FightingInFL

JDB Question on best course of action

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History: Served by JDB, I filed MTD, MTD denied. Judge ordered opposing counsel to submit an order denying the motion and requiring the submittal, within 20 days, of the alleged notice of assignment (condition precedent to bringing action) and other alleged docs to support cause of action. 

 

FL Bar conduct states that atty should have prepared order by the next business day and given to me for review and then sent to judge.  I also filed a MTD to dismiss for failure to post nonresident bond. More than 20 days have passed and atty has not prepared order, supplied docs or posted bond; so they are stalling. I can't find anything in the FL rules of civil procedure or FL Statutes that cover this.

 

How do I proceed? I have prepared MTD for failure to post bond but I'm not sure if I should include failure to prepare order and provide docs in that MTD as well, or if I should file the MTD for bond and a MSJ, or should I handle some other way.

 

I am unemployed and have no money for atty, so thank you for any info you can provide.  Please help.

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And by the way, thank the judge what he/she did. He/she just put a rope on the JDB attorney ordering them to file paper work that they don't have, and the judge knows (if he/she is familiar with the JDB business model), the JDB atty will have to fake paperwork or dismiss. Once they present the robo crap you can motion to strike them, if they don't just go with a dismissal.

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Ok found it:

 

 

Rule 1280:

 

 

 

(g) Court Filing of Documents and Discovery. Information obtained during discovery shall not be filed with the court until such time as it is filed for good cause. The requirement of good cause is satisfied only where the filing of the information is allowed or required by another applicable rule of procedure or by court order. All filings of discovery documents shall comply with Florida Rule of Judicial Administration 2.425. The court shall have authority to impose sanctions for violation of this rule.

 

 

So basically the judge ordered them to file the paperwork, they didn't do it so according to this the court can impose sanctions. Just relax do nothing let it seat there the more dust the better, then if they file something oppose it, and motion to strike any document as hearsay depending on what they file. If they don't file nothing within 12 months motion to dismiss for lack of persecution, if it's small claims is 6 months.

 

You might still be able to file something now, I'll have to check it tomorrow.

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Under Fla. Stat. 57.011, if a plaintiff initiates a lawsuit but is not a resident of Florida, it is required to post a $100 bond with the clerk.  The intent of the statute is to ensure that a defendant who prevails in the lawsuit can collect costs from the plaintiff in the event the defendant prevails on the merits. 

 

For the Motion to Dismiss to be granted the facts as alleged in the Complaint are not recognized by the asserted cause of action. The Motion to Dismiss (Demurrer) is to stop the case from going any further.

 

Florida recognizes choice of law does Delaware or Virginia law apply in your case for the statue of limitations.

 

I have no information to really help with any defense.

 

A motion to dismiss is separate from your answer to the complaint.

 

You will need to file an answer to plaintiffs complaint denying all the allegations.(10 days after the motion was dismissed)

 

 

Example of How to answer plaintiffs complaint

IN THE CIRCUIT COURT OF THE WHATEVER JUDICIAL CIRCUIT, IN AND FOR MY COUNTY, FLORIDA

 

junk debt buyer

Plaintiff

Vs.

your name

Defendant

 

GENERAL CIVIL DIVISION

 

Case No. 13-CA-12345

________________________________________/

 

DEFENDANT'S ANSWER AND AFFIRMATIVE DEFENSES TO PLAINTIFF'S COMPLAINT

The Defendant your name pursuant to applicable Fla.R.Civ.P.,hereby file his Answers and Affirmative Defenses to Plaintiff’s Complaint and states as follows:

 

COUNT 1

1. Defendant lacks sufficient knowledge or information as to the allegations in paragraph one of the complaint and leaves plaintiff to its proofs

2. Defendant lacks sufficient knowledge or information as to the allegations in paragraph two of the complaint and leaves plaintiff to its proofs

3. Defendant denies the allegations set forth in paragraph three of the complaint and leaves plaintiff to its proofs

4. Defendant denies the allegations in paragraph four of the complaint.

WHEREFORE, Defendants demands this court to dismiss with prejudice the above titled action.

 

 

COUNT II

5. Defendant lacks sufficient knowledge or information as to the allegations in paragraph five of the complaint and leaves plaintiff to its proofs

 

6. Defendant lacks sufficient knowledge or information as to the allegations in paragraph six of the complaint and leaves plaintiff to its proofs

 

7. Defendant lacks sufficient knowledge or information as to the allegations in paragraph seven of the complaint and leaves plaintiff to its proofs

 

8.This paragraph contains conclusions of law, not allegations of fact, and thus no response is required. To the extent a response is deemed necessary, denied.

 

 

WHEREFORE, the Defendants demand this court dismiss with prejudice the above style action.

 

 

 

COUNT III

9. Admitted.

10. This paragraph contains conclusions of law, not allegations of fact, and thus no

response is required. To the extent a response is deemed necessary, Defendant denies.

11. Defendant lacks sufficient knowledge or information as to the allegations in paragraph eleven of the complaint and leaves plaintiff to its proofs

 

WHEREFORE, the Defendants demand this court dismiss with prejudice the above style action.

 

 

 

Most of these affirmative defenses I got from creditinfocenter to use as an example.

 

If you plead them you have to prove them.

 

In addition, a party may include by separate defense any other matter constituting an avoidance on legal or equitable grounds.

 

http://www.creditinfocenter.com/legal/affirmative-defenses.shtml

There is alot of good stuff to read and study here on creditinfocenter to get prepared for your court case.

http://webcache.googleusercontent.com/search?q=cache:pM9nopi974EJ:phonl.com/fl_law/rules/frcp/frcp1110.htm+&cd=2&hl=en&ct=clnk&gl=us

 

Rules of Civil Procedure - The Florida Bar study

Florida Rules of Court Procedure - The Florida Bar study

 

AFFIRMATIVE DEFENSES

As and for Defendant's affirmative defenses, the Defendant asserts and states as follows:

 

FIRST AFFIRMATIVE DEFENSE

Plaintiff admits to purchasing the defaulted debt allegedly owned by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

 

SECOND AFFIRMATIVE DEFENSE

Failure of Consideration: No exchange of money or goods occurred between the Plaintiff and the Defendant.

 

THIRD AFFIRMATIVE DEFENSE

Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parole Evidence Rule.

 

FOURTH AFFIRMATIVE DEFENSE

Plaintiff's complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.

 

FIFTH AFFIRMATIVE DEFENSE

Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.

 

SIXTH AFFIRMATIVE DEFENSE

Plaintiff's complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant.

 

SEVENTH AFFIRMATIVE DEFENSE

Plaintiff is not an Assignee for the purported agreement and no evidence appears in the record to support any related assumptions.

 

EIGHTH AFFIRMATIVE DEFENSE

Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt.

 

NINTH AFFIRMATIVE DEFENSE

Defendant alleges that the person or entity that assigned the alleged claim to the Plaintiff is not entitled to reimbursement of attorneys' fees because the alleged contract did not include such a provision, and there is no contract attached to the complaint or a statement if this contract is oral or written .

 

TENTH AFFIRMATIVE DEFENSE

Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment, as the Plaintiff would receive more money than plaintiff is entitled to receive.

 

ELEVENTH AFFIRMATIVE DEFENSE

Defendant alleges Plaintiff made false representations or concealed material facts from the other party, Defendant maintains that equitable estoppel bars plaintiff's claim.

TWELFTH AFFIRMATIVE DEFENSE

Defendant reserves the right to amend and / or add additional Answers, Defenses and/or Counterclaims at a later date.

 

THIRTEENTH AFFIRMATIVE DEFENSE

To all causes of action alleged in the complaint, this answering defendant allege that plaintiffs failed to mitigate their damages.

 

FOURTEENTH AFFIRMATIVE DEFENSE

To all causes of actions alleged in the complaint, this answering defendant allege that plaintiffs are barred from recovering any damages because of plaintiffs’ own acts of carelessness, negligence and/or other fault, and further, that such carelessness, negligence and/or other fault proximately contributed to the injuries, and damages complained of in Plaintiff's Complaint, if any.

 

FIFTEENTH AFFIRMATIVE DEFENSE

Plaintiff assumed the risk of injury and that defendant is not responsible in law or fact for plaintiffs’ injuries, if any.

 

SIXTEENTH AFFIRMATIVE DEFENSE

To all causes of action in the complaint, this answering defendant alleges that he has not knowingly or intentionally waived any applicable affirmative defenses and reserve the right to assert and rely on such other applicable affirmative defenses as may come available or apparent during discovery proceedings and further reserve the right to amend this answer and defenses accordingly and to delete defenses if determined are not applicable during the course of discovery and other proceedings in this case.

 

FOR AND AS A SEVENTEENTH AFFIRMATIVE DEFENSE to all causes of action in the complaint, the answering defendant alleges that he did not breach any duty to plaintiffs.

 

WHEREFORE, defendant prays that:

1. Plaintiffs take nothing by their complaint and that said complaint and each cause of action therein be dismissed as to defendant;

2. For defendants’ cost of suit herein;

3. For such other relief the court deems proper.

 

Respectfully Submitted,

 

 

I HEREBY CERITFY "Under penalties of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief."

That a true and correct copy of the foregoing Answer To Plaintiff's Complaint was sent via U.S. Mail certified return receipt to the Clerk of the Court in "MY COUNTY", Fl, and to Plaintiff's Law Office at this address.

my name

my address

my email

my phone

my fax

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Thanks all.  Case is in County Civil (just under $15k alleged).  My answer to action shouldn't need to be filed until 10 days after the order on the last motion is filed - the problem is that the judge VERBALLY ordered opposing counsel to write the order, but it has been 20+ days and he/they never wrote the order (denying the motion and requiring the submittal of docs within 20days). 

 

According to the Florida Bar, opposing counsel should have prepared the order the next business day, sent to me for review and then to the judge for signature.

 

20 days have passed since I filed the "notice of failure to post nonresident cost bond", so I can file MTD dismiss on that (and have it prepared and ready to file)  - BUT.......

 

I want to also let the judge know that it has been over 20 days since they were verbally ordered to prepare the order and to submit the notice of assignment within 20 days.  I wasn't sure if I should file MTD for bond and MSJ for failure to provide notice of assignment.

 

MTD:

FL R.CivP 1.420(B) states "Any party may move for dismissal or an action or of any claim against that party for failure of an adverse party to comply with these rules or any order of court."  It was a verbal order so not sure if that counts.

 

MSJ:

FL R.CivP 1.510(B) states "For Defending Party. A party against whom a claim, counterclaim, crossclaim, or third-party claim is asserted or a declaratory judgment is sought may move for a summary judgment in that  party's favor as to all or any part thereof at any time with or without supporting affidavits."  An example would be 15 Fla. L. Weekly Supp. 365b Midland -vs- Gladys Hill.

 

If the order had been filed I would file the MSJ, but since it was a verbal order --- I'm not sure....although the more I think about it the more I think I should file MSJ as the judge should have notated what she verbally ordered and that they failed to comply.

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You could do the MSJ or let it collect dust. I did not find anything that you can do to make them comply with a judge verbal order, so your guess is as good as mine. Personally I would let it collect dust until they file something and if it's not a dismissal then I would oppose it as untimely and motion to strike any documents they present. The MSJ is a more aggressive approach but it could well work, and the judge might compel them to present the docs right there and then at the hearing.

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F.S. 57.011 Costs; security by nonresidents

When a nonresident plaintiff begins an action or when a plaintiff after beginning an action removes himself or herself or his or her effects from the state, he or she shall file a bond with surety to be approved by the clerk of $100, conditioned to pay all costs which may be adjudged against him or her in said action in the court in which the action is brought. On failure to file such bond within 30 days after such commencement or such removal, the defendant may, after 20 days’ notice to plaintiff (during which the plaintiff may file such bond), move to dismiss the action or may hold the attorney bringing or prosecuting the action liable for said costs and if they are adjudged against plaintiff, an execution shall issue against said attorney.

 

If it's been 30 days since they filed the lawsuit and 20 days after you have given them notice to file the bond, you can move to dismiss! The judge may still give them time after your MTD to file the bond but it's worth a try.

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Thanks FSUgirl07 and Kutuzov.  I had the MTD to dismiss for failure to post bond and the day I was going to file - they posted bond.  Which still leaves me with original problem - Judge verbally ordered them to prepare an order denying my original MTD and to provide the notice of assignment and account statements.  35+ days later they finally gave the order to the judge (FL Bar conduct states that atty should have prepared order by the next business day and given to me for review before sending to judge - of course they dont' follow the rules of conduct).

 

The order the judge signed made no mention of the verbal order to provide the notice of assignment or account statements - just that I had 20 days to submit a responsive pleading (to the original complaint). They still haven't submitted the docs and I don't know to handle this since it wasn't a written order.

 

Do I call the court and make sure the verbal order is in the case file and if so file another MTD? Do I just file my responsive pleading to the complaint and include the fact that the judge verbally ordered them to supply the docs within 20 days of hearing when I state my affirmative defenses?

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File an opposition to the order cause the documents the judge ordered them verbally to file are not there.

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Thanks FSUgirl07 and Kutuzov.  I had the MTD to dismiss for failure to post bond and the day I was going to file - they posted bond.  Which still leaves me with original problem - Judge verbally ordered them to prepare an order denying my original MTD and to provide the notice of assignment and account statements.  35+ days later they finally gave the order to the judge (FL Bar conduct states that atty should have prepared order by the next business day and given to me for review before sending to judge - of course they dont' follow the rules of conduct).

 

The order the judge signed made no mention of the verbal order to provide the notice of assignment or account statements - just that I had 20 days to submit a responsive pleading (to the original complaint). They still haven't submitted the docs and I don't know to handle this since it wasn't a written order.

 

Do I call the court and make sure the verbal order is in the case file and if so file another MTD? Do I just file my responsive pleading to the complaint and include the fact that the judge verbally ordered them to supply the docs within 20 days of hearing when I state my affirmative defenses?

Can you describe to us in detail what you have received and what you need to respond to/answer? I always got my best answers when I typed verbatim what was sent to me and asked how to respond line by line. Leave out any personal data you can't/don't want to release of course.

 

So when you filed your MTD for failure to post the bond your MTD was denied by the judge because the bond had been posted? Or did you not get a chance to file it at all?

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