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Being sued by Midland Funding llc in Florida

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My computer won't let me open your pdf.  Did they comply with FL 559.715, Notice of Assignment?  Some, not all, FL county courts have held that compliance with that statute is a condition precedent to bringing a collection suit.  I would read all posts by a lawyer-member here @LawKitty.

 

That said, if they supplied, "charges, statements, everything, pretty much every one possible," well, then opposing their MSJ will be difficult.

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Now that Midland has proven to own the debt, can i use the SOL of limitations from this, (Governing Law This agreement and your account will be governed by federal law, as well as the law of Delaware, and will apply no matter where you live or use this account) Taken from the credit card agreement directly, I did not raise this as an affirmative defense as i did not know about it till afterwards, how can i use this against them. Also how do i go about amending my affirmative defenses. Now that all this has risen i need to add this?

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Ok everyone from doing research, there are several cases including the pincus case, where the governing law of the credit card agreement was won in florida. This means that the SOL is been set and this is a time barred acoount. If anyone can find more cases i'd love to state them in my amendment.

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Comes Now, that defendant, , pursuant to Rule 1.190, Florida Rules of Civil Procedure and files this, their Motion for Leave to File Amended Answer and Affirmative Defenses, and as grounds would state the following:

1.       On April 3, 2015, the instant action was filed with the Clerk.

2.       Since that time , Defendant has uncovered new information.

3.   The Defendants seek to amend their previous Response and raise Affirmative

Defenses.

3.   A motion for leave to amend should be freely granted under Rule 1. 190(a).

4.    Fla. R. Civ. Pro. 1.190 provides for liberal amendment of pleadings. All doubts

should be resolved in favor of allowing amendment. It is the public policy of this state to freely

allow amendments to pleadings so that cases may be resolved upon their merits. Bill Williams

Air Conditioning & Heating. Inc. v. Haymarket Co-Op. Bank, 592 So.2d 302 (Fla. 1st DCA

1991), rev. dismissed, 598 So.2d 76 (Fla. 1992) (quoting Adams v. Knabb Turpentine Co., 435

So.2d 944, 946 (Fla. 1st DCA 1983).

7.   The matter is not set for trial and is in its infancy, and therefore no prejudice will

inure to the Plaintiff. The Answer has not been previously amended and the privilege to amend

has not been abused.

8.    Defendant do not seek to unnecessarily delay the prosecution of this matter, by

filing this Motion to Amend.

9.   Defendant Amended Answer is being filed simultaneously with this Motion.

WHEREFORE, Defendants respectfully request this Court grant their Motion for Leave

to File Amended Answer and Affirmative Defenses, and for such other and further relief as this

court deems just and proper.

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IN THE COUNTY COURT IN AND FOR OSCEOLA COUNTY, FLORIDA

CIVIL DIVISION

                                                                                                                            

Midland Funding, LLC,

Plaintiff

 

-Vs-                                                                                                                              Case No.

 

My Name 

Defendant

 

 

 

 

ANSWER TO COMPLAINT AND AFFIRMATIVE DEFENSES

 

 

COMES NOW, the defendant                     , files this, his answer to the complaint and states unto the Court as follow:

1.            Defendant admits paragraph 3 for jurisdictional purposes only.

2.            Defendant denies paragraphs 2,4,5,7,8,9,10,11,12,13,14,15,16, and demands strict proof thereof

3.            Defendant states that paragraph 1, and 6 are without knowledge and therefore denies demanding strict proof thereof.

4.            The remaining allegations of the complaint are denied.

 

 

AFFIRMATIVE DEFENSES

 

Failure to Preform Condition Precedent:

Failure to Provide Florida Statutes 559.715 Notice of Assignment

 

5.            Plaintiff has failed to comply with all conditions precedent.

6.            Plaintiff lacks standing.

7.            Plaintiff may not bring a cause of action against Defendant because it or its predecessor in interest failed to comply with 559.715 Fla. Stat., by not providing Defendant written notice of assignment of the alleged debt within 30 days prior to this lawsuit.

8.            Plaintiff and its predecessors in the interest failed to furnish the statutory notice of the assignment of this alleged debt, as required by 559.715, Fla Stat.

9.            Because Plaintiff failed to provide the requisite statutory notice, it may not collect the debt alleged in the complaint.

 

 

Failure to State a Cause of Action for Unjust Enrichment

10.                  Plaintiff fails to allege facts to state a cause of actions for Unjust Enrichment.

11.                  Plaintiff’s Complaint claims the sums due are based upon the use of a credit card. Because the credit card agreement is a written agreement, this claim is inconsistent with the other allegations of the complaint.

12.                  A claim for unjust enrichment is an equitable claim.

13.                  A claim for equitable relief cannot be based solely upon a requesting party’s claim that it is deserving.

 The equitable remedy sought is founded upon the legal fiction that a contract should be implied in absence of a written contract. This fiction may not be maintained and the law will not imply a contract where an express contract exists concerning the same subject matter. See Carol Ann May v. Sessum & Mason, P.A., 700 So.2d 22 (Fla.2d DCA 1994); Corn v. Greco, 694 So.2d 833 (Fla 2d DCA 1997); Hazen v. Cobb, 96 Fla. 151 (Fla. 1928); and Johnny Baron, Jr. v. Ahmed M. Osman a/k/a Ahmen M. Osmen, 35 Fla. L. Weekly D1464 (5th DCA 2010).

 

 

Failure to State a cause of Action for account stated

14.                  Plaintiff fails to allege facts to state a cause of action for account stated.

15.                  The Defendant never entered into a contract with Plaintiff.  Defendant never agreed to any balance of any alleged debt with Midland Funding LLC

16.                  The documents attached to the Complaint do not support the allegations of an express of implied promise to pay the alleged balance due.  

 

 

Running of the Statute of Limitations

The defendant asserts that recovery in this case is barred by the statute of limitations as the time, as follows :

 

17.       Written Contract/Open  Book Account/ Account Stated (Delaware Law)-

   between the plaintiff or plaintiff's assignor and the defendant contains a choice     of law provision requiring all matters to be decided under the laws of Delaware. Pursuant to Delaware Code Ann. Tit. 10 §8106, the plaintiff's time to file this lawsuit expired three years after the date of breach or last activity by the defendant.

 

 

 

       

 

 

State Forum Selection Clause

18.         Parties may be bound by terms under the debt which would require the possible usage of another state’s substantive law to be applied in this action. By litigating within the state of Florida the defendant is not waiving said provision. Plaintiff has not yet produced the necessary documentation to ascertain if a foreign venue selection clause or substantive law provision exists covering this action. At a minimum, Florida’s procedural law would apply but not necessarily Florida’s substantive law pursuant to possible applicable contract provisions, if any. Therefore, defendant is not waiving any right as to another states application of substantive law by defending this action.

Counterclaims

19.             The defendant specifically reserves the right to file counterclaims which are discovered in the course of discovery.

 

 

Wherefore, Defendant request that the Court deny the relief sought by plaintiff, and award Defendant court cost, and such other relief as this Court deems just and proper.

 

CERTIFICATE OF SERVICE

I certify that a copy of this document was mailed to                 . attorney for the Plaintiff,

 

 

Respectfully submitted,

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IN THE COUNTY COURT IN AND FOR OSCEOLA COUNTY, FLORIDA

CIVIL DIVISION

                                                                                                                            

Midland Funding, LLC,

Plaintiff

 

-Vs-                                                                                                                              Case No.

 

My Name 

Defendant

 

 

 

 

ANSWER TO COMPLAINT AND AFFIRMATIVE DEFENSES

 

 

COMES NOW, the defendant                     , files this, his answer to the complaint and states unto the Court as follow:

1.            Defendant admits paragraph 3 for jurisdictional purposes only.

2.            Defendant denies paragraphs 2,4,5,7,8,9,10,11,12,13,14,15,16, and demands strict proof thereof

3.            Defendant states that paragraph 1, and 6 are without knowledge and therefore denies demanding strict proof thereof.

4.            The remaining allegations of the complaint are denied.

 

 

AFFIRMATIVE DEFENSES

 

Failure to Preform Condition Precedent:

Failure to Provide Florida Statutes 559.715 Notice of Assignment

 

5.            Plaintiff has failed to comply with all conditions precedent.

 

6            Plaintiff may not bring a cause of action against Defendant because it or its predecessor in interest failed to comply with 559.715 Fla. Stat., by not providing Defendant written notice of assignment of the alleged debt within 30 days prior to this lawsuit.

 

 

Failure to State a Cause of Action for Unjust Enrichment

10.                  Plaintiff fails to allege facts to state a cause of actions for Unjust Enrichment.

11.                  Plaintiff’s Complaint claims the sums due are based upon the use of a credit card. Because the credit card agreement is a written agreement, this claim is inconsistent with the other allegations of the complaint.

12.                  A claim for unjust enrichment is an equitable claim.

13.                  A claim for equitable relief cannot be based solely upon a requesting party’s claim that it is deserving.

 The equitable remedy sought is founded upon the legal fiction that a contract should be implied in absence of a written contract. This fiction may not be maintained and the law will not imply a contract where an express contract exists concerning the same subject matter. See Carol Ann May v. Sessum & Mason, P.A., 700 So.2d 22 (Fla.2d DCA 1994); Corn v. Greco, 694 So.2d 833 (Fla 2d DCA 1997); Hazen v. Cobb, 96 Fla. 151 (Fla. 1928); and Johnny Baron, Jr. v. Ahmed M. Osman a/k/a Ahmen M. Osmen, 35 Fla. L. Weekly D1464 (5th DCA 2010).

 

 

Failure to State a cause of Action for account stated

14.                  Plaintiff fails to allege facts to state a cause of action for account stated.

15.                  The Defendant never entered into a contract with Plaintiff.  Defendant never agreed to any balance of any alleged debt with Midland Funding LLC

16.                  The documents attached to the Complaint do not support the allegations of an express of implied promise to pay the alleged balance due.  

 

 

 

 This claim is barred by the statute of limitations under F.S. 95-10, the borrowing statute. Defendant's credit card agreement contains a choice of law provision and pursuant to Delaware Code Ann. Tit. 10, §8106, and the time to file this lawsuit expired after three years of the date of alleged breach or last activity by the defendant.  In Ellis v. United Services Automobile Association, 909 So. 2d 593 (2005), the court held that, "Florida's borrowing statute precludes the maintenance of a cause of action that arose in another state if the action is barred by the statute of limitations that applies to actions in that state § 95.10, Fla. Stat. (1999)."

 

 

 

 

 

 

 

       

 

 

State Forum Selection Clause

 

Counterclaims

19.             The defendant specifically reserves the right to file counterclaims which are discovered in the course of discovery.

 

 

Wherefore, Defendant request that the Court deny the relief sought by plaintiff, and award Defendant court cost, and such other relief as this Court deems just and proper.

 

CERTIFICATE OF SERVICE

I certify that a copy of this document was mailed to                 . attorney for the Plaintiff,

 

 

Respectfully submitted,

 

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IN THE COUNTY COURT IN AND FOR OSCEOLA COUNTY, FLORIDA

CIVIL DIVISION

                                                                                                                            

Midland Funding, LLC,

Plaintiff

 

-Vs-                                                                                                                              Case No.

 

My Name 

Defendant

 

 

 

 

ANSWER TO COMPLAINT AND AFFIRMATIVE DEFENSES

 

 

COMES NOW, the defendant                     , files this, his answer to the complaint and states unto the Court as follow:

1.            Defendant admits paragraph 3 for jurisdictional purposes only.

2.            Defendant denies paragraphs 2,4,5,7,8,9,10,11,12,13,14,15,16, and demands strict proof thereof

3.            Defendant states that paragraph 1, and 6 are without knowledge and therefore denies demanding strict proof thereof.

4.            The remaining allegations of the complaint are denied.

 

 

AFFIRMATIVE DEFENSES

 

Failure to Preform Condition Precedent:

Failure to Provide Florida Statutes 559.715 Notice of Assignment

 

5.            Plaintiff has failed to comply with all conditions precedent.

 

6            Plaintiff may not bring a cause of action against Defendant because it or its predecessor in interest failed to comply with 559.715 Fla. Stat., by not providing Defendant written notice of assignment of the alleged debt within 30 days prior to this lawsuit.

 

 

Failure to State a Cause of Action for Unjust Enrichment

10.                  Plaintiff fails to allege facts to state a cause of actions for Unjust Enrichment.

11.                  Plaintiff’s Complaint claims the sums due are based upon the use of a credit card. Because the credit card agreement is a written agreement, this claim is inconsistent with the other allegations of the complaint.

12.                  A claim for unjust enrichment is an equitable claim.

13.                  A claim for equitable relief cannot be based solely upon a requesting party’s claim that it is deserving.

 The equitable remedy sought is founded upon the legal fiction that a contract should be implied in absence of a written contract. This fiction may not be maintained and the law will not imply a contract where an express contract exists concerning the same subject matter. See Carol Ann May v. Sessum & Mason, P.A., 700 So.2d 22 (Fla.2d DCA 1994); Corn v. Greco, 694 So.2d 833 (Fla 2d DCA 1997); Hazen v. Cobb, 96 Fla. 151 (Fla. 1928); and Johnny Baron, Jr. v. Ahmed M. Osman a/k/a Ahmen M. Osmen, 35 Fla. L. Weekly D1464 (5th DCA 2010).

 

 

Failure to State a cause of Action for account stated

14.                  Plaintiff fails to allege facts to state a cause of action for account stated.

15.                  The Defendant never entered into a contract with Plaintiff.  Defendant never agreed to any balance of any alleged debt with Midland Funding LLC

16.                  The documents attached to the Complaint do not support the allegations of an express of implied promise to pay the alleged balance due.  

 

                                                          Statute of Limitations

 

 This claim is barred by the statute of limitations under F.S. 95-10, the borrowing statute. Defendant's credit card agreement contains a choice of law provision and pursuant to Delaware Code Ann. Tit. 10, §8106,  the time to file this lawsuit expired after three years of the date of alleged breach or last activity by the defendant.  In Ellis v. United Services Automobile Association, 909 So. 2d 593 (2005), the court held that, "Florida's borrowing statute precludes the maintenance of a cause of action that arose in another state if the action is barred by the statute of limitations that applies to actions in that state § 95.10, Fla. Stat. (1999)."

 

 

 

 

 

 

 

       

 

 

 

 

Counterclaims

19.             The defendant specifically reserves the right to file counterclaims which are discovered in the course of discovery.

 

 

Wherefore, Defendant request that the Court deny the relief sought by plaintiff, and award Defendant court cost, and such other relief as this Court deems just and proper.

 

CERTIFICATE OF SERVICE

I certify that a copy of this document was mailed to                 . attorney for the Plaintiff,

 

 

Respectfully submitted,

 

 

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Read this recent FL case about account stated and try to incorporate it into your answer

 

https://scholar.google.com/scholar_case?case=9387537290273888492&q=

 

This is the relevant section:

Finally, even if H&K had established that Burt was the proper defendant, it failed to prove conclusively the amount in dispute. In order to establish a claim for account stated, H&K was required to prove that there was "`an agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions, and promising payment.'" Farley v. Chase Bank, U.S.A., N.A., 37 So. 3d 936, 937 (Fla. 4th DCA 2010) (quoting Martyn v. Amold, 18 So. 791, 793 (Fla. 1895)(citation omitted)). The agreement does not need to be explicit. When a debtor has been issued an account statement and the debtor fails to object in a reasonable time, it is presumed that the account is correct and the debtor is liable. Id. However, the failure to object only becomes an implied agreement when the plaintiff establishes that it had a practice of periodic billing in the regular course of dealing with the defendant. SeeF.D.I.C. v. Brodie, 602 So. 2d 1358, 1361 (Fla. 3d DCA 1992). By producing two bills from BOA addressed to Ms. Hosmer, H&K produced some evidence of a practice of periodic billing in the regular course of dealing. Yet, neither of those account statements indicate that the account holder owes BOA the amount set forth in H&K's complaint. 

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You may want to look at some of these Answers and Affirmative Defenses prepared by FL lawyers.  They are not debt collection cases, but they may give you guidance in terms of formatting, style and procedure.

 

 

https://www.google.com/search?sclient=psy-ab&site=&source=hp&q=florida+answer+and+affirmative+defenses&btnK=Google+Search#q=florida+answer+and+affirmative+defenses+

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Somehow, I can't access these sites.   Sometimes scribd has good stuff; sometimes not.

 

 

 

 

  • Sample Affirmative Defenses and counterclaim - Scribd
    https://www. scribd.com/.../Sample-Affirmative-Defenses-and-counterclai...
    •  
     
    May 7, 2013 - Answer,Counterclaim Foreclosure bank of America. ... DEBT COLLECTION PRACTICES ACT AND THE FLORIDA ACT On or about December.
  • 7547451 Answer Counterclaim - Scribd
    https://www. scribd.com/doc/242016450/7547451-Answer-Counterclaim
    •  
     
    Oct 6, 2014 - 7547451 Answer Counterclaim - Download as PDF File (.pdf), Text file (.txt) or read ... has standing to sue in Florida courts and demand strict proof. .... off debt to lawyers in the debt collection business for deep discounts.
  • Credit Card Sample Answer+Affirmative Defenses+ ... - Scribd
    https://www. scribd.com/.../Credit-Card-Sample-Answer-Affirmative-Defe...
    •  
     
    Nov 29, 2010 - recovery in this. action for failure to state a cause of action upon which relief can be granted. .... and/or supplement this Response and Counterclaim with additional ... Suite 900 Coral Springs, FL 33071 954-510-7840 NAF@hesskennedylaw.com ... Substantive Defenses to Consumer Debt Collection Suits t.
  • bank of america, foreclosure answer, affirmative ... - Scribd
    https://www. scribd.com/.../BANK-OF-AMERICA-FORECLOSURE-ANS...
    •  
     
    Jun 9, 2012 - ANSWER: Owners admit that BAC brings this action to foreclose on a Mortgage ..... that BAC was and is in the business of the collection of consumer debts, ... This Counterclaim arises out of a Loan induced by fraud by BAC fka CHL and .... Countrywide in the Jacksonville, Florida processing center between ...

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This claim is barred by the statute of limitations under F.S. 95-10, the borrowing statute. Defendant's credit card agreement contains a choice of law provision and pursuant to Delaware Code Ann. Tit. 10, §8106,  the time to file this lawsuit expired after three years of the date of alleged breach or last activity by the defendant.  In Ellis v. United Services Automobile Association, 909 So. 2d 593 (2005), the court held that, "Florida's borrowing statute precludes the maintenance of a cause of action that arose in another state if the action is barred by the statute of limitations that applies to actions in that state § 95.10, Fla. Stat. (1999)." In  Capital One Bank v. Pincus, 15 Fla. L. Weekly Supp. 1119d  (Fla. Palm Beach Co. Ct. 2008)   “Palm Beach County Court found that Virginia law controlled and the credit card agreement was an oral contract based on Virginia law. The opinion cited several similar Florida cases finding the choice of law provision in a cardholder agreement applies to a statute of limitations defense. “Midland Funding, LLC v. Sandra B., Capital One Bank v. Theresa C.

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If you are in Palm Beach county, you can cite that Capital One case.  If you are not, I would leave it out.  Another county court's decision would have no legal precedent in your county court.

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@debtzapper I was doing some reading and want to have multiple ways to attack this, the bills of sale do not have my name account number and have redacted information I was reading that I can still argue lack of standing if they don't accept the other states SOL, another thing is there are two bills of sale one JDB TO ANOTHER JDB.

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From my understanding they still haven't proved that they legally own the debt. Am I correct on this. On the bills of sale it clearly states they bought a pool of accounts, how can I be sure that mine was one ?

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Here is a sample one for Florida.  .  I think you should read this entire thread.  Although she lost in the end, most JDB's do not go to this extreme, and she has a lot of good case law, ideas, and everything that could happen in FL. probably did in her case.

http://www.creditinfocenter.com/community/topic/317665-pretrial-for-cach-llc-please-help/page-57#entry1253431

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