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Questions concerning statutes of limitations on FDCPA violations


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Just a couple questions!
 

1)  Can a suit be filed for violation of the venue provision of the FDCPA in a garnishment proceeding (within 1 year of learning of the garnishment) if it can be proven that venue was improper in the original proceeding as well? 

 

2)  When does the statute of limitations begin to run if a debt collector lies in their attempt to collect a debt?  For example, what if a debt collector files a sworn affidavit they are entitled to XX% pre-judgment interest by contract, but the contract itself does not allow for it?  The judge grants them the pre-judgment interest in a default judgment, and years later they collect on it despite the fact they were never entitled to it.  Does the statute of limitations reset when last payment is made on a debt that is not owed via garnishment, or is it 1 year from the date they lied to the court to obtain the judgment?

 

3)  Can a debt collector contact an employer in a garnishment proceeding, multiple times, for location information and disclose to the employer (via open fax so anyone can read it) that they have obtained a judgment and are attempting to collect a debt from this employee?  The garnishment proceedings do not even require them to know the location of the employee since if location is unknown, the statutes require service at the place of employment so there is no legal reason for a debt collector to even attempt to collect location information in a garnishment proceeding.

 

4)  Are proven and known mis-statements of fact in legal proceedings FDCPA violations?  Statements that are directly contradicted by the record in the case. 

 

Generic law question:
 

5)  If a judge orders an appearance at a pre-trial conference immediately after service of the summons and prior to the expiration of the time to file an answer in violation of the rules of civil procedure which state a pre-trial conference can't be held prior to expiration of the time for responsive pleadings, would that result in a void judgment for failure to follow procedural due process?

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Just a couple questions!

 

1)  Can a suit be filed for violation of the venue provision of the FDCPA in a garnishment proceeding (within 1 year of learning of the garnishment) if it can be proven that venue was improper in the original proceeding as well? 

 

2)  When does the statute of limitations begin to run if a debt collector lies in their attempt to collect a debt?  For example, what if a debt collector files a sworn affidavit they are entitled to XX% pre-judgment interest by contract, but the contract itself does not allow for it?  The judge grants them the pre-judgment interest in a default judgment, and years later they collect on it despite the fact they were never entitled to it.  Does the statute of limitations reset when last payment is made on a debt that is not owed via garnishment, or is it 1 year from the date they lied to the court to obtain the judgment?

 

3)  Can a debt collector contact an employer in a garnishment proceeding, multiple times, for location information and disclose to the employer (via open fax so anyone can read it) that they have obtained a judgment and are attempting to collect a debt from this employee?  The garnishment proceedings do not even require them to know the location of the employee since if location is unknown, the statutes require service at the place of employment so there is no legal reason for a debt collector to even attempt to collect location information in a garnishment proceeding.

 

4)  Are proven and known mis-statements of fact in legal proceedings FDCPA violations?  Statements that are directly contradicted by the record in the case. 

 

Generic law question:

 

5)  If a judge orders an appearance at a pre-trial conference immediately after service of the summons and prior to the expiration of the time to file an answer in violation of the rules of civil procedure which state a pre-trial conference can't be held prior to expiration of the time for responsive pleadings, would that result in a void judgment for failure to follow procedural due process?

 

1) My educated guess is no because the garnishment is a lawful action based on a judgment.  Considering that it is virtually impossible to get a judgment set aside after more than a year when it was obtained (even if deceptively) then the garnishment is going to be legal.

 

2)  The SOL runs for one year from the act violating the law.  It would not reset based upon payments made on a valid judgment or garnishment.

 

3)  This one is a stretch on a violation because judgments are public records and available to anyone.  Garnishment is not limited to only wages.  The creditor can skip trace the debtor for other means of collection.  They can communicate with an employer for location to ensure they are serving the correct employer.  There is significant expense to serving garnishment orders and it is prudent to verify before spending that money.

 

4)  No.  Statements made in court are protected and your recourse is to defend the case.

 

5)  WAY too complicated for a message board.

 

Your issues are so unclear on FCDPA you really should consult a consumer attorney experienced in these issues.

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1) My educated guess is no because the garnishment is a lawful action based on a judgment.  Considering that it is virtually impossible to get a judgment set aside after more than a year when it was obtained (even if deceptively) then the garnishment is going to be legal.

2)  The SOL runs for one year from the act violating the law.  It would not reset based upon payments made on a valid judgment or garnishment. 

3)  This one is a stretch on a violation because judgments are public records and available to anyone.  Garnishment is not limited to only wages.  The creditor can skip trace the debtor for other means of collection.  They can communicate with an employer for location to ensure they are serving the correct employer.  There is significant expense to serving garnishment orders and it is prudent to verify before spending that money.

 

4)  No.  Statements made in court are protected and your recourse is to defend the case.

 

5)  WAY too complicated for a message board.

 

 

 

 

1) There is valid case law that states that venue under the FDCPA can not be waived and that the judgment is void.  A void judgment can be overturned at any time, even after 1 year.

 

2) A currently valid judgment, but what happens if the judgment is overturned? What if the judgment is reversed *because* of their misstatements on a sworn affidavit.  Would the FDCPA violation start from the date it was overturned if the court does overturn it?  If any case of violation would be barred since it's a valid judgment, and a pre-requisite is overturning the judgment, then along that logic shouldn't the statute of limitations start to run the date that the judgment is overturned?  As FDCPA violations are based upon improper collection of the debt, my personal opinion which is worthless is that the statute runs from the date of infraction, and a payment in a garnishment proceeding would re-start the statute if it can be proven that the judgment was improperly obtained as its an improper collection of a debt, occurring on the date of payment collecting money they were legally not entitled to. 

 

3) They had already served the employer, there was no legal need to request location information from the employer about the employee.  People should be protected from someone sending open faxes to a person's employer stating that a specific employee has a judgment against them and they are attempting to collect a debt.  This has nothing to do with the garnishment proceeding itself, and employees not privy to the garnishment proceeding could see an open fax.  The law also prohibits them from seeking location information multiple times, of which, the record shows that they contacted multiple times without being given permission to contact more than once.  Ultimately it depends on whether or not violations of the act that occur post-judgment constitute violations.  I don't see why they would not.

 

4) Of course, but if the case is ongoing and if the statute of limitations is running that's a bad thing if any possible FDCPA suit is not timely filed.  So doesn't hurt to find out if it is an FDCPA violation :-)

 

5) Figured someone might know :-) Worth a shot lol.

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1) There is valid case law that states that venue under the FDCPA can not be waived and that the judgment is void.  A void judgment can be overturned at any time, even after 1 year.

 

2) A currently valid judgment, but what happens if the judgment is overturned? What if the judgment is reversed *because* of their misstatements on a sworn affidavit.  Would the FDCPA violation start from the date it was overturned if the court does overturn it?

 

3) They had already served the employer, there was no legal need to request location information from the employer about the employee.

 

4) Of course, but if the case is ongoing and if the statute of limitations is running that's a bad thing if any possible FDCPA suit is not timely filed.  So doesn't hurt to find out if it is an FDCPA violation :-)

 

5) Figured someone might know :-) Worth a shot lol.

 

1)  If the judgment was YEARS ago then the SOL for a FCDPA violation has passed.  While it MIGHT void the judgment until a court actually does it you are speculating that the case law will apply.

 

2)  My educated guess is that even if the judgment is vacated the SOL is still expired because the statements were made years ago.  Not to mention vacating the judgment means it never existed.

 

3)  I explained this to you before:  it is not illegal to skip trace the employee even though they are already being garnished.  They may have other legal reasons to contact the consumer.  Having a garnishment in effect does not mean that they cannot skip trace.  Plus, if the employer already knows about the garnishment then there isn't really anything new being revealed in the fax.

 

4)  The SOL is not running when a case is active.  The date the case is filed with the court STOPS the SOL in its tracks.  

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@graym

 

1)  If the judgment was YEARS ago then the SOL for a FCDPA violation has passed.  While it MIGHT void the judgment until a court actually does it you are speculating that the case law will apply.

 

 

When you get a chance, would you cite the case(s), please?

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@graym

 

Are you referring to Blakemore v. Pekay?

 

Yes, and Oglesby vs Rotche as well.  I don't think there is any valid case law for it in Florida.   Another citation is the FTC Commentary on the FDCPA venue provision.  It's not binding but courts are supposed to give the FTC findings weight and the commentary makes it clear they did not intend for venue to be accidentally waivable to the detriment of a consumer.  If a waiver must be provided directly to the debt collector, I don't see how any court could interpret that as something that can be accidentally waived by making an appearance or not immediately raising the objection.  Additionally, the wording of the FDCPA makes it clear by using absolute words such as only that just like in contract law, the venue provision is meant to be absolute and not merely permissive.  Meaning, it must be followed and no jurisdiction is acquired if it is not followed.  Ergo, a void judgment that can be overturned whenever.

 

FTC Commentary on the FDCPA:

 

Section 811—Legal Actions by Debt Collectors

Section 811 provides that a debt collector may sue a consumer only in the judicial district where the consumer resides or signed the contract sued upon, except that an action to enforce a security interest in real property which secures the obligation must be brought where the property is located.

 

1. Waiver. Any waiver by the consumer must be provided directly to the debt collector (not to the creditor in the contract establishing the debt), because the forum restriction applies to actions brought by the debt collector.

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Yes, and Oglesby vs Rotche as well.  I don't think there is any valid case law for it in Florida.   Another citation is the FTC Commentary on the FDCPA venue provision.  It's not binding but courts are supposed to give the FTC findings weight and the commentary makes it clear they did not intend for venue to be waivable unless it is to the benefit of the consumer. 

 

While the FL courts can consider those two opinions they are not bound by them and as you said the court can consider the FTC opinion but it too is not binding.

 

The problem you face is that FL courts are very pro-debtor and getting a judgment overturned is no easy feat.

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While the FL courts can consider those two opinions they are not bound by them and as you said the court can consider the FTC opinion but it too is not binding.

 

The problem you face is that FL courts are very pro-debtor and getting a judgment overturned is no easy feat.

 

My girlfriend is a woman scorned lol, she'll take her case to the Supreme Court of Florida if she needs to lol.  Worst case scenario she loses and she's in the same boat she was in at the start. 

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@graym

 

I couldn't find Oglesby.  As @Clydesmom stated, while the cases you cited might be persuasive, they're not binding on your courts.  Also, they're district court rulings and will not be as persuasive as a Circuit Court of Appeals ruling.

 

In regard to the garnishment, you might have something.  They have to follow your state's laws for garnishment.  If they weren't required to have the information they requested, they went beyond the law.   That, in itself, might not be a violation.  But the manner in which they did it, might be. 

 

Talk to an attorney.

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@graym

 

 

My girlfriend is a woman scorned lol, she'll take her case to the Supreme Court of Florida if she needs to lol.  Worst case scenario she loses and she's in the same boat she was in at the start. 

 

If she lost, she could also end up being responsible for the other party's court costs.  That would include filing fees, travel for a possible witness, etc.

 

It's even worse if one is found to have filed suit in bad faith and the intent to harass.  I doubt that would happen in her case, but this why an attorney should be contacted.

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@graym

 

 

 

If she lost, she could also end up being responsible for the other party's court costs.  That would include filing fees, travel for a possible witness, etc.

 

It's even worse if one is found to have filed suit in bad faith and the intent to harass.  I doubt that would happen in her case, but this why an attorney should be contacted.

 

Definitely, very good points but she hasn't decided on anything yet and would definitely contact an attorney first.  Her goal right now is simply to overturn the default judgment against her and worry about the rest later.

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@graym

 

1. Waiver. Any waiver by the consumer must be provided directly to the debt collector (not to the creditor in the contract establishing the debt), because the forum restriction applies to actions brought by the debt collector.

 

 

That actually doesn't support or discredit what you claim.  If a debt collector sues you, by answering the complaint and not raising the issue of venue, it's possible that a court might consider the answer to the complaint to be a waiver provided to the debt collector because it's in response to their lawsuit.

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@graym

 

I couldn't find Oglesby.  As @Clydesmom stated, while the cases you cited might be persuasive, they're not binding on your courts.  Also, they're district court rulings and will not be as persuasive as a Circuit Court of Appeals ruling.

 

In regard to the garnishment, you might have something.  They have to follow your state's laws for garnishment.  If they weren't required to have the information they requested, they went beyond the law.   That, in itself, might not be a violation.  But the manner in which they did it, might be. 

 

Talk to an attorney.

 

You find a reference to "Oglesby" at No.11

 

 

http://cdn.ca9.uscourts.gov/datastore/opinions/2012/08/01/10-16615.pdf

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@graym

 

 

That actually doesn't support or discredit what you claim.  If a debt collector sues you, by answering the complaint and not raising the issue of venue, it's possible that a court might consider the answer to the complaint to be a waiver provided to the debt collector because it's in response to their lawsuit.

 

Well, the only thing she can do is make the argument and try :) 

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  • 3 months later...

So to give an update, my girlfriend filed a Petition for Writ of Certiorari (2nd tier review) in the District Court.  The District Court accepted her petition and ordered briefing done, and briefing concluded a few months back.  The case is still awaiting a ruling, which, considering the complexity of the case, might take up to a year unfortunately.  I would put her chances at winning at 100% though, it's just a matter of waiting on the ruling.   The specific arguments raised were:

 

1) The Appellate Court erred by denying her Motion to Strike the Answer Brief of the JDB Lawyers.  The JDB's Answer Brief was entirely based upon introducing new evidence, which was referenced throughout the Brief.  She filed a Motion to Strike stating they could not introduce new evidence into an Appeal.  The JDB Lawyers responded stating that they were allowed to introduce new evidence based on the Florida Rules of Evidence for rebuttal evidence.  The Appellate Court denied her motion to strike.  This is a guaranteed 1000% reversal and might result in sanctions.

 

2) The Appellate Court denied due process by not allowing her to file a Reply Brief.  The same exact day that the Appellate Court ruled on her motion to strike (denying it with no explanation), it issued an Opinion and ended the Appeal.  A motion to Strike tolls the time for filing, so if the Court decided that the Motion to Strike should be denied, she still was entitled to file a Reply Brief as her time for filing one had not expired due to the motion to Strike tolling the time to file.   This is also a guaranteed 1000% reversal.  

 

3) The Appellate Court erred by not allowing her to supplement the record prior to issuing its Opinion.  She framed this into a subject-matter jurisdiction argument.  To explain as briefly as possible, the JDB lawyers did not send her any of the paperwork pertaining to the Garnishment.  They did not have her correct address, and all of their mail was being returned as undelivered.  After they obtained the Final Judgment of Garnishment, they then filed a notice of return mail pleadings stating that all of the documents in the entire proceeding had been returned as undelivered, and they are now sending them to the correct address.  The only thing she received were papers pertaining to the default judgment, and not what they said they sent.  Based on that, she filed a letter stating she had no knowledge of the case, was never served, did not live where the case was filed (We're talking opposite sides of Florida, hundreds of miles away) and cited the FDCPA venue provision.  She had a hearing and got railroaded, and she Appealed.  One of the issues raised at both levels by the JDB lawyers was that she obviously had notice of the case based on the garnishment proceedings.  This is untrue, but coincidentally the document proving this, the notice of return mail pleadings they filed, was not part of the record on appeal due to error by the Clerk of Court.  Since she never got to file a Reply Brief, she never got to address this and supplement the record on Appeal with the document proving it.  So, her argument in the Petition is that she was not given the opportunity to Supplement the Record, and advances the argument to state that due to failure to adhere to the statutes in the Garnishment proceeding, the trial court was without subject matter jurisdiction when the Order on Appeal was entered, as it occurred after the Final Judgment of Garnishment.  Additionally, she argued the Order was void based upon the trial court relying upon its own void proceedings (notice of the garnishment case) in denying her motion for Relief.   I would guess that the order on appeal is also void and would be overturned, but I have no idea to be honest and I think this answer will be the most interesting.

 

4) The Appellate court erred by applying the wrong standard of review.  One specific argument on appeal was that the venue provision of the FDCPA can not be waived.  Back in 2008 she unknowingly made an appearance in the case.  Long story short, she never received the summons, but she received a phone call from the debt collector and they led her to believe she would be arrested if she didn't meet with them.  She had her sister drive her 8 hours to meet with them, signing the document they put in front of her without knowing what she was signing, or receiving a copy of it based on fear of arrest. Not having received the summons, and not being in front of a judge, she thought she was simply meeting with the debt collector and had no idea this was in regards to a case.  It turns out the document she signed was a stipulation agreement.  She never filed anything, or contested the case in anyway, but they argued that because she appeared and signed the stipulation agreement, she waived all defects including her right to contest venue.  Her argument was that they weren't waived in these circumstances, and that under the FDCPA her right to a proper venue can not be waived.  The Appellate Court ruled by grouping all of her arguments together into one single explanation by stating motions for relief from Judgments are reviewed under an abuse of discretion standard and the trial courts actions did not rise to the level of an abuse of discretion to warrant reversal.  Which makes no sense, considering the Opinion didn't even address the arguments raised and you can't just group all arguments together like that.  Specifically, an argument relating to whether or not Venue can be waived under the FDCPA is an interpretation of a statute which is reviewed by an Appellate Court De Novo, not under an Abuse of Discretion standard.  So, she argued that they applied the wrong standard of review, and requested a dismissal of the case due to improper venue as part of the relief sought in the petition. 

 

The JDB lawyers didn't address any of the issues raised in the petition in their Response, instead they listed off a few straight pages of citations with no rhyme or reason and a conclusion at the end stating the District Court was being unconstitutional.  None of it makes any sense.  My personal opinion is that they simply didn't want to spend any additional time on this case, and just flung together a group of citations in 15-20 minutes just to get something filed.  Considering my girlfriend leveled some pretty serious allegations of fraud in her petition, not responding to it at all was not a good idea in my opinion.  She replied simply stating that since they chose not to address the merits of the petition, the court should consider it a concession on the issues, and grant all relief requested. 

 

It's been out awaiting a ruling for a few months now.  Additionally, since it's in the district court this will probably end up as a published opinion.  So, that's the update, and we'll see what happens :-)  In my opinion she has a 100% chance of winning, I just have no idea what type of relief will be granted as it could range anywhere from dismissing the entire case for lack of personal jurisdiction over the parties, to simply quashing the order denying her motion to strike and sending it back to the Appellate Court for now.  

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@graym

 

 

 

If she lost, she could also end up being responsible for the other party's court costs.  That would include filing fees, travel for a possible witness, etc.

 

It's even worse if one is found to have filed suit in bad faith and the intent to harass.  I doubt that would happen in her case, but this why an attorney should be contacted.

 

If she filed a new suit yes, but in her current case that's in the District Court, they filed a Satisfaction of Garnishment Judgment last year.  I doubt she will lose, but even if she did, I'm pretty sure the Satisfaction of Judgment would prevent them from being able to file anything else in the case, including a motion for costs.  However, if she wins, it would overturn the Final Judgment of Garnishment and the Satisfaction of Garnishment Judgment and she would be able to file a motion for restitution + interest + costs and she would have a valid abuse of process claim (separate suit) against them for their conduct in the garnishment proceedings.  Their risk here is astronomical, and her risk is non-existent.  Also, considering they live about a 12 hour drive away from the court, if anything results in them having to appear it's going to cost them a ton to either appear, or pay someone else to make an appearance for them which they can't recoup.

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It's been out awaiting a ruling for a few months now.  Additionally, since it's in the district court this will probably end up as a published opinion.  So, that's the update, and we'll see what happens :-)  In my opinion she has a 100% chance of winning, I just have no idea what type of relief will be granted as it could range anywhere from dismissing the entire case for lack of personal jurisdiction over the parties, to simply quashing the order denying her motion to strike and sending it back to the Appellate Court for now.  

 

First NOTHING and I repeat NOTHING is 100% guaranteed when it comes to appellate court decisions and you are grossly over estimating he chances at success.  I read what you posted and while YOU believe the court erred it does not appear they did.   You got out lawyered on this one.  FL rules of evidence DO allow new evidence in rebuttal of appeals.  The MTS was appropriate and she made a grave error by only filing the MTS instead of both the rebuttal and the MTS.  The court determines which standard to use NOT the appellee.  

 

Your opinion is she is guaranteed a win.  If I had a nickel for every person on these forums that made that declaration then came back complaining about the "unfair" courts and corrupt justice system when their 100% guaranteed win was an epic fail I could retire today.  I think she gets steam rolled on this one.

 

I doubt she will lose, but even if she did, I'm pretty sure the Satisfaction of Judgment would prevent them from being able to file anything else in the case, including a motion for costs.  However, if she wins, it would overturn the Final Judgment of Garnishment and the Satisfaction of Garnishment Judgment and she would be able to file a motion for restitution + interest + costs and she would have a valid abuse of process claim (separate suit) against them for their conduct in the garnishment proceedings.  Their risk here is astronomical, and her risk is non-existent.  Also, considering they live about a 12 hour drive away from the court, if anything results in them having to appear it's going to cost them a ton to either appear, or pay someone else to make an appearance for them which they can't recoup.

 

You are SO wrong.  The opposing counsel can motion the appellate court for costs associated with a frivolous appeal and get a whole new garnishment.  This is why you do not make an attempt like this without knowing what the costs are.  They can also simply sue her for those costs as well in a whole brand new case.  It may cost them a ton but if they prevail on showing the court that she filed in bad faith and frivolously SHE will be paying those costs. 

 

Their risk here is NOTHING and hers is astronomical.  Just ask the guy who owes $37k to a law firm and debt collector for his frivolous federal case that was ruled filed in bad faith and to harass.  

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First NOTHING and I repeat NOTHING is 100% guaranteed when it comes to appellate court decisions and you are grossly over estimating he chances at success.  I read what you posted and while YOU believe the court erred it does not appear they did.   You got out lawyered on this one.  FL rules of evidence DO allow new evidence in rebuttal of appeals.  The MTS was appropriate and she made a grave error by only filing the MTS instead of both the rebuttal and the MTS.  The court determines which standard to use NOT the appellee.  

 

Your opinion is she is guaranteed a win.  If I had a nickel for every person on these forums that made that declaration then came back complaining about the "unfair" courts and corrupt justice system when their 100% guaranteed win was an epic fail I could retire today.  I think she gets steam rolled on this one.

 
 

 

You are SO wrong.  The opposing counsel can motion the appellate court for costs associated with a frivolous appeal and get a whole new garnishment.  This is why you do not make an attempt like this without knowing what the costs are.  They can also simply sue her for those costs as well in a whole brand new case.  It may cost them a ton but if they prevail on showing the court that she filed in bad faith and frivolously SHE will be paying those costs. 

 

Their risk here is NOTHING and hers is astronomical.  Just ask the guy who owes $37k to a law firm and debt collector for his frivolous federal case that was ruled filed in bad faith and to harass.  

 

I think your simply taking an opposing stance just to argue here.  These issues have an overwhelming amount of binding precedent in her favor and the Garnishment Judgment is void, based on the record, by statute.  Before a court orders briefing on an original jurisdiction petition, someone has to read it and note if there is a preliminary basis for relief in the petition itself.  Otherwise, the court would simply dismiss the petition which happens frequently.  Additionally, it's been out for a few months now which also suggests it clearly has merit.  I stand by my assertion that her odds of winning are 100%, even moreso based upon the fact the opposing side never addressed the merits of the petition.

 

I'm not quite sure why you think that new evidence can be introduced into an Appeal.  Maybe in other states, but not in Florida and certainly not based on the rules of evidence which don't even apply to Appeals.  Even attempting to introduce new evidence can result in sanctions in Florida.  Nor do I understand why you would file a Reply brief to a Brief that you are attempting to strike.  That's a rather significant waste of resources because if the Brief does get stricken, your reply brief would also need to be re-written.  Hence, motions toll time so you're not forced to respond while waiting for a ruling on the motion.  If the motion to strike is granted, they would inform them when their new brief is due or if it is denied, they would then inform you when your reply brief is due.  That's how it's supposed to work.  Not motion to strike is denied, here's the ruling. 

 

Florida statutes are also quite clear on garnishment.  If the notice to defendant is returned as undelivered, you are supposed to mail the documents to the defendant at their place of employment and file a certificate of service with the court.  The entire point is that someone is supposed to receive actual notice of the proceedings so that they have a chance to defend themselves, especially in the case of a garnishment which is quite punitive in nature. Logically if you don't know where the defendant lives, you obviously know where they are employed and can receive the documents.  The statute makes perfect sense.  Since a court's subject-matter jurisdiction derives SOLELY from statutes in a statutory proceeding, the court has absolutely no leeway to not follow the statutes, especially regarding notice.  The statutes are either followed, or they aren't, and a simple inspection of the record in her case shows that they were not followed and thus it's a void judgment of garnishment.  In her case it appears they spent months trying to find her new address, including contacting her employer multiple times for her address, instead of just following the statutes and mailing it to her at her place of employment.  I can't think of any explanation for why they would continue to mail documents to an address they knew was being returned as undelivered or for their statements to the court implying she was receiving the documents and not responding knowing full well how misleading that was due to the fact they knew she had not received the documents.    She addressed this in her petition and they chose not to respond to it.  The shocking part to me is that their firm has handled hundreds of garnishments, if not thousands, and they specifically filed a notice of compliance with the court pertaining to THIS EXACT STATUTE, so it's kind of impossible to explain their actions.

 

77.041  Notice to individual defendant for claim of exemption from garnishment; procedure for hearing.--

 

(2)  The plaintiff must mail, by first class, a copy of the writ of garnishment, a copy of the motion for writ of garnishment, and, if the defendant is an individual, the "Notice to Defendant" to the defendant's last known address within 5 business days after the writ is issued or 3 business days after the writ is served on the garnishee, whichever is later. However, if such documents are returned as undeliverable by the post office, or if the last known address is not discoverable after diligent search, the plaintiff must mail, by first class, the documents to the defendant at the defendant's place of employment. The plaintiff shall file in the proceeding a certificate of such service.

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Additionally, it's been out for a few months now which also suggests it clearly has merit.  I stand by my assertion that her odds of winning are 100%, even more so based upon the fact the opposing side never addressed the merits of the petition.

 

Clearly you have no clue about appellate courts.  How long the court takes to render a decision has ZERO predictability on the merits of the issue.  For crayon petitions that are spurious the court may render a quick decision based on their clerk highlighting that for the justices.  Most appeals take at least 6 months and can go well over a year and it has no reflection on the merits or the chances of success of the appellee.

 

YOU assert they did not address the merits.  However, YOU don't get to make that call the appellate court DOES.  What they responded with may very well address your girlfriend's petition in ways I am certain you never considered.

 

I think your simply taking an opposing stance just to argue here.  

 

No.  I have read enough of your delusional posts I am adding common sense to it so that hopefully someone else in a similar situation does not follow your steps thinking it is a good idea and a slam dunk.  Especially the part where you are practicing law without a license by representing your GF and doing all this work filing petitions and motions for her.

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Clearly you have no clue about appellate courts.  How long the court takes to render a decision has ZERO predictability on the merits of the issue.  For crayon petitions that are spurious the court may render a quick decision based on their clerk highlighting that for the justices.  Most appeals take at least 6 months and can go well over a year and it has no reflection on the merits or the chances of success of the appellee.

 

YOU assert they did not address the merits.  However, YOU don't get to make that call the appellate court DOES.  What they responded with may very well address your girlfriend's petition in ways I am certain you never considered.

 

 

No.  I have read enough of your delusional posts I am adding common sense to it so that hopefully someone else in a similar situation does not follow your steps thinking it is a good idea and a slam dunk.  Especially the part where you are practicing law without a license by representing your GF and doing all this work filing petitions and motions for her.

 

It's not an Appeal, it's a Petition.  There's a very big difference there.  Petitions are discretionary so yes accepting the petition for briefing is a big deal.  I am stating they did not address the merits because they didn't.  A motion for costs is not filed with the Appellate Court and the trial court loses Jurisdiction after a Satisfaction of Judgment.  Left-field assertion that I'm practicing law?  It's not my case and I'm nothing except an observer.   Everything you are posting is 100% wrong and I'm not quite sure what the purpose of your posts are.  

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I generally feel like you must be trolling Clydesmom, but I'll address the points anyway.

 

First NOTHING and I repeat NOTHING is 100% guaranteed when it comes to appellate court decisions and you are grossly over estimating he chances at success.  I read what you posted and while YOU believe the court erred it does not appear they did.   You got out lawyered on this one.  FL rules of evidence DO allow new evidence in rebuttal of appeals.

 

 

 

 

Florida Rules of Evidence do not allow new evidence in Appeals.  I have no idea where you got that from, as it's contrary to the basic premise of the Appeal.  The controlling case law is

 

Altchiler v. State of Florida Department of Professional Regulation, Division of Professions, Board of Dentistry, 442 So.2d 349 (Fla. 1st DCA 1983) which states: 

 

"That an appellate court may not consider matters outside the record is so elemental there is no excuse for an attorney to attempt to bring such matters before the court." 

 

That makes it pretty clear, and there is case law of lawyers being sanctioned specifically for doing just that - introducing new evidence into an appeal. 

 

The MTS was appropriate and she made a grave error by only filing the MTS instead of both the rebuttal and the MTS.

 

 

No, she did not make an error.  The court made an error by not following the Rules of Appellate Procedure.  The relevant sections are: 

 

Rule 9.300 MOTIONS ( b ) Effect on Proceedings.

Except as prescribed by subdivision (d) of this rule, service of a motion shall toll the time schedule of any proceeding in the court until disposition of the motion. An order granting an extension of time for any act shall automatically extend the time for all other acts that bear a time relation to it. An order granting an extension of time for preparation of the record, or the index to the record, or for filing of the transcript of proceedings, shall extend automatically, for a like period, the time for service of appellant's initial brief. A conformed copy of an order extending time shall be transmitted forthwith to the clerk of the lower tribunal until the record has been transmitted to the court.

 

(d) Motions Not Tolling Time.

(1) Motions for post-trial release, rule 9.140(g).

(2) Motions for stay pending appeal, rule 9.310.

(3) Motions relating to oral argument, rule 9.320.

(4) Motions relating to joinder and substitution of parties, rule 9.360.

(5) Motions relating to amicus curiae, rule 9.370.

(6) Motions relating to attorneys' fees on appeal, rule 9.400.

(7) Motions relating to service, rule 9.420.

(8) Motions relating to admission or withdrawal of attorneys, rule 9.440.

(9) Motions relating to expediting the appeal.

(10) All motions filed in the supreme court, unless accompanied by a separate request to toll time.

 

Since the motion to strike is not listed under section (d), it tolls the time for filing meaning the clock stops.  The right to file a reply brief is afforded here: 

 

9.210 Briefs

In addition to briefs on jurisdiction under rule 9.120(d), the only briefs permitted to be filed by the parties in any one proceeding are the initial brief, the answer brief, a reply brief, and a cross-reply brief.

 

(f) Times for Service of Briefs.

The times for serving jurisdiction and initial briefs are prescribed by rules 9.110, 9.120, 9.130, and 9.140. Unless otherwise required, the answer brief shall be served within 20 days after service of the initial brief; the reply brief, if any, shall be served within 20 days after service of the answer brief; and the cross-reply brief, if any, shall be served within 20 days thereafter.

 

The Rules afford her the right to file a Reply Brief, and she has 20 days to file after service of the answer brief.  In accordance with the rules concerning motions, her motion to strike stopped the clock.  Therefore, after disposition of the motion in accordance with the rules of appellate procedure, that's when her clock to file the Reply Brief starts again.  Following the Rules of Appellate procedure is not a discretionary matter for a court, and it wasn't a mistake for her to not prematurely file a brief because she expected the court to follow the Rules of Appellate Procedure.  That is her right, and it's also her right to file a Petition to review the matter. 

 

The court determines which standard to use NOT the appellee.

 

 

This is incorrect as well.  It is not the court that determines which standard of review to apply, it is case law and binding precedent that does.  An Appellate Court doesn't get to just choose which standard of review to apply, they have to apply the CORRECT standard of review.   Her argument was that the venue provision of the FDCPA can not be waived.  That is an interpretation of a statute/law.  The governing case is:

  "Appellate Courts have de novo review of the trial court's interpretation of law."  Roshkind v. Machiela  45 So.3d 480 (Fla. 2nd DCA 2010).    

 

The court can certainly disagree with the standard of review you provide, but they have no leeway in WHICH standard of review to apply as you claim.  They can only apply the correct standard of review, it is not a discretionary matter for the court.

 

You are SO wrong.

 

 

If you say so, it must be true.

 

The opposing counsel can motion the appellate court for costs associated with a frivolous appeal and get a whole new garnishment.  This is why you do not make an attempt like this without knowing what the costs are.

 

Incorrect again.  Florida Rules of Appellate Procedure 9.400(a) governs.

 

Rule 9.400 Costs and Attorneys Fees  (a) Costs.

Costs shall be taxed in favor of the prevailing party unless the court orders otherwise. Taxable costs shall include

(1) fees for filing and service of process; (2) charges for preparation of the record; (3) bond premiums; and (4) other costs permitted by law.

Costs shall be taxed by the lower tribunal on motion served within 30 days after issuance of the mandate.

 

You can only file a motion for costs in the lower tribunal (the trial court), within 30 days after issuance of the mandate.  You do not file the motion for costs with the Appellate Court. 

 

 

They can also simply sue her for those costs as well in a whole brand new case.  It may cost them a ton but if they prevail on showing the court that she filed in bad faith and frivolously SHE will be paying those costs.

 

 

This is correct to a very small degree and not particular relevant to her case.

 

Rule 9.400 Costs and Attorneys Fees

( b )Attorneys' Fees.

With the exception of motions filed pursuant to rule 9.410( b ), a motion for attorneys' fees may be served not later than the time for service of the reply brief and shall state the grounds on which recovery is sought. The assessment of attorneys' fees may be remanded to the lower tribunal. If attorneys' fees are assessed by the court, the lower tribunal may enforce payment.

 

In Florida, a Motion for Attorney's fees must be filed in the Appellate Court prior to the time your final Brief is due or the matter is waived. In her case, they waived any right to Attorney's fees by not timely filing the motion so there is no risk to her at all.  They would be eligible for costs on Appeal, but in Florida the Appellant/Petitioner bears all taxable costs in an Appeal so they have no costs they would be entitled to.   Further, since a Satisfaction of Judgment was filed the trial court has no jurisdiction of the case if they end up prevailing.  Even if they wanted to file a Motion for Costs, they wouldn't be able to.  They *could* sue her in a new case for costs, but considering they have no costs, and waived any right to Attorney's fees, there is zero risk there either. 

 

Their risk here is NOTHING and hers is astronomical.  Just ask the guy who owes $37k to a law firm and debt collector for his frivolous federal case that was ruled filed in bad faith and to harass.

 

It's the other way around.  Her risk is nothing right now, and their risk is astronomical in this matter.  Each case is different, and while I don't doubt that someone on these forums ended up owing $37k for filing a frivolous case, that's not exactly relevant here.  The Petition is discretionary for the court, it's clearly not frivolous otherwise it would've been dismissed.  She bore all costs of the Appellate proceedings, they waived any chance at Attorney's fees, and a Satisfaction of Judgment has already been filed.

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@graym

 

Here are your statements:

 

 

I'm not quite sure why you think that new evidence can be introduced into an Appeal.

 

 

Florida Rules of Evidence do not allow new evidence in Appeals

 

 

 

And then:

 

It's not an Appeal, it's a Petition.  There's a very big difference there.

 

 

 You can recognize my confusion.  You reference an "appeal", then say this is not an appeal.

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