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JDB use trickery to get around 20 days to respond

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1  Portfollio Recovery(JDB) sends out process server and states Defendant is served,

2. Pre-trail hearing is Scheduled. 

3  Defendant goes to pre-trail stating not served and puts in Motion to Dismiss on that grounds

4  Clerk of courts changes docket to not served due to mistake Process server made.

5  Hearing on MTD, Judges states Defendant is now served by coming to hearing denying MTD  

6  10 days later Plaintiff(JDB) files Motion to dismiss without prejudice

7  Defendant has not file any affirmatives yet.  Case becomes closed

8  9 months later judges grants motion to set aside MTD and sends letter through regular mail

9  12 days later Defendant finds lawsuit is now on again and is out of town.

10  Defendant has not submitted any affirmatives but has verbally denied all claims

11  Next day Plaintiff(JDB) submits  Motion for Summary Judgement

12  There still no certificate of service in Docket


Defendant is in Florida


A  Does anyone know if Defendant can still submit Affirmatives to the court?

B  If Defendant can't,  Can Defendant still plead case?

C  Can Defendant submit A Motion to Dismiss?

D  Is there any way Defendant can win case without submitting Affirmatives?

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Super thanks goes out to you and Racecar for your help.  I am certain I can win this case if allowed to. You and Racecar have provided so much good material in other post that I can use for motion to dismiss on lack of standing, privy and etc.  I have been very confused to the deceit of the Plaintiff.   I don't know what to summit first, Sworn denial of debt and amount.  Motion to strike Affidavit, Motion to dismiss, or Just go for summary judgement. Do I try to summit my answers anyway even thought I went to both pre-trail and MTD hearings.   I have been tricked.  I think I have been denied the opportunity for a jury trail as well.  Here is the complaint


plaintif sues Defendant for damages, and would allege:


1 This is an action for damages less than $5,000.

2 Defendant obtained and used a xxxxxxxx. / xxxxxxx  revolving credit account, xxxxxxxxxx(the account)

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

4 Defendant did make purchases and charge same to the Account, but after statements were provided to defendant, defendant failed to make monthly payments due upon the account and failed to object to the balance then owing, resulting in an account stated in the sum of $2xxx.xx see exhibit b.

5  Plainitiff 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 Plantiff in the sum of $2xxx.xx with interest since september 29, 2011. 

7 All conditions precedent to this action have occurred. 

Wherefore, Plaintiff demands Judgement against Defendant for $2,xxx.xx plus interest and cost.



I have had my answers and Affirmatives to complaint since the day before they the Summited their Motion to Dismiss, 10 days after Judge gave me the complaint.


I went to lawyer at the time he said you won don't worry about it.     I went to again when I found out about a the Motion to set aside dismissal and he said Plaintiff has to reserve me.   I find out later Plaintiff has put in a Motion for summary Judgement Verified?


They have not proven any thing with evidence.  Just a charge off statement from sams club With my nick name not my real name

a bad xerox of a back of credit card statement with no name or anything,

and a bogus Affidavit 

a piece of paper say statement of account.


I thought you can't summit papers for 3rd party as evidence   ( it is hearsay)


I have a killer Motion to dismiss I have complied due to the excellent examples for this site.  but I am so unsure what to do now.


I have not received the Motion for summary Judgement yet because I have been out of town. and was just submitted  I check online docket daily now.

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What is the fastest way I can beat them?  

There has been no discovery even thought I asked for it at MTD hearing and for Jury Trail.   I think that is why Plaintiff summited a Motion to dismiss. 


So Plaintiffs sends a piece of paper in the regular mail ( no signature) saying Lawsuit is back on not even having enough time to submit my Answer and Affirmatives.  A little over a week goes by on time sensitive part of being able to Answer complaint.  I feel they should have served me again, due to the time frame of being able to Answer.


Is there a way to ask the Judge to allow my answers and affirmatives since this was suppose to be entered before I went to pre-trail.  ( I had nothing when I went to Pre-trail,  no complaint, no due process,   not servered,  Just a piece of paper saying I was served from online when processes server lied and said I was served.)??????

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You did answer the complaint with a general denial, in FL small claims you don't need it to do it in written you can do it orally at the hearing. You did request jury trial when you answered with the judge just remind the court. At this point file a MTD and an opposition to the msj.


Mikhail Kutuzov was said to have wrote this while working at the waffle house on a slow night in Gulf Breeze florida.Thru his fine research he has included a couple more for your reading pleasure.

Asset Acceptance LLC,
Vs. Case No.XXXXX-XX
Mikhail Kutuzov

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 Asset Acceptance LLC, (“Plaintiff”), and in support thereof states:
1. Plaintiff, as named in the caption is “Asset Acceptance LLC”. 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.
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.

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 Fulton, Friedman & Amp, Gullace 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.



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For discovery you got to start it or the judge can order the OP to be able to start it. An represented party in small claims cannot start discovery against an unrepresented one, you need to start it, but try the motion to dismiss first, and an opposition to the MSJ, at the hearing if you fail your MTD, do a continuance on the msj to do discovery. 

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Can someone shed some light about capacity,  I see this statement in a lot of Motions to Dismiss.

I have looked up the statute and looked up the case but still having hard time comprehending.


1.  Do you think it applies to this his case?


Dismissal is appropriate when capacity has not been alleged


2. Should/Can a Defendant (not a lawyer) pro se use court cases without the advice of a lawyer,  to prove their Case?

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Can someone shed some light about capacity,  I see this statement in a lot of Motions to Dismiss.

I have looked up the statute and looked up the case but still having hard time comprehending.


1.  Do you think it applies to this his case?


Dismissal is appropriate when capacity has not been alleged




 Capacity sounds like standing to me at least from the general definition of the term. But I don't know FL law.



2. Should/Can a Defendant (not a lawyer) pro se use court cases without the advice of a lawyer,  to prove their Case?


I assume you're referring to case law? You can and should use published Florida cases that support your defense. 

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That one refers to specific rules of civil procedure you can find them here:




Also not all rules of civil procedure apply in small claims, there's a separate rules for small claims, so you'll need to match the corresponding civil procedure rule with the small claims rules, and change, also some rules of civil procedure apply to small claims too:





This rule of small claims is specially important cause it states how the full Florida civil procedure code applies:



(a) Generally. Florida Rules of Civil Procedure 1.090(a), (B), and ©; 1.190(e); 1.210(B); 1.260; 1.410; and 1.560 are applicable in all actions covered by these rules.

(B) Discovery. Any party represented by an attorney is subject to discovery pursuant to Florida Rules of Civil Procedure 1.280–1.380 directed at said party, without order of court. If a party proceeding without an attorney directs discovery to a party represented by an attorney, the represented party may also use discovery pursuant to the above-mentioned rules without leave of court. When a party is unrepresented and has not initiated discovery pursuant to Florida Rules of Civil Procedure 1.280–1.380, the opposing party shall not be entitled to initiate such discovery without leave of court. However, the time for such discovery procedures may be prescribed by the court.

© Additional Rules. In any particular action, the court may order that action to proceed under 1 or more additional Florida Rules of Civil Procedure on application of any party or the stipulation of all parties or on the court’s own motion.



Also unless there's a specific rule for small claims (like the answer not needed in writing and can be oral), all rules of Florida civil procedure can apply depending on circumstances.


Capacity is just defined as the regular English meaning, but there are words that have a specific definition, you can find them here and search them:



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In Earls v. King, 785 S.W.2d 741 (Mo. Ct. App. 1990), the court succinctly set forth the legal effect of the concept of capacity to sue:

    Capacity to sue is the right to come into court which exists if one is free of general disability, such as infancy or insanity. Nearly all adults have capacity to sue. Earls, 785 S.W.2d at 743.



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My case is 26 days old today and I already have to file a opposition for summary judgement!!!


I can't believe this!!!


Can anyone shed any light how to assemble this article....


Racecar has provided me with a example not related to JDB but is a good Start... Thank  you  Racecar.....


I filed a Motion to dismiss and Affidavit of sworn denial to submit into evidence today and Clerk of Courts says I need to file this article by tomorrow...  I just got the MSJ Yesterday filed in court on 7/3/13 go figure.

clerk gave me the assistant to the judge telephone today,  I think I will call her tomorrow.  Hope that can help me? 

I can't believe Judge would just ram rod this through like everything else..... 

I have been shut out of my due process due to the trickery of JDB....

I wonder if I can Appeal if I lose on that matter..... or to have Summary Judgement set aside??????


1.   Can I use most of key points I use in my MTD for a opposition for summary Judgement

2.   Can I bring up the fact that I requested Discovery the first day I got served my papers at Motion to dismiss or

3.   It that not the right article to mention that?

4.   I tried to tell the clerk of courts that I am pro se and she would have to notify OA of MTD.  I cited FL Statute and she just looked at me and said just NO!   Well nothing seem to go my way!

5.   I would love to see some more examples If any body knows where to find these.

6.   The deck is really stacked against me ....   I can't have a lawyer represent me but the JDB can ...   That is not mutual exclusive.

7.   Sorry for the vent but It seems everything is a up hill battle.   I have to cram to learn all this information in such a short time frame......   Tell me the Deck is not stacked....   Thank God for the fine people on this Forum!!!!!!!!

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Again Discovery is up to you to start it, the court did not for what you posted allowed the OP to start it, and you are the unrepresented party, so either you start it or the judge can allow the OP to do so, but as of now if you do nothing no discovery will take place. That said, if it was me I would take my chances on the MTD and see if I could get it dismissed, and then if I fail the motion I would ask the court a continuance on their MSJ to do discovery, and see what documents they produce if any, and go from there.

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  • 9 months later...

Update.   Still at this Almost 2 years,  I had a hearing a few weeks ago judge only allotted 15mins for motion to dismiss.  I thought we were going to have hearing on plaintiffs MSJ.  I talked for 20 mins. so nervous.  Judge says we have to reschedule another hearing for mid May and I have to refile a amended motion to dismiss.  I mentioned that the Plaintiff has submited 2 sham affidavits(not properly notarized according to Florida Statutes)  that conflict with the complaint,  One affiant says account started with one entity and the other affiant says it started with another entity but both have same account number, name, and amount.  the bill of sale attachment has different date than one affiant states and the other affiant states another date two day earlier than complaint states.


    I notified Plaintiff of failure to post non cost bond and plaintiff sent check into clerk for 110$ but It looks like thats all they did.  Went to clerk of court 3 times try to see who the surety is but they have no idea what I am talking about?   All they do is show me where Plaintiff deposited $110.  Anybody have any ideas if I should mention this in the amended motion to dismiss ?


I have not done discovery yet either.  


This whole case is a sham  


I never even saw anything they have submited 2 statement , account stated sheet.   


Heck they dont even have my name correct ,  They are sueing me under a nickname .  Does that matter?.  I went to court with a motion to dismiss for sewer service and judge say you are here you are served. to this day no certificate of service.


I believe this whole case is identity fraud or they have made these attachments themselves.  


How long do I have to create this amended Motion to dismiss in florida?


Is it a good idea to start a counter complaint against Plaintiff for submitting deceptive attachments in violation to the fdcpa.

I think that will cost extra? and is it likely I can get that money back? 

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