using Florida statute 559.715

[momofaharem]

Statute 559.715 states:  Assignment of consumer debts.—This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt. The assignee is a real party in interest and may bring an action to collect a debt that has been assigned to the assignee and is in default.

 

I received a summons on March 22, 2014 for pretrial conference.  This was the first notice I had that CACH LLC had bought a debt they allege I have.  Not only did they not give notice "as soon as practical" since they bought this debt on January 22, 2013, but they did not sent anything "at least 30 days before" the summons came.   I want to take this to mediation with me so I can use it to request they drop the case.  I have already send my answers to the court and the plantiff.  The paperwork they sent included a bill of sale and assignment and an affidavit.  But from all I have read, both of those really mean nothing and would be hearsay since the account number and name is not on the bill of sale.  It is on the affidavit but the person signing as having knowledge sign it in Decemeber of 2013 for a debt that was sold in January of 2013.  I would love to bring her in as a witness to see if she really knows this account.  Any advice as far as when I would bring up the statute that was not followed in mediation?  Thanks ahead.  I have had to learn a whole lot the last couple of weeks so if I am saying something wrong it is because I am on a huge learning curve.  But I really think I can beat this.
 

[Guest]

Statute 559.715 states:  Assignment of consumer debts.—This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment as soon as practical after the assignment is made, but at least 30 days before any action to collect the debt. The assignee is a real party in interest and may bring an action to collect a debt that has been assigned to the assignee and is in default.

 

I received a summons on March 22, 2014 for pretrial conference.  This was the first notice I had that CACH LLC had bought a debt they allege I have.  Not only did they not give notice "as soon as practical" since they bought this debt on January 22, 2013, but they did not sent anything "at least 30 days before" the summons came.   I want to take this to mediation with me so I can use it to request they drop the case.  I have already send my answers to the court and the plantiff.  The paperwork they sent included a bill of sale and assignment and an affidavit.  But from all I have read, both of those really mean nothing and would be hearsay since the account number and name is not on the bill of sale.  It is on the affidavit but the person signing as having knowledge sign it in Decemeber of 2013 for a debt that was sold in January of 2013.  I would love to bring her in as a witness to see if she really knows this account.  Any advice as far as when I would bring up the statute that was not followed in mediation?  Thanks ahead.  I have had to learn a whole lot the last couple of weeks so if I am saying something wrong it is because I am on a huge learning curve.  But I really think I can beat this.

 

 

Welcome MomofHarem. The statute you provided has been disputed quite a bit in Florida courts. I believe the problem is, most people read it to mean that the party who buys an alleged debt must give notice within 30 days of the purchase to the consumer. However, what the statute really says is, notice must be given 30 days before a lawsuit is filed. In this case, the word "action" refers to a legal action, and not the action of buying the alleged debt.  Here's a good write up on the subject by a Florida attorney:  http://www.avvo.com/legal-answers/debt-lawsuit--defense---notice-of-assignment-1036608.html

 

However, you still have plenty of defenses and issues you can raise. Is your case in Small Claims Court?  Please post the general demands of the complaint (leaving out personal details). There's a list of questions here:  http://www.creditinfocenter.com/community/topic/242744-qs-to-answer-when-posting-in-this-forum-please-read/ that will help us to help you.

 

A lot of great info has been discussed about CACH lately. You came to the right place

[momofaharem]

I thought that I posted these answers the other day but I see they are not up.  First the answers and then an update.

 

1. Who is the named plaintiff in the suit?  CACH LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Don't want to say in case they are on here looking!
3. How much are you being sued for?
$3500
4. Who is the original creditor? (if not the Plaintiff) Sears MC

5. How do you know you are being sued? (You were served, right?)
served
6. How were you served? (Mail, In person, Notice on door)
in person
7. Was the service legal as required by your state?  

yes - and the sheriff mentioned that it was another summons from those "scumbags" - smile

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? no correspondence.  The summons was our first correspondence from CACH LLC

9. What state and county do you live in?
Florida - Seminole Co
10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

11. What is the SOL on the debt? To find out: 
4 years
Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or   looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

 

Served summons.  Answers files with court and hand delivered to attorneys office.  Today was pre trial conference.  A trial date has been set for 4 months from now.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) no

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.  no

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? 

 

Already responded, had pretrial conference and now going to await a trial.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.

 

generic credit card agreement for Citibank since they were the last OC before CACH LLC.  No signed original agreement with Sears.

generic bill of sale

affidavit with what is probably a robosignature since it was signed a year after the original date of purchase

one CC statement with no activity except a late fee and interest charged

 

 

 

So...today was the pretrial conference.  The plantiff came right out with an offer to settle.  I said there was no settlement going to happen because I deny the debt.  She was VERY nervous and I could tell she was caught off guard (even though I had filed answers denying).  I told her that statute 559.715 was not followed since not only did they not send me a written notice that they were assigned the debt in a reasonable time but also did not at least 30 days prior to the summons.  She replied that 15 months is still reasonable time (which is how long ago CACH LLC bought it) and said it was irrelevant.  I know this is not true and it is relevant.  She said for me to "just wait until I get the discovery from them" and I said I don't fear that because they need to prove that this is my debt and that they legally own it and notified me of the assignment.  She just kept looking between the 2 papers she had in front of her trying to figure out what to say.  She was flustered the whole time.  

 

 

So now I am sure I will receive an interrogatory or a request for discovery at which time will will file my own.  I will be back on once I see what I receive to get more help.  I love this site and feel very empowered by it!  My friend who is a lawyer was at the courthouse and I talked to him afterwards.  He looked at all my stuff and said that now I should file for a dismissal with prejudice.  So I am on it!!! 

 

Any words of wisdom for me at this point?  

[momofaharem]

Do I wait until CACH sends me discovery or interrogatories before I file my own?  The lawyer threatened it in mediation but I haven't received anything yet.  My court date is in August which is a while away but if there is something I should be doing, then I want to do it.  Hoping for help with an answer!!!!

[Guest]

Hi MomofHarem,

 

Did you already file an Answer and your Motion to Dismiss?  I believe the Sears contracts have arbitration provisions, and that may be an option to consider for an alleged debt of this size. Re discovery, please note that Florida Small Claims Rules prohibit discovery with a pro se unless authorized by a court order - or unless you initiate it first. If they send discovery without a court order you can Motion to Strike their discovery requests. Please see Florida Small Claims Rule 7.020 b:

 

( b ) Discovery. Any party represented by an attorney is subject to 

discovery pursuant to Florida Rules of Civil Procedure 1.280–1.380 directed at 

said party, without order of court. If a party proceeding without an attorney directs 

discovery to a party represented by an attorney, the represented party may also use 

discovery pursuant to the above-mentioned rules without leave of court. When a 

party is unrepresented and has not initiated discovery pursuant to Florida Rules of 

Civil Procedure 1.280–1.380, the opposing party shall not be entitled to initiate 

such discovery without leave of court. However, the time for such discovery 

procedures may be prescribed by the court. 

 

Florida Small Claims Rules of Procedure:  http://www.floridabar.org/TFB/TFBResources.nsf/0/5E3D51AF15EE8DCD85256B29004BFA62/$FILE/Small%20Claims.pdf?OpenElement

[momofaharem]

I sent my answers  before we went to mediation.  I have not sent a motion to dismiss because I am unsure about if I can and when I would.  I was under the impression that if I filed an answer then I couldn't also file a motion to dismiss.   So are you saying that the lawyers threat of discovery during mediation was only that, a threat?  They have no right to send discovery?  Just want to be clear.  Then what would my next steps be?  I know they do not have the proof to back up their claims.  

[Guest]

You an file a Motion to Dismiss at any time. The attorney's threat may have been just a bluff, or she may not be aware of the rule I posted. I had an attorney initiate discovery against me in Small Claims in Florida who was apparently unaware of the rule, which is different from discovery rules in circuit court. I filed a Motion to Strike based on the Rule, and also filed a Motion for a Protective Order. However, in my case the Protective order was due to harassment and an over burdensome demand on top of the discovery.

 

At the hearing, the Judge Granted both of my Motions and denied their discovery, and stated that I properly cited the rule. It still can go the other way, if the Judge wants to grant them discovery - but they need to get a Court Order first for it to be legit. The only way they can initiate discovery first in FL small claims is under one of the following circumstances: 1) You are represented by an attorney 2) You initiate discovery first 3) By Court Order.

[momofaharem]

So, in that case, in seems to me that I just wait for the court date?  I want to prove the point that they don't have any evidence that proves the debt is theirs to collect nor that it is my debt nor that the amount is correct.  If I go ahead and file a Motion to Dismiss, on what grounds do I do that?  Which is better, to file that or wait for a court date where I will ask for their evidence?  

[Guest]

So, in that case, in seems to me that I just wait for the court date?  I want to prove the point that they don't have any evidence that proves the debt is theirs to collect nor that it is my debt nor that the amount is correct.  If I go ahead and file a Motion to Dismiss, on what grounds do I do that?  Which is better, to file that or wait for a court date where I will ask for their evidence?  

 

I do not know the reasons you have to file a Motion to Dismiss. Just claiming they don't have the records to support their claim won't be enough. If the claim is outside of the statute of limitations, that's a good place to start. If you are 100% certain they don't have the records to support their claim, then you can initiate discovery. However that gives them the opportunity to proceed with discovery, as well. That's a judgment call only you can make based on your knowledge of the alleged account.

 

I would not discount initiating arbitration here. The dollar amount is in the range where debt buyers do not like arbitration, because it forces them to pay costly arbitration fees. I consider this to be a strategic move. You'll have to weigh the pros and cons of arbitration (see our arbitration forum).  

 

I would visit your local Clerk of the Court, and look over a few dozen recent cases filed by CACH in your county court. Discount the Default Judgments, and look over what the Plaintiff did when people fought their case. If you can find cases with the same law firm or attorney suing you, even better. This will give you an idea of how your local courts view similar cases, and how far the same Plaintiff and/or attorney will go to fight a tough Defendant.

[momofaharem]

Great idea!  I will look into arbitration and definitely go look at some of the cases.  Thanks for answering me.  I will let you know what I found.

[momofaharem]

So in reading about arbitration, I see that in Florida, if you file an answer, which I did, then   you waive your right to arbitration.  So I guess that is not an option, unless someone has different info.  

 

So if I am receiving collection letters from other debtors (OC), should I go ahead and send my debt validation and request for arbitration?  I was thinking it might be better to wait until they sell to a JDB?  Would that be in my favor?

 

Anyone?

[Guest]

@momofaharem, I did not realize that filing an Answer waived your right to arbitration. Could you reference where you saw that? It would be helpful for me to know, as well.

 

Regarding your question about DVing the OC and request for arbitration with original creditors, I am hesitant to make a blanket statement. It would likely depend on the size of the alleged debt, who the OC is, where it stands in relation to SOL, etc. Personally, I'd generally wait until a JDB stepped in, unless I felt a lawsuit was about to be filed.

[momofaharem]

I found that info on arbitration on this site under arbitration.  I am in Florida and that is what it said for Florida. 

[Guest]

I found that info on arbitration on this site under arbitration.  I am in Florida and that is what it said for Florida. 

 

@momofaharem, I do not believe you have waived your right to arbitration. Please see this detailed explanation, with case law references:

 

http://www.justanswer.com/law/7e345-florida-law-re-implied-waiver-right-arbitrate-under.html

[debtzapper]

This is a 2012 case from the 11th Cir.  Read Section A about waiver of arbitration.

 

http://scholar.google.com/scholar_case?case=9218278900566850754&q=waive+right+to+arbitration&hl=en&as_sdt=4,10,121,325,326,327

[Guest]

This is a 2012 case from the 11th Cir.  Read Section A about waiver of arbitration.

 

http://scholar.google.com/scholar_case?case=9218278900566850754&q=waive+right+to+arbitration&hl=en&as_sdt=4,10,121,325,326,327

 

Hi @debtzapper. I don't believe the circumstances of this case is a fair analogy to momofaharem's case. The case you've referenced states:  "the parties had litigated two motions and the moving party had taken five depositions."  That is substantial litigation, and I would agree that invoking arbitration at that stage is untimely. In Momofaharem's case, she has only filed an Answer and is in Small Claims Court. if Arbitration is her preference, I think she can still invoke her rights in that regard.  Small claims court Judges like any reason to take another case off their dockets, and I think many Judges would look favorably on it.

 

@momofharem, please know I'm not pushing arbitration as your only course of action here. If the same set of facts in credit card debt cases go the distance through full adjudication in court, vs arbitration, consumers stand a better chance of winning in court. (the burden of proof is lower in arbitration) In addition, consumers preserve their appeal rights in court. The primary advantage in arbitration is a strategic one, particularly on small claims (ie. less than $5,000), where the Plaintiff is now faced with spending $5,000 or in some cases $10,000 on arbitration fees, plus their attorney's fees. The math just doesn't add up, and in many cases Plaintiff's facing arbitration drop their claim (especially JDB's who bought an account for pennies on the dollar), or offer a very reasonable settlement.

[Wins the Battle]

Google "Waiver of right to arbitration".

 

There are two separate circuit court decisions, both stating that that arb rights are not easily waived. In one, the party that brought the initial suit changed their mind and moved to arb; the circuit court allowed it.

 

Given that CACH waited 15 months from obtaining the debt to suing you, the only reason that either of the circuit courts deemed reasonable in deciding that arb rights have been waived isn't pertinent: the case where the removal to arb would unreasonably delay the decision for the party who had not chosen arb.

 

FL may say what it wants. But Federal case law, if you can cite it, trumps state case law.

 

I learned about these two cases too late to help me in MN. Maybe they can help you....

[BV80]

It follows that a party may waive his or her right to arbitration by filing a lawsuit without seeking arbitration, id.; by filing an answer to a pleading seeking affirmative relief without raising the right to arbitration. Bared & Co. v. Specialty Maint. & Constr., Inc., 610 So.2d 1, 3 (Fla. 2d DCA 1992).

Furthermore, once a party has waived the right to arbitration by active participation in a lawsuit, the party may not reclaim the arbitration right without the consent of his or her adversary. See Estate of Williams ex rel. Williams v. Manor Care of Dunedin, Inc., 923 So.2d 615, 616-17 (Fla. 2d DCA 2006); Bared & Co., 610 So.2d at 3.

Both the Third District and the Fifth District have unequivocally held that propounding discovery directed to the merits of pending litigation before moving to compel arbitration results in a waiver of the right to arbitration. See Olson Elec. Co. v. Winter Park Redevelopment Agency, 987 So.2d 178, 179 (Fla. 5th DCA 2008).


To be sure, "simply failing to assert arbitration as an affirmative defense does not constitute default of a right to arbitration." Dockeray v. Carnival Corp., 724 F. Supp. 2d 1216, 1222 (S.D.Fla. 2010) (citing Forrester v. Penn Lyon Homes, Inc., 553 F.3d 340, 343 (4th Cir.2009)).  Still, "not pleading arbitration in the answer can be used as evidence towards finding of waiver." Id at 1222.

[Guest]

@BV80, I think the cases you've cited generally rely on whether "substantial litigation" has ensued, ie. discovery. They also say if an Answer was filed without the Affirmative Defense of Arbitration, it may be waived. I thought this was an interesting discussion of the topic:  http://www.justanswer.com/law/7e345-florida-law-re-implied-waiver-right-arbitrate-under.html

 

I believe if a party recently filed an Answer (as in the Original Poster's case), but did not raise arbitration as an Affirmative Defense, they can file an Amended Answer raising Arbitration as an Affirmative Defense. Accompanying this would also have to be a Motion to Compel Arbitration. The worst that could happen is the Court could Deny her Motion, leaving the Defendant in their original position. Alternatively, the Court Grants the Motion, and Arbitration commences.  

 

By the way, you come up with these case references so spot on, I'm going to start to call you sensei!

[BV80]

@Determined1

 

 I think the cases you've cited generally rely on whether "substantial litigation" has ensued, ie. discovery. They also say if an Answer was filed without the Affirmative Defense of Arbitration, it may be waived.

 

 

That was my point.  I was just showing what both the FL state and federal courts have ruled on the issue.  While not including it as an affirmative defense does not absolutely waive the right to compel arbitration, such failure can be used as evidence of a waiver.   You want to know what argument the other party may raise.  

 

So far, all they have is that she didn't claim it as an affirmative defense, but that's not an absolute waiver.  The can't claim she has engaged in litigation by answering or requesting discovery, so how does the mere failure to raise arbitration as an affirmative defense evidence that she waived the right?

[debtzapper]

Although this is an Alabama case,  "Todd v.Discover Bank," the Alabama Court of Civil Appeals discusses how litigation must be "substantially invoked" in order for a party to waive arbitration, and the decision is made by the trial court on a case by case basis,  which seems to be how many courts handle this issue.

 

 

 

 

"`"It is well settled under Alabama law that a party may waive its right to arbitrate a dispute if it substantially invokes the 

litigation

 process and thereby substantially prejudices the party opposing 

arbitration

. Whether a party's participation in an action amounts to an enforceable waiver of its right to arbitrate depends on whether the participation bespeaks an intention to abandon the right in favor of the judicial process, 

and, if so, whether the opposing party would be prejudiced by a subsequent order requiring it to submit to 

arbitration

.

 No rigid rule exists for determining what constitutes a waiver of the right to arbitrate; the determination as to whether there has been a waiver must, instead, be based on the particular facts of each case."

"`

Companion Life Ins. Co. v. Whitesell Mfg., Inc.,

 670 So.2d 897, 899 (Ala. 1995)

 (citations omitted). The courts will not lightly infer a waiver of the right to compel 

arbitration

; thus, the burden on the party seeking to prove waiver is a heavy one.'

"

U.S. Pipe & Foundry Co. v. Curren,

 779 So.2d 1171, 1174 (Ala.2000)

(emphasis added). Additionally, as this Court has consistently noted: `[T]here is a presumption against a court's finding that a party has waived the right to compel 

arbitration

.' 

Eastern Dredging & Constr., Inc. v. Parliament House, L.L.C.,

 698 So.2d 102, 103 (Ala.1997)

. See also

Conseco Fin. Corp.-Alabama v. Salter,

 846 So.2d 1077, 1080 (Ala.2002)

(`We note that a presumption exists against a finding that a party has waived the right to compel 

arbitration

.'); 

Blue Ribbon Homes Super Ctr., Inc. v. Bell,

 821 So.2d 186, 191 (Ala.2001)

 (`We note that there is a presumption against finding that a party has waived the right to compel

arbitration

.'); 

Zedot Constr., Inc. v. Red Sullivan's Conditioned Air Servs., Inc.,

 947 So.2d 396, 399 (Ala. 2006)

; 

Blue Cross Blue Shield of Alabama v. Rigas,

 923 So.2d 1077, 1093 (Ala.2005)

; and 

Lee v. YES of Russellville, Inc.,

 784 So.2d 1022, 1028 (Ala. 2000)

.

"In order to demonstrate that the right to arbitrate a dispute has been waived, the party opposing 

arbitration

 must demonstrate 

both

 (1) that the party seeking 

arbitration

 substantially invoked the 

litigation

 process, and (2) that the party opposing 

arbitration

 would be 

substantially prejudiced

 by an order requiring it to submit to 

arbitration

. 

Curren,

 779 So.2d at 1174

; 

Companion Life Ins. Co. v. Whitesell Mfg., Inc.,

 670 So.2d 897, 899 (Ala.1995)

."

SouthTrust Bank v. Bowen, 959 So.2d 624, 632-33 (Ala.2006). In Bowen, the Alabama Supreme Court determined that, because "Bowen presented no evidence proving he would be substantially prejudiced, he has failed to meet his `heavy burden' in demonstrating that SouthTrust waived its right to arbitration." 959 So.2d at 63

[Guest]

@Determined1

 

 

That was my point.  I was just showing what both the FL state and federal courts have ruled on the issue.  While not including it as an affirmative defense does not absolutely waive the right to compel arbitration, such failure can be used as evidence of a waiver.   You want to know what argument the other party may raise.  

 

So far, all they have is that she didn't claim it as an affirmative defense, but that's not an absolute waiver.  The can't claim she has engaged in litigation by answering or requesting discovery, so how does the mere failure to raise arbitration as an affirmative defense evidence that she waived the right?

 

@BV80, I think I missed your point the first time around. My apologies, I think I need a  !