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Question

I was served papers, a couple of months ago, from a debt collection attorney for a credit card debt that they attempted to collect from me. I filed a motion to defend this at the Dade county courthouse in Miami, along with a request for discovery substantiating their claim. They have never provided me with any of my discovery, and today I received a notice in my mailbox which is a request to the court for a default judgement against me. They claim that I never filed a defense, or sent them a copy of the defense. This is not true. I filed a defense with the County Court at the time, as well as sent these attorneys a registered copy of my defense that I filed. I have a signed acnowledgement from the post office that the attorneys DID in fact receive a copy of my defense and request for discovery. In this last correspondence today, they have submitted and filed a motion for default judgement against me for failing to respond to their first attempt. What do I do now?

Submitted: 255 days and 12 hours ago.
Category: Legal
Value: $15
Status: CLOSED
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Optional Information

Miami, Florida

Already Tried:
I filed the motion to defend the first time in a timely manner, and just received the request for a default judgement against me today. The plaintiffs attorneys contend that I never filed a defense,or notified them by sending them a copy, hence their grounds for a default judgement. This is not true, as I DID file an intention to defend with the court at the courthouse, and I also sent the attorneys a copy return receipt requested. I have their signed receipt for that paperwork.

Posted by Benjamin M. Burt, Jr., Esq. 255 days and 11 hours ago.

Info Request

Hello and thanks for choosing Just Answer®. I am a licensed attorney, and I will be glad to try and assist you. To provide you with accurate information, could you please clarify these points:

 

  1. Did you actually file a timely Answer? (i.e. a General Denial along the lines of -- "defendant denies each and every allegation contained in the complaint")
  2. Could you explain a bit more about the "motion to defend"? (i.e. did you purchase a form from an online service or draft it yourself)
  3. When you mention your request for discovery, did you send this to the creditor informally (i.e. a letter demanding verification of the debt) or through formal discovery proceedings in court (i.e. Interrogatories, Request for Production of Documents, Request for Admissions, etc.)?

 

Once I hear back from you, I will be glad to let you know my answer. There may be some delay as I am assisting other customers or am away from my computer. Please rest assured, however, that I will get back to you as soon as possible.

 

Thanks!

255 days and 11 hours ago.

Reply

Yes I filed a timely answer. It WAS a general denial along with the reasons why, and in the denial I asked for documentation substantiating their claim. VERY much along the lines of "defendant denies each and every allegation....." and I addressed every line of their alleged infractions.

I did not purchase any forms, but drafted the the whole thing myself by re-writing their claims, and answering each and every one directly underneath it.

My request for discovery was made in my motion for dismissal, which was in effect all part and parcel of the same package.

In essence, what I did was re-write their whole case, answered each allegation underneath, and where appropriate asked them to substantiate their claim with paperwork verifying that each purchase was in fact made by me.

They never replied to this. However, I DID file this with the court, as well as sent these attorneys a copy, return receipt requested, and I have their signed delivery from the post office. I never sent anything else to anyone.

255 days and 11 hours ago.

Reply

In essence, I prepared the answer to the case in the same format that it arrived in. I re-wrote each allegation, and answered each and every allegation directly underneath. Part and parcel of my answers was to ask for written proof of their claim. I then took a copy of this to the clerk of the Dade county court, and also sent a copy to the attorneys that had attempted to get a judgement against me. I did exactly what the paperwork said I had to do to defend this. I sent the attorneys a copy, return receipt requested, and I got back the signed postcard slip from the post office.

Now they are attempting to get a default judgement against me for failing to answer their lawsuit, which is not true. I DID answer it.

255 days and 11 hours ago.

Reply

Have you replied to me? I haven't received anything other than your questions.

Accepted Answer

Hello and thanks so much for choosing this forum to pose your important legal question. I will do my best to give you some honest and accurate guidance as I answer your question.

 

  1. I am a licensed attorney, and I will be glad to try and answer your question. I hope that the following information will be helpful to you, but please just write back if you have any follow-up questions or need clarification on anything after reviewing the following information. Thank you for taking the time to write back and supply the additional requested information, which was helpful to my analysis of your inquiry.
  2. You have obviously done your homework, and I think you are in an excellent position to defend against the entry of a default judgment. This remedy is disfavored by Florida law, and in fact you can have a default judgment set aside for one year after entry of the final judgment in cases of ''mistake, inadvertence, surprise or excusable neglect'', pursuant to Florida Civil Procedure Rule 1.540(b).
  3. In your case, however, you have done what the law requires. I cannot conceive of the creditor prevailing in its motion for default judgment. The next appropriate step would be to file a simple reply in opposition. This need not be overly formal or lengthy -- essentially you are just pointing out to the court the proof that you filed a timely answer. The court will either deny their motion or set the matter for a hearing, at which you would simply appear armed with the documentation you have already filed. Frankly, I have seen many abuses in the course of representing debtors, and I think it would not be unreasonable for you to also seek sanctions and an order to compel responses to your discovery requests.

 

I hope that this information has been helpful to you. If we can be of any further assistance please free to use our service again. Best wishes for a successful outcome.

If my answer has been helpful to you, please click "ACCEPT" so that I may be paid. This is the only way that I will receive compensation for the work performed. Please consider clicking "BONUS" as a nice way of saying "thanks" for a job well done. Clicking "FEEDBACK" to leave your positive comments is always greatly appreciated.

The information provided is general in nature only and should not be construed as legal advice. By using this forum, you acknowledge that no attorney-client relationship has been created between you and Benjamin M. Burt, Jr., Esq. You should always consult with a lawyer in your state.

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Expert: Benjamin M. Burt, Jr., Esq.
Pos. Feedback: 99.4 %
Accepts: 
Answered: 3/12/2009

Lawyer (JD)

Relax. I can help. Licensed attorney 11 years. Experienced provider of online legal information.

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