NdHelpinFL

Rcvd summons in FL from JDB and no ppwk attached

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Use the answer of racecar, and study 2 things, discovery and print a copy of Florida rules of civil procedure, just google it, it will come up. Since they are doing account stated you can't use rule 1130. Anyways file the answer ASAP and study! after that start a to do your own discovery, and post it. since racecar answer got some affirmative defenses in order for them to be able to file a motion for summary judgment they will need to strike them and that will give you time to study and start discovery and then oppose whatever they file.

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Thank you Kutuzov and Spikey.  I have been reading the links racecar posted on another post regarding Discovery.  It has been extremely helpful.   I found the Florida  Rule of Civil Procedure as well.

 

Thanks.

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http://www.foreclosureprose.com/storage/forms/MTDNoCostBond.doc

 

Under Florida Statute 57.011 a foreign corp must post a costs bond with the court before bringing an action.  Check with the clerk to see if that was done.  If not, you can motion the court to require the jdb to post a bond.  I am assuming your JDB is not a FL corporation.

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http://www.foreclosureprose.com/storage/forms/MTDNoCostBond.doc

 

Under Florida Statute 57.011 a foreign corp must post a costs bond with the court before bringing an action.  Check with the clerk to see if that was done.  If not, you can motion the court to require the jdb to post a bond.  I am assuming your JDB is not a FL corporation.

 

According to the research I did for FSUGirl, they can pay the cost bond up to the time the motion is heard with no repercussions.. I wouldn't count on this being an easy out.

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According to the research I did for FSUGirl, they can pay the cost bond up to the time the motion is heard with no repercussions.. I wouldn't count on this being an easy out.

 

Yes, you're right.  It was more to put some sand in their gears and show them they will have to work for their money.

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Well, they filed a Motion to Strike Affirmative Defenses.

 

"Each of the defenses raised in the the Defendant's Answer are defective in that they fail to state with particularity the defense and furthermore, for failing to raise sufficient facts to support theses defenses.

 

The defenses raised are general defenses and do not state any facts in support of the alleged defenses.

 

In Thompson v. Bank of NY......, the Court stated that  "certainty is required when pleading defenses, and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient. Thompson at 771 (citing Cady v. Chase Savings & Loan, Inc...........

 

As the forgoing affirmative defenses were not raised with certainty and pleas conclusions of law unsupported by allegations of ultimate fact, the defenses are legally insufficient and must be stricken."

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I have read a lot of different opinions regarding responding or just letting it go.  Any thoughts? 

 

Here is an interesting article and the attorney stated one of the mentioned cases:

 

 

 

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Misuse of Motions to Strike Affirmative Defenses: "I do not think it means what you think it means."

 

In the past several months, I have handled several cases in multiple areas of law, where Plaintiffs’ counsel have filed motions "to strike" the Defendant's affirmative defenses. This happens near the very beginning of the litigation, shortly after the Defendant has filed its Answer. While the substance of these motions isn’t entirely uniform, the basic thrust of the argument is that the Defendant has asserted “mere legal conclusions,” and that the affirmative defenses as pled don’t contain sufficient factual support. The apparent argument coming from Plaintiffs’ counsel is that the Defendant should have to plead specific facts in its answer/affirmative defenses, instead of simply asserting the legal basis for the affirmative defense. 
 

I am sure that this practice has been going on for a long time, because it seems to be rather widespread. And, call me cynical, but it appears to happen much more frequently (though not always) in cases where the Plaintiff is entitled to prevailing party attorney’s fees. Even when the judge grants the Plaintiff's Motion, the most likely result is that the Defendant has to amend its answer to plead its affirmative defenses with greater specificity. In short, it’s a huge waste of time and money.
 

While it certainly bothers me to see these motions being used as a bill-churning vehicle, what bothers me more is that these motions have no actual basis in law. The Florida Rules of Civil Procedure are clear on this point, and actual Florida case law is as well. And, stepping back for a moment, let's think about the purpose of such a motion. Why would you be required to plead all of the facts substantiating your defenses at the very beginning of litigation? Isn’t the whole point of discovery to gather the facts you need to substantiate your claims? And, if at the close of discovery, you haven’t pulled together those facts, isn’t the proper vehicle for dispensing with unsupported claims a Motion for Summary Judgment?  
 

I don’t know, yes, and yes. Nonetheless, these Motions are filed and granted with great frequency. Most of the time, Plaintiffs' counsel misleadingly cite either (1) cases which discuss the sufficiency of affirmative defenses in the context of summary judgment; or (2) cases which address the pleading requirements when a party asserts an affirmative defense of fraud. See, e.g., Cady v. Chev Chase Sav. And Loan, Inc., 528 So. 2d 136 (Fla. 4th DCA 1988) (an opinion arising from a summary judgment order relating to a foreclosure, which primarily addresses allegations of fraud); Bliss v. Carmona, 418 So. 2d 1017 (Fla. 3d DCA 1982) an opinion arising from a post-trial final judgment order relating to a foreclosure, which primarily addresses the sufficiency of the appellant’s response); Ridley v. Safety Kleen Corp., 693 So. 2d 934 (Fla. 1996) (an opinion arising from a challenge to a jury verdict on the grounds that the court’s jury instructions relating to the seatbelt defense were improper); Jacobs v Westgate, 766 So. 2d 1175 (Fla. 3d DCA 2000) (an opinion arising from an order granting a directed verdict in a landlord tenant dispute); Langford v. McCormick, 552 So. 2d 964 (Fla. 1st DCA 1989) (an opinion arising from a post-trial final judgment order relating to a probate dispute, which does not address the standards for properly pleading an affirmative defense); Nash v. Wells Fargo Guard Services, Inc., 678 So. 2d 1262 (Fla. 1996) (an opinion arising from an order on a motion for new trial, which sets out standards for naming a Fabre defendant).

 

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Do it with the affirmative defenses, worst case scenario they get strike, but you have just made them spend time and money, and you keep learning.

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They do this to try and make you scared so you will think you should settle with them.

The plaintiff has nothing and wants you and the court to think they have something.

 

http://phonl.com/fl_law/rules/frcp/frcp1140.htm

 

(d) Affirmative Defenses. In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms if justice so requires, shall treat the pleading as if there had been a proper designation. Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 1.140( b ); provided this shall not limit amendments under rule 1.190 even if such ground is sustained.

 

( c ) Motion for Judgment on the Pleadings. After the pleadings are closed, but within such time as not to delay the trial, any party may move for judgment on the pleadings.

(d) Preliminary Hearings. The defenses 1 to 7 in subdivision ( b ) of this rule, whether made in a pleading or by motion, and the motion for judgment in subdivision ( c ) of this rule shall be heard and determined before trial on application of any party unless the court orders that the hearing and determination shall be deferred until the trial.

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I received the court date for the Motion to Strike the Affirmative Defenses.

They still have never produced any documents, even after the RFD. They requested an extension in October to obtain the documents. How can they file a suit if they do not have the documents?

What should I do when I go to the hearing?

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They still have never produced any documents, even after the RFD. They requested an extension in October to obtain the documents. How can they file a suit if they do not have the documents?

 

Seems to be par for the course these days and they get away with it if they aren't opposed. They attach just enough to get those easy to grab defaults and keep their costs down. 

 

It's your job to challenge them on these issues. If they haven't responded to your RFD, then you need to send them a Meet and Confer letter reminding them that they haven't followed the rules of discovery. If they don't response to that, then you file a motion to compel and get a court order. Keep on the offense, it will help your case.

 

 

What should I do when I go to the hearing?

 

Assuming you filed an opposition, you need to be prepared to defend your defenses.

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They will say your defenses suck you say they don't suck and you followed the rules of procedure.

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Spikey said it best "defend your defenses"

Because the junk debt buyer does not like your defenses does not mean they are insufficient as a matter of law or in fact.

I'm sure most of these hearings go unopposed by defendants.

Stand up Fight back,and have your day in court.

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Remember to bring a copy of your motion for you, one for the court,two for the plaintiff.

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Well, I went to court. The overall experience was good. I was so nervous, I almost fell out. Now, I will be a little more confident.

The judge ruled with the plaintiff's attorney. He was very nice and seemed very fair. He explained the defenses I had were good defenses, but they were not affirmative defenses. He said to make sure I prove them in Discovery. I told him that I tried already, but they have not provided the requested documents and it has been 98 days. He said Oh, and he looked at the attorney. He then went into this speech about how he has a very short fuse when it comes to suits being filed and there is no paperwork. Most of these account have been sold 2, 3, and 4 times. Then he looked back at the attorney and said, Mr. Knucklehead knows how I feel about it. So, he set a Plaintiff's Motion for Enlargement of Time hearing for next month.

I went out in the hall and spoke with the attorney afterwards. He said he requested the documents from his client and he is just waiting. So, I asked him if he hasn't received them in 98 days, what makes him think he will have them in a month. Then, he changed his tune. He claims that his client has the paperwork. He just didn't want to piece meal it to me by giving me some now and some later.

Sitting in the court gave me so much motivation to beat these scumbags. When I first got there, it was another attorney waiting in the hall with me. He tried to have same talk. He thought I was an attorney and he started asking me questions about how to win with just an affidavit? I told him I was a defendant. So, he backed down real quick. But, he asked every attorney that showed up. He did not have a clue. When we went into the court room, there were a total of about 14 cases. All of the other cases were Summary Judgements. Only one other defendant show up, but the attorney got to her and she agreed to a payment arrangement. The attorney that I was up against had 4 cases. One of his cases was CACH and the judge asked him what did CACH stand for, and he had no idea. Really, you don't even research your clients enough to know who you are representing. Anyway, it made me sick to hear all those Summary Judgements granted because the defendant just gave up and did not show.

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@Spikey. This judge was very annoyed at the fact that no paperwork has been provided. He said he has no tolerance for it.

I bet most of the cases there had no paperwork. It bothered me to see the really dumb attorney get the Summary Judgement granted, because he had no clue how to proceed. He just lucked up and the defendant did not show up. The sad part is the defendant had an attorney representing him and neither showed up.

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@NdHelpinFL Sounds like things went okay and the judge wants paperwork, which is good for you.

 

If you've been waiting 98 days for them to respond to discovery, you're waiting too long. Typical response dates are 30-days. As soon as their late you need to follow up. Some states require you to try to resolve the issues with them prior to filing any motions. If they still fail to respond, you hit them with a motion to compel if you've requested documents. If it's admissions, you hit them with a motion to deem them admitted, no discussions required for that. It's important that you keep the pressure on them. You need to know what evidence they have on hand for trial so you can prepare properly.

 

Both Asset Acceptance and Midland file with little more than an affidavit. In my state that's not sufficient but only if it's challenged properly.

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They actually requested an extension in October.

It is amazing how they all of a sudden sent me paperwork today. They sent what appears to be an online Account Application, I am assuming this is the list of accounts they purchased because everything is blacked out except my information, and 2 account statements with no purchases or payments recorded.

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