HELP! - being sued in FL by Portfolio Recovery Assoc

[bottomsup]

Hello, all,

 

I'm new to the board and just getting the chance to read through all the threads. I have to make an appearance before the judge in a pretrial conference this week, and am hoping one of you would be so kind to offer up some advice. I filled ou the questionnaire below. Please let me know if you need any more info.

 

1. Who is the named plaintiff in the suit?

Portfolio Recovery Assoc.

2. What is the name of the law firm handling the suit

Hayt, Hayt & Landau

3. How much are you being sued for?

Under $2,000 plus court cost.

4. Who is the original creditor

U.S. Bank

5. How do you know you are being sued?

Process server came to my home and delivered it to me.

6. How were you served?

In person

7. Did the service meet the state legal requirements?

I believe so.

8. What was your correspondence (if any) w/ the plaintiffs before this lawsuit?

None

9. State

Florida

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

Mid-2013

11. What is the statute of limitations on the debt?

4 years

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

Served Notice to Appear for Pre-Trial Conference/Mediation. Served 20 days after they filed w/ the clerk of court, and 6 days before the pre-trial conference. I haven't filed an answer yet. I was really blindsinded, b/c I just learned of this complaint with less than a week to prepare for the pretrial conference.

13. Have you disputed the debt with the credit bureaus (either the original creditor and the collection agency?)

No.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late

No.

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

Florida Rules of Civil Procedure says I have 20 days to respond, starting after the day I was served. But, that is well after this pre-trial conference.

This is the redacted complaint:

Count I - Account Stated

1. This action is within the jurisdictional limits of this court

2. Defendant (s) is/are resident(s) of this county

3. All conditions precedent have occurred.

4. U.S. Bank National Association has assigned the chose in action and Plaintiff is the owner of the debt.

5. Before the institution of this action U.S. Bank and Defendant had business transactiosn between them and they agreed to the resulting balance for acct number ###############

6. U.S. Bank rendered a statement to Defendant, and Defendant did not object to the statement.

7. Defendant owes ##### on the account.

Wherefore, Plaintiff demands judgment for ##### and court costs against Defendant.

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

All they attached were credit card statements that had my name and address on it, credit card use transactions, balance and payments.
 

[debtzapper]

I will ask our resident FL member and excellent consumer lawyer @LawKitty to weigh in here when she has time.

[debtzapper]

@bottomsup

 

Please state in which city or county in FL you reside.   There is some variation among FL courts in how they rule in debt collection cases.

 

Also, under FL. 559.715,  prior to the lawsuit, did you receive a letter from Portfolio stating that they were assigned the debt from US Bank?

[bottomsup]

I am in Leon County, and if I did receive a letter I am not aware of it.

[bottomsup]

I just learned from an attorney here in Florida that w/ a notice to appear for pretrial conference/mediation, I do not get an opportunity to write a formal response, i.e., no 20 days. I have to either come prepared tomorrow or ask the judge for a continuation. Should I ask for a continuation or just say the stuff about motion to dismiss for lack of standing and deny everything?

[LawKitty]

It sounds like you are being sued in small claims court. Generally you get 3 options in small claims pre-trial. The attorney for Portfolio will try to get you to sign a stipulated payment agreement to pay off the debt in monthly payments. The only thing is that if you agree to a payment stipulation, if you are late or miss one payment, Portfolio can file an affidavit that you missed a payment and it gets converted to a judgment without further court appearances. If you can't make monthly payments, then they can also ask you to consent to a judgment. Basically that is giving the other side a win (and a judgment) without them having to further prove their case. I have no idea why anyone would pick that option. The third option is to request a trial date. Basically you tell the judge that you are contesting the case, that you're not sure that the plaintiff has standing to sue or that they have performed all conditions precedent. This option at least forces the plaintiff to have to prove their case before getting a judgment. Then you can send off discovery and find out what the plaintiff does have in their possession to prove the case. Look for inconsistencies in amounts and dates and account numbers. It's a bit hard to 'agree' on a resulting balance if the amounts don't match up. Also they should have to prove they actually own the debt and are the proper party to bring the suit. Did they attach any documents regarding the assignment of the debt?

[blackomega]

While I would definitely defer to lawkitty as she is an attorney, and I can only say what I have seen my brother use with success in his cases so far, including small claims, I can post them for you. Note my brother is no attorney, nor am I. I have only been on here doing my own research in case anyone takes me to court. Luckily I only have one account left within SOL, my brother has not been so lucky. What I can say is that in every single case both small claims and civil exceeding 5k they fold when he objects to witnesses appearing telephonically. Now this may be just his luck and lawkitty or any other lawyer will be much better equipped to advise. That said he currently is in a small claims with a JDB and as he has done in the past he files an answer with jury demand either within 5 days of being served or at the pretrial. Which is IIRC, the only two times you can demand it. The courts also have never had issue with him filing discovery. But again I must stress this is his experiences, and you should listen to any lawyer that you can consult.

 

His experience has been as follows, but please again note this is his experiences:

1) Files his answer, a motion to strike the count if he feels he can argue it, and notice of cost bond if it has been 30 days since it was filed

2) He files admissions and requests to produce

3) Watches the docket like a hawk and files a motion in opposition to telephonic appearance within 24 hr of the motion for telephonic appearance

4) The case is always dismissed before trial. Stressed again this is his experience.

[blackomega]

Here is the notice of bond template he uses:

 

IN THE COUNTY COURT IN AND FOR

_________ COUNTY, FLORIDA

 

 

JBC LLC                                                                                      Case No.: ________________

 

                                    Plaintiff,

vs.       

 

My Bro

 

                                    Defendant(s)

____________________________________________/

 

NOTICE OF FAILURE OF PLAINTIFF TO POST NONRESIDENTIAL COST BOND ON BEHALF OF DEFENDANT

 

            YOU ARE HEREBY NOTIFIED by Defendant My Bro (hereinafter “Defendant”) that Florida Statutes 57.011 requires nonresidential Plaintiffs to post a cost bond with a surety approved by the Clerk of the Court in the amount of $100.00 within thirty (30) days of the filing of the action. To date, Plaintiff, a foreign LLC organized under the laws of ________, has not filed a cost bond pursuant to Florida Statutes 57.011. See 1964 Op.Att'y. Gen.Fla. 064-179 (Dec. 15, 1964) The fact that plaintiff registered with the Secretary of State to do business in Florida does not obviate the necessity of compliance with the statute. Failure to post this bond within twenty (20) days of this Notice entitles the Defendant to dismissal of this lawsuit.  The Defendant will seek such a dismissal and any other remedy provided for under applicable statutes or rules.

           

Respectfully submitted:

                                                                                                Month 00^th, 2014

                                                                                               

                                                                                                ________________________

                                                                                                My Bro

                                                                                                Address

                                                                                                (000) 000-0000

[blackomega]

The answers are unique to whatever they have in their complaint, for account stated he is using the following, they may or may not apply or even be well drafted. Note again he IS NOT an attorney and I am sure lawkitty will have more info to help as she is an attorney I believe. I do know he researches the heck out of whatever caselaw he cites and tries to put together arguments to support them. If you fight you have to be prepared to argue what you use as a defense or in a motion. In his case not much was attached to the complaint, in his experiences, not much ever is.

 

He never received a notice of assignment and thus used this as a defense:

 

NUMBER AFFIRMATIVE DEFENSE

Defendant does hereby assert the affirmative defense of failure to comply with all conditions precedent to the instant action. Specifically those time requirements related to the collection of purchased and/or assigned debts. See Florida Statute 559.715 which provides in part:

 

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. (Emphasis mine)

 

Florida courts have demanded strict compliance with the statute. See UMLIC-VP v. LEVINE, 10 Fla L. Weekly. Supp 336 (2003), and CACH, LLC v QUARTERMAINE, 15 Fla. L. Weekly Supp. 843b (2008).

 

They basically attached a single statement therefore he used:

 

NUMBER AFFIRMATIVE DEFENSE

Defendant asserts the affirmative defense of failure to meet the pleading burden required by Florida Rules of Civil Procedure 1.130 to state a cause of action. Plaintiff has failed to allege a date of breach and failed to attach sufficient portions of the required documentation in accordance with F.R.C.P. 1.130. Defendant avers that the documents Plaintiff attached to their Complaint are insufficient, as Plaintiff only attached a single statement, nor is there anything attached bearing the Defendant’s signature. Defendant avers that the documents provided in the Complaint are not adequate to establish any agreement between Defendant and Plaintiff or its predecessor assignee(s). See Samuel v. King Motors of Ft. Lauderdale 782 So.2d 489 (Fla. 4^th DCA 2001), where a complaint is based on a written instrument, the complaint does not state a cause of action until the instrument or an adequate portion thereof is attached to or incorporated in the complaint.

[blackomega]

He also used the following:

 

NUMBER AFFIRMATIVE DEFENSE

Defendant asserts the affirmative defense that Plaintiff has failed to state a cause of action for account stated. Defendant asserts that there was no agreement between Defendant and Plaintiff, JDB LLC, ETC or Plaintiff’s predecessor(s) on the alleged account as alleged in Count 1; ACCOUNT STATED of the Complaint.

 

Defendant avers that Plaintiff has provided no adequate evidence of the alleged account, the date of the alleged breach, or even that there was a breach, regardless “There can be no liability on an account stated if there has been no mutual agreement, and mere presentation of a claim and it’s retention without objection does not of itself create a liability.” See, Recreation Corp. of America v. Jack Drury & Associates, Inc 235 So.2d 867 (Fla. App. 4 Dist. 1970)  “Failure to respond to demand for payment does not create obligation for account stated absent contractual agreement creating such liability.” See, Page Avjet Corp. v. Cosgrove Aircraft Sers., Inc. 546 So. 2dd 16, 18 (Fla. 3d DCA 1989). “Complaint failed to state cause of action for “Account Stated” where allegations therein did not show existence of a mutual agreement.” See also, Dionne v. Columbus Mills, Inc., 311 So.2d 681 (Fla. App. 2 Dist. 1975)

 

And......

 

NUMBER AFFIRMATIVE DEFENSE

Defendant asserts the affirmative defense that Plaintiff, JDB LLC, ETC, has failed to plead facts sufficient to establish a claim pursuant to F.R.C.P. 1.933. Defendant asserts that Plaintiff, JDB LLC, ETC, has not attached any adequate evidence of the alleged agreement as alleged in Count 1; ACCOUNT STATED of the complaint nor has Plaintiff attached a full copy of the account, showing all items, time of accrual of each, and amount of each, as required, pursuant to Florida Rules of Civil Procedure 1.933. If, as Plaintiff alleges, this is for a Credit Card debt spanning a certain period of time, a single statement in time will not be adequate to fulfill the noted requirements of F.R.C.P. 1.933 as required in that form.

 

 

Defendant avers that Plaintiff has failed to meet its pleading burden in this cause of action as Plaintiff’s complaint closely mimics the fill-in-the-blank pleading example in F.R.C.P 1.933. “a plaintiffs obligation to provide the …"grounds" of his "entitle[ment] to relief" requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do” see, Bell Atl. Corp. v Twombly, 550 U.S. 554, 570 (2007). “It should be noted the language of this pleading mimics a fill-in-the-blank pleading example provided in Florida Rule of Civil Procedure Form 1.936. Nevertheless, the Supreme Court in Twombly clearly requires more than “a formulaic recitation of the elements of a cause of action,” See also, Paladin Shipping CO. LTD. v Star Capital Fund LLC, US Dist. Court, (SD Fla. 2010) It should be noted that F.R.C.P. 1.933 is similar to F.R.C.P. 1.936 in that it provides a blank form of sorts for a Complainant to use as a template, and as noted in Star Capital, Defendant avers that Plaintiff appears to have “filled in the blanks” for F.R.C.P. 1.933 whilst not supporting the alleged claim.

[blackomega]

And finally what he has used successfully in his cases for opposition to the telephonic appearances, essentially they grant it due to reason 4:

 

IN THE COUNTY COURT IN AND FOR

________ COUNTY, FLORIDA

 

 

JDB LLC, ETC                                                            Case No.: __________________

 

                                    Plaintiff,

vs.       

 

My Bro

 

                                    Defendant(s)

____________________________________________/

 

 

 

 

 

 

 

 

DEFENDANTS RESPONSE IN OPPOSITION TO PLAINTIFFS

MOTION TO APPEAR TELEPHONICALLY (WITNESS)

           

 

Comes now the Defendant, My Bro, Pro Se, pursuant to applicable Florida Rules of Civil Procedure and respectfully requests this Honorable Court deny Plaintiffs Motion to Appear Telephonically (witness). In support of this motion, Defendant would state as follows:

 

1. Defendant understands that there may be circumstances where it would be appropriate for Plaintiffs witness to appear telephonically. However, trial is not one of those situations. Given that the trial will require the examination of the witness and the possible presentation of exhibits, it would not be prudent to allow Plaintiffs witness to participate in the trial telephonically.

 

 

1. The personal appearance of any witness for the Plaintiff is crucial at trial for the Court to weigh his/her credibility. Credibility determinations are based on not just the tone of voice, but also on other important physical actions such as eye contact, body language, and many other signals that just can’t be interpreted telephonically.

 

1. The Standard Jury Instructions – Contract and Business Cases as approved by the Florida Supreme Court (as listed on http://www.floridasupremecourt.org/ as of 10/14/2014), specifically identifies that "In evaluating the believability of any witness and the weight you will give the testimony of any witness, you may properly consider the demeanor of the witness while testifying;” as one of the factors to take into consideration when determining credibility of that witness. See Standard Jury Instructions – Contract and Business Cases, 601.2  BELIEVABILITY OF WITNESSES, a. General considerations. See also Black's Law Dictionary 1679 (8th ed.2004) (defining “demeanor evidence” as the “behavior and appearance of a witness on the witness stand, to be considered by the fact finder on the issue of credibility.”) The Court must be able to see Plaintiffs witness as he/she provides testimony so that it may adequately weigh his/her credibility.

 

1. Defendant does not consent to Plaintiffs witness appearing telephonically. See Florida Rules of Judicial Administration 2.530(d) July 17, 2014.

 

Florida Rules of Judicial Administration 2.530(d)(1) provides:

(1) Generally. A county or circuit court judge, general magistrate, special magistrate, or hearing officer may allow testimony to be taken through communication equipment if all parties consent or if permitted by another applicable rule of procedure.

 

 

 

 

1. In closing my opposition to this motion is not to cause undue costs or waste of time, it's to make sure I'm able to see the "whole big picture, both verbally and non-verbal" I cannot fully do that telephonically. As a Pro Se I will be the one cross-examining the witness and with that being the case, I need to be able to see if the witness gets nervous at certain questions, or starts shifting in the chair. How the witness reacts to questioning determines possible follow up questions and different routes I may take with my line of questioning. This will all be determined by the "feel" and the "read" I'm getting from the witness. Notwithstanding all of the above, I also cannot verify the identity of Plaintiffs witness nor can I be sure that he/she is not reading from a "script" or being coached.

 

 

WHEREFORE, Defendant respectfully requests that the Court deny Plaintiffs Motion to Appear Telephonically (witness).

 

 

 

            Respectfully submitted:

                                                                                                Month ??^th, 2014

                                                                                               

                                                                                                ________________________

                                                                                                My Bro

                                                                                                ADDRESS

                                                                                                (000) 000-0000

[blackomega]

And last but not least I only posted what my brother has used as an example of what someone else has done. If you use them it's at your own peril. For him I know he spends many many hours preparing  and so far has only had to appear to argue a motion to compel, which almost was granted but the opposing attorney pointed out a small clause that ended up getting it denied. In that case he tried to shoot for arbitration. But again don't use anything you see or ask for a trial unless you intend to do much research and get fully prepared. To him he said the hearing was easy but he researched 20+ hours to be able to argue it. A trial would need much more prep time I am sure. My wife almost went his route but there was a clear FDCPA violation that a NACA attorney took for contingency. That case went class action. Be careful and consult an attorney if at all possible. NACA attornys are awesome.

[bottomsup]

@LawKitty

 

The only thing they attached were a couple of credit card statements. No bill of sale or anything resembling proof they own the debt, aside from their bare assertion in the complaint.

[debtzapper]

@bottomsup

 

See my PM

[bottomsup]

Following up on this topic. I would appreciate any advice soon. Let me give a run down of what went on:

 

1. Nov. 4th, showed up at pre-trial conference; denied the entire complaint and asked for a trial (failed to ask for a jury trial)

 

2. Same day, administrator (judge wasn' there) scheduled a trial for Dec. 8.

 

3. Nov. 10th, submitted motion to dismiss (MTD) for lack of standing (they never attached any contract showing they owned or were assigned the debt) and failure to state a claim (didn't comply w/ Florida Rules of Civ Pro for Account Stated claims)

 

4. Nov. 20th, got an email from Judge's assistant saying there was no time for a MTD hearing and MTD would be addressed before the trial.

 

Now what? According to Fla Civ Pro rules, if I am going to make discovery requests I need to give them 30 days. However, the trial is set for Dec. 8th. They haven't made any requests of me either. They haven't motioned for telephonic appearances of witnesses (I can't imagine they are going to fly someone from the OC's office into small claims court). What's the deal? I haven't heard a word from them.

[debtzapper]

I PM'd @bottomsup about the outcome of his case.  He won!  I have his permission to copy his PM to me here:

 

 

Sent Yesterday, 04:51 PM

debtzapper, on 21 Mar 2015 - 6:39 PM, said:

You haven't posted since Dec. 10. How did your case turn out?

 

Oh hey!

 

Yeah, people haven't been really responsive on my posts, so I figured no one was really interested. It worked out well. The judge told Portfolio they had to appear in court, physically and not telephonically, which made them dismiss the case with prejudice. Still trying to figure out how to get it off my credit report, but it's not a huge concern of mine.

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