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New FL Attorney Going Against Asset Acceptance for First Time


LawKitty
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I have a client being sued by Asset Acceptance on a credit card debt. Within SOL, attached copy of assignment, copies of statements and an affidavit from OC regarding the assignment. They are suing on Account Stated and Money Lent. After filing an Answer they filed MSJ with an affidavit from JDB regarding business records. I'm attacking the affidavit. Hearing is in Dec. on MSJ.

They also violated FCDPA and Florida's equivalent by not serving me after I filed Notice of Appearance, but instead continuing to send stuff to the client, and even AFTER filing the Answer. How would I address these violations? Maybe a separate counter-claim, or add it to my Motion to Strike on JDB affidavit? This will be my first time going to a hearing on MSJ. JDB's attorney is appearing telephonically.

1. Who is the named plaintiff in the suit?

Asset Acceptance

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

House lawyers Fulton, Friedman and Gullace

3. How much is the suit for?

Client being sued for greater than $5000 but less than $10,000

4. Who is the original creditor? (if not the Plaintiff)

Wells Fargo/Wachovia Rewards

5. Client served at home

6. Client served in person

7. The service was legal as required by my state

8. Correspondence with plaintiff before suit

None. Client claims harassment. Can't pay the debt and told CA that.

9. Live in Florida

10. Last payment on this account?

August 2010. Within SOL

11. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Notice of appearance filed, then Answer filed. Opposing counsel filed MSJ supported by affidavit. Hearing on this next month.

12. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

No

13. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

No

14. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

Affidavit of debt regarding assignment; copy of bill of sale referencing an Agreement that is NOT attached; copies of statements, and an affidavit in support of MSJ re: business records by the JDB, not the original creditor.

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@LawKitty

 

The majority of us are not attorneys.   I truly don't mean to be rude, but in regard to your questions, shouldn't you have learned all of that in law school?  

 

The violation was committed by the attorney for the plaintiff.  That could possibly be a separate lawsuit unless the plaintiff could be held vicariously liable for the actions of their attorney. 

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Not EVERYTHING is learned in law school. Some of the posters here have had experience going up against Asset Acceptance, filing counter-claims for violations and such, and a few posters and maybe even a few readers are attorneys as well. It doesn't mean we can't learn from one another. I am a newly licensed attorney and I am doing this pro bono for this particular client.

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Some posters have had the experience of taking a JDB lawsuit to a lawyer and being told they'll lose and need to settle while they still can. I would imagine, unless an attorney has been educated in consumer law, that there is a learning curve for the strategy.

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@LawKitty

 

The violation was committed by the attorney, not by Asset.  If the attorney is a debt collection attorney, he's bound by the FDCPA.  You need to find out if the plaintiff can be held vicariously liable under the FDCPA for their attorney's actions.   If they can't be held liable, you probably have to file a separate complaint against the attorney.

 

If they can be held vicariously liable, then you have to find out what kind of motion would be proper at this time since an MSJ has already been filed.  It might be too late for a counter-claim because isn't that usually included in an answer to a complaint?

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LK, I've seen threads by people in Florida, though I can't recall the thread titles or the content. Do a member search, theres an advanced tab that allows you to search by location (state). You can probably find some threads that way/ find some people you can PM.

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They also violated FCDPA and Florida's equivalent by not serving me after I filed Notice of Appearance, but instead continuing to send stuff to the client, and even AFTER filing the Answer. How would I address these violations?

 

Wouldn't it be a violation of your state bars model rules, under ethics or candor? The possibility of filing a claim against opposing council could add some leverage in as far as helping him to advise his client to dismiss. 

 

Around here we usually concentrate on opposing the MSJ with as many triable issues as possible and attacking the affiant's credibility, but putting minimal concern on the affidavit (for now). Then at trial a high priority on the affidavit and attacking it, subpoena, and forcing them to need a live witness to authenticate evidence, as well as attacking all evidence with MIL's.

 

Also; filing a counter claim, regardless of how strong it may be, does wonders in adding leverage; in my opinion.

 

Welcome BTW.

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One the opposing attorney is liable under the FDCPA.  The FDCPA is a strict liability law. File a Federal Lawsuit against the law firm, and the lawyer individually that continues to contact your client directly.  You could also make a Bar complaint, but be careful, you will already be a pariah for suing another attorney, if you file a bar complaint against one, you may be marked among your peers.

 

As far a the case, attack their standing to sue your client.  They need to prove with admissible evidence that they are the true holder of the account.  These things are sometimes sold to multiple companies before they are sued on.

 

You will want to ask for the forward flow document that shows what accounts where sold to who when.  And you should know that the JDB cannot authenticate the business records of another company, so there is no Business Record Hearsay Exemption.

 

So if they have not provided this, in opposition to the MSJ, bring up they have not proven the standing to sue, by not proving to be the holder of the account with admissible evidence.  Nor have they established by contract how interest beyond your states usury rate was charged to the original balance.

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Not EVERYTHING is learned in law school. Some of the posters here have had experience going up against Asset Acceptance, filing counter-claims for violations and such, and a few posters and maybe even a few readers are attorneys as well. It doesn't mean we can't learn from one another. I am a newly licensed attorney and I am doing this pro bono for this particular client.

 

If it is your plan be one of the good guys, I might suggest you apply for NACA membership. It's a great resource for sharing info. There is a discussion board directed toward debt defense; lots of good input.

 

The continued contact with your client is a problem for Asset and opposing counsel (they are subject to FDCPA too), and gives you grounds for your own lawsuit, preferably in Federal court, since Florida county courts are generally a joke. Are you familiar with Florida statutes 57-105 and chapter 559? I'm sure you've already become familiar with the FDCPA.

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Law Kitty,

 

Welcome to the CIC Forum!!  Your continued input can be mutually beneficial.  We have several other lawyers that weigh in from time to time in various states offering tips, case law, and useful suggestions. The CIC forum has numerous Florida Posters that can share and offer up personal experience with Asset Acceptance, Midland Funding, and many others that will be useful to yourself and various clients concerned about consumer protection and/or unfair collection practices. 

 

You will want to read "DEFENDING A LAWSUIT BY A JUNK DEBT BUYER" How a Florida Mom Beat Asset Acceptance, LLC! by Sheila R. Munoz.  This is a good start to finish account of how Sheila prevailed Pro Person against corporate giant AA with pleadings, communications, examples, actual templates, FDCPA violations and Florida Case Law. Especially useful to anyone in Florida going through a collection law suit. 

 

HP

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http://scholar.google.com/scholar?as_q=&num=10&btnG=Search%20Scholar&as_epq=money%20lent&as_oq=&as_eq=&as_occt=any&as_sauthors=&as_publication=&as_ylo=&as_yhi=&hl=en&allcts=&as_sdt=4,1

 

IN THE CIRCUIT COURT OF THE   DEFENDANT'S MOTION TO DISMISS

 

 

 

money lent

An action for money lent is an action at law which lies whenever there has been a payment of money from the plaintiff to the defendant as a loan." 42 C.J.S. IMPLIED CONTRACTS § 2 (2010). In order to state a claim for money lent, a plaintiff must allege:

(1) money was delivered to the defendant,

(2) the money was intended as a loan, and

(3) the loan has not been repaid.[1]See 66 Am. Jur. 2d RESTITUTION AND IMPLIED CONTRACTS § 171 (2010) (citing Doughty v. Sullivan, 661 A.2d 1112, 1123 (Me. 1995)); cf. Fla. R. Civ. P. Form 1.936 (implying the three elements in the pleading

Here, the allegations of the Complaint, even when read in the light most favorable to the Plaintiffs, do not establish the second element that the money deposited into Star Capital's bank account was intended as a loan. Plaintiffs claim "Star Capital owes Paladin $750,000 that is due with interest since March 9, 2009, for money lent by Paladin to Star Capital in September 2008." (Compl. ¶ 23). It should be noted the language of this pleading mimics a fill-in-the-blank pleading example provided in Florida Rule of Civil Procedure Form 1.936.[3] Nevertheless, the Supreme Court in Twombly clearly requires more than "a formulaic recitation of the elements of a cause of action," 550 U.S. at 555, or "naked assertion" devoid of "further factual enhancement," Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 557). Plaintiffs allege neither a written, oral, nor an implied agreement to lend money to Star Capital, nor other facts that make this cause of action plausible against this Defendant. To the contrary, Plaintiffs incorporate their general allegation the money was "deposited into Star Capital's bank account, for the benefit of Goldstein" into their specific allegation that Star Capital is liable for money lent. (Compl. ¶¶ 9, 17-18). This description is more typical of a trust — rather than loan relationship — between Plaintiffs and Star Capital. See Bankers Life & Cas. Co. v. Gaines Const. Co., 199 So. 2d 482, 485 (Fla. 3d DCA 1967) ("If the intention is that the money shall be kept or used as a separate fund for the benefit of the depositor, or third person a `trust' is created. However, if the intention is that the person receiving the money shall have unrestricted use thereof a `debt' is created."). Because the Plaintiffs do not plead facts from which the Court can reasonably infer the money transferred to Star Capital was intended as a loan to Star Capital, they fail to state a cause of action for money lent.

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account stated

 

Proof of an account stated requires an express or implied agreement between the parties that a specified balance is correct and due and an express or implied promise to pay this balance. See Merrill-Stevens Dry Dock Co. v. Corniche Express, 400 So.2d 1286 (Fla. 3d DCA 1981). The cause of action is often based upon an implied promise. Thus, when an account statement has "been rendered to and received by one who made no objection thereto within a reasonable time," a prima facie case for the correctness of the account and the liability of the debtor has been made. Daytona Bridge Co. v. Bond, 47 Fla. 136, 36 So. 445, 447 (Fla.1904); Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957). An objection "impliedly admit the correctness of the amounts on the account stated" when it does not challenge them. Federated Dep't Stores, Inc. v. Antigo Indus., Inc., 297 So.2d 591, 592-93 (Fla. 3d DCA 1974); see also Breezy Bay, Inc. v. Industria Maquiladora Mexicana, S.A., 361 So.2d 440, 441 (Fla. 3d DCA 1978). A debtor may overcome a prima facie case of an account stated by "meeting the burden of proving fraud, mistake[,] or error" in the account. Robert C. Malt & Co. v. Kelly Tractor Co., 518 So.2d 991, 992 (Fla. 4th DCA 1988); Gendzier, 97 So.2d at 608.

The cause of action for an account stated is based on "the agreement of the parties to pay the amount due upon the accounting, and not any written instrument." 938*938 Whittington v. Stanton, 63 Fla. 311, 58 So. 489, 491 (Fla.1912). Thus, "it is not necessary, in order to support a count upon account stated, to show the nature of the original debt, or to prove the specific items constituting the account." Daytona Bridge Co., 36 So. at 447 (citations omitted).

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@LawKitty

 

Here's how some courts have ruled on the issue of vicarious liability and the FDCPA.

 

 "Courts have specifically held that an entity (or individual) which does not meet the definition of `debt collector' cannot be held vicariously liable for unlawful collection actions taken on its behalf by an entity which is a debt collector." Bent v. Smith, Dean & Assocs., Inc., 2011 WL 2746847, at *3 (M.D. Fla. July 14, 2011). Conversely, courts have also held that "a company meeting the definition of a `debt collector' may be held vicariously liable for the actions of a second company acting on its behalf." Id.

Vicarious liability under the Act has similarly been restricted to principals who themselves are statutory "debt collectors." See Pollice v. Nat'l Tax Funding, L.P., 225 F.3d 379, 404 - 405 (3d Cir.2000) (Debt collector that hired attorneys to collect a debt is liable for attorneys' FDCPA violations "because an entity that is itself a `debt collector' — and hence subject to the FDCPA — should bear the burden of monitoring the activities of those it enlists to collect debts on its behalf.")

We do not think it would accord with the intent of Congress, as manifested in the terms of the Act, for a company that is not a debt collector to be held vicariously liable for a collection suit filing that violates the Act only because the filing attorney is a "debt collector."  Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 108 (6th Cir. 1996).

While the FDCPA itself is silent on the issue of vicarious liability, a debt collector may be held vicariously liable under the Act for the conduct of its attorney. Fox v. Citicorp Credit Servs., Inc., 15 F.3d 1507, 1516 (9th Cir.1994).

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Welcome.

Since the MSJ against your client is supported only by a declaration from the JDB, there are bound to be evidentiary problems with the affidavit.  The JDB only purchases accounts that are in default.  Therefore, it did not lend your client any money.  It did not enter into a contract with your client.  It did not send your client monthly statements.  The affiant will therefore not have personal knowledge of the formation of any contract, the default under that contract, or the amount that is currently owing.  The witness is just telling the Court what the documents of the OC show.  That is like testifying about a car accident after reading an account in the newspaper.

 

There is a very good case from the Missouri Supreme Court (Askew v. CACH) that speaks to these very issues.  It should help you craft similar arguments under Florida law.  Here is a cite to Askew:  http://www.courts.mo.gov/file.jsp?id=51954

 

If your client has affirmative claims against the JDB and its attorneys, consider a cross complaint naming the JDB only.  The attorneys are the agents of the JDB and are engaging in debt collection activities on its behalf.  Suing the JDB for the actions of the attorneys places the lawyer in an awkward position and avoids any judicial discomfort that sometimes comes with a suit against your opposing counsel.  Frequently, a valid cross complaint can result in a settlement by mutual dismissal or even a small payment to your client.  A great result in either case.

 

Good luck.

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Not EVERYTHING is learned in law school. Some of the posters here have had experience going up against Asset Acceptance, filing counter-claims for violations and such, and a few posters and maybe even a few readers are attorneys as well. It doesn't mean we can't learn from one another. I am a newly licensed attorney and I am doing this pro bono for this particular client.

First, thanks for working pro bono for your client. I think working pro bono is one the highest callings of the law. Consumer law is a specialized area of the law, just as tax law, admiralty law, and international law are. I think only the U of MD actually teaches consumer law as an elective; most lawyers simply learn it on their own. www.naca.net as Nascar said, is excellent. They hold seminar, workshops, and "bootcamps" for lawyers. Their handbook on consumer law is the bible for consumer lawyers.

If you follow the advice of Nascar, Calawyer and others, you will be well served. TN Consumer Lawyer also posts here. You can PM him if you like.

It seems to me, a non-lawyer, that you do have a FDCPA 1692c(a)(2) violation, also a violation of FCCPA 559.72 (18) for AA contacting your client, as well as an ethics violation.

Thank you for posting here, and I hope you will stay around to help other FL posters. We have many FL posters here, and FL fed dist courts stay very busy handling FDCPA and TCPA claims.

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Florida Statute 559.715 deals with the assignment of a consumer debt, and states in part:

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.

Florida courts have demanded strict compliance with the statute, UMLIC-VP v. LEVINE, 10 Fla

L. Weekly. Supp 336 (2003), and CACH, LLC v QUARTERMAINE, 15 Fla. L. Weekly Supp.

843b (2008).

 

 

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Thank you all for the input. I have drafted Objections to the Summary Judgment Affidavit on the basis of hearsay, lack of personal knowledge, referencing an agreement that wasn't attached. I will probably file Request for Admissions, Request for Production of Documents, serve Interrogatories or Notice to take Affiant's Deposition, as I'm fairly sure they will balk on any or all of that discovery. And of course oppose their MSJ and counterclaim for violations and ask for attorney's fees even though I'm doing the case pro bono. I've been talking to another Florida attorney that does consumer law and he's helping me some. He was familiar with the opposing law firm and Asset Acceptance. Also I'm going to be arguing before one of the most consumer/debtor friendly judges around, so that's good news.

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Welcome aboard...

 

 

You may want to look into impeaching the affiant and incorporating it into your reply. 

 

Many of them have LinkedIn profiles, so it's a good place to start. One affiant's prior job was at a taco place...so you are not dealing with the best and the brightest. 

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Lawkitty,

 

This is a long thread of someone here who is going up against Asset Acceptance.  Deals with many of the issues you have, except there was no FDCPA/FCCPA violation for improperly contacting a client represented by counsel.  Another OP followed the advice therein and the JDB dismissed its lawsuit against him.

http://www.creditinfocenter.com/community/topic/321769-msj-in-florida/

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Most attorneys have no clue of the JDB business model and just about every one that is consulted outside of this board advises settlement

 

Yes, it is not the most lucrative field to specialize in. It takes a special person as a lawyer to fight for those being sued by the bottom feeders. 

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