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Missed Pre-trial Hearing And Need To File Motion To Set Aside/vacate Default

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Missed Pre-trial Hearing And Need To File Motion To Set Aside/vacate Default

Postby Conway » Sat Nov 26, 2016 7:17 pm

Hi, I was issued a summons by asset acceptance for a pre-trial hearing on an old value city debt. the first court date didn't go well with mediations and i got an extension so that asset would show proof of amount owed since they are suing me for about 4 grand and i've never had a credit limit of over 2.

I was sick with the flu and missed my 2nd pre-trial hearing this morning. i called and left a message with the court and talked to the county clerk about my options. a default was issued. is that a default judgement? is the case over? i have been online all day and typed up a motion to vacate the default without knowing what has really happened. is there a chance i will owe without ever having a chance to state my case?

here is a copy of the bulk of my motion:

MOTION TO SET ASIDE DEFAULT OR DEFAULT JUDGEMENT

I, ASHLEY E. POTTER, request that the Court enter an order to set aside the Default entered against me, and that I be given the opportunity to present my views.

The Court should do this because:

1)   I became aware of the Default on September 22, 2009.

2)   I found out about the Default by calling the Seminole County Clerk’s Office.

3)   I did not appear at the Hearing because:  I have been ill with the Flu for the past week. On the morning of my Pre-Trial Hearing, September 22, 2009, I called the JA, Mary, from Judge Collins Office, to try to inform the court I was too ill to travel. 4)   If I am given the opportunity, these are the defenses and arguments that I would like to tell the court about:    I believe my case would be discharged because the Plaintiff would not be able to meet the Burden of Proof and that the debt in question would be time-barred according to the FTC and the Florida Statute of Limitations.

a.   I do not think the Plaintiff can produce:

•   Proof that they own the Assignment.

•   Proof that the debt is mine by providing a signed contract.

•   Proof that the amount demanded in the lawsuit is correct by providing a complete set of bills or account statements, and that each and every charge on the card was authorized. b.    I believe I am protected by the Florida Statute of Limitations because:

•   This Credit Card debt is over 4 years old and should be time-barred.

•   Under the FTC a Debt Collector can’t sue in court to collect on a debt that is time-barred.

•   Under Florida law this Credit Card debt would fall under  F.S. 95.11(3)(p),(FLORIDA STATUE 95.11  Limitations other than for the recovery of real property,(3)  WITHIN FOUR YEARS,(p)  Any action not specifically provided for in these statutes).

i need some feedback to see if i should file this as soon as i'm better or if i should not file bc this may be damaging to me.

I hope i'm on the right track...
Conway
 
Posts: 38
Joined: Wed Jan 22, 2014 6:49 am

Missed Pre-trial Hearing And Need To File Motion To Set Aside/vacate Default

Postby Aymer » Sun Nov 27, 2016 5:26 am

click here to enlarge I can assure you that you are not going to like my answers very well. Sorry  but I do have to tell you that the debt is not time barred under law in Florida statutes. The SOL in Florida for credit card debt is 5 years not 4 because it is a written contract. There is a chance that you might have a SOL defense but not based on Fla. law. I'd have to know the name of the bank you got the card from to figure that out. That is about the only possibility you have of getting it vacated and that isn't very good chance no matter what you file. You might have a chance by filing a federal lawsuit on them but again I must know the name of the bank that issued the card to even begin to tell whether you would stand a chance in federal court or not.  
Aymer
 
Posts: 49
Joined: Wed Jan 29, 2014 2:53 am

Missed Pre-trial Hearing And Need To File Motion To Set Aside/vacate Default

Postby Aethretun » Tue Nov 29, 2016 7:21 pm

Hi, I was issued a summons by asset acceptance for a pre-trial hearing on an old value city debt. the first court date didn't go well with mediations and i got an extension so that asset would show proof of amount owed since they are suing me for about 4 grand and i've never had a credit limit of over 2.

I was sick with the flu and missed my 2nd pre-trial hearing this morning. i called and left a message with the court and talked to the county clerk about my options. a default was issued. is that a default judgement? is the case over? i have been online all day and typed up a motion to vacate the default without knowing what has really happened. is there a chance i will owe without ever having a chance to state my case?

here is a copy of the bulk of my motion:

MOTION TO SET ASIDE DEFAULT OR DEFAULT JUDGEMENT

I, ASHLEY E. POTTER, request that the Court enter an order to set aside the Default entered against me, and that I be given the opportunity to present my views.

The Court should do this because:

1)   I became aware of the Default on September 22, 2009.

2)   I found out about the Default by calling the Seminole County Clerk’s Office.

3)   I did not appear at the Hearing because:  I have been ill with the Flu for the past week. On the morning of my Pre-Trial Hearing, September 22, 2009, I called the JA, Mary, from Judge Collins Office, to try to inform the court I was too ill to travel. 4)   If I am given the opportunity, these are the defenses and arguments that I would like to tell the court about:    I believe my case would be discharged because the Plaintiff would not be able to meet the Burden of Proof and that the debt in question would be time-barred according to the FTC and the Florida Statute of Limitations.

a.   I do not think the Plaintiff can produce:

•   Proof that they own the Assignment.

•   Proof that the debt is mine by providing a signed contract.

•   Proof that the amount demanded in the lawsuit is correct by providing a complete set of bills or account statements, and that each and every charge on the card was authorized. b.    I believe I am protected by the Florida Statute of Limitations because:

•   This Credit Card debt is over 4 years old and should be time-barred.

•   Under the FTC a Debt Collector can’t sue in court to collect on a debt that is time-barred.

•   Under Florida law this Credit Card debt would fall under  F.S. 95.11(3)(p),(FLORIDA STATUE 95.11  Limitations other than for the recovery of real property,(3)  WITHIN FOUR YEARS,(p)  Any action not specifically provided for in these statutes).

i need some feedback to see if i should file this as soon as i'm better or if i should not file bc this may be damaging to me.

I hope i'm on the right track...
Aethretun
 
Posts: 48
Joined: Sun Feb 02, 2014 4:05 pm


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