ASSISTANCE WITH MIDLAND IN FLORIDA - PLEASE HELP! VERY OVERWHELMED

[Adonia214]

Hello,

My husband was served yesterday with papers from Midland Credit alleging a debt of about $1200 (with late fees, original debt around $960) and the papers require appearance for a Pre-Trial conference later this month. I have spent all day yesterday and then again today before coming here with my questions.

It appears as if the best strategy would be to file a MTC. However, I am very confused about timing. My paperwork does not indicate a response is necessary, just an appearance at the pre-trial conference. So I am not sure if I should bother filing a written response as well as an MTC.

Also, I am not sure how to file an MTC in Florida. I looked up the court rules in my County, and honestly, it was not very helpful.

I am willing to settle this debt for $300. Should I make the offer to the attorney on file, first via phone and then in writing? Should I indicate my intention of using arbitration?

Can anyone please guide me? I am reading all of this information, but to a newcomer who has never gone through this it is all very overwhelming. I am having trouble looking up case law in Florida and I am having trouble understanding the process. I am reading and searching, but maybe I am not searching for the right things. If anyone has any Florida experience, I would appreciate it. I am afraid to mess this up because I won't know enough to a: know I've messed up and b: counter their arguments when I do.

 

1. Who is the named plaintiff in the suit? My husband

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Attorneys for Plaintiff - Molly Fitzpatrick

3. How much are you being sued for? $1278.96

4. Who is the original creditor? (if not the Plaintiff) Synchrony

5. How do you know you are being sued? (You were served, right?) Served at home

6. How were you served? (Mail, In person, Notice on door) In Person

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

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? Florida, Charlotte County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 08/2017

11. When did you open the account (looking to establish what card agreement may be applicable)? 03/2016

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

Statute of Limitations on Debts

13. 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). Suit Served

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

15. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request before being sued, it likely won't help create FDCPA violations, but disputing after being sued could be useful to show the court that you dispute the debt ('account stated' vs. 'breach of contract'). NO - should I do that now with a hearing on 02/27 pending?

16. 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? No response required. An appearance is required at court.

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

17. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. They sent the statement that first missed a payment and then they sent the last statement before they charged it off

18.  How did you find out about this site? Googled Midland help

[Adonia214]

bump. Can someone please help me?

[Harry Seaward]

Because the OC is Synchrony and Midland is suing you, arbitration is the best way to go about this. 

You indicated a written response is not necessary, but is it permissible in your court rules? 

Re: $300 settlement, you can certainly try, but i wouldn't expect them to take less than $700 or $800.

[Adonia214]

2 minutes ago, Harry Seaward said:

Because the OC is Synchrony and Midland is suing you, arbitration is the best way to go about this. 

You indicated a written response is not necessary, but is it permissible in your court rules? 

Re: $300 settlement, you can certainly try, but i wouldn't expect them to take less than $700 or $800.

I have done the MTC this morning. My card member agreement is kinda vague regarding arbitration. Here is my MTC:

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY PROCEEDINGS PENDING ARBITRATION

NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about January 30, 2019 Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on February 13, 2019, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement which states:

1. Assignment. We may sell, assign or transfer any or all of our rights or duties under this Agreement or your account, including our rights to payments.

5. Therefore, when the original creditor (Synchrony Bank) allegedly sold this account to Midland Funding (Plaintiff), they sold, assigned, and transferred their rights and duties under the Agreement. One of those being Arbitration.

The Arbitration Agreement states among other things:

(a) If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or PayPal, Inc., if it relates to your account, except as noted below.

If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.

6. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

7. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

8. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.



Respectfully submitted this day, February 13, 2019


, Defendant, pro se

 

 

[Adonia214]

Now, do I just go to the clerk of court and hand them this paperwork?

 

Do I need to mail a copy to the attorney as well?

[Brotherskeeper]

@Adonia214 Your husband is the Defendant. The Plaintiff is the party bringing the suit, represented by attorney/law firm listed on the complaint. Here's a link to instructions on filing an answer to the complaint. 

https://www.floridalawhelp.org/node/325/filing-your-answer-complaint

Here's a link to the FLORIDA RULES OF CIVIL PROCEDURE

As Harry said, the Synchrony agreement's arbitration clause is very consumer-friendly. 

[Adonia214]

7 minutes ago, Brotherskeeper said:

 

@Adonia214 Your husband is the Defendant. The Plaintiff is the party bringing the suit, represented by attorney/law firm listed on the complaint. Here's a link to instructions on filing an answer to the complaint. 

https://www.floridalawhelp.org/node/325/filing-your-answer-complaint

Here's a link to the FLORIDA RULES OF CIVIL PROCEDURE

As Harry said, the Synchrony agreement's arbitration clause is very consumer-friendly. 

Thank you, I read the rules and included some more information. They are hard to read t be honest

 

IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA

 

MIDLAND FUNDING, LLC                                           Case No XXXXXX

(Plaintiff)

Vs.

 

Defendant

MOTION TO COMPEL PRIVATE/CONTRACTUAL ARBITRATION AND TO STAY PROCEEDINGS PENDING ARBITRATION

NOW COMES Defendant, appearing Pro Se for its Motion to Compel Private Contractual Arbitration and as grounds thereto states the following:

1. That on or about January 30, 2019 Plaintiff filed its Complaint against Defendant.

2. Defendant sent a letter via certified mail to Plaintiff's attorney on February 13, 2019, electing arbitration with JAMS and requesting dismissal of this case (see Exhibit A, attached).

3. Defendant moves this court to compel binding Private Arbitration based on the terms and conditions of the Credit Card Agreement (see Exhibit B, attached).

4. The parties are bound by the Credit Card Agreement which states:

1. Assignment. We may sell, assign or transfer any or all of our rights or duties under this Agreement or your account, including our rights to payments.

5. Therefore, when the original creditor (Synchrony Bank) allegedly sold this account to Midland Funding (Plaintiff), they sold, assigned, and transferred their rights and duties under the Agreement. One of those being Arbitration.

The Arbitration Agreement states among other things:

(a) If either you or we make a demand for arbitration, you and we must arbitrate any dispute or claim between you or any other user of your account, and us, our affiliates, agents and/or PayPal, Inc., if it relates to your account, except as noted below.

If a party files a lawsuit in court asserting claim(s) that are subject to arbitration and the other party files a motion with the court to compel arbitration, which is granted, it will be the responsibility of the party asserting the claim(s) to commence the arbitration proceeding.

6. The Federal Arbitration Act (FAA) 9 USC, Section 1-2 provides:

“A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction or the refusal to perform the whole or any part thereof or an agreement in writing to submit to arbitration an existing controversy arising out of such contract, transaction, or refusal, shall be valid, irrevocable and enforceable save upon such grounds as exist at law or in equity for the revocation of any contract”.

7. The Supreme Court Ruling, decided April 27, 2011, AT&T MOBILITY LLC v. CONCEPCION ET U, states that courts must enforce arbitration agreements according to their terms. If there is an arbitration clause in the contract, that clause must be honored.

"We have described this provision as reflecting both a “liberal federal policy favoring arbitration,” Moses H. Cone , supra, at 24, and the “fundamental principle that arbitration is a matter of contract,” Rent-A-Center, West, Inc. v. Jackson , 561 U. S. ____, ____ (2010) (slip op., at 3). In line with these principles, courts must place arbitration agreements on an equal footing with other contracts, Buckeye Check Cashing, Inc. v. Cardegna , 546 U. S. 440, 443 (2006) , and enforce them according to their terms, Volt Information Sciences, Inc. v. Board of Trustees of Leland Stanford Junior Univ. , 489 U. S. 468, 478 (1989) ."

Furthermore, "The “principal purpose” of the FAA is to “ensur[e] that private arbitration agreements are enforced according to their terms.” Volt , 489 U. S., at 478; see also Stolt-Nielsen S. A. v. AnimalFeeds Int’l Corp. , 559 U. S. ___, ___ (2010) (slip op., at 17). This purpose is readily apparent from the FAA’s text. Section 2 makes arbitration agreements “valid, irrevocable, and enforceable” as written (subject, of course, to the saving clause); §3 requires courts to stay litigation of arbitral claims pending arbitration of those claims “in accordance with the terms of the agreement”; and §4 requires courts to compel arbitration “in accordance with the terms of the agreement” upon the motion of either party to the agreement . . . "

8. The Defendant elects arbitration to settle this dispute.


WHEREFORE, Defendant moves this Honorable Court to compel private contractual arbitration pursuant to the Cardmember Agreement and to dismiss Plaintiff’s complaint due to Lack of Subject Matter Jurisdiction or in the alternative, to stay proceedings pending contractual arbitration.



Respectfully submitted this day, February 13, 2019


, Defendant, pro se

Cc: Molly Fitzpatrick, Attorney for Plaintiff
PO BOX 290335, Tampa, FL 33687

[Adonia214]

I think I got this now. I read the rules of the court and made my answer and my MTC mimic the style that is in the paperwork. I included the attorneys on the bottom.

I am going to court to file this information today.

 

Thank you all very much. I have been hiding my head in the sand out of fear. Today, I did it with your help. I don't know what will happen, but I at least attempted.

[Brotherskeeper]

2 hours ago, Adonia214 said:

They are hard to read t be honest

I know. It gets easier to understand this language. I am not a lawyer (IANAL), nor familiar with Florida rules. It appears to me that filing an answer within 20 days, with a binding arbitration agreement listed as an afirmative defense is the way to do this. Then a motion to compel with a proper court motion notice and certificate of service can be filed. 

RULE 1.140. DEFENSES
(a) When Presented.
(1) Unless a different time is prescribed in a statute of Florida, a defendant must serve an answer within 20 days after service of original process and the initial pleading on the defendant, or not later than the date fixed in a notice by publication. 

 

RULE 1.110. GENERAL RULES OF PLEADING

(c) The Answer. In the answer a pleader shall state in short and plain terms the pleader’s defenses to each claim asserted and shall admit or deny the averments on which the adverse party relies. If the defendant is without knowledge, the defendant shall so state and such statement shall operate as a denial. Denial shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part of an averment, the pleader shall specify so much of it as is true and shall deny the remainder. Unless the pleader intends in good faith to controvert all of the averments of the preceding pleading, the pleader may make denials as specific denials of designated averments or may generally deny all of the averments except such designated averments as the pleader expressly admits, but when the pleader does so intend to controvert all of its averments, including averments of the grounds upon which the  court’s jurisdiction depends, the pleader may do so by general denial.

(d) Affirmative Defenses. In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.
When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms if justice so requires, shall treat the pleading as if there had been a proper designation. Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 1.140(b); provided this shall not limit amendments under rule 1.190 even if such ground is sustained.

(e) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damages, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

(f) Separate Statements. All averments of claim or defense shall be made in consecutively numbered paragraphs, the contents of each of which shall be limited as far as practicable to a statement of a single set of circumstances, and a paragraph may be referred to by number in all subsequent pleadings. Each claim founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense when a separation facilitates the clear presentation of the matter set forth.

[Adonia214]

If anyone has any other advice I would appreciate it. I did not call them to attempt a settlement because I don't even recognize the account, so why pay $300 when I have a good chance it will go away on its own.

 

How does my MTC look? Here is my answer:

 

IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA

 

MIDLAND FUNDING, LLC                                           Case No XXXXXX

(Plaintiff)

Vs.

REDACTED

Defendant

ANSWER TO COMPLAINT

 

Allegation 1: Denied: Responding Party has no validation of debt and therefore, cannot speak to this truth of this allegation.
Allegation 2: Non-contested

Allegation 3: Admit
Allegation 4: Denied: Responding Party objects to this request on the ground that the “Chain of Title and/or bills(s) of sale are vague, do not specifically mention the alleged account, and show no actual transfer of the specific account. The Certificate of Conformity signed by random attorney that has no relationship to this case is not notarized. The purpose of the Certificate of Conformity is to assure the Court that the notarization of the Affidavit conforms to the law in the state where the Affidavit was signed. The document needs to be signed by an attorney in the same state that the Affidavit was signed, before a Notary Public

Allegation 5: Denied: Responding Party denies receiving such information.

Allegation 6: Denied: Cardmember Agreement has Arbitration Clause. Plaintiffs are bound by clause in Agreement.

Allegation 7: Denied: Responding Party has no knowledge of this account and requests discovery with signed documentation.

Allegation 8: Denied: Midland made no attempts to exclude from collection efforts. If this account is true, the first missed payment would have occurred on or about the time of Hurricane Irma (September 8-September 11, 2017) and since Charlotte County was declared part of a disaster zone, the responding party would have been facing extenuating circumstances and hardships.

FURTHERMORE, Defendant DENIES every other allegation not previously admitted, denied or controverted.

AS AND FOR AFFIRMATIVE DEFENSES

1. Plaintiff fails to state a cause of action against the defendant.
   2. Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action.
   3. The action is barred by the Statute of Frauds.
   4. The court would unjustly enrich the plaintiff by granting the relief sought herein.
   5. The plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs, and attorney's fees are all correct, agreed to in your contract, and lawfully charged. Defendant also insists that the plaintiff come up with the contract, account statements and purchase receipts to prove the amount of the debt.

 

WHEREFORE, the defendant asks the Court for judgment:
a. dismissing the complaint herein with prejudice.

 

Cc: Molly Fitzpatrick, Attorney for Plaintiff
PO BOX 290335

Tampa, FL 33687

 

[Adonia214]

1 minute ago, Brotherskeeper said:

I know. It gets easier to understand this language. I am not a lawyer (IANAL), nor familiar with Florida rules. It appears to me that filing an answer within 20 days, with a binding arbitration agreement listed as an afirmative defense is the way to do this. Then a motion to compel with a proper court motion notice and certificate of service can be filed. 

RULE 1.140. DEFENSES
(a) When Presented.
(1) Unless a different time is prescribed in a statute of Florida, a defendant must serve an answer within 20 days after service of original process and the initial pleading on the defendant, or not later than the date fixed in a notice by publication. 

 

RULE 1.110. GENERAL RULES OF PLEADING

(c) The Answer. In the answer a pleader shall state in short and plain terms the pleader’s defenses to each claim asserted and shall admit or deny the
averments on which the adverse party relies. If the defendant is without knowledge, the defendant shall so state and such statement shall operate as a
denial. Denial shall fairly meet the substance of the averments denied. When a pleader intends in good faith to deny only a part of an averment, the pleader shall
specify so much of it as is true and shall deny the remainder. Unless the pleader intends in good faith to controvert all of the averments of the preceding pleading,
the pleader may make denials as specific denials of designated averments or may generally deny all of the averments except such designated averments as the pleader expressly admits, but when the pleader does so intend to controvert all of its averments, including averments of the grounds upon which the court’s jurisdiction depends, the pleader may do so by general denial.

(d) Affirmative Defenses. In pleading to a preceding pleading a party shall set forth affirmatively accord and satisfaction, arbitration and award,
assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches,
license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense.
When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court, on terms if justice so requires, shall treat the
pleading as if there had been a proper designation. Affirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion or defense under rule 1.140(b); provided this shall not limit amendments under rule 1.190 even if such ground is sustained.

(e) Effect of Failure to Deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damages, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.

(f) Separate Statements. All averments of claim or defense shall be made in consecutively numbered paragraphs, the contents of each of which shall be
limited as far as practicable to a statement of a single set of circumstances, and a paragraph may be referred to by number in all subsequent pleadings. Each claim
founded upon a separate transaction or occurrence and each defense other than denials shall be stated in a separate count or defense when a separation facilitates the clear presentation of the matter set forth.

Can you please look at my answer and see if I have met all of these? I put it in an earlier post.

[Harry Seaward]

5 minutes ago, Adonia214 said:

Thank you all very much. I have been hiding my head in the sand out of fear. Today, I did it with your help. I don't know what will happen, but I at least attempted.

98% of the people that get sued do nothing. Welcome to the 2% Club!

[Adonia214]

2 minutes ago, Harry Seaward said:

98% of the people that get sued do nothing. Welcome to the 2% Club!

I made this mistake ONCE a very long time ago and I refused to make it again. However, I don't often find myself in these situations and the prospect of navigating it alone without expert legal advice was very overwhelming for me. However, I am smart, I learn easily, and I figured I could try.

[Brotherskeeper]

7 minutes ago, Adonia214 said:

Can you please look at my answer and see if I have met all of these? I put it in an earlier post.

If you plan to file that arb motion, you need to find out if you must assert it as an affirmative defense or it is waived under Florida rules. (IANAL) It appears under the rules I highlighted above, you can use a general denial for claims you Don't admit. IMO Your answer begins litigating against plaintiff. If you're pressed for time, I think it gets the job done--except for listing arbitration as an affirmative defense. You need to understand how you file with the clerk and how your rules require service to plaintiff's attorney. Do you need to include a certificate of service to the clerk? 

[Adonia214]

How would I word the arb as an affirmative defense?

[Adonia214]

9 minutes ago, Brotherskeeper said:

 

If you plan to file that arb motion, you need to find out if you must assert it as an affirmative defense or it is waived under Florida rules. (IANAL) It appears under the rules I highlighted above, you can use a general denial for claims you Don't admit. IMO Your answer begins litigating against plaintiff. If you're pressed for time, I think it gets the job done--except for listing arbitration as an affirmative defense. You need to understand how you file with the clerk and how your rules require service to plaintiff's attorney. Do you need to include a certificate of service to the clerk? 

 

How would I go about wording it as an affirmative defense?

I have gone ahead and updated them to include a certificate of service.

[Adonia214]

Nevermind, I found the section where in the arb instructions where it was typed out. New answer:

IN THE COUNTY COURT OF THE TWENTIETH JUDICIAL CIRCUIT IN AND FOR CHARLOTTE COUNTY, FLORIDA

 

MIDLAND FUNDING, LLC                                           Case No XXXXX

(Plaintiff)

Vs.

REDACTED

Defendant

ANSWER TO COMPLAINT

 

Allegation 1: Denied

Allegation 2: Non-contested

Allegation 3: Admit
Allegation 4: Denied

Allegation 5: Denied

Allegation 6: Denied

Allegation 7: Denied

Allegation 8: Denied

 

FURTHERMORE, Defendant DENIES every other allegation not previously admitted, denied or controverted.

AS AND FOR AFFIRMATIVE DEFENSES

1. Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter

2. Plaintiff fails to state a cause of action against the defendant.

3. Plaintiff, as the defendant is informed and believes, lacks the legal standing to bring and maintain this action.

4. The action is barred by the Statute of Frauds.

5. The court would unjustly enrich the plaintiff by granting the relief sought herein.

6. The plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs, and attorney's fees are all correct, agreed to in your contract, and lawfully charged. Defendant also insists that the plaintiff come up with the contract, account statements and purchase receipts to prove the amount of the debt.

 

WHEREFORE, the defendant asks the Court for judgment:
a. dismissing the complaint herein with prejudice.

 

CERTIFICATE OF SERVICE:

I hereby affirm that a copy of “Answer to Complaint” was mailed first class, postage paid, this 13^th day of February, 2019 to:

 

Molly Fitzpatrick (Attorney for Plaintiff)

PO BOX 290335

Tampa, FL 33687

_____________________________

Me for Him

 

 

[Brotherskeeper]

16 minutes ago, Adonia214 said:

How would I go about wording it as an affirmative defense?

I don't know how it's done under Florida rules. In my state you state that the parties are bound by an agreement to arbitrate these disputes. You quote a section of the Synchrony arb clause. If your rules require you to attach the contract, or give you the option to say, "upon information and belief, plaintiff has a copy of the applicable agreement that governs the account at issue."

[Brotherskeeper]

3 minutes ago, Adonia214 said:

6. The plaintiff has not proven the debt is valid or the amount of the debt is accurate. The plaintiff must prove that the principal, interest, collection costs, and attorney's fees are all correct, agreed to in your contract, and lawfully charged. Defendant also insists that the plaintiff come up with the contract, account statements and purchase receipts to prove the amount of the debt.

The plaintiff is not required to prove this in its complaint. Your insistence here is misplaced. You would send discovery requests for the production of the required documents. I would not advise any discovery if you intend to MTC arb. 

[Adonia214]

7 minutes ago, Brotherskeeper said:

I don't know how it's done under Florida rules. In my state you state that the parties are bound by an agreement to arbitrate these disputes. You quote a section of the Synchrony arb clause. If your rules require you to attach the contract, or give you the option to say, "upon information and belief, plaintiff has a copy of the applicable agreement that governs the account at issue."

How is this?

 

1. Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter

[Adonia214]

3 minutes ago, Brotherskeeper said:

The plaintiff is not required to prove this in its complaint. Your insistence here is misplaced. You would send discovery requests for the production of the required documents. I would not advise any discovery if you intend to MTC arb. 

removed

[Brotherskeeper]

10 minutes ago, Adonia214 said:

Me for Him

How can you legally sign on his behalf? 

[Adonia214]

5 minutes ago, Brotherskeeper said:

The plaintiff is not required to prove this in its complaint. Your insistence here is misplaced. You would send discovery requests for the production of the required documents. I would not advise any discovery if you intend to MTC arb. 

 

1 minute ago, Brotherskeeper said:

How can you legally sign on his behalf? 

I was just saying I was the one who put it in the mail since i am the one filing the motions on his behalf.

[Brotherskeeper]

1 minute ago, Adonia214 said:

Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter

As I mentioned, in my state the court retains subject matter jurisdiction, but I don't know about Florida. I do know this works in many states. My court  rules require any claim or defense based on a written contract must include a copy of the contract or the language that the other party has a copy of it.

[Adonia214]

6 minutes ago, Brotherskeeper said:

 

 

11 minutes ago, Brotherskeeper said:

I don't know how it's done under Florida rules. In my state you state that the parties are bound by an agreement to arbitrate these disputes. You quote a section of the Synchrony arb clause. If your rules require you to attach the contract, or give you the option to say, "upon information and belief, plaintiff has a copy of the applicable agreement that governs the account at issue."

1. Lack of Subject Matter Jurisdiction – The underlying contract contains a private arbitration clause which the Defendant has elected to exercise. Therefore, This Court does not have jurisdiction to hear this matter. Plaintiff has a copy of the applicable agreement that governs the account at issue.

2. That better?