Bob Fletcher

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Everything posted by Bob Fletcher

  1. Ok, so l'm getting an idea how it works! Judge denied my motion to preclude initial disclosures. In his answer he totally ignored all of my arguments and used one lame argument of the plaintiff's lawyers. It's like he totally ignores my brief. Now we know what we are up against. P×××k!
  2. Below is a draft of my Meet and Confer letter to the Plaintiff regarding the latest affidavit of sale which is posted on post 164 I would appreciated any input!!! Re: Affidavit of Dustin Smurdon Let this letter serve as a meet and confer regarding the Affidavit of Sale by Dustin Smurdon, provided by Plaintiff, Midland Funding LLC. It should be pointed out that this Affidavit of Sale is an incomplete document. It refers to a “review of Chase’s records”. Without the “records” the Affidavit is referring to it is an incomplete document. The affiant claims he reviewed “Chase's records”. Which “records” did he allegedly review? The affiant also refers to an account being sold “on or about” a particular date. If he, in fact, reviewed the records that were related to an alleged sale of the account, that record/agreement would state the date of the sale. Therefore, the word "about" would not be necessary because the date would be specific. This affidavit makes no reference to the accuracy of the records that were ALLEGEDLY reviewed. There is also no reference to the affiant’s personal knowledge of any “records” associated with the alleged sale. Since the affiant made no reference to the accuracy of the “records “and considering the fact the he stated "on or about" the date of the sale, there is a doubt that he actually reviewed the “records”. Please provide the “records” the Affiant is referring to. Also, provide the service address and phone number for Mr. Dustin Smurdon. In addition the Affidavit refers to “information transmitted by, a person”. Without this information, this affidavit is incomplete. Defendant wonders who this “person” is? Defendant would like to ask this “person” some questions regarding personal knowledge and accuracy of the “records”, so could you please provide a name, service address and telephone number of this “person”, so I may issue a subpoena and ask? In addition, please provide the “information” allegedly “transmitted”. It is my sincere intention to resolve this matter amicably without the need for judicial intervention. I am sure it was an over sight on the Plaintiff’s behalf that an incomplete document was provided. These are simple requests and should be readily available to the Plaintiff as without these additional documents and names and contact/service information, this Affidavit of Sale is ambiguous at best and lacks foundation and documentary evidence. Please provide the requested information within fourteen days of the receipt of this letter.
  3. Thanks Shellie98!! You and KentWA are right! I think I will wait for the decision on my Motion to Preclude Initial Disclosures and if that does not go my way, will finish my MIL to preclude each additional document that has been provided.
  4. Another issue is that standard discovery is to end at 6 months according to the Rules and that period has come and gone, but the Plaintiff keeps supplementing their initial disclosures which were 6 months late. I am waiting to see what happens to my Motion to Preclude Initial Disclosures. If I am successful this all becomes a moot point. If not, I need to attack them.
  5. KentWA says - "Affidavit first: BV80 made several good points and read Rule 803 and 902 carefully. Then prepare a discovery request for each and every record the affiant reviewed. They are not allowed to hide those and must produce or the affidavit goes down the toilet. They are going to have to pay chase to get those records. Also start getting a depo by written questions ready for the affiant with questions like, who is your employer, what is your job description, What records did you review, how did you review them, etc." OK, so here is my dilemma!! According to URCP Rule 26(C)(5) I am limited to asking for 5 requests for production of documents. Being new to this,, when I fired off my request for documents, I made five requests. It now appears I need to make more requests. So is the proper procedure to use the following or is there an approach I am Missing??: ©(6) Extraordinary discovery. To obtain discovery beyond the limits established in paragraph ©(5), a party shall file: ©(6)(A) before the close of standard discovery and after reaching the limits of standard discovery imposed by these rules, a stipulated statement that extraordinary discovery is necessary and proportional under paragraph ((2) and that each party has reviewed and approved a discovery budget; or c)(6)( before the close of standard discovery and after reaching the limits of standard discovery imposed by these rules, a motion for extraordinary discovery setting forth the reasons why the extraordinary discovery is necessary and proportional under paragraph ( (2) and certifying that the party has reviewed and approved a discovery budget and certifying that the party has in good faith conferred or attempted to confer with the other party in an effort to achieve a stipulation.
  6. Shellie says: I would also note, he said a" transmitted by, a person having knowledge of these matters" transmitted this info. well I wonder who that person is? I'd like to ask them a couple of questions, so could you please provide me a name and address, so I may issue a subpoena and ask? Good Point, Thanks!!!
  7. Flyerfan says: Nothing referenced as an exhibit makes every word she says conclusory and lacking foundation and documentary evidence. Thanks!!
  8. I found this record from a North Carolina Bankruptcy record. Fatal mistake made, not disputing the affidavit "Ownership of the Debt Debtor contests the validity of the assignment attached to eCAST’s original proof of claim. Debtor contends that Rachelle Riggins, in her capacity as “Team Leader,” did not have proper authority to execute the assignment on behalf of Chase. eCAST amended its proof of claim to include the affidavit of Mr. Smurdon, an officer of Chase, which confirmed ownership of the debt by eCAST. The debtor did not dispute the Smurdon affidavit nor introduce any evidence to substantiate its attack on the validity of the assignment. Therefore, eCAST has shown by a preponderance of the evidence that it is the owner of the account at issue."
  9. KentWA says: Did they request it, or subpoena you? If it is a a request, you do not have to comply and can tell them to take a flying leap until they make suitable arrangements including a date you agree to. However if it is a subpoena, then it is Motion to Quash Deposition Subpoena or Motion to Quash XXX (where XXX is whatever language they used in the caption of their Subpoena). I just went back and looked at the paperwork (2 documents) sent by the attorneys and they say 1) Notice of Deposition and 2) Request for production of Documents It was not an actual SUBPOENA. Not sure where I got that idea, other when I first opened it, it looked very official.I had not actually looked at it since receiving it, (a bit of avoidence therapy) KentWA, thank you for pointing out a crucial item. I'll send them a letter telling them to pound sand! BV80 - thanks for the input!
  10. Thanks KentWA!! again!! Filed my Motion for Security Bond this morning and will file Motion To Quash Subpoena Monday Morning, UPDATE - Received a new affidavit of sale in the trickle of supplemental Initial Disclosures this morning. In my Motion to Preclude Initial Disclosures, I asked the Court to Preclude all Initial Disclosures. I have submitted my request for a decision so we will have to see what happens. In the meantime will need to be prepared to Oppose this new document. It is from a Mr. Dustin Smurdon, Attorney-in-Fact for Chase Bank and Notarized by a Ms Maria Narvaez. Here it is in its entirety, of course, redacted. State of Florida, County of Seminole I am authorized by Chase Bank USA, NA ("Chase") to make this affidavit. Based on a review of Chase's records, which are made at or near the time of the occurrences set forth therein by, or from information transmitted by, a person having knowledge of these matters, and kept in the ordinary course of Chase's business, GonnaWin had a credit card account with Chase, account number xxxx-xxxx-xxxx-last four. The account was sold and transferred to Midland Funding, LLC on or about November 10, 2010. At the time of the sale to Midland Funding LLC, the amount due on the account was $2xxxx.xx. The records of Chase indicate that the last payment on the account wa made on September 19, 2008. Chase has not further interest in said account for any purpose. On behalf of Chase Bank USA, NA The affidavit was notarized on June 20th, 2013. This appears somewhat desperate as how would this Attorney in fact have any knowledge of the account in question and was he working for Chase at the time of the sale? I have not seen an Affidavit like this on CIC, but it's entirely possible it has been posted and I missed it. Also, this affidavit is not even remotely close time-wise to the sale of the alleged account. What is the best way to attack this Affidavit?
  11. Many Thanks KentWA!!! Have my Motion for Security Bond ready to file tomorrow. Quick question, when I file my Objection to the Deposition for reasons previously stated, what is best to put in the Caption? Simply: Defendant's Objection to Plaintiff's Request for Deposition since it not really a motion.
  12. KentWA says: File for the cost bond and then the next day oppose the depo on multiple grounds, costs being one of those.Make sure you include Xchange costs and anything else you can come up with from the rules and statutes. I am having a hard time finding anything in Utah Statutes regarding what is eligible for cost recovery. Rule 54(d)(1) says; "Except when express provision therefor is made in a statute of this state or in these rules, costs will be allowed as of Course to the prevailing party unless the Court otherwise directs..." I also think Utah leaves the Recovery of the expense of computerized legal research to the discretion of the Court, but I cannot find corresponding statute or rule. HELP!!
  13. Thanks KentWA!! Going to work on my Motions, is the proper place to ask for oral arguments in the Conclusion portion of the Motion? If the Depo where I live, I would not oppose. It is basically a 1 hour drive one way to the attorney offices, through a major canyon. Tires need replacing at present on a shared vehicle that is not safe for interstate travel (High Speeds over long distances), plus it puts a burden since more than one person depends on the car daily at specific times. I figure the Depo with travel time is at least 4 hours.
  14. Would you ask for the continuance in writing or over the phone. I really have a hard time trusting these guys!!!!
  15. I am thinking a continuance on the Depo may be the thing to do as it would buy me time for the Motion for Security costs. There must be some provision for a continuance as things come up in the course of life. I was able to achieve a continuance on a court date without a problem and this is a discovery matter.
  16. Thanks KentWA!! My immediate problem is that the Depo is set for July 17 and if I file the motion for security costs even tomorrow, that time will come and go before they have to answer the Motion for Security Costs. What do you think about filing the Motion for Security costs followed a couple of days later with a motion objecting to the subpoena. According to Utah rules I just have to file the motion objecting before the date. This way the Depo would be put off until we go through the process. Or do you think I should file for a continuance on the Depo and then file the Motion for Security Costs. If so, how do I file for a continuance? Do I just send them a letter??? They already did a continuance on their own subpoena moving it from June to July. I have also received their opposition to my Motion to Quash the Subpoena of my Wife's Landlord, and will post that after we try to hash this first item out. As always KentWA, thanks for your input!! It is greatly appreciated!!
  17. KentWA says - What grounds would you have for such opposition? I was planning on Undue Burden and costs and the fact that the Depo is in another County. According to the Rule 45: (e)(3) The person subject to the subpoena or a non-party affected by the subpoena may object if the subpoena: (e)(3)( requires a resident of this state to appear at other than a trial or hearing in a county in which the person does not reside, is not employed, or does not transact business in person; (e)(3)(F) subjects the person to an undue burden or cost; It will really be a burden for me (actually not only me but other people as well), to attend the disposition. Am I off base on this?
  18. Also planning on filing opposition to subpoena for Deposition per URCP45(e)(3)(B<C&F). Do I need to file this with the court since it is part of Discovery? Or do I just file the notification of service?
  19. In Utah, they will have 10 days plus an additional 3 days for mail to file an opposition to your Motion. You then have 5 days plus an additional 3 days for mail to respond to the opposition to your Motion. My suggestion is to not get in a rush to ask for a decision if you have not received opposition in 13 days. Give a couple of extra days as you want to be able to respond to their opposition.
  20. UPDATE - So I file my request for a decision on July 2nd. Some things came up in the plaintiff's brief that I thought I would throw out for input. The plaintiff is basically saying that since I signed as agent in a business name application for a DBA business in February 2006. That I agreed for service at the address of my wife's business, which is an LLC of which I am not part of. The DBA ceased on January 22, 2010 and my name on the leased ended January 31, 2010, The LLC was established January 25, 2010. The plaintiff is also saying that since I had agreed to service in 2006 and even though my involvement at the address ended in Jan, 2010, it was proper for them to send initial disclosures at the address of my wife's business. No proof has been provided of sending any initial disclosures to that address and none were received at the address. As part of their exhibits they included a "proof of Service" signed by a process server. It states: "I served this process at the dwelling house or usual place of abode of Gonnawin by delivering a copy to John Doe, (verified Co-Residancy), the Co Resident of Gonnawin, who is a person of suitable age and discretion there residing" The problem with the service is it was not a residence and the papers were not left with a member of the family, but left with someone helping out for a few hours. My question is, did I shoot my self in the foot since I answered the complaint and did not bring up improper service. I always wondered if the service was legal and Now that I have this it appears it was not legal. You can see it ws not a residence but a business
  21. KentWA says: Do they give any reason for the claimed estoppel? They are beginning to throw anything they can dream up against the wall in the hopes that something will stick, they are in full desperation mode. Cutting through the legal jargon, they say: Plaintiff in good faith, initially provided its initial disclosures to defendant at the address was the Defendant was served.(The papers from the process server say the papers were served to a John Doe at my wife's business). They say I chose to be served here due to a Business Name Application I made in 2006 for a business that has not existed since January of 2010. I am not a legal agent for the current business. Plus I provided a service address on my notice of appearance. The judge pointed this out to them when he denied their MSJ back in November. They say they have sent and resent and supplemented all relevant discoverable documents . A lie! They have not provided answers to admissions and requests for documents. They say I have failed to object to any documents sent to me until now. They say denying the Motion will not prejudice the Defendant since I have known about the disclosures since the end of december
  22. KentWA says: I would also get a declaration from your wife that no such documents were sent to the address they claim. Does this declaration need to be notarized?
  23. Thanks Flyer and KentWA!!!! They have provided no concrete proof of sending anything and will be unable to as they send everything first class mail. The declaration from my wife is excellent. I did file my Motion to Quash the Subpoena. Here is what they stuck on the end of their response to my Motion to Preclude: They also in a final paragraph had a section titled "REQUEST TO SUPPLEMENT OPPOSITION WITH RESPONSE TO SUBPOENA". This was a separate motion I filed on 6/20/2013. Hmmmm In it says: Plaintiff has, in this matter, vaused a Subpoena to be served on the Owners of the property at xxxxxxRD in XXXUtah.Said Subpoena is a request for information, from a third party, relating to Defendant's use of and presence at XXXX Rd. Said Subpoena was drafted the day after Defendant's Motion to Preclude was received and was served on xxxxLLC The information requested in said Subpoena is relevant to the instant motion because Defendant is claiming that service of legal documents on him at xxxxxxRD is improper; however, records from XXXXLLC may show that Defendant had a significany presence and made significant use of the property at XXXXRD. Unfortunately, Plaintiff has not yet received a response to said subpoena; as such, Plaintiff is requesting permission of the Court to supplement this Opposition to Motion to Preclude with records in response to the Subpoena. They are basically arguing that because I filled out a business name registration in 2006 that I agreed to be served at the address. They are neglecting the fact that the business they are referring to went out of business in 2010 and a completely new business which is an LLC is located their. The LLC was formed in 2009 and is legally owned by my family and service had to be done for it through a designated agent. The problem is, I am not on the paperwork for the LLC and am not the agent for the LLC. They are also claiming Defendant is Estopped from requesting preclusion of documents; no prejudice will result fromplaintiff's use of it's documents