[Niki B]

This lawsuit is regarding a cosigned loan originated in 1999 which we believe to have been satisfied in full. We also believe it's outside the SOL and many other things, but that's not the issue at hand. The issue at hand is current actions.

On January 29, 2008 we filed two motions:

1. Request For Trial
2. Motion To Produce

Both motions were recorded that day and certified copies sent to Plaintiff Attorney. If we understand the Florida Laws of Civil Procedure correctly, the Plaintiff Attorney has 30 Days plus five to produce the evidence we requested. The plus five days is allowed if they received notice of the motions by US mail.

Not wanting to get ahead of ourselves yet, but thinking that there is a good chance that Plaintiff Attorney will not produce the evidence (we don't think it exists), what should our next action be?

Should we motion the court to dismiss with prejudice? That's what we are thinking we need to do.

Any help would be appreciated.

[progunr]

Yes, dismiss with prejudice, keeping the court costs on the plaintiff.

Good Luck!

[Niki B]

I've just gotten off the telephone with the Judge's clerk and she informed me that filing a motion to dismiss would not be proper procedure at this time.

She suggested we ask for a hearing where the judge motions or compels them to produce. Does any of this make sense to anyone? Does this mean they get another 30 days to produce evidence!

Please HELP!

[ScottGem]

Yes it does, generally, the plaintiff has the right to go to a hearing before a dismissal is granted. So what's the result of your request for a hearing.

[Niki B]

Scott,

Thank you for your help.

This lawsuit is against our daughter and we are helping her. Our daughter is a hard working school teacher and it is not easy for her to take a day off to run to a hearing, one in which the plaintiff attorney is allowing to attend telephonically, by the way.

Can she file a motion to compel that would work the same as a hearing? I can't seem to find an outline to file for this... any suggestions?

We've searched the Florida laws of Civil Procedure and it does not state a timeframe for Plaintiff to response to an order compeling them to produce. We've requested the documents prior to pre trial over the phone, during pre-trial in front of the judge, we followed up with a motion to produce, all in all since our first telephone request they have had over 2 months and have made zero attempts to contact us, or produce any documents. We have been more than fair, and given them ample time, however that is only in our minds... not the courts.

So, we are trying to figure out a way to request to court to compel them to produce (we don't expect them to), before we are able to file a motion to dismiss with predjudice.

BTW, Plaintiff's attorney has never shown one piece of paper to support their claim against her, not in their original complaint/ cause of action, not during pre-trial and not to date. How do the courts allow this kind of sham??

As we've stated before, off the record the judge told us he does not think they have any evidence and no case.

I will post this on the site so others in the same situation will be helped.

Thank you.

[ScottGem]

I would try filing a motion to force the attorney to show in person, or allow her to attaned by conference. If your daughter is representing herself, then don't worry too much about form (especialliy if its small claims court). Just keep the language plain and simple.

P.S. Please don't use e-mail or PMs for followups.

[Niki B]

We wrote the judge prior to the pre-trial hearing requesting that he deny Plaintiffs Attorney a telephonic hearing based on the fact that Plaintiff has refused to validate debt, refused to send copy of original loan contract, refused to prove that they in fact had the right to collect on this debt. Remember the are not the originators, how do we know that they are the ones legally entitled to collect on this debt (valid or not)?

At any rate, the judge refused our motion (it is standard practice in Florida sm courts to automatically grant plaintiff attorneys that are "from out of town") telephonice hearing motions.

So, back to my original question, can we file a written request or motion to compel and have it be as effective as a hearing, if not, my daughter will have to bite the bullet one more time and make an appearance.

BTW in Florida under the freedom of information act we looked up every small claim this Plaintiff had in our county in the last 2 1/2 years. What we found is that the majority of defendants never show up, and thus the Plaintiff wins by default, secondly we found the rest either stipulated to payments (with no judgement entered) or had a summary judgement against them with lots of $$$ added for interest, court costs and attorneys fees. Only one other defendant besides my daughter disagreed and motioned them to produce, etc which ended in the action being dismissed.

[Niki B]

WE ARE POSTING THIS IN CASE IT MAY BE OF HELP TO SOMEONE ELSE. Here is a draft of the Motion to Compel that we plan to file this week. It is so sad that we have had to do this. It feels like guilty until proven innocent, even though the correct order is innocent until proven guilty. The lawfirms make if very very tough for someone to face them in small claims court.

Thanks for all your help.




Motion to Compel

IN THE COUNTY COURT

IN AND FOR BREVARD COUNTY

Portfolio Recovery Systems ) Case No. 05-07-SC-69XXX
LLC, )
Plaintiff, )
)
v.
) .
Xxxx xxxxx ) MOTION TO COMPEL
) REQUESTED
)
Defendant )
STATEMENT

Defendant requests motion to compel Plaintiff to Produce.

CERTIFICATE OF COMPLIANCE
Defendant hereby certifies that she attempted to confer in good faith with plaintiff's counsel regarding the production of evidence. The parties require the assistance of the Court.

INTRODUCTION AND SUMMARY OF MOTION
Defendant has made several attempts to collect production of evidence from Plaintiff and Plaintiff's Attorney. Plaintiff and Plaintiff's Attorney has ignored defendants requests to produce. Plaintiff filed this action against defendant.
In attempting to conduct discovery, defendant has contacted Plaintiff and Plaintiff's Attorney and requested production as follows:
1. January 4, 2008 - Requested Production via telephone call to Plaintiff
2. January 4, 2008 - Requested Production via telephone call to Plaintiff's Attorney
3. January 4, 2008 - Requested Production via faxed letter to Plaintiff's Attorney
4. January 4, 2008 - Requested Production via USPS certified letter to Plaintiff's Attorney
5. January 22, 2008 - Requested Production during Pre-trial hearing
6. January 29, 2008 - Filed Motion To Produce with court
7. January 29, 2008 - Faxed copy Motion To Produce to Plaintiff's Attorney
8. January 29, 2008 - Requested production via USPS certified letter sent copy to Plaintiff's Attorney Motion To Produce
9. March 3, 2008 - Requested production via telephone conference with Plaintiff's Attorney
The information sought is essential to support defendant’s position in this action. It may provide vital evidence that the debt has been previously satisfied and that Plaintiff's cause of action is not valid.

CONCLUSION
For the reasons stated herein, this Court should enter an order granting defendant’s motion to compel plaintiff to produce. This Court also should award defendant her reasonable expenses.
DATED: March , 2008

I HEREBY CERTIFY that a true and correct copy of the foregoing was furnished by fax and by USPS certified mail this day of March, 2008 to:

Dana Kalman ,HAYT, HAYT, & LANDAU, attorney for Plaintiff, 7765 SW 87 Ave, Suite 101, Miami, FL 33173.
__________________________
xxxxxx xxxxxxxx
1 Marble Lane
Cocoa, FL 32922
(321) XXX-XXX

[ScottGem]

BTW in Florida under the freedom of information act we looked up every small claim this Plaintiff had in our county in the last 2 1/2 years. What we found is that the majority of defendants never show up, and thus the Plaintiff wins by default, secondly we found the rest either stipulated to payments (with no judgement entered) or had a summary judgement against them with lots of $$$ added for interest, court costs and attorneys fees. Only one other defendant besides my daughter disagreed and motioned them to produce, etc which ended in the action being dismissed.

That's not uncommon. Most of the time they get default judgements, not just in Florida. Then a couple of years later they get a job or get married and open a joint account and the creditor pounces.

From what we have seen here, most of the time, when the defendant fights it, the creditor can't produce the required documentation and the case is dismissed.