document was destroyed, or otherwise left your control, the identity of any person who participated in any way in the destruction and or action for destroying the document or to transfer it out of your control or custody; and if the document still exists, identify the person now having control or custody of the document.
  5. What document states in writing in support of your complaint that the defendant is indebted to pay the Plaintiff and when was this agreed statement in writing entered into?
  6. On what date did the defendant become indebted to the plaintiff for 581.67?
  7. Identify all witnesses with evidence in support of your complaint that the defendant entered into a contract and is indebted to the plaintiff.
  8. State all actions taken to verify the accuracy and completeness of the accounts reported and state your procedures designed to assure the maximum possible accuracy of the information reported by you.
  9. What is the date that the defendant allegedly defaulted on the original account?
  10. What was the status of the alleged contract/account when acquired?
  11. What credit card purchases and or cash advances were made on this account? When and where were they made?
  12. Please identify and describe each exhibit you will use in the trial of this case.
  13. State fully and completely and at length the factual basis of each defense, which you now assert or intend to assert in this action.
  14. How much was this account purchased for from Heritage Chase?
  15. Do you have the Actual contract between the Defendant and Heritage Chase? In addition do you have the Assignment Agreement between Heritage Chase and LVNV FUNDING LLC?

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In small claims in Florida, Discover cannot be started by a counsel if the other party is pro se, unless the judge orders it. At this early stage I would motion to dismiss for any documents missing, if they sue for breach of contract, if they did account stated then use racecar case laws, if they used both then use both rule 1130 and those case laws. You can see a sample here:

 

 

http://www.creditinfocenter.com/community/topic/316286-another-florida-midland-funding-llc-summon/

 

Also if you take the time to post the complaint word by word it will help, change name and amounts. The first few pages attached are just added by the clerk, go directly to the page of the actual complaint, where it says:

 

1 Defendant live in such county so venue is proper

2 This is a complaint of less than 5k

etc.

 

Thanks! I know I read in the rules regarding if I initiate discovery then they can too, but if I don't then they can't since I'm Pro Se. That's why I wasn't sure if that was a smart move or the correct one.

 

If I file a motion to dismiss then do you know how that would work since we already have the next trail date set? Would they offer a new date for that motion to be heard or is that something that the judge would look at and wait for the existing date?

 

 

 

 

The details of the complaint are as follows:

 

 

 

Plaintiff sues the defendant for damages and would allege:

 

1. This is an action for damages less than $xxxx

 

2. Defendant obtained and used a xxx revolving credit account, xxxxx0000

 

3.Plaintiff is the successor in interest of said account having purchased said account in good faith, for value, and in ordinary course of business. 

 

4.Defendant did not make payments and charged same to account, but after statements were provided to defendant, defendant failed to make the monthly payments due upon the account and failed to object to the balance then owing, resulting in an account stated sum of $xxxx

 

5. Plaintiff has declared defendant to be in default and demands payment of the balance due on the account. Defendant has refused said demand.

 

6. Defendant is indebted to plaintiff in the sum of $xxx with interest since xxx

 

7. All conditions precedent to this action have occurred.

 

8. Pursuant to rule 2.516 plaintiff designates the following email address for the purpose of service of all documents required to be served in this proceeding pursuant to rule 2.516 in this proceeding...

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lol thanks 

kutuzov

 see what i mean about someone from your home state? disregard my post.

 

No worries. I may still need all that info at some point. Thank you for taking the time to respond!

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With those two pdf, just read those rules, small claims rules, and redact your own, file it with the court and on the hearing date ask for missing docs, like bill of sale, contract, etc. On the hearing date just motion to dismiss and you should be good to go.

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JDB filed complaint (in FL) as Account Stated.  I filed MTD and Plantiff's atty has notified me of hearing on the MTD.  They will be appearing telephonically.  I was surprised JDB atty scheduled the hearing, as the court clerk said I would need to call back 10 days after filing MTD to schedule the hearing.  Should I expect anything other than to argue the merits of my MTD.

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There should be a pre trial conference, check with the court. Anyways object the telephonic appearance, make them spend more money, and be there. If you fail the motion then you'll need to respond the complaint, BUT you got 20 days to respond or on the next pre trial conference, if they scheduled one.

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Thank you Kutuzov.  No pre trial conference, just a hearing on my MTD.  I have seen objections to witnesses appearing telephonically, but I hadn't seen any objections to atty appearing telephonically.  I've googled and haven't found an example, do you know of any source?  Can they bring up anything else during the hearing other than to argue the merits of my MTD? 

 

It has been more than 30 days since complaint and no bond filed, so tomorrow I'm gong to notify them (via the email) of the JDB's failure to post a non-resident cash bond.   

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send  them that cmrr, and bring that on your MTD hearing. Not sure I never did one maybe racecar got something.

 

theorically is just a hearing on your MTD, but as it is small claims it might get you somewhere else, if that happens just motion the court on a continuance to get you time for you to prepare.

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If you read FSU Girl's thread, (well. at 1,500 posts that would take some time) account stated is what sunk her. Now CACH was well-prepared, had affidavits from the OC showing assignment, but what really hurt FSUGirl, was when CACH was able to produce her billing statements and her bank records showing she made payments without any objections as to the correctness of the account. This tracks the leading FL case on account stated, "Farley v. Chase Bank, (Fla. Dist. Crt of App. 2010). The case is summarized below by Fla lawyer Donald Petersen from his website:

"Chase filed a credit card collection lawsuit consisting of one count which alleged that she owed $ 14,931.25 under an “Account Stated” cause of action. In Parricai Farley v. Chase Bank, USA, N.A., the Florida District Court of Appeal for the Fourth Circuit, held that “when an account statement has ‘been rendered to and received by one who made no objection thereto within a reasonable time,’ a prima facie case for the correctness of the account and the liability of the debtor has been made’.” The Farley court further explained that the defendant borrower may overcome this presumption by “meeting the burden of providing fraud, mistake or error” in the account. So, the consumer faced what is usually a very steep uphill struggle to overcome the presumption."

Now if Portfolio Recovery doesn't have the documents CACH did, your case may be different. I hope so. Or maybe you can prove, fraud, mistake or error. Or maybe FSUGirl had the wrong judge. I don't know.

Keep fighting the case, but if would be good to consult a lawyer. And as for your JDB not posting a cash bond, FSUGirl filed a complaint against CACH, they posted the bond, and the case went on. So, be advised.

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I just wanted to add to this, it was originally my post. I ended up hiring an attorney and the JDB agreed to a "mutual release" and the case was dismissed with prejudice. My attorney signed on and filed a counter-suit for attorney fees and sent requests for discovery and interrogatories, which pretty much sealed it for them. They didn't want to actually have to fight the case they just wanted me not to fight or make a mistake without a lawyer, so they could get a judgement. 

 

The main reason I decided to go with a lawyer was because it was an account stated suit and after listening to the lawyer go over how little they actually needed to win since I hadn't objected to their claim previously I figured it was worth the cost of the attorney to not deal with the headache of doing it myself. 

 

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