tom234ut

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About tom234ut

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  1. Here's an update. I went with strategy #1 and did nothing. Until there is a "submit for decision" filed on their part, the judge will never see it. For reasons I won't get into now, I think they are incompetent enough to never ask. I'll just keep an eye out and see what happens. I think the longer they wait, the more of a case I would have to have a judgment set aside, if it came to that. And being out of SOL, I would be scot-free. Maybe there's a theory of "tolling the time" but that wouldn't give them much of a window to refile the motion correctly.
  2. I am glad I took a look at this thread. I googled and found the following: http://files.consumerfinance.gov/f/201509_cfpb_consent-order-encore-capital-group.pdf File No. 2015-CFPG-0022 In the Matter of: Encore Capital Group, Inc., Midland Funding, LLC, Midland Credit Management, Inc. and Asset Acceptance Capital Corp., This one might be different form the that OP is talking about (OP, if you would put a link or note the File No of what you are talking about it would be helpful.) Although on further checking, the paragraph numbers 86, 109 and 146 seem to line up. I am glad I looked into it, as I have a Judgment against me form Asset Acceptance that my attorney failed to respond to MSJ. I'll be looking at what I can do to get the Judgment set aside (probably the subject of another thread.)
  3. I am looking for the best way to proceed. I believe that my issue is slam dunk as the DB did not follow proper procedure to renew. DB got a Judgment 8 years ago and filed a motion to renew (just THREE days before expiration of 8 year SOL). I think I have found a major problem with their motion. The motion is two pages: first page is motion: "1. I request that the court renew the judgment in this case for the amount due on the date the new judgment is signed or the date the original judgment expired whichever is earlier. 2. I do not request a hearing. Signature" Page 2 is the certificate of service. According to statute and court rule they MUST include an accounting/original judgment order AND and affidavit. My question is on how to proceed. Here are the options I am thinking: 1) Do nothing. Court should simply deny this motion since it is insufficient. 2) After doing nothing if the court grants it, file a motion to vacate. 3) If that fails, then file an appeal. (I looked and there are no precedents about this statute) I am thinking that if I file a response opposing the motion, then they might respond with the affidavit and the court would allow the judgment. What are your thoughts on the best way to proceed? I would hope that this issue is a slam dunk and that the judge simply denies it right out. If the motion is denied then we are scot-free on this issue (it has been long enough waiting out the 8 years, they have not made any real attempts to collect, so this was a big surprise) In 2011 the Utah Legislator enacted the "Renewal of Judgment Act": 78B-6-1802. Renewal by motion. A court of record may renew a judgment issued by a court if: (1) a motion is filed within the original action; (2) the motion is filed before the statute of limitations on the original judgment expires; (3) the motion includes an affidavit that contains an accounting of the original judgment and all postjudgment payments, credits, and other adjustments which are provided for by law or are contained within the original judgment; (4) the facts in the supporting affidavit are determined by the court to be accurate and the affidavit affirms that notice was sent to the most current address known for the judgment debtor; (5) the time for responding to the motion has expired; and (6) the fee required by Subsection 78A-2-301(1)(l) has been paid to the clerk of the court. And there is Court Rule 58c to go with it: Rule 58C. Motion to renew judgment. (a) Motion. A judgment creditor may renew a judgment by filing a motion under Rule 7 in the original action before the statute of limitations on the original judgment expires. A copy of the judgment must be filed with the motion. (b) Affidavit. The motion must be supported by an affidavit: (b)(1) accounting for the original judgment and all post-judgment payments, credits, and other adjustments provided for by law or contained in the original judgment; and (b)(2) affirming that notice was sent to the most current address known for the judgment debtor, stating what efforts the creditor has made to determine whether it is the debtor’s correct address. (c) Effective date of renewed judgment. If the court grants the motion, the court will enter an order renewing the original judgment from the date of entry of the order or from the scheduled expiration date of the original judgment, whichever occurs first. The statute of limitations on the renewed judgment runs from the date the order is signed and entered.
  4. I am now home and will be putting together my next moves. The first question is should I start with a motion or discovery? Quote from the other thread I have open: (I am thinking to consolidate the discussion in this thread) Do I first do a motion (to dismiss or for summary judgement)? Or do I do discovery - documents, admission that they don't have statements, etc.? Some well thought interrogatories? (THEN do some kind of motion - i.e. motion to dismiss or motion for summary judgement?)
  5. One more thing, does just simply being the owner of a debt, i.e. being a JDB (but not actually doing any collecting activities) make them required to be a licensed collector?
  6. The choice of law question is good. I will make an Interrog on that. As far as the JDB being a licensed collection agency, I am not so sure on that. The JDB never contacted me directly. Attys are not required to be licensed CA. Unless I ma missing something here. The JDB is NOT licensed in UT. I could kind of attack that by asking for their CA license in discovery, but I am still thinking about that angle. I agree that really hitting them hard and throwing tough questions is a good way to wear them down. My experience is that these guys (collection attys in general) don't think much and don't make much effort. I like to see them squirm. At the same time I don't want to make stupid mistakes. I would like to show them up by having a higher level of professionalism. I think the courts will recognize that. Sorry my posts are short and brief (I am traveling right now).
  7. I am not sure the date is certain: From the complaint: 1. Plaintiff is a UT LLC... 2. Defendant is a resident... 3. XX bank and defendant entered into a contract by virtue of Defendant's application for credit... 4. Plaintiff purchased... 5. Defendant by siging credit app or using agreed to T & C of agreement 6. Defendant defaulted... 7. Last known balance was as follows: principal sum of $XX,XXX.XX. 8. As a result of the actions of the Defendant, Plantiff has been damaged in the principal sum of $XX,XXX.XX, together with interest accrued at the contractual rate of 10% from and after Dec XX, 2005. 9. Pursuant to Rule 73... Atty fees. Wherefore... Notice they don't specifically say last date of payment. (but that date was the last date of payment. Also, I did not file a counterclaim. (maybe I wimped out on the counterclaim. I just didn't want to bring too much attention to the SOL. Frankly, I would be happy with a dismissal) While I was "findable" at all times, I still think the SOL would be tolled while out of state (I found a UT case that actually had people counting days out of state) But, if they never bring that up then the out of state part would not come into play. Perhaps I could do an RFA that lists Dec 2005 as the start of SOL (we should probably discuss that in the other thread I have on discovery) I am sorry my responses are slow (and not very detailed) I am traveling during the holidays.
  8. Who is the lender? No harm in postng that here. I'm sure it's one of the usual suspects, that will help us advise you. The OC is Chase or Bank One. (Opened the account as Wachovia, later branded as First USA, merged/sold to Bank One, then merged/sold to Chase) It is not clear what the legal entity was at the time JDB bought it (because I don't know exactly when they bought it). I won't disclose the JDB's name publicly, because they are a small outfit in Utah that is owned by the attys in the case. (Googling their name comes up with virtually nothing). I would be happy to PM the name to legaleagle if desired. My responses may be a bit limited over the next few days since the HDD in the laptop I am using while traveling is dying (or may be completely dead). It wouldn't boot earlier today.
  9. Agreed that eventually they will correct the number (but if they never want to produce statements, maybe the correct number will never surface, meanwhile deny deny deny). I'll have to carefully look at my records on the account as far as choice of law etc. The only real defense is SOL. There isn't much case law in UT about SOL on credit cards. There are two limits 4 years for open ended accounts and 6 years for written contracts. They would have to show a written contract, which I don't think they could (since there is not a mutually executed contract to show) That could be an argument to have and maybe even appealed since there are no precedents. So strategy for discovery - ask for documents ONE time and let it be if there is nothing that makes there case. Ask for 1. Credit App 2. Contract 3. Statements 4. Bill of Sale or assignment of account 5. Generic request: what will be used at trial. Above I refer to establishing the amount (would that be better sought in a interrog?) Also, are there good RFA I could ask them?
  10. legaleagle, Thanks for the insight on what to ask for in RFPOD. Being that they will wear down and not likely produce documents will pretty much be end of story for them. I can deny all day long the account number they provided because it is the WRONG number! And if they never produce any statements, I can continue to deny, deny, deny. What could've happened? Perhaps my account was listed in their purchase but the account number was hand entered into a spreadsheet? If that is the case then there is NO PROOF that they own my account. I am sure as heck not going to show them the CORRECT number because then they might argue "Oh, we made a clerical error." That is why I don't want to concede on the SSN. I would rather leave it vague. Being also the balance is not quite right also throws considerable doubt that they even own my account. As far as signed application - I believe this one was setup online. I probably have a printout somewhere. (I don't have statements from the time the account was charged off since they were all electronic. I DO have screenshots of me making payments online, though.) So at this point, I am thinking about my discovery requests. (I plan on sending it by the 6th of January). BV80, I think I like your reasoning to deny. The fact that my "out" is that the account number is wrong gets them no where, and I can be perfectly truthful. Also, clearly denying based on lack of info seems good too. The only answers that are ambiguous in my response to their RFA are concerning them owning the debt. But as was suggested earlier, vigorously attacking their ownership and hence their standing, I think is a good strategy. I filed my responses just as I had them listed above, just before leaving town. I decided I didn't want and out of town postmark on the envelope. Plus, I just didn't want to have this hanging over my head during the holidays (It was due just before New Year's). One up side, is that since I answered their compound interrogatories, I can shove something like that right back at them. I think I can have a hey day asking for things they allege in their complaint and discovery requests that I KNOW don't exist. So EVEN if they go and get statements etc, they will look silly by not having the right information (I did have a case where the JDB did have statements in another case. While I didn't really win, they made further mistakes and really don't have a judgement. That is a story for another time.) I am in another state for the holidays and will be back at this full force after the new year. You guys are great and I appreciate all the help. I look forward to paying it forward when I get through all of this.
  11. legaleagle, Coltfan1972, Excellent information. Thanks very much for your replies.
  12. Comments in Red itallics 1. Produce Defendant's alleged application to XXX Bank XXX NA, dated Month, DD, YYYY in connection with account ***********XXXXX (Trying to get them to produce any sort of agreement. They allege agreement with XXXX but account was opened with YYYY and bought by XXXX. Also account number isn't correct - they list it with 8 astricsks and 5 numbers, the last of which is wrong.) 2. Produce alleged contract between Defendant and Bank One Delaware in connection with account ***********XXXXX (Same idea here, asking for proof of contract - a written contract is essential for them to argue under the 6 year SOL instead of 4 year SOL.) 3. Produce all contracts, agreements, assignments, bills or sale or other documentation establishing Plantiff's assignment and standing to bring suit in connection with account ***********XXXXX 4. Produce Itemized statements or other documentation that demonstrate how balance $1X,XXX.XX owed on account ****XXXX was calculated. (asking for proof of something I already know is incorrect. I want them to squirm. Two things wrong here - wrong account number and wrong balances) 5. Produce statements or other documentation of any payments by Defendant on account ***********XXXXX (If they get the account number straightened out then showing a payment would establish > 4 years ago and out of SOL for open ended accounts, which I honestly believe this fits under.) 6. Produce all documents you intend to introduce as evidence at the trial of this matter. (blanket catch all - just asking them to disclose what they are going to use in their case - basically throwing the same request for documents back at them.) I am not going after any kind FDCPA violations so I don't really care about correspondence from them. I am really just attacking the existence of the account, contract, balance and payment. If they produce some sort of affidavit, I will attack that. If they produce statements with the correct account number, then we can deal with those in subsequent discovery. Let me know if I am really missing anything in my strategy.
  13. I am a bit lost.... For RFA #11 do you have any ideas how I should respond? 11. Denied. But I don't have any statements with that wrong account number. So yes, as long as they have the incorrect account number, there is no way I can produce the documents. But asking for the documents from them in discovery: if they have statements, the real account number would surface and I could at least argue my 4 SOL defense. I think they would be hard pressed to come up with anything that could be argued as a "written contract" For Interrogatory #1, 1. Objection. Plaintiff is trying to circumvent the rules of civil procedure by attempting to force Defendant to elaborate on unqualified denials in the request for admissions. Does this take the place of all the individual responses to the items I denied? Then for 2 & 3 2. Defendant has no information responsive to the request at this time, but will supplement pursuant to the rules of civil procedure. 3. Defendant has no information responsive to the request at this time, but will supplement pursuant to the rules of civil procedure.
  14. So as you can see this "FIRST SET OF RFA, INTEROG, AND POD" will get them essentially nothing. I am not sure what their response will be. If they don't have any statements and simply do not have the right account number, then I guess it would be end of story for them as they couldn't prove anything. I could passively leave it at that. Would they come back with documents? (and correct the mistake? Are they smart enough to catch on?) The account went in default (during the transition of one bank name to another, although the account number did stay the same.) Ironically, I think on this account with the OCs, it was known by 4 different names because of all kinds of mergers and re-branding. That would certainly make it hard for them to have all the correct documentation. Should I play hardball and ask for documents? - specifically I could ask for statements, an accounting, a bill of sale (with specific terms in the requests like the balance they quoted, the name of the bank before the merger, as they have listed. The signed agreement (which I know CAN'T exist). With them not being able to provide the documentation, then it would be end of story for them? I.e. I denied, they have no proof and no case? While I have been involved in several cases, this is my first round of dealing with discovery. Thanks for your help.
  15. Case notes - some interesting twists on my case: -Utah has open account SOL of 4 years and written contract SOL of 6 years. Since this account was opened on the net in 2001, I think it would be very hard to argue that this is a written account, so I think I should be able to stand on my SOL affirmative defense. -They have the wrong account number listed in the discovery (the same wrong number is is the dunning letter they sent me, so I can deny, deny, deny, after all the account they are suing on is NOT mine) -The balance they listed is incorrect, it is probably the number when it was charged off but not on the dates they list. They don't have accurate info. Just a print out? -They say they bought it from XXX but XXX had merged with another bank and changed the name by the time they would have bought it. (it could be interesting to ask them for a bill of sale from XXX (the original before changed name OC) and them not be able to produce it. Proposed response (with my comments in parenthesis, in italic and red): <Standard Title Block> Defendant in this matter hereby submits the following response to First Set of Request for Admissions, Interrogatories, and Request for Production of Documents to Plaintiff, the same answered in accordance with Rules 33, 34 and 36 of the Utah Rules of Civil Procedure. RESPONSES TO REQUEST FOR ADMISSIONS 1. Denied. (Wrong account number! Automatically allows me to deny 1~5. And the plantiff will see it in the Interrogatory section) 2. Denied. 3. Denied. 4. Denied. 5. Denied. 6. The information known or readily obtainable by Defendant is insufficient to enable him to admit or deny this Request. (I can't know the answer to this since I don't have the agreement referred to) 7. The information known or readily obtainable by Defendant is insufficient to enable him to admit or deny this Request. (I am not privy to the business relationship between plantiff and OC) 8. Denied. 9. Denied. 10. Denied. 11. Admitted. 12. Denied. 13. Objection. Irrelevant, immaterial, and not likely to lead to the discovery of admissible evidence. (They do have my last 4 of SSN, but that should be immaterial. Can I object to a RFA? is this a good way to object?) 14. Denied. (The amount they claim is wrong. Of course, who knows without an accounting. I think at the time the account went into default, it was below this, but over time it certainly would have grown to bigger. Perhaps the number they have is the balance at time of charge off. Since they don't have it right, I would wonder if they don't have any of the statements of the account.) 15. Denied. 16. Denied. RESPONSES TO INTERROGATORIES (Formatting in this section is terrible because of the way they asked the questions!!!) 1. With regards to the foregoing Request for Admissions, factual basis for each denial, identification of people with knowledge relating to each denial and identification of documents relating to each denial: Request for admission No. 1: Defendant never had an account with XXX Bank XXX NA under the account number ***********XXXXX. The information known or readily obtainable by Defendant is insufficient to determine people or documents relating to said account. Request for admission No. 2: Defendant never used said account. The information known or readily obtainable by Defendant is insufficient to determine people or documents relating to said account. Request for admission No. 3: Bank One Delaware NA never provided to Defendant a cardmember agreement for said account. The information known or readily obtainable by Defendant is insufficient to determine people or documents relating to said account. Request for admission No. 4: Defendant never used said account. The information known or readily obtainable by Defendant is insufficient to determine people or documents relating to said account. Request for admission No. 5: Defendant never used said account and therefore owes no money on said account. The information known or readily obtainable by Defendant is insufficient to determine people or documents relating to said account. Request for admission No. 8: Defendant never made any payments on said account. The information known or readily obtainable by Defendant is insufficient to determine people or documents relating to said account. Request for admission No. 9: Defendant never made any payments on said account. The information known or readily obtainable by Defendant is insufficient to determine people or documents relating to said account. Request for admission No. 10: Defendant never received any statements on said account. The information known or readily obtainable by Defendant is insufficient to determine people or documents relating to said account. Request for admission No. 14: Defendant never used said account and is not liable to Plaintiff in the amount of $12,839.02. The information known or readily obtainable by Defendant is insufficient to determine people or documents relating to said account. Request for admission No. 15: Defendant never made an affirmation of this debt, either through payment or by another method. The information known or readily obtainable by Defendant is insufficient to determine people or documents relating to said account. Request for admission No. 16: Defendant never received a credit card in connection with said account. The information known or readily obtainable by Defendant is insufficient to determine people or documents relating to said account. 2. Defendant does not intend on calling any witnesses at the trial of this matter, but reserves the right to call witnesses as allowed by law. 3. Defendant does not intent on introducing any writing, check, note, memoranda or other document in the trial of this matter, but reserves the right to introduce documents as allowed by law. RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS 1. Defendant has not relied on any documents relating to the above discovery requests. 2. Defendant does not have any documents relating to this case, and cannot find any such document after a reasonable search, but reserves the right to introduce documents at the trial of this matter as allowed by law. DATED and Signed this 21st day of December, 2011. ___________________, Pro se Me, Defendant Feedback on these responses is greatly appreciated. Questions on strategy in next post.