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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 90255
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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well I didnt offer what the law firm alleged was the new full

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well I didn't offer what the law firm alleged was the new full amount owed, of 425.00, because I did offer the 150.00 + an additional 100.00 for attorney costs, dispite the fact they were paid if full just to end their requests etc. But refused the 175.00 account payment monitor fee, that was never disclosed or stipulated when I made originally offered to pay a total of 900.00 and she took 300.00 during that first call. I think the law clerk made an error and may have never told the HOA,of my 250.00 offer to stop or end their actions against me. AND JUST THE FIRM DECICED ON BEHALF OF THE ASSOC. NOT TO ACCEPT. I should be able to get discovery on that??? DO I LOSE MY RIGHT TO ARGUE PAID IN FULL BECAUSE I SUBSQUENTLY DID AGREE TO GIVE THEM MORE??? And is that 1941 case law still hold up in florida... ??? however even if I do win and owe nothing or the judge award 150.00 I wont get back my attorneys fees??? I can ask but theirs no garuntee , and I don't think the judge is force to award my fees. So in the end I might just best try to mediate down the 3500. in their complaint and move on... ???
Submitted: 1 year ago.
Category: Legal
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your new question.

You have to prove that you paid in full and if you agreed to give them more, an offer of settlement is not admissible under the FL rules of evidence to prove that you owed them more money. The 1941 case is still valid and it was cited with approval in McGehee v. Mata, 330 So.2d 248 (Fla. App. 3 Dist., 1976) as well.

Under FL law, you would not recover attorney's fees unless the court finds their case was frivolous and without legal merit, which is generally something difficult for you to prove unless you prove that they had no grounds at all for thinking you still owed the money you dispute is owed. If there was some mistake with the clerk of court or miscommunication leading them to believe they had a valid claim, then it is likely the court would not award you attorney's fees I am afraid and it is solely in the court's discretion in these cases.

In the end it is generally better to try to resolve and settle such a small debt (small in the eyes of the court, maybe not in your eyes as it still is a decent amount of money to most people) as it can save you much more in the long run.



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Customer: replied 1 year ago.

First the court clerk didn't do any accounting at all, the law firm did the accounting. Second my copy and the banks copy, state in memo line " for in full"," last payment". and clearly marked , readable, yet they cashed it and didn't later catch their error, and within 90 days return my money. being a law firm, if the law is not ambiguous and clear they accepted a offer of consideration etc. And they knowing precedents of this statue and supporting case law, since 1941,then they had no real legal merit to file the suit in the first place. They are expected to be empowered to legally know they had no legal grounds to win a ruling, than wouldn't there pursuit of further fees be without legal merit, unless they want to over turn 72 years of recorded case law. I personally, think is its without legal merit and frivolous, unless they are able to argue some unique twist in this case that would merit revisiting 72 years prior of statutory law... ??? Considering this perhaps I should file a formal motion to dismiss the foreclosure and included a copy of the check... ??? unless they can raise some new argument the court might just rule in my favor. ???

Expert:  Law Educator, Esq. replied 1 year ago.
I am sorry, I was meaning the law clerk, not the court clerk, that was a typo.

You have grounds for arguing payment was made and accepted in full, as I said. They are responsible for conduct of their employees and their clerks are responsible to know better. If their clerk did not bring the payment in full issue to their attention and they did not return the check, then this is grounds for the court to hold payment was made and accepted in full.
Customer: replied 1 year ago.

Thanks, XXXXX XXXXX am a little worried to argue that in a motion to dismiss, with attached check and full explanation of sequence of events, I 'd be disclosing or exposing my entire defense. Because I think I or a decent attorney could cross examine the law clerk in charge of my file and get caught in a lie or make inaccurate statements. in relation to the added fee of 175.00, and when and how it got added etc. If I state the full sequence of events up to the payment in full check and I don't prevail on the check in full issue I may tip my hand and the clerk alter what she might have said and or prepare , her thoughts, Please share your thoughts, Or if I only argue the paid in full issue in a motion to dismiss, will I be barred from other arguments at trail, if the judge decides to proceed to trail anyway, ???

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response. Litigation under the rules of procedure is not to be conducted by ambush, so you are not disclosing anything you would not have to disclose otherwise. If you do not raise an issue out of fear of "giving away your defense" then prepare to fail as you have to disclose it to the court to succeed to get a dismissal. You need to argue all of your grounds and the court allows a person to argue "alternative theories" even if they might be opposite of those. You need to raise every argument you have not only in the dismissal but if your dismissal is denied in your hearing as well.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 90255
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Law Educator, Esq. and 10 other Legal Specialists are ready to help you
Customer: replied 1 year ago.

are you available ??? I am writing a motion ,

Expert:  Law Educator, Esq. replied 1 year ago.
Yes, I am available

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