11 301 Answer w Exhs

IN THE COUNTY COURTIN AND FOR HIGHLANDS COUNTY, FLORIDA

25 APRIL 2012

CAPITAL 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 to

Plaintiff so that Plaintiff will have advance notice of Junior's (not JAM's) “defenses,” and

without asking for any affirmative relief, Junior ANSWERS as follows:

1. Junior denies all the allegations of the 1-page Claim (See Exhibit A attached.) which

fails 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.

DEFENSES

DEFENSE 1:

3. Failure to Attach Cause of Action . Plaintiff's Statement of Claim (“Claim”) mentions

an “agreement,” but fails to either state the terms of said agreement or to attach a copy to the

Claim. 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 filed with the court. [Emphasis added.]

(This paper is NOT confidential.)

4. Without an attached “cause of action,” the Claim should be dismissed for failure to

follow 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 implied

agreements 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 sale has been made between the parties and signed by the party against whom enforcement is sought....”;

2) F.S. 687.0304 (2) “CREDIT AGREEMENTS TO BE IN WRITING.—A debtor may not maintain an action on a credit agreement unless the agreement is in writing, expresses consideration, sets forth the relevant terms and conditions, and is signed by the creditor and the debtor.” and

3) 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." University

Creek 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. 4th 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 to

each person who signed the application for the account...." However, said Agreement fails to

contain any of the following: JAM's name; Junior's name; JAM's signature; Junior's signature; an

interest 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 to

locate 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 not

allege the terms of any contract and unwritten contracts for credit are not enforceable in Florida

courts. 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 three

years." A purported "Customer Agreement" is attached to Plaintiff's "Notice of Filing

Documents" 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 AN ACCOUNT AND ISSUE YOU A CREDIT CARD FROM OUR OFFICES IN VIRGINIA. 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 the Commonwealth of Virginia without giving effect to any choice of law rule that would 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 in Virginia. It will be governed only by Federal law and Virginia law (to the extent not preempted by Federal law).

12. Because the Claim contains no written agreement signed by the parties, the only possible

contract 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 One

Bank, on the issue of Virginia's three-year statute of limitations on oral contracts. See "Summary

Judgment 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 last

charge and the last payment (at page 81, see Exhibit B attached) were both made on 16

September 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 not

accrue within the time prescribed by law for them before this action was brought." Thus, the

Claim is barred by Virginia's three-year statute of limitations on unwritten contracts.


DEFENSE 3:

17. Florida's 4-Year Statute of Limitations on Unwritten Contracts . A purported

"Customer Agreement" is attached to Plaintiff's "Notice of Filing Documents" served 27 January

2012 and filed 6 February 2012. Said agreement is not sufficient to be enforceable.

18. Said agreement fails to contain the following necessary elements: either JAM's or

Junior's name; either JAM's or Junior's signature; an interest rate; a credit limit, a date of

repayment; and the duration of agreement. Without these elements, there is no written agreement

under Florida law. Because the Claim contains no written agreement signed by the parties, the

only possible contract available to Plaintiff is one "not founded on a written instrument," and

such contracts have a four-year statute of limitations under Florida law.

19. Florida Statute 95.11(3) WITHIN FOUR YEARS ... (k): "A legal or equitable action

on a contract, obligation, or liability not founded on a written instrument, including an action for

the sale and delivery of goods, wares, and merchandise, and on store accounts."

20. According to a statement submitted by Plaintiff in its "Notice of Confidential Informa-

tion within Court Filing" served 26 October 2011 and filed 7 November 2011, the last charge

and the last payment (at page 81, see Exhibit B) were both made on 16 September 2006.

21. The Claim was filed on 23 August 2011, more than four (4) years and eleven (11)

months after 16 September 2006.

22. 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 not

accrue within the time prescribed by law for them before this action was brought." Thus, the

Claim is barred by Florida's four-year statute of limitations on unwritten contracts.

DEFENSE 4:

23. No Standing to Sue . Upon information and belief: Plaintiff is not the real party in

interest and does not claim to represent such party. Plaintiff is alleged to be a non-resident entity,

from some state other than Florida, whose corporate name is "Capital One Bank (USA), N.A."

According to statements submitted by Plaintiff in its "Notice of Confidential Information within

Court Filing" served 26 October 2011 and filed 7 November 2011 (at pages 6 and 81), the

original creditor appears to be "Capital One Bank" in Dallas, Texas. The Claim says Plaintiff is

the "owner of a credit card account," but fails show that Plaintiff is the original creditor, and it

makes no allegations as to how or when Plaintiff became the owner of the alleged debt. Until


Plaintiff shows how it obtained the alleged debt, it has no standing to sue. If Plaintiff obtained

the alleged debt after it was in default, Plaintiff is not damaged and still has no standing to sue.

24. Further, it is a common practice for credit-card issuers to securitize their consumer

credit-card receivables accounts. For the purpose of transferring ownership of its credit card

"Principal Receivables" and "Finance Charge Receivables" ("Receivables") in a "securitizing"

process, Plaintiff has created two "trusts" or "special purpose entities": "Capital One Master

Trust" ("COMT"); and "Capital One Multi-asset Execution Trust" ("COMET"). See a copy of

certain pages of the Capital One Prospectus dated June 5, 2009 attached as Exhibit E.

25. According to papers published by Plaintiff, Plaintiff is the sponsor of COMET (the

issuing entity) and the servicer of the assets included in COMT (the Master Trust). Plaintiff

sponsors the securitization of the Receivables by selling the Receivables to the Transferor.

26. Capital One Funding, LLC as "Transferor" purchases, holds, owns and transfers credit

card receivables from Plaintiff to COMT and transfers COMT collateral certificates to COMET.

27. Pursuant to a "receivables purchase agreement" between Plaintiff and Transferor,

Plaintiff "sold all of its right, title and interest in the receivables ... including ... all monies due or

to become due, all amounts received or receivable, all collections and all proceeds, each as it

relates to such receivables."

28. Pursuant to the "pooling agreement," those Receivables are "then transferred

immediately by the transferor" to COMT, "and the transferor has assigned to the master trust its

rights under the receivables purchase agreement."

29. Credit card accountholders whose billing addresses are in Florida make up the second

largest group of "Receivables Outstanding," even more than New York.

30. By its own publication, Plaintiff does not own any credit card accounts. Plaintiff, as

servicer, merely collects money for the trusts. Plaintiff does not disclose this securitization

process to its potential accountholders and the Claim does not disclose that Plaintiff's ownership

of the receivables has been sold and transferred to others.

31. Not only has Plaintiff's alleged debt been paid off, Plaintiff receives a servicing fee for

its collection efforts performed on behalf of the trusts.

32. Plaintiff does not allege that it is suing on behalf of someone else and Plaintiff's

allegation of ownership of the alleged credit card account appears to be false and contradicted by

its own court filings, thus the Claim should be dismissed with prejudice.


DEFENSE 5:

33. Court Failed to Set a Trial Date . Small Claims Rule 7.090(a) says in pertinent part:

These rules shall be construed to implement the simple, speedy and inexpensive trial of actions at law in county courts.

34. Small Claims Rule 7.090(d) says in pertinent part: “The court shall set the case for trial

not more than 60 days from the date of the pretrial conference.”

35. Small Claims Rule 7.140(a) says in pertinent part: “The trial date shall be set by the

court at the pretrial conference.”

36. The Claim was filed on 23 August 2011. The pretrial conference was held 42 days later

on 4 October 2011. The record shows no stipulation—nor any agreement—as to any longer

time, and the Court did not set a trial date at the pretrial conference. The sixty-day deadline for

the trial date was 2 December 2011.1 Plaintiff, to date, has not requested a trial date. Neither the

Court nor the Plaintiff has shown that the Court has any jurisdiction to set a trial date after the

mandatory 60-day limit.

37. It appears the Court has no jurisdiction to hear this case without violating JAM's and

Junior's due-process rights to a simple, speedy and inexpensive trial pursuant to the Small Claims

Rules. Thus, the Claim should be dismissed.

DEFENSE 6:

38. Non-Joinder of Party . The Claim does not name Junior as a defendant and the Claim

does not allege any "aliases" for JAM. Junior is not the named-defendant and the Court has

issued no finding-of-fact showing that Junior and the named-defendant are the same person. The

Court has issued no conclusion of law showing that the Court has jurisdiction over Junior.

39. It is baffling to Junior that neither the Court nor the Plaintiff have wanted to amend the

Claim to sue Junior under his full legal name. It is not clear, at this time, whether the Court has

any personal jurisdiction over Junior, so, as a precaution, Junior is filing this Answer both as a

courtesy to Plaintiff and as a precaution to avoid losing any rights, privileges, immunities or

defenses he may be entitled to evoke. It is hoped that this Answer will stop Plaintiff's harassment

and its malicious attempts to collect an alleged consumer debt that is, among other things, past

the statute of limitations in two states, Virginia and Florida.

40. To date, the Court has not ordered Junior to do anything.

1 59 days after the pretrial conference, because the 60th day was 3 December 2011, a Saturday.


41. Because of the similarity of the names, a judgment for Plaintiff in this action will, likely,

result in continuing malicious attempts from Plaintiff to collect money from Junior for consumer

debts alleged not against Junior, but against JAM.

42. The Claim says that JAM "did not dispute" the alleged debt. However, Plaintiff filed a

"Notice of Confidential Information within Court Filing of Verification..." which contains a copy

of Junior's "REQUEST FOR VERIFICATION" dated 7 April 2011 which, says: "I [Junior]

dispute the entire amount of this alleged debt." See copy attached as Exhibit C.

43. Because the Plaintiff has refused to amend its Claim to name Junior as a defendant,

because the service of process is defective and because the Court has not ordered Junior to be

named as a defendant, the Court should acknowledge that Junior has no liability in this matter.

DEFENSE 7:

44. Failure to File a Valid Nonresident Bond. Plaintiff's address is not correct on the

Claim. The address listed in the caption of the Claim is the same as the address listed for

Plaintiff's attorney of record, Andrew D. Fleisher, at the bottom of the Claim. This appears to be

another false and misleading statement in an attempt to collect a consumer debt.

45. Plaintiff is a nonresident entity that has failed to file the bond required by Florida

Statute 57.011 even after notice was given pursuant to said statute. The statute demands the

filing of a “bond” by a principal and a surety, not the depositing of “cash” by an attorney.

46. Plaintiff's "Notice of Filing Nonresident Cost Cash Bond Pursuant to Florida Statute

57.011" (See Exhibit D attached.) is not signed by Plaintiff as principal and is not signed by a

surety, thus it fails to meet the requirements of a bond, it fails to satisfy F.S. 57.011, and it is, as

titled, merely a “Notice.” The Notice says Plaintiff's “Counsel has hereby deposited … $100.00”

with the “Clerk of Court.” The Notice does not “bind” anyone and it does not say under what

conditions the money is to be dispersed.

47. Plaintiff's counsel, Stanley Erskine, filed a court record2 which falsely states that he

“filed a Cost Bond.” The record shows no “cost bond” in this case.

48. This case should have, already, been dismissed with prejudice. See Trawick, Fla. Prac.

and Proc., § 1.11 (2010 ed.) p. 13.

49. Stanley Erskine filed the "Notice of Filing Nonresident Cost Cash Bond Pursuant to

Florida Statute 57.011" and signed it as counsel for Plaintiff. This Notice is false and misleading

2 See Plaintiff's “Reply to the Defendant's Motion to Dimiss (sic) for Failure to File a Non Resident Bond,” served on 3 November 2011 and filed on 7 November 2011, at paragraph 4.


in that it purports to give public “notice,” by an officer of the court, that a “bond” has been filed,

when—in fact—the record shows no bond has been filed.

50. It appears that Mr. Erskine, as agent, and Plaintiff, as principal, have both committed a

felony violation of Florida Statute § 831.01 et seq. for uttering a false public record (a

purported “notice” that a non-existent “bond” was filed) as a tool to defraud Defendant. Without

a valid bond, the Claim should be dismissed with prejudice. Whether or not Plaintiff has actual

knowledge about Mr. Erskine's unethical actions, the Plaintiff—as the disclosed principal—is

liable for the actions of its agent—Mr. Erskine.

DEFENSE 8.

51. No Written Contract per TILA . Contrary to Plaintiff's contentions, the mere use of a

credit card, while it may well indicate that some sort of understanding existed between the

parties, is not sufficient to establish an enforceable agreement between the parties because

material terms such as the amount of interest payable on the account, the amount of the fees that

the credit card issuer may assess and the terms of repayment cannot be determined from the mere

use of the card.

52. The statements submitted by Plaintiff may be evidence of the interest rate that was

actually charged, but Plaintiff has not presented any alleged evidence of the rate that the parties

agreed should be charged. There is no written agreement signed by the parties. Absent proof of

the agreed-upon rates, a court should not award damages based upon failure to pay the rates

demanded in the monthly statements.

53. In paragraph 1 of the Statement of Claim, Plaintiff mentions "Federal Law," but does not

identify any specific federal law. I will mention specific federal law such as the one mentioned in

Plaintiff's "Notice of Filing Documents" on 6 February 2012 (over 75 days ago) with a purported

"Customer Agreement" attached. Said Agreement says in the first paragraph of page one:

54. "Truth in Lending Act" or "TILA." Then, on page two in the right column, it says:

Governing Law. WE MAKE THE DECISION TO GRANT CREDIT, OPEN AN ACCOUNT AND ISSUE YOU A CREDIT CARD FROM OUR OFFICES IN VIRGINIA. 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 the Commonwealth of Virginia without giving effect to any choice of law rule that would 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 in Virginia. It will be governed only by Federal law and Virginia law (to the extent not preempted by Federal law).


55. The federal Truth-in-Lending Act, beginning at 15 U.S.C. § 1601 imposes a

comprehensive scheme for the regulation of credit card accounts. These disclosure requirements

are virtually all-encompassing.

56. The precise content and format of the disclosures that must be made in connection with

every credit card application is dictated in great detail by § 1637 of the Act and the implementing

regulations found at 12 C.F.R. 225.5-225.16. The basic terms for which disclosure is required

include: the annual percentage rate applicable to the purchases, cash advances and balance

transfers made using the account, the manner in which variable rates are determined, the amounts

of annual fees or other fees for the issuance or availability of the card, the amounts of minimum

finance charges and transaction charges, the existence and duration of a grace period, if any, the

name of the balance calculation method, and the amounts of cash advance fees, late payment

fees, over-the-limit fees, and balance transfer fees. 12 C.F.R. 225.5a(b). The Act defines the

manner and timing of such disclosures regardless of the manner in which the credit card offer is

made, whether it is made by mail, by telephone, in a catalog, magazine or other publication, or

over the internet. 15 U.S.C. § 1637(c)(1)-(7).

57. Additional disclosures are required in monthly statements, 12 C.F.R. 226.7, when certain

terms of the account agreement are changed, 12 C.F.R. 226.9(c), and before the card renewal

date, 12 C.F.R. 226.9(e).

58. Because these disclosures are required to be in writing and integrated into the account-

opening process regardless of how the account is opened, the disclosed terms become the defacto

terms of the credit card agreement. Furthermore, § 1642 prohibits the gratuitous issuance of a

credit card. It permits a credit card to be issued only in response to an application or request. Any

such application or request is governed by the disclosure provisions of § 1637.

59. Accordingly, it is impossible to lawfully establish a credit card account without a

comprehensive written document setting forth virtually all of the material terms of the account.

60. Using an account-stated theory to imply an agreement to pay the interest and fees

provided for on a credit card issuer’s statements would relieve it from establishing the amount of

interest and fees that were disclosed under federal law and that were included in the terms of its

express agreement, potentially permitting it an unjustified windfall.

61. Although Plaintiff's "Claim" says JAM "did not dispute" the alleged debt, another

"Federal Law" says: "The failure of a consumer to dispute the validity of a debt under this


section may not be construed by any court as an admission of liability by the consumer."

FDCPA, 15 USC 1692g(c). However, Junior did dispute the debt. See Exhibit C attached.

62. The Claim should be dismissed for failure to state a cause of action.

DEFENSE 9:

63. Violations of FDCPA . Plaintiff and its attorneys are violating the federal Fair Debt

Collections Practices Act (15 U.S.C. §§ 1692-1692p) and have been violating the FDCPA since

8 March 2011 when Erskine & Fleisher dated a dunning letter on behalf of Plaintiff addressed to

"JAMES A. MOTIL" which erroneously stated: "If , within thirty days after your receipt of this

notice, you notify us in writing that the debt or any portion thereof is disputed, we will obtain a

verification of the debt ... and we will mail to you a copy of such verification...." See Exhibit F

attached.

64. A notice of dispute does not have to be made "in writing" as expressed by the dunning

letter. Junior sent a letter disputing the alleged debt, but Plaintiff never "verified" said debt.

65. Junior demanded that Plaintiff not contact him by telephone. Now, Junior is demanding

that Plaintiff stop all communication with him according to the Act until Plaintiff verifies said

debt. The alleged debt is time-barred by two states.

66. Junior is NOT seeking any affirmative relief by this Defense 9. Junior is only giving

notice that Plaintiff and its attorneys are violating the Act by their continuing malicious

prosecution of this Claim.

WHEREFORE, non-named Defendant-in-Error, James Angelo Motil, Junior moves the Court: to deny Plaintiff's Claim with prejudice; for Junior's taxable costs, for findings of fact and conclusions of law, and for such other non-affirmative relief as the Court deems appropriate.

RESPECTFULLY SUBMITTED by: JAMES A. MOTIL, JR., Defendant-IN-ERROR

________________________________113 S DELANEY AVE, AVON PARK FL 33825-3930 - Telephone: (863) 443-1061

CERTIFICATE OF SERVICE

I, James A. Motil, Jr., certify that a copy of the foregoing document was mailed to the person listed below on the 25th day of April 2012: ANDREW D FLEISHER, ERSKINE & FLEISHER, 55 WESTON RD - STE 300, FORT LAUDERDALE FL 33326-1170, Telephone: (954) 384-1490, FAX: (954) 384-4088Certified by: JAMES A. MOTIL, JR. ___________________________________

113 S DELANEY AVE, AVON PARK FL 33825-3930, Telephone: (863) 443-1061
