Sued by Midland in Florida, need help.

[WhatAboutMe]

I received a summons a few months ago and I promptly responded to the summons denying the debt, but adding that if there was any actual debt I affirmed the SOL of Puerto Rico. Now, I recently received a MSJ from Midland's lawyers by mail and need help on how to proceed. I did find an error within the affidavit from the MSJ which would allowed to at least issue a MTS on that. Also, the original summons's affidavit was not notarized, but I didn't noticed it at the time. The debt is from Puerto Rico and as far as I know the SOL(3years) has passed.

I want to add that the law firm ignored my use of the SOL of Puerto Rico and instead decided to apply the FL SOL on their Motion of Summary Judgement. They also claim I didn't deny the debt when I answered their initial summons, I did.

 

    1. Who is the named plaintiff in the suit?

 

Midland

 

    2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

 

A FL firm

 

    3. How much are you being sued for?

 

$4000(not actual amount)

 

    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

 

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

 

In person

 

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

 

I believe so

 

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

 

 

None to my knowledge

 

 

    9. What state and county do you live in?

 

Florida now, but the accounts were made in Puerto Rico(I still live there)

 

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

 

2015

 

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

 

 

Not certain, but a long time ago.

 

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

 

   

FL is 4, but PR is 3 if I’m not mistaken.

 

    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).

 

I did an initial denial letter of the debt and included that the SOL had passed. I just received a MSJ from them.

 

 

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

 

Not yet.

 

    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.

 

    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?

 

Original summons

 

Breach of Contract

 

*Action for damages that exceeds $XXXX and is within this jurisdictional limit court

*Plaintiff believes that defendant currently resides within the jurisdiction of this court to bring suit

*Synchrony issued defendant account XXXXXX

*Midland acquired defendant’s account and as such is entitled to all rights from the OC

*Defendant has failed or refused to pay owing on the account

*Plaintiff and its predecessor have performed all promises, conditions as required

*This is an attempt to collect a debt all info obtained will be used for that

*Defendant had transactions with the OC where the parties agreed on the balance

*Statements were rendered monthly and at no point did defendant object to the charges

*By paying monthly to the OC, the defendant accepted the balance

*Defendant owes Plaintiff, Midland the amount of $XXXX

 

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

   

An affidavit, old statements and the bill of sale. The affidavit from the summons was not notarized, it just had a specialist from Midland swearing about the information.

[fisthardcheese]

Too bad you didn't read and ask here before filing your answer or we would have suggested to use Arbitration as an affirmative defense in your answer and have a sure way to beat Midland.  Now it will be extremely tough.

You need to respond to the MSJ and assert your SOL defense as a genuine dispute to be determined at trial.   You COULD try to file a Motion to Compel Arbitration, but FL makes that very tough if you don't mention it in your answer.  It might at least help get past the MSJ however, by asserting another genuine issue that needs to be addressed by the court.

[Brotherskeeper]

@WhatAboutMe 

When is the deadline to respond to the MSJ?

What date or month of 2015 was your last payment?

When did you relocate to Florida from P.R? Have you been back and forth since then?

 

[WhatAboutMe]

2 hours ago, fisthardcheese said:

Too bad you didn't read and ask here before filing your answer or we would have suggested to use Arbitration as an affirmative defense in your answer and have a sure way to beat Midland.  Now it will be extremely tough.

You need to respond to the MSJ and assert your SOL defense as a genuine dispute to be determined at trial.   You COULD try to file a Motion to Compel Arbitration, but FL makes that very tough if you don't mention it in your answer.  It might at least help get past the MSJ however, by asserting another genuine issue that needs to be addressed by the court.

I now know that I should have done better research. ? After trying to find the SOL law for PR accounts--it's quite confusing because it has 3 years for somethings and 5 for others, but it's not very clear and every attorney I have called has giving me different time frames. I think I won't be able to use it.

I really wished I had found this site before I answered. Also, I talk to a lawyer and the person told me that the affidavit and one of my affirmative answers can be strike, but that all I'm doing is delaying the inevitable. The lawyer wanted me to hire him, but the cost of hiring him plus a settlement with midland was not going to change the amount that much with him(and the fact that he pulled up the SOL for Spain did't give me much confidence in him).

Do you think it's better to try and negotiate a settlement now that it's harder for me going forward? If I have to settle--then I would want at least a 50% reduction, but paying a lawyer for a MAYBE is very depressing. I also have 2 more accounts where I answered in the same manner, but have not received any further communication since it's from another law firm. I really messed up.

[WhatAboutMe]

15 minutes ago, Brotherskeeper said:

@WhatAboutMe 

When is the deadline to respond to the MSJ?

What date or month of 2015 was your last payment?

When did you relocate to Florida from P.R? Have you been back and forth since then?

 

There seems to be no deadline from the copies I received of the MSJ, but for the initial summons it did say 20 days.

Last payment was June 2015.

I changed my ID at the end of  2017 after I bought a house in FL(after the hurricane), but returned to PR in Jan 2018 and stayed in PR until September, then flew to FL, then back to PR in November.

Yes, I still go back and forth to PR, but this year I have lived more in FL than PR.

 

[fisthardcheese]

I would immediately file an amended answer in those other cases.  (of course look up your courts rule to see if you need court's permission first).

In this case, I would try an MTC since it can't hurt you and anything can happen so you might as well try.  Wait to see how they respond to the MTC and your opposition to their MSJ to figure out the next steps.

[Brotherskeeper]

57 minutes ago, WhatAboutMe said:

Last payment was June 2015.

(I am not an attorney.) If the account was not already in default when the last payment was made in June 2015, then the first missed payment was in July 2015. If you are correct that the SOL for credit card debt in Puerto Rico is 3 years, then the SOL ran until July 2018. 

1 hour ago, WhatAboutMe said:

I changed my ID at the end of  2017 after I bought a house in FL(after the hurricane), but returned to PR in Jan 2018 and stayed in PR until September, then flew to FL, then back to PR in November.

So, you were still "living" and thus available to be served a summons in Puerto Rico from January 2018 until sometime in September 2018?

Maria hit P.R. September 19 or 20, 2017? You left P.R. to go to Florida when?

It may be argued that the running of the P.R. 3-year SOL was tolled (paused) for the time you were away in 2017 until you returned in Jan. 2018. 

1 hour ago, WhatAboutMe said:

There seems to be no deadline from the copies I received of the MSJ, but for the initial summons it did say 20 days.

You need to check your court rules of civil procedure on the time to respond to a motion for summary judgment. It is likely that the 20 days on the summons was the deadline to file an answer to the complaint. 

[WhatAboutMe]

1 hour ago, fisthardcheese said:

I would immediately file an amended answer in those other cases.  (of course look up your courts rule to see if you need court's permission first).

In this case, I would try an MTC since it can't hurt you and anything can happen so you might as well try.  Wait to see how they respond to the MTC and your opposition to their MSJ to figure out the next steps.

This is from the Florida Rules of Civil Procedure

RULE 1.190.AMENDED AND SUPPLEMENTAL PLEADINGS(a)Amendments.A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party. If a party files a motion to amend a pleading, the party shall attach the proposed amended pleading to the motion. Leave of court shall be given freely when justice so requires. A party shall plead in response to an amended pleading within 10 days after service of the amended pleading unless the court otherwise orders.

 

So I just go to the clerk and ask for permission of the court to amend it? Do I have to have the MTC form ready? I'm not sure how all of this works, please excuse my ignorance.

 

With regards to the one with the MSJ, is it the same process of going to the clerk and asking for permission to amend it? Also, how do I go about doing an opposition to the MSJ?

[WhatAboutMe]

17 minutes ago, Brotherskeeper said:

(I am not an attorney.) If the account was not already in default when the last payment was made in June 2015, then the first missed payment was in July 2015. If you are correct that the SOL for credit card debt in Puerto Rico is 3 years, then the SOL ran until July 2018. 

So, you were still "living" and thus available to be served a summons in Puerto Rico from January 2018 until sometime in September 2018?

Maria hit P.R. September 19 or 20, 2017? You left P.R. to go to Florida when?

It may be argued that the running of the P.R. 3-year SOL was tolled (paused) for the time you were away in 2017 until you returned in Jan. 2018. 

You need to check your court rules of civil procedure on the time to respond to a motion for summary judgment. It is likely that the 20 days on the summons was the deadline to file an answer to the complaint. 

Yes, I was available to be served in PR.

I changed my PR ID to a FL ID when I went in December 2017. I bought a house before Maria, but didn't move to FL when I bought it. Would a change of ID be considered moving?

RULE 1.510.SUMMARY JUDGMENT(a)For Claimant.A party seeking to recover on a claim, counterclaim, crossclaim, or third-party claim or to obtain a declaratory judgment may move for a summary judgment in that party’s favor on all or any part thereof with or without supporting affidavitsat any time after the expiration of 20 days from the commencement of the action or after service of a motion for summary judgment by the adverse party.(b)For Defending Party.A party against whom a claim, counterclaim, crossclaim, or third-party claim is asserted or a declaratory judgment is sought may move for a summary judgment in that party’s favor as to all or any part thereof at any time with or without supporting affidavits.

 

I did file an answer to the initial summons which came with a 20 day deadline.

[Brotherskeeper]

34 minutes ago, WhatAboutMe said:

I changed my PR ID to a FL ID when I went in December 2017. I bought a house before Maria, but didn't move to FL when I bought it. Would a change of ID be considered moving?

Are these facts correct? You were living in P.R. from July 2015 until December 2017. You took trips or a trip to Florida and purchased a house during this time, and returned to P.R.  In December 2017 you went to Florida. You returned to P.R. in January 2018 and remained until September 2018. 

How to Officially Become a Florida Resident

"The place where you live with the intention that it's going to be your permanent residence for an indefinite period of time is referred to as your "domicile." It determines what state you must pay taxes to, and it can make you eligible for state programs and benefits. But what happens if you have more than one home?

If your time is spent in Florida and one or more other states during the year, you must choose one state and clearly indicate your choice of domicile by establishing key relationships to and with that state. You should be able to persuade your former state of domicile that you have, in fact, abandoned your domicile in that state and that you've established your new domicile in Florida."

 

Here's another attorney's article on this subject. This is directed at people from the northern US states who seek to declare Florida their domicile. 

MAKING FLORIDA YOUR DOMICILE

While a person may have more than one residence, theoretically a person may have only one domicile.

While a person may have more than one residence, theoretically a person may have only one domicile. The process of establishing a Florida domicile can be complex as well as elusive. Many individuals are under the mistaken impression that if they purchase a home in Florida and send out address change cards they are officially Florida residents and have fulfilled all the requirements for relinquishing residency in their former state, however, many more steps need to be taken.

Establishing a Florida domicile can be obtained by choice, however, two necessary elements must be met. First, there must be physical presence which can be met by owing or leasing a residence in Florida. The more permanent the relationship is with Florida the stronger a case can be made. The second element, "intent" is subjective. The burden of proof is on the person declaring domicile to show that Florida is the center of the person's social, economic as well as civic activity.

In many instances the issue is not the steps an individual has taken to become a Florida resident, but rather the steps that an individual has take to divorce him or himself from their northern abode. Many northern states have lost substantial sums of both income tax as well as estate and revenue as a direct result of part time Florida residents declaring Florida their domicile. Accordingly. many states have established criteria placing the burden of proof on the party declaring Florida as their domicile. At a minimum it is strongly recommended that the following steps be taken if an individual with two residences seeks to declare Florida their domicile.

A) File Declaration of Domicile with the Clerk of Court in the Florida county where one resides.

Obtain Florida drivers license, Florida vehicle registration and voters registration card.

C) If you own property in Florida, file for a Homestead Exemption in the county in which you reside.

D) Transfer securities, bank accounts, brokerage accounts and similar investments to institutions located in Florida.

E) Transfer valuables from safety deposit boxes in the former state to a safety deposit in Florida. (Courts have held the location of a person's safety deposit to be a critical factor in determining domicile).

F) Establish wills, trusts, health care declarations and durable powers of attorney which recite Florida domicile.

G) Change affiliations with religious and social organizations to Florida and seek to request non-resident status with organizations maintained in the former state of domicile.

H) Transfer family possessions, heirlooms and collections to the residence in Florida since it is assumed those items would be kept at a permanent home.

I) File the Federal Income Tax showing Florida as your address and affirmatively state on your last return in your former state that it was you final return for that state. It is beneficial to notify the Internal Revenue Service by certified mail that you have changed your address.

J) File Florida Intangible Personal Property Tax returns by June 30th.

K) Change addresses for credit cards, charge accounts, corporations partnerships to your Florida address.

L) Establish relationships with Florida doctors, attorneys, accountants, and insurance agents.

M) Make sure that you spend more than six months away from your residence up north and seek to be able to document the time spent in Florida id need be through a travel log and/or charge receipts.

N) Direct that paychecks, interest and dividend checks be mailed to Florida.

[WhatAboutMe]

9 minutes ago, Brotherskeeper said:

Are these facts correct? You were living in P.R. from July 2015 until December 2017. You took trips or a trip to Florida and purchased a house during this time, and returned to P.R.  In December 2017 you went to Florida. You returned to P.R. in January 2018 and remained until September 2018. 

How to Officially Become a Florida Resident

"The place where you live with the intention that it's going to be your permanent residence for an indefinite period of time is referred to as your "domicile." It determines what state you must pay taxes to, and it can make you eligible for state programs and benefits. But what happens if you have more than one home?

If your time is spent in Florida and one or more other states during the year, you must choose one state and clearly indicate your choice of domicile by establishing key relationships to and with that state. You should be able to persuade your former state of domicile that you have, in fact, abandoned your domicile in that state and that you've established your new domicile in Florida."

 

Here's another attorney's article on this subject. This is directed at people from the northern US states who seek to declare Florida their domicile. 

MAKING FLORIDA YOUR DOMICILE

While a person may have more than one residence, theoretically a person may have only one domicile.

While a person may have more than one residence, theoretically a person may have only one domicile. The process of establishing a Florida domicile can be complex as well as elusive. Many individuals are under the mistaken impression that if they purchase a home in Florida and send out address change cards they are officially Florida residents and have fulfilled all the requirements for relinquishing residency in their former state, however, many more steps need to be taken.

Establishing a Florida domicile can be obtained by choice, however, two necessary elements must be met. First, there must be physical presence which can be met by owing or leasing a residence in Florida. The more permanent the relationship is with Florida the stronger a case can be made. The second element, "intent" is subjective. The burden of proof is on the person declaring domicile to show that Florida is the center of the person's social, economic as well as civic activity.

In many instances the issue is not the steps an individual has taken to become a Florida resident, but rather the steps that an individual has take to divorce him or himself from their northern abode. Many northern states have lost substantial sums of both income tax as well as estate and revenue as a direct result of part time Florida residents declaring Florida their domicile. Accordingly. many states have established criteria placing the burden of proof on the party declaring Florida as their domicile. At a minimum it is strongly recommended that the following steps be taken if an individual with two residences seeks to declare Florida their domicile.

A) File Declaration of Domicile with the Clerk of Court in the Florida county where one resides.

Obtain Florida drivers license, Florida vehicle registration and voters registration card.

C) If you own property in Florida, file for a Homestead Exemption in the county in which you reside.

D) Transfer securities, bank accounts, brokerage accounts and similar investments to institutions located in Florida.

E) Transfer valuables from safety deposit boxes in the former state to a safety deposit in Florida. (Courts have held the location of a person's safety deposit to be a critical factor in determining domicile).

F) Establish wills, trusts, health care declarations and durable powers of attorney which recite Florida domicile.

G) Change affiliations with religious and social organizations to Florida and seek to request non-resident status with organizations maintained in the former state of domicile.

H) Transfer family possessions, heirlooms and collections to the residence in Florida since it is assumed those items would be kept at a permanent home.

I) File the Federal Income Tax showing Florida as your address and affirmatively state on your last return in your former state that it was you final return for that state. It is beneficial to notify the Internal Revenue Service by certified mail that you have changed your address.

J) File Florida Intangible Personal Property Tax returns by June 30th.

K) Change addresses for credit cards, charge accounts, corporations partnerships to your Florida address.

L) Establish relationships with Florida doctors, attorneys, accountants, and insurance agents.

M) Make sure that you spend more than six months away from your residence up north and seek to be able to document the time spent in Florida id need be through a travel log and/or charge receipts.

N) Direct that paychecks, interest and dividend checks be mailed to Florida.

When I got the ID I also got the Voter registration. In January before I went back to PR I applied for Homestead since I wasn't going to be able to return for a few months. 

I guess that's it for the SOL. Anyway, it was going to be hard to use the SOL from PR since it's so confusing.

[fisthardcheese]

16 hours ago, WhatAboutMe said:

So I just go to the clerk and ask for permission of the court to amend it? Do I have to have the MTC form ready? I'm not sure how all of this works, please excuse my ignorance.

It is going to be best to start a new thread for your other cases as to not get things mixed up and confusing in this single thread with your MSJ case.

According to the rule you posted, it appears you would need to file a Motion For Leave To Amend Defendant's Answer To The Complaint.  In the motion, you ask the court for leave to file an amended answer due to new information.  You then add your new answer with that motion and file them together.  Also you would send copies of both items you file with the court to the attorney as well.

[nobk4me]

If the SOL in PR has expired, then you can use that in FL.. Look into:

L.W.T. v. Brodsky, 2006 WL 3617983 (Fla. Cir. Ct. 2006)

Florida will borrow the shorter SOL.