300turbozx

Being sued by Midland Funding llc in Florida

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Generally you'd deny most everything except your name and where you live, but it depends on your particular set of circumstances. Just remember that they have to prove their case and very often these debt buyers don't have the paperwork to prove their case.

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@LawKitty

 

I should have added this question to my previous post.  Sorry.

 

If there is case law in state courts that shows that conduct (charges and payments) can IMPLY a contract, how would you apply the response in #11?

I'd still include it even though it might get struck down in court. As far as Unjust Enrichment goes, one could also argue that it wasn't the JDB that conferred the benefit as the JDB did not loan or advance any money to anyone. Then attack the assignment as that seems to be where most of the weaknesses are.

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i will send it to you as soons as its done 

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I am using just about everything you have except removing the lawyer parts and and the usury. Can i use the unjust enrichment and affermative defenses on mine ?

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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 paragraphs 2 for jurisdictional purposes only.

2.           Defendant denies paragraphs 3,5,6,9,10,11,13,14,15,16,17 and demands strict proof thereof

3.           Defendant states that paragraph 1,4,7,8 and 12 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.

7.            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.

8.             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

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

10.          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.

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

12.          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

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

14.          The Defendant never agreed to the resulting balance for the alleged debt.

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

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this is what i have so far i need to change the para numbers to match those of mine. But can some one critque it and let me know if something should be changed 

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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.     {C}       Defendant admits paragraphs 3 for jurisdictional purposes only.

2.     {C}       Defendant denies paragraphs 6,9,10,11,13,14,15,16,17 and demands strict proof thereof

3.     {C}       Defendant states that paragraph 1, 2, 4,5,7,8 and 12 are without knowledge and therefore denies demanding strict proof thereof.

4.     {C}       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.     {C}       Plaintiff has failed to comply with all conditions precedent.

6.     {C}       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.

7.     {C}       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.

8.     {C}         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

9.     {C}         Plaintiff fails to allege facts to state a cause of actions for Unjust Enrichment.

10.                  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.

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

12.                  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

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

14.                  The Defendant never agreed to the resulting balance for the alleged debt.

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

 

 

State Forum Selection Clause

16.                             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. Bu 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

17.                      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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Ok everyone this is what i have so far thanks to law kitty and all of your guys and gals help here. I would like to send this today. i am not sure which para's i should deny and i should put without knowledge of. Please cirtique and let me know what yall think.

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@300turbozx In #1 change paragraphs to paragraph.

 

#3 is confusing. It needs to be reworded to something like:  Defendant is without knowledge of paragraphs 1, 2, 4,5,7,8 and 12  and therefore denies demanding strict proof thereof.

 

In #16, in the second sentence you have Bu instead of By.

 

Looks pretty solid otherwise. I'm going to check through the complaint again to see if I have any other suggestions.

 

Edit: Definitely deny #8. #6 likely belongs in the without knowledge category.

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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.     {C}       Defendant admits paragraph 3 for jurisdictional purposes only.

 

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

 

3.     {C}       Defendant is without knowledge of paragraphs 1,2 and 6  therefore denies demanding strict proof thereof.

4.     {C}       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.     {C}       Plaintiff has failed to comply with all conditions precedent.

 

6.     {C}       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.

 

7.     {C}       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.

 

8.     {C}         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

 

9.     {C}         Plaintiff fails to allege facts to state a cause of actions for Unjust Enrichment.

 

10.                  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.

 

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

 

12.                  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

 

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

 

14.                  The Defendant never agreed to the resulting balance for the alleged debt.

 

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

 

 

 

State Forum Selection Clause

 

16.                             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

 

17.                      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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I would add as one of your affirmative defenses that the Plaintiff lacks standing.

 

also 14.    The Defendant never agreed to the resulting balance for the alleged debt.

 

while aggreeing to a balance is part of account stated, it looks like you are admitting the debt, but disagreeing with the balance.  I would reword this and include elements like Defendant never entered into a contract with plaintiff (you didnt enter into anything with midland), defendant never agreed to any balance of any alleged debt with xxxx, etc.  Make it sound more like there was no account to start with, instead of there is one, but I don't agree.

 

after you answer, get a production of document requests together and send it off, you don't have to wait.

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after you answer, get a production of document requests together and send it off, you don't have to wait.

 

This, you need to initiate discovery and I agree with @shellieh98 start with production of documents. If you can't come up with a list of requests, we'll be more than happy to make suggestions. Any document referenced in the complaint and supporting documents is a good place to start. Your goal to try and flush out all of their evidence.

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@shellieh98 are you saying you dont agree with sending a request for production or just not to send it together. I am rewording it now and will post up the revised response after its done. Thanks again you guys!!! and gals!!!

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@300turbozx

 

Did Midland include a list of definitions with the complaint?

 

For instance, is there a description or definition where they indicate that "plaintiff" refers to both the OC and Midland?

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@300turbozx

 

@LawKitty

 

@debtzapper

 

@Spikey

 

@shellieh98

 

If that's all there is,  Midland did not indicate that "plaintiff" means Chase AND Midland.  In fact, they refer separately to Chase Bank.

 

Notice allegation #2.  Since when did Midland become a national banking association?

 

Also, there is no allegation that Midland purchased and owns the account.

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@300turbozx

 

Last time I checked, Midland isn't a national banking association.  We also need to find out what to do about the fact that Midland didn't allege they purchased the and own or were assigned account. 

 

The attorney who drafted that complaint is careless or lazy or both.

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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.     {C}       Defendant admits paragraph 3 for jurisdictional purposes only.

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

3.     {C}       Defendant states that paragraph 1, 2 and 6 are without knowledge and therefore denies demanding strict proof thereof.

4.     {C}       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.     {C}       Plaintiff has failed to comply with all conditions precedent.

6.     {C}       Plaintiff lacks standing.

7.     {C}       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.     {C}       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.     {C}       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.             

 

 

State Forum Selection Clause

17.                             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

18.                      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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Ok this is the revised version, with the changes recommended by @shellieh98, BV80 what do you think i should about allegation number 2 

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