intothevoid2007

New JDB Case in Florida....PLEASE HELP IF U CAN

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1. Who is the named plaintiff in the suit?

              Cascade Capital LLC assignee of Santander Consumer USA Inc.

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

             Rausch, Sturm, Israel, Emerson, & Hornik LLC

3. How much are you being sued for?

             $7701.57

4. Who is the original creditor?

             HARD TO ANSWER REALLY----When I signed the loan Flagship Credit Corp...which I guess sold to Santander Consumer USA, Inc along the way before I defaulted

5. How do you know you are being sued?

             Served yesterday (01/24/2017)

6. How were you served?

            In person

7. Was the service legal as required by your state?

            Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

            None

9. What state and county do you live in?

           Seminole County,Florida

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

           It's weird (account closed on 11-30-12 but last payment shows 6-13-15-I know I made no payment since the accounts been closed)

11. What is the SOL on the debt? To find out:

           5 years so not in effect for me......

Statute of Limitations on Debts

12. What is the status of your case? Suit served? Motions filed?

           Suit served yesterday (1-24-17)

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

          No

14. Did you request debt validation before the suit was filed?     

         No

15. How long do you have to respond to the suit?     

        20 days.......No questionnaire attached

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract?      Attached were:

         16a)copy of the original retail installment sales contract that I signed at the dealership (Nowhere stating Santander Or Capital).

         16b) .A copy of a bottom half of a page of the Oringinal Lenholder agreement showing my signature BUT and this is a big BUT Flagship Credit (they were the original Loan company I purchased and signed the contract for) handwritten listed as the company for Finance- NOT Santander or Capital.....

        16c) A copy of it looks like a mailing card (maybe?) stating send payments to Santander Consumer USA and send Correspondence to Santander USA (No payment amount No total owed and a bar code on top with a bunch of numbers underneath it.......

       16d) Explanation of Calculation of Surplus Or Deficiency from Santander dated 12-2-2012 stating the amount I owe them (itemized)

 

Here is word for word leaving out the names of the plaintiff and defendant,case number,judge:

                                                                                                                                                             Complaint

COMES NOW, The plaintiff,Cascade Capital LLC assignee of Santander Consumer USA Inc., by and through its undersigned Counsel, and sues Defendant(s), MY NAME, and states as follows:

 

1. This is an action for damages which exceed $5000.00 but do not exceed $15,000.00 and its within the jurisdictional limits of this honorable court.

2. Plaintiff has been informed and believes the Defendant(s), MY NAME, currently reside(s) within the jurisdictional boundaries of Seminole County, therefore making this court the   proper venue to bring the instant action.

3. Prior to the commencement of this action, Plaintiff, Cascade Capital LLC assignee of Santander Consumer USA Inc., acquired Defendant's(s) account originated by SANTANDER CONSUMER USA INC.

4. Defendant(s) entered into a contract (herein after referred to as the "Contract") for the purchase of a motor vehicle, a true and correct copy of which is attached hereto as Exhibit A.

5. The contract provided that Defendant(s) make monthly installment payments for the duration of the Contract.

6. The Defendant failed to pay the monthly installment payments due pursuant to the Contract and such failure caused Defendant(s) to be in default and materially breach the Contract.

7. Based upon the default, the Contract was accelerated and the balance was declared due and owing.

8. The motor vehicle was repossessed and pursuant to applicable law, it was sols in a commercially reasonable manner.

9. The proceeds of the sale were applied to the Contract balance owed by Defendant(s). After applying the proceeds to the Contract balance, plus allowable expenses of disposition and late charges, less any unearned charges, plus contractually permitted interest, there remains a balance due in the owing amount of $5,767.36. See the attached Deficiency Breakdown, Exhibit B.

 

Wherefore, Plaintiff, Cascade Capital LLC assignee of Santander Consumer USA Inc., respectfully requests this Honorable Court enter Judgement in its favor against Defendant(s), MY NAME, in the sum of $5767.36 together with court costs and any other just and further relief as this Honorable Court deems just and proper.

 

Signature of the Attorneys....date....address....contact info..........

The End

 

Any assistance would be greatly appreciated as I know there are Florida attorneys are in the house or anyone at all.....I am very nervous right now but I have been reading up on the boards....I am terrified I am going to screw the paper work uo as I have no prior experience in this and I am trying to rebuild my credit and this happens.

 

 

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2 minutes ago, sadinca said:

I've heard and sent her a PM already...I am anxiously waiting for a response from her and others....I have been doing a lot of research and have a plan...I must admit that I am seriously inept and afraid of filing the wrong paperwork or making a minor error that the Plaintiff will take full advantage of......

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i know how you feel and how stressful it is. the good thing is that you are researching and planning, and with the help of those knowledgeable in Florida cases will assist you in hopefuly getting a favorable result!

best of luck! 

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After the sale of the vehicle in 2012 you should fall under the UCC which is a four year SOL.  That would mean it is beyond the statute of limitations to sue upon.

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4 hours ago, Credithis said:

After the sale of the vehicle in 2012 you should fall under the UCC which is a four year SOL.  That would mean it is beyond the statute of limitations to sue upon.

Can you expand on this? I don't understand.....I thought it was a 5 year SOL in Florida on car loans...plus my last payment shows in 2015(which I know for a fact I never made) on my credit report

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The 2016 Florida Statutes
600x3_gradient.gif

 
Title VIII
LIMITATIONS
Chapter 95 
LIMITATIONS OF ACTIONS; ADVERSE POSSESSION
View Entire Chapter
95.11 Limitations other than for the recovery of real property.Actions other than for recovery of real property shall be commenced as follows:
(1) WITHIN TWENTY YEARS.An action on a judgment or decree of a court of record in this state.
(2) WITHIN FIVE YEARS.
(a) An action on a judgment or decree of any court, not of record, of this state or any court of the United States, any other state or territory in the United States, or a foreign country.
(b) A legal or equitable action on a contract, obligation, or liability founded on a written instrument, except for an action to enforce a claim against a payment bond, which shall be governed by the applicable provisions of paragraph (5)(e), s. 255.05(10), s. 337.18(1), or s. 713.23(1)(e), and except for an action for a deficiency judgment governed by paragraph (5)(h).

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Some state appellate courts (Michigan) have ruled that 4 year UCC SOL applies to the sale of motor vehicles.   FL courts seem to hold that FL's 5 year SOL on written instruments applies:   I hope @LawKitty can respond.

09-0377 - Third District Court of Appeal

www.3dca.flcourts.org/opinions/3d09-0377.pdf
  1.  
  2.  
Jun 24, 2009 - that the repossession and sale of Ms. Arvelo's automobile—the ... deficiency claim was governed by the four-year statute of limitations in .... Finance's theory, the statute of limitations applicable to a secured loan in Florida.

 

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20 hours ago, intothevoid2007 said:

Any assistance would be greatly appreciated as I know there are Florida attorneys are in the house or anyone at all.....I am very nervous right now but I have been reading up on the boards....I am terrified I am going to screw the paper work uo as I have no prior experience in this and I am trying to rebuild my credit and this happens.

First take a deep breath.  RSIEH is a junk debt mill law firm that files THOUSANDS of lawsuits in multiple states.  They are looking for the easy default judgment not the consumer who will fight back and enforce their rights.

2 things you have going for you:  first and foremost is that Santdander bought out a LOT of high interest car loans from quite a few lenders who wrote loans to those with bad/no credit.  The sale had nothing to do with your default.  BUT the defaulted loan/deficiency balance has since been sold to a junk debt buyer which means you have a great chain of custody title claim.  Making them prove they really are an assignee means they have to get records from at least 2 original creditors (Flagship and Santander) and they are not likely to want to do that.  Did you ever make any payments to Santander?  If you did then that makes it a little easier to prove they had standing as a creditor because you did pay them prior to the default and repossession.

Second issue:  is that mysterious payment.  If they are trying to claim that some credit that was issued is a payment then in my opinion they are misrepresenting the debt and that is an FDCPA violation.  Courts have ruled that a credit applied by the creditor to the account is NOT a payment by the consumer and does not reset the SOL for lawsuits.  

Which then leads into when did they actually FILE the suit in the court?  If it was before the last payment was actually made then they filed timely based on your 2012 date.  If it was 5 years after  you defaulted then they didn't file timely and you have an SOL defense.

Whether it is @LawKitty or another Consumer Attorneys you should get a free consult to discuss your options.  Hiring a good consumer attorney has statistically shown that 75% or more of the time the attorneys will drop the case because they don't want to have to actually prove anything to the courts.  Often because they know they can't.  RSIEH is especially known to drop cases shortly after the attorney files their notice of appearance.  I would pay a consumer attorney a few hundred bucks to represent me and send them packing before I would pay a junk debt buyer one red cent.

 

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1 hour ago, Clydesmom said:

First take a deep breath.  RSIEH is a junk debt mill law firm that files THOUSANDS of lawsuits in multiple states.  They are looking for the easy default judgment not the consumer who will fight back and enforce their rights.

2 things you have going for you:  first and foremost is that Santdander bought out a LOT of high interest car loans from quite a few lenders who wrote loans to those with bad/no credit.  The sale had nothing to do with your default.  BUT the defaulted loan/deficiency balance has since been sold to a junk debt buyer which means you have a great chain of custody title claim.  Making them prove they really are an assignee means they have to get records from at least 2 original creditors (Flagship and Santander) and they are not likely to want to do that.  Did you ever make any payments to Santander?  If you did then that makes it a little easier to prove they had standing as a creditor because you did pay them prior to the default and repossession.

Second issue:  is that mysterious payment.  If they are trying to claim that some credit that was issued is a payment then in my opinion they are misrepresenting the debt and that is an FDCPA violation.  Courts have ruled that a credit applied by the creditor to the account is NOT a payment by the consumer and does not reset the SOL for lawsuits.  

Which then leads into when did they actually FILE the suit in the court?  If it was before the last payment was actually made then they filed timely based on your 2012 date.  If it was 5 years after  you defaulted then they didn't file timely and you have an SOL defense.

Whether it is @LawKitty or another Consumer Attorneys you should get a free consult to discuss your options.  Hiring a good consumer attorney has statistically shown that 75% or more of the time the attorneys will drop the case because they don't want to have to actually prove anything to the courts.  Often because they know they can't.  RSIEH is especially known to drop cases shortly after the attorney files their notice of appearance.  I would pay a consumer attorney a few hundred bucks to represent me and send them packing before I would pay a junk debt buyer one red cent.

 

Account per CreditKarma shows closed late November,2012.....Date of last payment was shown as mid June 1015.....I am absolutely POSITIVELY SURE that I made no payment towards this account then. The lawsuit on the Complaint is dated late December 2016..,but was not entered into the courts until mid January 2017 and I was not served until 2 days ago. I believe the SOL of limitations on a car loan is 5 years but someone said earlier that it it was 4 so I am a little confused on this.

 

I am trying to get a hold of @LawKitty to see if she would help me......Again seems like I am hearing different time frames on these details. I know I have a pretty good chance if I can just get the paperwork correct.....

 

 

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3 hours ago, intothevoid2007 said:

Account per CreditKarma shows closed late November,2012..

The one issue with this is the account could have been closed i.e charged off 6 months AFTER you defaulted and they repossessed the car.  What you need to know is when was your last payment made on the car note?  NOT that false payment in 2015 that they are reporting for re-aging the debt.

4 hours ago, intothevoid2007 said:

The lawsuit on the Complaint is dated late December 2016

The date they actually filed it with the court is what matters in regards to the SOL.  Once you determine when your last actual real payment was and whether the UCC SOL of 4 years vs the written contract of 5 years in FL applies then you will know if you have an affirmative defense in that respect. 

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I have no way to tell when the last payment was made....Like I said CK is showing the last payment made in June 2015 (but the account closed Nov 2012) and I have no way to tell anything (and again, I know for a fact I never paid 1 cent  anytime after it was repo'd- which was in 2012) . Is there a way to get this info from anybody besides sending Santander a letter to dispute the payment in June of 2015?? My bank online doesn't go that far back (BOA). The notice of Explanation of Calculation of Surplus or Deficiency that came with the packet in the Summons is dated 12-02-12. It states on there that the vehicle was disposed of on 11-29-12 (also the date showing on my CR as the closing date of the account). It also shows the total amount of everything I owe. I will call my bank and see if I can get a copy of the month of June 2015 for proof that I never made a payment that month.  Either they just missed the 4 year UCC SOL or I am still under the 5 year SOL

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1 hour ago, intothevoid2007 said:

Is there a way to get this info from anybody besides sending Santander a letter to dispute the payment in June of 2015??

I would send a letter requesting the information regarding the payment:  who made it, what source etc.  Make sure to send it CMRR.

1 hour ago, intothevoid2007 said:

My bank online doesn't go that far back (BOA).

The online records may not go back that far but I would request a copy of the bank statement for the May, June, and July 2015 from BoA archives.

 

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hello there i wanted to know what was the out come to your case because i live in florida as well in Volusia County Florida and i am going thur the same thing you did and i need help as well. my car was repo in 2013 and just yesterday on june 2 2018 i got a summons and they even said that i made some type of payment in june 2017. i am sure i did not make a payment. need help please.

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