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midland funding motion for summary disposition


oak1787
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so I already went to pre trail to midland funding. 7 days ago I got a plaintiffs motion for summary dispoition..

i guess first is do i need to repond to this and send copy to court and midland funding..  there poof is a copy of a statement and a bill of sale. none has nothing that i signed.. bill of sale has nothing on there like account number or my name etc..please send me some help ..:)

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if i have to resposed one thing i was going to put is about the bill of sale..

 

I have reviewed the documents presented by the Plaintiff,
Bill of Sale and the Assignment,
and finds that they fail to sufficiently identify the accounts that were assigned or sold to the Plaintiff.
Neither the Bill of Sale nor the Assignment indicate the account numbers or names of account holders.
They do not provide any information that would allow the Court to determine if the alleged
account of the Defendant was one of the accounts sold or assigned to the Plaintiff.
Without any indicia of ownership that would sufficiently identify the true owner of the account
at the time the Plaintiff filed this action, the Plaintiff is unable to prove that it had standing
to bring the action. An assignment is the basis of the Plaintiff's standing to invoke the processes of
 the Court in the first place and is therefore an essential element of proof...

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if i have to resposed one thing i was going to put is about the bill of sale..

 

I have reviewed the documents presented by the Plaintiff,

Bill of Sale and the Assignment,

and finds that they fail to sufficiently identify the accounts that were assigned or sold to the Plaintiff.

Neither the Bill of Sale nor the Assignment indicate the account numbers or names of account holders.

They do not provide any information that would allow the Court to determine if the alleged

account of the Defendant was one of the accounts sold or assigned to the Plaintiff.

Without any indicia of ownership that would sufficiently identify the true owner of the account

at the time the Plaintiff filed this action, the Plaintiff is unable to prove that it had standing

to bring the action. An assignment is the basis of the Plaintiff's standing to invoke the processes of

 the Court in the first place and is therefore an essential element of proof...

 

 

1. Who is suing you? tanya johnson attorneys for Midland Funding LLC assignee of chase bank

2. For how much? ~1600

3. Who is the original creditor? chase bank

4. How do you know you are being sued? served at' house

5. How were you served? Were you served? yes by my front door by hand   went to pre trail  i told them dont recall this cradit card

7. Where do you live? FL

8. When is the last time you paid on this account? 10/2011

9. What is the status of your case ? summary disposition

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

11. Did you request debt validation before the suit was filed?not sure

12. Does your summons require a response in writing? have a plaintiff motion for summary dispoition  nothing on there saying time frame to respond

13. What evidence did they send with the summons? An affadavit? A statement from the tractor supply co? Anything else they attached as exhibits?  (not bearing my name or account#) as bill of sale assignment, I

14. What is the SOL on the debt?       I think it's 7 years here in FL.

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so I already went to pre trail to midland funding. 7 days ago I got a plaintiffs motion for summary dispoition..

i guess first is do i need to repond to this and send copy to court and midland funding..  there poof is a copy of a statement and a bill of sale. none has nothing that i signed.. bill of sale has nothing on there like account number or my name etc..please send me some help .. :-)

 

Did a respond to summary that i found on here  see if this will work or am I way off..

 

 

          Defendant's Opposition to Plaintiff's Motion

for Summary Disposition

 

 

 

I. INTRODUCTION

Granting Plaintiff’s Motion for Summary disposition prior to completion of any Discovery and prior to resolving the disclosed issues of fact would be improper and premature as there are still clear issues of fact which preclude a proper summary judgment at this time, including the material and pertinent issue of whether Plaintiff has proper standing to bring this action.

 

1. The Plaintiff states it has presented a complaint with a primary cause of action of Account Stated but has not submitted any admissible evidence to show they have standing in this case. The Defendant had no debtor/creditor relationship with Midland.

 

The Plaintiff didn’t establish a debtor/creditor relationship with the defendant and established a course of business dealings between the parties for Account Stated. Additionally, it must be established that the Defendant was sent a statement and that the Defendant expressly or impliedly consented to the statement by failing to object. Consequently, there needs to be a copy of a statement and proof of mailing and receipt by the Defendant to establish a presumption of no objection.

 

Then, the relationship between the parties and the usual course of business between them becomes a question of law. (See, Martyn v. Arnold, 18 So.2d 791 (Fla. 1985).

 

For an account stated to exist, there must be 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 (Fla. 3d DCA 1981).

Also see, Carpenter Contractors Of America, Inc. and R & D Thiel, Inc. v. Fastener Corp. Of America, Inc., 611 So.2d 564 (Fla. 4th DCA 1992). Here there was no evidence that the parties agreed on any balance due and owing.

 

Also see, “Account stated claim involves agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.” South Motor Co. of Dade County v. Accountable Const. Co., 707 So.2d 909 (Fla. App. 3 Dist. 1998).

The Defendant never entered into a creditor/debtor relationship with Midland.

2. There is no Account Stated case because the Defendant objected to the alleged debt with both Chase Bank and Midland through the three major credit bureaus well before the suit was filed.

 

"An account stated comes into being when a creditor periodically bills a debtor for a certain amount, which amount is not objected to within a reasonable time." Dudas v. Dade County, 385 So.2d 1144 (Fla. 3d DCA 1980).

 

3. There can be no prima face case for Account Stated since the Defendant disputed the account with both Chase Bank and Midland. The Defendant also never received anything from Midland stating they owned the alleged debt.

 

 

The Plaintiff failed to notify the debtor of an assignment.

Florida Statutes section 559.715 states:

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 in a court of competent jurisdiction to collect a debt that has been assigned to such assignee and is in default.

 

“There can be no liability on an account stated if there has been no mutual agreement, and mere presentation of a claim and its retention without objection does not of itself create a liability.”

Recreation Corp. of America v. Jack Drury & Associates, Inc. 235 So.2d 49 (Fla. App. 4 Dist. 1970)

 

4. The defendant did appear at the pre-trial  and disputed the debt. After disputing the debt with Midland’s attorney, the attorney stated that we would then go to trial. The defendant was given no chance to speak to the judge about defenses or anybody else as the attorney stated the defendant could then leave. Also, a trial date was not set at the pre-trial conference. 

 

According to Rule 7.140 of the Florida Small Claims rules states:

  1. Time. The trial date shall be set by the court at the pre-trial conference.

Rule 7.090 of the Florida Small Claims rules states:

© Defensive Pleadings. Unless required by order of court, written pretrial motions and defensive pleadings are not necessary. If filed, copies of such pleadings shall be served on all other parties to the action at or prior to the pretrial conference or within such time as the court may designate. The filing of a motion or a defensive pleading shall not excuse the personal appearance of a party or attorney on the initial appearance date (pretrial conference).

5. The Plaintiff’s stated cause of action of account stated is invalid. The plaintiff did not show it had standing to sue. The alleged credit card statements were not created by Midland and the bill of sale did not have the defendant’s name or alleged account number attached as much information was redacted. Also, the Defendant disputed the alleged debt with both Chase Bank and Midland.

 

 “Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.”

Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. App. 2 Dist. 1975)

 

“An account stated must be based on prior dealings resulting in a subsisting debt. It may not rest upon a liquidated demand.”

Nicolaysen v. Flato, 204 So.2d 547, certiorari denied 212 So.2d 867 (Fla. App. 4 Dist. 1967)

 

Failure to establish ownership of the debt deprives the debt buyer of standing to sue.

In Unifund CCR Partners v. Cavender, 14 Fla. L. Weekly Supp. 975b (Fla. County Court, Orange County July 20, 2007

 

6.  Summary judgment for the plaintiff should be denied  because there are issues that can be contested at trial. The affidavit by Tanya Johnson is hearsay and Midland doesn’t have standing to sue. The bill of sale is also invalid being that the Defendant’s name or alleged account number is not included.

 

-Summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” 

Spears v. Albertson’s Inc., 848 So.2d 1176 (Fla. 1st DCA 2003) 

 

-“Generally, the party moving for summary judgment has the burden to prove conclusively the nonexistance of any genuine issue of material fact.” 

Lawrence v. Pep Boys Manny Moe & Jack, Inc., 842 So.2d 303 (Fla. 5th DCA 2003) 

 

-A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the non-moving party.” 

“If the evidence on a motion for summary judgment raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issue, it should be submitted to the jury as a question of fact to be determined by it.” 

Rule 1.510© 

Kitchen v. Ebonite Recreation Centers, Inc., 856 So.2d 1083 (Fla. 5th DCA 2003) 

Defendant reviewed the documents presented by the Plaintiff,

Bill of Sale and the Assignment,

and finds that they fail to sufficiently identify the accounts that were assigned or sold to the Plaintiff.

Neither the Bill of Sale nor the Assignment indicate the account numbers or names of account holders.

They do not provide any information that would allow the Court to determine if the alleged

account of the Defendant was one of the accounts sold or assigned to the Plaintiff.

Without any indicia of ownership that would sufficiently identify the true owner of the account

at the time the Plaintiff filed this action, the Plaintiff is unable to prove that it had standing

to bring the action. An assignment is the basis of the Plaintiff's standing to invoke the processes of

 the Court in the first place and is therefore an essential element of proof.

7. The defenses raised are not immaterial and there are genuine issues that should bar a summary judgment and the case should be dismissed with prejudice.

- “It is not necessary at hearing on summary judgment for nonmoving party to produce evidence to prove its case as it would at trial; available inferences may allow case to survive motion for summary judgment.” 

Lynch v. Tennyson, 443 So.2d 1017 (Fla. 5th DCA 1983)

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Hi @oak1787,

 

I've had some experience in Florida small claims and circuit courts, successfully defeating a banks Motion for Summary Judgment, and think I can be of assistance.  You are correct that this type of Motion practice does not belong in small claims court, but since they've filed it you cannot afford to let it go unanswered and risk the Judge granting it unopposed.  I think you need to keep a few things in mind. The amount they are suing for is relatively small, and a long drawn out battle is not in their interest. In Florida small claims court, they cannot attempt discovery if you are pro se (per FL small claims rules) - if you have not initiated discovery first.

 

To defeat the Motion for Summary Judgment you need to show that either a matter of law or fact remains in dispute.  I would file a Motion in Opposition To Summary Judgment (or Summary Disposition).  Along with this Motion, file an Affidavit denying the claims in their Motion, and the validity of the debt they claim you owe. The Affidavit should be signed by you and notarized. Then, the Motion in Opposition should reference the Affidavit, disputing the facts. Keep the Affidavit short and sweet, denying what you believe is false, and factually incorrect about their lawsuit.

 

I would strike completely Section 2 of your complaint, as it could be construed as an admission. It appears to validate the original creditor and a chain of title.  At this point your major objective is to defeat Midland's Motion for Summary Judgment, not debate all of their statements regarding the alleged original creditor. I understand your argument here, but I'm worried that a Judge could seize on some of your comments about Chase and begin asking you questions now that are better left for a trial.

 

In Section 3, strike the words "Chase Bank" for the same reasons (but keep the rest of the section). Keep your focus on Midland for now.

 

Strike Section 4 in its entirety. I have no doubt what you are saying is true. It mirrors my experience in Florida Small Claims Court and others who have posted here. However, I don't think this argument helps you, as the Judge may just say, okay - let's go to trial in 30 days.  The longer and harder you make Midland work, the more the process works in your favor.

 

Section 5 - again, strike Chase Bank from the headline. 

 

Section 6 - This is where I think you'll defeat their Motion.  

 

I defeated the Plaintiff's Motion for Summary Judgment in my case using Florida Rules of Civil Procedure 1.510 Summary Judgment (e), which states:

 

(e) Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.  (see:  http://floridacivpro.com/rules/1-510-summary-judgment/)

 

Is the Affidavit filed by the Plaintiff "made on personal knowledge, and does it set forth the facts as would be admissible as evidence...."  If not, I'd hammer this point home in Section 6 of your Motion, citing this Rule of Civil Procedure.  Here are some cases to cite, and reasons to use to attack the Affidavit for this Motion. I'm not certain which ones apply to your set of facts since I haven't seen their Affidavit, but review this for your case as I think they may be helpful.

 

LEGAL REASONING IN SUPPORT OF MOTION

 

                                                                                                

Affidavit Was Not Based Upon (Affiant's Name) Personal Knowledge.  As a threshold matter, the admissibility of an affidavit rests upon the affiant having personal knowledge as to                   the matters stated therein.  See Fla. R. Civ. Pro. 1.510(e) (reading, in pertinent part, that “affidavits  shall be made on personal knowledge”); Enterprise Leasing Co. v. Demartino,                                     15 So. 3d 711 (Fla. 2d DCA 2009); West Edge II v. Kunderas, 910 So. 2d 953 (Fla. 2d DCA 2005);  In re Forefeiture of 1998 Ford Pickup, Identification No. 1FTZX1767WNA34547,                       779 So. 2d 450 (Fla. 2d DCA 2000). 

 

The Third District, in Alvarez v. Florida Ins. Guaranty Association, 661 So. 2d 1230 (Fla. 3d DCA 1995), noted that “the purpose of the personal knowledge requirement is to prevent the trial court from relying on hearsay when ruling on a motion for summary judgment and to ensure that there is an admissible evidentiary basis for the case rather than mere supposition or belief.”  Id at 1232 (quoting Pawlik v. Barnett Bank of Columbia County, 528 So. 2d 965, 966 (Fla. 1st DCA 1988)).  This opposition to hearsay evidence has deep roots in Florida common law.  In Capello v. Flea Market U.S.A., Inc., 625 So. 2d 474 (Fla. 3d DCA 1993), the Third District affirmed an order of summary judgment in favor of Flea Market U.S.A as Capello’s affidavit in opposition was not based upon personal knowledge and therefore contained inadmissible hearsay evidence.  See also Doss v. Steger & Steger, P.A., 613 So. 2d 136 (Fla. 4th DCA 1993); Mullan v. Bishop of Diocese of Orlando, 540 So. 2d 174 (Fla. 5th DCA 1989); Crosby v. Paxson Electric Company, 534 So. 2d 787 (Fla. 1st DCA 1988); Page v. Stanley, 226 So. 2d 129 (Fla. 4th DCA 1969).  Thus, there is ample precedent for striking affidavits in full which are not based upon the affiant’s personal knowledge.

 

In the present case, the entire Affidavit is hearsay evidence as (Affiant's Name) has absolutely no personal knowledge of the facts stated therein, and has not claimed to have personal knowledge of the facts or alleged transactions or records.  Because (Affiant's Name) has no personal knowledge of the underlying transaction between the Plaintiff and Defendant, any statement she gives which references this underlying transaction is, by its very nature, hearsay.  The Florida Rules of Evidence define hearsay as “a statement, other than one made by the declarant while testifying at the trial   or hearing, offered in evidence to prove the truth of the matter asserted.”  Fla. Stat. §90.801(1)© (2007).  Here, (Affiant's Name) is averring to a statement (that the Plaintiff is allegedly owed sums of money) which was made by someone other than herself and is offering this as proof of the matter asserted.                                                                                                                                                  

 

                                                                                                  

Did the Plaintiff attach a copy of the alleged contract with Chase to the complaint?  If they are suing on alleged monies owed based on a contract they have not provided, then a material fact in dispute exists that requires the Plaintiff's Motion for Summary Judgment to be denied. If no contract from Chase was provided as part of the lawsuit or pleadings to date, then cite this rule:

 

1.130 Attaching Copy of Cause of Action and Exhibits

(a) Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.

 

 

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Here's a Midland case from Ohio with a similar set of issues and Tanya Johnson as the Affiant: http://www.supremecourt.ohio.gov/rod/docs/pdf/5/2014/2014-ohio-887.pdf

 

I think its a good thing to review as it will help crystalize your position. While I would not use the case references they used from Ohio to defeat Midland, you might attach this case to your Motion with a brief reference as it did to go the Ohio Supreme Court and I believe is instructive in your case. Perhaps others can weigh in on the appropriateness of using it as a reference here.

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Re Statue of Limitations, in Florida it is generally 4 years for credit cards. However, Chase has a provision in its contracts that they rely on Delaware for Choice of Law. Delaware has a 3 year SOL. It sounds like they are still within the SOL. What date did they file the lawsuit?

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I. INTRODUCTION

Granting Plaintiff’s Motion for Summary disposition prior to completion of any Discovery and prior to resolving the disclosed issues of fact would be improper and premature as there are still clear issues of fact which preclude a proper summary judgment at this time, including the material and pertinent issue of whether Plaintiff has proper standing to bring this action.

 

1. The Plaintiff states it has presented a complaint with a primary cause of action of Account Stated but has not submitted any admissible evidence to show they have standing in this case. The Defendant had no debtor/creditor relationship with Midland Funding llc.

 

The Plaintiff didn’t establish a debtor/creditor relationship with the defendant and established a course of business dealings between the parties for Account Stated. Additionally, it must be established that the Defendant was sent a statement and that the Defendant expressly or impliedly consented to the statement by failing to object. Consequently, there needs to be a copy of a statement and proof of mailing and receipt by the Defendant to establish a presumption of no objection.

 

Then, the relationship between the parties and the usual course of business between them becomes a question of law. (See, Martyn v. Arnold, 18 So.2d 791 (Fla. 1985).

 

For an account stated to exist, there must be 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 (Fla. 3d DCA 1981).

Also see, Carpenter Contractors Of America, Inc. and R & D Thiel, Inc. v. Fastener Corp. Of America, Inc., 611 So.2d 564 (Fla. 4th DCA 1992). Here there was no evidence that the parties agreed on any balance due and owing.

 

Also see, “Account stated claim involves agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.” South Motor Co. of Dade County v. Accountable Const. Co., 707 So.2d 909 (Fla. App. 3 Dist. 1998).

The Defendant never entered into a creditor/debtor relationship with Midland.

2. There is no Account Stated case because the Defendant objected to the alleged debt with Midland Funding llc through the three major credit bureaus well before the suit was filed.

 

"An account stated comes into being when a creditor periodically bills a debtor for a certain amount, which amount is not objected to within a reasonable time." Dudas v. Dade County, 385 So.2d 1144 (Fla. 3d DCA 1980).

 

3. There can be no prima face case for Account Stated since the Defendant disputed the account with Midland Funding llc. The Defendant also never received anything from Midland stating they owned the alleged debt.

 

 

The Plaintiff failed to notify the debtor of an assignment.
Florida Statutes section 559.715 states:

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 in a court of competent jurisdiction to collect a debt that has been assigned to such assignee and is in default.

 

“There can be no liability on an account stated if there has been no mutual agreement, and mere presentation of a claim and its retention without objection does not of itself create a liability.”
Recreation Corp. of America v. Jack Drury & Associates, Inc. 235 So.2d 49 (Fla. App. 4 Dist. 1970)

 

4. The Plaintiff’s stated cause of action of account stated is invalid. The plaintiff did not show it had standing to sue. The alleged credit card statements were not created by Midland and the bill of sale did not have the defendant’s name or alleged account number attached as much information was redacted. Also, the Defendant disputed the alleged debt with Midland Funding llc.

 

 “Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.”
Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. App. 2 Dist. 1975)

 

“An account stated must be based on prior dealings resulting in a subsisting debt. It may not rest upon a liquidated demand.”
Nicolaysen v. Flato, 204 So.2d 547, certiorari denied 212 So.2d 867 (Fla. App. 4 Dist. 1967)

 

Failure to establish ownership of the debt deprives the debt buyer of standing to sue.

In Unifund CCR Partners v. Cavender, 14 Fla. L. Weekly Supp. 975b (Fla. County Court, Orange County July 20, 2007

 

5.  Summary judgment for the plaintiff should be denied  because there are issues that can be contested at trial. The affidavit by Tanya Johnson is hearsay and Midland doesn’t have standing to sue. The bill of sale is also invalid being that the Defendant’s name or alleged account number is not included.

 

-Summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” 
Spears v. Albertson’s Inc., 848 So.2d 1176 (Fla. 1st DCA 2003) 

 

-“Generally, the party moving for summary judgment has the burden to prove conclusively the nonexistance of any genuine issue of material fact.” 
Lawrence v. Pep Boys Manny Moe & Jack, Inc., 842 So.2d 303 (Fla. 5th DCA 2003) 

-Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

--1.130 Attaching Copy of Cause of Action and Exhibits

 Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments.

 

-A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the non-moving party.” 

“If the evidence on a motion for summary judgment raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issue, it should be submitted to the jury as a question of fact to be determined by it.” 

Rule 1.510© 
Kitchen v. Ebonite Recreation Centers, Inc., 856 So.2d 1083 (Fla. 5th DCA 2003) 

Defendant reviewed the documents presented by the Plaintiff,

--Bill of Sale and the Assignment,

and finds that they fail to sufficiently identify the accounts that were assigned or sold to the Plaintiff.

Neither the Bill of Sale nor the Assignment indicate the account numbers or names of account holders.

They do not provide any information that would allow the Court to determine if the alleged

account of the Defendant was one of the accounts sold or assigned to the Plaintiff.

Without any indicia of ownership that would sufficiently identify the true owner of the account

at the time the Plaintiff filed this action, the Plaintiff is unable to prove that it had standing

to bring the action. An assignment is the basis of the Plaintiff's standing to invoke the processes of

 the Court in the first place and is therefore an essential element of proof.

6. The defenses raised are not immaterial and there are genuine issues that should bar a summary judgment and the case should be dismissed with prejudice.

- “It is not necessary at hearing on summary judgment for nonmoving party to produce evidence to prove its case as it would at trial; available inferences may allow case to survive motion for summary judgment.” 
Lynch v. Tennyson, 443 So.2d 1017 (Fla. 5th DCA 1983)

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A couple things jump out to address. However, without the Plaintiff's complaint being posted, I'm answering in a generic fashion on how to address these kind of common issues. Also, we have a member who is an attorney in your area, perhaps you should contact @LawKitty for a consultation.  Please note, I'm not an attorney, just someone who has been in a similar set of circumstances.

 

One area to address is their complaint is for a rather low dollar amount. Gaining some leverage through a potential counterclaim may be in your favor or might even make the whole thing go away. An area I would examine is whether the original creditor's contract allows a collection agency, debt buyer, or new party in interest (ie. Midland) to charge interest or fees on top of any original debt owed. If they are not per an original credit contract, and "padded the bill" as so many of these junk debt buyers do, you may have a FDCPA counterclaim for misrepresentation of the debt.  Just some food for thought.

 

Re your Motion, you are not just informing the court there are issues of fact in dispute, but issues of law and fact in dispute. If either an issue of law or fact remain in dispute, then Summary Judgment is not proper.  I would make sure my intro paragraph reflects that issues of both law and fact remain in dispute. I would re-order each numbered section, so what is now #5 becomes #1. It is your best argument, make it first.

 

Cut this section from what is presently #5:   "Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments."

 

I would then paste this rule in a separate numbered section. It needs to be properly identified as: "Florida Rule of Civil Procedure  1.130 Attaching copy of cause of action and exhibits." Then cite the rule above in full. Preface the rule with a brief statement in your words - ie. Plaintiff's complaint fails to attach the alleged contract upon which it relies. Without a copy of the alleged contract provided to the Defendant and the Court, issues of law and fact remain in dispute and therefore Plaintiff's Motion for Summary Judgment (or Disposition) must be denied. - then cite the rule as stated above.

 

Your current section #6 appears to call for dismissal of the case. However, you have not filed a Motion to Dismiss or given the court reason to dismiss.  I would edit out the Motion to Dismiss part. If you feel you have cause for dismissal, file that as a separate Motion. You don't have to file a Motion to Dismiss with this Motion. Get this on file first, and then if you want to move for dismissal for Plaintiff's lack of standing, failure to attach contract, etc., file it separately so the court can focus on each matter separately. 

 

Keep in mind your current section #3 is not likely to help a great deal, as the word "action" and the 30 days are often misconstrued. The rule states: "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 Plaintiff is likely to argue "action" is the lawsuit, not a requirement to provide notice to you within 30 days of their acquiring the alleged debt. In arguing this point, you may wish to focus on whether you received 30 days notice prior to the pending lawsuit. (Don't delete this section, just be aware of the potential pitfall. I think the rule is vague.)

 

Your present section #6 intro needs a little polish. Perhaps this: "The Defenses raised are material and genuine issues of law and fact remain in dispute that bar Plaintiff's Motion for Summary Judgment."

 

Per my earlier post, I think you need an Affidavit denying their claims, signed and notarized by you, that would be attached to your Motion. Your present Section # 6 would be an appropriate place to reference an Affidavit as "Exhibit A."  If you don't want to file an Affidavit, you may consider filing an Answer to the complaint called a "General Denial."  Have you filed any Answer to the complaint?

 

An Answer is a separate pleading and a General Denial would read something like this:  " Defendant is at present without information or knowledge to form an opinion as to the truth or accuracy of the allegations contained in its complaint, and denies generally the complaint and allegations contained therein."  Essentially you are saying, 'Hey, Midland has no standing here and without the alleged contract, I can't make heads nor tails of their claim."

 

I prefer an Affidavit to attach to a Motion in Opposition for Summary Judgment than just an Answer with General Denial. However, if you have not answered the complaint in any fashion to date, you may wish to do both.

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I. INTRODUCTION

Granting Plaintiff’s Motion for Summary disposition prior to completion of any Discovery and prior to resolving the disclosed issues of fact would be improper and premature as there are still clear issues of fact which preclude a proper summary judgment at this time, including the material and pertinent issue of whether Plaintiff has proper standing to bring this action.

 

1.  Summary judgment for the plaintiff should be denied  because there are issues that can be contested at trial. The affidavit by Tanya Johnson is hearsay and Midland doesn’t have standing to sue. The bill of sale is also invalid being that the Defendant’s name or alleged account number is not included.

 

-Summary judgment should not be granted unless the facts are so crystallized that nothing remains but questions of law.” 
Spears v. Albertson’s Inc., 848 So.2d 1176 (Fla. 1st DCA 2003) 

 

-“Generally, the party moving for summary judgment has the burden to prove conclusively the nonexistance of any genuine issue of material fact.” 
Lawrence v. Pep Boys Manny Moe & Jack, Inc., 842 So.2d 303 (Fla. 5th DCA 2003) 

-Form of Affidavits; Further Testimony. Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or by further affidavits.

-A party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the non-moving party.” 

“If the evidence on a motion for summary judgment raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issue, it should be submitted to the jury as a question of fact to be determined by it.” 

Rule 1.510© 
Kitchen v. Ebonite Recreation Centers, Inc., 856 So.2d 1083 (Fla. 5th DCA 2003) 

Defendant reviewed the documents presented by the Plaintiff,

--Bill of Sale and the Assignment,

and finds that they fail to sufficiently identify the accounts that were assigned or sold to the Plaintiff.

Neither the Bill of Sale nor the Assignment indicate the account numbers or names of account holders.

They do not provide any information that would allow the Court to determine if the alleged

account of the Defendant was one of the accounts sold or assigned to the Plaintiff.

Without any indicia of ownership that would sufficiently identify the true owner of the account

at the time the Plaintiff filed this action, the Plaintiff is unable to prove that it had standing

to bring the action. An assignment is the basis of the Plaintiff's standing to invoke the processes of

 the Court in the first place and is therefore an essential element of proof.

 

2. Florida rule of civil Procedure 1.130 Attaching copy of cause of action and exhibits.

Plaintiff's complaint fails to attach the alleged contract upon which it relies. Without a copy of the alleged contract provided to the Defendant and the Court, issues of law and fact remain in dispute and therefore Plaintiff's Motion for Summary Judgment (or Disposition) must be denied. - then cite the rule as stated above.

 

3. The Plaintiff states it has presented a complaint with a primary cause of action of Account Stated but has not submitted any admissible evidence to show they have standing in this case. The Defendant had no debtor/creditor relationship with Midland Funding llc.

 

The Plaintiff didn’t establish a debtor/creditor relationship with the defendant and established a course of business dealings between the parties for Account Stated. Additionally, it must be established that the Defendant was sent a statement and that the Defendant expressly or impliedly consented to the statement by failing to object. Consequently, there needs to be a copy of a statement and proof of mailing and receipt by the Defendant to establish a presumption of no objection.

 

Then, the relationship between the parties and the usual course of business between them becomes a question of law. (See, Martyn v. Arnold, 18 So.2d 791 (Fla. 1985).

 

For an account stated to exist, there must be 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 (Fla. 3d DCA 1981).

Also see, Carpenter Contractors Of America, Inc. and R & D Thiel, Inc. v. Fastener Corp. Of America, Inc., 611 So.2d 564 (Fla. 4th DCA 1992). Here there was no evidence that the parties agreed on any balance due and owing.

 

Also see, “Account stated claim involves agreement between persons who have had previous transactions, fixing amount due in respect to such transactions and promising payment.” South Motor Co. of Dade County v. Accountable Const. Co., 707 So.2d 909 (Fla. App. 3 Dist. 1998).

The Defendant never entered into a creditor/debtor relationship with Midland.

4. There is no Account Stated case because the Defendant objected to the alleged debt with Midland Funding llc through the three major credit bureaus well before the suit was filed.

 

"An account stated comes into being when a creditor periodically bills a debtor for a certain amount, which amount is not objected to within a reasonable time." Dudas v. Dade County, 385 So.2d 1144 (Fla. 3d DCA 1980).

 

5. There can be no prima face case for Account Stated since the Defendant disputed the account with Midland Funding llc. The Defendant also never received anything from Midland stating they owned the alleged debt.

 

 

The Plaintiff failed to notify the debtor of an assignment.
Florida Statutes section 559.715 states:

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 in a court of competent jurisdiction to collect a debt that has been assigned to such assignee and is in default.

 

“There can be no liability on an account stated if there has been no mutual agreement, and mere presentation of a claim and its retention without objection does not of itself create a liability.”
Recreation Corp. of America v. Jack Drury & Associates, Inc. 235 So.2d 49 (Fla. App. 4 Dist. 1970)

 

6. The Plaintiff’s stated cause of action of account stated is invalid. The plaintiff did not show it had standing to sue. The alleged credit card statements were not created by Midland and the bill of sale did not have the defendant’s name or alleged account number attached as much information was redacted. Also, the Defendant disputed the alleged debt with Midland Funding llc.

 

 “Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.”
Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. App. 2 Dist. 1975)

 

“An account stated must be based on prior dealings resulting in a subsisting debt. It may not rest upon a liquidated demand.”
Nicolaysen v. Flato, 204 So.2d 547, certiorari denied 212 So.2d 867 (Fla. App. 4 Dist. 1967)

 

Failure to establish ownership of the debt deprives the debt buyer of standing to sue.

In Unifund CCR Partners v. Cavender, 14 Fla. L. Weekly Supp. 975b (Fla. County Court, Orange County July 20, 2007

 

7. The Defenses raised are material and genuine issues of law and fact remain in dispute that bar Plaintiff's Motion for Summary Judgment.

 Defendant is at present without information or knowledge to form an opinion as to the truth or accuracy of the allegations contained in its complaint, and denies generally the complaint and allegations contained therein

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@oak1787, still answering a bit blindly here without the complaint posted. However, If it were my motion, I would have section 2 look like this:

 

2. Failure to attach alleged contract upon which complaint relies. Plaintiff's complaint fails to attach the alleged contract upon which it relies. Without a copy of the alleged contract provided to the Defendant and the Court, issues of law and fact remain in dispute and therefore Plaintiff's Motion for Summary Judgment (or Summary Disposition) must be denied.

 

Florida Rules of Civil Procedure 1.130 Attaching copy of cause of action and exhibits, states:

 

"Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments."

 

The rest looks okay. However without an Answer filed or an Affidavit, it may not be sufficient, depending on the Judge. I really think you should run this past LawKitty for review, too.

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ok changed that

 

2. Failure to attach alleged contract upon which complaint relies. Plaintiff's complaint fails to attach the alleged contract upon which it relies. Without a copy of the alleged contract provided to the Defendant and the Court, issues of law and fact remain in dispute and therefore Plaintiff's Motion for Summary Judgment (or Summary Disposition) must be denied.

 

Florida Rules of Civil Procedure 1.130 Attaching copy of cause of action and exhibits, states:

 

"Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits. The pleadings shall contain no unnecessary recitals of deeds, documents, contracts, or other instruments."

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I feel good about section 1

For the amount there trying to get I don't think it would take much for them to move on but could be wrong. .

I WAS just going to give in to them but found this site and know very little what I am doing but just surf and put things together . Had great help from u. Thank u

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Might be a dumb question but the plaintiff motion for summary disposition. Came from midland funding shouldn't have come from the court house? And says nothing about a responding to it. But I am going to hand to the court in person

 

They are required to send you a copy, just as you are required to send them a copy of all of your Motions. They do not have to advise you on how to respond - actually they are prohibited from doing so, as they could be accused of giving you legal advice.  Please read Florida Small Claims Rules over:

 

 http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/5E3D51AF15EE8DCD85256B29004BFA62/$FILE/Small%20Claims.pdf?OpenElement

 

If you think you owe the money, you can always file an offer of settlement. It would be sent in writing to both the Court and the Plaintiff. If they decline a reasonable offer, it doesn't look too good to the Judge. Another approach is to request court sponsored mediation.  Florida county courts have mediators at the courthouse for parties to meet with. You can confidentially explore a settlement discussion that way, and the information discussed cannot be used against you at trial. If you are considering exploring these options, file your opposition Motion first, putting you in a better negotiating position. Remember, junk debt buyers purchase these account for pennies on the dollar. In this instance, they probably paid $50 - $75 for the account. If you offer them $500, its a home run...and they move on to the next one. Just food for thought...

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  • 2 weeks later...

Just curious, what county are you in?  I haven't had time to really look over your response to summary judgment yet.  Depending on what county you are in, it might be a good idea to file a Motion to Dismiss, if that has not already been done.  The weakest point of all these JDB lawsuits are the assignments and the paperwork they attach (or don't attach to the Complaint).  I generally argue lack of standing, failure to state a claim upon which relief can be granted, and failure to perform conditions precedent.  Look for inconsistencies in amounts, dates, account numbers, names, missing paperwork, etc.  The JDBs are limited in the fact that the original creditors or previous assignors give them only bare bones, limited paperwork to try and collect from.  Most of the time, it doesn't matter as many of the cases end up with default judgments or stipulated agreements (that turn into default judgments when the debtor misses any payment).  It only matters when someone actually fights them and asks the JDB to prove their case.

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  • 2 months later...

Sorry kitty just say your reply. I am in Hernando county

Brooksville.fl

I just got a.letter today

Order granting plaintiffs.motion to appear by telephone. In two days in the court chambers I am taking it.i need.to be there ? They didn't give any time.to make.time to show.up..

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I went to midland motion for summary disposition hearing .  told the judge that i have mailed them i dont how many times asking information on this.  I went with the paper work showed above..    told him wanted midland to show me that they are the owner of this account and not to send me a bill of sale unless it has me name ,account number,etc on it... 2nd  ask them how they came up with the number they say i own .. items,times,dates, and where i signed for the items..  i ask them for a original contract signed by both parties on the card...  he gave me a week to send them what i wanted to know  and they have 9 days to send me my answers back .. we go back in feb  for the motion for summary dispostion..

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