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Zachary
Zachary, Attorney
Category: Legal
Satisfied Customers: 3831
Experience:  Lead trial/International commercial attorney licensed 11 yrs
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Ive been sued by a debt collector in the state of Florida.

Customer Question

I've been sued by a debt collector in the state of Florida.

The only proof the included was a General Bill of Sale that does not include my name or account number and was not certified as a true copy of the original and a copy of a credit card bill with my name on it.

I filed my response: General Denial, Verified Denial, Affirmative Defense.

Went to Pre-Trial and was given a Trial date.

My question is: should I send the Plaintiff a request for discovery? in hopes that they don't answer and I can get the case dismissed, or will I be able to win my case by just defending myself in trial with what I have already file with the court?
Submitted: 2 years ago.
Category: Legal
Expert:  WiseOwl58 replied 2 years ago.
You should also report them under the Fair Debt Collection Act. Under the federal law, you have the ability to dispute the debt and to ask them to provide evidence that the debt was actually incurred by you and is owed by you.

So you have that option open to you, in addition to asking for the discovery in the course of the trial proceedings.

Best of luck to you. Please press the green ACCEPT button. Thank you for this opportunity to serve you.
Customer: replied 2 years ago.
Relist: Inaccurate answer.
Expert:  Zachary replied 2 years ago.
What court is the case in and when is your trial date?
Customer: replied 2 years ago.
Broward County, west regional court house. January,2012
Customer: replied 2 years ago.
My case is in FLORIDA,
Broward County, west regional court house. January,2012
Expert:  Zachary replied 2 years ago.
Let me clarify my question, is the court a small claims court, a county court, or a district court?
Customer: replied 2 years ago.
My apologies, is a county court. Thank you.
Expert:  Zachary replied 2 years ago.
In county court, you have a set amount of time in which you can conduct discovery.


You are correct that the debt collector has to have the documentation which ties you to the original debt. You have likely already missed the discovery deadline.

If you still have some time for discovery, you need to send a Request for Production asking for "each and every document which establishes that Defendant is liable for the debt asserted."

If you don't have any more time for discovery, you can just defend at the trial by saying that the defendant doesn't have proof that this is your debt. Your other alternative would be to move for a continuance to allow you to obtain the above stated discovery.

Remember the statute of limitations on florida debts is 5 years. So if more than 5 years has passed since the last date you made a payment, you need to amend your answer and say that Plaintiff's cause of action is barred by the statute of limitations.
Customer: replied 2 years ago.
I did mentioned at Pre-Trial and in my Affirmative defense that the plaintiff suit was barred by the statue of limitation, and that the evidence subumitted by the plaintiff was defective and hearsay. But the judge still set the case up for trial. The attorney for the plaintiff who is a collection agency said their record's show I had made a payment to them (the collection agency) some time this year, which I have never made. Would I have better chances of winning if I ask for a continuance, in order to do discovery, or will I have a equal chance of winning at trial if they are obviously unable to show a proof of payment from me.
Expert:  Zachary replied 2 years ago.
The only way to get the court to dismiss the case based on your objections to their lack of evidence is to file a Motion for Summary Judgment.

Instead of asking for a continuance, you should file a "No Evidence Motion for Summary Judgment". You need to look through the Florida Rules of Civil Procedure, which are available on line, to see the procedure you file for this. The long and short of it is that you state the elements of the Plaintiff's claim, and the explain that the Plaintiff does not have any evidence on at least one of the elements.

This will force the Plaintiff to file with the court the evidence that they do have. If they do not have any good evidence, then you will get the case dismissed. If they do have evidence which is enough to proceed to trial, you have at least forced them to to run over the evidence to you and know how to defend against it in court.

Additionally, you should also state in your motion that there is no evidence in existence which can establish that the Plaintiff is not barred from recovery by the statute of limitations.
Zachary, Attorney
Category: Legal
Satisfied Customers: 3831
Experience: Lead trial/International commercial attorney licensed 11 yrs
Zachary and 2 other Legal Specialists are ready to help you
Expert:  WiseOwl58 replied 2 years ago.
You should try a motion to dismiss then a motion for summary judgment based on the ground that the claim is time barred.

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