I live in Florida.
I have received a Default Final Judgment in Small Claims from a Credit Card company. Back in 2005 (July) I received a summons and immediately contacted the Plaintiff attorney. I told him if he could validate the debt, I would make arrangments to pay in $50 a month increments.
He told me I didn't have to worry about going to court because we were working this out. He said he'd send the validation papers and the contract in the mail.
I waited and waited and never got anything. I even called him back several times and he didn't return my calls. I assumed they couldn't validate the debt and went on with my life (I know, stupid stupid stupid).
So, last week I got a Default Judgment (over two years later).
Researching Fl law for Small Claims Court, I found something that peaked my interest. It says a case can be automatically dismissed if the Plaintiff's attorney allows a case to sit "inactive" for a period of six months or longer.
Here is a quote of the law: RULE 7.110. DISMISSAL OF ACTIONS
(e) Failure to Prosecute. All actions in which it affirmatively appears that no action has been taken by filing of pleadings, order of court, or otherwise for a period of 6 months shall be dismissed by the court on its own motion or on motion of any interested person, whether a party to the action or not, after 30 days' notice to the parties, unless a stipulation staying the action has been filed with the court, or a stay order has been filed, or a party shows good cause in writing at least 5 days before the hearing on the motion why the action should remain pending.
They claim I was subserved (to my son, who denies this) in October of '06. They can not read to me the "description" of my son or the person who was served. At one point, the lady at the Plaintiff attorney's office was attempting to read it to me, and said all she could make out was that it looked like the Process Server said my "son" was a girl.
Anyway, I didn't receive a summons.
I pulled up the court files online (didn't know I could do that before), and apparently there was a pre-trial hearing in Feb of 07.
On Feb 28th the judge put a note on the file saying the Plaintiff needed to file a Motion For Default on the case.
The Plaintiff didn't file this motion until 9/8/07, which is past the six month limit and it looks like I can file a motion to dismiss the judgment based on the "Failure to Prosecute in a timely manner" law stated above.
I also plan to file for Dismissal based on improper service. How can they serve teenagers? I know its legal, but still. I never saw a summons, and it well could have been one of my sons friends who doesn't live here. It wasn't signed.
My main concern though is interpreting the law for "Failure to Prosecute in a timely manner"....six months went by w/the case inactive.
Also, it gives me ten days from the date the Judgment was signed which was 9/11/07 (great date, eh?). Does that include weekends or does anyone know?
I appreciate any help I can get. Thank you.