sinfulcolors

Being sued by Portfolio Recovery 4 yr. SOL expired

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I think we are missing the biggest part and that is what makes a written contract a written contract.  I got this from the Florida Bar: 

 

Contract Valid in Florida:

Offer, Acceptance, and Mutual Consent

Every contract must include a specific offer and acceptance, and it must be consented to by both parties of their free will. Neither party can be coerced or forced to sign the contract, and both parties must agree to the same terms.

Consideration

There must be something of value exchanged between the parties. The thing of value may be money or services, but both parties must give something (otherwise, it is a gift, not a contract).

Sound Mind

Both parties must be of "sound mind." This definition requires that neither party be a minor, both must be sober (not under the influence of drugs or alcohol when signing the contract), and neither can be mentally deficient.

Legal Purpose

The contract must be for a legal purpose. It cannot be for something illegal, like a selling drugs or prostitution.

 

Signatures are required on a written contract. Also, I found some this:

 

If evidence of liability is partially in writing but the writings are incomplete to establish liability, then the contract is regarded as oral for statute of limitations purposes. See ARDC Corporation v. Hogan, 656 So. 2d 1371 (Fla. 4th DCA 1995)

 

(“(i)n order that a contract be founded upon a written instrument, the instrument must contain a contract to do the thing for the nonperformance of which the action is brought.”); Ball v. Roney, 112 Fla. 186, 150 So. 240 (1933); Schrank v. Pearlman, 683 So. 2d 559 (Fla. 3d DCA 1996), rev. den. 691 So. 2d 1081 (Fla. 1997).

 

So a statement is missing a few pieces to be considered a written contract:  1. It doesn't include signatures. 2. It doesn't say what will happen if payment is not received. 

 

I didn't miss this, all I'm saying is that it is possible for a 5 year SOL to be applied.  Which is why you need to add all of this into your argument supporting a 4 year SOL for Account Stated.  That way all bases are covered and they can't try to wiggle out by stating it's a written contact with a 5 year SOL.   Additionally, it establishes the fact that you made the argument against it being considered a written contract and thus could raise it later on Appeal.   If you don't add this in, they will certainly try to claim it is a written contract and the court may rule against you and you might screw your chances of Appealing on this issue if you never argued against it being a written contract.

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@graym

I see what you are trying to say, and I know that there are lawyers out there that would try to make that arguement.  But what your law says is there is a 5 year contract on written instrument.  So what defines a written instrument?  THE UCC (uniform commercial code) defines it.   you can also find defenitions in business law contracts.  Account stated does not fall into a written instrument.  In fact, credit card debt even if signed does not fall into the written intstument catagory.

 

UCC:  In order for a writing to be considered a written instrument, it must not have any conditions that might negate the requirement of payment. This is different, however, from having conditions that must be met prior to payment being made; in those cases, payment will still be made, but only when conditions are met.

 

The next key element of written instruments in America is that they must involve a specific amount of money in the exchange. This does not necessarily mean that the written instrument must have an exact amount of money filled in from the initial creation of the writing. It is possible that instead, the amount of money that must be paid is determined by a formula.

As an example, transactions involving interest can still be written into the form of a written instrument because at any given point the exact sum of money being exchanged under the written instrument's terms will be defined. But if the writing form does not contain some clearly defined determination for the amount of money exchanged, then it does not fall into the purview of written instruments.

 

The third key element of the writing form for written instruments is that the payment described by written instruments must be payable either on demand or at a specified time. This means that loans written in the form of written instruments must actually have a defined maturation date at which point the loan must be fully paid off. Either way, the loan cannot be indefinitely extended for the writing form to be considered a written instrument under business law.  (like it would with a credit card)

Fourth, written instruments cannot involve any sort of provision that would require the promissory party or the ordering party to supply any other type of payment aside from the money mentioned in the writing. In other words, written instruments cannot require the paying individual to offer up either a service or physical object as payment; they must instead provide for monetary payment only under business law.

 

The final key characteristic of written instruments is that they must be payable at the time at which they are written. This means that the writing form for written instruments requires that there be a clearly defined payee in any such transaction and the negotiable instrument must be payable to that party

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The fact that you think it doesn't apply doesn't negate the fact that it's listed in American Jurisprudence because some judges have accepted the argument.  Like everything else, what matters is not what everyone else thinks, but what existing case law states and ultimately what the judge thinks. 

 

Hence, the onus is on the person making the argument to convince the judge why their argument is correct and the Judge should rule in their favor.  As some courts have already ruled that account stated can apply the longer written statute of limitations, it just makes sense to explain why it shouldn't apply. 

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It doesn't matter what I think.  And I am sure there have been some judges rule that way.  I was just trying to explain what a contract on a written instrument is.  And your right, it all boils down to the judge, but it would be some pretty compelling argument to have business law, and the UCC stand behind your arguements, rather than a ruling by a judge that has a min. amount of business law.  At least if it were to go to appeals.

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Just a note:  The FL statutes do not reference a "written contract".  They reference a "written instrument".

 

 

(2) Within five years.--

( b ) A legal or equitable action on a contract, obligation, or liability founded on a written instrument, except for an action to enforce a claim against a payment bond, which shall be governed by the applicable provisions of paragraph (5)(e), s. 255.05(10), s. 337.18(1), or s. 713.23(1)(e), and except for an action for a deficiency judgment governed by paragraph (5)(h).

 

(3) Within four years.--

(k) A legal or equitable action on a contract, obligation, or liability not founded on a written instrument, including an action for the sale and delivery of goods, wares, and merchandise, and on store accounts.

 

 

Also, notice that the 5-year limitation does not limit contracts to a written instrument.  It also includes "obligation or liability founded on a written instrument."  It's being assumed only a written contract can trigger the 5-year SOL.  The statute shows that an obligation founded on a written instrument triggers that statute, as well.

 

WFTV, Inc. v. Wilken, 675 So. 2d 674 - Fla: Dist. Court of Appeals, 4th Dist. 1996 quoting Black's Law Dictionary:


Black's Law Dictionary 801 (6th ed.1990) contains the following definition of "instrument":

A formal or legal document in writing, such as a contract, deed, will, bond, or lease. A writing that satisfies the requisites of negotiability prescribed by U.C.C. Art. 3. A negotiable instrument (defined in U.C.C. § 3-104), or a security (defined in U.C.C. § 8-102) or any other writing which evidences a right to the payment of money and is not itself a security agreement or lease and is of a type which is in ordinary course of business transferred by delivery with any necessary indorsement or assignment.

Anything reduced to writing, a document of a formal or solemn character, a writing given as a means of affording evidence. A document or writing which gives formal expression to a legal act or agreement, for the purpose of creating, securing, modifying, or terminating a right. A writing executed and delivered as the evidence of an act or agreement. Anything which may be presented as evidence to the senses of the adjudicating tribunal.

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@BV80 & @shellieh98 what do you think about this:

 

The cause of action for an account stated is based on the agreement of the parties to pay the amount due upon the accounting, and not any written instrument.” Whittington v. Stanton , 58 So. 489, 491 (Fla. 1912).

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@sinfulcolors

 

If it were me, that's what I'd focus on.  You kept referencing contracts, but they're not suing for breach of a contract.

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@BV80 & @shellieh98 what do you think about this:

 

The cause of action for an account stated is based on the agreement of the parties to pay the amount due upon the accounting, and not any written instrument.” Whittington v. Stanton , 58 So. 489, 491 (Fla. 1912).

 

The full text of the case you are citing reads as:

In Charman v. Henshaw, 15 Gray (Mass.) 293, it is held that, under a declaration upon an account stated, the cause of action is the agreement of the parties to pay the amount due upon the accounting, and not any written instrument. This amount may be made up of various items, and may include some due upon written instruments, as well as upon oral agreements. 

 

I would venture a guess as well that this case occurred long before the current Florida Statute of Limitations since it was from 1912 so in terms of applicability to establishing SOL, it wouldn't really apply.  You're better off arguing what the above posters did attacking the written contract aspect establishing it as 4 years, and definitely going after the account stated.  I'm fairly certain you can find case law that will defeat a claim of account stated which only provides a single statement as evidence.  So basically you beat the unjust enrichment with an SOL claim, then you attack SOL on account stated as well, and also include an argument as to why they did not provide enough to support a claim of account stated.  Throw in an FDCPA violation counter-claim for raising the SOL argument of unjust enrichment and you'll have them running for the hills.

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Look at the last line there.... I'll find case law shortly :)

 

Fla.R.Civ.P. Form 1.933


Form 1.933. Account Stated


 


COMPLAINT


Plaintiff, A. B., sues defendant, C. D., and alleges:



1. This is an action for damages that (insert jurisdictional amount).



2. Before the institution of this action plaintiff and defendant had business transactions between them and on ..... (date) ....., they agreed to the resulting balance.



3. Plaintiff rendered a statement of it to defendant, a copy being attached, and defendant did not object to the statement.



4. Defendant owes plaintiff $ .......... that is due with interest since ..... (date) ....., on the account.



WHEREFORE plaintiff demands judgment for damages against defendant.



NOTE: A copy of the account showing items, time of accrual of each, and amount of each must be attached.


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@graym

 

Whittington v. Stanton was cited by the court in Farley v.Chase in 2010.

 

Good find :)  Pretty crazy that a line that originated in a case from Massachusetts in 1860 is being quoted in Florida in 2010.

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Having read up on account stated claims, I will state, the fact that this stuff is allowed in our court systems disgusts me. 

 

My contention would be this, how exactly would a debt collector who only received a single statement from the bank have knowledge of whether or not the statement was objected to?  They weren't party to the original transaction, and the Creditor is only selling the debt and doesn't particular care if there was an objection or not.   There is no prior relationship between the debt collector and the consumer.  Therefore, how would a debt collector have knowledge of whether or not a statement was ever objected to in order to support a claim of account stated? 

Out of curiosity, did you receive monthly statements? 

 

47 Fla. 136
Supreme Court of Florida.
DAYTONA BRIDGE CO.
v.
BOND et al.
March 15, 1904.
 
4. An account stated must be based upon previous dealings and transactions between the parties; and while it is not necessary, in order to support a count upon an account stated, to show the nature of the debt or to prove the specified items constituting the account, it must appear that at the time of the accounting there have been previous transactions and dealings between the parties of and concerning which an account was stated.
 
5. The mere failure to object ‘immediately,’ or ‘within a reasonable time,’ to an account sent by mail to one who has never had any dealings with the sender, will not render the account so sent an account stated, so as to authorize a recovery upon it.
 
6. A party to whom an account has been sent is given by the law a reasonable time in which to examine and object to the same, and what is a reasonable time within which the person to whom an account is rendered must object or become bound depends upon the relation of the parties and the usual course of business between them. The question of what is a reasonable time within which the party must object in such cases is one of law for the court to determine in every case, dependent, however, upon the facts proved, the latter to be passed upon by the jury.

 

 

..................

 

My guess would be that only a single statement should not establish previous transactions and dealings between the parties to support a claim of account stated.

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Also you stated they are going after interest, they shouldn't be entitled to any interest or attorney's fees under an account stated claim.

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Thanks @graym & @BV80.

 

@BV80, in your post #32, regarding  the  referencing of contracts. This was more of graym’s  thinking.  I said from the beginning that I didn’t believe that Account Stated was on a written instrument but Graym had found in American Law Reports with the possibility that Account Stated could be  written (see Post #22) and advised me to find something to challenge that.  I found it under Patricia Farley v Chase as you did. I feel a lot better now that I have two cited cases confirming my SOL. 

 

Thanks Graym for pushing me to find the "icing on the cake"

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Well I'm almost done with my Answers, Affirmative Defenses and Counter Claim.  It is about 8 pages long.

 

The one thing I am not positive on is how to cite a case.  I have seen it underlined, underlined and italic, just italic.  Does anyone know the proper form? I did mention that I am unschooled in law but I would rather have something as close as possible to the real deal.

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Well I'm almost done with my Answers, Affirmative Defenses and Counter Claim.  It is about 8 pages long.

 

The one thing I am not positive on is how to cite a case.  I have seen it underlined, underlined and italic, just italic.  Does anyone know the proper form? I did mention that I am unschooled in law but I would rather have something as close as possible to the real deal.

 

The Florida Bar's Legal Citation is a good place to start:

http://www.floridabar.org/DIVCOM/PI/RHandbook01.nsf/1119bd38ae090a748525676f0053b606/26a1a275888e9f94852568bd0053fa04!OpenDocument

 

"In Florida, two authorities are helpful for appropriate citation. The Rules of Appellate Procedure, Rule 9.8, sets forth a Uniform Citation System. This Rule applies to all legal documents, including court opinions, and takes precedence over all other citation rules. It is the primary authority in determining how to cite a source.1 The scope of the Rules of Appellate Procedure, however, is limited and the Rules do not encompass many of the sources that one may wish to cite.
 
Where the Florida Rules do not address a particular citation, The Bluebook: A Uniform System of Citation, published by the Harvard Law Review Association controls. The Bluebook, as it is commonly referred to, spans more than three hundred pages. The editors published a new Eighteenth Edition in 2005 that encompasses several changes." 

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IN RE STANDARD JURY INSTRUCTIONS, Fla: Supreme Court 2013


416.39 ACCOUNT STATED

(Claimant) claims that (defendant) owes [him] [her] [it] money on an account stated. An account stated involves a transaction or series of transactions for which a specific amount of money is due. To establish this claim, (claimant) must prove all of the following:

1. (Claimant) and (defendant) had [a transaction] [transactions] between them;

2. [(Claimant) and (defendant) agreed upon the balance due] [or] [(Claimant) rendered a statement to (defendant) and (defendant) failed to object within a reasonable time to a statement of [his] [her] [its] account];

3. (Defendant) expressly or implicitly promised to pay (claimant) [this balance] [the amount set forth in the statement]; and

4. (Defendant) has not paid (claimant) [any] [all] of the amount owed under the account.

If the greater weight of the evidence does not support (claimant's) claim on these issues, then your verdict should be for (defendant). However, if the greater weight of the evidence supports (claimant's) claim on these issues, [then your verdict should be for (claimant) in the total amount of [his] [her] [its] damages] [then you shall consider the [defense] [defenses] raised by (defendant)].

SOURCES AND AUTHORITIES FOR 416.39

1. There must be an agreement between the parties that a certain balance is correct and due and an express or implicit promise to pay this balance. Merrill-Stevens Dry Dock Co. v. Corniche Exp., 400 So.2d 1286, 1286 (Fla. 3d DCA 1981).

2. The action for an account stated is an action for a sum certain, and where there is no such agreement between the parties, the plaintiff may not recover upon a theory of account stated. Merrill-Stevens Dry Dock Co. v. Corniche Exp., 400 So.2d 1286, 1286-87 (Fla. 3d DCA 1981); FDIC v. Brodie, 602 So. 2d 1358, 1361 (Fla. 3d DCA 1992); Carpenter Contractors of Am., Inc. v. Fastener Corp. of Am., Inc., 611 So.2d 564, 565 (Fla. 4th DCA 1992).

3. An account statement is not absolutely conclusive upon the parties as the presumption of the account's accuracy and correctness may be overcome by proof of fraud, mistake, or error. Farley v. Chase Bank, U.S.A., N.A., 37 So.3d 936, 937 (Fla. 4th DCA 2010).

4. An agreement to a resulting balance may be established by the failure to object to the account statement. Myrick v. St. Catherine Laboure Manor, Inc., 529 So.2d 369, 371 (Fla. 1st DCA 1988).

5. An objection to an account must be made within a reasonable time. Robert C. Malt & Co. v. Kelly Tractor Co., 518 So.2d 991, 992 (Fla. 4th DCA 1988).

6. Fla. R. Civ. P. 1.933 (Form) ("A copy of the account showing items, time of accrual of each, and amount of each must be attached" to the Complaint).

http://scholar.google.com/scholar_case?case=13080572019605896468&q=%22account+stated%22+AND+%22new+contract%22&hl=en&as_sdt=4,10

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If you are just ANSWERING a complaint you probably don't need to be citing case law or arguing your case, you are just denying the allegations. An 8 page answer (and now preparing to cite cases) does not sound right at all.

 

Your arguments and case law may be very good, but the answer is not the place for them. It is the place to answer to the allegations and to assert any affirmative defenses you may have, not argue the case.

 

That's just my opinion; good luck.

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Thank you everyone who has offered advice, I really do appreciate it. I got everything printed and  will be filing at the end of this week.

 

@Anon Amos I did post "Answers, Affirmative Defenses and Counter Claim"  my answers are about two pages and my affirmative defenses another 2 pages and the rest is counterclaim and certificate of service.

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Good Luck!  I would be surprised if they stick around for this one.  Just make sure you get your filings in on time (as in, received by the court, not merely in the mail).

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Good job getting a counterclaim in. That's going to give you a lot of leverage. Make sure you get the counterclaim part of it filed and served correctly (a lot of people don't). It should require and additional fee and need to be served and answered by the plaintiff (cross defendant). A lot of times the clerk just files all the papers together, and doesn't mention it, and people think they got the cross complaint filed, but then nothing ever transpires (check your rules).

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Update:  They filed a motion for an extension of time to answer the counterclaim.  The hearing for the motion to dismiss for not posting a non-resident cost bond still holds and they still haven't posted the $100.  Should I file another motion to dismiss for SOL or is that a given with my affirmative defenses and counterclaim?

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I would file the MTD based on the affirmative defense listed and the filing was time barred by the SOL.  Let them defend that too.  If they try to mutually settle I would demand my $1,000 FCDPA damages, dismissal with prejudice, deletion of all trade lines, no 1099-c, and no selling of the debt to any other JDBs all to be completed within 30 days.

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I would ask Lawkitty what her opinion is on this. Mainly because you have a counterclaim, and that the SOL is an affirmative defense (defenses which for the most part are dealt with at the end of trial, and if you lose). Also, you already have a motion to dismiss in effect and the SOL may be able to be addressed as a standing issue (which can usually be challenged at any time) as well as a jurisdictional challenge (due to being time barred). And because she knows your laws.

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