Junk buyer bringing case in FL

[rattler98]

Answers to "The Questions"

 

Plaintiff is a Junk Debt Buyer, presented by attorneys in Florida.

 

1. Who is the named plaintiff in the suit? CACH LLC
2. What is the name of the law firm handling the suit? One of the common firms for CACH LLC in Florida
3. How much are you being sued for?  $2500-5000
4. Who is the original creditor? (if not the Plaintiff)  BoA
5. How do you know you are being sued?  Properly served in person.
8. What was your correspondence? None
9. What state and county do you live in? Florida, Hillsborough
10. When is the last time you paid on this account? Don't recall, but I doubt it's outside the SOL
12. What is the status of your case?  Complaint served. Answer and Affirmative Defenses Filed by me
13. Have you disputed the debt with the credit bureaus NO
14. Did you request debt validation before the suit was filed? NO
15. How long do you have to respond to the suit?  Pre-trial in ~30 days
16. What evidence did they send with the summons? Standard Bill of Sale and Affidavit of Sale and Assignment

 

The complaint is the standard three part Cach, LLC statement with General Allegations, Unjust Enrichment, and Account Stated.  Attached were ~6 months of CC statements.

 

The status; just filed my Answer and Affirmative Defenses and debating on the next step. Should I wait for the pre-trial conference or take the offensive and start tearing apart the affidavit attached via a motion to strike? 

 

BTW: I tried viewing the links for racecar's motion to strike documents, but they are missing. I've been pretty good with squashing companies before it reaches this point i.e. with fighting negatives on my CRA reports, so I'm comfortable with some armchair lawyer'ing. This is a new venture, and I'm tenacious about these things...I love to win!!!

 

Here's the answer:

 

ANSWER AND AFFIRMATIVE DEFENSES

Defendant hereby Answers the Complaint of the plaintiff as follows.

GENERAL ALLEGATIONS

1. Admit.

2. Admit.

3. Deny. 

4. Deny. 

5. Deny. 

6. Deny. 

7. Deny. 

8. Deny. 

COUNT I – UNJUST ENRICHMENT

The Defendant hereby readopts and re-alleges his allegations one (1) through eight (8) above and further answers as follows:

9. Deny. 

10. Deny. 

11. Deny. 

12. Deny. 

13. Deny. 

COUNT II – ACCOUNT STATED

The Defendant hereby readopts and re-alleges his allegations one (1) through eight (8) above and further answers as follows:

14. Deny. 

15. Deny. 

16. Deny. 

17. Deny. 

 

FIRST AFFIRMATIVE DEFENSE

The Plaintiff lacks standing to bring a cause of action for both Counts I and II. Specifically, the Florida Rules of Civil procedure 1.130 states:

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.

The plaintiff has failed to meet this requirement on the face of its complaint.

 

SECOND AFFIRMATIVE DEFENSE

The Complaint contains insufficient information to permit the Defendant to raise all appropriate defenses, and therefore, the Defendant reserves the right to amend/supplement this Answer with additional affirmative defenses upon completion of Discovery.

 

PURSUANT to Rule 1.430 of the Florida Rules of Civil Procedure, Defendant demands a trial by jury on all issues as a matter of right.

 

WHEREFORE, Defendant, having fully answered the claim in this matter prays that this court enter Judgment against the Plaintiff and award to the Defendant, costs and such other relief as this court deems just and equitable.

[debtzapper]

Did CACH comply with FL 559.715?  In some FL counties, that is a condition precedent to bringing suit.  Our resident FL member @LawKitty is an excellent consumer lawyer and actually knows the lawyer representing Solano in the case below.  I will ask her to weigh in on your case.  Read all of her posts.  

 

 

• CACH, L.L.C. v. Mario Solano - Sixth Judicial Circuit

  www.jud6.org/.../2014/02.../CACHLLC512013AP000005APAXWS.pdf

  •  

   

  Feb 19, 2014 - determined that the notice provision in § 559.715, Fla. Stat., creates a condition ... OF THE STATE OF FLORIDA, IN AND FOR PASCO COUNTY.

[LawKitty]

Here are some of the arguments I used in one case from CACH. The statements attached to the complaint had different amounts; the notice of assignment had references to agreements not attached and dates were inconsistent, which I pointed out in my argument. Also, the original creditor was Sears so you will have to substitute your original creditor, amounts, dates, etc., and use what may apply. I can't guarantee this will work for you, of course. This may or may not apply in your case but there should be some helpful stuff in there, nonetheless.

PLAINTIFF LACKS STANDING

- CACH,LLC is not the true owner of the claim sued upon, is not the real party in interest and is not shown to be authorised to bring this action.

- The Plaintiff lacks standing pursuant to the alleged assignment and because they failed to perform all conditions precedent to bringing this action.

- Plaintiff asserts standing in the above-styled action through an assignment from Citibank South Dakota, N.A. However, Plaintiff has failed to attach any document to the Complaint evidencing actual assignment and has further failed to allege specific facts regarding the date of the assignment, the nature and extent of the rights and duties assigned, the parties executing the assignment, the authority of the parties as representatives of the alleged assignor to assign rights to the Plaintiff. Standing requires that the party prosecuting the action have a sufficient stake in the outcome in order to be recognised in the law as being a real party in interest entitled to bring the claim. This entitlement to prosecute a claim in Florida courts rests exclusively in those persons granted by substantive law, the power to enforce the claim. Kumar Corp.v. Nopal Lines, Ltd. et al, 462 So.2d 1178 (Fla. 3d DCA 1985). A Plaintiff's lack of standing at the commencement of a case is a fault that cannot be cured by gaining after the case has been filed. Progressive Express Ins. Co. v. McGrath Community Chiropractic, 913 So.2d 1281,1285 (Fla. 2d DCA 2005).

• The Bill of Sale and Assignment attached to the Complaint as Exhibit A dated June 16, 2011, references a Purchase and Sale Agreement dated October 27, 2010, regarding Accounts described in Exhibit 1. Exhibit 1 that allegedly describes the Accounts that were assigned is not attached to the Complaint.

• The last payment showing on the account is on January 16, 2011, yet the Purchase and Sale Agreement, referenced in Exhibit A (Bill of Sale and Assignment), regarding accounts (of which Defendant is allegedly one of those accounts) that were described in Exhibit 1 (not attached to the Complaint) is dated for October 27, 2010. That means the Defendant account was included in that Purchase and Sale Agreement dated before the alleged last payment or default date.

- Section 559.715, Florida Statutes, permits the assignment of consumer debts to third parties, but requires them to "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." Plaintiff alleges ownership of the account for which Defendant is obligated. However, Defendant never entered into an agreement with the Plaintiff, never had prior dealings with the Plaintiff and Defendant was never notified by Plaintiff prior to the filing of the above-styled matter that any account for which the Defendant was obligated had been purchased.

• The Plaintiff failed to comply with the notice requirement because the Defendant never received the notice and the only record of the Plaintiff sending a notice is the one attached as Exhibit A to Plaintiff's Motion to Strike Affirmative Defences, which is dated April 2, 2013, a little more than 2 years after the account in question was allegedly assigned. Therefore there is no record that the Plaintiff mailed the required notice to the Defendant's last known address prior to filing this action. Notice to the Defendant from the Plaintiff of the alleged assignment pursuant to F.S.§ 559.715 has been found in this Court to be required as a condition precedent to filing the above-styled action.

- Plaintiff failed to notify Defendant of the alleged assignment and consequently failed to comply with the required condition precedent to filing. Plaintiff has no standing and is therefore precluded from filing the above-styled action. Plaintiff's failure to comply with the requisites of F.S. §559.715 may not be cured post-filing. While Courts have ruled differently on whether F.S. §559.715 is a condition precedent, several Courts, including this one, have ruled in favour of it being a condition precedent. See Midland Funding, LLC v. James Cembrook, 20 Fla.Supp.74a (Fla. Seminole Cty. Ct. 2012); Portfolio Recovery Associates, LLC v. Richard Smith,15 Fla.L.Weekly Supp.169a (Fla.Leon Cty.Ct.2007); Equable Ascent Financial, LLC v. Michael Davis, 19 Fla. Supp. 592b (Fla. Orange Cty. Ct. 2012); Equable Ascent Financial, LLC v. Angela Berrios, 19 Fla. Supp. 659b (Fla. Osceola Cty. Ct. 2012); Asset Acceptance v. Jeffrey Boyer, 19 Fla. Supp. 216a (Fla. Volusia Cty. Ct. 2011); CACV Of Colorado, LLC v. Tammy A. Lam, 17 Fla.Supp. 856a (and Portfolio Recovery Associates, LLC v. Miloslav Verveka, 18 Fla.Supp.299b (Fla. Orange Cty. Ct. 2010).

Complaint Fails to State Any Claim For Which Relief Can Be Granted

- Plaintiff has failed to state a claim for Unjust Enrichment

• According to the copy of the statement attached to the Complaint, the instant case seems to be based on a credit card account with Sears.

• Section 204 of the Credit Card Accountability Responsibility and Disclosure Act of 2009 amended Section 122 of the Truth and Lending Act 15 U.S.C. 1632 and states in pertinent part:

- "(d)ADDITIONAL ELECTRONIC DISCLOSURES,—

• "(1)POSTING AGREEMENTS.—Each creditor shall establish and maintain an Internet site on which the creditor shall post the written agreement between the creditor and the consumer for each credit card account under an open-end consumer credit plan.

• This amendment to Federal Law appears to require an express written agreement for each credit card account.

• Count I of the Complaint asks for relief based on Unjust Enrichment which is a quasi-contract equitable claim.

• Fla. Stat. 687.0304(3)( states "A credit agreement may not be implied from the relationship, fiduciary, or otherwise, of the creditor and the debtor." If an agreement cannot be implied, then it must be express.

• Plaintiff cannot pursue an Unjust Enrichment claim when there is an express contract between the parties that governs the action. Vallejos v. Portfolio Recovery Associates, 2011-CV-7 (9th Jud. Cir. App. Div. 2013); Dovtan v. Frederiksen, 449 So.2d 1, (Fla. 2d DCA 1984).

• Plaintiff has failed to state facts which would establish that there is no applicable express agreement and therefore Count I of the Complaint fails to state a cause of action and should be dismissed.

- Plaintiff has failed to state a claim for Account Stated

• 15 U.S.C. Section 1642 requires that, "No credit card shall be issued except in response to a request or application therefor." Plaintiff cannot characterise a credit card as an "Account Stated" in order to avoid complying with Federal Law.

• Plaintiff has failed to attach a copy of the account showing items, time of accrual for each item and the amount for each.(See Form 1.933 Fla. R. Civ. Pro.)

- 2 statements from Sears were all that was attached to the Complaint. One had a balance of $2,104.11 and the other had a balance of $2,181.66, both of which are different from the amount alleging to be owed that is stated in the Complaint of $2,555.50.

• The cause of action for an account stated is based on "the agreement of the parties to pay the amount due upon the accounting, and not any written instrument." Patricia Farley v. Chase Bank, U.S.A., N.A., 35 Fla. L. Weekly D1296a (4th DCA 2010) quoting Whittington v. Stanton, 58 So. 489, 491 (Fla. 1912). It should not include express contracts or other obligations that have been reduced to writing. See H & H Design Builders, Inc., v. Travelers' Indemnity Company, 707 So.2d 909 (Fla. 5th DCA 1994).

- For a party to prevail on an account stated there must be an agreement that a certain balance is correct and due. Mercado v. Lion's Enterprises, Inc., 26 Fla. L. Weekly D2959a, (Fla. 5th DCA 2001).

- Plaintiff has failed to show there is any kind of fixed balance that is correct and due that was agreed upon by the parties.

• Although Plaintiff has alleged there was an agreement, the documents attached to the Complaint do not support this allegation. Plaintiff must attach to the complaint the agreement upon which the account is based. Jacksonville American Pub. Co. v. Jacksonville Paper Co., 142 So.2d 835,844 (Fla. 1940); Farley v. Chase Bank, U.S.A., N.A., 37 So.3d 936 (Fla. 4th DCA 2010).

• An account stated claim also requires proof that an agreement exists between persons who have had previous transactions, fixing the amount due in respect of such transactions and promising payment. See Farley v. Chase Bank, U.S.A., N.A., 37 So.3d 936 (Fla. 4th DCA 2010).

- Plaintiff did not allege sufficient facts to put the Defendant on notice as to when the alleged agreement to a fixed amount occurred. Plaintiff also did not allege how a fluctuating amount by nature due to interest and varying penalties may be considered a fixed amount. Plaintiff has failed to allege specific facts regarding the nature and dates of previous transactions occurring between Plaintiff and Defendant.

Therefore, Count II of the Complaint fails to state a cause of action for Account Stated and should be dismissed.

[debtzapper]

@LawKitty,

 

Thank you for your detailed and lawyerly analysis of the OP's case.  And a special thank you for doing it on Thanksgiving Day!

[rattler98]

WOW!!  You're all the BEST! debtzapper hit the nail on the head stating that this is a ton of ammunition, and on Thanksgiving to boot!!

 

So, now for clarity's sake, with the statute FL 559.715 the OC did not inform me of the assignment of debt to Cach. As well, there are the classic defects in the materials that are presented in the suit that was brought i.e. dates not matching, a limited amount of statements attached, etc.  Did you use this as part of a motion to dismiss following the answer? How would I know if this is a required provision in Hillsborough County, FL?

 

Lawkitty, many of the arguments fit my case exactly.  Same question as with debtzapper, did you file these following your answer?

 

This weekend my plan is to pour over the work posted by lawkitty.  I'm sure I'll have a few more questions, but let me do my research so that I can offer an informed query.

[rattler98]

Ahhh, just found this post by nascar:

 

With respect to debt repurchasers (Florida speak for JDB), F.S. 559.715 is a condition precedent to bringing suit. Arrow very rarely sends out the required notices, although they've probably alleged compliance with all conditions precedent. Hillsborough County courts are especially aware of this nowadays.

Pay close attention to this. If you work your discovery right (yes, even in small claims), you should be able to show that they didn't send you the notice within 30 days ... 

[LawKitty]

Also, here is a sample (redacted) of a motion I did to object to a JDB using an affidavit as part of their Motion for Summary Judgment, but the case settled out of court before the hearing ever took place; probably because I had FCCPA violation against the JDB. This would only apply to an Affiant that is NOT from the original creditor, and of course could be tailored to apply to a specific case. I pointed out inconsistencies in this case, as well, and left that part in as an example, but it would of course be different in each case. Again, use at your own risk, and I cannot guarantee this will work in anyone's case, of course. This is for Florida.

DEFENDANT'S OBJECTIONS TO

SUMMARY JUDGMENT AFFIDAVIT

Defendant files this his/her Objections to Summary Judgment Affidavit filed by Plaintiff, and alleges the following:

1. In support of the Motion for Summary Judgment filed by Plaintiff in this action, Plaintiff has offered the affidavit of ________.

2. The affidavit of ________ is not proper or admissible summary judgment evidence because it is hearsay. Affiant is not an employee or records custodian of the original creditor <insert OC> and does not have personal knowledge of the business records of <OC>.

3. The affidavit of _______ is not proper or admissible summary judgment evidence because it is not made on personal knowledge as required by Rule 1.510(e) of the Florida Rules of Civil Procedure. Affiant is not an employee or records custodian of the original creditor <OC> and does not have personal knowledge of the business records of <OC>.

4. The affidavit of ________ is not proper or admissible summary judgment evidence because it refers to an exhibit not attached to said affidavit. Affiant states that Plaintiff is the current owner of the <OC> account and attached a copy of a Bill of Sale as part of Plaintiff's Exhibit Comp. A. The Bill of Sale references Section 4 of an Agreement that is not attached to said affidavit.

5. The affidavit of _______ is not proper or admissible summary judgment evidence because it is not the "best evidence" of the document to which it refers. The originals of the alleged business records were not provided or any explanation given as to why the originals were not provided.

[debtzapper]

WOW!!  You're all the BEST! debtzapper hit the nail on the head stating that this is a ton of ammunition, and on Thanksgiving to boot!!

 

So, now for clarity's sake, with the statute FL 559.715 the OC did not inform me of the assignment of debt to Cach. As well, there are the classic defects in the materials that are presented in the suit that was brought i.e. dates not matching, a limited amount of statements attached, etc.  Did you use this as part of a motion to dismiss following the answer? How would I know if this is a required provision in Hillsborough County, FL?

 

Lawkitty, many of the arguments fit my case exactly.  Same question as with debtzapper, did you file these following your answer?

 

This weekend my plan is to pour over the work posted by lawkitty.  I'm sure I'll have a few more questions, but let me do my research so that I can offer an informed question.

CIC is very fortunate to have an excellent and experienced consumer lawyer like @LawKitty who is willing to share her expertise with others.

[rattler98]

Greetings all, 

 

Here's a little update on the case. Following my Answer and Affirmative Defenses, Cach filed a motion for Summary Disposition.  I just received their motion, which again looks to be boilerplate to the ones they have filed in other cases.  Attached was an affidavit from Cach, which I was actually excited to see.  But, between my receiving their motion I also filed a few items of my own.

1) Request for Production 

2) Request for Admissions

 

I also filed a Motion to Strike the OC's affidavit, citing lack of personal knowledge. I know this is a little bit of a long shot and may need to happen if this moves forward to a trial.  I'll be filing my response to their Summary Disposition in the next day or so, and with move to strike their own Affidavit based upon hearsay rules.

 

GAME ON!!!! 

[debtzapper]

@rattler98

 

Thanks for the update.  Keep fighting.  CACH has filed a lot of cases in FL.  If you are able to access court cases at your county courthouse, you may want to review MSJ's or MSD's in other collection cases and see how they were answered by defendants who won against them.

[rattler98]

I may have to do this...I know that it's common for Cach to slap a "Confidential Notice" tag on most of their filed cases, but I'm sure that a little searching will yield the results I'm looking for at the courthouse.

 

I've also seen a few other MSJ's responses online for Florida. My plan is to file an answer and then file a cross MSJ, citing many of the points listed above.

[rattler98]

Also, here is a sample (redacted) of a motion I did to object to a JDB using an affidavit as part of their Motion for Summary Judgment, but the case settled out of court before the hearing ever took place; probably because I had FCCPA violation against the JDB. This would only apply to an Affiant that is NOT from the original creditor, and of course could be tailored to apply to a specific case. I pointed out inconsistencies in this case, as well, and left that part in as an example, but it would of course be different in each case. Again, use at your own risk, and I cannot guarantee this will work in anyone's case, of course. This is for Florida.

DEFENDANT'S OBJECTIONS TO

SUMMARY JUDGMENT AFFIDAVIT

Defendant files this his/her Objections to Summary Judgment Affidavit filed by Plaintiff, and alleges the following:

1. In support of the Motion for Summary Judgment filed by Plaintiff in this action, Plaintiff has offered the affidavit of ________.

2. The affidavit of ________ is not proper or admissible summary judgment evidence because it is hearsay. Affiant is not an employee or records custodian of the original creditor <insert OC> and does not have personal knowledge of the business records of <OC>.

3. The affidavit of _______ is not proper or admissible summary judgment evidence because it is not made on personal knowledge as required by Rule 1.510(e) of the Florida Rules of Civil Procedure. Affiant is not an employee or records custodian of the original creditor <OC> and does not have personal knowledge of the business records of <OC>.

4. The affidavit of ________ is not proper or admissible summary judgment evidence because it refers to an exhibit not attached to said affidavit. Affiant states that Plaintiff is the current owner of the <OC> account and attached a copy of a Bill of Sale as part of Plaintiff's Exhibit Comp. A. The Bill of Sale references Section 4 of an Agreement that is not attached to said affidavit.

5. The affidavit of _______ is not proper or admissible summary judgment evidence because it is not the "best evidence" of the document to which it refers. The originals of the alleged business records were not provided or any explanation given as to why the originals were not provided.

 

My plan is to definitely attack Cach's affidavit as nothing more than hearsay, and then flip their MSJ and affidavit as part of my contention that they have failed to state a claim for the reasons given above (Unjust enrichment, etc...). This will be a part of my MSJ answer and counter MSJ.

[rattler98]

Another quick update..., which might be my last.  I decided to hand my case over to some very competent counsel here in the area on a contingency fee basis.  He had fought Cach, LLC on numerous cases and has a pretty impeccable record against them...

 

However, what I can share is if you decide to go Pro Se

 

1) Check the statements that Cach sends carefully. See if they include a statement that is the charge off from the OC, and therefore has a $0 balance. Use this to agree with Cach that an implied contract does exist, and you agree to the $0 amount

 

2) Consider hiring legal counsel on a contingency basis. Look at the cases that have closed, most courts have online dockets, and see who keeps winning against Cach.  In particular, look for the attorneys that are successful in obtaining legal fees from Cach for defense of your case. 

 

3) Be a thorn in the side of the JDB. Once they see you'll fight at every angle, the value of their efforts drops. They like to take a shot at the pro se defendants in the hopes that you don't know your stuff or your case. Fight them on every angle, object to every affidavit, seek MSJ early, make sure to request production and admissions at the same time you answer, make them work!!!  Learn the rules, and apply them to your case.

 

4) For Florida defendants, check to see if your court is a stickler for enforcement of F.S. 559.715 which requires notification of the assignment 30 days prior to bring suit.  This is a strong compelling reason for a MSJ.

 

5) Show up to your pre-trial hearing...DON'T MISS IT!!!  99% of these cases are won by the JDB's by default i.e. the defendant never shows up for the pre-trial hearing. If you've laid the groundwork with your answer, and discovery/admissions, they will already have passed the first deadline to produce at your hearing.  This is a good time to raise this with the court, and assert your right to request the court to compel them to comply.

 

6) Have some fun...I know it seems daunting, but you can do it and have some fun along the way!!!  I say this as having taken a few CA's to court pro se for FCRA violations.  It's always fun to see the opposing council pull you to side and ask "what do we need to make this go away?"

 

Good luck!!!!

[debtzapper]

@rattler98

 

Good to know you hired counsel.  Let everyone here know how it turns out.   And good luck to you!

[rattler98]

Just looked online and it looks like Cach, LLC decided to drop the case prior to the pre-trial via settlement. As I know the position that my attorney takes on this, I'm sure the settlement was linked to Cach, LLC paying his fees.  I took a look at the pleadings and they were brutal against Cach.  Pay careful attention when crafting your Admissions and Request for Production from the JDB.

All said, this was the best $90 I spent, just to make this troll go away!!!

[debtzapper]

@rattler98

 

Great!   A good lawyer is well-worth his or her fee.