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11 301 Answer w Exhs

11 301 Answer w Exhs

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Published by robchaney
IN THE COUNTY COURT IN AND FOR HIGHLANDS COUNTY, FLORIDA 25 APRIL 2012 CAPITAL ONE BANK (USA), N.A., Plaintiff, v. JAMES A. MOTIL, Defendant. _____________________________/ ANSWER AND DEFENSES OF NON-NAMED DEFENDANT-IN-ERROR, JAMES ANGELO MOTIL, JUNIOR Comes now the non-named Defendant-IN-ERROR, James Angelo Motil, Junior ("Junior"), on his own behalf and not as representing Junior's father or any other James A. Motil (“JAM”), to file this Answer to Plaintiff's "Statement of Claim" ("Claim") as
IN THE COUNTY COURT IN AND FOR HIGHLANDS COUNTY, FLORIDA 25 APRIL 2012 CAPITAL ONE BANK (USA), N.A., Plaintiff, v. JAMES A. MOTIL, Defendant. _____________________________/ ANSWER AND DEFENSES OF NON-NAMED DEFENDANT-IN-ERROR, JAMES ANGELO MOTIL, JUNIOR Comes now the non-named Defendant-IN-ERROR, James Angelo Motil, Junior ("Junior"), on his own behalf and not as representing Junior's father or any other James A. Motil (“JAM”), to file this Answer to Plaintiff's "Statement of Claim" ("Claim") as

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Published by: robchaney on Dec 04, 2012
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IN THE COUNTY COURTIN AND FOR HIGHLANDS COUNTY, FLORIDA
25 APRIL 2012CAPITAL ONE BANK (USA), N.A.,CASE NO.
11 000 301 - SPS
Plaintiff,v.JAMES A. MOTIL,Defendant. _____________________________/
ANSWER AND DEFENSESOF NON-NAMED DEFENDANT-IN-ERROR, JAMES ANGELO MOTIL, JUNIOR 
Comes now the non-named Defendant-IN-ERROR, James Angelo Motil, Junior ("Junior"), on his own behalf and not as representing Junior's father or any other James A. Motil(“JAM”), to file this Answer to Plaintiff's "Statement of Claim" ("Claim") as a courtesy toPlaintiff so that Plaintiff will have advance notice of Junior's (not JAM's) “defenses,” andwithout asking for any affirmative relief, Junior ANSWERS as follows:1.Junior denies all the allegations of the 1-page Claim (See
Exhibit A
attached.) whichfails to mention any exhibit and attaches no cause of action (
i.e
., contract).2.The Claim does not request any attorney's fees, thus none should be granted.
DEFENSESDEFENSE 1:
3.
Failure to Attach Cause of Action .
Plaintiff's Statement of Claim (“Claim”) mentionsan “agreement,” but fails to either state the terms of said agreement or to attach a copy to theClaim.
Florida Small Claims Rule 7.050
says, in pertinent part:COMMENCEMENT OF ACTION; STATEMENT OF CLAIM (a)Commencement. (1) Statement of Claim. Actions are commenced by the filing of a statement of claim in concise form, which shall inform the defendant of the basis and the amount of the claim.
If the claim is based on a written document,a copy or the material part thereof shall be attached to the statement of claim.
All documents served upon the defendant with initial process shall be filedwith the court. [Emphasis added.](This paper is NOT confidential.)
 
4.Without an attached “cause of action,” the Claim should be dismissed for failure tofollow the rules, failure to state a cause of action and failure to prosecute.5.Although
 some
“oral” agreements are enforceable in Florida,
certain
oral and impliedagreements for credit are not enforceable in Florida courts pursuant to two statutes of fraud:1)
F.S. 672.201(1)
which says, in pertinent part: “[A] contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for salehas been made between the parties and signed by the party against whomenforcement is sought....”;2)
F.S. 687.0304 (2) “CREDIT AGREEMENTS TO BE IN WRITING.
 —Adebtor may not maintain an action on a credit agreement unless the agreement isin writing, expresses consideration, sets forth the relevant terms and conditions,and is signed by the creditor and the debtor.” and3)
F.S. 687.0304 (3)(b)
 
“ACTIONS NOT CONSIDERED AGREEMENTS.
 — A credit agreement may not be implied from the relationship, fiduciary, or otherwise, of the creditor and the debtor.6.An "'oral agreement' does not overcome the Banking Statute of Frauds."
UniversityCreek Associates II, Ltd. v. Boston American Financial Group, Inc.
, 100 F.Supp 2d 1345, 1351,Case No. 98-6643-CIV-Highsmith, U.S. Dist. Ct. for the So. Dist. of Florida.7.In Florida, as shown above, credit agreements must be in writing and may not be“implied.” Furthermore, a “claim for promissory estoppel does not survive the statute of frauds.”(
Shore v. Seagate
, 842 So.2d 1010, at 1012 (Fla. 4
th
D.C.A., 2003)).8.In a weak attempt to provide a written agreement, Plaintiff filed a "
 Notice of Filing  Documents
" on 6 February 2012 (over 75 days ago) with a purported "Customer Agreement"attached. Said Agreement says, "In this Agreement the words "you," "your" and "yours" refer toeach person who signed the application for the account...." However, said Agreement fails tocontain any of the following: JAM's name; Junior's name; JAM's signature; Junior's signature; aninterest rate; a credit limit, a date of repayment; or the duration of agreement.9.Said "
 Notice of Filing Documents
" says on the first page: "The Plaintiff is attempting tolocate the original application for the issuance of the credit card not attached."10.Because the Claim fails to provide a copy of a written contract signed by either JAM or Junior, the Claim appears to be based upon an
unwritten
contract. The Claim, itself, does notallege the terms of any contract and unwritten contracts for credit are not enforceable in Floridacourts. Thus, the Claim should be dismissed with prejudice.(This paper is NOT confidential.)2
 
DEFENSE 2:
11.
Virginia's 3-Year Statute of Limitations on Unwritten Contracts .
 
Virginia Code
section 8.01-246(4)4: "In actions upon any unwritten contract, express or implied, within threeyears." A purported "Customer Agreement" is attached to Plaintiff's "Notice of FilingDocuments" served 27 January 2012 and filed 6 February 2012. Said agreement does not bear Junior's name and it contains no signatures. On the second page of said agreement it says:Governing Law. WE MAKE THE DECISION TO GRANT CREDIT, OPEN ANACCOUNT AND ISSUE YOU A CREDIT CARD FROM OUR OFFICES INVIRGINIA. This Agreement is to be construed in accordance with and governed by the laws of the United States of America and by the internal laws of theCommonwealth of Virginia without giving effect to any choice of law rule thatwould cause the application of the laws of any jurisdiction other than the laws of the United States of America or the internal laws of the Commonwealth of Virginia to the rights and duties of the parties. This Agreement is made inVirginia. It will be governed only by Federal law and Virginia law (to the extentnot preempted by Federal law).12.Because the Claim contains no written agreement signed by the parties, the only possiblecontract available to Plaintiff is an "unwritten" one, and "unwritten" contracts have a three-year statute of limitations under Virginia law.13.The Palm Beach County Court ruled against Stanley Erskine and his client, Capital OneBank, on the issue of Virginia's three-year statute of limitations on oral contracts. See "SummaryJudgment for Defendant,"
Capital One Bank v. Steven Pincus
, Case No. 502007SC016285,Division RB, signed by Judge Ted S. Booras on 8 September 2008. See
Exhibit G
attached.14.Said agreement fails to contain the following necessary elements: Junior's name;Junior's signature; interest rate; credit limit, date of repayment; and duration of agreement.Without these elements, there is no written agreement under Virginia law.15.According to a statement submitted by Plaintiff in its "
 Notice of Confidential  Information within Court Filing 
" served 26 October 2011 and filed 7 November 2011, the lastcharge and the last payment (at page 81, see
Exhibit B
attached) were both made on 16September 2006. The Claim was filed on 23 August 2011, more than four (4) years and eleven(11) months after 16 September 2006.16.As shown above, under Florida Rules of Civil Procedure, "
FORM 1.965 . DEFENSE.STATUTE OF LIMITATIONS
Each cause of action, claim, and item of damages did notaccrue within the time prescribed by law for them before this action was brought." Thus, theClaim is barred by Virginia's three-year statute of limitations on unwritten contracts.(This paper is NOT confidential.)3

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