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KentWA

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Everything posted by KentWA

  1. Sadly there are no cases that appealed on the security bond issue. It makes sense as the Bond is $300 and it would cost way more than that to appeal. Also under the rules they would have to pay the bond before they could appeal. Make sure you argue as strongly as you can about the costs you will incur from the case. Most of these lawyers jump on the fact you are Pro Se and do not get attorney fees, so no bond should be issued. You may want to address that up front by stating you are not eligible for attorney fees, however the rule does not address attorney fees. Rather the rule speaks only to costs which would be the same regardless of the status of representation.
  2. Racecar is 100% correct. Right now their goose is cooked, it has been more than the 5 days they get for service by mail. However you do not want to jump too fast as they can try to claim minor error and get the judge to go along with them. Do not call this to their attention. Read this case as it is very good, a Pro Se almost cooked his own goose by failing to follow procedure but managed to pull it out in the end. http://www.leagle.com/decision/In%20UTCO%2020130411D57
  3. I would submit an objection just to make them work for it and try to get the ruling thrown out. They have had plenty of opportunity to respond at the 15 month mark. It is their fault, not yours that they can not keep a lawyer on retainer.
  4. Congrats. If I remember right you used my arguments from the State Law Forum. If so it is possible they do not want a ruling on the record where you argued the law. These guys have been running rough shod over consumers for a couple of years with the 6 year argument with no meaningful push back. When they get push back and know they will lose they are going to cave rather than have a ruling on the merits of the arguments that could be used by the next Pro Se. Please do add you MTD to the State Law Forum thread I started so we can get SOL stuff all together. Utah consumers already have enough trouble finding info.
  5. If you have not sent this yet you may want to add something like "Through Plaintiff's Motion, Plaintiff has admitted it has no evidence that tie's alleged account to defendant. Plaintiff wishes to engage in a fishing expedition and should be barred from doing so." Also if you do not have them, then tell the court you do not and Plaintiff should be required to obtain them through other sources. Finally as an alternative request a protective order barring access to anyone other than counsel access to said records.
  6. Yep, new lawyer so it is time to give them an education and bury them in paperwork. By the way, have they pulled their motion over the Depo issues? If not then I would send them a meet and confer that if they do not pull it in a timely manner (like next 30 minutes) then you will motion for sanctions for wasting judicial resources and harassing Pro Se defendant.
  7. I think I missed something along the way here? Did you say you never received anything about their motion for an enlargement of time? If so it is time to hit them over the head and motion for a protective order requiring them to properly serve you. They do not like to have those types of motions show up on the docket. Then object to their motion in that plaintiff has had ample time to conduct discovery, in the alternative any enlargement should apply to plaintiff and defendant equally.
  8. I would go with something like: "Defendant has no recollection of this alleged account. Defendant lacks information or knowledge to reasonably admit or deny this request, and therefore must deny". Simple and to the point without getting wordy and giving them something to hang their hat on. I would look for more that you can use in an amended answer. Possibly a counter claim, etc.
  9. I am not really sure what they are asking for, almost sound like they do not either. A motion for enlargement of time to serve makes no sense since you have been served. A Request to Submit on a case they are still trying to serve also makes no sense.
  10. It sounds like you need to get to the court house and look at the file and ask the clerk why you are not receiving notices.
  11. It is very rare that a collection agency would go so far as claiming a felony anymore due the huge fines that can and are be levied by the FTC. The most common thing on a call like this is a scammer or possibly an ID Theif. Record it if you can just to be sure so you have evidence.
  12. Do not fight the service although it would not comply with the rules. I would open your answer with a statement to the effect "Person answering the complaint is not the proper person identified in the complaint, however is the person that was served." That puts plaintiff on notice that they may have misidentified you and brings up the issue of them suing the wrong party. Here is a link to the info provided by the courts about answering and includes the forms you will need. http://www.utcourts.gov/howto/answer/ EDIT: Also use wrong party as an affirmative defense.
  13. M&C is informal communication between the parties and it should only be brought to the attention of the court when there is a dispute where one party has to file a motion and needs proof they have already tried to resolve the issue informally. A contract does not need to be included with the complaint. However since it now becomes an integral part of their case, they must produce it in initial disclosures.
  14. I would not say in your M&C letter or anything else that FIA is a wholly owned subsidiary of BOA. You do not want them using your own words to prove any point. Make them prove everything. Just tell them you see nothing for transfer from BOA to FIA. On the UCC or Uniform Commercial Code see http://le.utah.gov/UtahCode/chapter.jsp?code=70A. It is a major pain to read, but you can find some gems in there, especially when you read about Instruments.
  15. It looks like when they filed for Entry of Judgement they submitted Declarations to support their Attorney Fee request. Since the Entry of Judgement has been denied, the rest is moot.
  16. This can give you an idea of what a meet and confer looks like. Beware this is a sample from California and not related in any way. You are going to have to pull it together for your exact circumstances. http://www.scribd.com/doc/77428536/Sample-Meet-and-Confer-Letter-for-California "Objection letter"? Your meet and confer is notice to opposing counsel about your objections. Or do you mean how you formally object? That would be through a motion to strike or motion in limine, which you would go that route if they did not satisfactorily respond to a meet and confer.
  17. I would not include cost figures as it only gives them something to argue about. Here is the list of items you can recover costs for: ( a ) Filing fees( b ) Constable's service of complaint( c ) Jury fee( d ) Deposition transcript ( e ) Constable's service of subpoena( f ) Witness fee & mileage( g ) Copy costs for trial exhibits I would argue that regardless of being a Pro Se you will incur those items of witness fee & mileage as well as Copy Costs for Trial Exhibits. Also it does not matter under the rule what the amount of your possible costs might be, the legislature has set a figure of $300 in bond. That if Plaintiff were to prevail they would not be out any money what so ever as the bond would be returned to them.
  18. How late are these disclosures? Typically it would be through a meet and confer letter, which is an informal letter to opposing counsel identifying the issues and giving them 10 days to correct the deficiencies. Pick each point apart one by one in your letter. "I received your supplemental disclosures on xx/xx/2013, dated xx/xx/2013. As I am sure you are aware Rule 26(a)( 2 ) requires you to disclose information of this nature within 14 days. The rules intent is to require you to have your case prepared before filing. Therefore materials of the nature you sent are not proper for supplemental disclosure 60 days after filing. You provided a bill of sale from JDB1 to JDB2 which references a "Account Purchase Agreement" which was not included. As I am sure you know Rule 106 requires the complete document or it is inadmissible. Please supplement the Bill of sale with all referenced agreements, exhibits, amendments, annexes, etc within 10 days. If you fail to do so I shall seek relief from the court. You provided a bill of sale from JDB2 to JDB3 which references a "Account Purchase Agreement" which was not included. As I am sure you know Rule 106 requires the complete document or it is inadmissible. Please supplement the Bill of sale with all referenced agreements, exhibits, amendments, annexes, etc within 10 days. If you fail to do so I shall seek relief from the court. The Affidavit of Joe Smith references the original owner of this account as CIT, however there is no evidence or authentication of the transfer from an entity known by that name. This makes all evidence of chain of title you have submitted inadmissible. Please supplement with admissible evidence within 10 days or I shall seek relief from the court. This gives you an idea of how to address them It is very quick and off the top of my head so you will want to refine it quite a bit. However you can see how I addressed each point separately.
  19. The JDBs attorney most like will try to argue that Pro Se's are not untitled to attorney fees and he would be right. The problem with his argument is that the rule says it is for Costs, and costs only. Your costs are likely to be the same whether you are a Pro Se or represented by a lawyer. Cost are for things like filing fees, copy costs, etc. When they go off on that tangent you just have to smile since they forgot to argue they real merit of the motion. In the reply then you can concede everything concerning attorney fees, and then tell the court the rule clearly only applies to costs and plaintiff did not argue against the validity of a bond for costs. I have never found any case law on this, as no one is likely to appeal over a $300 bond when there is a $300 appeal fee. The idea behind the statute when you read the legislative history is there is the concern that an out of state plaintiff will lose or non-suit and leave you hanging with part of the expenses of fighting the case. You know that no JDB is likely going to pony up $300 to pursue a case. However I would tell the court if Plaintiff is so sure of their case, as a huge company they should have no issue posting a $300 bond they believe they will get back should they win.
  20. Oh, your other option is to seek a waiver on the fees. You would have to look at the forms on the Utah Courts web site to determine if you think you qualify.
  21. Yes, you have to pay the counter claim fee, but good news it becomes reason to file a motion for cost bond. They did not cite any case law, so about the only thing I would cite is the statutory construction case law that debtzapper cited and pretty much my argument in the State Law Forum post. They are going very thin indeed. I would add that call them out right away with something like "Plaintiff characterizes Utah statutes, in that Utah does not in any way have a blanket statute of limitations of six years for all contractual agreements." Then Break it down with those arguments that the language of the statutes is very specific.
  22. As I pointed out in my post in the State Law forum they are attempting to very loosely read the statute in isolation as being based on written contract. However the tricky thing for them is the legislature choose to use the wording of Written Instrument and the definition of instrument in the UCC says a credit card agreement is not an instrument. Once you read over my post you will need to find some case law for things like statutory construction, etc. They will not be expecting this level of argument at all.
  23. For the SOL you will need to show how the information came to you after answering (i.e. their original complaint did not list date of last payment). Then point out to the court that through discovery you learned the suit was barred by the SOL and plaintiff hid the fact from you. That in answering you did not expect the plaintiff to file an SOL action and therefore had no reasonable expectation of using that defense.
  24. Excluding evidence is generally considered a sanction and the rules require meet and confer before you file to exclude. Rule 26 governing initial disclosures seems to be different, however that does not mean a judge will rule against you if you did not meet and confer. Quite often the JDB attorney's will tell you your request is irrelevant and that is a great place to be since the info can not then be used. In a family members case he asked for the Sales Agreement mentioned in the supposed BOS, they said it was irrelevant. The judge then told them at the motion in limine that if that was the case their BOS was irrelevant.
  25. They can request anything they want, in this case if your BOP is proper they are not going to get sanctions. There is recent case law on BOP that can help you. CALawyer posted it not too long ago.
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