Tag Archives: lawsuit

Defenses to Collection Lawsuits

If you are one of the thousands of consumers that is facing overwhelming credit card debt, it may be time to consider filing a personal bankruptcy case. Filing a Chapter 7 or Chapter 13 can allow you to eliminate or discharge your credit card debt and obtain a fresh financial start. However, if filing for bankruptcy protection is not an option for you and collection lawsuits are being filed against you, it is important to confer with an experienced attorney regarding the defenses that may be available to you. Below are a few defenses to a collection lawsuit that might be available to you:

Bankruptcy Attorney serving Cocoa, Florida

Bankruptcy Attorney serving Cocoa, Florida

  • Improper service. If you are not validly served with the summons and complaint, you have an effective defense (if timely alleged).
  • Statute of Limitations. The plaintiff seeking a monetary judgment against you must file the lawsuit by a certain deadline or it is time barred. You have a defense if the debt has gone “stale” and the creditor has lost its right to sue you to collect it.
  • Improper plaintiff. The party suing you must have the right to sue you. In other words, the plaintiff must be owner of your debt. This means that if your account was sold to a collection agent and the original creditor failed to properly transfer the documentation evidencing your debt, it may be possible to get the suit against you dismissed.
  • Wrong defendant. If you can prove that you did not incur the debt and that it does not belong to you, the court may dismiss the lawsuit.
  • Debt discharged. If you filed a prior personal Chapter 7 or Chapter 13 case and included the debt in your filing, proving the debt was discharged will prevent the creditor from proceeding with the lawsuit against you to collect it.
  • Identity theft. If the debt was incurred as a result of you being the victim of identity fraud, it is a valid defense to the lawsuit.
  • Accounting errors. You may have a partial or full defense if the plaintiff failed to correctly credit your account with payments or made some other accounting errors.
  • Unlawful debt collection. If the plaintiff used illegal debt collection practices against you, we can help you allege a counterclaim in the lawsuit. This means that you file a claim against the plaintiff seeking money damages which can be used to offset the amount you owe the plaintiff.

If you are interested in learning whether one or more of the above defenses are available to you, please contact us to schedule an appointment. Our office is located in Melbourne, but we proudly serve individuals and businesses across the State of Florida.


Defending a Credit Card Lawsuit

Defending a Credit Card Lawsuit | Brevard County Bankruptcy Attorney

If you are drowning in credit card debt but you want to avoid filing a Chapter 7 or Chapter 13 case, we can help you discover the wide variety of defenses that may be available to you. It is imperative that you contact us as soon as possible because there is a strict deadline for submitting these defenses or they will be deemed to have been waived. Below are a few examples of defenses that may be available to you in a debt collection lawsuit:

  • Improper service. The law requires a creditor to follow strict requirements when serving you with a lawsuit. If you can establish that service of process to you was invalid, it is a valid defense.
  • Statute of limitations. A credit card company has a deadline for filing the lawsuit to collect the debt from you. If the statute of limitations for collecting the debt has expired, the lawsuit can be dismissed.
  • Standing. It is common for credit card debt to be sold to debt collectors or debt buyers, so it is also common for the supporting loan documentation to not get transferred properly. In other words, if the creditor cannot prove that it owes the debt, the lawsuit can be dismissed.
  • Discharge. If you filed a prior Chapter 7 of Chapter 13 bankruptcy case and included the collector’s debt in your filing and it was discharged by the court, the collection lawsuit is prohibited.
  • Identity fraud. If your identity was stolen or the debt does not belong to you, it can be a valid defense.
  • Accounting error. If you can prove that the plaintiff has sued you for an incorrect amount, you have a valid defense. This may include the creditor failing to properly apply your payments or charging fees you do not owe.
  • Abusive tactics. If a debt collector that has illegally harassed you or been abusive in its attempts to collect the debt from you, you can file a counterclaim seeking to recover monetary damages.

Contact Faro & Crowder, PA today to schedule a consultation

If you are interested in learning more about defending a collection lawsuit, contact one of our seasoned bankruptcy attorneys to schedule your appointment.


Don’t Ignore a Collection Lawsuit!

Don't Ignore Lawsuit pic

Being served with a collection lawsuit can be intimidating. While many people are tempted to ignore it because they don’t want to deal with the hassle or they assume they owe the debt anyway so there is nothing they can do. However, failing to respond to the lawsuit can result in the creditor obtaining a default judgment against you. This means that the court assumes that you agree with everything the creditor alleged in the petition. Once the plaintiff is granted a judgment against you, the creditor or debt collector can commence collection efforts against you.

A creditor who has a judgment against you can attempt to collect money from you by garnishing your wages, levying your bank account, and/or recording a judgment lien against your house. In contrast, if you respond to the lawsuit, you provide yourself the opportunity to have the lawsuit dismissed or negotiate a settlement of the debt for a lower amount.

It is common for borrowers who are struggling financially to want to avoid the cost of retaining an attorney. However, many studies have revealed that the vast majority of debtors who have a default judgment entered against them did not have a lawyer assisting them in defending their collection lawsuit. In other words, simply by having an attorney represent you in the lawsuit can drastically increase the likelihood of obtaining a successful outcome.

It is important to understand that even if you are pretty certain you owe the debt to the plaintiff, there are still numerous valid defenses that might be available to you. Whatever you do, don’t ignore a lawsuit. If you are interested in learning more about how we can help you fight a debt collection lawsuit, contact one of our seasoned bankruptcy attorneys to schedule your appointment.


Will my bankruptcy halt all lawsuits?

If you are facing collection lawsuits, filing a Chapter 7 or Chapter 13 bankruptcy can be an effective way to stop the litigation from proceeding. However, there are certain types of lawsuits that are not halted by a personal bankruptcy filing. Generally speaking, a suit that is seeking the recovery of money is stopped when your case is filed.

Bankruptcy Halt Lawsuits | Melbourne and Palm Bay, Florida

Bankruptcy Attorney serving Palm Bay, Florida

Below are a few examples of proceedings that are not stopped by your bankruptcy:

Family law matters

If you are involved in a lawsuit regarding child custody, child support, spousal maintenance, or to establish paternity, a bankruptcy filing will not stop the proceedings. It should be noted that you cannot discharge or cancel your obligation to pay child support in a bankruptcy case.

Criminal law proceedings

If you have been arrested or convicted of a crime, any criminal actions against you will proceed. However, if there a monetary claim in relation to the criminal matter, it may be halted by your bankruptcy filing.

Tax proceedings

The Internal Revenue Service (IRS) is allowed to continue with conducting an audit, issuing tax deficiency notices, making demands for tax returns, or issuing tax assessments against you while you are in bankruptcy. The IRS cannot issue a tax lien, seize your assets, or seize your income while your personal bankruptcy case is pending.

If you have a litigation or other forms of legal proceeding filed against you and you are interested in learning how filing a Chapter 7 or Chapter 13 could impact them, contact our knowledgeable bankruptcy lawyers for the advice and guidance you need. We will review your individual circumstances and help you understand what the automatic stay will halt and what it will not stop.

Contact a Bankruptcy Attorney at Faro & Crowder, PA today

Call us today to schedule your free initial bankruptcy consultation. Our office is located in Melbourne, Florida on Sarno Road. We proudly serve individuals and businesses in Palm Bay, Viera, Cocoa, Rockledge, Cocoa Beach, Merritt Island and other parts of the Space Coast and Brevard County.

Fraud Claims versus Breach of Contract Claims

Fraud versues Breach

Attorney serving Viera, Florida

Many lawsuits involve a variety of different claims. In fact, most plaintiffs allege anything and everything they can in the hopes that at least one claim will be successful. In the business world, it is common for a plaintiff to allege that fraud occurred when the claim is really a simple breach of contract allegation. Of course, alleging fraud is also a tactic that is sued to attempt to gain leverage in the lawsuit. As a result, it is essential that your business defense attorney takes immediate action to have any meritless fraud allegations dismissed. There are several defenses available to a claim of fraud:

Failure to prove material misrepresentation

In order to prove a fraud claim, the plaintiff must establish a material misrepresentation of presently existing or past fact. It is common for a plaintiff to not adequately plead or prove this element. For example, if a seller promises to deliver its product at a date in the future and breaks its promise, the statement is not about a presently existing or past fact. Most broken promises are not sufficient to support a fraud claim, but they could be the basis for a breach of contract claim.

Opinions

If the fraud claim is only supported by a statement of opinion or puffery, there is no statement of fact. Without a statement of fact, there cannot be an actual misrepresentation.

Conclusory statements

When a plaintiff alleges fraud, there is a heightened pleading requirement. The allegations of fraud must be pled with “particularity.” It is common for a plaintiff to make conclusory statements in the petition or complaint without setting forth the particular facts that support the fraud claim. As a result, the fraud claim should fail for failure to properly plead it.

Contact a Brevard County Bankruptcy Attorney at Faro & Crowder, PA

If you are interested in learning more about how a bankruptcy filing will impact your debt, contact Faro Crowder, PA to schedule an appointment. We are located in Melbourne, Florida on Sarno Road and serve residents and businesses of the Space Coast and Brevard County.

Services Areas

We provide services throughout Central Florida including: Melbourne, Titusville, Palm Bay, Merritt Island, Cocoa, Cocoa Beach, Satellite Beach, West Melbourne, Cape Canaveral, Viera and Eau Gallie.

Get In Touch with Faro & Crowder, PA

Faro & Crowder, PA
Phone: 321-784-8158
Address:
1801 N. Sarno Road, Suite 01
Melbourne, FL 32935
Email: info@farolaw.com

The information on this blog or any blog is not intended as, and should not be taken as, legal advice.

Understanding Florida’s Civil Litigation Process

Understanding Florida's Civil Litigation Process | Faro & Crowder, PA Bankruptcy Attorneys Melbourne, Florirda

If you are involved in a lawsuit, it can be a confusing and frustrating process. While there can be numerous delays and unforeseen obstacles to deal with, most civil lawsuits follow a similar schedule. Below is some general guidance in what you can expect in Florida’s civil litigation process:

  • The party initiating the lawsuit (the Plaintiff) begins the process by filing a Complaint and a Summons. The Complaint sets forth the claims by the Plaintiff against the party being sued (the Defendant). The Complaint and Summons must be properly served on the Defendant.
  • The Defendant has a certain amount of time to file an Answer to the Complaint. The Answer admits or denies the allegations in the Complaint. It also sets forth any legal defenses the Defendant has against the claims by the Plaintiff and any claims the Defendant may have against the Plaintiff (called “Counterclaims”). The Defendant also has the option to bring other parties into the lawsuit.
  • If the Defendant fails to timely answer the Complaint, the Plaintiff may be awarded a default judgment against the Defendant.
  • After the Answer has been filed, the parties begin the Discovery phase. This is the process whereby all the parties exchange documents and other relevant information regarding the issues in the lawsuit. Discovery can occur by Interrogatories or written questions to be answered under oath, a request for documents, and/or Depositions or sworn statements of witnesses. All of the information gathered during Discovery is used to determine if the case should be settled or to prepare for arbitration, mediation or trial.
  • Throughout the litigation process, the parties can file motions to have one or several issues decided by the court prior to trial. The issues that can be resolved by filing a motion are those that are not in dispute, either because all the parties stipulate to the facts or because the law dictates a specific result under the circumstances.
  • If the case is not resolved by some form of settlement, it will go to trial. The decision of whether to go before a jury or a judge is critical and should be thoroughly discussed with your trial attorney. At trial, the parties submit their evidence and arguments to support their side of the case. At the conclusion of the trial, a Judgment will be entered in favor of one party.
  • Either or both parties have the right to appeal the trial court’s decision.

Contact Brevard County Attorneys Faro & Crowder, PA today.

The above outline is a simplified version of how a civil lawsuit proceeds. If you are facing litigation, fill out the form below to schedule a consultation. We can answer your questions and help you be prepared for each step of your lawsuit. Our office is located on Sarno Road in Melborune, Florida.

Name (required)

Email (required)

Phone Number (required)

Briefly Describe Your Legal Concern

Faro & Crowder, PA
Phone: 321-784-8158
Address:
1801 N. Sarno Road, Suite 01
Melbourne, FL 32935
Email: info@farolaw.com

How Can You Defend a Foreclosure Lawsuit?

Home being sold

There was a time when homeowners had few defenses available when it came to foreclosure actions. However, times have changed and now there are numerous defenses that allow a homeowner to successfully defend a foreclosure lawsuit. Below are a few examples:

  • Unfair mortgage terms. If a provision of your mortgage loan “shocks the conscience” of the court, you have a valid defense to the foreclosure action. We can review when your mortgage was signed and the circumstances surrounding it to determine whether there are unconscionable terms in your loan agreement.
  • Insufficient documentation. As soon as your lender begins threatening a foreclosure lawsuit, you should request that your lender proves it owns the mortgage. Most mortgages are assigned numerous times and it is common for errors to occur in the documentation. You have a valid defense if the plaintiff seeking to foreclose your home does not have the proper paperwork to support the action.
  • Active military. There are special protections afforded to active duty service-members. For example, The Service Members Relief Act (SCRA) allows military personnel a nine month postponement if the foreclosure lawsuit is initiated while they are on active duty.
  • Unfair lending practices. If your mortgage lender violated the law in extending your loan to you, it is a valid defense to a foreclosure lawsuit.
  • Procedural requirements. You may be able to defend a foreclosure suit if the lender failed to follow certain procedural requirements.
  • Personal bankruptcy. When you file a bankruptcy, all collection efforts against you (including the foreclosure) must come to a stop. This may only provide temporary relief, but it will give you time to understand all of your available options, as well as negotiate with your lender.

Don’t assume you cannot defend a foreclosure lawsuit! Let us review your individual circumstances and help you understand what defenses are available to you. Contact the skilled attorneys at Faro & Crowder to schedule a free consultation.


SpaceX Faces Allegations of Violating Labor Laws

defenses pic

SpaceX is facing a lawsuit by two former employees alleging it violated labor laws when the company terminated them and others. The rocket manufacturer is accused of “mass layoffs” that included 200 to 400 employees without providing the 60-day notice as required by state law. The plaintiffs are seeking damages that include back-pay plus interest, in addition to seeking to have the lawsuit certified as a class action.

A California employer with at least 75 employees that intends to lay-off 50 or more workers must provide 60 days’ notice. Failure to provide the notice results in the company’s liability to pay up to 60 days’ compensation and benefits. The law also provides for civil penalties up to $500 a day if the company also fails to notify the government officials of the layoff.

In the SpaceX lawsuit the primary issue will be whether the terminations meet the criteria of a lay-off. California law defines it as “a separation from a position for lack of funds or lack of work.”

SpaceX is claiming the employees were fired because they were “low performers.” The company has stated the terminations were not related to a lack of work funds, but were the result of an annual review of the individuals’ performance. Plaintiffs allege that the lay-off was a tactic used by the company to avoid paying 60 days’ worth of pay and benefits to the terminated employees.

SpaceX is reportedly expecting to hire more employees than it terminates this year. In fact, some reports show that the company’s website has nearly 400 job openings posted on it.

The plaintiffs allege that they were never given warnings or consultations regarding their performance prior to their termination. Their lawsuit also contains allegations that SpaceX’s failure to provide the required notice and 60 days’ of compensation constitutes unfair competition.

If you have questions regarding the topics discussed above or you would like to learn more about the legal services we provide, call us to schedule a free consultation.

Contact a Brevard County Bankruptcy Attorney at Faro & Crowder, PA

If you are interested in learning more about how a bankruptcy filing will impact your debt, contact Faro Crowder, PA to schedule an appointment. We are located in Melbourne, Florida on Sarno Road and serve residents and businesses of the Space Coast and Brevard County.

Services Areas

We provide services throughout Central Florida including: Melbourne, Titusville, Palm Bay, Merritt Island, Cocoa, Cocoa Beach, Satellite Beach, West Melbourne, Cape Canaveral, Viera and Eau Gallie.

Get In Touch with Faro & Crowder, PA

Faro & Crowder, PA
Phone: 321-784-8158
Address:
1801 N. Sarno Road, Suite 01
Melbourne, FL 32935
Email: info@farolaw.com

The information on this blog or any blog is not intended as, and should not be taken as, legal advice.

Facing a Lawsuit? Bankruptcy May be the Answer

When hard times hit and you are unable to pay your bills, it doesn’t take long for creditors to start pursuing you for payment. After a few demand letters and telephone calls, many creditors file collection lawsuits. We understand that this can feel overwhelming and we want to help. Depending on your individual financial situation, filing a personal bankruptcy case may the answer to getting the debt relief you need.

How does filing Chapter 7 or Chapter 13 help? As soon as your bankruptcy petition is filed, the automatic stay goes into effect. The stay prohibits any further collection activity against you, including collection lawsuits. In other words, creditors cannot file collection lawsuits against you and cases that are already filed must come to a halt while your bankruptcy is pending.

If the lawsuit filed against you is an action to obtain a monetary judgment, it will be put on-hold. If there are other causes of action that are not related to the creditor obtaining a monetary judgment, they may be allowed to proceed. Common examples of lawsuits that can proceed while your bankruptcy case is pending include criminal matters and child custody suits. In a collection matter, however, you may be able to eliminate or discharge the debt involved in the lawsuit, which means when you emerge from your bankruptcy case, the lawsuit will no longer be pending against you and you do not have to repay the debt. Your personal liability to pay discharged debts is eliminated in a successful Chapter 7 or Chapter 13 filing.

A personal bankruptcy can also be an effective way to comprehensively deal with your debt. ALL of your creditors must be included in your filing, so when you obtain your discharge order, it is truly a fresh financial start.

If you have one or more lawsuits filed against you and you are wondering how filing for bankruptcy protection could benefit you, contact the attorneys at Faro & Crowder, PA, for a free initial consultation. Our office is located in Melbourne, Florida.


Will SpaceX Lawsuit be Dismissed?

SpaceX filed a complaint with the Court of Federal Claims earlier this year challenging the Air Force’s Evolved Expendable Launch Vehicle contract on the basis that it violates fair competition and federal sanction laws due to the sole-source multi-rocket provisions of the contract. The Air Force is seeking to have the court dismiss the lawsuit, claiming that SpaceX was not an actual or prospective bidder on the contract, so SpaceX does not have standing to challenge it. Also, the Air Force has pointed out that SpaceX failed to object to a public request for a proposal issued in March of 2012 for that purchase. The contract was awarded by the Air Force to United Launch Alliance (ULA), which is a joint venture between The Boeing Co. and Lockheed Martin Corp.

United Launch Services, a subsidiary of ULA, was awarded the $11 billion contract the end of last year. The contract provides for the acquisition of nearly 36 rocket bodies required to build boosters for a range of military devices, including navigation beacons, spy satellites and communications relay stations.

SpaceX believes its Falcon 9 v1.1 rocket should be considered by the military for the same purposes, but the sole-source contract unfairly restricts competition. SpaceX alleges national security launches should be awarded under a competitive basis. The Falcon 9 v1.1 was not certified to carry military payloads at the time the contract was awarded to ULA. To be certified, the rocket must complete three successful flights in a row and pass a detailed engineering and business review. The Falcon 9 v1.1 was still in the certification process at the time contract bidding was taking place.

The Air Force is seeking to have the SpaceX lawsuit dismissed because it knew about the sole-source contract and failed to object or to indicate that it intended to compete for the contract. In other words, by failing to act when the government requested prospective bidders to describe their space-launch capabilities, the Air Force claims SpaceX waived its ability to object to the award of the contract now.

If you have any questions about the SpaceX lawsuit or how Faro & Crowder, PA can assist you, contact us for a free consultation.


Contact Us For A Free Consultation







css.php