Amex sued me-missed answer to summons window due to...

[faith316]

Served by sheriff by collection firm, stated 30 day window respond. Was already completing application with debt management firm (they were rec by suze orman). Advised by them not to worry, don't have to go

to court and can set aside pprwrk b/c they wld negotiate with Amex. Sooooo...Amex rejects proposal b/c it is in the hands of atty. Money management company contacts atty to arrange payment plan. Atty says 25 percent upfront and then will talk about payment plan but will only negotiate with me. Atty has been calling everyday!

Balance $13000

Last pymnt approx 1&1/2 yrs ago

***Feel worn out.-have medical bills for both of my toddlers and I am paying their daycare, healthcare by myself to the tune of $1500 mnth. That is why I became so very much behind. PLEASE help me.

[gwheelock915]

@faith316 aaaaand that is why many people here are do not like debt management/consolidation companies. When was your 30 days up?

[kutuzov]

Yes when you where served?

[faith316]

I was served 4/27/13

[gwheelock915]

@faith316 Have you spoken with legal aid? You seem like you woud be a good candidate.

[kutuzov]

Did they filed a default with the court already? since you are way over the 30 days to respond to the lawsuit they could/probably did file a motion for default by clerk. Also that's not yet a judgement, in Florida after they get the default they need to file another motion for a Final Judgement.

[faith316]

If they did , I have not been made aware. I checked out the legal aid site and they might make allowances for childcare. If not, I won'tqualify. Any other advice? Should I contact the attorney and attempt a settlement? Returning to work in less than a week and do not want to get served at work either.

[kutuzov]

They shouldn't serve you at work, but the 30 days to respond is long gone, so yes in this case I would highly recommend a settlement. If you settle you won't have a judgement (unless it's already done), if you pay the settlement of course. Ask for a dismissal with prejudice for you to sign, they can file a voluntary dismissal even after a default has been entered in Florida. If they file or already filed a motion for Final Judgement that goes on your credit and they could potentially garnish your wages and/or freeze your bank account, so better take case of it before that happens.

[faith316]

I am leaning toward settling with attorney because I don't believe I will qualify for legal aid by the info posted on their site. Can you think offhand of a thread here that might help me with the negotiations between myself and the atty?

[racecar]

Read this case she did not show up and won.

 

IN THE COUNTY COURT, SEVENTH JUDICIAL CIRCUIT,
IN AND FOR VOLUSIA COUNTY, FLORIDA.
CASE NO. 2006-10917-CODL
DIVISION: 71
LVNV FUNDING LLC as Assignee
of Household Bank (SB) NA.,
Plaintiff,
vs.
GINEVRA MOEHRLIN,
Defendant. /
ORDER DENYING PLAINTIFF’S FINAL JUDGMENT
AND CLOSING THE COURT’S FILE
THIS CAUSE came before the Court on Plaintiff’s request for Final Judgment and, after a review
of the file and being fully advised in the premises, the court finds as follows:
The court cannot grant a final judgment for damages without proof of the debt. The Plaintiff filed a
complaint for Breach of Contract, Account stated and Money Lent on May 25, 2006. The Defendant was
served on June 2, 2006 and failed to appear at the pre-trial conference. As a result, a Default was entered
on June 30, 2006. Plaintiff now seeks a Default Final Judgment for damages. A defaulted party has the
right to rely upon the court to issue a judgment against them that conforms to the evidence. However,
without evidence, the court has nothing with which to base a damage judgment. The court is charged with
the responsibility to do justice. Given the effects of a judgment, the court has a mandate to enter a fair
and just judgment in all cases. A court is not the forum for one party to gain an unfair advantage over the
other simply because one party did not respond to a summons. The court will enter a judgment based on
relief supported by the pleadings or substantive law applicable to them. This court finds the proof of
damages lacking in the pleadings and attachments.
FACTS AND CONCLUSIONS OF LAW
With respect to the default judgment for failure to answer, the Rules of Civil Procedure provide
for entry of default by either the clerk or the court. However, if it is necessary, the court may request an
accounting to enable the court to enter judgment or to effectuate it. The court may receive affidavits,
make references, or conduct hearings, as it deems necessary.
In Trawick’s book on Practice and Procedure, he elaborated on the effect of a default judgment:
A default admits liability as claimed in the pleading by the party seeking
affirmative relief against the party in default. It operates as an admission of the
truth of the well-pleaded allegations of the pleading, except those concerning
damages [emphasis added]. It does not admit facts not pleaded, not properly
pleaded or conclusions of law. Fair inferences will be made from the pleadings, but
forced inferences will not. The party seeking affirmative relief may not be
Page 1 of 3
11/19/2006
granted relief that is not supported by the pleadings or by substantive law
applicable to the pleadings [emphasis added]. A party in default may rely on these
limitations.
In Samuels v King Motor Co. of Ft. Lauderdale, 782 So.2d 489 (Fla. 4th DCA 2001), the Fourth
District Court held that to state a cause of action, a complaint must allege sufficient ultimate facts to show
that the pleader is entitled to relief. "Whether a complaint is sufficient to state a cause of action is an
issue of law”.
With reference to Plaintiff’s count for Breach of Contract, in order to sustain the burden of proof
for a Breach of Contract the Plaintiff must attach a copy of the contract to the complaint. Fla. Rules of
Civ. Pro. 1.130, states in part-
(a) Instruments Attached.. --All bonds, notes, bills of exchange, contracts, accounts, or
documents upon which action may be brought or defense made, or a copy thereof or a
copy of the portions thereof material to the pleadings, shall be incorporated in or
attached to the pleading.
In the instant case, the Plaintiff failed to attach a copy of the contract or any document that would
establish a contractual relationship between the parties. Plaintiff failed to attach an itemized statement of
charges or a statement. Not only did the Plaintiff fail to attach a bill, statement or contact to the
complaint, the Plaintiff has not attached ANYTHING to its affidavit or the complaint that has the
Defendant’s name or signature on it. In, Samuel v. King Motors of Ft. Lauderdale 782 So.2d 489 (Fla. 4th
DCA 2001), where a complaint is based on a written instrument, the complaint does not state a cause of
action until the instrument or an adequate portion thereof is attached to or incorporated in the complaint.
Additionally, with reference to the affidavit of proof provided by the Plaintiff in support of it’s
claim for damages, the court notes that the affidavit is prepared by the Plaintiff employee. As the
Plaintiff is not the original creditor, the records they keep are hearsay when the documents upon which
the affiant relied is not admitted into evidence or attached to the complaint or affidavit. (See, Johnson v.
State, 691 So.2d 43 (Fla. 2nd DCA 1997), testimony (in person or by affidavit) of a witness on a business
record is inadmissible hearsay if the record has not been admitted into evidence). Additionally, the
Florida Supreme court in Bolin v. State, 736 So. 2d 1160 (Fla. 1999), held that the business records
exception of the hearsay rule cannot be applied when the business record is not in evidence.
Consequently, the affidavit is nothing more than inadmissible, contradictory hearsay. (Also see, Hawkins
v. State 884 So. 2d 496 (Fla. 2DCA 2004).
Next, the court considers the Plaintiff’s cause of action for Account Stated. The Plaintiff must
establish a debtor/creditor relationship with the Defendant and established a course of business dealings
between the parties. Additionally, it must be established that the Defendant was sent a statement and that
the Defendant expressly or impliedly consented to the statement by failing to object. Consequently,
there needs to be a copy of a statement and proof of mailing to establish a presumption of no objection.
Then, the relationship between the parties and the usual course of business between them becomes a
question of law. (See, Martyn v. Arnold, 18 So.2d 791 (Fla. 1985). For an account stated to exist, there
Page 2 of 3
11/19/2006
must be agreement between the parties that a certain balance is correct and due and an express or
implicit promise to pay this balance. Merrill-Stevens Dry Dock Co. v Corniche Exp., 400 So.2d 1286
(Fla. 3d DCA 1981). Also see, Carpenter Contractors Of America, Inc. and R & D Thiel, Inc. v.
Fastener Corp. Of America, Inc., 611 So.2d 564 (Fla. 4th DCA 1992). Here there was no evidence that
the parties agreed on any balance due and owing.
Finally, without any documentation of a contractual relationship or of an account, the Plaintiff has
not proven that the Defendant was ever lent any money. Therefore, it is
ORDERED and ADJUDGED that the Plaintiff has failed in its proof. Motion for Final
Judgment is hereby DENIED and the case dismissed without prejudice. The Clerk is hereby instructed to
close the court’s file.
DONE AND ORDERED in chambers at DeLand, Volusia County, Florida, this _____ day of
August, 2006.
SHIRLEY A. GREEN
County Court Judge
Copies to:
Hayt, Hayt & Landau, Attorneys for Plaintiff
7765 S.W. 87 Ave., Suite 101
Miami, Florida 33173
Ginevra Moehrlin, Defendant
790 Rasley Road
New Smyrna Beach, FL 32168
Page 3 of 3
 

[faith316]

Thank you for all the info. I read the above case with interest but it does not seem to apply to me. This defendant did not receive any proof of contract, a statement or anything else it seems attached to the paperwork she was served. I was. It seems the judge is stating that even though she missed responding within the required time frame, she cannot be penalized because she did not respond to something in which no facts were presented.

 

I am going to call the lawyer today to settle this debt. Could I ask the lawyer to not send a 1099 tax form as part of the settlement?

 

Also, I was going to ask for the following: in writing that the court case will be dismissed and they will not seek a final judgement with a full payment of $xxxx.  In writing, that the account is paid with no further amount due/owing and that the final amount of $xxx will be paid when evidence is received that the case is dimissed.

 

Request no 1099 form submitted.

 

Finally, I am aiming towards a settlement of $9,800 or less with offer 30% of total balance before 10/1, 40% by 1/14 and the remainder by 4/14.

 

Any thoughts/??

[faith316]

Thank you for all the info. I read the above case with interest but it does not seem to apply to me. This defendant did not receive any proof of contract, a statement or anything else it seems attached to the paperwork she was served. I was. It seems the judge is stating that even though she missed responding within the required time frame, she cannot be penalized because she did not respond to something in which no facts were presented.

 

I am going to call the lawyer today to settle this debt. Could I ask the lawyer to not send a 1099 tax form as part of the settlement?

 

Also, I was going to ask for the following: in writing that the court case will be dismissed and they will not seek a final judgement with a full payment of $xxxx. In writing, that the account is paid with no further amount due/owing and that the final amount of $xxx will be paid when evidence is received that the case is dimissed.

 

Request no 1099 form submitted.

 

Finally, I am aiming towards a settlement of $9,800 or less with offer 30% of total balance before 10/1, 40% by 1/14 and the remainder by 4/14.

 

Any thoughts/??