SummonsDucker

You can duck all you want but you can't hide. FL law allows for service by publication, meaning the attorney will publish the lawsuit notice in the local legal rag and then you have been served. If you fail to answer they will move for default.

Now you need to take your head out of the sand and face this head on. The banks are not cheating you, you defaulted.

Since you are already past the SOL, you will use that as your defense.

If a default is obtained it will take BK to vacate it and then it takes a year.

 

What laws are they changing to prevent this from happening to others?

Bankruptcy is most assuredly not the only other option you have. In fact, I believe it is the worst possible option you have.

Then you don't have a SOL defense

If you are able to pay the original creditor then you should do so but paying a debt collector will do you no good at all and even worse is the fact that if the debt has been sold to a debt collector you owe the bank exactly nothing but you do owe the debt collector.

 

Some discussion: 942 So. 2d 425; 2006 Fla. App. LEXIS 17464; 31 Fla. L. Weekly D 2613, October 20, 2006, Opinion Filed:

FNMA's affidavit of diligent search is facially sufficient. However, had its constructive service been challenged, it would have been the trial court's duty to determine whether FNMA actually conducted an adequate search: "whether [it] reasonably employed the knowledge at his command, made diligent inquiry, and exerted an honest and conscientious [**16] effort appropriate to the circumstance to acquire the information necessary to enable him to effect personal service on the defendant." Shepheard v. Deutsche Bank Trust Co. Ams., 922 So. 2d 340, 343-44 (Fla. 5th DCA 2006) (quoting Demars v. Village of Sandalwood Lakes Homeowners Ass'n, 625 So. 2d 1219, 1224 (Fla. 4th DCA 1993)). "Courts routinely hold that 'proof of a few attempts at service of process are insufficient to prove diligent search.'" Id. at 344 (quoting Demars, 625 So. 2d at 1221 (holding that two attempts at service of process did not show diligent search)). More important, it appears possible that FNMA did not follow a lead likely to reveal Mr. Sudhoff's location. "A diligent search for a defendant's whereabouts requires inquiry of persons likely or presumed to know the defendant's location." Id. (citing Dor Cha, Inc., v. Hollingsworth, 876 So. 2d 678, 680 (Fla. 4th DCA 2004)). Its failure to inquire of Ms. Sudhoff, the wife and co-mortgagor who allegedly left her forwarding address with the post office, may demonstrate a lack of "conscientious effort â?¦ to acquire the information necessary [**17] to accomplish personal service on the persons holding title or having possession of the mortgaged property so as to provide them with notice of the proceedings." Id. (quoting Floyd v. Fannie Mae, 704 So. 2d 1110, 1112 (Fla. 5th DCA 1998)).

A judgment against a defendant based upon improper service by publication lacks authority of law. Such improper service renders the judgment either void or voidable. The judgment is void where the service of process is so defective [*432] that it amounts to no notice of the proceedings. The judgment is voidable if the irregular or defective service actually gives notice of the proceedings.

Id. (citations omitted).

Here, we cannot determine whether the judgment as to Mr. Sudhoff was void, voidable, or neither based on FNMA's constructive service. See, e.g., Godsell v. United Guaranty Residential Ins., 923 So. 2d 1209, 1214-15 (Fla. 5th DCA 2006); Shepheard, 922 So. 2d at 345; Floyd, 704 So. 2d at 1112.

 

Quoting 571 F. Supp. 2d 1273; 2008 U.S. Dist. LEXIS 63046; 21 Fla. L. Weekly Fed. D 361, August 5, 2008, Entered:

In Florida, a choice of law provision of a contract is presumptively valid unless the party seeking to avoid it shows that application of the chosen law "contravenes [a] strong public policy" of Florida. Mazzoni Farms, Inc. v. E.I. DuPont De Nemours and Co., 761 So. 2d 306, 311 (Fla. 2000) (citing Punzi v. Shaker Adver. Agency, Inc., 601 So. 2d 599 (Fla. 2d DCA 1992)). Contrary to Orovitz's suggestion, Florida courts consider the statute of limitations to be substantive, and therefore the statute of limitations of the parties' chosen forum will apply where there exists a contractual choice of laws provision. See Western Group Nurseries, Inc. v. Ergas, 211 F. Supp. 2d 1362, 1366 (S.D. Fla. 2002) (citing Fulton County Adm'r v. Sullivan, 753 So. 2d 549, 553 (Fla. 1999); Merkle v. Robinson, 737 So. 2d 540 (Fla. 1999)) ("Under Florida rules, statutes of limitations are considered substantive in nature."); Pescatrice, 539 F. Supp. 2d at 1379 (In an analogous case, [**9] "Defendants did research the issue, and several Miami-Dade circuit judges have ruled that under similar facts, the five-year Virginia statute applies."); Stewart v. Hooters of America, Inc., Case No. 04-cv-40, 2007 U.S. Dist. LEXIS 84681, 2007 WL 3528685, at *10 (M.D. Fla. Nov. 15, 2007) (citation omitted). Orovitz has not shown the application of the New Hampshire statute of limitations contravenes Florida public policy, and therefore, the New Hampshire statute of limitations applies to the state action.

 

You can always file and still make your creditors whole.

 

That won't do you any good now. It only protects consumers from such future acts but does nothing to cure the sins of the past.

Wrong. There can be only one creditor with the exception of debts which are in good standing at the time of the transfer to the new owner in which case the new owner steps into the shoes of the original creditor. If Bank 2 buys bank 1 then it becomes an original creditor in those debts which are in good standing but becomes a 3rd party debt collector for those debts which had already gone into default at the time of the sale. Asset Acceptance is a 3rd party debt collector and since it buys only debts which are in default it can never be an original creditor under FDCPA.

In terms of the thinking of the majority of the population you are absolutely correct but for the minority who are better informed and therefore able to think outside the box bankruptcy is an outcome they never want to hear about.

Bankruptcy has no good outcomes for those who understand that there are far better solutions and all they can do in bankruptcy is suffer more indignity and injury even if they can successfully complete the BK. I had a friend who filed BK. He was unable to work due to his health but his wife was an RN with a high paying position at a local hospital. They had 3 children. They couldn't pay what they owed and so filed and spent the next 5 or 6 years eating Ramen Noodles as a steady diet. The court allowed them $1.25 a day for each family member to eat on and enough money for her to get to work on plus utilities. Her father was a very rich man and saw to it that they had enough extra money to live a little bit better. He would buy them extra food. He had loaned them the money to buy their home and let them go without making any payments until they got out of BK and of course didn't charge them any interest during that time either.

If you file the court will take away all your credit cards so as to treat all creditors equally. They can take much more than that as well. Even though you win in a manner of speaking you will lose far more than you will ever gain from it and you will lose far more than you can ever lose by dealing with the summons and complaint that is certain to come unless you do nothing but sit back and let it happen.

If you learn to think outside the box and learn what you can do to protect your assets as well as how to turn the tables on them by filing federal lawsuits against the debt collectors and their lawyers you will not only protect what you have but make them pay you to go away and leave them alone. It isn't the least bit hard to do and you don't even need to hire a lawyer to do it for you. The federal court system even has templates on line that you can use to copy and learn from. Standard forms that anyone can use to do exactly what I have told you can be done. More than 28,000 people have successfully sued debt collectors and attorneys so far and the number keeps growing every month. If more than 28,000 people can do it why can't you?

Maybe so but far more cases end in involuntary dismissal or the bankruptcy is completed.

I just did that. And thank you for giving me the opportunity to respond to you. Now you should know that the final resolution to your problem lies with you, not with your creditors, not with their debt collectors and not with their lawyers and not with some bankruptcy judge unless you let them have the reins and drive your little red wagon for you. Believe it or not, the keys to your future are right here on this board and are right in front of your eyes right now, just a mouse click away.

 

I never suggested that you do that. I suggested that you go to the courthouse and check your public record. If I know your name I can go to your courthouse and pull up your public record and so can anybody else. It is public information. I can look to see if you have ever had any judgments or cases filed against you. I don't even have to tell them who I am unless I want them to pull the actual court records on a specific case. In many cases I can even do it on line. Maybe that is possible in your county too but the on line records are not complete so are only good to see whether you have been sued or not. So, no, don't go asking for your summons. Ask to see your public record. Big difference.

You may have already lost it and a judgment against you will make sure of that. I'm not sure what all is in the new credit card bill yet but up until the law is actually signed into law by the President and actually becomes law (which can be two very different dates) they are free to wreck your credit to their hearts content.

Even though it may be illegal to do what they have been doing in the past the question becomes one of what happens to them if they violate. What will the penalties be and who will enforce them? Is it another private attorney general law or will it be vigorously enforced by the government? Those are things I don't know yet.

Interesting!!! How did you do that? By having all your assets in your wife's name or the name of some family member or friend? Or did you put them all in a trust or corporation you own? If so then your sense of security is about as airtight as a widow's black funeral veil.

Sole owner corporations are easily pierced in most cases unless you have the type of corporation that I have. All they have to do is file a judgment against your corporation and call for the corporate records. If you don't have any or have been mixing the funds or doing other impermissible things they can grab most anything they want out of your corporation or trust if it is not properly set up or has no board members other than yourself or maybe one or two family members.

If your corporation is properly set up and has board members other than yourself it is more secure. If your corporation is properly set up you can actually keep your vehicles and other titled assets in your name but have huge liens against them placed by your corporation as a lender.

If it is properly set up you can actually sue yourself, lose the case and have your corporation garnish your wages for much more time than you will ever be able to pay off so other judgment creditors can't get to your wages through garnishment.

Your corporation can also rent you all your household items that are subject to garnishment and if they send a sheriff to your door you show him the rental agreement and he goes away empty handed and muttering to himself.

That still leaves any bank accounts that are in your name open to seizure.

All of that won't protect you from their calling your wife into court and forcing her to bring forth her bank records to show that the two of you are not mingling funds to hide them from your creditors. If she has even so much as cashed one small check for you then her money can be seized as well.

So don't get all comfy with the thought that you have protected all your assets unless you have covered all your tracks really well.

 

While your quotation of all those cases is impressive they leave unclear your point. All those case cites would also leave a judge unconvinced since judges are not disposed to going back over your research to clarify your argument. Such quotes presented in the way that you have is a common trick used by snake oil salesmen trying to convince potential suckers that they are very knowledgeable in the law and for a huge price can surely help the gullible.

Obviously that is not your intent here but the similarity does exist. The result is that the under educated copy and paste all the quotes they can find that seem to have some relation to their case into their pleadings but have no idea what they are actually trying to tell the court. The end result is that the courts ignore all such legal gobble-de-gook from pro se litigants and routinely issue judgments against them with no further ado. Although it will take me some time to properly research and turn your litany of case cites into something useful if that is even possible and make it available to all.

I think I understand where you are going with your statements and if I am right it will be very valuable information in a great many cases where a shorter statute of limitations would be beneficial to the defendant but until either you do a better job of explanation of the individual decisions or I do it, what you have posted is meaningless to the average pro se litigant.

I've saved this post in my Google Docs account as an unpublished and unshared document so I can work on it with no fear of it being seen by anyone other than myself until such time as either you do a clarification or I have the time to do so.

 

The judge who wrote 571 F. Supp. 2d 1273, which Dumb Bob quoted verbatim, without changing even a letter, might disagree. The text includes citations exactly as that judge included them.

Dumb Bob has no idea whether or not the information will help the poster. He, however, does think that since Florida evidently considers "a choice of law provision of a contract [] presumptively valid" and "the statute of limitations to be substantive", the original poster may wish to find out which state law the contract purports to operate under. As the cite suggests strongly (at least to Dumb Bob), the court will more than likely view the SOL of that other state as the one that matters, unless it "contravenes [a] strong public policy of Florida." But who knows, there might be some confusion even in the Florida courts on this (or in Dumb Bob's head), since he recalls people going on about cases (which he doesn't currently recall what are) that he thinks supposedly employed a four or five your SOL depending on various factors.

Dumb Bob has absolutely nothing whatsoever to sell here.

It's always best to try to understand what you are citing when you are citing it in a legal brief. A very good way to help yourself in doing that is to go through each and every citation that is around the cite you are using. You can use the Keycite system on Westlaw and the Shepardize function on Lexis to assist you in this. But legal quotations in cases often include citations back through, sometimes several for each point, to directly aid you in this. That was Dumb Bob's intent. Dumb Bob suspects that was also the judge's intent, however, she also likely had the intention of backing up her ruling by citing to authority for each point of her decision.

This is what the appeal is for. Of course if the cites are meritless, an appeal will just create more trouble.

 

Yes, and I must say that your response is indeed outstanding. In this reply you brought out at least two very important points that were not present in your original post. Nothing unusual about that since it is often true that when we gat a second bite at the apple we are then able to amplify a bit as you have done. Again, outstanding!

Yes, that is vitally important.

SOL can be very confusing at times. Introduction of this factor can further muddy the waters quite a bit.

I am well aware of that and tried to bring out the fact that I was not accusing you of such in any way.

Excellent points.

I'm not much in favor of going the appeal route since the appellate court tends to agree with the lower court so much of the time. Even lower court judges really don't make that many mistakes as opposed to what some would like to believe.

Again, thanks for your very informative reply.