Bob Fletcher

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Everything posted by Bob Fletcher

  1. Thanks KentWa!! Well, I finally received the plaintiff's opposition to my Motion to Preclude. It looks like it was mailed on Wednesday, June 19th. They were served on June 7th. I think part of their plan is to go beyond the deadline (in this case 19 days instead of the deadline of 13 days) for filing opposition in hopes I would file for an answer with the court and not have the opportunity to file my response to their opposition. Catching on to the game. Anyway, their response was based on they fact they say initial disclosures were sent to the location where they say I was served, my wife's business instead of where I asked items to be sent on my notice of appearance, which was filed with my answer.. They are saying it was "harmless error" 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
  2. KentWA says: Your motion to preclude should have included anything they were supposed to include that they had not included. If that is the case then their case would be DOA and their further disclosures would be excluded. Was the stuff they further disclosed covered under Rule 26? Pursuant to Rule 26(d) & Rule 26(a)(1) in the opening paragraph. In the 2nd paragraph 26(a)(1)(, (D) and (E) in the papers I received on June 9th 2013. They also cited Rule 26(d)(5) saying they requested the information prior to the initial disclosure deadline, but the Plaintiff is too busy with it many lawsuits around the country to comply. I did mention further initial disclosures in my Motion to Preclude, but though should cover my bases and get my objections in in case the original Motion did not work.
  3. UPDATE - So I served Midland with my Motion to preclude Initial Disclosures for not supplying them within 14 days as required by Utah Rules. Yesterday was nineteen days and no answer to my Motion. In Utah they have 10 days plus 3 for mail for a total of 13 days to object to a motion. Being late is typical for them as they were almost 6 months late serving the initial disclosures. I thought I would give it another day or so, before I asked for a decision. My question is when I file for a decision do I include an order with the request? Also any advice on wording the request for a decision would be really appreciated!! Also working on my Motion to preclude additional disclosures provided within the last couple of weeks, but unfortunately life interrupts.
  4. Thanks Kentwa, the quote is a classic!! Have read through the decision you posted once, will take several readings for everything to sink in, Thanks again!!
  5. Thanks KentWA!! Filed my Motion to Quash and for a protective order this morning. Next on my list are Motions for security deposit and to preclude the BOS. Had a deadline with the Motion filed this morning, so that put me behind. Intend to file the other motions the first of the week. Guess they will really be mad at me!! Oh Well.... Will then look into a counterclaim to see what I can come up with. Thanks for everyone's help!!
  6. KentWA says: I asked about notification because normally a third party subpoena is provided to you first and served 10 days later if you do not object. However I can not find that in the rules of civil procedure. It may be in the Rules of Evidence or Rules of Professional Conduct. I would just rip into them, make sure you call the call and calendar your motion for a hearing so they have to go to the court house and explain everything to the judge. You will have to notice them on the hearing. I think I read somewhere I have 14 days to object, but cannot find the reference right now. But want to enter my objection tomorrow. KentWA says: Counter Claim for less than $2K is only $55 in Utah Courts:https://www.utcourts...ources/fees.htm Good to know, I'm not sure where I came up with the $300.00 figure. Can the counterclaim be done at any time? and any suggestions?
  7. KentWA says: You posted faster than me. I would drop the Federal Rules stuff as it does not apply. However add in that the protective order is to bar plaintiff from seeking third party discovery without order of the court. Thanks, I was not sure how to phrase, what I wanted the protective order to do. KentWA says: I have to ask if they notified you before sending the subpoena or did they just send them. I received no communication in writing or at the phone number I provided in my initial disclosures. They have called last Wednesday (6/12), after five pm and both Monday and yesterday (6/17/18), but on a phone my wife uses for business. No message was left, but saw it on the caller ID. They mailed my copy of the Subpoena to me last Wednesday, (6/12). The subpoena is dated 6/11. KentWA says: SO this also begs the question, did you counter claim for FDCPA violations? If not you might want to consider an amended complaint? I did not file a counterclaim as I did not have the $300.00 to do so.
  8. Shellie Says: It looks good to me. ONe thing, did you return the attorney's call? For the protective order, it states you needed to meet and confer, so I would call him before I filied. Good Point, thanks!
  9. The formatting took a bit of a hit in the transfer, but the essence is there.
  10. OK here is a rough draft of my motion to quash the subpoena and Motion for a protective order. I admit I am out of my league in this and would really appreciate any input provided. THIRD JUDICIAL DISTRICT COURT, STATE OF UTAH S MIDLAND FUNDING LLC, Plaintiff, Vs. GonnaWin, Defendant ) ) Case No.: Judge: DEFENDANTS OBJECTION TO AND MOTION TO QUASH SUBPOENA AND MOTION FOR A PROTECTIVE ORDER AND SUPPORTING MEMORANDUM Pursuant to Rules 45(e)(4)(A), 45(e)(4)( , 45(e)(4)(E) and 45(e)(5) of the Rules of Civil Procedure for the State of Utah, Defendant GonnaWin, appearing Pro Se, submits his Motion to Quash the Subpoena to: XXX LLC, . Furthermore, Defendant Motions for an emergency protective order Under Federal Rules of Civil Procedure 26© and Rule 37( of the Utah Rules of Civil Procedure. STATEMENTS SUPPORTING THE MOTIONS 1. This proceeding is in the early discovery stage. 2. On or around June 12th, 2013 Plaintiff’s attorney’s issued a subpoena duces tecum (exhibit A) to: XXX L.L.C., . 3. The subpoena commanded the following: Any and all documents relating to the occupancy and/or use of any portion of the property located at xxxx anywhere UT by, on behalf of, or for, Gonnawin or any party with any relation to GonnaWin. This request includes, but is not limited to, leases, contracts, agreements, correspondence, payment records, electronic mail, application, deposit records, invoices, and statements. 4. The party named in the subpoena is the landlord of a small business owned by members of the Defendant’s family. 5. The Defendant has no legal ownership in the business, which rents from the landlord. 6. Plaintiff or their attorneys have not established what possible information, might be obtained, that might prove beneficial in establishing their standing in this action and can be nothing but harassment to the Defendant and his family. 7. Utah is not a community property state and the family of the Defendant is not a party to the complaint filed by the Plaintiff. 8. The subpoenaed party is neither a “credit lending institution”, nor a “Junk Debt Buyer” and would have no personal knowledge of the activities of the aforementioned institutions. MEMORANDUM SUPPORTING THE MOTIONS The subpoena is legally deficient in that it is not issued pursuant to any Utah Rule or code (see exhibit A). None were cited in the subpoena. Furthermore, the Plaintiff and it’s attorneys are seeking discovery that is limited by U.R.C.P. Rule 26( and under Rule 26( (3) BURDEN. The party seeking, discovery always has the burden of showing proportionality and relevance. To ensure proportionality, the court may enter orders under Rule 37. The Court can make such orders as necessary to protect the Defendant’s family’s privacy. It is the hope of the Defendant that the Court would grant this motion. Plaintiff has failed to show the reasons why such information is needed. Plaintiff, as a debt collector, should only purchase debts that have proper documentation consisting of an agreement signed by an alleged debtor, validation by a party with first hand knowledge of the account creation, a full accounting of the account in question, and any proof of assignment. Plaintiff has not provided such evidence to date. A party cannot use discovery rights just to harass or annoy another party or outside witness. If a party is abusing discovery rights in a case, Federal Rules of Civil Procedure Rule 26© says: In General. A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action. The court may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, lets the other party or outside party to ask the Court for a protective order. A person can be protected from annoyance, embarrassment, undue burden and expense and oppression. CONCLUSION The Plaintiff and their attorney’s have not demonstrated a need for issuing the subpoena to XXX L.L.C. and on it’s face appears to be either a fishing expedition and/or intentionally meant to harass the Defendant and his family. The burden of proof for the need of this subpoena lies on the Plaintiff as to how the Subpoena will lead to discoverable evidence proving the Plaintiff has standing to pursue this action and. Defendant respectfully prays that the Court enter its Orders granting the Motion to quash the Subpoena and the Motion for a Protective Order of the above referenced action. Respectfully Submitted,
  11. KentWA says: Most likely what is going on here is that your motions and attacks have caused the lawyer to take it personally. He does not want to be beat by some "smart alack" Pro Se and he is trying to scramble to save his case or intimidate you into putting up the white flag. This is my impression as this has all happened since they received my Motion to Preclude Initial Disclosures last Monday (6/10) Both the subpoena to my wife's landlord and the Bill of Sale went out last Wednesday (6/12). Wednesday is also when the calls started .
  12. Thanks KentWA, You mention 2 things: "Motion to Quash the Subpoena" - What is the appropriate rule to base this on? Rule 45(e)(4)(E) ? "Move for an emergency protective order" - What would be involved in this and would you do one before the other or both at the same time?It is interesting because the Attorneys office has called last Wednesday, yesterday and today. They do not call on the number I gave them in my initial disclosures, but on an old phone that our kids used when they were little and we keep for my wife's business. No messages are left!!
  13. Got it. You're the best. It seems I have to read things several time to make sense of it.
  14. Shellie says: also check your rules and see how timely affidavits have to be. they sold the accounts 11/10, but affidavit was not made until 1/11. some states say 10 days, if yours does, then this is untimely, and I would object to it. And the fact you have no way to subpoena the affiant. I have gone through the Utah Rules of evidence and cannot find anything that references this. It seems Utah made changes to their Rules of evidence to make them identical to the Federal Rules some time ago, but I have not researched the federal Rules
  15. 1) Banks, which I understand. I had a business bank account until 2011 and they asked the bank for records back to 2007. The other banks they sent subpoenas , I never had accounts with. 2) A landlord of my wife's small business. This is the one I cannot figure out. They are asking for leases, contracts, agreements. correspondence, payment records, electronic mail, applications, deposit records, invoices and statements. Utah is not a community state and I worry about the hassle they are creating for these people (landlords)
  16. Shellie says: Did they include the "final data" sheet? or did they include some data sheet that has no reference but lists a bunch of redacted names except yours? How do you know who made it? Where did it come from? Who was the person of knowledge, and what is their title in the organization? Was the bill of sale notarized? And where is the purchase agreement that the bill of sale referenced? It is incomplete. Those are some of the points to hammer on. No final data sheet was included. No data sheet was included at all. The bill of sale was not notarized. Yes no Purchase Agreement provided. Shellie says: Did they give you a affidavit or witness from someone from midland who will testify to the accuracy of midlands records? No affidavit or witness has been provided to date. The attorneys are now serving subpoenas on everyone they can possibly think of. I'm sure they are doing it intentionally to harass me. Flyerfan says: Seriously, spend a lot of focus making this point. My suggestion (which I did in my case) is file a motion to preclude the bill of sale because they did not supply the ENTIRE document. When I did the very next letter I received was a dismissal with prejudice. They want no parts of having a judge telling them to show the court a document that says they buy crap accounts. What case law did you provide in your Motion or did you cite the Rules?
  17. Thanks for the comments Shellie, Racecar and BV80. It is much appreciated! I know that if I cannot get the initial disclosures excluded, I will have to pound away on the the BOS etc. It is my understanding, that the initial disclosures are not actually evidence until included in a Motion in Utah. Is that correct? In the meantime, will check out trying to maybe add to My Motion to preclude although I did mention in the Motion to Preclude all Initial Disclosures in addition to the first set received almost 6 months after they were due. Racecar, thanks especially for the CREDIT CARD PURCHASE AGREEMENT!
  18. Thanks Shellie!!! A big question to me is how often can they keep sending initial disclosures? Here is what the bill of sale says: Closing Date: November 16, 2010 Chase Bank USA,N.A. for value received and pursuant to the terms and conditions of Credit Card Account Purchase Agreement dated January 5, 2010 between Chase Bank and Midland Funding LLC its successors and assigns ("Credit Card Account Purchase Agreement"), hereby assigns effective as of the File Creation Date of November 10, 2010 all rights, title and interest of Seller in and to those certain receivables, judgments or evidences of debt described in the Final Data File, entitled (Account's Primary File Name) attached hereto and mad part hereof for all purposes. Number of Accounts Total Unpaid Balances Premium Due Seller Amounts due to Seller by Purchaser in hereunder shall be paid U.S. Dollars by a wire transfer to be received bu Seller on ( the "Closing Date") November 16, 2010 by 2:PM Sellers time as follows: Chase Bank USA NA ABA Beneficiary Name: Chase Bank USA NA Beneficiary Account # This Bill of Sale is executed without recourse except as stated in the Credit Card Account Purchase Agreement to which this is an Exhibit. No other representation of or warranty of title or enforceability is expressed or implied. With respect to account information for the Accounts listed in the Final Data File, Seller represents and warrants to Purchaser that (i) the Account information is complete and accurate; (ii) the Account information constitutes Seller's own business records and accurately reflects in all material aspects the information in the Seller's database; (iii) the Account information was kept in the regular course of business: (iv) the Account information was made in the at or near the the time by, or from the information transmitted by, a person with the knowledge of the data entered into and maintained in the Seller's database; and (v) it is the regular practice of Seller's business to maintain and compile such data. There is apparently a "Credit Card Account Purchase Agreement" which has not been provided by Midland Funding and also the second to last paragraph seems to let Chase Bank of the hook perhaps.
  19. UPDATE - So I served my Motion to Preclude Initial Disclosures and the attorney received it on Monday of this week. Yesterday I received a packet in the mail, which I thought might be an answer to the Motion. Low and behold I received PLAINTIFF'S SUPPLEMENTAL DISCLOSURES. This packet included the following (bear in mind these were sent out 2 days after they received my Motion to preclude Initial Disclosures and over 1 year after the initial Complaint was filed): A copy of a Bill of Sale from Chase to Midland Funding LLC, with a closing date of 11/16/2010 and signed by Jeff, Team leader for Chase and J. Branden Black for Midland. Jeff signed on 11/11/2010 and no date for Branden's signature. It appears to be a generic BOS with details such as Number of Accounts; Total Unpaid Balances; Premium; Due Seller Redacted. No account numbers or other data that would relate to an alleged account number or name. A copy of a closing statement with the name Chase at the top, with the Agreement date of 01/01/2010, file creation date of 11/10/2010 and closing date of 11/16/2010. Nothing on this closing statement relates it to the BOS except the 2 November Dates. Again, no account numbers or names. They inserted the Affidavit of Sale that I specifically asked to be precluded. This is dated 01/25/2011. Many different dates. I tried googling both the Chase Rep and the Notary and could find nothing. A NOTICE OF NEW OWNERSHIP AND PRE-LEGAL REVIEW. First time I have seen this. It is dated 11/21/2010.I thought I would have received this along time ago, but my Motion to Preclude has obviously stimulated something. Still no documents with my name etc. on them. I will re-serve my Motion for Security Deposit the first of the week, but curious as to what possible thoughts are. Any input is greatly Appreciated!!!
  20. Not trying to be argumentative, but I think that is the old Rule 37 which was superseded by the new one on 11/1/2011 Rule 37 Discovery and disclosure motions; Sanctions.Rule 37 Discovery and disclosure motions; Sanctions. (superseded 11/1/2011) Unless I am reading it wrong, which is quite possible!! Let me know what you think.