How do I respond, and can I counter-sue?

To motion or not to motion...

What is the name of your state?What is the name of your state? FL

I go to pretrial conference on Monday. I'm being sued for non-payment of a debt. The suit alleges I still owe $1100. It was filed last month, but using records from January (these records do not reflect payments that had been made during Feb/Mar time period (so the "actual" amount they should be suing for is only $900). Secondly, I have discovered that they are charging interest and finance charges that they never disclosed or received my written authorization for as required by the Fed. Trade Commission/Truth in Lending Act. When those charges are removed, I owe them $200. My questions are these...

First, does their case have merit since it was filed with an incorrect amount to begin with; even their own records show an amount that is different from what they filed for. Based on the information presented above, is it possible the suit could be dismissed at pretrial, or is the judge likely to send it to trial with a modified amount?

Secondly, responding to the suit has cost me hours and hours of time away from working on my business...35 hours at last count (over this paltry sum). Also, process for this suit was served on my wife at the residence of one of our business clients leading to embarassment and loss of respect, potentially significant loss of income. Is there some manner of suit that I can file to recover these (and possibly punitive) costs? Would this be a separate suit, or would it be a "continuation of the present action"? If it's a continuation of the existing action, I have to file the countersuit by TOMORROW...

Third, if I want to claim that I only owe the $200, using the violation of federal statutes as the defense, do I need to file a counter-suit for the difference between this amount and the amount they are suing me for, or just leave that determination to the judge?

BTW, I have offered to settle this case TWICE...once for the $900, paid "when I could pay it" (as I was paying the debt before), and again for the $200, which I offered them immediately. They turned town both settlement offers even though I informed them (perhaps stupidly) that they didn't have a case and showing them exactly why.

I have kept exceptional records of every activity I have undertaken regarding this matter; likewise, I have conclusive documentary evidence that shows not only that they did not inform me of the interest/finance charges, but that they had every opportunity to do so (on their sales forms) and failed to fill out the required information. Copies of these forms have been provided to me TWICE by the company's attorney. The second time was in response to my Discovery Motion (so I am sure they have nothing with which to defend against this charge).

Any advice or opinions would be appreciated, especially if it comes with reference material (links, etc.) I can follow to aid in my pursuit.

I'm going to get these corporate *******s who use the law only when it's convenient to them to beat customers over the head, but who ignore it when it is inconvenient or doesn't suit them!

Thank you for responses.


***This question has been answered satisfactorily; thank you. Still looking for answers regarding the subsequent posts.***

"First, does their case have merit since it was filed with an incorrect amount to begin with"
*** No one can answer if their case has 'merit' as we haven't seen the evidence or facts. If you are asking is their case 'faulty' due to claiming an incorrect amount, no. That is for the defense (YOU) to show when you go to court and it can go towards their credibility or lack of.

"Based on the information presented above, is it possible the suit could be dismissed at pretrial, or is the judge likely to send it to trial with a modified amount?"
*** As noted above, it is more likely that it will go forward based on THEIR claimed amount.... and up to you to present your evidence of an incorrect amount.

"Is there some manner of suit that I can file to recover these (and possibly punitive) costs?"
** There is 'some manner of suit', but the costs you describe are NOT actionable.

"if I want to claim that I only owe the $200, using the violation of federal statutes as the defense, do I need to file a counter-suit for the difference between this amount and the amount they are suing me for, or just leave that determination to the judge?"
*** As noted above, present your evidence at the hearing.

"BTW, I have offered to settle this case TWICE...once for the $900, paid "when I could pay it" (as I was paying the debt before), and again for the $200, which I offered them immediately. They turned town both settlement offers even though I informed them (perhaps stupidly) that they didn't have a case and showing them exactly why."
*** Okay?? And what does that mean to the case?? Nothing.

"I have kept exceptional records of every activity I have undertaken regarding this matter; likewise, I have conclusive documentary evidence that shows not only that they did not inform me of the interest/finance charges, but that they had every opportunity to do so (on their sales forms) and failed to fill out the required information. Copies of these forms have been provided to me TWICE by the company's attorney. The second time was in response to my Discovery Motion (so I am sure they have nothing with which to defend against this charge)."
*** So, your defense should be pretty easy, huh??

Thank you...so far...

Thank you for the assistance you've provided so far. These were pretty much the answers I expected, based on my research so far, but I wanted to be sure I was proceeding properly and on the correct assumptions.

My next question (if anyone cares to answer it) is this; I am inclined to make a Motion to Dismiss due to lack of cause of action. The Plaintiff's attorney, in filing the complaint, says only that "defendants owe plaintiff XXXX dollars for the sale of goods and services" and included only a vague computer printout of a statement of account as "Exhibit A", and no further supporting documents. Further, the information they have provided in response to my request for discovery shows they have nothing that truly indicates a contract, including the written agreement to finance charges as required by TILA. They requested Quantum Meruit compensation (which I feel fairly confident I can successfully use against them--see below). The fact is I KNOW they have no written contract for any of the charges they claim, and what documents they do have that they could perhaps construe as a contract are incomplete, missing critical information like number of payments, installment amount, first installment being due, etc. These sales forms ALL fail to specify finance charges (even though space is labeled on the forms to record this information). I suspect that if I file a dismissal motion, they may amend their original complaint and attempt to use these documents as the proof of the debt. So I am concerned by TWO double-edged swords; first, if the motion is granted but without prejudice (giving them opportunity to refile) and putting us through all this again, and second, that the motion is denied and their amended complaint may somehow come back to bite me.

So in (anyone's) professional or experiential opinion, should I file the dismissal motion? And if so, what should the timing be? Pretrial conference is scheduled for this upcoming Monday afternoon, and Florida tends to frown on "ambush" defenses and motions...should I file today? Friday? At pretrial?

And does anyone think, based on what I've given so far, that the motion has a chance?

Thanks for any assistance.

PS - here's my attack on the "Quantum Meruit" demand:
" Count III contends that "Plaintiff should be compensated on a 'quantum meruit' basis for the goods and services which plaintiff rendered to Defendant(s)". Defendant(s) assert that Plaintiff, by requesting Quantum Meruit compensation, is attempting to claim either that an express contract exists (stipulating in writing an amount and a mode of compensation for goods and services) which has in some way been breeched by Defendant(s) and must now be assigned a value by the Court; or, that no such express contract exists, and that the Court should make a determination of reasonable compensation based on an implied contract between the Plaintiff and the Defendant(s). Defendant(s) reassert that Plaintiff has failed to provide sufficient evidence of the existance of an express contract or contracts between Plaintiff and Defendant(s), or of any breech of such contract; further, Defendant(s) assert the Court can reasonably deduct from Plaintiff's own Exhibit "A" that finance charges have been applied to the account in question, and that federal law (15 U.S.C. 1601 et seq., the "Truth In Lending Act") requires that any finance charges must be disclosed to a (presumptive) debtor, in writing, with signatory agreement from the (presumptive) debtor (in this case, the Defendant(s)). Thus, from the Plaintiff's own evidence the Court can reasonably determine that an express, and not an implied contract should exist. Defendant(s) again assert that Plaintiff has failed to provide any evidence that such written contract exists, or that there has been any breech of such contract; even viewed in a light most favorable to the Plaintiff, Defendant(s) assert that Plaintiff's complaint provides no basis on which the Court may determine Quantum Meruit compensation. "

Ps

PS - I have not yet formally "answered" the complaint; I have been saving that for Pretrial (most everything I can seem to come up with indicates this is when my answer should be presented, though some texts indicate I only have 20 days following service of process to answer the complaint...I hope that is incorrect). If I file the dismissal motion, and it is denied, I presume I can still answer the complaint, count-for-count, with my denials? The "lack of cause of action" seems to be the only affirmative defense I can legitimately claim; but I don't want to lose the opportunity to use any others, if I can, and I don't want to somehow mess up my ability to deny the actual complaint if it comes down to it. Am I okay procedurally so far?

Running out of time...

I am inclined to file my dismissal motion today, since many courts are closing tomorrow for the day of mourning for President Reagan. I go to Pretrial Conference Monday afternoon. Could someone who wishes to venture an opinion take a look at the two posts immediately preceeding this one and offer some insight?

Thanks.