KevinErrbenn

Sued my creditor: Just came back from court.

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5 minutes ago, Harry Seaward said:

Incidentally, I've seen people file a lawsuit, get a default judgment and only when trying to execute their judgment find out their judgment wasn't worth the paper it was printed on because they sued "CapitalOne" and not "CapitalOne N.A." or whatever their full legal name is. 

The correct entity was listed as the defendant and the correct RA was served. 

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6 minutes ago, WhoCares1000 said:

If the OP has the documents and can prove that the correct registered agent was served, then I would have to believe that the defendant would have an issue with the registered agent for not informing them of the lawsuit rather than the OP.

There was a case in 2011 (as a result of the great recession) where Bank of America ignored collections notices after a home owner of a wrongful foreclosure won a judgement against them and as a result, the home owner brought the sheriff and moving trucks to a B of A branch to seize property. That was in Florida too. So the national banks have been known to ignore their legal responsibilities.

The judge noted the disposition with "Default will be granted when Service docs are received (original) and Affidavit is filed with Clerk of Courts"

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1 hour ago, Harry Seaward said:

It just seems nearly impossible that a national bank wouldn't respond to a lawsuit and risk default judgment. 

 

1 hour ago, WhoCares1000 said:

There was a case in 2011 (as a result of the great recession) where Bank of America ignored collections notices after a home owner of a wrongful foreclosure won a judgement against them and as a result, the home owner brought the sheriff and moving trucks to a B of A branch to seize property. That was in Florida too. So the national banks have been known to ignore their legal responsibilities.

I isn't just banks that have this happen.  In 2009 Pepsi was nailed with a $1.26 BILLION dollar judgment after they were properly served and a secretary set the papers aside and did not forward them to the proper legal counsel in time.  

https://www.businessinsider.com/pepsi-nailed-with-126-billion-judgment-after-secretarys-mistake-2009-10

Ultimately it was set aside and the case was supposed to proceed but there were no further articles leading me to guess they settled this with an NDA.

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Forgive me if I missed this, but did you attempt to work with bank and CRAs to correct this, or did you start with litigation?

 

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Just now, Goody_Ouchless said:

Forgive me if I missed this, but did you attempt to work with bank and CRAs to correct this, or did you start with litigation?

 

Multiple letters, emails to EO, etc.

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1 hour ago, Clydesmom said:

I isn't just banks that have this happen.  In 2009 Pepsi was nailed with a $1.26 BILLION dollar judgment after they were properly served and a secretary set the papers aside and did not forward them to the proper legal counsel in time. 

That's not this. OP says he sent multiple letters and emails. Not to mention, they have allegedly been subsequently served with default judgment paperwork letting them know they missed the deadline to answer.

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Hey everyone, It's been about 2 weeks now and I have not received the judgement the judge stated. Is there such a thing as a motion for default judgement I can file? 

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I would give it more than 2 weeks.  30 days is usually standard.  You have technically already motioned for default and the judge responded.

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On 9/29/2019 at 11:50 AM, fisthardcheese said:

I would give it more than 2 weeks.  30 days is usually standard.  You have technically already motioned for default and the judge responded.

We are at 35 days now. What do you recommend as next steps? 

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Possibly I might file either a Motion for Default Judgement, where I would simply reitterate the case history to date, reminding the judge that he stipulated that default would be granted upon reciept of those documents and that those documents were filed with the court on XX date, and then asking for a default judgement.  OR, perhaps a Notice to the Court that the documents have been filed as requested by the court in order to complete the default judgement.  I'm not sure which action would be better here, I would defer to those with better court experience here.

@Brotherskeeper

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6 hours ago, fisthardcheese said:

Possibly I might file either a Motion for Default Judgement, where I would simply reitterate the case history to date, reminding the judge that he stipulated that default would be granted upon reciept of those documents and that those documents were filed with the court on XX date, and then asking for a default judgement.  OR, perhaps a Notice to the Court that the documents have been filed as requested by the court in order to complete the default judgement.  I'm not sure which action would be better here, I would defer to those with better court experience here.

@Brotherskeeper

Thanks for your quick response. I’ll wait for more feedback. Meanwhile, are there any specific formats or templates you would recommend or how would you format it?

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22 minutes ago, KevinErrbenn said:
 

Thanks for your quick response. I’ll wait for more feedback. Meanwhile, are there any specific formats or templates you would recommend or how would you format it?

Here's an example of a Florida motion for a final default judgment under rule 1.500:

http://www.floridaconservator.com/wp-content/uploads/2013/03/08.25.14-Motion-For-Default-Final-Judgment-Against-Defendant-Gregg-Wallick.pdf

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On 10/16/2019 at 7:26 PM, Brotherskeeper said:

Thank you. How would I correctly formulate this sentence stating that the judge on Month day, Year said that Default will be granted once proof of service and affidavit are submitted to the court? This would be for number 3.

1.     On or about Month day, 2019, Defendant, DEFENDANT, was served with process in this action. A true and correct copy of the Affidavit of Service is attached hereto as Exhibit “A”. 

2.     Defendant, despite being served with process, has failed to file or serve any responsive paper in this action within the twenty (20) days of service. 

 

3.    As a result, on or about Month Day, 2019, the Clerk of this Court stated Default against DEFENDANT (the “Defendant”) will be granted once evidence of process and affidavit of facts are filed with the Court. A true and correct copy of the Clerk’s Default is attached hereto as Exhibit “B”

4.    On or about Month Day, 2019 Plaintiff filed a true and correct copy of the Return of Service with the Clerk of Courts. A true and correct copy of the Return of Service is attached hereto as Exhibit “C”

5.    On or about Month Day, 2019 Plaintiff filed a true and correct copy of the Affidavit of Facts with the Clerk of Courts. A true and correct copy of the Affidavit of Facts is attached hereto as Exhibit “D”

6.     Accordingly, the allegations contained in the Complaint are deemed to be admitted by the Defendant. 

7..     Plaintiffs seek a Final Default Judgment against Defendant, DEFENDANT for damages in the amount of $2,500, plus court costs in the amount of $278.0

WHEREFORE, the Plaintiff hereby respectfully request this Court enter a Final Judgment against Defendant, DEFENDANT, in the amount of $2,500.00, plus court costs in the amount of $XXXX.00 and grant all such other relief as the Court deems just and appropriate. 

Let me know if this makes sense. 

 

Also, do I need an Affidavit of Indebtedness? or Do I need to provide documents that show that Defendant was served at the address listed in the FL Divisions of Corporations?

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On 9/10/2019 at 12:40 PM, KevinErrbenn said:

The judge noted the disposition with "Default will be granted when Service docs are received (original) and Affidavit is filed with Clerk of Courts"

Where is this noted?

Did the judge give an oral directive from the bench at the hearing?

 

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11 hours ago, Brotherskeeper said:

Where is this noted?

Did the judge give an oral directive from the bench at the hearing?

 

It was a Memorandum of Disposition filed as a Docket on the case files. He noted it as a comment and gave me the original. Please see below. 
 

The judge told me to provide an actual copy of the service documents (I had showed him the sheriff’s documents on my phone since the sheriff had issues faxing it directly to the court) and to file an affidavit of facts and then he wrote: “Service on phone. Default will be granted when A. Copy of Service to Court. B. Plaintiff to provide Affidavit”.

Both were submitted to court 3 days after this. 

image.thumb.png.23010e11ba764dba2c10b8b1ecda487f.png

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On 10/22/2019 at 7:33 PM, KevinErrbenn said:

It was a Memorandum of Disposition filed as a Docket on the case files. He noted it as a comment and gave me the original. Please see below. 

Is a copy of this "Memo of Disposition" in the court's file? This notation in the "Comments" section was written by your judge? If yes, why do you state in #3 that the Clerk of this Court stated default will be granted? Is a Clerk's Default different from the Memo of Dispostion?

On 10/22/2019 at 6:52 PM, KevinErrbenn said:

3.    As a result, on or about Month Day, 2019, the Clerk of this Court stated Default against DEFENDANT (the “Defendant”) will be granted once evidence of process and affidavit of facts are filed with the Court. A true and correct copy of the Clerk’s Default is attached hereto as Exhibit “B”

I would include the correct term as Memo of Disposition--unless the Default is a different document. Also, include that the judge from the bench issued an oral directive and himself notated in the Comments section of the Memo. The Memo should be an exhibit marked as a true and correct copy. 

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On 10/22/2019 at 6:52 PM, KevinErrbenn said:

Also, do I need an Affidavit of Indebtedness?

I honestly don't know. Do you have more than statutory damages that would need an affidavit to attest to? 

On 10/22/2019 at 6:52 PM, KevinErrbenn said:

Do I need to provide documents that show that Defendant was served at the address listed in the FL Divisions of Corporations?

Again, I don't know the answer. I would think it would be prudent to demonstrate to the court that you did everything by the book on your end and a default should be granted. What is the down side to including this proof of service?

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9 minutes ago, Brotherskeeper said:

Is a copy of this "Memo of Disposition" in the court's file? This notation in the "Comments" section was written by your judge? If yes, why do you state in #3 that the Clerk of this Court stated default will be granted? Is a Clerk's Default different from the Memo of Dispostion?

I would include the correct term as Memo of Disposition--unless the Default is a different document. Also, include that the judge from the bench issued an oral directive and himself notated in the Comments section of the Memo. The Memo should be an exhibit marked as a true and correct copy. 


Yes. A copy is filed within the court’s files. The comments were written by the judge. All make the corrections as advised. Thank you!

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10 minutes ago, Brotherskeeper said:

I honestly don't know. Do you have more than statutory damages that would need an affidavit to attest to? 

Again, I don't know the answer. I would think it would be prudent to demonstrate to the court that you did everything by the book on your end and a default should be granted. What is the down side to including this proof of service?

Proof of Service would be included. I’m wondering if I should include evidence that the address that was served was the addressed listed in the State’s division of corporation’s website to show I served the correct company and the correct address. 

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1 minute ago, KevinErrbenn said:
 

Proof of Service would be included. I’m wondering if I should include evidence that the address that was served was the addressed listed in the State’s division of corporation’s website to show I served the correct company and the correct address. 

If I were in your shoes, as a pro se, I'd want to show the judge that I have crossed every "t" and dotted every "i" so that default should be granted. (IANAL)

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On 10/25/2019 at 10:40 AM, KevinErrbenn said:

Yes. A copy is filed within the court’s files

I think what @Brotherskeeper may have been getting at is that you don't have to re-introduce evidence already in the file.  You simply point to that file number, such as "See Docket File #3" - or however the exhibit is already labeled within the docket.

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2 hours ago, fisthardcheese said:
 

I think what @Brotherskeeper may have been getting at is that you don't have to re-introduce evidence already in the file.  You simply point to that file number, such as "See Docket File #3" - or however the exhibit is already labeled within the docket.

Excellent point and advice. You need to make certain you have cited a place in the record--either in the "docket file" as Fist advised or as an exhibit attached to your motion--where proof of each required step or element is found. You want to be as complete as possible. The fact that a big bank has not responded to your complaint is unusual. The judge wants to be comfortable that you did what you were required to do in order to grant the default motion. 

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28 minutes ago, Brotherskeeper said:

Excellent point and advice. You need to make certain you have cited a place in the record--either in the "docket file" as Fist advised or as an exhibit attached to your motion--where proof of each required step or element is found. You want to be as complete as possible. The fact that a big bank has not responded to your complaint is unusual. The judge wants to be comfortable that you did what you were required to do in order to grant the default motion. 

Thank you. That’s why I wanted to add a line where it states that the address served by the sheriff’s department was the correct address listed on sunbiz.org (Florida’s division of corporation website), in case the bank later claims I served the incorrect address/Registered Agent. In other words, I served the correct entirely, served them on time, and at the correct address. 

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