Bob Fletcher

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Everything posted by Bob Fletcher

  1. If I am reading the rules correctly, after the Judge makes a decision, He will tell the Party to prepare the order as per His/Her instructions?
  2. Second question I am trying to get my head around. When the Rules say: "Request to Submit for Decision with proposed order", is the proposed order a separate Document?
  3. Update on motion for Security Deposit. Filed Motion on March 13th and have not heard back from Plaintiff. It has been 14 days, so will file my Request for Decision. Will post the decision when I get it. How long does it typically take for the Judge to review the file and grant a decision?
  4. SQL - Keep scrolling down on Rule 26, for actions $50,000 or less you are limited to 5 Requests for Admissions and 5 Request for Production of Documents, Rule 34 and zero Interrogatories, Rule 33. Make sure you are looking at the Correct Rule 36, not the one superseded, 11/01/2011
  5. Below is a draft of my memorandon for MTD in Utah, based upon Delaware's SOL. I utilized Starduster's and Thaiboxgirls posts for great assistance! (thanks) I stirred up JM with my motion for Security Deposit, (it's been 12 days since they were served and I have yet to receive an opposition to my Motion), They have now sent out subpoenas trying to get record of payments to Chase. So....I thought I should take an aggressive stance and file the MTD. I do not have any Utah law in the Motion. Do you think it will be a problem? If so, I will work on digging some up. Thanks in advance!! William A. Mark (9602) Johnson Mark LLC Attorneys for Plaintiff P.O. Box 7811 Sandy, UT 84091 THIRD JUDICIAL DISTRICT COURT, STATE OF UTAH SUMMIT COUNTY, PARK CITY DEPARTMENT MIDLAND FUNDING LLC, Plaintiff, Vs. Gonna Win, Defendant ) ) ) ) ) ) ) ) ) ) Case No.: xxxxxxxxxxxxxxx Judge: Todd Shaughnessy MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS INTRODUCTION Plaintiff Midland Funding LLC is in the practice of buying “junk debts” and through it's lawsuit claims that it is the assignee of Chase Bank USA, N.A., and as is such, Plaintiff has adopted all legal rights and remedies as outlined in Chase Bank's Cardmember agreement. STATEMENT OF FACTS 1. Plaintiff, Midland Funding LLC filed its complaint on or around June 1, 2012. 2. Defendant filed his answer with the court on June 19th, 2012. 3. On August 2nd, 2012, Defendant had not received Initial Disclosures as required by U.R.C.P. Rule 26 (a)(2)(A), and sent a certified letter return receipt requested, to Plaintiff’s Attorneys asking since there had been no communication, had the complaint been dropped. 4. On or around November 8th, 2012, Defendant received a Minute Entry from the court answering Plaintiff’s request for Summary Judgment. Judge Shaughnessy advised the Plaintiff all Discovery Papers mailed by the Plaintiff had been mailed to an address differing from the Defendant’s “Pro Se Notice of Appearance” and on the “Answer, Affirmative Defenses” filed by the Defendant. Judge Shaughnessy advised the Plaintiff may correct this deficiency and give the Defendant a chance to respond. Absent the filing of a notice to submit, it was ordered no further action would be taken. 5. On or around November 20th 2012, Defendant received Plaintiff’s First Set of Requests for Production of Documents and Admissions. 6. On December 14th, 2012 Defendant answered Plaintiff’s Request for Production of Documents and Admissions. In his response, Defendant noted he had yet to receive Initial Disclosures. 7. On December 19th Defendant filed its First Set of Discovery for the Plaintiff 8. On or around December 22nd, 2012, Defendant received Plaintiff’s initial Disclosures. Plaintiff noted that due to the volume of Plaintiff’s accounts and documents across the country, it typically does not meet the 14 day deadline as required by U.R.C.P Rule 26(a)(2)(A). 9. On or around January 3rd, 2013 Defendant received a Minute Entry from the court denying a Plaintiff’s Request for Scheduling Conference. 10. On or around January 12th, 2013 Defendant received Plaintiff’s response objecting to Defendant’s first set of Discovery as Defendant had requested more than discovery than allowed by U.R.C.P Rules 34 and 36. 11. On January 18th, 2013 Defendant filed his Amended Request for Admissions and Production of Documents. 12. On or around February 20th, 2013, Defendant received Plaintiff’s answers to the Amended Requests for Admissions and Production of Documents. Plaintiff objected to all in general saying Defendant had not provided Initial Disclosures to the Plaintiff. 13. On March 1st, 2013 Defendant provided Defendant’s Initial Disclosures to Plaintiff. 14. Now, Defendant makes this Motion to Dismiss Plaintiff's lawsuit over this time- barred debt. Defendant had received no communication from the Plaintiff prior to receiving the Complaint filed by the Plaintiff. No documents were attached to the Complaint supporting the Plaintiff’s Lawsuit. Plaintiff failed to provide the cardmember agreement and other pertinent evidence through initial and ongoing disclosures, as required by rule 26 of the Utah Rules of Civil Procedure. It was not until Defendant received Plaintiff's Initial Disclosures that the Defendant had the opportunity to study and understand the cardmember agreement. DEFINITIONS (as provided by USLegal.com) 1. Accrue: The term Accrue has the following meanings: A. To come into existence as a claim that is legally enforceable. B. To come as a gain, addition or increment C. To increase, accumulate or come as a result of growth. 2. Mutual Account: Mutual account means an account showing debit and credit transactions between parties on both sides of the account. When two parties enter into a mutual dealing, a mutual account is created. Under a mutual account, each party to the account takes the position of a debtor and creditor in relation to the other party. In order to establish a mutual account, the parties must have a cross demand or cross open account and an express or implied mutual agreement stating that the claims are to be set off against each other. In Gresty v. Briggs, 127 Kan. 151 (Kan. 1928), the court observed that “Mutual accounts arise where each party has rendered services or sold articles of property to the other with the express or implied understanding that their respective claims shall, upon settlement, be offset to the extent of the smaller claim. Nor in such case is it material whether both or only one of the parties keep the accounts. The distinction lies in the nature of the transaction or transactions. The more usual definition of “mutual accounts” is reciprocity of dealing, charges and credits on both sides each party having a cause of action against the other”. 3. Running Account: Running account is an open, unsettled, revolving credit facility offered by a seller to a buyer. Using a running account, a buyer can continually buy or obtain goods or services up to the limit agreed with the seller. Amounts paid by the buyer can be used for making further purchases. Generally, a running account is made with a firm, store, or business, but the account will be maintained in a bank to which the salary, wages, or pensions are paid on a regular basis. When creating a running account, the buyer agrees to settle the account within the agreed date. 4. Transaction: According to 15 USCS § 7006 (13), [Title 15. Commerce and Trade; Chapter 96. Electronic Signatures in Global and National Commerce; Electronic Records and Signatures in Commerce], the term transaction means “an action or set of actions relating to the conduct of business, consumer, or commercial affairs between two or more persons, including any of the following types of conduct: (A) the sale, lease, exchange, licensing, or other disposition of (i) personal property, including goods and intangibles, (ii) services, and (iii) any combination thereof; and the sale, lease, exchange, or other disposition of any interest in real property, or any combination thereof.” MEMORANDUM SUPPORTING THE MOTION The Agreement’s choice of law provision expressly states that original creditor Chase Bank's intention was to include the Delaware statute of limitations. The Agreement (“Cardmember Agreement”) explicitly states “THE LAW OF DELAWARE, WHERE WE AND YOUR ACCOUNT ARE LOCATED, WILL APPLY NO MATTER WHERE YOU LIVE OR USE THE ACCOUNT” (See Exhibit- A ). The agreement does not explicitly alter, modify or waive the Delaware statute of limitations. The agreement explicitly includes “THE LAW OF DELAWARE” without expressly excluding anything from “THE LAW OF DELAWARE”. The Delaware statue of limitations is a part of the law of Delaware. The U.S. Supreme Court has stated, "It may be wise policy, as a matter of harmonious interstate relations, for states to accord each other immunity or to respect any established limits on liability. They are free to do so." (Nevada v. Hall, 440 U.S. 410, 420-27 (1979)) THE DELAWARE STATUTE OF LIMITATIONS IS APPLICABLE 1. The agreement establishes that the governing law of Delaware is to be used. 2. The agreement does not alter, modify or waive the Delaware statute of limitations. 3. A credit card account was created based on the agreement and it was maintained under the jurisdiction of Delaware. Chase Bank USA, N.A. exported and used the interest rate statutes of Delaware (Delaware Code Title 5, Chapter 9), in accordance with 12 U.S.C. § 85 (Rate of interest on loans, discounts and purchases), on the account since the creation of the account. 4. Chase Bank USA, N.A. is incorporated in Delaware. Delaware Code Title 5, Chapter 9, § 956. states “A revolving credit plan between a bank and an individual borrower shall be governed by the laws of this State (Delaware)”. 5. Delaware Code Title 10, Chapter 81, § 8106 establishes a 3 year statute of limitations for the plaintiff’s cause of action. 6. The plaintiff’s cause of action would be barred in Delaware. 7. Accordingly, the plaintiff’s cause of action is barred in Utah by Utah’s statute of limitations. Utah Code §78B-2-103. (Action barred in another state barred in Utah.) A cause of action which arises in another jurisdiction, and which is not actionable in the other jurisdiction by reason of the lapse of time, may not be pursued in this state, unless the, cause of action is held by a citizen of this state who has held the cause of action from the time it accrued. THE STATUTE OF LIMITATIONS HAS EXPIRED The proper definitions to the following words are very important to better understand the Delaware statute of limitations: Accrue, Mutual Account, Running Account, and Transaction. The statute of limitations is 3 years from the accruing of the cause of action. (Delaware Code Title 10, Chapter 81, § 8106). According to the Chase Credit Statements, provided by the Plaintiff, the last payment on the credit account was August 19th, 2008 (see Exhibit B - Chase Credit Statement). According to Chase Credit Statements, provided by the Plaintiff, the last charge on the account was January 24th, 2008. (see exhibits C – Chase Credit Statement). The Delaware statute of limitations starts to run from the date of the last purchase. The last purchase was a transaction creating a debt owed to the credit card account. Regardless of any due date, that amount was owed when the transaction was made. The agreement (“Cardmember Agreement”) states “You must pay any amount over your credit line, and you must pay us immediately if we ask you to. This agreement applies to any balance on your account, including any balance over your credit line”. Accordingly, the cause of action does not start to accrue from the time of default, as any amount owed is owed at the time of each transaction. The last payment shown on the credit account was August 24th, 2008. This debt is time-barred as matter of law. A payment in and of itself is not a transaction and no cause of action would accrue from a payment to this account. “Delaware has not adopted the proposition that a payment postpones commencement of or tolls the running of the statute of limitations.” Snavely v. AUTO. INS. CO. OF HARTFORD, CONN., 438 A. 2d 1229 - Del: Superior Court 1981. If a payment were considered a transaction that a cause of action could accrue from, then the last payment was made August 24th, 2008 and the Plaintiff’s cause of action would be barred as of August 24th, 2008. An exception to this is in Delaware Code Title 10, Chapter 81, § 8108. In the case of a mutual and running account between parties, the limitation, specified in § 8106 of this title, shall not begin to run while such account continues open and current. If this account were a mutual account and a running account, the cause of action would still accrue from the last transaction, but the statute of limitation would not begin to run until the account was no longer open and current. However, the Plaintiff is still barred from this cause of action because after the last transaction in a mutual running account, the account is no longer a running account and the statute of limitations begins from the date of that last transaction. “It is equally clear both from the terms of the Delaware Statute and from a uniform current of authority that, where there is a mutual open account, there is an implied agreement of the parties that each item shall not constitute an independent debt, due at its date, but that the Statute shall not begin to run until the date of the last transaction.” Brown v. CONSOLIDATED FISHERIES COMPANY, 165 F. Supp. 421 — Dist. Court, D. Delaware 1955 The exception provided by Delaware Code Title 10, Chapter 81, § 8108 is not applicable. This account is not a mutual account. “Delaware Courts have held on a number of occasions that the quoted provision of 10 Del.C. § 8108 does not apply where all the charges were on one side.” Snavely v. AUTO. INS. CO. OF HARTFORD, CONN., 438 A. 2d 1229 — Del: Superior Court 1981. “It seems entirely clear that where the account is all on one side, the cause of action arises from each item as far as the Statute of Limitations is concerned and they are severally barred when, as to them, the Statute has run.” Brown v. CONSOLIDATED FISHERIES COMPANY, 165 F. Supp. 421 — Dist. Court, D. Delaware 1955 The Statute of Limitation was not tolled by Delaware Code Title 10, Chapter 81, § 8117. A careful reading of the statute shows that the statute of limitation is only tolled until a person can be served with process. The statute also requires that a person first depart from Delaware. The Delaware Supreme Court addressing "Section 8117" held that the statute of limitation was not tolled since the defendants were non-residents and in dicta stated that to hold otherwise would "result in the abolition of the defense of statutes of limitation in actions involving non-residents." Hurwitch v. Adams, 155 A.2d 591, 594 (Del.1959). “In any event, whatever the precise argument made may be, we think that the Delaware statute of limitations on actions for personal injuries runs continuously without interruption when there is available to the plaintiff throughout the period an acceptable means of bringing the defendant into court. Therefore, the answer to the first question posed is that there has been no tolling of the statute of limitations since these defendants, at all times, were subject to substituted service” Hurwitch v. Adams, 155 A.2d 591, 594 (Del.1959). For purposes of this litigation, Defendant has always been and continues to be a Utah resident. The Plaintiff did not file suit and attempt service until beyond the statute of limitations. Since the Defendant, for purposes of this action, has never been a resident of Delaware, Section 8117 does not apply and it does not operate to toll the three years statute of limitations. CONCLUSION The Plaintiff’s cause of action is time-barred. The parties to the contract agreed to a choice of law at the inception of the contract. Therefore the court should not presume that they made that choice without knowledge or an interest in doing so. The relevant portion of the “Cardmember Agreement” between the parties states the following choice of law provision: ”THE TERM AND ENFORCEMENT OF THIS AGREEMENT AND YOUR ACCOUNT SHALL BE GOVERNED AND INTERPRETED IN ACCORDANCE WITH FEDERAL LAW AND TO THE EXTENT STATE LAW APPLIES, THE LAW OF DELAWARE WITHOUT REGARD TO CONFLICT-OF-LAW PRINCIPLES. THE LAW OF DELAWARE, WHERE WE AND YOUR ACCOUNT ARE LOCATED WILL APPLY NO MATTER WHERE YOU LIVE OR USE THE ACCOUNT”. The agreement here states clearly that regardless of any conflict of laws principle that may apply to this agreement, the laws of Delaware apply. The next sentence in the agreement, “the Law of Delaware, where we and your account are located apply, no matter where you live or use the account”. PERTINENT UTAH CODES Utah Code §70A-5-116. Choice of law and forum. The liability of an issuer, nominated person, or adviser for action or omission is governed by the law of the jurisdiction chosen by an agreement in the form of a record signed or otherwise authenticated by the affected parties in the manner provided in Section 70A-5-104 or by a provision in the person’s letter of credit, confirmation, or other undertaking. The jurisdiction whose law is chosen need not bear any relation to the transaction. Utah Code §78B-2-103. Action barred in another state barred in Utah. A cause of action which arises in another jurisdiction, and which is not actionable in the other jurisdiction by reason of the lapse of time, may not be pursued in this state, unless the, cause of action is held by a citizen of this state who has held the cause of action from the time it accrued. PERTINENT DELAWARE CODES Delaware Code Title 5, Chapter 9, § 956. Governing law: A revolving credit plan between a bank and an individual borrower shall be governed by the laws of this State. Delaware Code Title 10, Chapter 81, § 8106 Actions subject to 3-year limitation: No action to recover damages for trespass, no action to regain possession of personal chattels, no action to recover damages for the detention of personal chattels, no action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations, no action based on a promise, no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant shall be brought after the expiration of 3 years from the accruing of the cause of such action; subject, however, to the provisions of §§ 8108-8110, 8119 and 8127 of this title. Delaware Code Title 10, Chapter 81, § 8108 Mutual running accounts. In the case of a mutual and running account between parties, the limitation, specified in § 8106 of this title, shall not begin to run while such account continues open and current. Delaware Code Title 10, Chapter 81, § 8117. Defendant’s absence from State. If at the time when a cause of action accrues against any person, such person is out of the State, the action may be commenced, within the time limited therefore in this chapter, after such person comes into the State in such manner that by reasonable diligence, such person may be served with process. If, after a cause of action shall have accrued against any person, such person departs from and resides or remains out of the State, the time of such person’s absence until such person shall have returned into the State in the manner provided in this section, shall not be taken as any part of the time limited for the commencement of the action. CITED CASES Gresty v. Briggs, 127 Kan. 151 (Kan. 1928) Nevada v. Hall, 440 U.S. 410, 420-27 (1979) Snavely v. AUTO. INS. CO. OF HARTFORD, CONN., 438 A. 2d 1229 - Del: Superior Court 1981. Brown v. CONSOLIDATED FISHERIES COMPANY, 165 F. Supp. 421 — Dist. Court, D. Del 1955 Hurwitch v. Adams, 155 A.2d 591, 594 (Del.1959). Defendant respectfully requests that the Court enter its Order granting Dismissal of the above referenced action. Defendant also respectfully asks this court to award fees incurred in defense of this action, and any other relief this Court deems just. Respectfully Submitted, Dated this xxth day of March, 2013
  6. So what you are saying is do the affidavit and file Motion to Preclude?
  7. KentWA - Let me run this by you. In their disclosures they included CC statements from the OC, Chase, which show last payment on the acct., August 2008 and last charges from I believe May 2008. Both of these are well past the 3 year DE SOL. I have been thinking about going for MTD based on the DE rule. This is based on Thaiboxgirl and the previous dismissal for a UT Resident. I checked credit report and it only states "180 days past due as of March 2009" which means last payment in the Aug/Sept of 2008. Would you still want to preclude the disclosures and use the Credit report as an exhibit for filing MTD? I really want to make as much work as possible for Plaintiff/JM, but do not want to blow it. The only other items in the disclosures were an Agreement which stipulates DE law and a generic Affidavit of sale from Chase regarding the sale of a pool of accounts, without any names numbers etc. Also, would like to be able to sue them for Filing a complaint after the SOL and perhaps not attaching a contract to the original complaint. Appreciate your input!!
  8. One has to see the humor in these things! When attorneys for Plaintiff finally sent initial disclosures 5 months late, they stated "....these supplemental documents were requested by Plaintiff's counsel prior to the initial disclosure deadline but received by Plaintiff's counsel after due date. Due to the volume of Plaintiff's accounts and documents around the country, it typically takes longer than 14 days to obtain documents oa any one account. As a result, Plaintiff herewith supplements its initial disclosures in this matter". It seems they were not ready to file the complaint.............
  9. Johnson Mark for Midland Funding. I believe they violated when they filed the complaint without anything attached. They were also 5 months late with their initial disclosures. When I called them on it, they submitted "Supplemental Initial Disclosures", trying to ignore the fact they never sent the initial disclosures. After I answered the complaint, it took them over 4 months to serve discovery.
  10. They have 10 days to reply. I believe if you served them via mail you can add on 3 additional days for a total of 13 days. ""(e) Additional time after service by mail. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon him and the notice or paper is served upon him by mail, 3 days shall be added to the end of the prescribed period as calculated under subsection (a). Saturdays, Sundays and legal holidays shall be included in the computation of any 3-day period under this subsection, except that if the last day of the 3-day period is a Saturday, a Sunday, or a legal holiday, the period shall run until the end of the next day that is not a Saturday, Sunday, or a legal holiday."" Looking forward to hearing their answer!!
  11. FYI - Below is a Memorandum Decision from the Utah Appeals court. While it shows what the pro se defendant did wrong and lost his appeal, it does spell out at the end of the decision what needs to be done to answer in opposition to the MSJ MIDLAND FUNDING, LLC v. PIPKIN 283 P.3d 541 (2012) 2012 UT App 185 MIDLAND FUNDING, LLC, Plaintiff and Appellee, v. Kenneth PIPKIN, Defendant and Appellant. No. 20110788-CA. Court of Appeals of Utah. July 12, 2012.Kenneth Pipkin, Hildale, Appellant Pro Se.Grady R. McNett, Draper, for Appellee.Before Judges VOROS, DAVIS, and CHRISTIANSEN. [ 283 P.3d 542 ] MEMORANDUM DECISION DAVIS, Judge:¶ 1 Kenneth Pipkin, representing himself pro se, appeals the trial court's grant of summary judgment in favor of Midland Funding, LLC (Midland). Pipkin argues that Midland's request for summary judgment should have been denied because Midland failed "to establish a prima facie case" or, alternatively, because there was a material dispute of fact as to the existence of the debt Midland alleged Pipkin owed.1 We affirm.¶ 2 "We review the district court's decision to grant summary judgment for correctness, granting no deference to the [district] court." Swan Creek Vill. Homeowners a$$'n v. Warne, 2006 UT 22, ¶ 16, 134 P.3d 1122 (alteration in original) (internal quotation marks omitted). Where, as here,a motion for summary judgment is made and supported as provided in [rule 56 of the Utah Rules of Civil Procedure], an adverse party may not rest upon the mere allegations or denials of the pleadings, but the response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.Utah R. Civ. P. 56(e). Additionally, "[e]ach fact set forth in the moving party's memorandum is deemed admitted for the purpose of summary judgment unless controverted by the responding party." Id. R. 7©(3)(A). "Thus, the party opposing the motion bears the burden of establishing a factual dispute to overcome summary judgment." Monavie, LLC v. Iverson, 2012 UT App 141, ¶ 2, 279 P.3d 843 (per curiam). Further, although a pro se litigant "should be accorded every consideration that may reasonably be indulged," we will ultimately hold him "to the same standard of knowledge and practice as any qualified member of the bar." Golden Meadows Props., LC v. Strand, 2010 UT App 257, ¶ 3, 241 P.3d 375 (mem.) (internal quotation marks omitted), cert. denied, 247 P.3d 774 (Utah 2011). [ 283 P.3d 543 ] ¶ 3 Here, we accord Pipkin several indulgences, overlooking inadequate briefing and marshaling concerns to reach the merits of his appeal. Cf. id. ¶ 3 n. 2 (according the pro se litigant several indulgences, including overlooking the fact that the "briefs, though thoroughly researched, lack[ed] focus and coherence and [were] littered with unsupported factual allegations"). Nonetheless, Pipkin's memorandum opposing summary judgment (the opposition memo) still failed to raise a genuine question of material fact. MIDLAND FUNDING, LLC v. PIPKIN 283 P.3d 541 (2012) Court of Appeals of Utah. July 12, 2012. ¶ 4 As the party opposing summary judgment, Pipkin was required to "set forth specific facts showing that there is a genuine issue for trial." See Archuleta v. Galetka, 2011 UT 73, ¶ 43, 267 P.3d 232. Pipkin has not done so here. In its entirety, the opposition memo stated that the affidavit Midland submitted in support of summary judgment was "irrelevant" because it did "not provide documented evidence of [the] alleged debt," and then repeated the same few assertions — that Pipkin had not been provided with the information he had previously requested from Midland regarding the debt, that the "alleged debt [was] null and void," and that because Pipkin had "no access to information regarding [the] alleged debt [he could not] determine [the] validity of [the] alleged debt" — before concluding that Midland's claims were "specious, frivolous, [and] without foundation or merit." Pipkin's repeated assertions that he has not been provided with the documentation he requested do not raise a genuine issue of material fact as to Midland's claim that Pipkin owes $6,148.03, plus accrued interest, on a credit account serviced by Midland. We are also not persuaded that Pipkin was unable to effectively oppose Midland's summary judgment motion until he received the information he requested from Midland; the information Midland provided in its initial debt collection letter was detailed enough for Pipkin to effectively oppose summary judgment. Pipkin could have submitted affidavits that would have created a genuine issue of material fact or moved for a continuance under rule 56(f) of the Utah Rules of Civil Procedure; because Pipkin failed to do so, the trial court's ruling is affirmed.2See Utah R. Civ. P. 56(f) (permitting the trial court to continue a motion for summary judgment and allow for further discovery). See generally id. R. 56(e) (explaining the means by which a party can oppose summary judgment).¶ 5 WE CONCUR: J. FREDERIC VOROS JR., Associate Presiding Judge, and MICHELE M. CHRISTIANSEN, Judge.
  12. GOOD JOB TBG!!! The Plaintiff has 10 days to respond to Motion. You then have 5 days to respond to their opposition. Then when briefing is complete. (After the last permitted document is filed or after the deadline for filing that document has passed.), you may file Request to Submit for Decision with proposed order. http://www.utcourts.gov/howto/filing/motions/ Thanks for the Post. I am in the same boat with MF/Chase.
  13. HF13 - It is difficult to find case law in Utah, not sure if the following site would help: http://www.utcourts.gov/opinions/
  14. Good point Seadragon! The way I was interpreting the above statute as any case based on a contract. MF's complaint was based on an alleged contract, but I am not seeing how this would imply the Defendant being part of the Contract. Was trying to put Plaintiff on notice there was a possibility of them paying Costs if they lose, while at the same time supporting my request for Rule 12(j). Am I off on this interpretation? This is why I posted. The input is great.
  15. After reading what Bruno and KentWA had to say, I thought it might be fun to go for a security deposit as per Rule 12(j) and Rule 12(k), URCP. Following is a rough draft of a Motion to do so. Would appreciate any input!! Please slice and dice as you see fit. By doing so, I am also putting the Plaintiff, Midland Funding on notice that I may go for attorney fees. Thanks in advance for any help!! Comes, Now Defendant, ReadyToWin, Pro Se, pursuant to Rule 7((1) of the U.R.C.P. hereby moves the court to require Non-Resident Plaintiff, Midland Funding LLC to furnish a security deposit of $300.00 for Costs. STATEMENT OF FACTSOn or around June 1, 2012, Plaintiff filed a Complaint and Summons on the Defendant. On June 19, 2012, Defendant answered the Complaint and filed a Notice of Appearance. Plaintiff claims Defendant entered into an Alleged Contract with Chase Bank USA N.A, which alleged Contract was subsequently assigned to Plaintiff Plaintiff is a California Corporation and thus resides outside the State of Utah. This action is early in the Discovery stage and the Defendant has yet to learn how this proceeding will progress. In the likely event there may be counterclaims and costs incurred by the Defendant in said action it is reasonable to ask the Court for a security deposit for Costs.MEMORANDUM SUPPORTING THE MOTIONA recent Utah Supreme Court opinion has interpreted Utah’s reciprocal attorney’s fee statute. This statute, found at Utah Code Section 78B-5-826 (referred to as the “Reciprocity Statute”), provides the following: “A court may award . . . attorney fees to either party that prevails in a civil action based upon any . . . written contract . . . when the provisions of the . . . contract . . . allow at least one party to recover attorney fees.” The Reciprocity Statute has been commonly understood to mean that if a contract gives one party the right to recover attorney’s fees from the other party to the contract in a dispute regarding the contract, that contract provision becomes reciprocal. As a result of the statute, each party then has the right to recover attorney’s fees from the other party. So, as a possible example, if a provision in a loan agreement gives the lender the right to recover the lender’s attorney’s fees in a lawsuit to collect the loan, and the borrower is successful in defending against that collection lawsuit, the borrower will likely have the right, by benefit of the Reciprocity Statute, to recover the borrower’s attorney’s fees from the lender. The Utah Supreme Court tested the scope of the Reciprocity Statute in the recent case of Hooban v. Unicity International, Inc., 2012 UT 19 (March 27, 2012). In defense to Unicity’s attorney’s fee claim, Hooban argued that the Reciprocity Statute was only applicable if the attorney’s fee provision in the contract was “unilateral” (i.e., for the benefit of only one party) and that the statute did not apply in this instance in which the attorney’s fee provision was “bilateral” (i.e., benefitting both parties). The Supreme Court concluded that the terms of the Reciprocity Statute have no such limitation. Hooban then argued that because the trial court determined that he was not a party to the distributorship contract, the attorney’s fee provision in the contract and the Reciprocity Statute had no application to him. The Supreme Court rejected this argument by concluding that if Hooban had prevailed in his claim to enforce the distributorship contract, Hooban would have been deemed a party to the contract and would then be able to enforce the attorney’s fee provision in the contract. This “hypothetical” outcome therefore gave Unicity the right to enforce the attorney’s fee provision against Hooban under the Reciprocity Statute. Utah’s Reciprocity Statute regarding attorney’s fees is intended to achieve a public policy of fairness, but creates an added risk for any party who files a lawsuit to collect or enforce what that party believes is a contractual right in an instance in which the contract at issue has an attorney’s fee provision in favor of any party. Thus Defendant is at risk without the security deposit. Pursuant to Rule 12(j) of the U.R.C.P. Defendant request the Court to require the Plaintiff to submit the Security of $300.00 for Costs and Charges which may be awarded against the Plaintiff. Furthermore, pursuant to Rule 12(k) of the U.R.C.P. Plaintiff must provide the undertaking as ordered by the court within 30 days of the service of the order. The Court shall, upon Motion of the Defendant, enter an order dismissing the action if the Plaintiff fails to file the undertaking as ordered by the Court within 30 days of the order. Bunting Tractor Co., Inc. v Emmett D Ford Contractors Inc. 2 Utah 2d 275 (1954) 272 P.2d 191. Maxfield v Fishler 538 P. 2d 1323 - Utah: Supreme Court 1975 CONCLUSION In summary, the Plaintiff is an out of state, non-resident corporation. Considering Utah’s Reciprocal Attorney’s Fee Statute Utah Code Section 78b-5-826, Defendant should be protected under U.R.C.P. Rule 12(j). Defendant prays the court find in its favor by invoking Rule 12j) U.R.C.P. and require the Plaintiff to file a $300.00 undertaking with sufficient sureties as security for payment of such costs and charges as may be awarded against Plaintiff.
  16. I apologize as I am still relatively new to this forum and not sure whether to post this here or in my original thread, but since it is relative to the above posts by Bruno and KentWA and since I felt it could benefit Utah Defendants, I thought I would post here. If this is not correct, please let me know. Any way, below is a rough draft of a motion to Plaintiff, Midland Funding LLC for the Court to order the Plaintiff to furnish Security $300.00 Costs. It loses a bit in the cut and past. Please Slice and Dice as you see fit. Comes, Now Defendant, XXXXX YYYYY, Pro Se, pursuant to Rule 7((1) of the U.R.C.P. hereby moves the court to require Non-Resident Plaintiff, Midland Funding LLC to furnish a security deposit of $300.00 for Costs. STATEMENT OF FACTS On or around June 1, 2012, Plaintiff filed a Complaint and Summons on the Defendant. On June 19, 2012, Defendant answered the Complaint and filed a Notice of Appearance. Plaintiff claims Defendant entered into an Alleged Contract with Chase Bank USA N.A, which alleged Contract was subsequently assigned to Plaintiff Plaintiff is a California Corporation and thus resides outside the State of Utah. This action is early in the Discovery stage and the Defendant has yet to learn how this proceeding will progress. In the likely event there may be counterclaims and costs incurred by the Defendant in said action it is reasonable to ask the Court for a security deposit for Costs. MEMORANDUM SUPPORTING THE MOTION A recent Utah Supreme Court opinion has interpreted Utah’s reciprocal attorney’s fee statute. This statute, found at Utah Code Section 78B-5-826 (referred to as the “Reciprocity Statute”), provides the following: “A court may award . . . attorney fees to either party that prevails in a civil action based upon any . . . written contract . . . when the provisions of the . . . contract . . . allow at least one party to recover attorney fees.” The Reciprocity Statute has been commonly understood to mean that if a contract gives one party the right to recover attorney’s fees from the other party to the contract in a dispute regarding the contract, that contract provision becomes reciprocal. As a result of the statute, each party then has the right to recover attorney’s fees from the other party. So, as a possible example, if a provision in a loan agreement gives the lender the right to recover the lender’s attorney’s fees in a lawsuit to collect the loan, and the borrower is successful in defending against that collection lawsuit, the borrower will likely have the right, by benefit of the Reciprocity Statute, to recover the borrower’s attorney’s fees from the lender. The Utah Supreme Court tested the scope of the Reciprocity Statute in the recent case of Hooban v. Unicity International, Inc., 2012 UT 19 (March 27, 2012). In defense to Unicity’s attorney’s fee claim, Hooban argued that the Reciprocity Statute was only applicable if the attorney’s fee provision in the contract was “unilateral” (i.e., for the benefit of only one party) and that the statute did not apply in this instance in which the attorney’s fee provision was “bilateral” (i.e., benefitting both parties). The Supreme Court concluded that the terms of the Reciprocity Statute have no such limitation. Hooban then argued that because the trial court determined that he was not a party to the distributorship contract, the attorney’s fee provision in the contract and the Reciprocity Statute had no application to him. The Supreme Court rejected this argument by concluding that if Hooban had prevailed in his claim to enforce the distributorship contract, Hooban would have been deemed a party to the contract and would then be able to enforce the attorney’s fee provision in the contract. This “hypothetical” outcome therefore gave Unicity the right to enforce the attorney’s fee provision against Hooban under the Reciprocity Statute. Utah’s Reciprocity Statute regarding attorney’s fees is intended to achieve a public policy of fairness, but creates an added risk for any party who files a lawsuit to collect or enforce what that party believes is a contractual right in an instance in which the contract at issue has an attorney’s fee provision in favor of any party. Thus Defendant is at risk without the security deposit. Pursuant to Rule 12(j) of the U.R.C.P. Defendant request the Court to require the Plaintiff to submit the Security of $300.00 for Costs and Charges which may be awarded against the Plaintiff. Furthermore, pursuant to Rule 12(k) of the U.R.C.P. Plaintiff must provide the undertaking as order by the court within 30 days of the service of the order, the Court shall, upon Motion of the Defendant, enter an order dismissing the action. Bunting Tractor Co., Inc. v Emmett D Ford Contractors Inc. 2 Utah 2d 275 (1954) 272 P.2d 191. Maxfield v Fishler 538 P. 2d 1323 - Utah: Supreme Court 1975 CONCLUSION In summary, the Plaintiff is an out of state, non-resident corporation. Considering Utah’s Reciprocal Attorney’s Fee Statute Utah Code Section 78b-5-826, Defendant should be protected under U.R.C.P. Rule 12(j). Defendant prays the court find in its favor by invoking Rule 12j) U.R.C.P. and require the Plaintiff to file a #300.00 undertaking with sufficient sureties as security for payment of such costs and charges as may be awarded against Plaintiff.
  17. This looks like something to pursue. Having yet to file a motion, I have been doing some research on the process. It is my understanding one needs to file the Motion, a Memorandum and a Conclusion. What is confusing me is can it all be done in the same document or does it need to be separated out. I have seen both. Any help would be appreciated!!!
  18. I sent off my initial disclosures. My questions are? Since I provided an answer to their objection to RFA and RFPOD, do they have to answer, the Request now or do I have to ask them to do so. If so, how would this be done? If waiting for an answer, how long should I wait, especially since the Plaintiff has filed a motion for a pre-trial conference? My guess, is if they answer, there will be other objection(s), and nothing will be provided.
  19. http://litigation.utahbar.org/assets/Best%20and%20Worst%20Discovery%20Practices%20.pdf
  20. OK, will get those off on Monday. Do I need to provide a telephone number? and do you think it best to include a letter asking for discovery answers now that the objection has been resolved. I just feel like I need to keep an aggressive posture with these guys and do not feel good waiting for their next move. I know their M.O. is pushing for Summary Judgment. Thanks!!