Thank you for using our service. My name is XXXXX XXXXX X would like to assist you today.
I am sorry to learn that you have been taken advantage of in this business transaction. Unfortunately, there is no quick and easy way to deal with this type of lawsuit in the opening or pleading phase, at least as you have described it.
If I understand correctly, you and the landlord came to a mutual agreement on a lease, following that agreement, the landlord drafted a separate written agreement that included different terms. You signed the subsequent agreement, and the landlord is now suing you on those terms.
Your defenses regarding the negotiations and the actual terms agreed upon as compared to those that you agreed to in writing can be argued subsequently in the litigation, this is parole evidence, and you may be able to show that the contract was indeed fraudulent.
That is correct. Here are two facts
On about October 25,2011 both the parties had agreed to meet at a cafeteria to sign the lease. At this time the Plaintiff brought two copies of Lease with him. The Defendant signed the lease copies in good faith assuming these copies have been updated with the name of his company as Lessee. Due to the very short notice Defendant did not notice that the Plaintiff had fraudulently added his name to the lease without the Plaintiff’s knowledge or approval
The fraud is in changing the ownership of the lease, so is that grounds for filling a Motion to Dismiss citing Fraud? If yes, how?
I believe I understand your general position. The legal principle you are fighting is that all parties are deemed to have read and understood the document they are signing. This is probably going to be sufficient to carry the complaint past the pleading phase, so you will have to defend the matter both on the merits of the lease, and with your affirmative defense of fraud in the inducement, breach of the Florida Business and Professions Code, and whatever other defenses may apply to your case.
So in one sentence how can I present my opening line of the arguement?
This is the body I had in the Arguement
I believe your sentence is a good summation, and a reasonable legal argument. I do not believe that you can make it in response to the pleading, you will need to wait until you can introduce evidence to support the affirmative defense of fraud (this is something that comes up in what is called a "Motion for Summary Judgment" and usually takes place after you have taken discovery from the Plaintiff - perhaps including their deposition).
I see. So Can I still submit this Motion but will have to see what the judge says about this?
No, you need to make a responsive pleading to the complaint. This is either an Answer, a Motion to Strike, or a Demurrer. Here is an article that gives information (plus legal authorities for you to cite as you go along) for each of these three types of responsive pleadings and has some information regarding an MSJ: http://www.barkerrodemsandcook.com/BRCMechanics-of-Florida-Civil-Procedure.pdf
(In most circumstances, the defendant will file an Answer to the complaint, with a general denial and affirmative defenses, but I would advise that you take a quick read of this article as it is helpful and fairly comprehensive as to what the uses are for a motion to strike and you can see if it would apply to your case).
So a Motion to Dismiss is not a suitable answer to a complaint?
No. A motion to dismiss is reserved for other purposes, usually dealing with more complex litigation and multiple parties.
I mean to ask If I respond to the complaint by filling a motion to dismiss and address the two counts in the complaint, is that a sufficient answer or Do i have to file a Response and a seperate Motion to Dismiss.
And I apologize if I havent read through that document correctly but I have deadline to respond by tomorrow and I just waited till last minute to prepare teh responses.
Get your responsive pleading in on time (An Answer, Motion to Strike, or Demurrer - almost always an Answer).
And what is a Motion to Strike?
To deal with disposing of the case, you will want to wait and get your evidence in support of your case in order, and take discovery of the other side. You can manage your own litigation (we cannot practice law through this site), but it usually does not pay to rush through an MSJ, these are specialized motions and you will want to ensure you have all of your evidence and all of theirs before you file it.
A Motion to Strike is filed against the complaint for very specific defects in the complaint or the service:
According to Rule 1.140(b), the following defenses may be made by motion:(1) lack of jurisdiction over the subject matter,(2) lack of jurisdiction over the person,(3) improper venue, (4) insufficiency of process,(5) insufficiency of service of process, (6) failure to state a cause of action, and 3(7) failure to join indispensable parties.
Yes I understand that part. At this point I wish to get some time by responding with a the motion to dismiss but I was in the understanding that the MTD is good enough a response to a lawsuit
No, you need to file a response to the complaint to make an appearance.
How can I ask to get more time to respond? Is it called Motion to Continue?
It is a "Motion for Enlargement" The first thing to do is to call the opposing counsel and ask for time, but file a motion asking for more time with the court at the same time. The motion is fairly simple and just asks for more time to file a response to the complaint. Most attorneys will give more time even without the motion, but the motion can act to protect you (it is duplicative but if you have already experienced double dealing with this party it may be worthwhile). (The article I referenced has a section on how to do this as well, with some more details).
Any agreement to extend the answer should be in writing (you can take a phone call agreement, but then write a "confirmation letter" to the attorney in which you "confirm" your phone call of a specific date and time in which you were given until some agreed upon date to file a responsive pleading to the complaint.
I hope the above is helpful, if you have any questions please do not hesitate to let me know and I will follow up quickly.
Thank you for using our service, please do not forget to rate my answer when you are satisfied. I do wish you the best of luck in this matter.
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