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  1. #1
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    Default Alias Summons Served Three Years After a Case Was Filed

    My question involves collection proceedings in the State of: Florida

    Hello,
    I was sued 3 years ago and never served. The docket shows that the notice was returned as unserved.

    3 years later, I find that it has come back to life with the court issuing an alias summons and a new court date set. Is this legal? I thought that they had 120 days to serve me?

    TO further mess things up, I no longer live in that county, but do work there. I live in a nearby county...

    The debt is now 4 years old (Credit card) since the last missed payment. I am thinking one of the following options:
    1) File motion to dismiss for failure to prosecute
    2) File motion to dismiss for wrong jurisdiction
    3) Raise SOL and argue that CC SOL is 4 years and not 5 like a standard written contract

    Here is a snag...I am CLOSING on a house a week before my court date. I cannot do ANYTHING that would show up on my credit report before I close.

    #3 is risky if a judge decides its a 5 year SOL as I can't have a judgement against me with a new mortgage and a job that doesn't allow judgements.

    I have contacted a few debt lawyers in my town and am waiting to hear back. What would everyone here advise that I do?

    Thank you!
    -Matt

  2. #2
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    Default Re: Alias Summons Served Three Years After a Case Was Filed

    If the statute of limitations has not run, you're not going to get anywhere with an argument that they did not diligently prosecute their case. Their lack of diligence can (and likely did) result in dismissal, but they are free to try to reopen the matter or to refile as long as the statute of limitations has not run. I suspect that they petitioned to reopen the old case rather than incurring a new filing fee. (Motion fees are a lot lower than filing fees.) However, depending on the facts, it is possible that they are reopening the case to try to avoid having to file a new case that would be time-barred, in which case you may be able to build an argument for dismissal based upon the passage of time between default and their petition to reopen -- but that's something we can't analyze without more information.

    You won't get the matter dismissed on the venue issue (the claim that they should have filed in a different county, where you reside) -- you might be able to get venue changed, depending on the full facts -- although an order for change of venue will require payment of a transfer fee in the proper venue.
    Quote Quoting Florida Statutes, Sec. 47.091. Change of venue; power to grant.
    All courts have power and it is their duty to grant changes of venue as hereinafter provided. The order of transfer shall require the movant or, if the action was initially filed in the improper venue, the initially filing party to pay the filing fee required to file a new action in the court to which the action is moved. The payment of such filing fee shall be considered a transfer fee.
    You have not shared any facts with us that would help us determine if the four or five year statute of limitations would apply. You should also check your contract underlying the debt, because some contracts include language that requires the application of an out-of-state limitations period that can cause a debt to be time-barred even before it would be time-barred in Florida.

    If you want to resolve the case with the assurance that it won't appear on your credit report, you should consider contacting the creditor to see what sort of settlement they might request to agree to a dismissal of their claim with prejudice.

  3. #3
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    Default Re: Alias Summons Served Three Years After a Case Was Filed

    Quote Quoting Mr. Knowitall
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    If the statute of limitations has not run, you're not going to get anywhere with an argument that they did not diligently prosecute their case. Their lack of diligence can (and likely did) result in dismissal, but they are free to try to reopen the matter or to refile as long as the statute of limitations has not run. I suspect that they petitioned to reopen the old case rather than incurring a new filing fee. (Motion fees are a lot lower than filing fees.) However, depending on the facts, it is possible that they are reopening the case to try to avoid having to file a new case that would be time-barred, in which case you may be able to build an argument for dismissal based upon the passage of time between default and their petition to reopen -- but that's something we can't analyze without more information.

    You won't get the matter dismissed on the venue issue (the claim that they should have filed in a different county, where you reside) -- you might be able to get venue changed, depending on the full facts -- although an order for change of venue will require payment of a transfer fee in the proper venue.

    You have not shared any facts with us that would help us determine if the four or five year statute of limitations would apply. You should also check your contract underlying the debt, because some contracts include language that requires the application of an out-of-state limitations period that can cause a debt to be time-barred even before it would be time-barred in Florida.

    If you want to resolve the case with the assurance that it won't appear on your credit report, you should consider contacting the creditor to see what sort of settlement they might request to agree to a dismissal of their claim with prejudice.
    Thank you for the reply...

    So the wrong venue is out...

    What extra information would you need to determine the 120 days rule for serving me?
    I long lost the credit card agreement stating the SOL...It is Capital One (if that helps) They are direct suing via a lawyer.

    Edit: Docket doesnt show anything additional like dismissals or requests for more time...Says "Unserved" and then, years later, that an alias summons has been issued.

    Thank you!
    Matt

  4. #4
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    Default Re: Alias Summons Served Three Years After a Case Was Filed

    I don't care a whit about the 120 days. You need to concern yourself with the statute of limitations. You have provided us with no information for a statute of limitations analysis, beyond indicating that your default was more than four years ago but less than five years ago.

  5. #5
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    Default Re: Alias Summons Served Three Years After a Case Was Filed

    Quote Quoting Mr. Knowitall
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    I don't care a whit about the 120 days. You need to concern yourself with the statute of limitations. You have provided us with no information for a statute of limitations analysis, beyond indicating that your default was more than four years ago but less than five years ago.
    Ok, as for SOL analysis, do you mean for me to explain why I think my debt falls under 4 year SOL and not the 5 year SOL? If so:

    Many, if not most, of these transactions were likely on-line purchases or bill paying via online payments...There was a case in Florida (I'll go look it up if needed) that ended with the courts finding that the defendant's CC was not a written contract, but an oral one since there wasn't any sort of signed paper contract (like a car loan would have). He won and the case was dismissed as the debt was 4 years old.

    At first it may seem that that case should send anyone into court and argue 4 years over 5 for a CC. The only problem is, is that the CC company was willing to go all out in court against the guy. So, in other words, there is a risk that one would really REALLY need to have their ish together in the event that raising the SOL defense just pissed off the CC company.

    This is why I feel my debt is time barred overall...Does a lawsuit have an effect such that the years stop counting once a lawsuit is filed? In other words, my debt was about a year overdue when this lawsuit was filed. I then get sued, which stops the clock for 120 days. If not prosecuted within the 120 days, does the clock keep rolling? Or is it stopped forever? So, could my 4 year time period actually be 1 year due to the lawsuit that went nowhere never being dismissed or persued?

  6. #6
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    Default Re: Alias Summons Served Three Years After a Case Was Filed

    Quote Quoting mattrg02
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    Many, if not most, of these transactions were likely on-line purchases or bill paying via online payments.
    That's entirely irrelevant to the statute of limitations analysis, as the question is whether or not you have a written contract with the issuer of the card.
    Quote Quoting mattrg02
    There was a case in Florida (I'll go look it up if needed) that ended with the courts finding that the defendant's CC was not a written contract, but an oral one....
    I suspect that you're talking about the Palm Beach County circuit court decision from Portfolio Recovery Services v. Fernandes, issued back in 2005. The card at issue in that case was a store card, and was thus treated as an open account with the store. The issue of whether or not there was an underlying written instrument was deemed irrelevant, as the more specific limitations period for open accounts was deemed to be a specific provision that controlled over the general. You have chosen not to tell us whether there is a written contract for your account, or whether this is a store account or a regular credit card, so even if we assume that you are being sued in Palm Beach you're leaving us in the dark.

    If you believe you know of another case that applies, yes, by all means cite it.

  7. #7
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    Default Re: Alias Summons Served Three Years After a Case Was Filed

    Quote Quoting Mr. Knowitall
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    That's entirely irrelevant to the statute of limitations analysis, as the question is whether or not you have a written contract with the issuer of the card.

    I suspect that you're talking about the Palm Beach County circuit court decision from Portfolio Recovery Services v. Fernandes, issued back in 2005. The card at issue in that case was a store card, and was thus treated as an open account with the store. The issue of whether or not there was an underlying written instrument was deemed irrelevant, as the more specific limitations period for open accounts was deemed to be a specific provision that controlled over the general. You have chosen not to tell us whether there is a written contract for your account, or whether this is a store account or a regular credit card, so even if we assume that you are being sued in Palm Beach you're leaving us in the dark.

    If you believe you know of another case that applies, yes, by all means cite it.
    You know, not all of us are lawyers, or knowledgeable of law practices/standards. I don't understand why you seem to be talking to me with such lack of patience like you do.

    You seem to have done a lot of research in this realm...Why not start off with explaining the difference between store cards and credit cards and open accounts vs written contracts? I'm an electrical engineer, and give advice to others on a level they would understand rather than on my own level. At which point did you assume that I would be experienced with legal proceedings or the like? If you were to ask me about 3-phase power and whether or not you had your motor connected correctly, I would dumb it down for you rather than ask you about the impedance of your service....

    Just forget it. I've contacted an old attorney and will just have him explain/decide what to do.

    Oh and yes, I am impressed by your expertise and your apparent experience with these matters. So, you got that out of me.

    Matt

  8. #8
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    Default Re: Alias Summons Served Three Years After a Case Was Filed

    Wow, you truly are a piece of work.

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