Help With Asset in Fl Case

[Shoffman18]

1. Who is the named plaintiff in the suit? Asset Acceptance

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) FULTON FRIEDMAN & GULLACE, LLP

3. How much are you being sued for? $6500, interest in amount of $700 plus cost of action.

4. Who is the original creditor? (if not the Plaintiff) Suzuki / HSBC Retail Services

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

9. What state and county do you live in? Florida, Marion

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)  Don't have any records.  Print out of statement in complaint shows purchase of $7,800 on 09/13/2007.  I paid on account for two years at a promotional APR and couldnt afford to do so after it ran out.  My best guess would be on the 10th or 11th month of 2009.

11. What is the SOL on the debt? To find out: I believe 4 years

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or    looking it up online (many states have this information posted - when you find the online court site, search by case number or your name). Just looked at court website and case has disappeared... It was just there yesterday.  Received Complaint summons on 5/14/13 and just filed Answer today 6/3/13 

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?  Filed Answer to summons today 6/3/13


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.     Exhibit A  -  Assignment AND BILL OF SALE, and a printed summary of account activity that looks to be legit.

 

Complaint and Assignment and Bill of Sale will be as follows...

 

[racecar]

Are you being sued for breach of contract and account stated,unjust enrichment.

Never assume Asset Acceptance is on the up and up and every thing is

copasetic. Read thru the cases, study the rules of civil procedure, rules of the court,and send plaintiff discovery to see if they have standing to sue you,and the evidence is verified and authenticated.

http://www.floridabar.org/tfb/TFBLegalRes.nsf/

http://phonl.com/fl_law/rules/frcp/

http://phonl.com/fl_law/rules/frcp/frcp1351.htm

http://phonl.com/fl_law/rules/frcp/frcp1340.htm

http://phonl.com/fl_law/rules/frcp/frcp1370.htm

http://phonl.com/fl_law/rules/frcp/frcp1280.htm

http://www.nclc.org/index.php?option=com_googlesearch_cse&n=30&cx=012730133695007092537%3Af0aqrzhgfnw&cof=FORID%3A11&ie=UTF-8&q=moehrlin&sa=Search&hl=en&safe=active&cr=countryUS read this case

http://www.nclc.org/unreported-decisions.html Look for the fl cases theres around 6 or 8 to read.

[Shoffman18]

IN THE COUNTY COURT IN AND FOR MARION COUNTY, FLORIDA

CIVIL DIVISION

 

Asset Acceptance LLC,

Plaintiff

 

-vs-                                                                                                                              Case No.

 

My Name 

Defendant

 

COMPLAINT

 

          Plaintiff, Asset Acceptance, LLC, by and through its undersigned attorneys, sues

Defendant(s), My name, and alleges:

 

 

 

DEFENDANTS ANSWER TO COMPLAINT

 

Defendant appearing pro se, for its reply to the Complaint naming ASSET ACCEPTANCE LLC PLAINTIFF as follows: All answers correspond to the numbered paragraphs of the complaint(s). All allegations of the Complaint(s) are denied unless expressly admitted herein.

 

 

 

 

 

 

GENERAL ALLEGATIONS

 

1.   Damages in this action exeed $5,000 but not $15,000, exclusive of interest and court costs.

 

     1.  Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

2.    Plaintiff is a delaware LIMITED LIABILITY COMPANY authorized and doing business in the state of Florida.

 

     2.  Denied. Defendant demands strict proof of Plaintiff's authorization to do business in the state of Florida.

 

3.   Plaintiff is informed and believes that Defendant(s), My Name is/are reside in Marion County, Florida 

 

     3.   Admit.

 

4.   Upon Defendants request, SUZUKI / HSBC RETAIL SERVICES established a credit card account in Defendant(s) name and issued a credit card to Defendant(s).

 

     4.   Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

5.   From on or about September 10, 2007 to on or about January 01, 2010, Defendant(s) caused charges to be incurred on SUZUKI / HSBC RETAIL SERVICES credit card account numbered xxxxxxxxxx-xxxx.  Defendant made a partial payment on or about December 13, 2010

 

     5.   Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.  

 

6.   Plaintiff purchased, for value, Defendant's SUZUKI / HSBC RETAIL SERVICES credit card account, thereby creating a right in favor of Plaintiff, and against Defendant(s).  Copies of applicable assignment documents are attatched hereto as Exhibit "A".

 

     6.    Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

7.   All conditions precedent to the bringing of this action have occurred, been performed or waived.

 

     7. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

COUNT I – ACCOUNT STATED

 

8.    Plaintiff re-alleges the allegations set forth in paragraph 1 through 7 of the Complaint as if fully set forth herein.

 

    8. Defendant repeats and restates each and every material answer as contained in answers 1 through 7 above.

 

9.    Before the institution of this action, SUZUKI / HSBC Retail Services and Defendant(s) had business transactions between them, and they agreed to the resulting balance.

 

    9. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

10.   SUZUKI / HSBC RETAIL SERVICES rendered account statements to Defendant(s), and Defendant(s) did not object to the statements.

 

   10. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

11.   Defendant(s) is/are indebted to SUZUKI / HSBC RETAIL SERVICES, and by virtue of an assignment, to plaintiff, in the principle amount of $6,500.00, plus prejudgment interest in the amount of $700.00.

 

   11.  Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

COUNT II – MONEY LENT

 

12.    Plaintiff re-alleges the allegations set forth in paragraphs 1 through 7 of the complaint as if fully set forth herein.

 

   12. Defendant repeats and restates each and every material answer as contained in answers 1 through 7 as stated above as well as answers 8 through 11 as stated above.

 

13.    Defendant owes Plaintiff $6,500.00, that is due with prejudgment interest since November 28, 2012, for money lent by Plaintiff to Defendant.

 

   13.  13. Denied. Defendant is without knowledge or information sufficient to form a belief as to the truth of the averment.

 

 

AFFIRMATIVE DEFFENSES

 

14. Plaintiff lacks standing to bring to action.

 

15. The action is barred by the Statute of Limitations.

[Shoffman18]

Thanks for the reply.  Ive spent several hours every day for the last several days searching through Florida cases and other cases.  I should have spent more time researching answers as i feel i should have answered differently but dont know.  Tomorrow was the last day for me to file so i went ahead and sent it in as i have it above.  Actually i was severed on the 14th last month but according to the clerk of courts website it says i was served on the 13th.  I read over a lot of coltfans posts as well. and lady hunter.

[Shoffman18]

Am i able or allowed to scan and post the assignments and bill of sale or do i have to write them out? I can Photoshop any identifying stuff out before i post it.

[kutuzov]

The problem with images is there's people like me that won't click on them, so a plain text it's better.

 

Take a look at rules of civil procedure 1130, and these threat http://www.creditinfocenter.com/community/topic/316286-another-florida-midland-funding-llc-summon/

 

as you have already answered you can still file a motion for dismiss for not attaching a contract, make them work and spend every penny you can on you, they'll give up when the bills start to pile up.

 

check all racecar info it's invaluable.  

[admin]

It's better to do plain text, but I will read your attachments.  

[Shoffman18]

Kind of wish they sued me for breach of contract now as well.  Do they still have to attach a contract if their not suing for breach of contract?  I glanced over those links racecar and will read them again when i have a little more time.  kutuzov, i had look over that link earlier today and brushed up on it again.  things are starting to become more clearer for me now as i didnt even know about the counts i was being sued for...

 

In paragraph 5 of the complaint it states that i made a partial payment on or about December 13, 2010 which isnt possible 

[Shoffman18]

It's better to do plain text, but I will read your attachments.  

i will try to get them posted either tonight or tomorrow.  I will scan them and write them out.  Maybe it will help someone later down the road.  They are not notarized and do not refer to alleged accounts or defendant.

[kutuzov]

They do not state they are sueing for breach of contract, but how they got the assignment if there's no contract?

 

4.   Upon Defendants request, SUZUKI / HSBC RETAIL SERVICES established a credit card account in Defendant(s) name and issued a credit card to Defendant(s).

 

They state that upon your request they opened a cc, if so there got to be an agreement, called a credit card holder agreement, ask for that where is the card holder agreement (oral contract). Also without that agreement how did the account got assigned? I mean if they don't have it, then the assignment could not have happened.

 

 

Also use racecar case laws for account stated, they are great, try to put all together on a motion to dismiss, and post it here we can help.

 

About SOL, I don't recall HSBC choice of law now, but it's not Delaware or Virginia, is another one, and the 4 years SOL of Florida is the one that applies. So last payment got to have been at least 4 years before they filed suit. If the auction was in Dec 2010, I doubt it took them a long time to send it to auction so maybe the repo was 6 months before? june 2010? if so it's still whitin SOL, just a guess.

[BV80]

@kutuzov

 

About SOL, I don't recall HSBC choice of law now, but it's not Delaware or Virginia, is another one, and the 4 years SOL of Florida is the one that applies.

 

If I remember correctly, FL has one SOL for written contracts and another for implied contracts.  Is there any FL case law from a higher court that states that a credit card agreement is written or implied?

[kutuzov]

there's a case law for cc I'll check it. and post it. Give me 5.

 

 

Got it:

 

http://www.creditinfocenter.com/community/topic/315045-need-help-with-a-sol-problem/

 

Basically cc are treated as oral contract and the 4 years SOL applies, for written contracts a 5 years SOL applies.

[BV80]

there's a case law for cc I'll check it. and post it. Give me 5.

 

 

Got it:

 

http://www.creditinfocenter.com/community/topic/315045-need-help-with-a-sol-problem/

 

Basically cc are treated as oral contract and the 4 years SOL applies, for written contracts a 5 years SOL applies.

 

Thank you!  It's a good case, but unfortunately, it's from a lower court and doesn't appear to be published case law.  There'fore, it's not binding on that particular court or any other court. 

 

However, I'd still use it, but I wouldn't base my entire argument on that case.

 

Your state is like mine.  There's either little or no published case law regarding credit card debt.  

[kutuzov]

@BV80

 

Portafolio Recovery vs Fernandes is published, what the other case is is just an extension of store cards, to mastercads, visa etc, so really even thought you are right is not a published case, I'll doubt any judge will go against that, so probably there won't be a case law under those circumstances. You can check the Fernandes case law by a simple google search, what is harder to find is the extension of store cards SOL, to credit cards SOL or the Hillsboro case.

 

My 1 sec google search got me this

http://www.homesteadpropertyexemption.info/index.php?action=vthread&forum=31&topic=374

 

Anyways he defaulted for what I guess sometime in the first semester of 2010, so SOL does not apply to the case, even if it was at the end of 2009, the 4 years marl has not been reach, the OP needs to apply account stated case laws, and try to get the judge to order Asset to present the contract.

[BV80]

@BV80

 

Portafolio Recovery vs Fernandes is published, what the other case is is just an extension of store cards, to mastercads, visa etc, so really even thought you are right is not a published case, I'll doubt any judge will go against that, so probably there won't be a case law under those circumstances. You can check the Fernandes case law by a simple google search, what is harder to find is the extension of store cards SOL, to credit cards SOL or the Hillsboro case.

 

My 1 sec google search got me this

http://www.homesteadpropertyexemption.info/index.php?action=vthread&forum=31&topic=374

 

Anyways he defaulted for what I guess sometime in the first semester of 2010, so SOL does not apply to the case, even if it was at the end of 2009, the 4 years marl has not been reach, the OP needs to apply account stated case laws, and try to get the judge to order Asset to present the contract.

 

It appears the Portfolio case is in Palm Beach County.  As far as I know, a  published case in that county would not be binding on other counties, but it's persuasive. 

 

Even thought the poster may not be able to claim an SOL defense, the case would be binding on a case in that county.  It might also be persuasive for residents of other counties if they have no opposing case law.

[Shoffman18]

This is page 1 of Exhibit A

 

 

 

 

Exhibit A

 

 

ASSIGNMENT AND BILL OF SALE

 

           HSBC bank Nevada, N.A., (herein called "seller") has entered into a Purchase and Sale Agreement as of December 21st, 2010 ("Agreement") for the sale of Accounts and Account Documents described in Paragraph 1 thereof to ASSET ACCEPTANCE, LLC.  (herein called "Purchaser"), upon the terms and conditions set forth in that Agreement.

 

           NOW THEREFORE, for good and valuable consideration, Seller hereby sells, assigns, and transfers to Purchaser, its successors and assigns, all of Seller's rights, title, and interest in each and every one of the Accounts described in the Agreement and in Exhibit A attached hereto.

 

Purchaser and Seller agree that the Purchase Price shall be as stated in Paragraph 3 of the Agreement.

 

IN WITNESS WHEREOF, Seller has signed and delivered this instrument on the 15th day of February, 2011.

 

 

HSBC Bank Nevada, N.A.

 

     Paul Stanborough        

Paul E. Stanborough

Senior Vice President

 

 

 

 

 

This is page 2 of Exhibit A

 

 

 

EXHIBIT A (Continued)

 

 

ASSIGNMENT AND BILL OF SALE

 

           HSBC Receivables Acquisition Corporation (USA) IV, (herein called "seller") has entered into a Purchase and Sale Agreement as of December 21st, 2010 ("Agreement") for the sale of Accounts and Account Documents described in Paragraph 1 thereof to ASSET ACCEPTANCE, LLC.  (herein called "Purchaser"), upon the terms and conditions set forth in that Agreement.

 

           NOW THEREFORE, for good and valuable consideration, Seller hereby sells, assigns, and transfers to Purchaser, its successors and assigns, all of Seller's rights, title, and interest in each and every one of the Accounts described in the Agreement and in Exhibit A attached hereto.

 

Purchaser and Seller agree that the Purchase Price shall be as stated in Paragraph 3 of the Agreement.

 

IN WITNESS WHEREOF, Seller has signed and delivered this instrument on the 15th day of February, 2011.

 

 

HSBC Receivables Acquisition

Corporation (USA IV

 

     Paul Stanborough        

Paul E. Stanborough

Senior Vice President

BOS.pdf

BOS 2.pdf

[racecar]

http://webcache.googleusercontent.com/search?q=cache:NkUFc3yj_cwJ:media.wix.com/ugd/7c3211_c85d228dfa1490580da9cc73986a9dec.pdf+&cd=4&hl=en&ct=clnk&gl=us

http://webcache.googleusercontent.com/search?q=cache:wc-oDiXg-n4J:media.wix.com/ugd/7c3211_eeb12617a847c8aeaf57e8f53d8926e7.doc+&cd=9&hl=en&ct=clnk&gl=us

http://webcache.googleusercontent.com/search?q=cache:a1zrprv2Y_4J:phonl.com/fl_law/rules/frcp/+&cd=5&hl=en&ct=clnk&gl=us

Mikhail Kutuzov was said to have wrote this while working at the waffle house on a slow night in Gulf Breeze florida.This is just an example of a motion to dismiss with case law that may or may not apply to any case.

　

IN THE CIRCUIT COURT OF THE 1ST JUDICIAL CIRCUIT

OF FLORIDA, IN AND FOR ESCAMBIA COUNTY

Junk debt buyer,

Plaintiff

Vs. Case No.XXXXX-XX

Mikhail Kutuzov

Defendant

　

　

DEFENDANT'S MOTION TO DISMISS

COMES NOW, Defendant,Mikhail Kutuzov ("Defendant"), and pursuant to Florida Rules of Civil Procedure sections 1.210, 1.130 and 1.140, hereby submits this Motion to Dismiss Plaintiff's Complaint brought by junk debt buyer, ("Plaintiff"), and in support thereof states:

RELEVANT FACTS (I)

1. Plaintiff, as named in the caption is "junk debt buyer". In the body of the Complaint, the Plaintiff does not state any other name that it is known by, nor does it explain the capacity in which it brings this action, including the type of entity that it is or whether it is authorized to do business in the State of Florida.

2. In Count 1, "Account Stated", Plaintiff references as an exhibit a billing statement which is attached to the Complaint as Exhibit "A". Exhibit "A" to the Plaintiff's Complaint is an unsigned, single-sheet paper that does not state the identities of either the obligor or obligee, nor does it reference the named Plaintiff. This document purports to represent an interest charge in the amount of 28.99%.

3. Exhibit "A" to Plaintiff's Complaint does not show items for which a debt is due, nor does it show the time of accrual of each item, nor does it show the amount of each item of debt.

4. The Plaintiff failed to attach a copy of the contract which allegedly exists between the Plaintiff and the Defendant.

MOTION TO DISMISS(II)

5. A. Standard of Review

Florida Rules of Civil Procedure section 1.410 provides in part:

How Presented. Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties. A motion making any of these defenses shall be made before pleading if a further pleading is permitted. The grounds on which any of the enumerated defenses are based and the substantial matters of law intended to be argued shall be stated specifically and with particularity in the responsive pleading or motion. Any ground not stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time. No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion. If a pleading sets forth a claim for relief to which the adverse party is not required to serve a responsive pleading, the adverse party may assert any defense in law or fact to that claim for relief at the trial, except that the objection of failure to state a legal defense in an answer or reply shall be asserted by motion to strike the defense within 20 days after service of the answer or reply.

6. The function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action. Connolly v. Sebco, Inc., 89 So. 2d 482 (Fla. 1956). For the purpose of a motion to dismiss, the Court is required to accept as true all well-pleaded allegations of the complaint. Brown v. First Federal Savings and Loan, 160 So.2d 556 (Fla. 1st DCA 1964). However, the Court is not required to accept as true allegations that are inconsistent with law. Brown, 160 So. 2d at 563. ("Semantics cannot be employed for the purpose of refuting facts clearly shown to exist or used to create a fictional relationship, one that otherwise would have no existence in the law.") The pleading must be construed against the pleader in determining whether the necessary allegations have been stated. Matthews v. Matthews, 122 So. 2d 571 (Fla. 2d DCA 1960).

7.B Dismissal is appropriate when supporting documents are not attached to the Complaint.

Florida Rule of Civil Procedure 1.130(a) provides in pertinent part: "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." A motion to dismiss for failure to state a cause of action must be granted if the document on which the complaint is based is not attached. See Walters v. Ocean Gate Phase I Condo, 925 So 2d 440, 443-44 (Fla 5th DCA 2006); Safeco Ins. Co. of America v. Ware, 401 So.2d 1129 (Fla. 4th DCA 1981). A party who makes a claim or defense based on a written instrument must attach a copy of the instrument to the pleading in which the claim or defense is raised. Jeff-Ray Corp. V. Jacobson, 566 So.2d 885 (Fla. 4th DCA 1990). The note to Fla. R.Civ.P. Form 1.932, Open Account, requires that a copy of the account showing items, time of accrual of each, and amount of each must be attached. The note to Fla. R.Civ.P. Form 1.933, Account Stated, requires that a copy of the account showing items, time of accrual or each, and amount of each must be attached.

8. The single-page document Plaintiff attached to its Complaint as Exhibit "A" is not a contract, it is not signed by either the Plaintiff or the Defendant, nor does it describe the obligor or the obligee, and it fails to contain a complete listing of the account showing items, time and amount of each as prescribed by Form 1.932 and 1.933. The Complaint does not have attached any alleged contract that would govern the alleged dealings between the Plaintiff and the Defendant.

9. C. Dismissal is appropriate when capacity has not been alleged.

Plaintiff's Complaint should be dismissed because Defendant fails to allege capacity pursuant to Florida Rules of Civil Procedure, § 1.120(a) and § 1.110( "Capacity to sue" is an absence or a legal disability which would deprive a party of the right to come into court. 59 Am.Jur.2d Parties, § 31, (1971). This is in contrast to "standing" which requires that a party have a sufficient interest in the outcome of litigation to warrant the court's consideration of it's position. Keehn v. Joseph C. Mackey and Co., 420 So.2d 398 (Fla. App. 4 Dist., 1982).

10. Plaintiff's Exhibit "A" to the Complaint demonstrates that a different entity from the named Plaintiff is the possible real party in interest. Plaintiff has not identified what it (the Plaintiff) is, whether it is authorized to do business in the State of Florida or on who's behalf it is acting, if it is acting on another's behalf.

11. D. Dismissal is appropriate for lack of standing.

Florida Rule of Civil Procedure 1.210(a) provides in pertinent part:

Every action may be prosecuted in the name of the real party in interest, but a personal representative, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party expressly authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought.

12. When exhibits are inconsistent with the Plaintiff's allegations of material fact as to who the real party in interest is, such allegations cancel each other out. Fladell v. Palm Beach County Canvassing Board, 772 So.2d 1240 (Fla. 2000); Greenwald v. Triple D Properties, Inc., 424 So. 2d 185, 187 (Fla. 4th DCA 1983); Costa Bella Development Corp. v. Costa Development Corp., 441 So. 2d 1114 (Fla. 3rd DCA 1983). Florida Rule of Civil Procedure 1.130( provides in pertinent part: "Any exhibit attached to a pleading shall be considered a part thereof for all purposes."

13. The Plaintiff’s Complaint fails to contain sufficient facts to establish who the Plaintiff is and its relationship to the Defendant, if any, and the legal basis for its claims in each of the Counts. Plaintiff relies upon Exhibit "A" to the Plaintiff's Complaint for its basis for this action, which document identifies an entity different from the named Plaintiff. This is in direct conflict with the allegations that the Plaintiff is the real party in interest. Plaintiff has not alleged that it is the successor in interest to the alleged creditor or that it is acting as an agent of the creditor. Plaintiff has failed to establish itself as the real party in interest and has failed to state a cause of action.

14. E. Dismissal is appropriate for usurious interest.

Florida’s anti-usury statute is set out in Florida Statute 687. Florida Statutes section 687.071(7) states that an extension of credit in excess of 25% is illegal and "No extension of credit made in violation of any of the provisions of this section shall be an enforceable debt in the courts of this state." Florida Statutes section 687.0304(2) requires credit agreements to be in writing and provides that that there can be no action upon the agreement if it is not in writing.

15. Florida Statutes section 687.04 provides in part:

Any person, or any agent, officer, or other representative of any person, willfully violating the provisions of s. 687.03 shall forfeit the entire interest so charged, or contracted to be charged or reserved, and only the actual principal sum of such usurious contract can be enforced in any court in this state, either at law or in equity; and when said usurious interest is taken or reserved, or has beenpaid, then and in that event the person who has taken or reserved, or has been paid, either directly or indirectly, such usurious interest shall forfeit to the party from whom such usurious interest has been reserved, taken, or exacted in any way double the amount of interest so reserved, taken, or exacted.

16. Exhibit "A" to Plaintiff's Complaint states that the interest rate being charged is 28.99%, which is in excess of the statutorily permitted interest rate. Plaintiff failed to attach to its Complaint a contract between the Plaintiff and the Defendant which would support its allegations. The Complaint should be dismissed on the grounds that the rate of interest charged by Plaintiff is usurious and for the failure to attach a copy of the contract to the Complaint.

17. F. Dismissal is appropriate for failure to allege the credit card was issued

in response to a request or application therefor.

15 U.S.C. §1642 states:

No credit card shall be issued except in response to a request or application therefor. This prohibition does not apply to the issuance of a credit card in renewal of, or in substitution for, an accepted credit card.

18. Exhibit "A" to Plaintiff's Complaint states that the alleged debt is a "Mastercard". Plaintiff has failed to allege that the credit card was issued in response to a request for an application or the renewal of or in substitution for an accepted credit card, requiring dismissal.

19. G. Dismissal is appropriate for the Creditor's failure to notify the debtor of an assignment.

Florida Statutes section 559.715 states:

Assignment of consumer debts.--This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment within 30 days after the assignment. The assignee is a real party in interest and may bring an action in a court of competent jurisdiction to collect a debt that has been assigned to such assignee and is in default.

20. Exhibit "A" to the Plaintiff's Complaint indicates the creditor is a different entity from the Plaintiff, which suggests that the alleged debt has been assigned to the Plaintiff. The Complaint fails to allege notice of an assignment in violation of Florida Statute Section 559.715, requiring dismissal.

21. H. Dismissal is appropriate when the debtor demands verification of the

debt and the Plaintiff fails to verify said debt.

15 USC 1692g(a) states:

Notice of debt; contents

Within five days after the initial communication with a consumer in connection with the collection of any debt, a debt collector shall, unless the following information is contained in the initial communication or the consumer has paid the debt, send the consumer a written notice containing:

(1) the amount of the debt;

(2) the name of the creditor to whom the debt is owed;

(3) a statement that unless the consumer, within thirty days after receipt of the notice, disputes the validity of the debt, or any portion thereof, the debt will be assumed to be valid by the debt collector;

(4) a statement that if the consumer notifies the debt collector in writing within the thirty-day period that the debt, or any portion thereof, is disputed, the debt collector will obtain verification of the debt or a copy of a judgment against the consumer and a copy of such verification or judgment will be mailed to the consumer by the debt collector; and

(5) a statement that, upon the consumer’s written request within the thirty-day period, the debt collector will provide the consumer with the name and address of the original creditor, if different from the current creditor.

22. 15 USC 1692j states:

Furnishing certain deceptive forms

(a) It is unlawful to design, compile, and furnish any form knowing that such form would be used to create the false belief in a consumer that a person other than the creditor of such consumer is participating in the collection of or in an attempt to collect a debt such consumer allegedly owes such creditor, when in fact such person is not so participating.

23. F.S. 559.72(9) provides (in pertinent part):

Prohibited practices generally. In collecting consumer debts, no person shall:

(9) Claim, attempt, or threaten to enforce a debt when such person assert(s)

the existence of some other legal right when such person knows that the right does

not exist.

24. The FCCPA applies to anyone attempting to collect a consumer debt unlawfully. Florida Statutes section 559.72 "includes all allegedly unlawful attempts at collection consumer claims." Seaton Jackson v. Wells Fargo Homemortgage, Inc., 12 Fla. L. Weekly Supp. 188 (Fla. 6th Circuit 2004) citing Williams v. Streeps Music Co., Inc., 333 So. 2d 65 (Fla. 4th DCA 1976)

25. Plaintiff states in its Complaint at paragraph 5 that Plaintiff rendered billing statements to Defendant seeking reimbursement for those payments; a copy of the final statement showing the balance due is attached as Exhibit "A"; Defendant did not object to the statement (sic)[1].

26. Exhibit "A" to Plaintiff's Complaint is a deceptive "form" that Plaintiff admits it used to provide the notice required by 15 USC 1692g(a). That form clearly does not comport with the requirements of 15 USC 1692(g)(a) as the name on the statement of the alleged creditor is different from the name of the Plaintiff; it does not notify the Defendant that unless the debt is disputed it will be deemed valid by the debt collector; it does not notify the Defendant that she has 30 days in which to dispute the debt in writing and obtain verification thereof; and it does not state that if the creditor is different from the "original" creditor, that the creditor will provide the original creditors name and address to the Defendant. Plaintiff's Exhibit "A" to its Complaint clearly violates the express terms of 15 USC 1692g(a) and consequently,F.S. 559.72(9), requiring dismissal.

CONCLUSION (III)

　

WHEREFORE, Defendant respectfully requests that this Honorable Court grants this Motion to Dismiss and award Defendant's fees and costs for having to bring the present motion, along with all such other relief as the court deems just and proper.

Respectfully submitted,

Mikhail Kutuzov

Certificate of Service

I hereby certify that a true and correct copy of the foregoing has been furnished by U.S. Mail, this 5th day of June, 2013, to F, F & A, G LLP

Mikhail Kutuzov

________________________________________________________________________

[1] 15 USC 1692(g)© states:

Admission of liability

The failure of a consumer to dispute the validity of a debt under this section may not be construed by any court as an admission of liability by the consumer.

[Shoffman18]

Thanks racecar. Lots of stuff to look over. The assignment and bill of sale isn't actually the bill of sale rather a document saying there was a bill of sale? Is it common practice for a seller to type in exhibit A and then refer to it as exhibit A in their statement? How would they know this would be exhibit A in a lawsuit over a year later? Maybe its just a coincidence? Also from my research Paul stanborough is listed as svp of call operations at HSBC, as prior work history but now works at chase bank I believe it said.

[racecar]

"coincidence" Welcome to the world of junk debt buyers.

Always look for any alterations or questionable entries, missing pages, scratching out, writing over, and the use of different-colored inks and correction fluid, dates not matching on credit agreements, bills of sale,affidavits,notary stamps,robo signed documents.

Read everything they send you several times.

[Shoffman18]

Need help again.  I filed my response but never filed discovery or anything else.  The case disappeared off the court website so i just left it alone.  I received a plaintiffs motion for summury judgement in the mail the other day and im not sure what i can do now if anything.  I have four kids to take care of and work a full time job.  I'm tired and stressed out.  I can post the new paperwork if it will help.  

[shellieh98]

You need to file an opposition to their MSJ. Read this current thread. http://www.creditinfocenter.com/community/topic/321769-msj-in-florida/

You need to outline the issues with their "evidence" like there is no bill of sale, only an affidavit that references one, if they did send you one, then argue it is incomplete as the bill of sale references a purchase agreement that was not included. Argue other facts of your case, like the billing statements are not authenticated, you need to be a quick study. When do you have to have an opposition filed by?

[Shoffman18]

I have no idea when i have to have it filed.  The COS is signed and dated Sep 23rd.  Im trying to figure that out right now.  from what i have found so far it says something about responding 5 days before a scheduled hearing but i haven't received anything about a hearing.

[shellieh98]

This site has a lot of case law for summary judgement, you can use some of it for your opposition. http://floridadebtor.com/index.php?topic=58.5;wap2

Can you look your case up online? Then you can see if there is a hearing scheduled, or call the clerks office on Monday. In the mean time go over the evidence, read threads, and get an idea on how to write an opposition.

[Shoffman18]

Thanks, been looking over some of the stuff racecar posted earlier in the thread i might use and will look around for more stuff.  When i was first served i was able to see the case on the clerk website.  It seems like right after i filed my response it disappeared and hasnt been back up.  I plan on trying to work on it most of the day tomorrow if i can.

[racecar]

Something you could raise opposition to plaintiff's summary judgment with just put in your facts.

The party opposing the Motion for Summary Judgment must file written opposition no later than 5 days prior to the hearing on the motion (if the response is served by mail) and 2 days prior to the hearing on the motion if the response is served by hand-delivery or fax.  

 

 

IN THE COUNTY COURT FOR THE 11TH
JUDICIAL CIRCUIT IN AND FOR MIAMI-DADE
COUNTY, FLORIDA
CASE NUMBER: xx-xxxxx CC xx

DISCOVER BANK
Plaintiff,
vs.
xxxxxxxxxxxxxxx
Defendant.

___________________/

OPPOSITION TO MOTION FOR SUMMARY JUDGMENT

Comes now the defendant, xxxxxx xxxxx, pro se, and files Opposition to this Motion for Summary Judgment in response to Motion for Summary Judgment filed herein by Plaintiff, Discover Bank, as follows:
1. Defendant argues the Plaintiff has not attached a copy of the account, showing items, time of accrual of each, and amount of each, as required, pursuant to Fla.R.Civ.P form 1.932 for open account. “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.” H & H Design Builders, Inc v. Travelers’ Indemnity Co., 639 So.2d 697 (Fla. App. 5 Dist. 1994)
2. Defendant argues the Plaintiff has not attached a copy of the account, showing items, time of accrual of each, and amount of each, as required, pursuant to Fla.R.Civ.P form 1.933 for account stated.
3. Defendant argues no copy of the original contract signed by both parties has been admitted into evidence for an open account. “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.” Cherokee Oil Co. v. Union Oil Co. of California, 706 F.Supp. 826 (M.D. Fla. 1989) affirmed 901 F.2d 1114.
4. Defendant argues no copy of the original contract signed by both parties has been admitted into evidence for account stated. “Failure to respond to demand for payment does not create obligation for account stated absent contractual agreement creating such liability.” 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.” Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. App. 2 Dist. 1975)
5. Defendant argues the affidavit attached is hearsay, as the affiant is an employee of DFS Services LLC, and not a direct employee of Discover Bank, the plaintiff, and is inadmissible as evidence due to having no foundation as no detailed accounts accompanied the affidavit. The affidavit is insufficient to meet even the minimal requirements necessary for a judgment.
6. The Plaintiff has not proven ownership of the account. The Plaintiff also has the burden of proof to show this account has not been written off or bad debt insurance has not been collected.
7. The Plaintiff has not proven the right to sue in the state of Florida.
8. Court lacks subject matter jurisdiction due to Plaintiff’s pleadings being insufficient and there being no competent fact witness in the record.


Wherefore, the Defendant respectfully requests that this motion be denied and a dismissal of this complaint with prejudice be granted and filed along with any other relief this court deems just.


I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed by U. S. Mail this eighth day of September, 2010 to Zakheim & Associates, P. A., attorney for Plaintiff, 1045 S. University Dr, Ste #202, Plantation, FL 33324.


By: _______________________________

defendent