Credit Card Defense

If you are being sued by a company that did not originally own your credit card then you may have a good defense that will prevent this company from collecting any money at all from you.  Usually, it is hard for this company to get all the necessary paperwork together to prove the debt, and even if they can get the paperwork together, they cannot always get it introduced into evidence again making it impossible for them to prove the debt.

17 Fla. L. Weekly Supp. 190a

Online Reference: FLWSUPP 1703JONE

Creditors’ rights — Consumer law — Florida Consumer Collection Practices Act — Assignee of consumer debt is precluded from bringing action to collect debt where assignee failed to satisfy condition precedent of notice to debtor within 30 days of assignment — No merit to argument that notice requirement applies only to collection agencies

CENTRAL OHIO CREDIT CORP., Plaintiff, vs. KEVIN LAMAR JONES, Defendant. County Court, 4th Judicial Circuit in and for Duval County. Case No. 2007-11791-CC, Division A. June 17, 2008. Emmet F. Ferguson, Judge. Counsel: Sidney E. Lewis, Jacksonville. James A. Kowalski, Jr., Jacksonville.

SUMMARY FINAL JUDGMENT FOR DEFENDANT

THIS CAUSE came on before the Court on Thursday, June 5, 2008, on the Plaintiff’s Motion for Summary Judgment and the Defendant’s Cross-Motion for Summary Judgment. The issue presented to the Court concerns the application of Section 559.715, Florida Statutes, to the facts of the instant case, based upon the record evidence indicating Plaintiff did not provide notice of an assignment within thirty (30) days as provided by the Statute. Section 559.715, Florida Statutes, states: “This part does not prohibit the assignment, by a creditor, of the right to bill and collect a consumer debt. However, the assignee must give the debtor written notice of such assignment within 30 days after the assignment.” Plaintiff asserts Section 559.715, Florida Statutes, only applies to collection agencies by virtue of its proximity to now-repealed statutes dealing with collection agencies. Defendant argues Section 559.715, Florida Statutes, is a condition precedent to the collection of debts following an assignment, applies on its face to all entities receiving assignments of consumer debts, and notes the term “consumer debt” is defined broadly. Section 559.55(1), Florida Statutes. The Court has reviewed the circuit court case of UMIJC VP, LLC, v. Levine, 10 Fla. L. Weekly Supp. 336 (Circuit Court, 15th Judicial Circuit, 2003), and has also reviewed Plaintiff’s Affidavit As to Indebtedness, wherein Plaintiff’s Affiant testified Plaintiff had received this debt through a series of assignments. The Court finds Section 559.715, Florida Statutes, is a condition precedent and applies to those entities receiving assignments of consumer debts and, having failed to comply by providing notice to Defendant within 30 days after assignment, Plaintiff is precluded as a matter of law from bringing this action. There are no genuine issues of material fact and Defendant KEVIN LAMAR JONES is entitled to Judgment in his favor and against Plaintiff CENTRAL OHIO CREDIT CORP. It is, therefore, ORDERED AND ADJUDGED, Defendant KEVIN LAMAR JONES’ Motion for Summary Judgment be and the same is hereby granted, and accordingly Plaintiff CENTRAL OHIO CREDIT CORP. shall take nothing by this action, and the Defendant shall go hence without day.

15 Fla. L. Weekly Supp. 913b

Contracts — Account stated — Money lent — Standing — Assignment — Plaintiff who alleged that defendant owed debt to it by virtue of an assignment of rights from plaintiff’s alleged predecessor-in-interest failed to meet burden of demonstrating that it was, in fact, assignee of alleged debt and had standing to file suit — Documents apparently intended to demonstrate transfer of ownership of defendant’s account between several entities, until account was ultimately assigned to plaintiff, were not admissible as business records where documents were not authenticated through testimony of records custodian or other person with knowledge with respect to the records of each entity — Even if documents proffered by plaintiff had been admitted into evidence, neither that evidence nor the testimony of a witness who identified herself as a “legal liaison and records custodian” of a company which was not a party to case and which appeared nowhere in the alleged chain of title with respect to defendant’s account, would support judgment in favor of plaintiff, would support judgment in favor of plaintiff

PALISADES COLLECTION, LLC, Plaintiff, v. LOUISE FEDORAK, Defendant. County Court, 2nd Judicial Circuit in and for Wakulla County. Case No. 08-01-SC. August 6, 2008. Jill Walker, Judge. Counsel: Justin D. Jacobson and Richard W. Reno, for Plaintiff. Robert G. Churchill, Jr., Tallahassee, for Defendant.

FINAL JUDGMENT

This case was heard by the Court at a final hearing. This Court having heard the evidence presented and arguments of counsel and being otherwise fully advised in the premises, finds that the trial evidence was insufficient to support a judgment in favor of the Plaintiff, and entitles Defendant in this action to final judgment in her favor, for the reasons set forth below. Plaintiff has sued the Defendant in this Court, alleging a debt owed by Defendant to Plaintiff by virtue of an assignment of rights from Plaintiff’s alleged predecessor-in-interest, Citibank. Plaintiff’s Complaint asserted three untitled counts which appear to be claims for Breach of Contract, Account Stated, and Money Lent, alleging a principal debt of $1205.14. The Plaintiff admitted into evidence, (without objection from Defendant), the Citibank Card Agreement entered by the Defendant with the original creditor. The evidence offered by Plaintiff at trial failed to meet Plaintiff’s burden to demonstrate that Plaintiff was the assignee of the alleged debt and had standing to file suit. On this issue, Plaintiff attempted to admit into evidence several assignment documents apparently intended to demonstrate the transfer of ownership of Defendant’s account between several entities, until the account was ultimately assigned to the Plaintiff. In order to admit into evidence the business records of any of these business entities, Plaintiff was required to authenticate the documents by the testimony of a records custodian or other person with knowledge under the Florida Evidence Code. Fla. Stat. § 90.803(6)(a); Forester v. Norman Roger Jewell & Brooks International, Inc., 610 So. 2d 1369, 1373 (Fla. 1st DCA 1992). Plaintiff did not offer any such testimony with respect to any of these assignments, and the assignment documents were not admitted into evidence. Plaintiff elicited the testimony of Natalie Anderson, who identified herself as a “legal liaison and records custodian” of Unifund CCR Partners, a company which is not a party to this case and appears nowhere in the alleged chain of title with respect to this account. Ms. Anderson could not provide an evidentiary foundation for any business records of Citibank or any other company appearing in the alleged chain of title with respect to Defendant’s account. In the absence of authenticating testimony from a records custodian or other person with knowledge with respect to the records of each of these entities, their records could not be admitted into evidence over the Defendant’s objection. See Forester at 1373. Finally, the Court notes that even if all of the documents proffered by the Plaintiff in this case had been admitted into evidence, neither that evidence nor Ms. Anderson’s testimony would support a judgment in favor of the Plaintiff. None of the documents in the possession of trial counsel for either party indicated any connection between the purported assignments and the Defendant. Each of the written assignment agreements referenced exhibits (apparently lists of the assigned accounts), which exhibits were never offered at trial, nor were they produced in compliance with the Court’s pretrial disclosure order. The failure to provide the assignment exhibits prior to trial as required by the Court would have rendered the exhibits inadmissible even if they had been offered at trial. Ms. Anderson could not testify with reference to the Defendant in particular either by personal knowledge or by reference to any of the materials the parties disclosed prior to trial pursuant to this Court’s pretrial order. NOW THEREFORE, for the reasons stated above, the Court finds for the Defendant. Plaintiff shall take nothing by this action and Defendant shall go hence without day. The Court reserves jurisdiction as to the entitlement to and amount of attorney fees and costs.

15 Fla. L. Weekly Supp. 843b

Consumer law — Florida Consumer Debt Collection Practices Act — Notice to debtor of assignment of consumer debt is condition precedent to collection action by assignee

CACH, LLC, Plaintiff, vs. STEPHEN J. QUARTERMAINE, Defendant. County Court, 17th Judicial Circuit in and for Broward County. Case No. COSO 07-11074. June 16, 2008. Terri-Ann Miller, Judge. Counsel: Scott D. Owens, Cohen & Owens, P.A., Hollywood. Harold E. Scherr.

ORDER ON DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

THIS CAUSE having come to be considered on Defendant’s Motion for Summary Judgment, and this Honorable Court having heard arguments from both counsel for the Plaintiff and Defendant, it is hereupon, ORDERED that said Motion is GRANTED. Based upon the evidentiary record, this Court finds that Plaintiff has failed to comply with the written notice provision of Florida Statutes § 559.715, which this Court holds is a condition precedent to a (debt) collection action predicated upon an assignment of debt.

15 Fla. L. Weekly Supp. 365b

Consumer law — Assignment of debt — Where debtor’s affidavit stating that she did not receive written notice of any assignment of debt was unrebutted, condition precedent to assignee’s action to collect debt was not met

MIDLAND FUNDING LLC, Plaintiff, vs. GLADYS HILL, Defendant. County Court, 2nd Judicial Circuit in and for Gadsden County, Small Claims Division. Case No. 07-75-SCA. February 13, 2008. Stewart E. Parsons, Judge. Counsel: Robert J. Orovitz, Miami, for Plaintiff. Robert G. Churchill, Jr., Tallahassee, for Defendant.

ORDER GRANTING MOTION FOR SUMMARY DISPOSITION

THIS CAUSE having come on for hearing upon Defendant’s Motion For Summary Disposition, and Court having heard the argument of counsel, it isORDERED AND ADJUDGED: 1. Plaintiff filed this action to collect a debt alleging that it was the owner and holder of the debt pursuant to an assignment from the original lender, Fingerhut Credit Advantage. The Court notes that the assignment which was produced in response to Defendant’s Request For Production was from Jefferson Capital Systems, LLC to Midland Funding LLC, and made no mention of Fingerhut Credit Advantage. F.S. 559.715 requires that an assignee of a debt give written notice of the assignment to the debtor within 30 days of the assignment. Defendant filed her affidavit in support of the Motion For Summary Disposition indicating that she received no notice of any assignment of the debt. The affidavit was not rebutted by Plaintiff. 2. The Court finds that the written notice required by F.S. 559.715 was not given, and that the giving of such notice was a condition precedent to bringing this Action. UMLIC-VP, LLC v. Reggie Levine, 10 Fla. L. Weekly Supp. 336a (Fla. 15th Cir. Ct. 2003) & Portfolio Recovery Associates, LLC v. Richard Smith, 15 Fla. L. Weekly Supp. 169a (Leon County Court 2007). Therefore the Motion For Summary Disposition is granted, and this action is hereby dismissed with prejudice.

15 Fla. L. Weekly Supp. 169a

Consumer law — Standing — Assignment — Plaintiff suing defendant for debt allegedly owed to plaintiff based on claimed assignment by bank failed to prove assignment where affidavit of bank’s agent created on day of trial is hearsay that is not admissible as business record, and insufficient foundation was laid for admission of bank’s business records offered through plaintiff’s account manager — Failure to satisfy statutory condition precedent of providing notice of assignment of debt to debtor bars enforcement of debt even if plaintiff were able to establish standing — Where account agreement with bank provides that New Hampshire law governs relationship under agreement, and suit was filed more than three years after undisputed accrual of cause of action, suit is barred by NH statute of limitations — Contract provision by which debtor agreed to waive all applicable statutes of limitations is invalid as against public policy under NH law

PORTFOLIO RECOVERY ASSOCIATES, LLC, Plaintiff, v. RICHARD SMITH, Defendant. County Court, 2nd Judicial Circuit in and for Leon County. Case No. 07-SC-4319. December 3, 2007. James O. Shelfer, Judge. Counsel: Robert J. Orovitz and Pace Allen, for Plaintiff. Robert G. Churchill, Jr., Tallahassee, for Defendant.

FINAL JUDGMENT

This case was heard by the Court at a final hearing. This Court having heard the evidence presented and arguments of counsel and being otherwise fully advised in the premises, finds that Plaintiff’s evidence was insufficient to support a judgment in favor of the Plaintiff, and entitles Defendant in this action to final judgment in his favor, for the reasons set forth below. Plaintiff has sued the Defendant in this Court, alleging a debt owed by Defendant to Plaintiff by virtue of an alleged assignment of rights from Plaintiff’s alleged predecessor-in-interest, Providian National Bank. Plaintiff asserted claims for Breach of Contract, Account Stated, and Money Lent, alleging a principal debt of $3065.55. The evidence offered by Plaintiff at trial failed to demonstrate that Plaintiff was the assignee of the alleged debt and had standing to file suit. The only evidence Plaintiff attempted to admit on this issue was an affidavit of an agent of Providian National Bank, asserting that the account of the Defendant was included in a November 29, 2005 purchase and sale agreement between Providian National Bank and Plaintiff, (which agreement was not attached to the affidavit or presented as evidence). The affidavit was dated November 29, 2007 — the day of the trial of this matter. This affidavit was inadmissible hearsay, which did not meet the requirements for admission of a business record under the hearsay exception found in Florida Statute Section 90.803(6). The affidavit was not created at or near the time of the events it records, and the circumstances of the affidavit demonstrate to the Court that the document lacks trustworthiness. Fla. Stat. § 90.803(6)(a). Plaintiff offered testimony of Lucinda Shipman, an account manager for the Plaintiff, who described various documents in her file, including the above-described affidavit as well as some statements and other materials generated by the alleged predecessor-in-interest on the debt, Providian National Bank. Ms. Shipman could not lay a proper evidentiary foundation for the admittance of the business records of Providian National Bank pursuant to the business records exception to the hearsay rule, and those documents were not admitted into evidence. Fla. Stat. § 90.803(6)(a). Ms. Shipman did not have in her possession, nor did the Plaintiff attempt to admit into evidence any notice from the Plaintiff to the Defendant in compliance with Florida Statute Section 559.715. That statute requires the assignee of a consumer debt to notify the debtor of the assignment of the debt within 30 days of the assignment, and timely compliance with the notification requirement is a condition precedent to the enforceability of the debt. See UMLIC-VP, LLC v. Levine, 10 Fla. L. Weekly Supp. 336a (Fla. 15th Cir. Ct. 2003). The absence of the condition precedent statutory notice bars the enforcement of this debt, even if Plaintiff had properly demonstrated standing by showing that it had purchased Defendant’s account from Providian National Bank. The Plaintiff admitted into evidence, (without objection from Defendant), the credit card application directed to Providian National Bank signed by the Defendant, as well as a Providian National Bank Account Agreement entered by the parties. The account agreement indicated that New Hampshire law governed the relationship of the parties under the agreement. Under New Hampshire law, the claims brought in this case are subject to a three-year statute of limitations. See West Gate Village Association v. Dubois, 761 A. 2d 1066, 1070-71 (N.H. 2000). The admitted evidence in this case was undisputed in demonstrating that Defendant has never made any payments to the Plaintiff, did not make any payments to Plaintiff’s alleged predecessor-in-interest Providian National Bank after May of 2003, and was therefore in breach of the agreement no later than June of 2003. This lawsuit was not filed until September of 2007, more than three years after the undisputed accrual of the cause of action on the purported debt. Though the contract between Providian National Bank and Defendant has a provision by which Defendant agrees to “waive all applicable statutes of limitations” — this provision is invalid under the law of New Hampshire as against public policy. See West Gate Village Ass’n at 1071. NOW THEREFORE, for the reasons stated above, the Court finds for the Defendant. Plaintiff shall take nothing by this action and Defendant shall go hence without day. The Court reserves jurisdiction as to the entitlement to and amount of attorney fees and costs.

14 Fla. L. Weekly Supp. 1149c

Contracts — Credit account — Standing — Assignment — Where document offered by plaintiff/assignee of account to prove assignment was made by assignor not plaintiff, and witness called to admit document as business record did not know whether document was made in ordinary course of business on or about time of events described therein, assignment was not proven — Judgment in favor of defendant

ATLANTIC CREDIT & FINANCE, INC., c/o Nathan P. Gryglewicz, Esq. 5104 S. Westshore Blvd. Tampa, FL 33611, Plaintiff, vs. LEE ANDERSON c/o Michael R. Reiter, Esq. P.O. Box 330 Lynn Haven, FL 32444, Defendant. County Court, 14th Judicial Circuit in and for Bay County. Case No. 07-1694-SC. October 5, 2007. John D. O’Brien, Judge.

FINAL JUDGMENT

This case came before the Court for Final Hearing. The Plaintiff failed to show an assignment of this account to it, there being no Exhibit A attached to the bill of sale admitted into evidence. Nor did Plaintiff show compliance with Fla. Stat. 559.715. Plaintiff called as a witness an employee of Plaintiff and tried to admit as a business record a document made by Plaintiff’s assignor, Household Card Services, Inc. This document was not even made by the Plaintiff, nor could the witness know whether the document was made in the ordinary course of business on or about the time of the event described therein, the first two thresholds in showing a business record. Plaintiff directs this Court to Wamco, XXVIII v. Untegrated Electronic Environments, Inc., 903 So.2d 230 (Fla. 2nd DCA 2005) as support for the proposition that the Plaintiff’s witness could establish as a business record of Plaintiff a document made by an entirely different organization. That case does not support this proposition. In the case cited, the assignee, Wamco, sent its own bills after the assignment showing payments and balances. Thus, the employee of Wamco testified about Wamco records, not the records of another entity. True the Wamco records were bottomed on hearsay from a third party business, which the appellate court seemed to hold acceptable, but the first requirement that the records be made by the business offering the document as its business record was not satisfied. NOW THEREFORE, for the reasons stated, this Court finds for the Defendant. The Plaintiff, Atlantic Credit & Finance, Inc., shall take nothing by the action and the Defendant, Lee Anderson, shall go hence without day.