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New FL Attorney Going Against Asset Acceptance for First Time


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One thing to determine is the original creditor's state of incorporation. Some have corporate offices in one state and operate their credit card divisions from another. Although Wachovia was purchased by Wells Fargo they may still have credit card offices in N.C.  If it is possible to use N.C. (SOL=3 years) then you might look at Florida's borrowing statute.

 

Not sure how solid this argument may be, but some have had luck arguing it in FL. Of course you do have to determine the correct state first and I'm not sure how that works when bank mergers are involved. The state could be determined by the date the account was opened or the date of the last payment. Its a long shot but worth a little research. 

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Another thing to look at is the interest and fees that AA has charged your client. When dealing with an FDCPA claim the JDB must produce the contract/agreement from the OC that allows them to charge interest. The interest rate they charge must be stated in the agreement and be within the limits of state law. AA is also known for adding post charge off interest which in most cases is not legal. They were recently busted in Michigan for doing this. They were charging interest from the time the OC charged off the account, which was before they actually "purchased" the account.

 

In many states they get away with this because the local/state courts do not require the original contract. When challenged on the federal level they must follow the rules of the FDCPA. You should also check to see if Florida has any similar state protection laws. 

 

FDCPA

 

The collector can't add on any extra fees that your original credit or loan agreement doesn't allow. [15 USC 1692f] § 808(1)

 

The collector cannot misrepresent the amount you owe. [15 USC 1692e] § 807(2)(a)

 

http://www.foxbusiness.com/personal-finance/2013/10/16/how-much-can-collectors-legally-boost-charged-off-debts/

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  • 2 weeks later...

I filed a few things today but not the counter claim yet. Here is my Motion to Dismiss in case it helps anyone in Florida. I can't guarantee it will work but the judge I'm going in front of has already heard and ruled on a similar case and she dismissed it. Same JDB, same attorney, too.

DEFENDANT’S MOTION TO DISMISS

COMES NOW, the Defendant ________, by and through her undersigned counsel and moves this Court to dismiss the above-styled action pursuant to Fla. R. Civ. P. 1.140, and in support states:

SUMMARY OF ARGUMENT

The Complaint fails to state any cause of action upon which relief can be granted for the reason that Plaintiff failed to satisfy the conditions precedent to bringing an action to collect a debt in the State of Florida. Plaintiff failed to properly notify Defendant of the assignment of the debt at least 30 days before the filing of this action as required by §559.715, Fla. Stat. Therefore, this Court lacks the jurisdiction, i.e., authority to exercise its power, in this action to grant Plaintiff any relief whatsoever.

I.​THIS MOTION IS TIMELY AND ARGUMENTS RAISED HEREIN WERE NOT WAIVED.

1.​The Florida Supreme Court in promulgating Florida Rule of Civil Procedure 1.140 permitted the defense of failure to state a cause of action to be raised by motion.

2.​Leave of court is not required to file motion to dismiss because Fla. R. Civ. P. 1.190 only applies to pleadings. Motions are not pleadings. Green v. Sun Harbor Homeowners’ Association, Inc., 730 So. 2d 1261 (Fla. 1998); Fla. R. Civ. P. 1.100.

3.​The defense of failure to state a cause of action may be raised by motion, even after default. Appel v. Lexington Insurance Company, 29 So. 3d 377, 378 (Fla. 5th DCA 2010).

4.​That a court lacks jurisdiction over the controversy may be raised at any time, even for the first time on appeal. Fla. R. Civ. P. 1.140(h)

5.​The Florida Supreme Court ruled the right to raise the defense of failure to state a cause of action for failure to satisfy a condition precedent is controlled by Florida Rule of Civil Procedure 1.140(h)(2). Mendez v. North Broward Hospital District, 537 So. 2d 89, 90-91 (Fla. 1988).

6.​The Florida Legislature requires trial courts to hear “[a]ll defensive motions” prior to trial in actions under summary procedure. §51.011(1), Fla. Stat.

II. ​PROPER NOTICE OF ASSIGNMENT IS A CONDITION PRECEDENT

​PURSUANT TO §559.715, FLA. STAT.

​1.​Both substantively and procedurally, due process requires a Plaintiff to provide the Defendant with notice of the assignment of the debt and a meaningful opportunity to dispute the validity of the debt. See U.S. Const. Amend. XIV, § 1 (providing no State shall deprive a person of property without due process of law; Magna Carta Art. 39 (stating no person shall be stripped of his possessions except by the law of the land).

​2.​A civil action cannot be properly commenced until all essential elements of the cause of action are present. Ferry-Morse Seed Company v. Hitchcock, 426 So. 2d 958, 961 (Fla. 1983); Investment and Income Realty, Inc. v. Bentley, 480 So. 2d 219 (Fla. 5th DCA 1985).

​3.​County courts have previously ruled compliance with §559.715, Fla. Stat., is a condition precedent to collecting a debt. See Asset Acceptance, LLC v. Jeffrey Boyer, 2010-21719-CONS (7th Circuit, Volusia County); CACH, LLC v. Edilio Garcia, 2010-SC-4785-O (9th Circuit, Orange County); and Portfolio Recovery Associates, LLC v. Miloslav Veverka, 2010-SC-5288 (9th Circuit, Orange County).

III.​PLAINTIFF FAILED TO SATISFY THE REQUIREMENTS OF §559.715, FLA.

​STAT.

​1.​Plaintiff failed to comply with the notice requirements of §559.715, Fla. Stat., because there is no record that Plaintiff mailed the notice of assignment to Defendant’s last known address.

​2.​Plaintiff did not actually comply with the notice requirements of §559.715, Fla. Stat., because Defendant never received the notice. (See Defendant’s Affidavit).

IV.​THIS COURT DOES NOT HAVE JURISDICTION OVER THIS

​CONTROVERSY.

​1.​This Court lacks the jurisdiction, i.e., authority to invoke its power, to award or grant Plaintiff any relief whatsoever because Plaintiff failed to satisfy the notice requirements of §559.715, Fla. Stat.

​2.​THERE ARE TWO COMPONENTS OF SUBJECT MATTER JURISDICTION.

​a.​Subject matter jurisdiction means that (i.) that the court has jurisdictional power to adjudicate the class of cases to which a case belongs and (ii.) that the court’s jurisdiction has been invoked in the particular case by lawfully bringing before the court the controversy itself by a sufficient pleading. Lovett v. Lovett, 112 So. 768, 775 (Fla. 1927).

​b.​District Courts have acknowledged there are two components of Subject Matter Jurisdiction. Phenion Development Group, Inc. v. Love, 940 So. 2d 1179 (Fla. 5th DCA 2006) (citing Paulucci v. General Dynamics Corp., 842 So. 2d 797, 801 n.3 (Fla. 2003)).

​c.​The first component of Subject Matter Jurisdiction is the power of the court to deal with the class of cases to which the particular case belongs. Id.

​d.​The second component of Subject Matter Jurisdiction requires the court’s power to be lawfully invoked in the particular case by the filing of a proper pleading. Phenion Development Group, Inc., 940 So. 2d 1179, 1182.

​3.​THIS COURT LACKS JURISDICTION IN THIS ACTION TO AWARD OR

​GRANT PLAINTIFF ANY RELIEF WHATSOEVER.​

​a.​Before a court’s power can be exercised, “it must be lawfully invoked and called into action.” Lovett v. Lovett, 112 So. 768, 775 (Fla. 1927).

​b.​Defendant does not deny the power of this Court to adjudicate actions to collect a debt in general, but rather Defendant challenges the jurisdiction of this Court in this particular debt collection action to award or grant Plaintiff any relief whatsoever for the reason that Plaintiff failed to lawfully invoke this Court’s power by failing to issue a notice of assignment at least 30 days prior to filing this action.

V.​DISMISSAL WITHOUT LEAVE TO AMEND

​1.​When less than all of the requisite elements of a cause of action were in existence

​when the complaint was filed, the claims must be dismissed without leave to

​amend. Rolling Oaks Homeowner’s a$$’n, Inc. v. Dade County, 492 So. 2d 686

​(Fla. App. 3rd DCA 1986); Orlando Sports Stadium v. Sentinel Star Company,

​316 So. 2d 607 (Fla. 4th DCA 1975) (ruling a plaintiff may not be permitted to

​cure the defect of a non-existent cause of action when the suit began by amending

​pleadings); Meredith v. Long, 96 Fla. 719 (Fla. 1928) (ruling that if a plaintiff has

​no valid cause of action on the facts existing at the time of filing suit, the defect

​cannot ordinarily be remedied by the accrual of one while the suit is pending);

​Hasam Realty Corporation v. Dade County, 178 So. 2d 747 (Fla. 4th DCA 1965)

​(finding the Rules of Civil Procedure which provide for amended or supplemental

​pleadings has not changed the rule in Meredith, 96 Fla. 719.)

VI.​DEFENDANT’S DEMAND FOR COSTS AND ATTORNEY’S FEES

​1.​Defendant retained the undersigned counsel and hereby makes her demand for an

​award against Plaintiff for Defendant’s costs and attorney’s fees pursuant to the

​Florida Rules of Civil Procedure, any applicable contract provision, statute, or

​case law, the inequitable conduct doctrine, and the inherent power of the Court.

CONCLUSION

​​This Court lacks the jurisdiction, i.e., authority to exercise its power, in the above-styled action to grant Plaintiff any relief whatsoever because the controversy between the parties was not properly brought before the Court for the reason that Plaintiff failed to lawfully invoke the Court’s power to enter a Judgment for Plaintiff and against Defendant because Plaintiff failed to satisfy the conditions precedent to bringing and maintaining an action to collect a debt in the State of Florida.

​WHEREFORE, Defendant, _________, requests that this Honorable Court uphold the requirements of Florida Statutes Section 559.715, and dismiss Plaintiff’s action, for failure to comply with the requirements of Florida law. Be further advised that if Defendant prevails in this action, Defendant will seek fees pursuant to Florida Statutes Section 57.105 – any and all applicable sections, any and all potential applicable contract provisions, and any other relief which this Court deems just and proper in these circumstances.

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...

Also I'm going to be arguing before one of the most consumer/debtor friendly judges around, so that's good news.

From my experience I would have thought those judges were related to unicorns. :unsure: Glad someone found one. Good job in representing what are often hapless consumers.

 

Thanks for updating us on your case.  Hope your client gets a dismissal.

Ditto.

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Opposition to Motion for Summary Judgment, also filed:

DEFENDANT’S OPPOSITION TO PLAINTIFF’S MOTION

FOR SUMMARY JUDGMENT

Defendant, _______, by and through her undersigned counsel, opposes the Motion for Summary Judgment filed by the Plaintiff, Asset Acceptance, LLC; and asks this Court to deny the Plaintiff’s Motion as genuine issues of material fact exist, and Plaintiff is not entitled to judgment as a matter of law.

STATEMENT OF MATERIAL FACTS IN DISPUTE

​1.​The Plaintiff alleges that Defendant established a credit card account yet no cardholder agreement was attached to the Plaintiff’s Complaint or the Plaintiff’s Motion for Summary Judgment. 15 U.S.C. §1642 provides that no credit cards shall be issued to any person except in response to a request or application for a credit card.

​2.​The Plaintiff’s Complaint alleges that all conditions precedent to the bringing of this action have occurred, been performed, or waived; yet Plaintiff has no record evidence proving Plaintiff complied with the requirements of §559.715, Fla. Stat, and Defendant states in her affidavit that she never received any notice of the assignment of this debt prior to being served with this lawsuit.

​2.​The affidavit of JDB is not proper or admissible summary judgment evidence because it is hearsay, pursuant to §90.802, Fla. Stat. Affiant is not an employee or records custodian of the original creditor Wells Fargo/Wachovia Rewards and is not a person with knowledge of the business records of Wells Fargo/Wachovia Rewards and therefore does not qualify for a hearsay exception pursuant to §90.803(6)(a), Fla. Stat.

​3.​The affidavit of JDB is not proper or admissible summary judgment evidence because it is not made on personal knowledge as required by Rule 1.510(e) of the Florida Rules of Civil Procedure. Affiant is not an employee or records custodian of the original creditor Wells Fargo/Wachovia Rewards and does not have personal knowledge of the business records of Wells Fargo/Wachovia Rewards.

​4.​The affidavit of JDB is not proper or admissible summary judgment evidence because it refers to an exhibit not attached to said affidavit. Affiant states that Plaintiff is the current owner of the Wells Fargo/Wachovia Rewards account and attached a copy of a Bill of Sale as part of Plaintiff's Composite Exhibit “A”. The Bill of Sale references Section 4 of an Agreement that is not attached to said affidavit.

​5.​Plaintiff’s Complaint alleges a cause of action of Money Lent. The attached Composite Exhibit “A” of Plaintiff’s Complaint includes copies of statements that contradict and contravene the allegations of Plaintiff’s Complaint. The Plaintiff did not lend money to the Defendant as alleged in the Plaintiff’s Complaint, nor did the Plaintiff advance the sum to any third parties.

​6.​Plaintiff’s Motion for Summary Judgment states that Plaintiff purchased the subject account “On or about November 7, 2012”, which contradicts and contravenes the Bill of Sale in Plaintiff’s Composite Exhibit “A” that is attached to the Plaintiff’s Affidavit in Support of Plaintiff’s Motion for Summary Judgment. The Bill of Sale states that the subject account was purchased by the Plaintiff on January 30, 2012.

​​

WHEREFORE, Defendant, ______, requests that the Court (a) sustain the objections to the summary judgment evidence offered by Plaintiff, (B) strike the affidavit of JDB, or, alternatively, strike the improper or inadmissible portions of said affidavit, and © grant such other and further relief that may be awarded at law or in equity.

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And now the fun stuff... Still tweaking this one but I'm not just going for a dismissal here...

PLAINTIFF’S COMPLAINT FOR VIOLATION OF

FLORIDA STATUTE SECTION 559.72(18) AND 15 U.S.C. § 1692c(2)

Plaintiff, _____, by and through her undersigned counsel, sues Defendant, Asset Acceptance, LLC, and alleges:

GENERAL ALLEGATIONS

​1.​Plaintiff, ______, is a citizen of _____ County, Florida.

2.​Defendant, Asset Acceptance, LLC, is a Delaware Limited Liability Company registered as a Foreign For Profit limited liability company in the State of Florida.

​3.​The Defendant is a “debt collector” within the meaning of Fla. Stat. §§ 559.55(6) and 559.551 et. seq. (the Florida Consumer Collection Practices Act, or FCCPA), in that it uses an instrumentality of commerce within this state, to wit, the U.S. Mail, in a business the principal business of which is the collection of debts owed to others.

​4.​The Defendant is a “debt collector” within the meaning of Fla. Stat. § 559.55(6), in that it regularly attempts to collect debt allegedly owed to others.

​5.​The Defendant is a “debt collector” within the meaning of 15 U.S.C. § 1692a(6) and 15 U.S.C. § 1601 et. seq. (the Fair Debt Collection Practices Act, or FDCPA), in that it uses the mails in a business the primary purpose of which is the collection of debts.

​6.​The Plaintiff is represented by counsel in connection with the debt relevant to this matter. See attached Exhibit “A”. (Affidavit)

​7.​On February 18, 2013, counsel filed a Notice of Appearance and an Answer for Plaintiff, _______. See attached Exhibit “B”.

​8.​Since February 18, 2013, Defendant sent several written communications directly to the Plaintiff without going through their counsel. The Plaintiff did not initiate this communication. See attached Composite Exhibit “C”.

​9.​Since February 18, 2013, the Defendant knew the Plaintiff was represented by _______, Attorney at Law, in relation to this debt.

COUNT I—VIOLATION OF FLA STAT. § 559.72(18)

​​

10.​Paragraphs 1 through 9 are re-alleged as though fully set forth herein.

11. ​Florida Statutes Section 559.72(18) provides:

​In collecting consumer debts, no person shall:

​(18)​Communicate with a debtor if the person knows that the debtor is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the debtor’s attorney fails to respond within 30 days to a communication from the person, unless the debtor’s attorney consents to a direct communication with the debtor, or unless the debtor initiates the communication.

12.​The Defendant’s eleven (11) written communications since February 18, 2013, to the Plaintiff, instead of counsel, violated Florida Statutes Section 559.72(18).

13.​Fla. Stat. § 559.77(2) provides for statutory damages of $1,000.00 for each violation.

14.​_________ is entitled to statutory damages of $1,000.00 for the violation of Florida Statutes Section 559.72(18).

15.​Wherefore, the Plaintiff demands

​(a) statutory damages of $1,000.00 each for the written communications sent to them by the Defendant for a total of $11,000.00.

​(B) fees and costs pursuant to § 559.77(2).

COUNT II—VIOLATION OF 15 U.S.C. § 1692c

​16.​Paragraphs 1 through 15 are re-alleged as though fully set herein.

​17.​15 U.S.C. § 1692c states in part:

Without the prior consent of the consumer given directly to the debt collector or the express permission of a court of competent jurisdiction, a debt collector may not communicate with a consumer in connection with the collection of any debt--…

(2) if the debt collector knows the consumer is represented by an attorney with respect to such debt and has knowledge of, or can readily ascertain, such attorney’s name and address, unless the attorney fails to respond within a reasonable period of time to a communication from the debt collector or unless the attorney consents to direct communication with the consumer;

18.​The Defendant’s eleven (11) written communications since February 18, 2013, to the Plaintiff, instead of counsel, violated 15 U.S.C. § 1692c(2).

19.​15 U.S.C. § 1692k(a)(2) provides for statutory damages of $1,000.00 for each violation.

20.​15 U.S.C. § 1692k(a)(3) provides for reasonable attorney fees and costs.

21.​_______ is entitled to statutory damages of $1,000.00 for the violation of 15 U.S.C. § 1692c(2).

22.​Wherefore, the Plaintiff demands

​(a) statutory damages of $1,000.00 each for the written communications sent to them by the Defendant for a total of $11,000.00;

​(B) fees and costs pursuant to 15 U.S.C. § 1692k(a)(3).

I understand that I am swearing or affirming under oath to the truthfulness of the claims made in this affidavit and that punishment for knowingly making a false statement includes fines and/or imprisonment.

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@LawKitty

 

I think the smiley faces give the motion some character and charm.  :-)

 

Wherever you see a smiley face, just delete it, add the letter that was supposed to be there, and italicize just the letter like this....(b)  

 

Thank you so much for posting your dismissal.  It's something for us all to study, and I'm sure it will come in very handy for many posters.

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You better check you prayer for damages, my understanding that for the FDCPA portion of the complaint, you only get statutory damages of $1000.  I have never seen or heard of a case where you can be awarded damages for each violation.  1 or 11 times same $1K.

 

Most state statutes mirror the Fed, so I suspect that the Florida statute does also.

 

If you attorneys could get paid by the violation there would be more of you doing this type of work.

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Skippy's correct.  Statutory damages provided for in the FDCPA are per action, not violation.

 

Harper v. Better Business Servs., Inc., 961 F.2d 1561, 1563 (11th Cir. 1992) (holding that because Congress stated that additional damages are limited to $1,000 per "action," the plain language of the FDCPA entitles a plaintiff to a maximum of $1,000 per case).

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Thanks guys! Not that I was expecting to get $11k, but figured the JDB would negotiate and settle anyhow.

 

The 1K on the federal level only applies if you go to trial. Actual damages have no cap, although they are only awarded in small percentage of cases. If your client wins you also can recover all costs plus reasonable attorney fees.

 

Out of court settlements can be any amount. The main factor your opposition will look at is the cost of defending an FDCPA lawsuit. A simple case where the defendants are clearly guilty can cost 5K-10K for a simple settlement. 

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Thanks guys! Not that I was expecting to get $11k, but figured the JDB would negotiate and settle anyhow.

 

 

Under the FDCPA you can't stuck violation BUT you did it the smart way, you used FL FDCPA and under that one you CAN stuck violations, also some of those have no private right to sue. So as far as I know you can do it, also I read it some time ago, so I might be missing something. If you can't sue them you can file a complain with the state, and they will address it.

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Forget it I just read the statute, it clearly says no more than 1k. Then it was the state can sue and stuck them per violation.

 

 

 

(2) Any person who fails to comply with any provision of s. 559.72 is liable for actual damages and for additional statutory damages as the court may allow, but not exceeding $1,000, together with court costs and reasonable attorney’s fees incurred by the plaintiff. In determining the defendant’s liability for any additional statutory damages, the court shall consider the nature of the defendant’s noncompliance with s. 559.72, the frequency and persistence of the noncompliance, and the extent to which the noncompliance was intentional. In a class action lawsuit brought under this section, the court may award additional statutory damages of up to $1,000 for each named plaintiff and an aggregate award of additional statutory damages up to the lesser of $500,000 or 1 percent of the defendant’s net worth for all remaining class members; however, the aggregate award may not provide an individual class member with additional statutory damages in excess of $1,000. The court may award punitive damages and may provide such equitable relief as it deems necessary or proper, including enjoining the defendant from further violations of this part. If the court finds that the suit fails to raise a justiciable issue of law or fact, the plaintiff is liable for court costs and reasonable attorney’s fees incurred by the defendant. - See more at: http://statutes.laws.com/florida/TitleXXXIII/chapter559/PARTVI/559_77#sthash.9tS1Mvck.dpuf

 

 

 

If you go for consumer attorney, let me know if I come across any violations I'll give you the case.

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  • 2 weeks later...

After filing a counterclaim, I received a message from Asset Acceptance's attorney.  They canceled the Motion for Summary Judgment hearing and sent me a proposed settlement which I'm sure the client will like.  They are dismissing the case with prejudice and removing the account from her credit records in return for us dropping the counterclaim.  So, yay!  A win for my client :)

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Awesome Job!!!!!!!    ::USA::

 

I know this was a pro bono case, but I hope you will consider looking into this area of law. Defending clients in local/state court is difficult because most of them do not have the up front money. That being said a large number of these cases have additional FDCPA violations and you can make money pursuing these. The next time go after them for attorney fees/costs in the settlement. I guess your pay for this one was continuing education and doing a good deed! 

 

As long as you present a strong case most of them settle within a few weeks/months. Their attorneys settle quickly because they know their clients are guilty and the FDCPA is a strict liability statute. Most of the larger JDBs/CAs regularly violate consumer rights because they make so much money doing it. Its an easy risk/reward for them. Make a few hundred million and pay out a few thousand to a handful of people who have representation.

 

We hope you stay around and participate. We already have a few attorneys on here that help out and you might even get an occasional case out of it.

 

Once again congrats on your first win and thanks for helping out! I wish you the best in your career! 

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Thanks to LawKitty we finally know the answer to one of CIC's mysteries. 

 

No matter where we live almost everyone here runs into the same situation in court.

 

-30 defendants are called forward. 

 

-24 get default judgments for not showing up.  This we all know.

 

-2 stand up and get run over by the plaintiff's attorney.  Unfortunately way too many of us have witnessed this. 

 

-1 stands up and is prepared to fight.  This is usually someone like us, possibly even a CIC Member. Even when we don't win we are a thorn in the plaintiff's side.   

 

-2 get called to the front the docket. They have attorneys and disappear. Until Today most of us could only guess what happened to these people. Now we know thanks to LawKitty!

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