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New FL Attorney Going Against Asset Acceptance for First Time


LawKitty
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Actually it's more like 214 defendants of just ONE JDB (Asset Acceptance, for instance) in ONE county alone for ONE year.  So multiply that for each major JDB and you can get an idea of how many of these lawsuits are filed.  It's a numbers game for these JDBs.  Like you said, most end in default.  Some are dismissed due to lack of prosecution.  Some are dismissed because someone actually tries to fight.  Sometimes the JDB fights back, too, but it depends on how much the alleged debt is, too.  They file a ton of lawsuits and hope for the easy defaults.  If only more people knew they didn't have to take a default or how bad a judgment could hurt them :(

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Just in case you do not know who I am, I have been to law school took the bar but I am not an attorney, I do not have a bar card, I am back in school studying more in depth on foreclosure and commercial law.

 

You have a bar card use it for what it is........File a bar complaint, File an order to show cause with the courts, let then judge get to the bottom of the issue, after all he is the impartial trier of the fact(excuse me if a laugh for a minute) and the man who controls his court. If an attorney gets out of line or does not follow the RTP's then he is the one to deal with them.

 

Sorry but the gunny can be blunt at times, its a Marine Corps thing,,,,,use your head for more than a hat rack,,,,you have the education use it. I mean no disrespect at all,  I know how hard law schol is, and what they do not teach us in law school that they should.

 

File a motion to dismiss for failure to comply to the RTP's. Then file a separate suit against the attorney for not recognizing you as an attorney,,,he probably thinks that because your are new that you wont know what to do. Then file a suit against the law firm he works for. See he is under the impression that since you belong to the same sorority (the BAR) that you will not sue another attorney, atty's have this unspoken affirmation that you do not sue each other. Tat is one reason i am not an attorney, I do not want my first responsibility to be to the court. You know what I am talking about it is the canons. Matter of fact is is canon 1

 

Canon 1. The Duty of the Lawyer to the Courts. It is the duty of the lawyer to maintain
towards the Courts a respectful attitude, not for the sake of the temporary incumbent of
the judicial office, but for the maintenance of its supreme importance. Judges, not being
wholly free to defend themselves, are peculiarly entitled to receive the support of the Bar
against unjust criticism and clamor. Whenever there is proper ground for serious complaint
of a judicial officer(attorney), it is the right and duty of the lawyer to submit his grievances
to the proper authorities. In such cases, but not otherwise, such charges should be
encouraged and the person making them should be protected.
 
You are playing with the big dogs now sweetheart, forget the common law and the rules of the court and use our own rules to enforce your stance. The canons hold more weight than the law does in this matter.
 
Now for the big one you need to use against the other attorney
Canon 9. Negotiations with Opposite Party.
A lawyer should not in any way communicate upon the subject of controversy
with a party represented by counsel; much less should he undertake to negotiate or
compromise the matter with him, but should deal only with his counsel. It is incumbent
upon the lawyer most particularly to avoid everything that may tend to mislead a party
not represented by counsel, and he should not undertake to advise him as to the law.

 

The first thing you need to understand is the big dogs play with bigger guns. If yer gonna play with the big dogs, and you know the rules that pertain to them, then use those rules.

 

I am in no way trying to be rude with you, I just tend to say things blunty at times. Now that you have the tools of the trade .....go get em......

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Asset's parent company Encore Capital stock has gone from under 3.00 to almost 50.00 in the last five years. Collections are up over 50% this year at 379 million. They still have a total portfolio of over 4 Billion to collect on! 

 

http://finance.yahoo.com/echarts?s=ECPG+Interactive#symbol=ecpg;range=5y;compare=;indicator=volume;charttype=area;crosshair=on;ohlcvalues=0;logscale=off;source=undefined;

 

That sums up why their business model is built to ignore consumer's rights. They will never have enough FDCPA lawsuits filed against them to worry about. A couple of thousand here or there will never make a dent in the numbers above. With 80% plus of their targets never fighting back they have no incentive to change. 

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Asset's parent company Encore Capital stock has gone from under 3.00 to almost 50.00 in the last five years. Collections are up over 50% this year at 379 million. They still have a total a portfolio of over 4 Billion to collect on! 

 

http://finance.yahoo.com/echarts?s=ECPG+Interactive#symbol=ecpg;range=5y;compare=;indicator=volume;charttype=area;crosshair=on;ohlcvalues=0;logscale=off;source=undefined;

 

That sums up why their business model is built to ignore consumer's rights. They will never have enough FDCPA lawsuits filed against them to worry about. A couple of thousand here or there will never make a dent in the numbers above. With 80% plus of their targets never fighting back they have no incentive to change. 

That is exactly why the damages should be way more than 1000 dollars.

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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 :-)

Congratulations on your win!

 

Good for your client. I believe that having representation "helped" the JDB to fold and settle fairly quick. It takes me a couple of years to win (I have only dealt with OCs and not JDBs). I suppose the consolation to me is that, while the law office is focused wasting their resources while working toward their inevitable loss (a worthless judgment means even *if* they could "win" they would still be losers) against me, the number of engaged consumers they are able to simultaneously harass is reduced a bit. Litigious OCs and their business partner law firm/attorneys that have sued me have all experienced negative ROIs.

 

The downside I see is the willingness of so many DC law firms to thoroughly waste court resources. Personally, lacking judges that understand and follow the law (and don't advocate for opposing counsel), I don't know how to stop abusive, resource wasting plaintiffs that know they are missing admissible evidence to prove up all the elements to their cause of action from being a senseless burden on the courts.

 

I don't play a plaintiff with missing elements on TV and especially do not do so in the real world. I don't recommend such behavior to friend or foe.

 

...
Now for the big one you need to use against the other attorney
Canon 9. Negotiations with Opposite Party.
A lawyer should not in any way communicate upon the subject of controversy
with a party represented by counsel; much less should he undertake to negotiate or
compromise the matter with him, but should deal only with his counsel. It is incumbent
upon the lawyer most particularly to avoid everything that may tend to mislead a party
not represented by counsel, and he should not undertake to advise him as to the law.
...

I don't recall when I have not received unsolicited legal advice from opposing DC counsel.

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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 :-)

 

Great result.  You should be proud of yourself.  And your client just obtained a huge benefit.  Debt wiped out, credit report scrubbed.  Watch for a confidentiality provision.  They will settle without it and it is obnoxious.

 

I just had an identity theft case recently.  Called the JDB and told them so.  Also told them that they had several different FDCPA violations.  I promised that we would not assert them if they just dismissed now.

 

They called back and said, "no way".  This is your client's debt (it really wasn't) and your counterclaim is bogus.  I told them fine, but if I was forced to file the counterclaim, we were in it for the long haul.  No mutual dismissals.  They would have to pay money.  They told me to file.

 

Just as soon as I did, the very same lawyer called me back, as if we had never spoken to each other, and proposed mutual dismissals.  I reminded him of our previous conversation, and the email I sent confirming it, and, in the end,  they were only too happy to pay money to settle. 

 

I seriously don't get it.  What self-respecting lawyer can practice like this?  For any lawyer out there starting out a practice, these cases are low-hanging fruit.  And I will help any attorney that wants to represent debtors in these cases. 

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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 :-)

I do not have Fla case law but here are federal cases that are of great help with summary actions

This one is great it is precedent  Trensley v Pagliaro, 229 F. Supp. 647,Statements of council in brief or argument are not sufficient for summary judgment.

 

Jurisdiction:

Melo v. US, 505 F2d 1026

Once jurisdiction is challenged, the court cannot proceed when it clearly appears that the court lacks jurisdiction, the court has no authority to reach merits, but, rather, should dismiss the action.

Joyce v. US, 474 F2d 215.

There is no discretion to ignore that lack of jurisdiction

Standing

Ashcroft v. Iqbal (2009)

the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions, only a complaint that states a plausible claim for relief survives a motion to dismiss. In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying plead­ings that, because they are no  more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

 

Something else that will help you out, I am right now taking a class on advanced legal writing, one thing it stresses is Plain English forget the legalease. Such as comes now, and all that jazz. Justice Scalia won a best legl book of the year award for his participation in writng a book called  Making your case, the art of persuading the judge,,,,,,you should read it.

 

I do not remember if i told you or not,,,,,i have been to law school, passed it took the bar but I am not a licensed attorney. I do not want to belong to the bar at this moment. I went back to school for some more advanced studies. Most of my case kaw comes from those books, and Am jur 2 and annotated law from my library.

 

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@LawKitty

 

Somehow I missed your post.  Great win for you, your client, and for all consumers.  As I said in my initial post, I greatly admire and respect you for representing your client pro bono.  

 

I hope you will go into consumer law.  We need more more determined and dedicated lawyers like you to represent consumers.  

 

Please stay around this board and become Florida's version of "Calawyer."

 

Happy Holidays.

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Welcome to the board, nice job by the way. By now you have met several of our resident attornies. Calawyer, BT409 Gunny, NASCAR, also Tenn. Consumer lawyer is here two. They have all be great to assist us and keep us on point. When you have extra time you might want t read and review some of the forums. They might give give you good ideas on points of law etc. We have managed to help many people on here over the years as a pro sey. That speaks voloums in it's self. Would love to have you stick around and help out with advide too. You can even pick up a few clients at times from peo-le seeking a willing, knowledgable attorny that is willing to fight,. Aagain, WELCOME.

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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.

You are a smart lawyer for coming here, getting a feel for their tactics is very smart. Welcome to CIC, friend from the state of my birth, and anything you need you ask. If you could gain anything here to help your client then we have accomplished our mission. Don't take offense here there are several members of the bar here posting and anything to help.

 

So I think it would be good to tune a new member of the bar up for debtor defense, don't y'all think that is a good idea?

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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.

Nicely done and the formatting always comes out screwy. I recommend downloading open office it is nice and free.

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