Summons to appear for Mediatio

Discussion in 'Credit Talk' started by STEVE G, Dec 30, 2000.

  1. STEVE G

    STEVE G Guest

    I got a summons that FA Management solutions is taking me to court on a charged off debt they bought totaling $973. The last date of activity is 3/1996. I live in FL where SOL is 4 years. I originally opened the account in 1991 in WI which has 6 year SOL. My question to the group is since they are suing me in FL according to the FDCPA the FL statutes would apply. If they wanted the WI statute to apply, wouldn't they have to sue me in WI?
     
  2. Pizzaman

    Pizzaman Active Member

    RE: Summons to appear for Medi

    Steve:

    I'm not sure about the question of venue, but the SOL in WI is either 5 or 10 years, depending upon the type of debt.

    Also, I believe that the creditor has a choice of which SOL they wish to use, yours (FL), theirs (?), or where the debt was incurred (WI). Perhaps some of the more knowledgeable people on this board will have a definate answer for this.
     
  3. STEVE G

    STEVE G Guest

    RE: Summons to appear for Medi

    Pizzaman,

    They have chosen FL, The FDCPA says they have to pick the state to sue in, not the SOL to follow, how could a FL judge interpret WI law? I've also researched alot tonite(8 hours worth) and from what I can see based on (Yu v. Signet Bank/Virginia, 69 Cal. App. 4th 1377, 82 Cal. Rptr. 2d 304 (1999) They couldn't file in WI because of this case and the following: collector filing suit in a forum which is technically allowed by statute may nevertheless violate unfair and deceptive practices act because the forum is so inconvenient to the consumer as to make the most likely result the entry of a default judgment.

    Any legal experts out there?
     
  4. Kristi

    Kristi Guest

    RE: Summons to appear for Medi

    You may want to look at the international shoe law. The collector may not be able to make it extremely unfair for venue but based on where the debt was originally incurred, the collector has the right to file where the debt was incurred, creditor is located or where debtor lives. in this case, since you moved, they are not being outrageious by filing where the debt was incurred or where the creditor's office is.

    If I am reading and understanding your question right then this is not so unusal. However, you can throw a wrench in the whole works if the debt collection agency never verified the debt as yours at your request. I would file a motion to re calander this and tell the court not only do you live outside the venue but you requested that the debt be verified as allowed by the FDCPA when a third party steps in and the 3rd party did not oblige and therefore cannot collect until your request has been completed. Don't just wait for this to become a default judgment, ask for a new venue, re-calendering and proof of debt. Make their job tough and they may shine the whole thing.

    Ps: Hope I interpretated your Q right and I am NOT a lawyer so don't ask me to be :).... little disclaimer. I don't give legal begal advice...

    Kristi


    STEVE G wrote:
    -------------------------------
    Pizzaman,

    They have chosen FL, The FDCPA says they have to pick the state to sue in, not the SOL to follow, how could a FL judge interpret WI law? I've also researched alot tonite(8 hours worth) and from what I can see based on (Yu v. Signet Bank/Virginia, 69 Cal. App. 4th 1377, 82 Cal. Rptr. 2d 304 (1999) They couldn't file in WI because of this case and the following: collector filing suit in a forum which is technically allowed by statute may nevertheless violate unfair and deceptive practices act because the forum is so inconvenient to the consumer as to make the most likely result the entry of a default judgment.

    Any legal experts out there?
     
  5. STEVE G

    STEVE G Guest

    RE: Summons to appear for Medi

    Kristi,

    They have filed in FL where I currently live. The SOL in FL is 4 years which would mean that the SOL has run out because date of last activity is 3/1996. My question is if they file in FL(which they did) does the FL SOL apply or can they sue me in FL and use another states SOL.

    Anyone have the answer to this?? It would be greatly appreciated.
     
  6. Pizzaman

    Pizzaman Active Member

    RE: Summons to appear for Medi

    Steve:

    You are right about the SOL being determined by where the lawsuit is filed. Since they have chosen FL, then the SOL on this may be either 4 or 5 years depending on the type of debt.

    If the SOL has expired, you can use that fact as your defense. However, you must raise the issue in court, it does not present itself. They are probably hoping that you will not bother to show up and they can get a default judgement without the SOL question ever being asked.

    As is the case with most of the people on this board, I am NOT a lawyer, I am learning from people here who have more knowledge and experience than I do, and answer questions as best I can. I sincerely recommend that you seek the advice of an attorney who is familiar with Florida laws and can explain hoow they apply to the details of your case. In most areas you can find attornies who do not charge for the initial consultation, during which you can get many of your questions answered for free.
     
  7. Kristi

    Kristi Guest

    RE: Summons to appear for Medi

    Steve,
    There is no rule that they must use the SOL of the state they are filing in. They have the right to use the SOL where the debt was entered into or the debtors state. But, MANY creditors don't even consider the sol except for the debtors state so chances are you could show up, tell the judge the sol in FL is up, venue is florida and you may just get a judge that agrees. On the flip side, if the collection agent is anticipating this and is prepared to argue that the sol applies where the contract was signed then that is legal. It is really a matter now of the judges interpretation & personal feeling of how valid the debt is.


    STEVE G wrote:
    -------------------------------
    Kristi,

    They have filed in FL where I currently live. The SOL in FL is 4 years which would mean that the SOL has run out because date of last activity is 3/1996. My question is if they file in FL(which they did) does the FL SOL apply or can they sue me in FL and use another states SOL.

    Anyone have the answer to this?? It would be greatly appreciated.
     
  8. Kristi

    Kristi Guest

    RE: Summons to appear for Medi

    Steve,
    Have you looked at FL statutes?

    559.551 Short title.--Sections 559.55-559.785 may be cited as the "Florida Consumer Collection Practices Act."

    Florida Law:
    "Out-of-state consumer debt collector" means any person whose business activities in this state involve both collecting or attempting to collect consumer debt from debtors located in this state by means of interstate communication originating from outside this state and soliciting consumer debt accounts for collection from creditors who have a business presence in this state. For purposes of this subsection, a creditor has a business presence in this state if either the creditor or an affiliate or subsidiary of the creditor has an office in this state.

    This part is in addition to the requirements and regulations of the federal act. In the event of any inconsistency between any provision of this part and any provision of the federal act, the provision which is more protective of the consumer or debtor shall prevail.

    Any out-of-state consumer debt collector who collects or attempts to collect consumer debts in this state without first registering in accordance with this part shall be subject to an administrative fine not to exceed $1,000 together with reasonable attorney fees and court costs in any successful action by the state to collect such fines. Exemption is someone who does not regulary collect debts in this state.

    "Compitent Jurisdiction" means to bring allowable action against the debtor in either the creditors state, where the debtor resides or where the consumer debt was entered into.

    Steve:
    The sol begins from the signing of the original contract and tolls for xx number of years based on either the creditors state or the debtors state or where the contract was signed. I can find no literature that says it must be the sol for the state you live in. The creditor is merely in your state as a convenience to you because he knows any judge would dismiss it if he made you come to his venue. That would be undue hardhip.


    I believe, based on reading both the FL and federal statutes, that the sol can be either. The important thing here is not the dae of last activity as you pointed out in your original post but the date of last payment, last written promise to pay or partial payment. The tolling begins again from then not last activity. Therefore if the last payment is past the WI or FL SOL then you are homefree. See http://www.carreonandassociates.com/SOL.htm for more info.....

    Hope this helps!
    Kristi

    Ps: No legal advice given here :).....
     
  9. Kristi

    Kristi Guest

    RE: Summons to appear for Medi

    Also:

    Civil Proceedings: 47.011 Where actions may be begun.--Actions shall be brought only in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. This section shall not apply to actions against nonresidents.

    47.061 Action on promissory notes.--Actions on unsecured negotiable or nonnegotiable promissory notes shall be brought only in the county in which such notes were signed by the maker or one of the makers or in which the maker or one of the makers resides. When any such note was signed by the makers in more than one county, action may be brought thereon in any such county. This section shall be liberally construed in favor of the makers of such notes.

    Also, you may be exempt from garnishment if any of the following apply:

    Florida Garnishment

    CLAIM OF EXEMPTION AND
    REQUEST FOR HEARING

    I claim exemptions from garnishment under the following categories as checked: _____ 1. Head of family wages. (You must check a. or b. below.)
    _____ a. I provide more than one-half of the support for a child or other dependent and have net earnings of $500 or less per week.
    _____ b. I provide more than one-half of the support for a child or other dependent, have net earnings of more than $500 per week, but have not agreed in writing to have my wages garnished.
    _____ 2. Social Security benefits.
    _____ 3. Supplemental Security Income benefits.
    _____ 4. Public assistance (welfare).
    _____ 5. Workers' Compensation.
    _____ 6. Unemployment Compensation.
    _____ 7. Veterans' benefits.
    _____ 8. Retirement or profit-sharing benefits or pension money.
    _____ 9. Life insurance benefits or cash surrender value of a life insurance policy or proceeds of annuity contract.
    _____ 10. Disability income benefits.
    _____ 11. Prepaid College Trust Fund or Medical Savings Account.
    _____ 12. Other exemptions as provided by law.
    ________________________________________(explain)


    I request a hearing to decide the validity of my claim. Notice of the hearing should be given to me at:


    Address: ________________________________________

    Telephone number:______________________________


    The statements made in this request are true to the best of my knowledge and belief.


    ________________________________________

    Defendant's signature

    Date________________________________________


    STATE OF FLORIDA

    COUNTY OF


    Sworn and subscribed to before me this __________ day of (month and year) , by (name of person making statement)

    Notary Public/Deputy Clerk

    Personally Known __________OR Produced Identification_____

    Type of Identification Produced_________________________
     
  10. STEVE G

    STEVE G Guest

    RE: Summons to appear for Medi

    Kristi, Pizzaman,

    Thank you for your answers, I am going to show at the jan 31 pretrial /mediation hearing and raise the FL SOL as being 4 years. First though I am calling the attorney for the collection agency to compel them to produce the original document I've signed in 1991, shake the tree so to speak to see if they even have it as most creditors may not have documents going back to 1991, If they have it I will then consult an attorney about the SOL question, If the attorney doesn't agree about the SOL then I just might try to settle before the 31st or just go to court and use the FL SOL defense. This is sort of like a game of cat and mouse but I've cleaned up some of my credit issues and dont really want a judgement sitting there.

    Once again thank you both for your help, If I do go to court I will be armed with case law and such and will let everyone know what happens.

    Have a safe and prosperous new year.

    Steve
     
  11. Kristi

    Kristi Guest

    RE: Summons to appear for Medi

    Good luck Steve,

    I think you have a good stratagy. Claim the debt was never validated as yours, cause a vacate or mis-trial and then wait it out & see if the debt can be proven. Both states sol are from 4-6 years so chances are, the paperwork is long gone and the collection agency is hoping you don't know diddley about your rights.

    STEVE G wrote:
    -------------------------------
    Kristi, Pizzaman,

    Thank you for your answers, I am going to show at the jan 31 pretrial /mediation hearing and raise the FL SOL as being 4 years. First though I am calling the attorney for the collection agency to compel them to produce the original document I've signed in 1991, shake the tree so to speak to see if they even have it as most creditors may not have documents going back to 1991, If they have it I will then consult an attorney about the SOL question, If the attorney doesn't agree about the SOL then I just might try to settle before the 31st or just go to court and use the FL SOL defense. This is sort of like a game of cat and mouse but I've cleaned up some of my credit issues and dont really want a judgement sitting there.

    Once again thank you both for your help, If I do go to court I will be armed with case law and such and will let everyone know what happens.

    Have a safe and prosperous new year.

    Steve
     
  12. Saar

    Saar Banned

    RE: Summons to appear for Medi

    As always, excellent advice, Kristi. I'd like to correct one thing though.

    Kristi wrote:
    "The sol begins from the signing of the original contract".


    Actually, the SOL begins from the date plaintiff had a claim for the money. For example, if I signed a contract on 1/1/1980 saying I'll pay you $100 on 1/1/2000, the SOL begings from 1/1/2000.

    By the same token, If I applied for a Visa card on 1/1/1980 and on 1/1/2000 I failed to pay my monthly bill, the SOL starts from 1/1/2000.


    Saar
     
  13. Nevo

    Nevo Guest

    RE: Summons to appear for Medi

    Steve,

    I'd urge you not to do this. You don't know when you might be digging yourself a hole.

    One thing is really clear from this thread: you need a lawyer! Are you really willing to proceed on this based on the posts from some anonymous people on the Internet?

    You need to KNOW your rights and options. Right now you're guessing. What happens if you guess wrong?

    -Nevo
     

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