Taken to Court Without Any Prior Contact Whatsoever

My question involves collection proceedings in the State of: Florida

An out-of-state junk collection agency filed a complaint against me in the local court. I found this accidentally, by searching the court's database for previous mortgage documents of mine.

This is the first I ever heard of this agency or their complaint, since they never sent me a notice of any sort of kind whatsoever.

I have now checked all three credit reports reports, and they are listed only on one, and there they are listed with all the possible false/inaccurate information one can have:

Account number: XXXXXXXXXXXX
Date of last payment: not reported

etc.

My questions:

- Did they break any laws by taking me to court without first contacting me in any shape or form whatsoever? If so, other than stating so, how do I actually prove that they never sent me or contacted me anything before that?

- Did they break any laws by having the above information in my credit report? If I send them request for debt validation, how can I prove that I've sent them request for debt validation? I understand that I can have certified return-receipt, but that still doesn't prove that what I send them was the actual request for debt validation (for example, they can claim I sent them a blank page)?

- Since the next step is for them to serve a process on me, can they do it by serving it on my spouse while I am not at home?

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- Did they break any laws by taking me to court without first contacting me in any shape or form whatsoever? If so, other than stating so, how do I actually prove that they never sent me or contacted me anything before that?

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Nope. I presume you had plenty of notice from the original creditor that you were delinquent.

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- Did they break any laws by having the above information in my credit report?

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what is improper about the info?

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If I send them request for debt validation, how can I prove that I've sent them request for debt validation?

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You can send it certified, return request and keep a copy of what you send. They are not required to respond though since they have not attempted to collect the debt from you.

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I understand that I can have certified return-receipt, but that still doesn't prove that what I send them was the actual request for debt validation (for example, they can claim I sent them a blank page)?

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That is simply how it works.

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- Since the next step is for them to serve a process on me, can they do it by serving it on my spouse while I am not at home?

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I haven't read the procedure for perfecting a service. the easiest way to verify the proper methods would be to call the court clerk and ask them.

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Quoting jk

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Nope. I presume you had plenty of notice from the original creditor that you were delinquent.

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It's been years since I last used credit cards, and I know I don't own anyone anything. I did move around a lot though.

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Quoting jk

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what is improper about the info?

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- No creditor information.

- Account number: XXXXXXXXXXXX (< it is written exactly like this) What am I supposed to make out of claim that has no original creditor or account number?

- Date opened: January 2008 (< I haven't opened credit card account in years. This may refer to the fact when they themselves gotten hold of this "claim". As per FCRA can they put the date they entered this information in my credit report, as the date when the "account was opened"?)

well, you make a complaint to the CR and ask for your records to be corrected. Should not be a big deal since they are very incomplete.

as to the suit, deal with it when you are served. If it is beyond the statutes of limitations, be sure to include that in your response.

Actually, I would not wait to be served. Get a copy of the complaint from the court and file an answer. They may claim you were served and get a judgment. If they wait until the time runs for you to have it set aside, then you will have a problem.

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Quoting jk

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I haven't read the procedure for perfecting a service. the easiest way to verify the proper methods would be to call the court clerk and ask them.

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Service can also be made by "publication", as the case law will control, unknown if it was.

http://phonl.com/fl_law/rules/FRCP/frcp1070.htm

thanks for stepping in guys.

Like I said, I had not read the allowable means of service in Florida. I'm not used to the service by publication route. There are generally rules that limit when service by publication can be used and of course, we have no idea if the rules would be applicable to the OP.

with that being said, yes Anthony, you should check further. If you were served by publication, it would be listed in the courts records but as lwpat stated, you do not have to wait for the service to come to you.

Ok guys, I decided not to wait to be served with a notice, and instead file an answer. My decision is to deny it on all counts, or to be on the safe side plead that I am unaware of the facts they claim (or something to that effect).

I also found out that the fact they don't have the date/year of the last payment on this supposed account on my credit report is violation of 623(a)(5) of the FCRA and is subject to $2,500 penalty per violation (http://www.ftc.gov/opa/2004/05/ncogroup.shtm - second paragraph.) I understand that this fact will not solve their action, and that I will still have a hearing on their claim, but my question is whether I can use this as a basis for a possible counter claim against them in my answer? Or should I leave this as a separate option which I can undertake against them at a later date?

Good Lord. I may even become an expert in these things by the time this one is over. I just read some advice given to someone else on the net, where the guy giving advice tells the other guy the following:

"Why would you file an answer to any debt regardless of age? Of course, you must respond to the summons and complaint but your response does not have to be an answer. There are many other types of documents that you can file which will serve as your answer. In this case you want the court to do something for you which is to give you relief from the plaintiff's complaint and the possibility of judgment against you. If you want the court to do something for you then you must move the court to do your bidding. Motions are what moves the court, not letters. If you don't motion the court then the court will most likely do nothing at all for you."

Is that true? Is an answer nothing but a passive defense? This makes me really think whether I should just answer, or instead file a motion for this case to be dismissed, except I have no idea on which basis can this case be dismissed, other than by them violating FCRA.

To that end, upon which bases can plaintiffs' lawsuits be dismissed usually (after defendant's motion, and preferably with prejudice)? I know cases vary, but are they certain legal must haves that plaintiff's complaint always must contain?

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Quoting AnthonyM

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Good Lord. I may even become an expert in these things by the time this one is over. I just read some advice given to someone else on the net, where the guy giving advice tells the other guy the following:

"Why would you file an answer to any debt regardless of age? Of course, you must respond to the summons and complaint but your response does not have to be an answer. There are many other types of documents that you can file which will serve as your answer. In this case you want the court to do something for you which is to give you relief from the plaintiff's complaint and the possibility of judgment against you. If you want the court to do something for you then you must move the court to do your bidding. Motions are what moves the court, not letters. If you don't motion the court then the court will most likely do nothing at all for you."

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Message board advice/opinions, including mine, are not be be taken to heart, per se, without further legal study. Many opinions may be "general" in nature.

Is this action in Small claims court or an upper court??

Rules of small claims court:

see mainly: rule below: limited application:??

7.020. APPLICABILITY OF RULES OF CIVIL PROCEDURE

http://www.floridabar.org/TFB/TFBRes...df?OpenElement

Rules of civil procedure:

http://phonl.com/fl_law/rules/FRCP/default.cfm

There are NOT "many" responses to file when served with a lawsuit, but a select few only.

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Is that true? Is an answer nothing but a passive defense? This makes me really think whether I should just answer, or instead file a motion for this case to be dismissed, except I have no idea on which basis can this case be dismissed, other than by them violating FCRA.

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For the court to entertain a Motion for dismissal, there must be grounds: in part:

(b) How Presented. Every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required, but the following defenses may be made by motion at the option of the pleader: (1) lack of jurisdiction over the subject matter, (2) lack of jurisdiction over the person, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a cause of action, and (7) failure to join indispensable parties. A motion making any of these defenses shall be made before pleading if a further pleading is permitted.

http://phonl.com/fl_law/rules/FRCP/frcp1140.htm

This is the = of the Federal rules of civl procedure, 12 (b) (6).

This rule is applicable in small claims:

(a) Generally. Florida Rules of Civil Procedure 1.090(a), (b), and (c); 1.190(e); 1.210(b); 1.260; 1.410; and 1.560
are applicable in all actions covered by these rules.

So yes, you could have filed a Motion to dismiss first.

This is the rule for filing an ANSWER and the affirmitive defenses one can possibly raise.

http://phonl.com/fl_law/rules/FRCP/frcp1110.htm

You already filed your Answer, which if it is small claims, you admit or deny any averments just as in an upper court.

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To that end, upon which bases can plaintiffs' lawsuits be dismissed usually (after defendant's motion, and preferably with prejudice)? I know cases vary, but are they certain legal must haves that plaintiff's complaint always must contain?

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Sure, it MUST state a cause of action, mainly, subect matter and personal jurisdiction also come into play, of course. If you dispute the debt, due to the statute of limitations, etc., state that as an affirmitive defense.

If the debt is OUT of the SOL and you prove this to the satisfaction of the court, then the Plaintiff no longer has a valid cause of action.

Oh, let me add to this, simply because you did NOT file a Motion for dismissal outright does not mean you lost now. Your answer still denies the debt.