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Motion to Vacate Default Judgement in Florida


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In February of 2013 I noticed a new item had been added to my credit report. It was a default judgement awarded to Pinnacle Credit Services in Aug of 2012. I was never served. The dockets state that the summons was executed to an address of mine from 4 years ago. Further inspecting the judgement I found that Pinnacle assigned Marcadis Singer of Tampa, Fl to handling the suit. I made my first mistake which was contacting the "law firm" to establish a payment plan. I received the runaround and a payment plan was never established. They wouldn't even return my phone calls. This made me suspicious and uncomfortable to say the least so I began looking into the debt (which I should have done to begin with) and I believe this debt is originally from 2008 with Citibank. However, my attempts to get any information from Citibank about this debt or the original account has been a waste of time. I filed a motion to vacate judgement where I cited improper service and my belief that the SOL had expired on the account and PCS had engaged in reaging of the account to pursue the suit. I was granted a new hearing date of 7/1/2013. I know the burden of proof is my responsibility. How to prepare for this new hearing?

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If you're referring to your credit report, they don't mean the account was originally opened in 2010.  That's the date the account was opened in their files.

 

The SOL for collection and lawsuits is determined by the date of last payment.  The SOL for the 7 year reporting period is determined by the date of first delinquency provided by the original creditor.

 

You need to get to the courthouse ASAP and find out how they claimed you were served.

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also find out when your last payment on account was.  If you defaulted in 2008, the fl I believe is 3 years, and it would have been outsite the SOL to sue.  If you OPENED it in 2008, then you need to find out when the last payment was made.  Then check to see when the suit was filed.  If the time frame was less than (3 years for fl I believe) then they were within the SOL, and you would ask for a new trial or a dismissal.  If your lucky it will be a dismissal, because then the SOL may be expired, depending on the last payment date.  If they just vacate, and have the trail continue, you would need to fight it based on other areas of law.

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That's another issue I'm having. All my efforts to find out the first date of delinquency have been futile. I've contacted the original creditor and it seems they've purged all records from their system. I honestly don't know where to begin in regards to finding that information.

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No, it has been removed. Pinnacle appears and is listed as being reported until July of 2015. I believe when I started trying to clean up my credit I disputed the item and it was removed. I was able to locate an old report that had the item listed but the date of delinquency was not listed. I tried to use the information reported to gather more for Citibank directly but no luck.

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Go back 7 to 7.5 years from the date in 2015.  That would give you an indication of the date of first delinquency.  However, unless your date of first delinquency (DOFD) is the same as the date you made your last payment, it would hard to determine the DOFD from your bank records.  It would be easy to determine that date if the DOFD is the same as your date of last payment.

 

The DOFD is the date you were late on the account and never brought the account current again.  You can make small payments after that, but if those payments don't bring the account current, that DOFD will not change.  Those small payments won't affect it.

 

But those small payments do affect the SOL for collection. 

 

I believe the SOL for credit card debt in FL is 5 years from the date of last payment.  Do you remember when you made the last payment more than 5 years ago?

 

In any case, you need to concentrate on the issue at hand.  Right now, you need to find out if you were properly served under FL law.

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I agree that looking into whether I was properly served is the paramount concern at this time. However, I've read conflicting information for the SOL in Florida. I read for written contracts and closed ended accounts it is 5 yrs but for opened ended account and revolving credit such as credit cards it is 4. Is there a definite answer to this?

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That's really a question you need to ask an attorney.  It depends upon whether FL courts consider a credit card account to be a written contract or not.  It might also depend on the cause of action (what they sued you for:  breach of contract, account stated, etc.) 

 

Again, that shows you need to see your file so you can read the complaint.

 

Now, there is a FL statute (559.715) that states an assignee (which includes a JDB) must contact with at least 30 days before a lawsuit to let you know they've been assigned the account.   Did you ever receive any letters from the JDB?

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You could bring up the issue of the FL statute when you go to court.  They'll probably argue that they sent you written notification of the assignment, but I'd try it anyway.

 

Have they responded to your motion to vacate the judgment?

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@Modern Isis

 

Read your rules about motions.  In my state, if we file a response to a motion, we have to send a copy of our response to the other party.  If they filed a response, they should have sent you a copy.

 

You could check your file at the courthouse to see if they filed a response.  If they did file a response, it would be nice to know what claims they made in case you need to refute those claims at the hearing.

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