This is how you beat a debt collector in court, watch this video and then follow this example from an actual case that was won using this method. http://www.youtube.com/watch?v=L7hUNzAEiLM Hundreds of cases have been won using this method.
This is just one example of how to respond to a debt collector who files a lawsuit against you. In this case, the debt collector alleged to be the assignee of a creditor (Wells Fargo), but did not attach any assignment agreement, credit agreement or payment history. In fact, the exhibits that were attached to the complaint contradicted the allegations in the complaint. It is very common that debt collectors don’t have the records needed to prove a collection case, and their attorneys believe that including lots of pages of documents that are not relevant will be overlooked by the judge for what they are (nothing), and accepted as supporting the allegations in the complaint.
You always want to send a notice of dispute so that later, if they don’t go away, you can sue them under the Fair Debt Collection Practices Act for a cool $1,000. This is what you say in the letter (be sure you address and theirs appears at the top):
Re NOTICE OF DISPUTE, Case No. 12-SC-8489-O
Be advised that I am disputing the statements made in your complaint that was filed in the County Court and demanding strict proof thereof. I have never had any credit with any of you and while your first written communication with me is the complaint, any subsequent written communications made in the same effort to collect a debt are actionable under the Fair Debt Collection Practices Act and the Florida Consumer Collection Practices Act.
Unless you dismiss this case immediately, I intend to sue each of you within the next twelve months for the $1,000 penalty imposed under each statute including actual damages such as my costs, lost wages for having to appear in court and other damages.
[name of defenant]
The individuals you can sue here are the attorney involved, the law firm and the plaintiff (debt collector).
Be sure to file the motion to dismiss within the time limits on the summons. If the summons instructs you to appear in person even if you file this response, then do it, but do not discuss anything beyond the motion. Many times the attorneys will try and trick you into ignoring your motion, assuming their lawsuit is valid and then into paying them without forcing them to prove their case first.
You can copy the caption (top part with names of parties) from the summons and complaint and the motion would look something like this, be sure to edit the names of course:
[insert court title and caption]
DEFENDANT’S MOTION TO DISMISS
Now comes a man who is sometimes called “Allen Townsend”, but only by Special Limited Appearance, and respectfully moves this court to dismiss the complaint for its failure to state a cause of action or claim upon which relief can be granted.
A man who is sometimes called “Allen Townsend” was served with the summons and complaint on the date of ________; however, this is not the proper party.
This is not my account. I have never had any business with the plaintiff or what the plaintiff claims to be an assignor of a credit account. I have never been involved in any credit arrangement with any of these parties. Please see the attached affidavit.
The exhibits conflict with the pleading. Exhibits A-1 through A-32 appear to be billing statements from “Wells Fargo Financial Cards”. They include the name “Allen Townsend”, apparently the account holder. And each then sets forth what appears to be items of credit, such as what would normally appear on a credit card billing statement; however, no such statements were ever presented or served upon the defendant. The plaintiff cannot state a cause of action because of the lack of notice. Additionally, there are no credit terms stated in any of these exhibits. Billing statements do not establish credit terms such as a credit agreement would. No credit agreement is identified anywhere in the pleadings or in the exhibits. No terms of default are identified so there is no way to determine if the the defendant is or could ever be in default.
Exhibit B-1 (although labeled “Exhibit A”) appears to be a purchase agreement (short form purchase agreement) between “Wells Fargo Bank, N.A.” dated April 13, 2011. The purported billing statements do not mention this party, but one with a similar name instead, “Wells Fargo Financial Cards”. This agreement appears to be made under the terms of another agreement referred to as “Flow Purchase Agreement” dated January 1, 2011 and is not exhibited.
This exhibit appears to show that Wells Fargo Bank, N.A. has sold or conveyed a group of credit or debt accounts to the plaintiff; however, the exhibit does not identify any specific account, such as the account alleged in the pleading and it does not explain how “Wells Fargo Financial Cards” is involved in any way. In fact, some parts of this exhibit have been redacted with black ink.
Exhibit C appears to be an affidavit from a, “William M. Schister”, whose title is “the Sales Liaison / Loan Servicing Specialist” for Wells Fargo Card Services, but stating that he is duly authorized by his employer “Wells Fargo Bank, N.A.” to make the statements therein. Schister appears to claim that the alleged credit account is valid; however, once again no specific account is identified and no specific credit terms or terms of default have ever been alleged or identified either in the pleading or the exhibits. If any exist, it is outside the four corners of the complaint, hence, the reason why it should be dismissed for its failure to state a cause of action.
The plaintiff appears to be using “account stated” and “unjust enrichment” to overcome the lack of information as to specific credit terms and the correct identity of the defendant. However, an essential element, assuming all allegations to be true, is that a statement of the account must have been served upon the defendant prior to the complaint being filed. Defendant has never been noticed or presented with any billing statements as described in the pleadings or the exhibits, and the defendant has never been served with any default notice as alleged. Please see the attached affidavit.
ADVICE TO THE COURT
Plaintiff is obligated to produce evidence of the existence of a valid assignment, and an enforceable credit agreement between the Parties herein. In failing to present evidence of the instrument upon which this case is brought, Plaintiff has violated the Florida Rules of Civil Procedure 1.130(a), which states:
Rule 1.130. Attaching Copy of Cause of Action and Exhibits
(a) Instruments Attached. All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading.
In addition to the unauthenticated and otherwise inadmissible hearsay evidence discussed above, Plaintiff has attached to its complaint a copy of an alleged bill from Plaintiff to Defendant, which Plaintiff claims demonstrates the existence of an obligation based upon account stated. Leaving aside the fact that Plaintiff has failed to produce the original contract upon which it is complaining, the law is clear that absent additional evidence of the existence of a valid and enforceable contract executed by the Parties, Plaintiff’s claims on an account stated are insufficient to establish the existence of a valid and enforceable contract, and Defendant is entitled to Summary Judgment herein as a matter of law.
An “account stated” has been defined as “an agreement between persons who have had previous transactions, fixing the amount due in respect of such transactions, and promising payment.” Martyn v. Arnold, 36 Fla. 446 (1895); Zacarino vs. Pallotti, 40 Conn. 36 (1873); Soft Water Service, Inc. v. M. Suson Enterprises, Inc., 351 N.E.2d 264 (1976).
For an account stated to exist as a matter of law, there must be an agreement between the parties that a certain balance is correct and due and an express or implicit promise to pay this balance. Mercado v. Lion’s Enters., 800 So. 2d 753, 756 (2001); Merrill-Stevens Dry Dock Co. v. “Corniche Express”, 400 So. 2d 1286, 1286-1287 (Fla. Dist. Ct. App., 1981); Everett v. Webb Furniture Co., Inc., 98 Fla. 780, 124 So. 278 (1929). The agreement mentioned in these definitions must, of course, manifest the mutual assent of the debtor and creditor. “It is essential to the creation of a contract that there be mutual or reciprocal assent to a certain and definite proposition.” 7 Fla. Jur., Contracts §14; Goff v. Indian lake Estates, Inc., 178 So. 2d 910, 912 (1965). “Under a declaration upon an account stated, the cause of action is the agreement of the parties to pay the amount found to be due upon the accounting.” Jacksonville American Pub. Co. v. Jacksonville Paper Co., 143 Fla. 835, 843 (1940) Where there is no such agreement between the parties, there can be no recovery on this theory Raben Builders, Inc. v. First Am. Bank and Trust Co., 561 So. 2d 1229, 1232 (1990) (citing, Merrill-Stevens id). and when the complaint fails to allege all of the essential elements of account stated, including that the parties had agreed to a resulting balance, the complaint fails and judgment cannot be entered on the theory of account stated. Myrick v. St. Catherine Laboure Manor, Inc., 529 So. 2d 369 (1988) Once a party pleads and attempts to prove liability on a theory of account stated and fails, he is not entitled to recovery on another theory. Merrill-Stevens supra 1287.
The basic premise of an account stated action, which presupposes some indebtedness, is that the statement fixing the various sums constituting the debt are correct, not the existence of the debt itself. Oceanic International Corp. v. Lantana Boatyard, 402 So. 2d 507, 513 (1981); Nicolaysen v. Flato, 204 So.2d 547 (1967) “The rule that, account which has been rendered and to which no objection has been made within a reasonable time may be regarded as admitted by the party to whom and against whom the account is rendered as prima facie correct, presupposes and assumes that there was some indebtedness between the parties. There can be no liability on account stated if in fact no liability existed at the time the account was presented, and the mere presentation of a claim, although such claim is not shown to have been objected to, can not of itself create a liability.” Everett v. Webb Furniture Co., 98 Fla. 780, 782 (Fla., 1929). In other words, an account stated cannot create original liability where none exists; it is merely a final determination of the amount of an existing debt.
Exhibits Conflict with Pleading
If inconsistencies exist between an allegation in a pleading and an attached exhibit, such that the latter negates the former, the plain language of the attached document will control, and can be a basis for a substantive motion to dismiss. Striton Props., Inc. v. Jacksonville Beach, 533 So.2d 1174 (Fla. App. 1 Dist. 1988) (language in attached contract, permitting either party to terminate the contract, negated allegation in complaint that one party had no right to terminate the contract, warranting dismissal of the action.) See also Florida Farm Bureau Gen. Ins. Co. v. Ins. Co. of N. Am., 763 So.2d 429 (Fla. App. 5 Dist. 2000); Vienneau v. Metro. Life Ins., Co., 548 So.2d 856, 858 n.3 (Fla. App. 4 Dist. 1989); A.S.J. Drugs, Inc. v. Berkowitz, 459 So.2d 348 (Fla. App 4 Dist. 1984); Kent Elec. Auth., 395 So.2d 277 (Fla. App. 1 Dist. 1981); Harry Pepper & Assocs., Inc. v. Lasseter, 247 So.2d 736 (Fla. App. 3 Dist. 1971); Hillcrest Pac. Corp. v. Yamamura, 727 So.2d 1053 (Fla. App. 4 Dist. 1999)
WHEREFORE it is respectfully requested that this court enter an order dismissing the complaint for the reasons herein.
DATED this ___ day of __________ ____.
[next page: insert court title and caption]
STATE OF _______ )
COUNTY OF _______ )
Comes now a man sometimes known as “Allen Townsend”, the Affiant, and does solemnly affirm that the statements herein are true and correct in substance and in fact, to wit:
1. I am competent and qualified to testify as to the facts herein and that I have personal knowledge of each.
2. The account alleged in the complaint is not my account.
3. I have never had any business dealings or other arrangements with the plaintiff.
4. I have never received any of the billing statements exhibited by the plaintiff and I have never been notified of any default by the plaintiff or any related party.
5. I have never benefited in any way from the alleged credit account set forth in the pleading.
6. I have never had any business or credit with CACH, LLC.
7. I have never had any credit or business with Wells Fargo Bank, N.A.
8. I have never had any business or credit with Wells Fargo Financial Card.
9. I have never had any business or credit with Wells Fargo Card Services.
10. None of these parties have ever been my creditor and there is no evidence anywhere showing that I have ever had any agreements with any of these parties or individuals at any time whatsoever.
Signature of Affiant
STATE OF _______ )
COUNTY OF _______ )
Subscribed and sworn to before me a notary public this ___ day of ____________, ____.
Signature of Notary
[next page: insert court title and caption]
CERTIFICATE OF SERVICE
I Allen Townsend hereby certify that the original of the foregoing was mailed to “Clerk of Court”, ______________ and that a copy of the foregoing was mailed to plaintiff’s attorney, ______________ by first class mail to: ___________________________ this ___ day of ________ ____.