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What to do when three courts refuse to vacate a clearly Void Judgment?


graym
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"It's not a document they withheld from her in Discovery.  They filed this document with the Trial Court and it's on the Docket Sheet.  It's how they sought Attorney Fee's in the case, something she is entitled to receive a copy of.   The stipulation agreement is based on this document, but instead of listing the breakdown of each item and how it was calculated, they simply stated on the Stipulation agreement that she was indebted to them for X amount."

 

If the lawsuit that the consent judgment was based upon asked for attorney fees and post judgment interest they can add it into the stipulated judgment.  There is absolutely NO requirement that they breakdown how the amount is calculated in a consent judgment.  They are free to simply put in the global amount since the defendant is VOLUNTARILY agreeing to it.  The time for your girlfriend to protest that amount was before she signed it not now that they are garnishing for the amount she agreed to.

 

 "How can you possibly say a person is indebted to you for Attorney's fees, before you have even been awarded Attorney's fees?  You can't stipulate to facts that are clearly untrue and directly contradicted by the record."

 

Because your girlfriend AGREED to pay the amount they entered into the consent judgment which included their fees.  She should have balked at the fees then or refused to sign the consent judgment.  There is no facts in dispute.  Only her buyer's remorse over this consent judgment and your limited legal knowledge misguiding her on what to do.

 

"This case clearly indicates that it is possible to set aside a stipulation agreement if one party withholds facts from the opposing party.  That is exactly what happened.  The Affidavit breaks down the amount owed, and indicates how it is being calculated.  They filed that document with the Court, but never served a copy on her.  However, contrary to what it states in the Affidavit, the Stipulation Agreement does not mention any of the items listed in the Affidavit and intentionally misrepresents the debt.   Instead of listing pre-judgment interest, and Attorney's fees, the Stipulation Agreement only states that she is indebted for X amount.   Those are not the facts.  She was not indebted for the amount listed on the Stipulation Agreement, as the Stipulation Agreement included Attorney's fees, costs and pre-judgment interest that was wrongly calculated.  Would she have signed the Agreement if those facts were not withheld?  Who knows, but withholding facts is grounds to overturn it and there is case precedent in doing so."

 

Since you were not with her when she discussed ANY of this or signed this agreement you have NO way of knowing what was said, shown or done.  You cannot state with absolute fact that they did not give her a copy of this document or that she never saw it.  Even if they DID the time to appeal on that basis has EXPIRED.  It is too late now.  Speculating on what she might have done is not productive.

 

She is stuck with this judgment and the garnishment.  Even if they filed something wrong on this garnishment hearing as bassplayer said they will simply refile getting it right.  If you really want to help her get her a lawyer ASAP because your advice is is off base and wrong that you are doing more harm than you know or will admit to.

 

"It's not a small thing to have a garnishment dissolved after the money has been wrongly paid out.  Yes, it might be a "technicality" as you put it, but notice of the proceedings is a rather important technicality."

 

Even if she manages to get this garnishment quashed because of the technicality they will immediately get it re-filed and get it right.  She is only delaying the inevitable on this one.

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Here are the documents so everyone can see what I'm referring to.  The first document is the Affidavit of Amounts due.  They sent it in by fax, and mailed a copy in.  Neither of which contain any certificate of service.  She never saw this document, it was never served.  The first time she saw this document was when she ordered a copy of the case in preparation of her Petition in the District Court.  She did not have it available when she sent in her letter/motion so she has never raised any of these issues.  Look at the breakdown of the debt listed. 

The 2nd document is the "stipulation".  Notice how it simply says she is indebted and never mentions Attorney's fees at all, it just groups all of it together from the Affidavit.  For reference on the amounts, the original claim was for $4,041.81.  Also, they state they started charging interest from the date the debt occurred, not the date they purchased the debt which was way later.  This added a lot to the amount owed, and this fact is also not found anywhere else in the case except in this Affidavit. 

 

The 3rd document is the Final Judgment.  They subtracted the 200 payment she made.  Also notice, no mention of attorney's fees.  The only place in the ENTIRE CASE where this breakdown occurs is in the Affidavit of Amounts due, which they never served her with so she never saw it. 

 

So, having seen the documents, the question is, were they required to serve her with the Affidavit of Amounts due?  My opinion would be yes, and it's a Void Judgment for that reason.  She was entitled to see the facts regarding the breakdown of the amount owed in the Stipulation Agreement prior to entering into the Agreement.  A person can not be said to have knowingly entered into said agreement when the record indicates that facts vital to the agreement were withheld from them. They clearly misrepresented the debt on the Stipulation Agreement.  The Judgment should also be void due to the fact the court awarded Attorney's Fee's which are an unliquidated amount without a hearing.  She never stipulated to grant them Attorney's fees.   Lastly, the amount of pre-judgment interest (prior to filing) in addition to the original claim puts the amount over the small claims threshold in Florida.  It should have been capped at $5,000, yet they were clearly awarded more than that.

EditedAffidavit.pdf

editedstipulation.pdf

editedfinaljudgment.pdf

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They calculated interest starting on the date the debt occurred well before the date which they purchased the debt.  I'm pretty sure that's not correct.  A quick google search about it brought this up:

 

https://dev.webrecon.com/court-rules-debt-buyer-violates-fair-debt-collection-practices-act-by-seeking-to-collect-post-charge-off-interest/

 

It's the exact same thing they did in her case.  She just learned of this recently because the only document which shows they did this was never served on her so she never found out until she ordered a copy of the case 4 months ago.  Why would anyone be entitled to back-date interest prior to the date of purchase?  That makes no sense whatsoever.

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@graym

 

That's an  FDCPA claim from a federal court in MI.   You need to focus on what FL law allows.

 

You still haven't got past the fact that she willingly signed the agreement. 

 

 If a document is filed in a case, you have to serve the opposing party.  Period.  You can't introduce something into a case for the Judge, without the opposing party getting to see it.  There's a significant difference between discovery and something getting filed in the case.  This has nothing to do with discovery.  It's not a document they withheld from her in Discovery.  They filed this document with the Trial Court and it's on the Docket Sheet.  It's how they sought Attorney Fee's in the case, something she is entitled to receive a copy of. 

 

 

How do you know that they weren't attached to the complaint?  You were not with your GF when she was served.

 

The stipulation agreement is based on this document, but instead of listing the breakdown of each item and how it was calculated, they simply stated on the Stipulation agreement that she was indebted to them for X amount.   How can you possibly say a person is indebted to you for Attorney's fees, before you have even been awarded Attorney's fees?

 

 

Attorney's fees don't have to be awarded by the court.   The purpose of a stipulated agreement or settlement is to avoid court proceedings.
 

You can't stipulate to facts that are clearly untrue and directly contradicted by the record.

 

 

Yes, you can.   You can stipulate to them by signing an agreement.
 

This case clearly indicates that it is possible to set aside a stipulation agreement if one party withholds facts from the opposing party.  That is exactly what happened.  The Affidavit breaks down the amount owed, and indicates how it is being calculated.  They filed that document with the Court, but never served a copy on her.  However, contrary to what it states in the Affidavit, the Stipulation Agreement does not mention any of the items listed in the Affidavit and intentionally misrepresents the debt.   Instead of listing pre-judgment interest, and Attorney's fees, the Stipulation Agreement only states that she is indebted for X amount.   Those are not the facts.  She was not indebted for the amount listed on the Stipulation Agreement, as the Stipulation Agreement included Attorney's fees, costs and pre-judgment interest that was wrongly calculated.

 

 

Unless your state laws don't allow for attorney's fees and prejudgment interest, prevailing parties are allowed those fees.   A judgment amount always includes attorney's fees and interest that are allowed by law.  The party required to pay that judgment is indebted for that entire amount.
 

Would she have signed the Agreement if those facts were not withheld?  Who knows, but withholding facts is grounds to overturn it and there is case precedent in doing so.

 

 

How would she have known facts were withheld when she didn't bother to read the agreement?    Like it or not, it was her responsibility, but she chose not to be responsible.   It would her word against the plaintiffs  that she never saw certain documents and that facts were withheld.   If she could prove they lied to her, she might have something, but how is she going to prove it?   In fact, you don't know that facts were withheld because you weren't there.

Imagine if a consumer signs an agreement to purchase a car, then wants to renege.  "Your Honor, I didn't read the agreement and didn't know there was interest attached to the loan.  They never told me I had to pay interest.  That fact was withheld.   Also, they never showed me a document that showed the amount of interest allowed by law. "  Really?

If an agreement could be declared void simply because a consumer claims that facts were withheld, the majority of agreements in this country would not be enforceable.

The point is that she didn't read it, she admits that didn't read it, but she signed it anyway.   Claiming that facts were withheld is "he said/she said".

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First off, the document was not part of the summons.  She ordered the entire case.  It also clearly was not part of the summons based on the fact it is signed and dated after service of the summons.  Secondly, and much more importantly, this is the exact reason why courts not only require you to serve documents on the opposing party, but to list on the documents how you served them.  It is the responsibility of the filing party to inform the court that they served a copy on the opposing party.  The fact that the document does not even contain a certificate of service is proof that she did not receive the document. 

 

This is all covered in Fla. R. Jud. Admin. 2.516

 

 

(a) Service; When Required. Unless the court otherwise orders, or a statute or supreme court administrative order specifies a different means of service, every pleading subsequent to the initial pleading and every other document filed in any court proceeding, except applications for witness subpoenas and documents served by formal notice or required to be served in the manner provided for service of formal notice, must be served in accordance with this rule on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them must be served in the manner provided for service of summons.

 

and Florida Rules of Civil Procedure RULE 1.080

 

(a) Service; When Required. Unless the court otherwise orders, every pleading subsequent to the initial pleading and every other paper filed in the action, except applications for witness subpoena, shall be served on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them shall be served in the manner provided for service of summons.

 

They were required to serve her the Affidavit of Amounts Due. 

 

(f) Certificate of Service. When any attorney certifies in substance:

 

“I certify that a copy the foregoing document has been furnished to (here insert name or names, addresses used for service, and mailing addresses) by (e-mail) (delivery) (mail) (fax) on ….. (date) …..

 

________________________
Attorney”

 

the certificate is taken as prima facie proof of such service in compliance with this rule.


 

There is no need for a he said / she said when the document itself proves that she never received it due to a lack of a certificate of service which was required on the document.   The court should have rejected the filing due to a lack of a certificate of service and/or ordered them to serve her a copy.  Lack of Service does not automatically result in a Void Judgment depending on what document was not served.  However, this particular document contained information not found anywhere else in the case, and the Stipulation Agreement and Judgment were based on this document so it's a rather central document to the proceedings not to have been served. 

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Technically yes, but she was not aware that she was in court.  It's a very small town and the courthouse is a business building, not an actual courthouse.  She met with them in a conference room, not in a court room, and she was never in front of a judge.  It occurred at a pre-trial hearing. 

 

She was never served, and never saw the service.  She never received a single paper in the case, nor before the case because the Debt Collector had sent all correspondence to an erroneous address that she never received.  She did not receive any notification of any kind as to what debt this was as she had not seen a single paper.

 

Her only correspondence with this debt collector was by phone call.   They called her and informed her she would be arrested if she did not appear and meet with them.  They did not identify that this was in relation to a court case, nor did they identify themselves as Lawyers.   She thought she met with a debt collector, and she wrongly assumed this was about a debt she actually owed - her student loans.  She never took out this credit Card, it was Identity Theft.   The Stipulation Agreement is the only document she ever saw, briefly, and it does not mention what the debt is.  She didn't fill out the Stipulation Agreement, the opposing Attorney did.  He even printed her name for her, which is kind of ridiculous.  She thought she was agreeing to pay her Student Loans, she never intended to agree to pay a Credit Card that was not hers but having never been served, she made a wrong assumption. 

 

Fundamentally speaking, it should be considered fraud upon the court as the only reason she made an "appearance" in this case was not due to knowledge of the case nor participation in the case, but due to the fact they called her and misrepresented what the meeting was about.   Period.  Because it was misrepresented, she never knew that this "meeting" was a "pre-trial conference".  She moved, and never received any other papers in the case, she also never received a copy of the Final Judgment. 

 

I know it was stupid to sign a document without reading it, but she did so under threat of arrest, and not voluntarily.  Keep in mind that she lived over 400 miles away from the courthouse.  Apply logic to the situation.   Do you know of any person in the entire country that would drive over 400 miles to sign a Stipulation Agreement agreeing to pay the full amount of the debt, +costs, interests and Attorney's fees, and receive nothing in return?  I don't.  Especially if they had received a summons which states, in big red capital letters you have a right to proper venue on it, as a summons has?  Don't you think sometime during the 400+ car ride you would wonder about the whole right to proper venue thing?  This occurred due to a rather crazy set of circumstances, but it starts with the fact they committed fraud and coerced her into signing an agreement due to threat of arrest.  A person should not be able to, without their knowledge of the court case, somehow consent to the jurisdiction of a court.  I'm sorry, that's dumb.  Nor should a court be able to obtain Jurisdiction over a case when it's clearly apparent that there is no basis for jurisdiction in the first place.   The Court was located in Northern Florida, she resided in Central Florida over 400 miles away, and the Plaintiffs lived in South Florida, over 600 miles away.  Nothing in this case had any relation to the court in which it was filed.  Not even close.  They even listed an address in Central Florida with the documents when the case was originally filed.  Service was effectuated substitute in Central Florida.  It was clearly an improper venue, and the record shows that all over the place.

 

The biggest problem for her is that they hired a local lawyer who is friends with the Judge in this small town (convenient), and she has ZERO CHANCE at winning due to that fact.  This isn't about right or wrong, proper legal arguments or not.  This is small town justice where the rules are not followed.  Her "hearing" was held via 3 way phone call and she could not even hear the opposing Attorney due to a bad connection.  She informed the Judge of this who ignored her, and proceeded anyway.  When she raised the argument of fraud due to threat of arrest, and that she learned of the case via phone call and had never seen the Summons, the Judge disregarded her argument by telling her a story about how he has known the Attorney for a long time, and scolded her for even bringing it up.  He never addressed her claim of the meeting being misrepresented due to the phone call.  How is it not a conflict of interest when the Judge and opposing Attorney are long-time friends.  The fact that she got railroaded is why she Appealed in the first place.  Then, she got railroaded again on Appeal.

 

Since the town is so small, the "Appellate Panel" is simply another Circuit Court Judge (single, not a panel), whose probably a friend of the original Judge.  The opposing Attorneys broke every rule in the book.  They improperly filed a motion for extension, filed their Brief well after the time for filing had past, introduced new evidence into the Appeal, falsified evidence, contradicted themselves throughout the entire Brief etc.  She filed a motion to strike, the Judge ignored her Motion for about 3 months, so finally she called and spoke to the Judge's Assistant.  The next day, she gets a blanket denial on her Motion, and ends her Appeal without even addressing the issues raised.  The "Opinion" even has a statement that defies logic and clearly indicates the Judge had no clue what he was doing.  It mentions how she only raised the same issues that she previously raised implying she was simply wasting this courts time by raising the same issues.  It reads as dismissive of her filings, but it's ridiculous because that's EXACTLY WHAT SHE WAS SUPPOSED TO DO and clearly indicates her Appellate Judge was, to be blunt, an idiot.  The timing of the Opinion, one day after she called, and the way it is written, kind of clearly implies that the Judge apparently got annoyed by the fact she called to find out why it was taking 3 months to rule on her Motion and kicked her to the curb.  That's in despite of the fact that legally, she was completely right.  

 

So, once again having been railroaded, she thought she could get a fair shot at this thing by filing a Petition in the 1st District Court of Appeals.  How wrong she was.  She raised arguments showing that the Circuit Court violated the Rules of Appellate Procedure by not allowing her to file a Reply Brief, allowed new evidence to be introduced into the Appeal, ruled with an incomplete record, and even applied the wrong standard of review.  All of which was supported by either the Rules of Appellate Procedure or case law that was binding to that court, including case law from the very same district she filed the Petition in.  The opposing attorneys never responded to any of it, and yet she received a blanket denial which precludes her from seeking review in the Florida Supreme Court.

 

Now, do I think she lost on the merits? No.  I think she lost because she made the mistake of being Pro Se and going up against a rigged system.  Certain aspects of it such as not being able to file a Reply Brief are clearly indicated in the record that takes two seconds for anyone to see.   It's ridiculous, and yet she still lost without explanation.  This is what small town justice is.  You don't get a fair proceeding, you get a Lawyer that's buddy buddy with the Judge.  Even if you take it higher, then you get a Court that flat out doesn't want to deal with your small potatoes small claims case so denies you without reading the filings and there's nothing you can do about it. 

 

Some of you want to post that she lost because she doesn't know what she was doing, she's wrong, people are entitled to their opinions.  If you want to fair about it, and look at the filings, and look at the docket, it's pretty clear that she should not have lost.   She can still re-file a motion to vacate a Void Judgment and raise the arguments that were not raised previously, she can file a motion to Vacate the Void Judgment of Garnishment, she can collaterally attack the judgment by filing a Petition in another District, and I'm not sure but she might even be able to get this into federal court under an FDCPA suit regarding the document that was never served claiming that the 1 year SOL runs from the date she learned of the violation which was when she ordered the case recently and collaterally attack the Judgments there.  I'm flying to Europe in 4 hours to attend Oktoberfest in Munich, so if I don't respond, its because I'm out of the country. 
 

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@graym

 

She was never served, and never saw the service.

 

 

 

In regard to the original action, yes, she was served.  The court won't care if she claims she didn't see it.

 

In the docs, you showed 2 copies of the same affidavit.  I can't read the filing date on one of them.  When was it filed?

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She was never served, and never saw the service.  She never received a single paper in the case, nor before the case because the Debt Collector had sent all correspondence to an erroneous address that she never received.  She did not receive any notification of any kind as to what debt this was as she had not seen a single paper.

 

She WAS served.  You have been told this MULTIPLE times.  If the former fiance lied to her that is between her and HIM the service of the papers was proper.  Let it go already.

 

Fundamentally speaking, it should be considered fraud upon the court as the only reason she made an "appearance" in this case was not due to knowledge of the case nor participation in the case, but due to the fact they called her and misrepresented what the meeting was about.   Period.  Because it was misrepresented, she never knew that this "meeting" was a "pre-trial conference".  She moved, and never received any other papers in the case, she also never received a copy of the Final Judgment. 

 

The law is not about "fundamentally" and what it SHOULD be.  It is about what she signed and agreed to.  If she moved and did not keep the court informed of how to reach her that is HER fault and no one else's.

 

I know it was stupid to sign a document without reading it, but she did so under threat of arrest, and not voluntarily.  Keep in mind that she lived over 400 miles away from the courthouse.  Apply logic to the situation.   Do you know of any person in the entire country that would drive over 400 miles to sign a Stipulation Agreement agreeing to pay the full amount of the debt, +costs, interests and Attorney's fees, and receive nothing in return?  I don't.  Especially if they had received a summons which states, in big red capital letters you have a right to proper venue on it, as a summons has?  Don't you think sometime during the 400+ car ride you would wonder about the whole right to proper venue thing?  This occurred due to a rather crazy set of circumstances, but it starts with the fact they committed fraud and coerced her into signing an agreement due to threat of arrest.  

 

It was VERY stupid but she cannot unring that bell now.  She is a legally competent adult and entered into the agreement of her own free will.  YOU claim she was coerced but you were not there so you cannot say what actually did happen.  She had every right to hire a lawyer before she headed over there but chose not to.  If she elected to sign any of that (why didn't her sister stop her) and enter into the agreement at some point SHE has to accept responsibility for it.

 

The biggest problem for her is that they hired a local lawyer who is friends with the Judge in this small town (convenient), and she has ZERO CHANCE at winning due to that fact.

 

How is it not a conflict of interest when the Judge and opposing Attorney are long-time friends.  The fact that she got railroaded is why she Appealed in the first place.  Then, she got railroaded again on Appeal.

 

No, the biggest problem for her was that she was engaged to a criminal and instead of filing the FACTA and police reports and prosecuting him she signed a consent judgment for his debt.  Then she blindly trusted her new boyfriend who thinks he knows the law but actually knows less than zero and he misled her on the appeal.

 

It is not a conflict of interest because nothing in the law requires that judges and lawyers go through life friendless to do their jobs.  I am certain you want to believe there is some sort of conspiracy but the reality is she didn't get railroaded at any stage of this process.

 

Now, do I think she lost on the merits? No.  I think she lost because she made the mistake of being Pro Se and going up against a rigged system. 

 

No, she lost because she agreed to the judgment.  It is that simple.  The system isn't rigged and it isn't because she was pro-se.  She was worse than pro-se because she had you guiding her on this and you are clueless.

 

Some of you want to post that she lost because she doesn't know what she was doing, she's wrong, people are entitled to their opinions.  If you want to fair about it, and look at the filings, and look at the docket, it's pretty clear that she should not have lost.   She can still re-file a motion to vacate a Void Judgment and raise the arguments that were not raised previously, she can file a motion to Vacate the Void Judgment of Garnishment, she can collaterally attack the judgment by filing a Petition in another District, and I'm not sure but she might even be able to get this into federal court under an FDCPA suit regarding the document that was never served claiming that the 1 year SOL runs from the date she learned of the violation which was when she ordered the case recently and collaterally attack the Judgments there.  

 

We have been more than fair about it tolerating your repeated nonsense arguments that have no accurate basis in the law.  She signed a stipulated judgment and they are going to garnish.  The appeals court up to the Supreme Court in Florida have denied your frivolous arguments.  She is DONE.  If you want to help her instead of flying to Munich for Oktoberfest hire her a lawyer with the money.  You are causing more harm than you will ever admit to.

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Clydesmom, I've posted the documents, and cited the caselaw and rules of procedure.  Regardless of any Stipulation Agreement being signed, the Affidavit was required to be served on her.  The Rules of Procedure clearly state that and you've offered nothing that would indicate that fact is untrue.  Just because you say it is, doesn't make it so, especially when your posts are in direct conflict with the relevant caselaw and Rules of Procedure on this matter.  In her case, the Affidavit was filed AFTER the original claim was filed and served.  It was not included in the original claim which is obvious considering the fact the document is dated after the Service of Process.  Therefore, regardless of the fact the original case was properly served, they were still required to serve her a copy of the Affidavit filed with the court.   That's not my opinion, that's a fact supported by caselaw and the Rules of Procedure. 

 

She has never raised that argument in any court, and she would be well within her rights to raise it now if she wants as it is a violation of due process that should result in a Void Judgment.  There is no time limitation to bring a Motion to Vacate a Void Judgment, and the argument was never previously ruled on.  Res Judicata also does not apply to attempts to vacate Void Judgments, especially when the issues have never been raised.  Regardless of anything you post and previous events in her case, she still has the ability to raise a newly discovered issue and file a new Motion to Vacate a Void Judgment. 

 

The main question is what affect failure to serve that document had on the outcome of the case.  However, considering it's the only Affidavit filed in the case, it was relied on for Stipulation, and clearly shows that the facts stipulated to are untrue, it had a very big impact on the case.  Would she have signed the Stipulation Agreement if the she had been presented with the proper facts?  Obviously not.  The fact that the opposing party withheld the facts does act to Void any agreement entered into.  Caselaw also supports this.  

 

560 So.2d 336
District Court of Appeal of Florida,
First District.
HOWARD JOHNSONS & Liberty, Mutual Insurance Company, Appellants,
v.
Jose PINEDA, Appellee.
 
"A stipulation should not be ignored or set aside in the absence of fraud, overreaching, misrepresentation, withholding of the facts by an adversary, or some element as would render the agreement void."
 
Clearly, there is precedent to set aside a stipulation agreement obtained through improper methods.  Your notion that it's impossible to do so is without merit.  She also can attack the Garnishment Judgment, as that Judgment is clearly void and that one really isn't debatable.  Lastly, she can file an FDCPA suit. If I recall correctly, BV80 has previously posted that actions taken in the course of a suit are protected from FDCPA violations.  Caselaw indicates the exact opposite is true, at least in Florida.  This is a recent case from the Southern District of Florida:
 
951 F.Supp.2d 1310
United States District Court,
S.D. Florida,
Fort Pierce Division.
Gina BATTLE, an individual, Plaintiff,
v.
GLADSTONE LAW GROUP, P.A., a Florida Professional Corporation and Roger N. Gladstone, Defendants.
Case No. 12–14458–CIV.
June 28, 2013.

 

"Defendants also argue that Florida's litigation privilege allows for complete immunity for all acts occurring during the course of a judicial proceeding. (D.E. No. 27). Plaintiff contends that this immunity *1316 privilege applies only to litigation arising from violations of state law and not violations of federal law. Pescatrice v. Robert J. Orovitz, P.A., 539 F.Supp.2d 1375, 1380 (S.D.Fla.2008). Plaintiff's Complaint is based on a violation of the FDCPA (a federal statute) and Plaintiff does not allege a violation of any state statute. (D.E. No. 20). As a result, this Court finds that Defendants' litigation activity is not entitled to immunity."

 

Essentially speaking, you are not immune from FDCPA violations simply because they occur during the course of litigation.  Litigation Immunity only applies to State Law and not violations of Federal Law.  That's a recent case too.  Further, the same Federal court has previously ruled that it is Service of Process that triggers the Statute of Limitations in an FDCPA suit, not the filing of the suit.  The logic explained is that the Statute of Limitations should begin to run when the person sees the documents and has a chance to bring suit, instead of losing a portion of their 1 year prior to service of the documents.  This makes sense because sometimes service doesn't occur until much, much later. 

 

 

2009 WL 1973476
United States District Court,
S.D. Florida.
Martha Reyes De PEREZ, Plaintiff,
v.
BUREAUS INVESTMENT GROUP NO. II, LLC, Defendant.

 

"The one-year limitations period for a debtor's claim under the Fair Debt Collection Practices Act (FDCPA) was triggered by the service of process in a debt collection lawsuit and not the filing of the lawsuit. The debtor alleged that her creditor violated the FDCPA by filing a collection lawsuit after the applicable statute of limitations had lapsed. The debtor's claim was barred as untimely because she filed her claim over a year after she received service in the debt collection lawsuit. Fair Debt Collection Practices Act, § 802, 15 U.S.C.A. § 1692 et seq."

 

"More recently, in a case similar to the case at hand, the Tenth Circuit Court of Appeals evaluated whether the statute of limitations period on an FDCPA claim began to run when an underlying debt collection lawsuit allegedly in contravention of the FDCPA was filed, or when service was made in the underlying collection lawsuit. Johnson v. Riddle, 305 F.3d 1107 (10th Cir.2002). The Tenth Circuit rejected the argument that the violation occurred upon filing rather than upon service.  The court stated, “where the plaintiff's FDCPA claim arises from the instigation of a debt collection suit, the plaintiff does not have a ‘complete and present cause of action,’ and thus no violation occurs within the meaning of § 1692k(d), until the plaintiff has been served.” Id.  Citing Mattson, the court also noted that the date of service is easily ascertainable, and stated, “the decision of whether to serve the debtor is the creditor's last opportunity to comply with the FDCPA.” Finally, the court reasoned that if the limitations clock began to run with service of process rather than with filing suit, a debt collector who filed suit could effectively block any action under the FDCPA by filing suit and then delaying service."

 

Even though this particular Plaintiff lost their case, it still establishes when the Statute of Limitations starts to run which is when service of process is performed.  The case was filed in late 2006, but the Defendant was not served until January 2008.  The lawyers tried to argue that the statute of limitations began to run from the date of filing in late 2006, which would have led to expiration of the statute of limitations prior to them ever serving the case on the Defendant.  Logically, the court ruled that the date runs when the case was served, in January 2008.  Unfortunately, this person brought suit in March 2009 so even using the later date, this case was untimely, but it's still  valid caselaw in establishing the Statute of Limitations for an FDCPA suit.

 

The main thing that is so annoying in her case is venue.  It's baffling to me that the record, in multiple places, clearly indicates that there was no basis for Jurisdiction whatsoever in the location where the case was filed.  The computer printout they provided of the Credit Card lists an address over 8 hours away from the courthouse, she lived (and service was effectuated over 8 hours away), and the Plaintiffs resided about 600 miles away.  All of this is plain as day in the case, so what's the basis for Jurisdiction in a county so far away from where everyone in the case lives?  The Judge should have transferred the case on his own as the complaint provided no basis for Jurisdiction, and none exists.  This would be akin to me filing a case in Alaska, to sue a Defendant that resides in New York, while I reside in Florida.  This all occurred within the same state, but the three relevant parties (the Court, Plaintiff, and Defendant) reside on completely different parts of the state hundreds of miles apart from each other.  It just defies logic no matter how you look at it.  

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If I recall correctly, BV80 has previously posted that actions taken in the course of a suit are protected from FDCPA violations.

 

 

 

I've posted nothing of the kind.  In fact, I recently posted case law that shows the opposite.

 

 

Lastly, she can file an FDCPA suit.

 

 

The alleged violation occurred over a year ago.

 

1692k(d):

 

(d) Jurisdiction

An action to enforce any liability created by this subchapter may be brought in any appropriate United States district court without regard to the amount in controversy, or in any other court of competent jurisdiction, within one year from the date on which the violation occurs.

 

 

Crossman v. ASSET ACCEPTANCE, LLC, Dist. Court, MD Florida 2014

 

See 15 U.S.C. § 1692k(d) (a civil action must be filed "within one year from the date on which the violation occurs."); Cooper v. F.A. Mgmt. Solutions, Inc., 2007 WL 4326800 at * 4 (M.D. Fla. Dec. 7, 2007) ("When Plaintiff became aware of the alleged violation is of no consequence in determining whether his claim . . . is time barred. The FDCPA, specifically § 1692k(d), does not contain a general discovery rule, that is, an exception providing that the one year limitation period begins to run when a debtor `knows or has reason to know' of a violation of the Act."); Zenon v. Palisades Collection, LLC, 2008 WL 506231 at * 1 (M.D. Fla. Feb. 21, 2008) ("The limitations period begins to run on an FDCPA claim on the date of an alleged violation, not on the date it was discovered.").

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Well, I would agree with that ruling.  If a person pays a Judgment, they obviously are aware of the case and therefore due diligence would extend to finding out whether or not a satisfaction of Judgment was filed.  They applied a continuing violation theory to a single cause of inaction - the failure to file a satisfaction of judgment.  The main thing to take away from that case is specifically that inaction can't support a theory of continuing violations. 

 

However, the part you cited: "The limitations period begins to run on an FDCPA claim on the date of an alleged violation, not on the date it was discovered." does not actually conflict with the ruling I cited.  Specifically, "on the date of an alleged violation" is vague, and the case you cited makes no attempt to define what that date is.   Other cases have gone into that distinction, and the prevailing rulings seem to be that the date of an alleged violation is the date of mailing + 1, and in regards to when the violation is the filing of a suit, the date service of process occurs.  Essentially speaking, the date of an alleged violation is not always on the actual date it occurs as you seem to be implying, because courts have ruled that sometimes the date of the alleged violation does not occur until, for example, the suit is served. 

 

2009 WL 1973476

United States District Court,

S.D. Florida.

Martha Reyes De PEREZ, Plaintiff,
v.
BUREAUS INVESTMENT GROUP NO. II, LLC, Defendant.
No. 1:09–CV–20784.
July 8, 2009.
 

In Count I, Plaintiff seeks relief pursuant to Fair Debt Collection Practices Act, 15 U.S.C. § 1692 et seq., based on Defendant's alleged filing of the Collection Lawsuit
after the applicable statute of limitations had lapsed. The FDCPA requires that suit be filed “within one year from the date on which the violation occurs.” 15 U.S.C. § 1692k(d).
Defendant argues that the date of the alleged violation is the date Defendant filed the Collection Lawsuit—November 16, 2006. Plaintiff argues in her Response that she was not
served until January 2008, and, until the service of the March 2009 subpoena on Plaintiff, she had validly assumed that Defendant ceased collection efforts.
Plaintiff cites
no case law in support of her arguments.3

In Maloy v. Phillips, 64 F.3d 607 (11th Cir.1995), the Eleventh Circuit Court of Appeals evaluated whether the statute of limitations for an FDCPA action commenced on the date a
debt collection letter was mailed to the debtor, or the date the letter was received. Id. at 608. Citing the reasoning of the Eight Circuit Court of Appeals in Mattson
 v. U.S. West Communications, Inc., 967 F.2d 259 (8th Cir.1992), the Eleventh Circuit held that date of mailing, rather than the date of receipt, triggered the limitations period.
The Eleventh Circuit adopted the reasoning of the Eighth Circuit that the date of mailing was the debt collector's last opportunity to comply with the FDCPA, and that the date of
mailing was a better and more practical approach because it provided a date that was easy to determine, ascertainable by both parties, and easily applied. Id.
More recently, in a case similar to the case at hand, the Tenth Circuit Court of Appeals evaluated whether the statute of limitations period on an FDCPA claim began to run when an
 underlying debt collection lawsuit allegedly in contravention of the FDCPA was filed, or when service was made in the underlying collection lawsuit. Johnson v. Riddle, 305 F.3d 1107 (10th Cir.2002). The Tenth Circuit rejected the argument that the violation occurred upon filing rather than upon service. Id. at 1113. The court stated, “where the plaintiff's FDCPA claim arises from the instigation of a debt collection suit, the plaintiff does not have a ‘complete and present cause of action,’ and thus no violation occurs within the meaning of § 1692k(d), until the plaintiff has been served.” Id. (internal citation omitted). Citing Mattson, the court also noted that the date of service is easily ascertainable, and stated, “the decision of whether to serve the debtor is the creditor's last opportunity to comply with the FDCPA.” Id. at 1114 n. 4. Finally, the court reasoned that if the limitations clock began to run with service of process rather than with filing suit, a debt collector who filed suit could effectively block any action under the FDCPA by filing suit and then delaying service. Id. at 1114.

The Eleventh Circuit has not held whether filing or service triggers the statute of limitations period when the underlying violation is a debt collection lawsuit.
Based on the Eleventh Circuit's adoption of the Mattson approach in Maloy, I conclude that service, not filing, constitutes the violation and triggers the statute of
limitations period.
I find the approach and rationale of the Tenth Circuit persuasive, and adopt the same.4 See also Wyles v. Excalibur I, LLC, No. Civ. 05–2798JRTJJG,
2006 WL 2583200, at *3 (D.Minn. Sept.7, 2006) (“[Plaintiff's] cause of action accrued the date she was served with the Minnesota lawsuit, because that was the last opportunity
 for the debt collector to comply with the FDCPA.”); Anderson v. Gamache & Myers, P.C., No. 4:07CV336MLM, 2007 WL 1577610, at *8 (E.D.Mo. May 31, 2007) (“[T]he court finds that the
 one-year period of § 1692k(d) commenced running on the date Plaintiff was served with the State Petition ...”). Cf. Campos v. Brooksbank, 120 F.Supp.2d 1271, 1273–74 (D.N.M.2000)
(denying the defendant's motion to dismiss FDCPA claim based on the statute of limitations, where the plaintiff alleged that the defendant engaged in additional, subsequent, and
specific acts that violated the FDCPA during the state court litigation). Accordingly, the one-year statute of limitations began to run when Plaintiff was served in January 2008.

As Plaintiff waited until March 2009 to file the present lawsuit, Plaintiffs request for relief under the FDCPA is barred by the one-year statute of limitations.
 

 

Further, there are also exceptions such as the Doctrine of Equitable Estoppel:

 

790 So.2d 1071
Supreme Court of Florida.
MAJOR LEAGUE BASEBALL, et al., Petitioners,
v.
Frank L. MORSANI, etc., et al., Respondents.
No. SC96004.
July 12, 2001.

 

The doctrine of equitable estoppel has been a fundamental tenet of Anglo American jurisprudence for centuries:
“Estoppe,” says Lord Coke, “cometh of the French word estoupe, from whence the English word stopped; and it is called an estoppel or conclusion,
because a man's own act or acceptance stoppeth or closeth up his mouth to allege or plead [otherwise].”
Lancelot Feilding Everest, Everest and Strode's Law of Estoppel 1 (3d ed.1923). The doctrine, which was part of the English common law when
the State of Florida was founded, was adopted and codified by the Florida Legislature in 1829.8
456 Equitable estoppel is based on principles of fair play and essential justice and arises when one party lulls another party into a disadvantageous legal position:

“Equitable estoppel is the effect of the voluntary conduct of a party whereby he is absolutely precluded, both at law and in equity, from asserting rights which perhaps
 have otherwise existed, either of property or of contract, or of remedy, as against another person, who has in good faith relied upon such conduct and has been led thereby
 to change his position for the worse, and who on his part acquires some corresponding right, either of property, or of contract or of remedy.”
The doctrine of estoppel is applicable in all cases where one, by word, act or conduct, willfully caused another to believe in the existence of a certain state of things,
and thereby induces him to act on this belief injuriously to himself, or to alter his own previous condition to his injury.
State ex rel. Watson v. Gray, 48 So.2d 84, 87–88 (Fla.1950) (quoting 3 Pomeroy's Equity Jurisprudence § 804 (5th ed.1941)).
 
78910 Equitable estoppel differs from other legal theories that may operate to deflect the statute of limitations, such as accrual,9 tolling,10 equitable tolling,11 and *1077 waiver.12
 Equitable estoppel presupposes a legal shortcoming in a party's case that is directly attributable to the opposing party's misconduct. The doctrine bars the wrongdoer from asserting that
shortcoming and profiting from his or her own misconduct. Equitable estoppel thus functions as a shield, not a sword, and operates against the wrongdoer, not the victim. This Court
has applied the doctrine for more than a century and a half.13

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Well that's the thing, I would logically state the date of the violation was the date it was mailed to the court back in 2008.  If that's the case, and they intentionally withheld the documentation even though they were required to serve her a copy, I'd assume the doctrine of equitable estoppel would apply as that's the entire reason it is there. 

 

Venue is definitely past Statute of Limitations based on the filing date of the case, but in their Appellate Brief they filed documents defending their choice of venue by introducing new falsified evidence to support it.  That would likely be a new violation, from the date of filing (11/2013).   Based on the case you linked, it would seem like continuous violation might apply to venue on the basis that they have actively taken steps to defend their choice of venue, and she continuously has had to participate in a suit in a far-away location. 

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@graym

 

Look at the date on the first affidavit and the date of the stipulation.  The difference is 6 days.   They can claim they mailed the affidavit.  All that no certificate of service proves is that there's no certificate of service.

 

The 2nd affidavit is dated the same day as the stipulation.  They can claim they showed the affidavit to her.   She can't prove any differently.   After all, she's admitted that she read nothing.   How does she prove they withheld documentation, especially since it's been 6 years?    All she has is allegations without any proof whatsoever.

 

How did their alleged failure to provide her with the affidavit prejudice her?   For one thing, you don't know that they didn't show it to her when she signed the stipulation.  She wouldn't have read it if they did.  Her letter to the court proves that.

 

They have evidence to support their claim.  They have her signature on the stipulation and a letter to the court stating that she signed it without reading it.   Unless she can PROVE fraud or duress, equitable estoppel won't work.  And again, it's been 6 years.   Unless the courthouse and her file disappeared, she could have viewed her file long before she did.

 

When did she get her file?

 

 

Venue is definitely past Statute of Limitations based on the filing date of the case, but in their Appellate Brief they filed documents defending their choice of venue by introducing new falsified evidence to support it.  That would likely be a new violation, from the date of filing (11/2013).

 

 

Can you prove the docs were falsified?

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They submitted a copy of her driver's license with an address listed on it that she has never lived at.  It's the erroneous address they used to justify venue on the opposite side of Florida. It's easy to prove it is falsified, you just provide the actual DMV records with the correct address.  As far as the Affidavit goes, the first copy was faxed in to the court and the 2nd copy was mailed in which arrived the same day as the Stipulation Agreement.  As far as them "showing her" a copy of it, it's a losing argument.  The entire way you prove that you served a copy on the opposing party is by providing a certificate of service listing specifically how you served them.  In order for service to be "facially valid", it must contain the minimum requirements within the document.  If Service is "facially valid", the burden shifts to the party challenging service.  If service is defective on its face, the burden is on the filing party to present evidence of service.  The same holds true for initial service in a case, down to every filing. 

 

The Judge should have rejected the filing and issued an order for them to serve the opposing party.  That's what should have happened, and what usually happens.  This actually happened to her in the District Court.  The District Court initially rejected her filing and ordered her to serve a copy of her Petition on the Appellate Judge.

 

That's the way it works.  Having a certificate of service is the way you prove to the court that you served somebody.  If a document has it, it's presumed valid and the burden is on the opposing party to prove defective service.  If you don't include it, it's not facially valid, and the burden is on you to prove service.  Once she states that she never received the document, since the document does not contain a facially valid certificate of service, the burden completely shifts to them to prove that she actually received it.   Since the burden of proof is theirs, they can't simply say, "oh we gave it to her".   

 

As far as the "she could have viewed her file" argument, the case I linked earlier actually throws that argument out.  The Lawyers in that case argued that the person could have performed "due diligence" and ordered the case from PACER, and the Judge said that's ridiculous.  Hence, why she ruled that the Statute of Limitations starts from the date of Service of Process and not from the date of filing.  

 

You keep saying she doesn't have "proof" but the proof is the lack of a certificate of service on the documents.  That *IS* proof. 

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In my personal opinion, her best action is to file an FDCPA suit.  Certain claims are definitely within the statute of limitations, such as misrepresentations they made in the Appellate Brief.  She has 2 months to file on those claims and still be within the 1 year.   The other things like venue and the document not being served can be raised as well.  There is not a whole lot of case law on some issues in her case.  For example, there is case law that establishes that the statute of limitations runs from the date of service, and not the date of filing, when a suit itself is an FDCPA violation.  However, there doesn't appear to be any case law at all as what happens when a document filed in a case creates a violation.  It has to be an extremely rare occurrence for a document in a case to be accepted by the court, but not served on the opposing party because typically the Clerk of Court would catch this and reject it, and if they didn't, the Judge would.  Subsequently, there doesn't appear to be any case law on the matter.  However, it should be a valid, and timely claim, because she never received the document and it would make no sense whatsoever to apply a Statute of Limitations prior to the opposing party learning of the violation.

 

Venue is another tricky one because in most cases such as hers, where the filing itself clearly indicates no basis for venue, most Judges would transfer the case on their own.  To have a case proceed in an improper venue all the way to Judgment and Garnishment judgment is probably a very rare occurrence due to the liability under the FDCPA.  Probably even more rare would be debt collectors actually defending the choice of improper venue.  Would defending an improper venue be a violation on its own and/or reset the statute of limitations as its an affirmative action?  Additionally, what about a Writ of Continuing Garnishment.  Would the Statute of Limitations run solely from the filing of the suit, or would each act of Garnishment (the actual taking of the funds if a Garnishment order is obtained), create a new violation.   Her Garnishment case was filed in March 2013, she learned of it in July 2013, and she was garnished until December 2013, with a Satisfaction of Judgment filed in January 2014.

 

I don't think there is any case law on the matter, but if they are taking funds in December 2013 wouldn't that constitute a legal action upon a debt?  Garnishment is a legal action, and the Judgment is for a Continuing Garnishment so at least to me it would be logical that each act of Garnishment would create a new violation under the Continuing Violation Doctrine.  After all, the Judgment itself specifically contains the word "Continuing".   I don't think there is any case law on the matter, but it would seem silly that they were actually taking her money in December of 2013, but the Statute of Limitations would start on the much earlier filing date/service date.  That would mean, depending on the length of the Garnishment, you could have a situation where someone is currently Garnishing you from an improper venue while simultaneously being outside of the Statute of Limitations on being sued for the FDCPA violation of it.  It's possible, it just doesn't make a whole lot of sense to me.   

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@graym

False copy of a driver's license?   Did she object and offer the proof that copy was false?

 

There no FDCPA violation for the garnishment because 3 courts ruled in favor of the judgment creditor.   If she didn't object to the venue or request a transfer, that issue was waived.

 

Three courts have rejected her arguments.  The Supreme Court refused to hear the appeal.  Your dad won't help.  Take the hint. 

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I would fundamentally disagree with that assessment.  Just because a state court ruled in their favor doesn't mean they didn't violate the FDCPA.  They aren't even the same issues. 

 

Also, my dad not wanting to help had absolutely nothing to do with the merits of the case itself.  It was overwhelmingly location and a small portion because he just considers it small potatoes and doesn't want to spend time on it.  That right there is the entire reason people have a right to be sued in a proper venue.  It's extremely difficult to defend a suit hundreds of miles away from where you live.  It's an entire day travel just to make an appearance and that's the problem, not the merits of the case. 

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  • 2 weeks later...

That's correct, she did not live where they filed suit and it is about 400 miles away from where the case was.  All documents in the case show she lived 400 miles away, and service was effectuated 400 miles away.  FDCPA statute is past on that claim, but they did the same thing with the Garnishment action filed in 2013.  It's relatively bullshit to have to defend a case on the opposite side of the state.

 

It literally makes no sense, at least to me, not to file the suit and list all potential FDCPA violations while simply falling back on a violation of the venue provision of the FDCPA which is a very easy violation to prove.  Her issue would be SOL on venue, but they took steps to maintain the action in an improper venue which might be, in and of itself, its own violation.  It would seem a valid collateral attack on the entire judgment by saying that failure to serve documents in the proceeding and allowing it to go to Judgment is a violation of the FDCPA unfair practices provision and statute of limitations starts from date of discovery (2014).   Other courts have found sewer service to be a violation of the FDCPA, so there is precedent and the documents are facially lacking certificates of service which were required.

 

§ 808.  Unfair practices [15 USC 1692f]

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

 

Best case scenario it invalidates the entire judgment as void, worst case scenario the court disagrees and she falls back on the venue provision violation.  Key is finding an Attorney to file the case though.

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@graym

 

When did she object to the venue?

@BV80

 

She DIDN'T until she got this boyfriend and was garnished.  She drove across the state and signed the consent judgment.  When she did that she submitted to the jurisdiction of the court.  Three courts now have upheld this.  It is OVER.  Where the case was filed is now no longer relevant.  Once she went along with all of this via that consent judgment she ended it.   

 

No attorney is going to take this case because the OP has messed it up so badly that it cannot be fixed now.  ALL of this stems from a boyfriend who thinks he knows the law but doesn't and long after the case was over is trying to keep her from being garnished.

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