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Served in FL by American Express Bank, FSB. What is the smartest way to respond the summon?

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Hi everyone,


I received a summon at my parents house and i didn't sign for it.  I don't live at that address for over 3 years already.  But my dad signed for it without knowing what was it for.


I have the papers now, but with only a few days to respond.  How should i elaborate the respond letter to avoid any judgement?


The debt is for $6K. 


Any professional advice is appreciated or if anyone can point me in the right direction.


Thank you in advance!



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American Express has Arbitration in the credit agreement.

If its a junkdebtbuyer I would elect Arbitration if its the OC I would fight them.

Who is the law firm for American Express?






You or we may elect to resolve any claim by

individual arbitration. Claims are decided by a

neutral arbitrator.

If arbitration is chosen by any party,

neither you nor we will have the right to

litigate that claim in court or have a jury

trial on that claim. Further, you and we

will not have the right to participate in a

representative capacity or as a member of

any class pertaining to any claim subject

to arbitration. Arbitration procedures are

generally simpler than the rules that apply

in court, and discovery is more limited. The

arbitrator's decisions are as enforceable

as any court order and are subject to very

limited review by a court. Except as set

forth below, the arbitrator's decision will

be final and binding. Other rights you or

we would have in court may also not be

available in arbitration.

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All right:


OC = Original Creditor


Florida rules of civil procedure, the rules on how trials go. One rule is 1130, they have to attach a copy of the original contract to the complaint.


Complaint: the papers you got when you where served.


Motion to compel arbitration: Since the contract got arbitration you will do this to go into arbitration instead of using the court.


If you do not answer the complaint or file a motion to compel arbitration, or a motion to dismiss, within 20 days from the day you where served, you lose automatically, this is call Default judgement. After you lose in Florida they got to file a Motion for Final Judgement, BEFORE getting a judgement against you.

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Thank you again for taking the time to answer on this beautiful Friday night Kutuzov.


what is the benefit of arbitration vs going to court?


They only attached the "change in travel insurance policy", statements,  but no contract.

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I posted some links for you to read see post  #4. This will answer all your questions.


arbitration vs going to court?

Answer: Arbitration is very expensive for the creditor it will cost them more then you owe to collect it.

A junkdebtbuyer wont want to pay for it and they normally dismiss the case or wont pay the jams fees or your jams fees.

Read your credit agreement. See post #4



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Arbitration is expensive, and it might not worth it for them to go there, so they will dismiss instead of proceeding further.


So if they didn't attach a copy of the original contract you need to file a motion to dismiss based on rule 1130, so when they amend their complaint or file the contract, you file a motion to compel arbitration.



Also they might be suing for account stated instead of breach of contract, can you type or post the complaint?


Just a sample motion:





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:
B) 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( B) “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( B) 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

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American Express


John Doe
Case Number

COMES NOW the Defendant my name appearing Pro Se for its Motion to Compel Private Contractual Arbitration with Banks Name and as grounds thereto states the following:
1. That on or about August 02, 2013, Plaintiff filed its Complaint against Defendant.

2. Defendant moves this court to compel binding Private Arbitration with Jams based on the terms and conditions of the Banks name Credit Card Agreement (see Exhibit A, attached).

3. The parties are bound by the Banks name Credit Card Agreement. The Arbitration Agreement states among other things:
4. The Federal Arbitration Act (FAA) 9 USC Section 1-2 provides: A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration, a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract transaction, or refusal, shall be valid, irrevocable and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.
5. The Supreme Court Ruling, decided April 27, 2011, ATT MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored. "We have described this provision as reflecting both a liberal federal policy favoring arbitration, Moses H. Cone , supra, at 24, and the fundamental principle that arbitration is a matter of contract, Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010 (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ." Furthermore, "The principal purpose of the FAA is to ensure that private arbitration agreements are enforced according to their terms. Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. Animal Feeds international Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA text. Section 2 makes arbitration agreements valid, irrevocable, and enforceable as written (subject, of course, to the saving clause); requires courts to stay litigation of arbitral claims pending arbitration of those claims in accordance with the terms of the agreement; and requires courts to compel arbitration in accordance with the terms of the agreement upon the motion of either party to the agreement . "
6. The Defendant elects arbitration with jams to settle this dispute. WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration with Banks Name pursuant to the Card member Agreement and to dismiss Plaintiffs complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.

Respectfully submitted this day 08/02/2013

my name
Defendant, pro'se

http://www.jamsadr.com/ read the rules

http://www.jamsadr.c...tion_Demand.pdf print out three
http://www.jamsadr.c...esubmission.pdf print out three

Banks name credit agreement (3) copies 1 for you 1 for the court 1 for the plaintiff

us mail CMMR

 send with a certificate of service





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i filed for a response and this is what i wrote:


1.    Answering point #4, #5 and #6 on the complaint for damages page, defendant denies the allegation as an inaccurate, incomplete and/or unreliable statement of the facts, and monies alleged to be due and owing.


2.    Defendant is requesting plaintiff to provide the proof of all debt.


What are your thoughts on this answer?

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Yes if they used service by publication and then left a copy at your place.

There is no need to dodge service.

They will win a default judgment against if you don't respond to the complaint and plaintiff will come after your money and property.



1.    Answering point #4, #5 and #6 on the complaint for damages page, defendant denies the allegation as an inaccurate, incomplete and/or unreliable statement of the facts, and monies alleged to be due and owing.


2.    Defendant is requesting plaintiff to provide the proof of all debt.


What are your thoughts on this answer?


Where did you come up with this for an answer?

You will beat yourself.

The plaintiff wont even need to show up to win you are doing his work for him.

Read what has been posted for you.


You have a few choices. 

1.Answer the complaint denying or admitting the allegations contained in the numbered paragraphs. 

2.Electing Arbitration with jams per your credit agreement.

3. Do nothing and have a judgment against you and have your wages garnished you owe 6 they will collect 11 when its done.

4. Ask for help for the things you don't understand and start studying the rules of procedure.

Good luck with your case

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Thank you racecar.  But i thought i was denying the allegations.


Also what is the timeline after an answer is sent to the court?


Also, what do you suggest as a good response?  I have a second summon that just arrived.  


I am leaving the country for 5-6 weeks.  Should i expect anything within that time frame?

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