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Responding to request for admissions Florida


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HI all.

 

Background. 

In late August, my husband accepted a summons for a bad debt suit in Florida (legal means of summons acceptance).  The suit was dated from June 2013 and we had lived in another state for 1 year at that time.  With the help of info on this forum and elsewhere, I sent in my answer and a motion to dismiss basically based on lack of chain of custody. I can copy and past that if needed.

 

The OC is Chase.  The collector is South Florida Asset Recovery (SFAR) and the attorney is the president of the agency (real nice).  Originally, I received 3 bills of sale for exhibit A.  Two from Chase to a first collection agency, one for almost 18,000 accounts, another for 7000+ accounts and one from the first collection agency to SFAR for 211 accounts.  Additionally, an account statement from Chase, that says "this statement is a facsimile- not an original" was included presumably as exhibit B but it does not state that it is exhibit B.  The suit is for close to $6000.  I don't know that they are still within the statute of limitations (4 years in FL).  I honestly don't know when I last paid on the card but my calculations with the amount on the statement they provided and the past due amount would put my last payment in the first half of 2009 which if it was prior to June 2013 would put it over the statute. I have not been able to get bank statements for that time period to verify.

 

The original complaint (abbreviated to include only relevant portions)

 

 1. Defendant is a resident of ---- county, Fl who resides at ----.

I denied this as I was no longer a resident of FL when the suit was filed and had not resided at the address in more than 1 year.

 

2.  Plaintiff purchased this charged off account in March 2012.  A copy of the bill of sale is attached as Exhibit A.

 

I denied this stating "Exhibit A offers no evidence that the alleged account was purchased by the Plaintiff.  The documents do not refer to the alleged account or the Defendant.   Exhibit A includes three separate bills of sale including two from Chase Bank to Turtle Creek Assets.  These bills of sale have closing dates of 08/16/2011 and 10/17/2011 and include more than 25,000 accounts.  Neither bill of sale references the Defendant or the alleged account as being included in those sales.  Further, the bill of sale between Turtle Creek and South Florida Asset Recovery includes 211 of the previous 25,000+ accounts and also fails to reference the Defendant or the alleged account as included in the sale.    

 

 

3.  Before the institution of this action defendant had business transactions with Chase Bank in connection with amazon.com from Chase Visa credit card with account #----

and on or about Feb 2010 they agreed to the resulting balance.

 

Deny.  Defendant objects to this request on the ground that it is vague, ambiguous, and unintelligible in that Defendant has to speculate as to the meaning of “business transactions”.  Plaintiff's statement is conclusory and offered without admissible evidence. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation. 

 

4.  A statement of the amount owed was rendered to the defendant, a copy being attached as Exhibit B and defendant did not object to the statement.  In conjunction with its purchase of the statement of account plaintiff was assigned the right of the original creditor to receive payment of the account.

 

 Deny.  Defendant objects to this request on the ground that it is vague, ambiguous, and unintelligible in that Defendant has to speculate as to the meaning of "a copy being attached as Exhibit B”.  No document attached is labeled Exhibit B.  Further, Defendant Objects to the admission of account statement from Plaintiff, as it is not a certified authenticated record of account from the original creditor, and is inadmissible hearsay under Florida laws unless accompanied by an affidavit of a person employed by the Creditor so named.    

 

5.  More than 30 days prior to the institution of this action the plaintiff provided to the defendant written notice of the assignment of the debt. 

 

 Deny.  Defendant never received written notice of assignment.   According to Clinton Rooney in his article “Defense of Assigned Consumer Debts, “based on common-law principles, with no debt owed to the debt buyer, there cannot be consideration to form a contract.  Unless the debt buyer proves that a debt exists to the debt buyer, and not simply to the putative original creditor, the debt buyer cannot form a new contract, in the form of an account stated, without giving consideration in the form of a release of a preexisting debt.”

 

6.  Defendant owes plaintiff the principle of --- that is due with interest since Feb 2010 plus court costs.

Deny.  Plaintiff has failed to provide proof of a relationship between themselves and the alleged original creditor, specifically the authority of the Plaintiff to collect the alleged debt on behalf of the original creditor

 

 

I have now received a request for admissions stating:

 

1. Defendant was issued an amazon.com from Chase Visa credit card with account #----

 

2. Defendant used the amazon.com from Chase Visa credit card with account #---- for purchases and cash advances.

 

3. Defendant received monthly statements regarding amazon.com from Chase Visa credit card with account #---- at the address -----

 

4. Defendant did not dispute the billing contained on the monthly credit card statements.

 

5.  The attached monthly statement is an accurate copy of amazon.com from Chase Visa credit card with account #----

 

6.  The defendant was born on -----

 

7.  Defendant's SS# ends with ---.

 

I believe that 6 and 7 are responses to my denial of #1 in the original complaint and I would admit these. 

 

The attorney sites Rule 1.370 Florida Rules of Civil Procedure in the request which states, in part,

 

" The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested; the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless that party states that that party has made reasonable inquiry and that the information known or readily obtainable by that party is insufficient to enable that party to admit or deny."

 

My questions are how do I deny 1-5?  Because of the FL rule it does not seem like I would be able to deny by stating "Defendant denies, burden of proof rests with the Plaintiff to prove to the contrary" or "After a reasonable inquiry, the information known or readily obtainable by Defendant is insufficient to enable a response. Defendant denies the request until such time as sufficient information is known to make a different response." As I have seen on other posts in this forum.

 

Thanks for any help or insights.

 

 

 

 

 

 

 

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HI all.

 

Background. 

In late August, my husband accepted a summons for a bad debt suit in Florida (legal means of summons acceptance).  The suit was dated from June 2013 and we had lived in another state for 1 year at that time.  With the help of info on this forum and elsewhere, I sent in my answer and a motion to dismiss basically based on lack of chain of custody. I can copy and past that if needed.

 

The OC is Chase.  The collector is South Florida Asset Recovery (SFAR) and the attorney is the president of the agency (real nice).  Originally, I received 3 bills of sale for exhibit A.  Two from Chase to a first collection agency, one for almost 18,000 accounts, another for 7000+ accounts and one from the first collection agency to SFAR for 211 accounts.  Additionally, an account statement from Chase, that says "this statement is a facsimile- not an original" was included presumably as exhibit B but it does not state that it is exhibit B.  The suit is for close to $6000.  I don't know that they are still within the statute of limitations (4 years in FL).  I honestly don't know when I last paid on the card but my calculations with the amount on the statement they provided and the past due amount would put my last payment in the first half of 2009 which if it was prior to June 2013 would put it over the statute. I have not been able to get bank statements for that time period to verify. This is good for you because they don't know which pool of accounts your account came from.  Let them prove it was in any account pool at all.  You can go to the bank and order the statements for 2009 time peroid, but it does cost per page.

 

The original complaint (abbreviated to include only relevant portions)

 

 1. Defendant is a resident of ---- county, Fl who resides at ----.

I denied this as I was no longer a resident of FL when the suit was filed and had not resided at the address in more than 1 year.  This will be a problem for you if you stated that you are not a resident of FL.  When you move from the state, that tolls the SOL, so if your last payment was in march 2009, and you moved from the state for lets say 12 months, well then you would add another year to that sol when you moved back.  Then they are within the SOL.

 

2.  Plaintiff purchased this charged off account in March 2012.  A copy of the bill of sale is attached as Exhibit A.

 

I denied this stating "Exhibit A offers no evidence that the alleged account was purchased by the Plaintiff.  The documents do not refer to the alleged account or the Defendant.   Exhibit A includes three separate bills of sale including two from Chase Bank to Turtle Creek Assets.  These bills of sale have closing dates of 08/16/2011 and 10/17/2011 and include more than 25,000 accounts.  Neither bill of sale references the Defendant or the alleged account as being included in those sales.  Further, the bill of sale between Turtle Creek and South Florida Asset Recovery includes 211 of the previous 25,000+ accounts and also fails to reference the Defendant or the alleged account as included in the sale.    correct.

 but you dont want to fight your case in their discovery.  You want to deny, if you must give a reason, put something like "after a reasonably inquiry, defendant is unable to aver the truth of the matter, therefore denies."

 

3.  Before the institution of this action defendant had business transactions with Chase Bank in connection with amazon.com from Chase Visa credit card with account #----

and on or about Feb 2010 they agreed to the resulting balance.

 

Deny.  Defendant objects to this request on the ground that it is vague, ambiguous, and unintelligible in that Defendant has to speculate as to the meaning of “business transactions”.  Plaintiff's statement is conclusory and offered without admissible evidence. Defendant is without information or knowledge sufficient to form an opinion as to the truth or accuracy of the allegation. 

 

4.  A statement of the amount owed was rendered to the defendant, a copy being attached as Exhibit B and defendant did not object to the statement.  In conjunction with its purchase of the statement of account plaintiff was assigned the right of the original creditor to receive payment of the account.

 

 Deny.  Defendant objects to this request on the ground that it is vague, ambiguous, and unintelligible in that Defendant has to speculate as to the meaning of "a copy being attached as Exhibit B”.  No document attached is labeled Exhibit B.  Further, Defendant Objects to the admission of account statement from Plaintiff, as it is not a certified authenticated record of account from the original creditor, and is inadmissible hearsay under Florida laws unless accompanied by an affidavit of a person employed by the Creditor so named.    again don't give them your defenses to their discovery.  You are going to want to save them till you get all their discovery you requested so you can hit them all at once. ;)

 

5.  More than 30 days prior to the institution of this action the plaintiff provided to the defendant written notice of the assignment of the debt. 

 

 Deny.  Defendant never received written notice of assignment.   According to Clinton Rooney in his article “Defense of Assigned Consumer Debts, “based on common-law principles, with no debt owed to the debt buyer, there cannot be consideration to form a contract.  Unless the debt buyer proves that a debt exists to the debt buyer, and not simply to the putative original creditor, the debt buyer cannot form a new contract, in the form of an account stated, without giving consideration in the form of a release of a preexisting debt.”

 

6.  Defendant owes plaintiff the principle of --- that is due with interest since Feb 2010 plus court costs

.

Defendant objects to this Admisson to the extent that it assumes disputed facts and facts not in evidence that there is a balance, and that the balance is correct, and that it is due and owed to Plaintiff.  Without waiving forgoing Objection, Defendant Denies.

          

 

 

I have now received a request for admissions stating:

 

      1. Defendant was issued an amazon.com from Chase Visa credit card with account #----                                                                                                                                                                                                                                                                                                                           Defendant objects to this request to the extent that it seeks information beyond Defendant’s knowledge, to the extent that it seeks to impose upon Defendant a duty to seek out information not in Defendant’s possession, custody or control, and to the extent it assumes disputed facts and facts not in evidence.  Without waiving the foregoing objection, Defendant states...etc., and therefore denies.

after a reasonably inquiry, defendant is unable to aver the truth of the matter, therefore denies

      

 

2. Defendant used the amazon.com from Chase Visa credit card with account #---- for purchases and cash advances

 

    

Defendant objects to this request to the extent that it seeks information beyond Defendant’s knowledge, to the extent that it seeks to impose upon Defendant a duty to seek out information not in Defendant’s possession, custody or control, and to the extent it assumes disputed facts and facts not in evidence.  Without waiving the foregoing objection, Defendant states...etc., and therefore denies.

 

    

 

3. Defendant received monthly statements regarding amazon.com from Chase Visa credit card with account #---- at the address -----

 

after a reasonably inquiry, defendant is unable to aver the truth of the matter, therefore denies

 

 

 

etc. 

 

4. Defendant did not dispute the billing contained on the monthly credit card statements.

 

5.  The attached monthly statement is an accurate copy of amazon.com from Chase Visa credit card with account #----

 

6.  The defendant was born on -----

 

7.  Defendant's SS# ends with ---.

 

I believe that 6 and 7 are responses to my denial of #1 in the original complaint and I would admit these. 

 

The attorney sites Rule 1.370 Florida Rules of Civil Procedure in the request which states, in part,

 

" The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested; the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless that party states that that party has made reasonable inquiry and that the information known or readily obtainable by that party is insufficient to enable that party to admit or deny."

 

My questions are how do I deny 1-5?  Because of the FL rule it does not seem like I would be able to deny by stating "Defendant denies, burden of proof rests with the Plaintiff to prove to the contrary" or "After a reasonable inquiry, the information known or readily obtainable by Defendant is insufficient to enable a response. Defendant denies the request until such time as sufficient information is known to make a different response." As I have seen on other posts in this forum.

 

Thanks for any help or insights.

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