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Posted: Wed May 07, 2008 4:41 pm

In March 2007 we got served and we responded within the 14 days and filed it with the Clerk of the Court. We requested all the documents from this company Tri Cap Investment including verification of debt, original documents, etc. They said that we owed over $18,000 for different accounts.
Last month we received this notice from the Clerk of the Court with a Notice for Lack of Prosecution where the court is saying that since they (Tri Cap) did not file any motions in almost a year, the court will hold a hearing to dismiss the judgement. The hearing is scheduled for June 18,2008.
Today we receive this letter from an attorney from our state (Florida) filing a Motion for Default, including his fees, Affidavit of Interest and Costs... in over $20,000.
We are panicking because we do not know how much time we have to respond to him, if we have to go to the hearing in June, if he is getting a judgement against us, etc.
Based on your experiences, can you tell me what should our next step be?
We are trying to do everything legally, filing the forms, show up in court, etc.
We are desperate.
Please help us!!!!!
Thanks. Confused

Posted: Wed May 07, 2008 5:02 pm

Whoa! That's unbelievable, the nerve of those people. I'm not sure what to tell you so I will leave this for someone else with more knowledge to answer this one.

Posted: Wed May 07, 2008 5:05 pm

Thanks for reading my post. I will wait for someone else's suggestions.

Posted: Wed May 07, 2008 7:20 pm

So they haven't filed motions in over a year but the attorney is filing motion for default. Default judgment generally occurs when the defendant does not appear in court. I would suggest seeking legal council for this however to cover yourself. You can check naca.net for a consumer attorney in your area.

Posted: Wed May 07, 2008 7:36 pm

JC you are correct. We have not heard from them in over 10 months. That is why the Clerk of the Court sent us a Notice of Lack of Prosecution to let all parties know that since nothing has been filed in 10 months, they were going to dismiss the case. And now we get this "paperwork" from this "attorney" requesting a Motion for Judgement; Motion for Default-Final Judgement; Default Final Judgement and many other forms.
We are totally lost and confused.

jmert · Posted: Wed May 07, 2008 8:31 pm

By responding to the summons 10 months ago, you called out the lawyer to provide evidence he likely doesn't have, prevented him from getting a default judgement (which is what he was hopping for) and he backed off since he knew he could not win (if he had enough evidence to win, he would have filed a Notice to Set for a trial date so he could get the court to make you pay)

Now, 10 months later, he is trying again in the hope that maybe this time you won't answer or show up. By filling all these motions, he is hoping to scare you from showing up so that he can get the default judgement that you denied him last time.

Don't let that bottom-feeder of a lawyer get away with it. Make sure you show up to the hearings (you dont need to answer them like a summons; just show up at the hearing date). By just showing up, you guarantee yourself that the judge will dimiss any "Motions" that realate to "default" or "no trial judgements" since you are there to contest them. Worst case scenario is that the judge will set an actual trial date to settle the matter.

Guest · Posted: Wed May 07, 2008 9:39 pm

So I do not have to respond to his "motions"?, because what I was going to do was to refile another notice of intent to defend, just change the name of the previous company, and put this new "attorney's" information. I was going to take it to the courthouse nad have them stamp it as received, send a copy to him, requesting the same information and obviously go to the hearing previosuly set by the court. I do have the right to request my documentation showing the amounts they say I owe, etc, right?

Posted: Thu May 08, 2008 7:36 am

That sounds like a good plan. Just keep on top of the case and make sure you show up. When you show up you can show the judge that once more you requested documentation which was not produced. THEN you should file to dismiss, don't let it sit for another 10 months...this time get active and file to have it dismissed. Smile

jmert · Posted: Thu May 08, 2008 11:19 am

When any motion is filed, the proper procedure is to address it at a hearing. If the motion requires you to respond prior to the hearing (which is very rare), the court paperwork will clearly state that you must answer by a certain date prior to the hearing date.

I would check with the court clerk to make sure that the "motions" were actually submitted to the court and are legitimate. Dont trust any court documents sent to you by the lawyer. They are often fake or altered.

Many of these bottom-feeder lawyers will send you copies of fake "motions" that demand a response in the hopes that you will reveal information and evidence to them before the hearing date and discovery (basically showing your cards early). This way, the lawyer can anticipate your defense, gauge your evidence and falsify paperwork prior to discovery to win a default judgement. For example, if your defense is SOL, he may try to re-age your debt in his paperwork. If your defense is that its not your debt, he may get a weak affidavit from their homeoffice that swears that it is your debt. And etc.

The only "response" I would file is a "Motion to Dismiss". That way, the motion will be added to the same hearing date and you will have a much easier time getting the case dismissed. The judge will go through every motion, see that the case has no legs to stand on, that the laywer has abused the court system by filling motions without merit, and will glady dismiss with prejudice.

Posted: Thu May 08, 2008 6:08 pm

Where do I get a sample of a "Motion to Dismiss"? I want to get it filed and be prepared before our hearing in June.
Thanks so much for all of your suggestions!!!! Smile

jmert · Posted: Thu May 08, 2008 7:18 pm

Your local library should have "Motion to Dismiss" templates for your specific juristiction. Sometimes the court clerk will have the forms available so ask them as well (while they can't give you legal advice, I found they can be a great resource such as showing you how to fill out paperwork correctly). Some courts also post the templates on-line as well so search your local court website.

When you fill out the "Motion to Dismiss", be as brief as possible. Don't write about your evidence or defense strategy for the attorney to see. Simply state the allowable claim for your jurisdiction in your motion such as "improper service", "lack of damages" "lack of prosecution" or "SOL".

Posted: Thu May 08, 2008 7:31 pm

Thanks for the excellent advice. I will research my local library and call the Clerk of the Court and see if they have the templates.
I will keep you all posted.

Posted: Wed May 28, 2008 7:35 pm

The attorneys' office is BOrack and Associates. They are really skillfull...

Posted: Wed May 28, 2008 8:02 pm

it sounds like we are going through the same thing. i got the motion to dismiss letter at the beginning of the month but i didn't do anything. i called the court and they gave me the number to Borack and Associates. my hearing is on June 11. but the lady told me i didn't have to go...

now borack office called me home and i told them i will call them back tomorrow.

have you talked to them? i am really nervous.

Posted: Wed May 28, 2008 8:03 pm

do you have a lawyer?

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