how my case went

[junker]

earlier i posted i was being sued by unifund ca for a debt that was beyond the statute of limitations, this is what happened, i went to local legal aid, she filed motion to dismiss, based on no info from plaintiff as to right to sue, no documentation, etc, and added defendant reserves right to sol. went to florida small claims court pre trial, where there were approximately 100 other defendants just like me all being sued for debt by approx 5 lawyers representing different cc companys, the judge told everyone that at pretrial you either acknowledge you owe the debt or deny it, if you say you owe the debt you go out in hall with plaintiff and try to work out agreement, OTHERWISE he will award judgement for plaintiff, if you agree to work something out and dont pay, he will also award judgement, if you deny owing money for any reason you go in judges room and discuss setting trial date, of the 100 people being sued, about 10 denied owing anything, i was the only one represented by attorney, when we finally went in judges room he read motion and asked plaintiff if there was any reason he shouldnt grant motion to dismiss, plaintiff asked for more time to get info, and claimed unjust enrichment claim was valid. judge granted 20 days to get info, the next day, the case was closed. as the attorneys are just local rent a lawyers hired from big collection agency a couple hundred miles away. legal aid lawyer was also handing out pamplets at courthouse offering assistance to anyone, i think they are more apt to help on these types of cases, as if they prevail they also get attorneys fees paid to their legal aid office by the ca, the judge said any attorneys fees granted today would be 300 no matter what plaintiff was requesting, in mine he wanted 650. the lawyer also said they do these court dates about twice a month in this county, with about this amount of people at each date, so you can imagine if 90 percent of people give in its big business for them, thanks to all that posted replies with help guiding me to defend my self, of the 100 people there i am sure some had valid defenses but as lawyer said they too easily give in and admit debt. so it doesnt hurt to at least call legal aid to see if they can help or you qualify.

[lrprn]

Great job of standing up for your consumer rights, junker! Thanks for sharing your story!

[FreshLikeADaisy]

earlier i posted i was being sued by unifund ca for a debt that was beyond the statute of limitations, this is what happened, i went to local legal aid, she filed motion to dismiss, based on no info from plaintiff as to right to sue, no documentation, etc, and added defendant reserves right to sol. went to florida small claims court pre trial....

Junker, what is "right to sol"? Sorry, I don't understand the abbreviation.

Also, would you mind saying where in Florida? You don't have to, but I'm in Jax so I'm curious. Thanks!

[keepmine]

Good job!
Debts that old, it's hard to not only prove you're responsible but, collection agencies often have problems with the chain of custody.
SOL stands for Statute of Limitations. It's an affirmative defense meaning, the plantiff waited too long to sue.

[HHM]

Good work.

I love the claim of "unjust enrichment", but that hardly flies in these collection actions. (plus, strictly speaking, in most states, the SOL for unjust enrichment is shorter than for that of contract claims).

[junker]

Junker, what is "right to sol"? Sorry, I don't understand the abbreviation.

Also, would you mind saying where in Florida? You don't have to, but I'm in Jax so I'm curious. Thanks!

i am in clay county right next to you in jacksonville, sol is statute of limitations, in my motion she put defendant specifically reserves his defenses and counterclaims, including but not limited to the statute of limitations, until after this motion to dismiss is resolved...also HHM i will quote her response to unjust enrichment, in case anyone later on has this issue from florida.
"in count 11 plaintiff seeks sums for unjust enrichment, the unjust enrichment claim is founded upon the legal fiction that a contract should be implied in absence of a written contract. this fiction may not be maintained and the law will not imply a contract where an express contract exists concerning the same subject matter, see north star -capital acquisitions v. dennis lewis
county court, florida fourth judeicial district, duval county, florida, signed october 23,2007.Honorable Pauline M Drayton: Carol ann may v. sessums& mason.p.a. 700 s.2nd 1997 (fla 2d dca 1994): corn v greco 694 so2d 883 (fla. 2d dca 1997) further, the unjust enrichment claim cannot be the same amount as the balance of the claimed account, because it cannot include the fees and the high interest rate which could only be imposed by contract. therefore count II should be dismissed" she also filed at bottom of page alternative motion to dismiss for failure to file nonresidents cost bond. plaintiff is a nonresident of the state and failed to file a bond with surety of 100. with this court conditioned to pay all costs which may be adjudged against it in this action in violation of florida statues 57.011. plaintiffs failure to file a bond entitles the defendant to a dismissal of this action.hopefully someone can benefit from this.

[keepmine]

You had a good lawyer.
In defending these sorts of cases, it's a good idea to open up the window and throw everything INCLUDING the kitchen sink. The object of the execrise is to win. Give the judge numerous reasons to find in your favor. All it takes is one valid claim or point of law.

[FreshLikeADaisy]

Oh! Thank you for explaining that, it makes a lot of sense. Posting the text was very informative too.

You are very lucky to have the attorney you have.

[junker]

You had a good lawyer.
In defending these sorts of cases, it's a good idea to open up the window and throw everything INCLUDING the kitchen sink. The object of the execrise is to win. Give the judge numerous reasons to find in your favor. All it takes is one valid claim or point of law.

exactly,i thought all along she knew this case was easy win, and she was just messin with the other side. she raised the same points that some of you suggested i use when i posted a few weeks ago about this,
defendant moves this court pursuant to rules 7.050 and 7.090(c) fla.sm.cl.r. to dismiss plaintiffs statement of claim for failure to state a cause of action, in support of motion, defendant states
1. defendant moves to dismiss count one of statement of claim because it fails to state a cause of action. in count one plaintiff seeks damages for defendants purported breach of contract. plaintiff failed to attach the signed credit card applications, request or argeement executed by defendant in violation of rule 7.050.fla.sm.cl.r
2. the plaintiffs statement of claim fails to state facts essential to a cause of action for a credit card or other contractual debt, including the date of the alleged contract, the dates and amounts of the alleged charges, fees or other debts incurred under the contract and the date of the allgeged payment default and fails to allege compliance with 15 u.s.c. 1642 1642 15 usc 1637 (a) 15 u.s.c. 1637 (b)
3. the statement of claim (at paragraph 6) alleges that the plaintiff is the owner and holder of the debt pursuant to an assignment agreement from the original creditor. however no evidence of assignment is provided. thus, the statement of claim should be dismissed because there is no showing that the plaintiff is the real party in interest
i know this is long post but maybe someone can use this stuff in defense later on. this post along with earlier one is basically all of my defense.

[keepmine]

Debt collectors are complaining about how much harder it is to win when the consumer offers a fight. From a debt collection forum:

http://www.insidearm.com/forum/messageview.cfm?catid=9&threadid=6714

....and didn't do so well. Why is it so hard to win these things when the debtor shows up? I can understand if they show up with some money-is-no-object attorney, but 1/2 of these were pro se! What gives?? Where the hell do these people come up with this stuff anyway, and why are judges buying into it?

8 years ago an affidavit of debt and last CC statement was more than adequate. Now they're sending these ridiculous interrogatories asking for complete account histories, and judges are allowing this? They've even issued subpoenas for corporate officers of the creditor! This is ludicrous. In this "round" we sued on 60 accounts. Of that 60, 23 were answered, 31 were awarded default judgments, 5 immediately BK'd, and 1 could not be served. Of the 23 that answered, we won 3, settled 6 and lost or dropped 14.

These were high (to us) balances of 8,000+. We lost both of the two "big boys" that were 20k (same attorney in both cases) and they were hard fought. Of the 31 DJs, 9 have BK'd and the majority are going to have to be wage garnished, as the levies hardly produced squat. We had one account PIF after we won by msj. The rest have are either on payment plans with the court or are ending up as garnishment.

The final bills have yet to be tallied, but the early indicators are that we lost big on this. We used to litigate quite a bit years ago but have tapered off considerably after some losses and mediocre revenue two years ago. This is our first "mass" effort since then.

Someone please tell me this is not typical.

[FreshLikeADaisy]

Oh, boo-friggin-hoo. My heart aches... not.

I had no idea these people had public forums... I'm going to have to take a look at that. Thanks for that eye-opener, Keepmine!