Debt Defense in Florida

Written by: Nicole M. Garcia, Esq.

It is highly likely that if at any point you have borrowed money from a creditor and defaulted,  the creditor will file an action in the proper state court. These types of matters are either filed by the creditor or by the assignee. A creditor is usually the entity or bank that lent you the money. An assignee is typically an entity that bought the debt from the creditor. Depending on the amount in controversy, they can be filed:

  • Small Claims Court: which has jurisdiction of matters in which the amount in controversy is $8,000.00 (effective as of January 1, 2020).
    • Matters filed in Small Claims court are governed by the Florida Small Claims Rules of Procedure, Florida Evidence Code, and Florida Rules of Judicial Administration.
    • The Defendant (i.e., borrower) can expect to receive a Notice to Appear (i.e., a notice of the pretrial conference court hearing) and a copy of the Statement of Claims (i.e., the demand). 
    • It is REQUIRED in Florida that the Defendant appears at the Pre-Trial hearing. If the Defendant fails to appear, a Default may be entered against them. 
    • A Pre-trial conference is NOT a Trial. 
    • It is an opportunity for the parties to mediate/negotiate the debt and/or state to the court any defense(s) they may have. Typically, if the parties do not reach an agreement the court will set the matter for Trial. 
    • Although you can appear “pro se” and are not required to retain legal counsel, it is highly advised to retain legal counsel to defend you in these matters. An attorney has knowledge and experience in these types of matters and can possibly negotiate the debt due to their experience and knowledge. The time period between the pre-trial conference and trial is the best window of opportunity in an attempt to negotiate with the lender/assignee (i.e., plaintiff) 
  • County Court: which has jurisdiction of matters in which the amount in controversy is $30,000.00 (effective as of January 1, 2020) or less, exclusive of costs, interest, and attorney’s fees. The jurisdictional threshold is set to change to $50,000 or less, exclusive of costs, interest, and attorney’s fees effective on January 1, 2023.
    • Matters filed in Circuit Court are governed by the Florida Rules of Civil Procedure, Florida Evidence Code, and Florida Rules of Judicial Administration.
    • The Defendant (i.e., borrower) can expect to be served by a process server with a copy of the Summons and Complaint. 
    • Once the Defendant is served with the Summons and Complaint the Defendant has 20 days to file a response to the Complaint. 
    • There is no requirement to appear in court unless a hearing as been scheduled and noticed has been served.

If you are currently struggling to make your loan or credit card payments or have fallen behind, it is important to consult an experienced attorney to learn how you can protect your credit and your assets. There are several things you can do to avoid a default or final judgment, especially if you act as soon as possible. For more information on the debt collections defense, contact The Law Office of Ray Garcia, P.A. at 305-227-4030 or legal@raygarcialaw.com, anytime.