[graphixguru]

I'm in a suit with a JDB and have filed counter claims. Atty has responded with motion to strike and a hearing is scheduled. Do I have to respond now or should I show up to argue aginst motions?

During Pre-Trial I said that one of my defenses was SOL. Without hearing any details, Judge announced that we could throw that one out because he only accepted 5 years on credit cards. My debt is 6+ years old. How should I proceed? Atty wants to throw SOL Defense out because judge "ruled" on it at pretrial.

Finally Atty is claiming that he wants to use South Dakota law as basis for SOL because it's 6 years and the CC company (Citibank) was based in SD.

Any help would be apreciated.

[roybean]

Have you ever lived in SD?
If a court date is set, you need to go.

Is this small claims court?

[Enigma]

Citi may be domiciled in SD, but what does the CC agreement state for a Choice of Law provision.

You've drawn a judge that appears to be hostile toward pro se/consumers. You need to bring a court reporter with you.

CC actions can be four or five years depending on the argument. Read the pdf I have attached.

You must show up and fight the Motions.

What Motions have you filed? Have you filed a Sworn Denial? Have you filed for Discovery? Did they attach the CC agreement and full accounting to the complaint?

What were your Affirmative Defenses and have they been ruled on?

[Enigma]

It is well settled in Florida that Florida courts will enforce a choice-of-law provision in a contract, and said provision is presumed to be valid unless the foreign law contravenes public policy of the forum jurisdiction. See Mazzoni Farms v. E.I. Dupon Dc Nemours & Co., 761 So. 2d 306 (Fla. 2000); see also FLA. STAT. § 671.105(1).

671.105 Territorial application of the code; parties' power to choose applicable law.--

(1) Except as provided in this section, when a transaction bears a reasonable relation to this state and also to another state or nation, the parties may agree that the law either of this state or of such other state or nation will govern their rights and duties. Failing such agreement, this code applies to transactions bearing an appropriate relation to this state.

[Enigma]

SWORN DENIAL

Defendant, ddddd denies this is her/HIS debt and if it is her/HIS debt, Defendant denies that it is still a valid debt and if it is a valid debt, Defendant denies the amount sued for is the correct amount.

BY:_________________________________
xxxxxxx, Defendant, pro se
address
phone#

CERTIFICATE OF SERVICE

UNDER PENALTY OF PERJURY, I certify that a copy of the foregoing was provided by U.S. Mail, postage fully pre-paid Certified Return Receipt Request, Return Receipt Number xxxxxxx to ATTORNEY CONTACT and via facsimile transmission to ATTORNEY FAX.






STATE OF FLORIDA
COUNTY OF xxxxx

BEFORE ME personally appeared DDDDDDDD who, being by me duly sworn and identified in accordance with Florida Law, did execute the foregoing in my presence this _______ day of ______________ 2008.


________________________________________
Notary Public


My commission expires:_____________________

[hannah]

This is pretty interesting. Seems the JDB's want to turn our latest defense into an offense for them. Very interesting.

BTW - the judge cannot just use 5 years for a cc. I mean he can, but can be appealed and reversed per precedent.

To the OP, you have a great deal of learning to do and quickly.

[graphixguru]

Originally Posted by Enigma

It is well settled in Florida that Florida courts will enforce a choice-of-law provision in a contract, and said provision is presumed to be valid unless the foreign law contravenes public policy of the forum jurisdiction. See Mazzoni Farms v. E.I. Dupon Dc Nemours & Co., 761 So. 2d 306 (Fla. 2000); see also FLA. STAT. § 671.105(1).

This case has been filed in Florida.

The cc agreement they included in the original suit says:
"Applicable Law:
The terms and enforcement of this agreement shall be governed by federal law and the law of South Dakota, where we are located."

South Dakota law says:
15-2-13. Contract obligation or liability--Statutory liability--Trespass--Personal property-- Injury to noncontract rights--Fraud--Setting aside corporate instrument. Except where, in special cases, a different limitation is prescribed by statute, the following civil actions other than for the recovery of real property can be commenced only within six years after the cause of action shall have accrued:

(1) An action upon a contract, obligation, or liability, express or implied, excepting those mentioned in §§ 15-2-6 to 15-2-8, inclusive, and subdivisions 15-2-15(3) and (4);

(2) An action upon a liability created by statute other than a penalty or forfeiture; excepting those mentioned in subdivisions 15-2-15(3) and (4);

(3) An action for trespass upon real property;

(4) An action for taking, detaining, or injuring any goods or chattels, including actions for specific recovery of personal property;

(5) An action for criminal conversation or for any other injury to the rights of another not arising on contract and not otherwise specifically enumerated in §§ 15-2-6 to 15-2-17, inclusive;

(6) An action for relief on the ground of fraud, in cases which heretofore were solely cognizable by the court of chancery;

(7) An action to set aside any instrument executed in the name of a corporation on the ground that the corporate charter had expired at the time of the execution of such instrument.

Source: SDC 1939, § 33.0232 (4); SL 1941, ch 151; SL 1945, ch 144; SL 1945, ch 145, § 1; SL 1947, ch 153, § 2; SL 1953, ch 198, § 1.


I can pass the 5 year test but not the 6 year test. What chances do I have of getting this considered under florida law?

How would I do it?

[graphixguru]

Is there a Federal Statute of Limitations? If so what is it and would it supercede the State SOL/

"It is well settled in Florida that Florida courts will enforce a choice-of-law provision in a contract, and said provision is presumed to be valid unless the foreign law contravenes public policy of the forum jurisdiction"

Since the two states SOL are different does the SD one "contravene public policy" of the Fl jurisdiction?

[hannah]

Originally Posted by graphixguru

Is there a Federal Statute of Limitations? If so what is it and would it supercede the State SOL/

"It is well settled in Florida that Florida courts will enforce a choice-of-law provision in a contract, and said provision is presumed to be valid unless the foreign law contravenes public policy of the forum jurisdiction"

Since the two states SOL are different does the SD one "contravene public policy" of the Fl jurisdiction?

I need to do a bit of caselaw research on this one. Give me a few days.

[Enigma]

Since FL has a shorter SOL, it over rides SD law. Read the case I cited.

Have you moved for Discovery?

[Enigma]

Can you PM me the name of the attorney/law firm that filed this?

If you had the Pre-Trial hearing, did the attorney that signed the Complaint appear or did another attorney make an appearance? It is important.

[Enigma]

Was the SOL defense you made done in oral argument or written as an Affirmative Defense?

If oral do a MSD for SOL.

When is trial set?

[graphixguru]

Originally Posted by Enigma

Was the SOL defense you made done in oral argument or written as an Affirmative Defense?

If oral do a MSD for SOL.

When is trial set?

The attorney who filed the case did not show up at court when my case was called, the judge decided I could go but the plaintiff's attorney might show up and then they would have to reschedule.

I advised the Judge that I had counter claims and because I only had 7 days from service to pre-trial he told me that if the atty showed, he would allow me to file them at the end of the pre-trial.

I left the courtroom and went to the restroom and then was leaving the court area when the bailiff caught up with me and informed me that the plaintiff's attorney was on the phone.

I tried to object but the Judge allowed the atty to proceed. The next post contains the suit as filed against me.

[graphixguru]

1. At all times material hereto, Defendant(s) had a credit card account (hereinafter referred to as the "Account") with a third-party (hereinafter referred to as the "Credit Grantor") that has been purchased by Plaintiff who is the present owner of the account with full power to perform all acts necessary for the collection, settlement, adjustment, compromise or satisfaction of the "Account".

2. Defendant(s) has agreed in the exhibits hereto, to pay all costs of collection including reasonable attorney’s fees.

3. Plaintiff has retained Jacobson, Sobo & Moselle and has agreed to pay them a reasonable fee for their services.

4. Plaintiff seeks a minimum of $1 ,600.00 for attorney's fees based on an hourly rate of $205.00, an estimated minimum of 4.0 hours
and a contingency risk multiplier of 2.0.



Count 1

Plaintiff sues Defendant(s) and alleges that:

5. This is an action for damages that are within the jurisdiction of the court.

6. There is now due and owing from Defendant(s) to Plaintiff on credit card account XXXXXXX $1439.38 plus interest from January 5, 2004 at the rate of $24.pp% per annum for purchased and/or cash advances charged on Credit Grantor’s credit card.

Wherefore, Plaintiff demands judgment for damages of $1439.38 plus interest, costs and attorney's fees.

Count II

Plaintiff sues Defendant(s) and alleges that:

7. This is an action for damages that are within the jurisdiction of the court.

8. Credit Grantor extended credit to Defendant(s) pursuant to an agreement between them and attached hereto as an exhibit.

9. All conditions precedent to the enforcement of the agreement have been performed, excused or waived.

10. Defendant(s) breached the agreement by failing to make payments when due.

11. There is now due and owing from Defendant(s), to Plaintiff on credit card account ##### $1439.38 pluw interest from Jnauary 5, 2004 at rate of 24.99% per annum for purchases and/or cash advances charged on Credit Grantor’s credit card.

Wherefore, Plaintiff demands judgment for damages of $1439.38 plus interest, costs and attorney's fees.

Count III

Plaintiff sues Defendant(s) and alleges that:

12. This is an action for damages that are within the jurisdiction of the court.

13. Before the institution of this action Credit Grantor and Defendant(s) had business transactions between them and a statement was mailed indicating the balance owed; a copy is attached as an exhibit hereto.

14. Defendants(s) failed object to the statement in writing within 60 days as required by the Truth in Lending Act, 15 U.S.C. S1601 et seq., to dispute the balance stated.

15. Defendant(s) owes Plaintiff $1439.38 that is due with interest at the rate of 24.99% per annum since January 5, 2004, on the account.

Wherefore, Plaintiff demands judgment for damages of $1439.38 plus interest, costs and attorney's fees.

[graphixguru]

This is my response to the suit that I filed with the clerk as soon as the pre-trial was over.

County Court, Hernando County Florida
Small Claims Divison
Case #

Comonwealth Financial Systems, Inc.,
Assignee of Citibank,
Plaintiff,

vs


Defendant.

Response to Complaint and Plaintiff’s Counter Claims

Defendant, appearing pro se, for its reply to the Complaint of Commonwealth Financial Systems, Inc. states as follows: All allegations of the Complaint are denied unless expressly admitted herein.

All of Plaintiffs claims for the alleged debt are time barred pursuant to F.S. 95.11(2)(b) and F.S. 95.11(3)(k).

All of Plaintiffs claims for the alleged debt are time barred pursuant to the doctrine of Laches.

At no time has Defendant had any business relationship with Plaintiff. There has been no service rendered by Plaintiff to Defendant and there has been no consideration.

Plaintiff's complaint fails to allege a valid assignment and there is no proof as to the nature of the purported assignment or evidence of valuable consideration.

Plaintiffs claims of being an assignee are unproven assumptions which Defendant denies and demands strict Proof thereof.

Under the Fair Credit Act, Defendant has timely responded to each and every demand by Plaintiff with a request for validation of the alleged debt and each time the Plaintiff has not responded to the request for validation in violation of the Fair Credit Act. Defendant alleges that Plaintiff is precluded from bringing this action under the Doctrine of Unclean Hands, whereas Plaintiff has violated statutes of the Fair Debt Collections Act.


Plaintiff has failed to provide notice as required by Florida Consumer Collection Practices Act 559.715



Responses to specific allegations:

1. In response to paragraph #1 of the complaint, the Defendant disputes the alleged debt, as solicited in paragraph #1 of the complaint.
(a) Plaintiff's complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.
(b)Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide;
(c)Plaintiff's complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant
(d) Plaintiff's actions are precluded by the Statute of Limitations
(e) Plaintiff has failed to provide notice as required by Florida Consumer Collection Practices Act 559.715 Assignment of consumer debts.-- the assignee must give the debtor written notice of such assignment within 30 days after the assignment.
(f) Plaintiffs claims of being an assignee are unproven assumptions which Defendant denies and demands strict Proof thereof.
(g) At no time has Defendant had any business relationship with Plaintiff. There has been no service rendered by Plaintiff to Defendant and there has been no consideration.

2. In response to paragraph #2 of the complaint, the Defendant disputes the alleged debt, as solicited in paragraph #2 of the complaint.
(a) Attached exhibits do not provide any proof of an agreement between plaintiff and defendant. There is no information to identify the parties to the agreement or signatures, indicating acceptance. It is simply an unsigned generic credit card disclaimer with a third party.
(b) At no time has Defendant had any business relationship with Plaintiff. There has been no service rendered by Plaintiff to Defendant and there has been no consideration.

Plaintiffs response to Count I

3. In response to paragraph #5 of the complaint, Plaintiff's actions are precluded by the Statute of Limitations pursuant to F.S. 95.11(2)(b) and F.S. 95.11(3)(k).

4. In response to paragraph #6 of the complaint, the Defendant disputes the alleged debt, as solicited in paragraph #6 of the complaint for the reasons stated in paragraph 1 above. All of Plaintiffs claims for the alleged debt are time barred


Plaintiffs response to Count II

5. In response to paragraph #7 of the complaint, the Defendant disputes the alleged debt, as solicited in paragraph #7 of the complaint. Plaintiff's actions are precluded by the Statute of Limitations.

6. In response to paragraph #8 of the complaint, the Defendant disputes the alleged debt, as solicited in paragraph #8 of the complaint.
(a) Plaintiff's actions are precluded by the Statute of Limitations.
(b) At no time has Defendant had any business relationship with Plaintiff. There has been no service rendered by Plaintiff to Defendant and there has been no consideration.
(c) Attached exhibits do not provide any proof of an agreement between plaintiff and defendant. There is no information to identify the parties to the agreement or signatures, indicating acceptance. It is simply an unsigned generic credit card disclaimer with a third party.

7. In response to paragraph #9 of the complaint, the Defendant disputes the alleged debt, as solicited in paragraph #9 of the complaint. Plaintiff's actions are precluded by the Statute of Limitations.

8. In response to paragraph #11 of the complaint, the Defendant disputes the alleged debt, as solicited in paragraph #11 of the complaint for the reasons stated in paragraph 1 above. All of Plaintiffs claims for the alleged debt are time barred

Plaintiffs response to Count II

9. In response to paragraph #12 of the complaint, the Defendant disputes the alleged debt, as solicited in paragraph #12 of the complaint. Plaintiff's actions are precluded by the Statute of Limitations.

10. In response to paragraph #13 of the complaint, the Defendant disputes the alleged debt, as solicited in paragraph #13 of the complaint.
(a) Plaintiff's actions are precluded by the Statute of Limitations.
(b) At no time has Defendant had any business relationship with Plaintiff. There has been no service rendered by Plaintiff to Defendant and there has been no consideration.
(c) Attached exhibits do not provide any proof of an agreement between plaintiff and defendant. There is no information to identify the parties to the agreement or signatures, indicating acceptance. It is simply an unsigned generic credit card disclaimer with a third party.
(d) Plaintiff's complaint fails to allege a valid assignment and there is no proof as to the nature of the purported assignment or evidence of valuable consideration.

(e) Plaintiffs claims of being an assignee are unproven assumptions which Defendant denies and demands strict Proof thereof.

(f) Plaintiff has failed to provide notice as required by Florida Consumer Collection Practices Act 559.715


11. In response to paragraph #14 of the complaint, the Defendant disputes the alleged debt, as solicited in paragraph #14 of the complaint.
Defendant has timely responded to each and every demand by Plaintiff with a request for validation of the alleged debt and each time the Plaintiff has not responded to the request for validation in violation of the Fair Credit Act.

12. In response to paragraph #15 of the complaint, the Defendant disputes the alleged debt, as solicited in paragraph #15 of the complaint.
(a) Plaintiff's complaint fails to allege a valid assignment and there are no averments as to the nature of the purported assignment or evidence of valuable consideration.
(b)Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide;
(c)Plaintiff's complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant
(d) Plaintiff's actions are precluded by the Statute of Limitations
(e) Plaintiff has failed to provide notice as required by Florida Consumer Collection Practices Act 559.715 Assignment of consumer debts.-- the assignee must give the debtor written notice of such assignment within 30 days after the assignment.
(f) Plaintiffs claims of being an assignee are unproven assumptions which Defendant denies and demands strict Proof thereof.
(g) At no time has Defendant had any business relationship with Plaintiff. There has been no service rendered by Plaintiff to Defendant and there has been no consideration.



Defendant hereby petitions court to dismiss all of the Plaintiff’s claims with prejudice.




STATEMENT OF COUNTERCLAIM

Defendant / Counter-Plaintiff sues the Plaintiff / Counter-Defendant for damages not exclusive of costs, interest and attorney’s fees for:

FIRST CAUSE OF ACTION
Statement of Facts ;
On October 31, 2006 , Defendant sent Plaintiff, by way of certified mail, a request for validation of alleged debt, including a questionnaire about said debt and a request for documentation.

Similar letters and request for validation were sent to Plaintiff on January 22, 2007, and March 5, 2007. In addition, a request for validation was delivered to Plaintiff’s Attorney by Certified mail on April 16, 2006

Up until the date of this filing, no attempt at validation was received from Plaintiff. Defendant alleges that Plaintiff is precluded from bringing this action under the Doctrine of Unclean Hands, whereas Plaintiff has violated statutes of the Fair Debt Collections Act.

Statement of Claim
In the entire course of its action, Plaintiff willfully and/or negligently violated provisions of the Fair Debt Collection Practices Act (hereafter “FDCPA”) in the following respects:
(a) By failing to cease collection of an alleged debt after the Defendant notified Plaintiff in writing that the alleged debt was disputed, therefore violating 15 USC 1692g(b).
(b) Plaintiff has violated § 807 of the FDCPA. False or misleading representations [15 USC 1692e]
“A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:
2) The false representation of –
(a) the character, amount, or legal status of any debt; or
(b) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt. “


Wherefore Defendant / Counter-Plaintiff demands judgment in the sum of $1000 together with costs, interest and attorney’s fee. As provided for in the Fair Debt Collections Act § 813. Civil liability [15 USC 1692k]
“(a) Except as otherwise provided by this section, any debt collector who fails to comply with any provision of this title with respect to any person is liable to such person in an amount equal to the sum of --
(1) any actual damage sustained by such person as a result of such failure;
(2) in the case of any action by an individual, such additional damages as the court may allow, but not exceeding $1,000;
(3) in the case of any successful action to enforce the foregoing liability, the costs of the action, together with a reasonable attorney's fee as determined by the court. On a finding by the court that an action under this section was brought in bad faith and for the purpose of harassment, the court may award to the defendant attorney's fees reasonable in relation to the work expended and costs.
(b) In determining the amount of liability in any action under subsection (a), the court shall consider, among other relevant factors --
(1) in any individual action under subsection (a)(2)(A), the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which such noncompliance was intentional;”


SECOND CAUSE OF ACTION
Statement of Facts:
Plaintiff has caused to be entered into Defendants credit reports a statement that the alleged account was created 5/2006. Plaintiff’s initial written contact with Defendant was in October 2006 at which time Defendant requested Validation.

Statement of claim:
Plaintiff has failed to provide notice as required by Florida Consumer Collection Practices Act (FCCPA) 559.715 Assignment of consumer debts.-- the assignee must give the debtor written notice of such assignment within 30 days after the assignment. Plaintiff and Plaintiff’s agent’s acts as described above were deceptive trade practices and unfair trade practices and therefore violated the Florida Consumer Protection Act.

Defendant has never had any kind of business relationship with Plaintiff. There has been no service rendered by Plaintiff to Defendant and there has been no consideration.

Plaintiff has caused to be entered into Defendants credit reports a statement that the alleged account was created 5/2006. Plaintiffs initial written contact with Defendant was in October 2006 Plaintiff therefore did not comply with (FCCPA)559.715 within 30 days of alleged assignment.


Under the Florida Consumer Collection Practices Act,
559.55 Definitions.
"Creditor" means any person who offers or extends credit creating a debt or to whom a debt is owed, but does not include any person to the extent that they receive an assignment or transfer of a debt in default solely for the purpose of facilitating collection of such debt for another.

Plaintiff is therefore not a creditor .

Wherefore Defendant / Counter-Plaintiff demands judgment in the sum of $1000 together with costs, interest and attorney’s fee. As provided for in the Fair Debt Collections Practices Act