[rubyruby27]

Most of you are familiar with my saga on my motion for involuntary dismissal.

I lost that motion but the Judge voided the court stipualtion. At that hearing the Plaintiffs said they would write the order which they haven't. It's been 45+ days. I need to write this Order for Tuesday.

I waited to see if they would write it for several reasons, first I really am not sure what to write and secondly, if they didn't I wanted to use this against them.

Refresh your memory. The Plaintiffs submitted a bogus court order stipulation for payment to the courts, the Judge signed it. I never agreed to this. They claimed error, that's why I lost.

Would the title of this be:

Order to Vacate Court Ordered Payment Stipulation
Order to Void

In the body of the Order can I say; after hearing all the evidence the bogus court order stipulation for payment is Voided/Vacated.

I would prefer not to say something nice such as error.

[centex]

I don't recall all of the saga, and I (along with many people I suppose) are not going in search of links to it. However, I would certainly suggest that you refrain from using the word "bogus" in any filing you make with the court.

As to the language, you should stay in line with the specific language that was used by the Presiding Judge in your case...did they said VOID or did they say it was VACATED or did they say it was SET ASIDE? Consistency in filings helps all of the parties involved, which includes the Judge.

[rubyruby27]

He said VOIDED.

I don't expect anyone to go back and read that, most of it, if not all of it is on DB, it was a nightmare for me.

I don't think you are aware of the problems completely, I think you posted something during a low point right after I lost my motion and I jumped your response-which I do apologize for.

That is why I did give a little background. They had the judge sign a court order stipulation ex parte, they sent it to me and I filed a MIVD for fraud on the courts. They claimed error, put my name on someone's stipulation. The court let them get away with it and VOIDED the stipulation. At that motion hearing for the MIVD they said they would write the ORDER, they haven't, I need to for Tuesday my next hearing date for MSJ.

Final Order to Void Court Order Stipulation for Payment---is this correct then?

Thanks for your help.

[rubyruby27]

Went back through the Transcript it said Set aside. They wrote voided on another work sheet.

Would you be so kind to tell me the legal difference from

Voided - set aside - vacate

[rubyruby27]

I found the answer, forgot I have a Blacks Dic.

It means the same basically to reverse, vacate, cancel, annul or revoke a judgment, order

I think I know who to write a order to set aside, just couldn't come up with a title for a order to void that made sense.

[hannah]

Ruby, if the judge told your opponent to write the order then they are supposed to write the order not you. It would be way beyond protocol for you to write it. It may piss off the judge towards you for you to do so just as it's very likely going to piss off the judge that they haven't. Stay out of this for now and do not write it and do not volunteer to write it. Wait for the judge to ask you or order you to write it. Judges expect their orders to be followed and he/she will not be happy. You do not want to be in this, trust me.

[centex]

I'm inclined to agree with Hannah here...if you absolutely want to write anything, then I would do a communication of some sort to the opposing counsel reminding them that you had not received your copy of the Order that was to have been presented to the Court.

In general, though, you are making the whole process of motions to be much more involved then it really it. Motions are not rocket science. You caption it with what you want to accomplish and then author the document in a form that comports with any applicable local rules. Barring local dicta on form, then ensure that it generally comports with any guidance in the RCP.

Remember...there have been federal motions that were captioned as "Motion to Start Over." Granted, it was not successful, but it was because the motion itself failed to support the request. Judges have seen a little bit of everything from litigants...and not just those of the pro se variety.

[rubyruby27]

Thanks guys

Will casually mention at the hearing that I haven't recieved it yet. Actually they volunteered to write it at the last hearing and the Judge said yes.

I usually do make a mountain out of a mole hill when I am not confident in what I am doing.

[hannah]

Originally Posted by rubyruby27

Thanks guys

Will casually mention at the hearing that I haven't recieved it yet. Actually they volunteered to write it at the last hearing and the Judge said yes.

I usually do make a mountain out of a mole hill when I am not confident in what I am doing.

Ruby write your opponent a letter reminding them that they haven't sent you your copy of the order as Centex said. Copy the court and send a cover letter to the court with the copy asking that it be made a part of the official record. This will accomplish your objective. Send the one to your opponent CMRRR. The one to the court can be sent regular mail. Make sure in the cover letter and the one you send to your opponent that you include RE: the case name and number.

[VexatiousLitigant]

I remember the details of this one ruby. I didn't even realize it was still ongoing and seperate from your other cases.

[rubyruby27]

Hannah, VL

I don't have time to write or mail my hearing is tomorrow. Whatever I do will have to be done with leave of the court. I don't understand that one, since I haven't had to deal with it. I need to look this up.

I always panick right before my hearings and that is what I am doing now, I know it but I can't help myself.

I won't have time to respond to their opposite to my MSJ if I recieve it today, I am not as quick on the draw as you guys.

Do I prepare my motion for continuance if the Judge doesn't grant my MSJ by default (whatever the correct term is) and file it tomorrow.

VL,

Yes, it is still going on, been a nightmare, its never ending. This is the only case I have going right now, expecting 2 more in the future at least I have the ammo for those.

When I went to court on my involuntary dismissal and the Judge ruled on it in 2 minutes and didn't hear any evidence, just ask the Plaintiff's attorney "did you try to commit fraud on the court" and she said no, he denied my motion right then and there. It really did piss me off, since she wasn't even there and everything she said was hearsay.

Then the Judge told me to write a MSJ on SoL and give him all the case law I had, that is what I did, I gave him at least 30 case laws, statute's on SoL. I did get the impression he was telling me, I screwed you on this but write a MSJ and you'll win. He also said he would reserve sanctions. I don't know if that meant anything, I don't think it did, he was appeasing me that was my impression.

[rubyruby27]

Went to courthouse, file in the Judges chambers, so I can't review. According to the clerk they haven't recieved any opposition yet but it could be in Fridays mail. So I have to wait until the mailman comes today around 4.

[hannah]

Ruby, calm down...when the mail comes and if the opposition to it is in the mail, post what the opposition says and I will try to help you with what to say. In the meantime, I have a paper to write and will on and off here today. I have class til 6:45 tonight but will be back on around 8 or so.

[rubyruby27]

Thank you Hannah,

I think I really screwed up on my MSJ after reading why someone else lost their motion. I kinda did the same thing after reviewing my motion.

It was good too, coming from me it was.

You do your thing and forget about my problems, I am sure I screwed up and its a lost cause.

I do know how to correct it, I continue with my motion to preclude and compel if they don't do discovery which I am sure they won't then I file and MSJ the correct way on failing to do discovery.

To let everyone know what I did (go ahead and laugh) in my MSJ I ask for attorney fees and gave case law, which from my understanding based on someone elses MSJ that lost for mentioning failure to do discovery part of thier MSJ, I made the attorney fees part of my MSJ.

This would account for them not responding to my MSJ, they don't have to, I lost the case for them.

I am going to go cry now and then clean my house.

Here is what I did.

1. Defendant pro se moves pursuant to Fla R.C.P. 1.510 that the court enter a summary
judgment in her favor dismissing this action, upon grounds there is no genuine issue in the cause
as to any material fact, and defendant is entitled to final judgment as a matter of law in that:

2. Plaintiff failed to state a claim upon which relief can be granted. No triable issues exist
because all of Plaintiff's actions are precluded by the Statute of Limitations.

3. The Statue of Limitations for credit card actions is four years. The Plaintiff’s cause of action is Breach of Contract and Unjust Enrichment. All The plaintiff(s) claims for the alleged debt are time barred pursuant to FS 95.11(3)(k)(p).

A. “The nature of the claim, and not the specific form of action selected by a plaintiff to assert
it, determines the applicable statue of limitations” See 20 Am Jur. 2d, Credit Cards ss46 (2005).

B. The Appellate Courts upheld the trial court decision, “ No error in dismissal of statement
of claim for breach of contract, account stated, and unjust enrichment for debt incurred on credit
card based on expiration of four-year statute of limitations.” “Further, action is not founded on
written instrument where evidence of liability consist partially of written cardholder account and
security agreement but writing is incomplete to establish liability–According, contract is
regarded as oral for statute of limitations purposes” Portfolio Recovery Associates, LLC v Paul
Fernandez 13 Fla L. Weekly Supp. 560, 561 (2006).

C. “Contract action is not founded upon written instrument for purpose of statue of
limitations, where written instrument is link in chain of evidence to prove cause of action, but
does not on its face establish all elements of plaintiff’s claim.”ARDC Corp v Hogan, 656 So.2d
1371 (Fla 4th DCS 1995), rev den. 666 So2.d 143 (Fla 1995)

D. “Where an agreement as set forth in writing is so indefinite as to necessitate resort to parol
evidence to make it complete in applying the statue of limitation it must be treated as an oral
contract.” McGill v Cockrell, 88 Fla 54, 101 So.2d 199 (Fla. 1924) Id at 201.

E. Where resort to oral testimony was compelled to make complete the showing of any legal liability incurred by defendant arising out of letter concerning sale of plaintiff's stock, timeliness of plaintiff's action to recover for breach of contract to sell the shares and remit proceeds to him was governed by Florida's three-year limitation period governing actions on oral contracts, rather than the five-year period governing actions on written contracts.” Klein v Frank, 534 F.2d 1104. C.A.5 1976.

5. Computation of time FS 95.031--Except as provided in subsection (2) and in s. 95.051 and elsewhere in these statutes, the time within which an action shall be begun under any statute of limitations runs from the time the cause of action accrues. “ is the first written demand for payment.”

A. “Cause of action on contract accrues and statue of limitations begins to run from time of breach of the contract.” “Intent of statute setting for the limitations period for contract actions is to limit commencement of actions from time of their accrual.” State Farm Mutual Automobile Insurance Co v Lee, 678 So.2d 818 (Fla 1996)

B. Fradley v. County of Dade , 187 So. 2d 48 (Fla. 3d DCA 1966) (holding that where plaintiff elected to bring action on breach of contract theory, cause of action accrued from time of breach or neglect, rather than from time when consequential damages resulted or became ascertained).

6. Plaintiff’s attached written evidence (exhibit “A”, card agreement dated 2/02) is
incomplete to establish liability. Defendant has not had an open credit card since 2001. Oral
testimony and/or Parol Evidence will be required to make complete the showing of any alleged
legal liability incurred by defendant. As such their claims are governed by the four-year Statute
of Limitations.

A. Florida Rule of Civil Procedure 1.130(a) provides that all contracts or documents “upon
which action may be brought...shall be incorporated in or attached to the pleadings .”

B. Where a complaint is based on a written instrument, the complaint “does not state a course
of action until the instrument or an adequate portion thereof is attached to or incorporated in the
complaint.” Safeco Ins Co. v Ware, 401 So.2d 1129, 1130 (Fla 4th DCA 1981).

C. ...action is not founded on written instrument where evidence of liability consists partially
of written cardholder account and security agreement but writing is incomplete to establish
liability -- Accordingly, contract is regarded as oral for statute of limitations purposes.”
Portfolio Recovery Associates, LLC, Appellant v Paul Fernandez 13 Fla. L. Weekly Supp. 560a
2006.

D. “Where an agreement as set forth in writing is so indefinite as to necessitate resort to parol
evidence to make it complete in applying the statue of limitation it must be treated as an oral
contract.” McGill v Cockrell, 88 Fla 54, 101, 199 Fla. 1924) Id at 201.

7. No disability or other reason shall toll the running of any statute of limitations except those specified in this section, s. 95.091, the Florida Probate Code, or the Florida Guardianship Law.

A. “No tolling provision for actions not founded on a written instrument :” Hospital Constructors Ltd. Ex rel. Lifemark Hospitals of Florida, Inc v Lefor 749 So.2d 546 (Fla 2nd DCA 2000)

B. “Only those circumstances expressly provided by Florida’s tolling statute will toll statute of Limitation.” In reference to Southeast Banking Corp. 855 F.3d 353 (S.D. Fla 1994) affirmed 69 F.3d 1593)

C. “A determination of whether a cause of action is time-barred pursuant to the expiration of a statute of limitations may require two different analyses: First, whether the case of action accrued and, if so, when; second whether a statutory tolling provision applies.” Heardon v Graham, 767 So.2d 1179 (Fla. 2000) Id at 1185.

D. “Courts not write exceptions into statutes when the legislature has not.” Federal Ins. Co v Southwest Florida Ret. Ctr., Inc, 707 So.2d 1119 (Fla 1998)

8. It is an FDCPA violation to file an action on a time-barred debt.

A Kimber v. Federal Financial Corp. (M.D. Ala. 1987) 668 F.Supp. 1480 Kimber argues that … to collect on a debt that appears time-barred … constitutes an unfair and unconscionable practice offensive to § 1692f. The court agrees with Kimber.

9. The Plaintiff has not provided the courts with any material evidence just paper, paper issues aren’t material issues. All of these competent facts render the adverse party’s pleadings as mere paper issues as defined in Hardcastle v Mobley, 143 So2d 715, Fla 3rd DCA 1962 and Connolly v Sebeco, Inc, 89 So.2d 482, (Fla 1956).

10. “When...pro se, allegations must be read liberally and court must hold to a less stringent standard than those drafted by attorney’s.” Raber v Osprey Alaska, 187 F.R.D. 675 (M.D. Fla. 1999). “Where a pro se pleads in a suit, the court should endeavor to construe pro se pleadings
without regard to technicalities.” Picking v Pennsylvania R. Co., 151 F2d 240 (C.A. 3rd Cir., 1945)

11. Florida Rules for Civil Procedure 1.380; Inherent Powers.

Q. Pickholtz contends the paltry $1500 the Court awarded him for his expenses only
encourages litigants to engage in improper discovery tactics against pro se adversaries,
Pickholtz points to Prewitt v Alexander 173 F.R.D., 438 (N.D. Miss [*1375] 1996) aff’d, 114
F.3d 1183 (5th Cir 1997), [**23] affirmed without an opinion, and several state court decisions
that have awarded pro se litigants attorney fee’s under Rule 37, Rule 11 or their state
counterpart.
(Case Law supporting pro se attorney fees) Chambers thus permits, indeed requires, the court to
separately consider Pickholtz's motion for attorney fees under its inherent power, which is an
independent basis for assessing sanctions, one not preempted by Rule 37. It is true that there is
no federal statutory or appellate precedent for imposing attorney fees sanctions in favor of a pro
se attorney under a court's inherent power. However, sanctions have clearly been imposed under
inherent power, e.g., Chambers, 501 U.S. at 41-42, and they have been imposed in favor of a pro
se attorney, albeit not under inherent power. We see no reason why in proper circumstances they
may not be applied in favor of a pro se attorney under inherent power. Failure to do so, as
Pickholtz has noted, would place a pro se litigant [**32] at the mercy of an opponent who might
engage in otherwise sanctionable conduct, but not be liable for attorney fees to a pro se party.
There are other ways of sanctioning a party than assessing attorney fees, such as preclusion of
the introduction of evidence or testimony, or even a default judgment. However, attorney fees
are such a valuable and frequently used tool in the armamentarium of trial judges that we see no
reason for categorically ruling them out of consideration. The district court therefore abused its
discretion in determining that it lacked [*1378] authority to award attorney fees to a pro se
attorney. Pickholtz v. Rainbow Technologies 284 F.3d 1365; 2002.

R. Re: Napier Bank No (N.D. Ill 1997)96 B 00559, 96 A 00362 where the court imposed
monetary sanctions against a represented party for discovery violations, including compensation
to the pro se plaintiff for his time spent preparing motions before the court.

FIRST PRAYER
In the event the Court grants the above Relief with sanctions, Defendant asserts that Plaintiff has
no issues of law or fact to raise at trial and Plaintiff therefore prays for the issuance of a
Summary Judgment against Plaintiff and in favor of Defendant for Damages as outlined:

A Actual damages and

B. Statutory damages pursuant to Florida Statue §559.77(2), $1,000; and

C. Statutory damages pursuant to 15 U.S.C. §1692f, $1,000; and

D. Statutory damages pursuant to 15 U.S.C. §1681n et seq $1,000; and

E. For Exemplary damages as the court may allow and.

F. For Punitive damages as the court may allow and.

G. Attorney fee’s and reasonable fees pursuant to Florida Statue 1.380, Inherent Powers, and 15 U.S.C. §1692k(a)(3) .

H. For such other and further relief as may be just and proper.

[rubyruby27]

Not in today's mail, so either they are not going to file or I won the case for them.

[hannah]

Originally Posted by rubyruby27

Not in today's mail, so either they are not going to file or I won the case for them.

Make sure you have a checklist of essential points for court tomorrow in case the judge asks questions before issuing a ruling. And stay calm. Good luck and let us know how it goes.