Initial disclosures, not filed with court, plus assignment = JDB?

[Cliff2009]

After I answered my summons regarding a medical debt, I was sent an initial disclosures. They give the copies of the patient admission form at the hospital but they also give a "Authorization to release Medical Information" waiving my HIPPA rights to the CA and law firm.

I called the court and they did not file this with the court, it does not say when I have to send it back. Do I just wait and see, I don't like signing away my rights.

Also, they sent a form saying "Blanket Assignment For Legal Accounts" It says that the OC

"For valuable consideration, the undersigned does hereby transfer and assign and set over unto CA (Our) (My) claim and demand against all debtors assigned together with all my rights, title and interest therein and demand represented thereby, and all rights of action accrued or to accrue theron and hereby grant unto said assigned, full power to sue for, collect, reassign, or in any other manner enforce collection thereof, in its own name."

Does that sound like I am dealing with a JDB or a CA for the OC?

[1stStep]

It looks like they want to be able to get docs from the OC to make their case against you...I wouldn't sign.

[Cliff2009]

It looks like they want to be able to get docs from the OC to make their case against you...I wouldn't sign.

Thanks!

That was my first thought. Plus when I first DV'd they sent a computer printout that had a couple diagnosis listed, I wonder if they know they need to cover their butt on that one.

Do you have any thought regarding my second part, does that sound like they bought the debt?

[KentWA]

They do not need to have you waive your rights to get the forms they need. A subpoena will allow them access without violating HIPPA. But if they go that way you want to make them give you a protective order that no one other than counsel may review such records.

Their blanket assignment is good coverage for them in Utah, but it also opens the CA to a huge liability. Under the business and professions act you can now sue the CA for Medical Malpractice performed by the Dr or Hospital. Assignment works both ways in Utah, not only do they get the benefit of the debt, they also take on the liability.

[Cliff2009]

They do not need to have you waive your rights to get the forms they need. A subpoena will allow them access without violating HIPPA. But if they go that way you want to make them give you a protective order that no one other than counsel may review such records.

Their blanket assignment is good coverage for them in Utah, but it also opens the CA to a huge liability. Under the business and professions act you can now sue the CA for Medical Malpractice performed by the Dr or Hospital. Assignment works both ways in Utah, not only do they get the benefit of the debt, they also take on the liability.

Thanks Kent! Do you have any idea how long I can wait to sign or respond, the initial disclosures and the Hippa form were not filed with the court?

Does it sound like they bought the debt or was the assignment just to hire them as a CA?

[KentWA]

Disclosures are not normally filed with the court. The assignment seems to be written for the sale of the debt, but is incomplete to establish standing. They need to get documentation from the OC that they have in fact transferred your account, that the amount in question is correct and any contract you have with them. The contract is going to be important as to the terms and conditions and whether you signed off on it or not.

Let me take a wild stab, is this company named after a certain race track in the west desert?

[Cliff2009]

Disclosures are not normally filed with the court. The assignment seems to be written for the sale of the debt, but is incomplete to establish standing. They need to get documentation from the OC that they have in fact transferred your account, that the amount in question is correct and any contract you have with them. The contract is going to be important as to the terms and conditions and whether you signed off on it or not.

Let me take a wild stab, is this company named after a certain race track in the west desert?

It is Mou*tain Land Collections.

The are the only company listed as plaintiff.The only form signed was the hospital admittance form.

[KentWA]

I am not familiar with their modes of operation but I can bet that they have tacked on a "Collection Fee". If this is not specifically allowed per the forms you signed it is an FDCPA violation. Have you started any discovery? You need to inquire into their assignment, as the blanket assignment will only get them so far, they have to connect the dots on your specific account.

[Cliff2009]

I am not familiar with their modes of operation but I can bet that they have tacked on a "Collection Fee". If this is not specifically allowed per the forms you signed it is an FDCPA violation. Have you started any discovery? You need to inquire into their assignment, as the blanket assignment will only get them so far, they have to connect the dots on your specific account.

The only fees added in the summons were court and attorney fees. The form said reasonable attorney and collection fees.

All I have done is answered the summons, they sent a correction to the case because they listed the wrong OC, I have yet to see the judges signed motion to amend on that one and then they sent me the initial disclosures with the HIPPA waiver form to sign and the blanket assignment.

Now I am just waiting to see what to do.

[Cliff2009]

I am not familiar with their modes of operation but I can bet that they have tacked on a "Collection Fee". If this is not specifically allowed per the forms you signed it is an FDCPA violation. Have you started any discovery? You need to inquire into their assignment, as the blanket assignment will only get them so far, they have to connect the dots on your specific account.

Kent,

I have a couple more developments.

Back in April they sent me a "Notice of Pre-Trial setting and for Settlement Conference" set for June 22nd. Even though it is only with the attorney, the court clerk said I do need to meet with them.

I checked out my case at the court and found a couple other interesting things.

1. There was a form filed by the clerk of the court called "NOTICE OF REQUIRED DISCOVERY COMPLETION DATES IN ACCORDANCE

WITH UTAH RULES OF CIVIL PROCEDURE (URCP RULE 26)"

They certify it was mailed but I never received it, I guess that is the clerks fault, not the attorney.

Today I received anther "Notice of Pre-Trial setting and for Settlement Conference" set for July 6th. I will write them regarding the dates to make sure they aren't triking me.

Also, the notice was dated and signed May 11th, with the certification "It is hereby certified that this request has been mailed, postage prepaid theron, on the date signed below to the following: Me.

The postage meter date was May22nd and it was post marked May 23rd. Can I make anything of this?

Any help or advice is appriciated!

[KentWA]

Sorry for the delay in responding, I am still not getting notified of PMs. About the only thing you might be able to get them on is if they are scheduling these conferences without consultation with you. It is supposed to be setup with meet and confer to find dates that work for both parties. Check with the clerk and ask if the dates were changed by the court or plaintiff. If they were changed by plaintiff you could file for protective order and a continuance of the scheduled date just to be a PITA.

[Cliff2009]

Sorry for the delay in responding, I am still not getting notified of PMs. About the only thing you might be able to get them on is if they are scheduling these conferences without consultation with you. It is supposed to be setup with meet and confer to find dates that work for both parties. Check with the clerk and ask if the dates were changed by the court or plaintiff. If they were changed by plaintiff you could file for protective order and a continuance of the scheduled date just to be a PITA.

Interesting, I will make a call. Thanks!

[Cliff2009]

Sorry for the delay in responding, I am still not getting notified of PMs. About the only thing you might be able to get them on is if they are scheduling these conferences without consultation with you. It is supposed to be setup with meet and confer to find dates that work for both parties. Check with the clerk and ask if the dates were changed by the court or plaintiff. If they were changed by plaintiff you could file for protective order and a continuance of the scheduled date just to be a PITA.

I called the court, they still show the original date, nothing about the July 6th date.

I will work on a letter. Thanks!

[BTO429]

Save that letter it could be used against them to show the court they are trying to make you a no show to get a quick default.

[Cliff2009]

Save that letter it could be used against them to show the court they are trying to make you a no show to get a quick default.

I plan on including a copy of the "letter" (official court looking Notice), the envelope dated 11 days after they certified mailing and the first notice in my letter I send to the court and the law firm.

Should I question the fact the later date is not scheduled and how I am having scheduling conflicts now?

[KentWA]

BTW, That letter may make out a wonderful case against the lawyer for violations of the FDCPA and the Utah Consumer Sales Practices Act. There is a recent Tenth Circuit ruling that Lawyers enjoy no Litigation Privilege within Utah for FDCPA and UCSPA and can be sued for bad acts during litigation.

[Cliff2009]

BTW, That letter may make out a wonderful case against the lawyer for violations of the FDCPA and the Utah Consumer Sales Practices Act. There is a recent Tenth Circuit ruling that Lawyers enjoy no Litigation Privilege within Utah for FDCPA and UCSPA and can be sued for bad acts during litigation.

Would this be something I hint at or mention in my letter, or in my meeting?

[KentWA]

I never hint or suggest, I send a summons. Well I have to take that back, I do hint and suggest as a way to misdirect the opposing lawyer during litigation, right up until he gets smacked up side the head with my real tactics.

I do not think you really said if this is a JDB suing or the OC. If it is the OC, then the only thing you can do is sue the lawyer in a separate action. However if this is a JDB, then I would amend to include counter claims.

[Cliff2009]

I never hint or suggest, I send a summons. Well I have to take that back, I do hint and suggest as a way to misdirect the opposing lawyer during litigation, right up until he gets smacked up side the head with my real tactics.

I do not think you really said if this is a JDB suing or the OC. If it is the OC, then the only thing you can do is sue the lawyer in a separate action. However if this is a JDB, then I would amend to include counter claims.

This is hard to tell, it was a hospital debt and the physicians network but the only documents they sent were an admission form signed, a computer printout of charges and a blanket assignment for legal accounts from both.

There are 3 different claims from two different instances.

One says "hereby transfer and assign and set over unto the CA (our) (My) claim and demand against all debtors ..... full power to sue for, collect, reassign, or in any other manner enforce collection thereof, in its own name."

The suit is in the name of the CA only, not the OC.

Does this sound like a JDB? I can send you the whole form if you like.

If so do I counter sue in the same suit?

[KentWA]

It looks like they have assigned all rights to sue on the account to a CA which can be done in Utah. An FDCPA and Consumer Sales Practices Act counter claim can be brought in the suit since the plaintiff is not the OC, but the CA/JDB.

[Cliff2009]

It looks like they have assigned all rights to sue on the account to a CA which can be done in Utah. An FDCPA and Consumer Sales Practices Act counter claim can be brought in the suit since the plaintiff is not the OC, but the CA/JDB.

I imagine I need to address the issue of the two dates first with the lawyers and the court. Should I make a motion to postpone the June 22nd conference until we can figure out which one is accurate?

[Cliff2009]

How does this sound?

"Request for continuance

COMES NOW the Defendant, appearing Pro Se and we hereby request a continuance of the Conference dated Xxxx ##nd 2012 at #:## am, to a time which can be mutually agreed a upon with the plaintiff and the courts schedule. The reason for the request is as follows.

The plaintiff mailed a Notice of Pre-Trial Setting and for Settlement Conference to us on Xxxx #th, 2012 for a meeting date of Xxxx ##nd, 2012. (See attached) This was scheduled at the Court so we made arraignments to attend.

On May 25th we received a Notice of Pre-Trial Setting and for Settlement Conference with A new meeting date of Xxxx #, 2012. The notice was certified to have been mailed on May 11th, 2012. However, the Postage meter date was May 22nd, 2012 and the Postmark date was May 23rd, 2012. (see attached)

We have been working to make new arrangements but we called the court to verify the new date and were told the Xxxx ##nd date and notice is all they have on file and scheduled for our case.

Being that we don’t know which date is the proper date and our scheduling is difficult to change, we request a continuance to a date which can be mutually agreed upon with the plaintiff and the courts schedule. We also request that due to our medical conditions and family obligations one or the other of us can represent us both in the conference. "

Should I file the counterclaim separately?

[Cliff2009]

Any feedback?

[KentWA]

Have you attempted to call or send a meet and confer letter to opposing counsel to find out what is up with the late service and and non-filed notice?

[Cliff2009]

Have you attempted to call or send a meet and confer letter to opposing counsel to find out what is up with the late service and and non-filed notice?

Hi Kent,

No, I have not. I talked to her clerk who said it is not a bad idea to send a letter to the court with the discrepancy mentioned because I don't want to lose for not showing on the first date.