300turbozx

Being sued by Midland Funding llc in Florida

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@300turbozx

 

I would deny allegation #2 because Midland is not a bank.

 

Normally, a JDB claims they purchased and own the account.  That's the type of allegation that alleges their standing to sue.  Since Midland failed to allege that they own the account, they haven't even alleged (made a claim) that they have standing to sue. 

 

As a result, you might would be able to file a motion to dismiss in lieu of an answer, BUT they'd probably either move to amend their complaint or just refile.

 

Hopefully some others will chime in here.

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@300turbozx

 

If it were me, I'd flat out deny it.  BUT, leaving it like you have it doesn't hurt anything because your response still denies the allegation.  So, you're ok.

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@300turbozx

 

I think we need some more opinions.   It would be a waste of time if Midland merely got to amend their complaint or refile.

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so to recap, I am sending this answer tomorrow. so i need as much advice as i can get. Should i send this and a motion to dismiss, And also submit a request for production ?

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@300turbozx

 

If it were me, I'd flat out deny it.  BUT, leaving it like you have it doesn't hurt anything because your response still denies the allegation.  So, you're ok.

 

In FSU Girl's 80 pg thread,  wasn't CACH allowed to amend its complaint because it didn't properly plead assignment?  My hunch is they will just amend their complaint.  I think Nascar said once FL courts are rather creditor-friendly.

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@debtzapper

 

In FSUgirl's case, Cach alleged that they purchased the account and was the rightful owner.  It must have been someone else.

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ok awesome not, that i dont take your word BV80 i just want a few more opinions, but thank you so much, i hope someone chimes in about allegation number 2

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@300turbozx

As a result, you might would be able to file a motion to dismiss in lieu of an answer, BUT they'd probably either move to amend their complaint or just refile.

 

Hopefully some others will chime in here.

 

Simple procedural things like this aren't worth filing a MTD over as the issue is easy to fix and it ends up being a waste of time. If there was something like a certain document being required to be filed with the complaint, then it's worth while to make the challenge.

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Probably not much. You'll want to start looking into discovery and send some requests off to Midland.

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Midland Funding, LLC,                                                                                    IN THE COUNTY COURT IN AND FOR     

                             Plaintiff                                                                                 , FLORIDA 

                                                                                                                          

-Vs. -                                                                                                                    COUNTY CIVIL DIVISION

 

                                                                                                                           Case No: 

 

                             Defendant                                            

                                                  

Request for Production

Defendant request that Plaintiff Midland Funding LLC, produce the following documents in connection with this matter. If objection is made, please state the reason for the objection. If denying the matter please set forth in detail the reasons why the answering party cannot produce such documentation.

 

1.      Please produce any credit application signed by Defendant.

2.      Please produce a copy of the executed contract in Midland Funding LLC possession setting forth the terms Defendant is alleged to have agreed to in connection with the card at the beginning.

3.      Please produce a copy of any modifications to those terms specifically agreed to by Defendant.

4.      Please produce a copy of all statements from the beginning of time to present.

5.      Please produce detail regarding alleged charges by amount, type and date.

6.      Please produce evidence of all payments received.

 

1/7/2014

 

 

Defendant

 

cc. Pollack and Rosen 

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The rules for discovery are in Florida's Rules of Civil Procedure, starting at Section 1.280: http://phonl.com/fl_law/rules/frcp/frcp1280.htm

 

Production of Documents is in section 1.350: http://phonl.com/fl_law/rules/frcp/frcp1280.htm

 

Here a sample from Florida that's a few years old (note, it's a mortgage case so not all the requests make sense): http://www.nazarethlegal.com/userfiles/file/Request%20For%20Production%20of%20Documents.pdf

 

Things to ask for; Complete Bill of Sale including the forward flow agreement, chain of title documents assuming the account has been sold more than once, copies of billing statements from first bill to now, a list of witnesses that they plan to use at trial, a complete copy of the relevant card holder agreement(s). Also any documents referenced with the complaint that have not been supplied. 

 

Some people like to put a preamble with definitions, I found a good one recently. It's for Illinois and a mortgage case but there's still some relevant things, it starts on page 38: http://www.edcombs.com/wp-content/uploads/2013/05/dae-cmc-foreclosure-defense.pdf

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is the draft that i have good, or should i add more, also do i need to send the answer to the lawyer certified or can it just be sent regular mail. Is the certified mail just for reassurance 

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