Bob Fletcher

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Everything posted by Bob Fletcher

  1. Third issue of contention presented by the Plaintiff. I must admit I feel in over my head at the moment, but hope this can be simplified. I am going to post the entire section so there is no confusion in my interpretation. EVEN IF THE DELAWARE STATUTE OF LIMITATIONS WERE TO APPLY, RUNNING THEROF HAS NOT BEGUN UNDER DELAWARE LAW In his Motion to Dismiss, Defendant has addressed the tolling laws of the State of Delaware, apparently assuming that Plaintiff would point out that under 10 Del.c. 8117, the running of Delawar's statutes of limitations is tolled until the defendant "comes into the State [of Delaware] in such a manner that by reasonable diligence, such person may be served with process." 10 Del.C. 8117 In other words, the running of the statute of limitations, under Delaware law, does not begin until a potential defendant goes to Delaware and is in Delaware in such a manner that would reasonably allow him to be served process there. When applying a borrowed statute of limitations, courts must consider not only the statute itself, but also any applicable tolling statutes as well, See Duke v. Housen, 589 P.2d 334, 345 (Wyo.1979), cert. denied, 4444U.S. 863, 100 S.Ct. 132, 62 L.Ed2d (1979); See also American Bank of Commerce v. Corondoni, 169 Cal.App.3d 368, 215 Cal.Rpt.331, 34 (1985) (whether California's statute of limitations has run depends upon the effect of its tolling statute.") Unfortunately, there is not a case from the State of Utah examining Delaware's tolling staatute in the instant context; however, the Supreme Court of Delaware itself has examined its tolling statute and found that the statute is to be literally read as precluding the running of a statute of limitations while a potential defendant is not in the state of Delaware. In Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co. Inc., the Supreme Court of Delaware found that a party's claims were not barred by the Delaware statute of limitations. The claims were not barred despite more than three years having passed because the potential defendant was out of the state of Delaware during the time in which the statute of limitations would have otherwise run. See Saudi etc and also CACV of Colorado, LLC v. Stevens 274 P.3d 859 (Or.2012) (holding that Delaware's tolling statute was according to Delaware law, to be read literally, and precluded the statute of limitations from running until the defendant was in the state of Delaware and subject to service of process there). Defendant has cited to a Delaware case, Hurwitch v. Adams, to support his notion that Court should apply the Delaware statute of limitations, but ignore the Delaware tolling Statute. Not only is such a notion inequitable on its face, the case cited by the defendant does not support the defendant's incorrect notion. If the procedural law of a certain forum applies, then all the procedural law of that forum applies - a party cannot pick and choose the procedural laws he wants to apply and those he does not. In Hurwitch, the Court found all of the defendants named below could have been served by substition under Del.C. 3112, a statute designed to obtain jurisdiction over non-residents using Delaware highways, [...] therefore, we are of the view that there was not tolling of the one year statute of limitations because of the fact that the defendants were non-residents. Hurwich v. Adams, 155 A.2d 591 593 (Del 1959) In Hurwitch, the Delaware SuprememCourt found 10 Del.C. 811[7], the statute addressing the tolling of Delaware statutes of limitation for parties outside the State of Delaware, was inapplicable in that case; however, the reason for the inapplicability was not merely because the defendants were non-residents. Section 811[7] was inapplicable because there was a statute designed to obtain jurisdiction over non-residents using Delaware highways under which the defendants could have been served. In our case, the subject matter is not regarding Defendant's use of Delaware highways; therefore, the other Delaware statute that made 811[7] inapplicable in Hurwich is not relevent to our case. The fact the Defendant is a non-resident of the state of Delaware, is irrelevant as far as the Hurwich case matters, because this case has nothing to do with Defendant's use of the Delaware highways; nor is there a Delaware state designed to obtain jurisdiction under which the Defendant could have been served. I would appreciate comments and advise on how to proceede with this objection!!
  2. Ok, the next piece of Plaintiff's opposition needs to be addressed and I need some help! They submit "The cause of action is not one that was created by a statute or act from the State of Delaware; therefore, because the statute of limitations is not integral to the cause of action (that is, the cause of action was not created by a statute or act from the State of Delaware) the applicable statute of limitations is that of Utah" Again, no mention of the Utah Borrowing statute ever occurs in their memorandum. A large portion of their argument is procedural vs substantive and SOL is procedural. Do I need to address case law cited by the Plaintiff or can I just start hammering the Borrowing statute 78B-2-103??
  3. Yes I did, see that thread, Thank You!! Also thank you for the suggested answer for the failure to state a defense!
  4. Regarding the Plaintiff's Statements of Fact, they included a statement that the "Defendant did not include the statute of limitations as a defense on his Answer". What is the best response to this??? In my answer, I did reserve the right to plead additional defenses as they may become applicable and/or available.
  5. Another item I need help on, is there assertion that Utah is the Forum state of this case. It seems this is a major point for them as. Is it correct???
  6. They used the following case to argue "Choice of law provisions in contracts are generally understood to incorporate only substantive law, not procedural law such as statutes of limitation" Federal Deposit Ins. Corp. v. Petersen, 770 F. 2d 141 - Court of Appeals, 10th Circuit 1985. It is also noted in the decision that the "The Supreme Court has said with regard to a claim assigned to the Federal Housing Authority and brought by it on behalf of the United States, that "t is well settled that the United States is not bound by state statutes of limitation...." United States v. Summerlin, 310 U.S. 414, 416, 60 S.Ct. 1019, 1020, 84 L.Ed. 1283. What is the best way to address this reference regarding Substantive versus procedural??
  7. "Allowing Mr. Jackett to pursue his claim in our courts would open the door to other tardy out-of-state plaintiffs searching for a more favorable forum."
  8. Agreed, I am going through the case law presented and at first glance it appears to be very tangential. They argue Choice of law provisions incorporate only substantive law not procedural law, such as statutes of Limitation. They cited Jackett v Los Angelos Dept of Water and Poerr. 771 P.2d 1074, 1075-76, (Utah App.1989) My take away on this case, is Utah did not want to spend court time trying the case.
  9. Oops, posted before I was finished!!!! Anyway, here is the clause: THE TERMS 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.
  10. So things are beginning to heat up and I am feeling a bit overwhelmed, which is I suppose what is intended by the Plaintiff. I submitted my MTD on May 5th and received the Plaintiff's Opposition to MTD yesterday. I am still relatively new to this Forum and I apologize in advance if I am a bit rough around the edges in my posts. I am still unclear on what exactly I can ask and what is inappropriate. Please let me know if I am not following protocol and I will adjust. I guess what I am saying is that I am not sure how much of a legal nature may be included in my questions. I have included a link to the rough draft of my MTD below. The final was similar but I beefed up my Conclusion a bit. http://www.creditinfocenter.com/community/topic/319465-going-for-security-deposit-utah/?hl=fletcher#entry1233078 I would be happy to post the exact answer from the Plaintiff if it would be helpful, but thought to save time I would post a summary of the Opposition. I am working on my reply, which I need to have in by the end of the week. In their Statements of fact they say the following: A statute of limitation is procedural, not substantive law. (Which I agree with) Plaintiff admits that the terms of agreement governing the underlying credit card account in this case are contained in the document attached to Defendant's MTD. The terms of the agreement in this case do not expressly state any intent to include Delaware's procedural law. (It seems they want to pick and choose how they want to interpret the agreement as to how it suits them) Utah is the forum state of this case. Defendant did not include the statute of limitations as a defense in his Answer. (This is true, but I did not receive a copy of the cardmember agreement, with the Plaintiff's Initial Disclosures until almost 6 months after the Complaint had been filed)(Also, since a MTD is procedural I did not think it needed to be a defense)The precise wording of the Governing Law Clause is as follows:
  11. Thanks Bruno!! I filed my Motion for extension yesterday and was told by the Clerk she would present to the Judge and have an answer by tomorrow afternoon.
  12. Need some advice on procedure. I am currently scheduled for oral arguments on Motions before the Court on Monday April 22nd. I have just found out I have to be out of town all next week, so am drawing up a Motion to Postpone the Court date. As it only 1 week away, I want to file today and am not sure if I need to submit an Order with the Motion to Postpone. If I do, it seems like I would eed to have the signature line as the Judge? Also, I know I need to serve the Plaintiff with the Motion. Is this something they will typically respond to?
  13. Good point Bruno, I don't want to tick off the judge. If I file now would you expect the Judge to allow Oral Arguments on the SOL at the scheduled meeting? Flyerfan - It was under Utah SOL,, but since Utah is a Choice of Law State, and the Chase Agreement is under Delaware Law I am going to argue their 3 year SOL. Both the last payment and purchase is well beyond the 3 year SOL
  14. Latest Update, Received from the Court today a "Notice of ALL Pending Motions", with a court date of 4/22/13, which says the Court has set aside 30 minutes for Oral Arguments on all "Pending Motions" The Plaintiff has a Motion before the Court for a Pre-Trial Conference and I have a Motion before the Court for a Security Deposit. Not exactly sure what to expect here? I do have my MTD for SOL in my Quiver and was holding it until I received an answer on my request for Security Deposits. This changes it a bit and was thinking of submitting it just prior to the Oral Arguments. I would do it now, but will be out of town at a critical period with deadlines etc. Not sure if I would tick off the Judge by submitting it just prior to the hearing. I'm sure it will tick off the Plaintiff/JM.
  15. Following is my response to their opposition: STATEMENT OF FACTS On March 14, 2013, Plaintiff was served with Defendant’s Motion for Security Costs. As of March 28th, 2013, Plaintiff had not served Defendant with a Statement and Memorandum Opposing the Motion and Defendant filed a Request for Decision. On April 1, 2013 Defendant was served with Plaintiff’s Opposition to the Motion. Said Opposition was post-marked March 29th, 2013. MEMORANDUM Plaintiff failed to respond to the Defendant’s Motion for Security Costs in the time allowed by U.R.C.P. Rule 7©(1). According to this Rule the Plaintiff must file its Opposition within 10 days of being served. Even allowing an additional 3 days as per U.R.C.P. Rule 6(e), the response was beyond that allowed. Furthermore, Plaintiff’s Argument that the Bond should not be allowed as the Defendant has failed to show or allege what costs may be incurred, is a specious argument as it assumes the Defendant will have no cost incurred simply because he is a Pro Se Defendant. Defendant clearly states it is too early to tell what expenses will be incurred in this matter. To date, in postage and office supplies alone, the Defendant has incurred a fair expense. In addition, Defendant assumes the recently amended Utah Rules of Civil Procedure with the goal of keeping costs down does not only apply to the Plaintiff and should likewise apply to the Defendant and no where do the changes not allow for the posting of a security bond. Finally, it is important for Defendants in a court of law to have some protection from the vexatious litigation of the “Junk Debt Buyers”. The Plaintiff is a “Junk Debt Buyer”. This was filed with the court on 4/3/13. Defendant prays the Court rule in his favor. Request for an answer has been submitted.
  16. I filed my Motion for Security Costs on March 13th and JM for Midland Funding was served on March 14th. As per the Utah Rules , A response in opposition needs to be filed within 10 days and if they are served via USPS mail add 3 day for a total of 13 days. On March 28th, (15 days after Plaintiff was served w/ Motion), I filed my Request for a decision and the Plaintiffs attorneys were served with the request on March 29. On March, 29th, Plaintiff mailed opposition to security costs and I was served with it today, April Fools Day. Here is their answer: Argument - "Defendant has requested a cost bond to be filed by Plaintiff but has failed to show or allege what costs (not attorney fees but costs) he might incur in this case. As such, without even alleging what costs might be incurred, Defendant cannot have shown any "reasonable necessity" for any such cost bond. Furthermore, the Utah Rules of Civil Procedure have recently been amended with the specific goal of keeping costs such as this one down to a reasonable amount. Finally, Defendant cites a number of cases about attorney fees, however, Defendant in this case, is pro se and as such he cannot at this time be awarded attorney fees. Until or unless Defendant can show the reasonable necessity for a cost bond, his request should be denied." First of all the Plaintiff's response was late, although I am beginning to believe this is just another tactic for the JDB, should I still provide the Court an answer to the Plaintiff's opposition. I have 5 days to do so. Regarding the formulation of an answer, it seems the Plaintiffs answer seems to be simply that since I am Pro Se, I won't have any attorney fees. This certainly does not mean I will not have costs involved in dealing with these wretched creatures. It is not possible to know in advance, what costs I might have. I am a Pro Se Defendant, and this is all new to me. Plus according to Utah Law, a Pro Se Defendant may be entitled to Fees if the Defendant wins its case. In my Motion I mentioned we were in the early stages of Discovery. It is interesting controlling costs is only important for the Junk Debt Buyers, since they have to file so many lawsuits!!
  17. 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 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 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.
  18. HELP NEEDED, PLEASE! Asking for Security Costs in Utah seems to be relatively uncharted territory and I feel we need to fight this as best we can to set a precedent for future cases against the JDB's. I filed my Motion for Security Costs on March 13th and JM for Midland Funding was served on March 14th. (These were posted on another thread). As per the Utah Rules , a response in opposition needs to be filed within 10 days and if they are served via USPS mail add 3 day for a total of 13 days. On March 28th, (15 days after Plaintiff was served w/ Motion), I filed my Request for a decision and the Plaintiffs attorneys were served with the request on March 29. On March, 29th, Plaintiff mailed opposition to security costs and I was served with it today, April Fools Day. Here is their answer: Argument - "Defendant has requested a cost bond to be filed by Plaintiff but has failed to show or allege what costs (not attorney fees but costs) he might incur in this case. As such, without even alleging what costs might be incurred, Defendant cannot have shown any "reasonable necessity" for any such cost bond. Furthermore, the Utah Rules of Civil Procedure have recently been amended with the specific goal of keeping costs such as this one down to a reasonable amount. Finally, Defendant cites a number of cases about attorney fees, however, Defendant in this case, is pro se and as such he cannot at this time be awarded attorney fees. Until or unless Defendant can show the reasonable necessity for a cost bond, his request should be denied." First of all the Plaintiff's response was late, although I am beginning to believe this is just another tactic for the JDB, should I still provide the Court an answer to the Plaintiff's opposition. I have 5 days to do so. Regarding the formulation of an answer, it seems the Plaintiffs answer seems to be simply that since I am Pro Se, I won't have any attorney fees. This certainly does not mean I will not have costs involved in dealing with these wretched creatures. It is not possible to know in advance, what costs I might have. I am a Pro Se Defendant, and this is all new to me. Plus according to Utah Law, a Pro Se Defendant may be entitled to Fees if the Defendant wins its case. In my Motion I mentioned we were in the early stages of Discovery. It is interesting controlling costs is only important for the Junk Debt Buyers, since they have to file so many lawsuits!!Any help would be greatly appreciated!! I also received in the same packet from JM, Plaintiff's Statement of Discovery Issues. Plaintiff had asked for 6 years of bank statements in initial discovery. My answer was "After a diligent search and reasonable inquiry, no such documents are in the care, custody or control of the Defendant. Defendant has not maintained a bank account foe over 3 years". Which I have not. Here is their Statement: Plaintiff sent Discovery to the Defendant. Defendant provided a response. However, Defendants responses to Plaintiff's Discovery were incomplete as Defendant failed to provide any of the requested documents. Based upon the Defendants defective responses, Plaintiff requests the Court order to fully resond within 14 days. Said requests are proportional as the information is needed for this case, the burden is minimal as the requests are for information in the Defendant possession or control or the Defendant can respond indicating that it is not, the discovery is not cumulative and the information is for the Defendant knowledge or understanding of the facts. ( this is actual wording) Defendant's bank records are relevent and discoverable in this matter because they are business records identifying creditors to whom Defendant. As such they are likely to identify creditors to whom Defendant has recognized an obligation to make payments. Further, such bank records are likely to evidence Defendants failure to make payments that were due. ( again exact wording)Any help would be greatly appreciated.
  19. HELP NEEDED, PLEASE! Asking for Security Costs in Utah seems to be relatively uncharted territory and I feel we need to fight this as best we can to set a precedent for future cases against the JDB's. I filed my Motion for Security Costs on March 13th and JM for Midland Funding was served on March 14th. As per the Utah Rules , A response in opposition needs to be filed within 10 days and if they are served via USPS mail add 3 day for a total of 13 days. On March 28th, (15 days after Plaintiff was served w/ Motion), I filed my Request for a decision and the Plaintiffs attorneys were served with the request on March 29. On March, 29th, Plaintiff mailed opposition to security costs and I was served with it today, April Fools Day. Here is their answer: Argument - "Defendant has requested a cost bond to be filed by Plaintiff but has failed to show or allege what costs (not attorney fees but costs) he might incur in this case. As such, without even alleging what costs might be incurred, Defendant cannot have shown any "reasonable necessity" for any such cost bond. Furthermore, the Utah Rules of Civil Procedure have recently been amended with the specific goal of keeping costs such as this one down to a reasonable amount. Finally, Defendant cites a number of cases about attorney fees, however, Defendant in this case, is pro se and as such he cannot at this time be awarded attorney fees. Until or unless Defendant can show the reasonable necessity for a cost bond, his request should be denied." First of all the Plaintiff's response was late, although I am beginning to believe this is just another tactic for the JDB, should I still provide the Court an answer to the Plaintiff's opposition. I have 5 days to do so. Regarding the formulation of an answer, it seems the Plaintiffs answer seems to be simply that since I am Pro Se, I won't have any attorney fees. This certainly does not mean I will not have costs involved in dealing with these wretched creatures. It is not possible to know in advance, what costs I might have. I am a Pro Se Defendant, and this is all new to me. Plus according to Utah Law, a Pro Se Defendant may be entitled to Fees if the Defendant wins its case. In my Motion I mentioned we were in the early stages of Discovery. It is interesting controlling costs is only important for the Junk Debt Buyers, since they have to file so many lawsuits!!Any help would be greatly appreciated!!