Protective Order issues and compelled interrogatories.

[StardusterToo]

Location: Utah district court

JDB: Midland funding

Amount: 4k

Delaware statute of limitations should work, but apparently, my motion to dismiss can't be decided until after discovery. I don't think discovery is ever going to end with the old court rules they are apparently allowed to use.

It looks like I'm getting hammered on the procedural stuff. Even so, a little help with a few issues would be much appreciated.

They wanted to schedule a deposition with me. I don't think I could actually handle such a thing. So, I filed a motion for a protective order on the grounds that it is "overly burdensome and oppressive to an unrepresented party."

In the opposition to the motion, they say that "However, the deposition request is pursuant to the Utah Rules and the Defendant is a party to the case and thus subject to deposition."

Is there anything I can put in my response to help my request?

Then, they are trying to use a new procedure "a Statement of Discovery Issues" instead of a motion to compel for interrogatories. For a lot of their interrogatories, I claimed "attorney client/work product privilege" as a final attempt effort. They are claiming a Pro Se has no such privilege.

When I am ordered to answer the interrogatories, do I have any other recourse to protect my privacy? If I'm ordered by the judge to answer, is it to late to toss in the arbitration option to get out of it? If arbitration is used, can the statute of limitations still hold up?

These are the interrogatories that they are after. Some of their requests are of no real importance to me. I just don't trust them with anything. Especially the last one.

a. State your personal identifying information, including your full name, social security number, date of birth, any names used in the last seven years, residential address(es) for the past seven years, residential phone number, work address, and work number.

b. State the name and address of each person answering, or who has assisted in answering of these Discovery requests or who has otherwise provided Defendant assistance in this case, including the nature of said assistance.

c. Please state all books, records, papers and other documents you searched and/or reviewed in conjunction with answering these Discovery requests.

d. For each and every residence that you have maintained for the past 10 years provide the mailing address and the time periods when you resided at the residence.

e. State the basis for any defenses you have raised against the Plaintiff's claims in this Action. Provide the specific facts or laws that support your position; identify by name, address, and telephone number any witness who may have information supporting your position; and identify any documents that may support your position.

f. State the name, address, and telephone number of any person who has provided advice or who has helped you in any way to defend this Action. For each person identified, provide a reasonably detailed statement of their involvement in this Action.

g. If you dispute the Account Balance as stated by the plaintiff, state the amount you believe you owe, and explain how you calculated the amount, identifying specifically any documents that support your calculations.

h. For each payment you made on the Account, provide the date of payment, the amount of payment, the manner of payment(i.e., check, cash) the name of the party paid, and the address where you sent payment.

i. State the name of every financial institution (bank, credit union, etc.) that has, or has had within the past 10 years, an account (savings, checking, etc.) on which you are a signer, co-signer, owner, user, or otherwise authorized to access.

Thanks so very much.

[Coltfan1972]

What are the issues you have with those. They ask about your work which is irrelevant. They also make some assumptions like how much do you owe if dispute the amount alleged, but that is no big deal. You just say you owe nothing because you don't owe on the account, or you object for them stating facts as evidence when they are disputed by you.

They are 100% right on the depo, the atty-client, and it is probably too late for arbitration. It's obvious you've gone deep into the litigation route.

A- answer unless you want to object on your work, but answer all the rest

B- State you

C- the law on the internet and researched case precedent, or objection as part of your trial strategy, irrelevant, overly burdsome (surly you were not compelled to answer this one?)

D- Answer, big deal, they are trying to establish an account stated, but you still attack standing

E- If you used affirmative defenses then you have to answer this one.

F- Nobody but you

G- I dispute and owe nothing.

H- State you have no such records.

I- Answer or you could object as 10 years is excessive in my opinion.

I fail to see any big deal in these, what are your major issues?

[StardusterToo]

Thanks a bunch Coltfan1972. Sometimes the stuff sent by those jerks just throws out any rational thought. I haven't been compelled to answer any of that stuff yet, but they have submitted it for decision to the judge. So, it's coming.

I just don't trust them with any of the information. Perhaps I'm not bright enough to understand what they're trying to prove with it. It doesn't seem like it would help their case any, but since they are trying dang hard to get those things answered, I'm a little more than suspicious.

The really big problem is the deposition. It's kinda like in an earlier post where one spouse is assisting and the other might not be so well informed. How can someone quickly prepare for a deposition without really knowing their own case? It's going to get real ugly.

One thing that really confuses me though. I submitted a motion to dismiss for the statute of limitations. It was granted. The courts then say whoops, discovery was still going. We can't dismiss it yet. Then, a few days ago, the plaintiff sends a "submit for decision" on my motion to dismiss, but discovery is still going. WTF are they doing to me?

[Coltfan1972]

They are trying to get you to screw up procedurally and in doing so turn your victory into a loss.

I doubt they are really going to depose you over this type of case. They are trying to scare you into settling. Now of course I can't guarantee that, but this looks like the everyday run of the mill Midland case.

Look at it this way, in the deposition you can't concede standing. It's impossible because you are/were not privy to the alleged sale. You can't authentic the O.C. records and you can't authentic Midlands records.

So they prove you made some payments? Okay, that does not prove they have standing, it just proves at one time you made payments on the account.

Read this, it might help.

http://www.creditinfocenter.com/forums/there-lawyer-house/313112-all-inclusive-ive-been-sued-contacted-midland-whats-next-help-me.html

[legaleagle]

One thing that really confuses me though. I submitted a motion to dismiss for the statute of limitations. It was granted. The courts then say whoops, discovery was still going. We can't dismiss it yet. Then, a few days ago, the plaintiff sends a "submit for decision" on my motion to dismiss, but discovery is still going. WTF are they doing to me?

Stalling. What evidence did they submit to defeat the SOL claim? Discovery has no bearing on statutory decisions unless the court does not have the proper documents to make a decision. You should have attached ALL those documents to prove your claim when you submitted your motion. Did you? Either they filed in time or they didn't.

[StardusterToo]

One thing that really confuses me though. I submitted a motion to dismiss for the statute of limitations. It was granted. The courts then say whoops, discovery was still going. We can't dismiss it yet. Then, a few days ago, the plaintiff sends a "submit for decision" on my motion to dismiss, but discovery is still going. WTF are they doing to me?

Stalling. What evidence did they submit to defeat the SOL claim? Discovery has no bearing on statutory decisions unless the court does not have the proper documents to make a decision. You should have attached ALL those documents to prove your claim when you submitted your motion. Did you? Either they filed in time or they didn't.

They haven't submitted any new evidence to defeat the SOL claim. During discovery, the moment I got the cardmember agreement and pile of statements, I submitted it as evidence with my Motion to Dismiss, a Request for Hearing, a memorandum in support, and a proposed order with prejudice. The plaintiff filed their opposition to my motion and in my final reply, I submitted case law to counter all of the issues they mentioned.

The judge decided there was enough information to make a determination without the need for a hearing and granted my motion to dismiss. Then, 3 weeks later, I get a notice in the mail that because the plaintiff was granted more time for discovery at a pretrial conference, the motion to dismiss was set aside.

So, out of nowhere, the plaintiff is now requesting that the courts make a determination on my motion to dismiss. 4 Days later, they ask the judge to compel interrogatories and order us to schedule a time for a deposition.

I always thought that the moment a SOL issue was spotted that it needed to be submitted. It was even listed as an affirmative defense. But if the court tells me that the motion cannot be heard while discovery is going, why would the plaintiff ask the judge to make a determination on it again?

If my motion is denied because of a procedural timing issue, will I still be able to bring that issue up again later? It just doesn't make any sense.

I guess only time will tell. Hopefully I can get that certain someone to study up on this site.

[StardusterToo]

They are trying to get you to screw up procedurally and in doing so turn your victory into a loss.

I doubt they are really going to depose you over this type of case. They are trying to scare you into settling. Now of course I can't guarantee that, but this looks like the everyday run of the mill Midland case.

Look at it this way, in the deposition you can't concede standing. It's impossible because you are/were not privy to the alleged sale. You can't authentic the O.C. records and you can't authentic Midlands records.

So they prove you made some payments? Okay, that does not prove they have standing, it just proves at one time you made payments on the account.

Read this, it might help.

313112-all-inclusive-ive-been-sued-contacted-midland-whats-next-help-me

I've dealt with those jerks before. They are going to depose. I've been following the posts here for a few years, but if I cant help to educate this person, they have no hope at a deposition. A trial would just be a massacre.

Your all inclusive guide is certainly a good place to begin.

[BTO429]

Motion to reconsider

comes now the Defendant, pro se, and asks the court to determine if it erred in its decision not to dismiss.

Find some case law that supports the fact that a case can be dismissed with out completing discovery.

Statute of limitations to sue is an affirmative defense. If a lawsuit or claim is not filed before the statutory deadline, the right to sue or file a lawsuit or claim is barred, period and no discovery is needed to prove this. The only thing needed to prove SOL is the law its self in black and white.

If a suit is barred by SOL their standing to sue is gone and that is all you need to win this case. You will argue sol and standing. You need to do this to preserve your right to an appeal.

Ledbetter v. Goodyear Tire & Rubber Co. This is a discrimination suit but the SOL for suing was the determining factor in the case.

United Air Lines, Inc. v. Evans: Another discrimination case but SOL was used:

The court stated:

The Defendant did not initiate any proceedings of her own in 1968 by filing a charge with the EEOC within 90 days of her separation. A claim based on that discriminatory act is therefore barred by the Statute of Limitations.

Edited April 14, 2012 by BTO429

[legaleagle]

I fail to see how discovery can change the statute of limitations. That's like going to court and telling the judge that the sun didn't come up at 6.35 this morning, and you can prove it by asking the defendant if he owns sunglasses or not. Total BS. I think you got a bad judge or at the very least, a bad decision.

[Coltfan1972]

Are you sure the judge did not take the issue of the statute of limitations under advisement pending the conclusion of discovery?

[StardusterToo]

Thanks, BTO429. That's a lot of good stuff. I sure hope it works.

If the SOL can't get this thing tossed, there will be a MTD on the statute of frauds with no signed contract issue. Sure didn't think it would be applicable, but when they challenged the SOL, in a roundabout way, they said that it's applicable.

I'll still be preparing the stuff for arbitration just in case they start going after sanctions for my behavior.

These judges never provide names they just sign things as DCJ1, DCJ2, etc. It's always a different judge handling this case. There's no way to tell the good judge from the bad.

Coltfan1972, you are probably correct on the advisement pending discovery. It may be one of those special ex parte communications that I'm never supposed to know about. The court clerks have even been unwilling to show the judges notes that were entered on the docket around the time of the pretrial conference.

Guess it's time to just wait and see what happens over the next few days.

You're all such a nice group of friends. A few days ago, I was ready to call it quits on this case. Things are already looking a bit better.

[legaleagle]

there will be a MTD on the statute of frauds

The statute of frauds does not apply to credit cards. All the state rules I've read are identical, they give a specific list of the types of contracts that this applies to. Credit card agreements do not qualify.

[BTO429]

Driggers v. United States, No. 11-229, 2011 WL 2883283 (N.D. Tex. July 18, 2011) (Ramirez, Mag.). Holding: Granting defendants' motion for a protective order staying discovery. The court grants defendants' motion for a protective order staying discovery until such time that it can review defendants' motion for summary judgment and accompanying affidavits. The court notes "[a]allowing Plaintiff to conduct [ ] discovery before Defendants file a motion for summary judgment would essentially provide the relief he seeks through this lawsuit." Furthermore, the court finds that "[o]nly after [defendants] file a motion for summary judgment and supporting affidavits will the Court have the information necessary to appropriately limit the scope of discovery or forego it entirely." To the extent that plaintiff's discovery seeks information regarding the content of the documents and the reasons for their creation, the court notes that such an inquiry "far exceeds the limited scope of discovery usually allowed in a FOIA case."

Reich v. DOE, No. 09-10883, 2011 U.S. Dist. LEXIS 27317 (D. Mass. Mar. 17, 2011) (Gorton, J.). The court denies plaintiff's request for discovery, because DOE's declarations "are 'reasonably detailed' and 'submitted in good faith.'" The court also notes that the plaintiff "has proffered no evidence that any of the declarants has misled the Court or had any motivation to do so" and further comments that "the purported issues of fact [raised by plaintiff] . . . are actually questions of law."

In case they try to claim you are showing bad faith by not submitting discovery and admissions.

CareToLive v. FDA, No. 09-4084, 2011 WL 31416 (6th Cir. Jan. 6, 2011) (Martin, J.). The Sixth Circuit holds that the district court acted within its discretion to deny appellant's request for discovery. For one, the Sixth Circuit finds that appellant's affidavit in support of its motion for discovery failed to meet the requirements of Federal Rule of Civil Procedure 56(d) because "[t]he statement was not sworn to before a notary public nor signed under penalty of perjury pursuant to 28 U.S.C. § 1746" and also fails to "set forth any factual basis for the relief [appellant] is seeking." In addition, the Sixth Circuit determines that "[t]he district court did not abuse its discretion when it concluded that [appellant] failed to establish bad faith on the part of the FDA." The Sixth Circuit finds that appellant's allegations regarding the FDA's decision to place appellant's request in a "complex" track, and its claims about the adequacy of search and the pre-request destruction of records do not evidence any agency bad faith.

Wilson v. U.S. Dep't of Transp., No. 10-5295, 2010 WL 5479580 (D.C. Cir. Dec. 30, 2010) (per curiam). The Circuit also notes that discovery is not appropriate where "appellant offered no evidence of bad faith to rebut the agency's affidavits."

Taylor v. Babbitt, No. 03-0173, 2009 WL 4795837 (D.D.C. Dec. 15, 2009) (Urbina, J.). The court denies without prejudice plaintiff's motion for discovery. "Postponing discovery until after the government has submitted its dispositive motion and supporting documents allows the court to obtain information necessary to appropriately limit the scope of discovery or forgo it entirely." Plaintiff may file a renewed motion once the government has submitted its motion for summary judgment because "[a]t that point, the court will have had the opportunity to review the merits of the defendants' exemption claim and will be better suited to make a discovery ruling."

[BTO429]

cant use statute of frauds here, without a signed contract that just adds to help you prove lack of standing to sue. Along with the SOL.

[StardusterToo]

there will be a MTD on the statute of frauds

The statute of frauds does not apply to credit cards. All the state rules I've read are identical, they give a specific list of the types of contracts that this applies to. Credit card agreements do not qualify.

Very true, but they claimed to the court that Utah's 6 year statute of limitations should apply instead of the 4 year statute for credit cards because this is over a breach of contract. In support of their claim, they pointed to Utah Code §78B-2-309 (6 year SOL) and said that Utah Code §78B-2-307 (4 year SOL) doesn't apply. If that's so, there must be a written and signed contract. The Uniform Commercial Code 70A-2-201 might kick in at this point. It says "a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought

I know it's an extremely long shot, but if they claim a chicken is a duck, they might have to deal with it.

[StardusterToo]

Thanks, BTO429. That stuff you found for me is absolutely golden!!!!

[legaleagle]

They cannot produce a signed agreement beause there never was one. This is not a "contract" in the strict definition. Therefore, the statute of frauds does not apply. The only SOL that should apply is the one from the lender's home state. They insisted on a choice of law, let them live with it.

[StardusterToo]

Right on, legaleagle. The only real reason the Delaware SOL can fail is if the court denies the governing law in the agreement. It looks like they accept it, but I'll honestly give anything a shot to at least make the plaintiff wonder what kind of insanity they'll be dealing with.

[Coltfan1972]

I think where they will beat you is they can argue there was a written contract. Although that contract can no longer be produced, the actions of the parties showed their was a "meeting of the minds" so to speak, as to the written contract.

In other words if you do something over and over again, and neither party objects, the contract's terms and understanding(s) are "set" "agreed to" and "stated" even though their is no actual written contract anymore.

Like a common law marriage. The actions by the parties indicate they both are under the same mindset that they are married. They behave as they are married and act as they are married. They just don't have a piece of paper that says they are married.

[StardusterToo]

Luckily, in discovery, they already said there wasn't a written contract because they didn't need one. I know I don't have much of a chance at all with it. Still... it could be interesting.

[Coltfan1972]

Midland can be beat with ease. They are beat all the time. Stop focusing on the contract. Focus on if they even have legal standing to even be suing you.

[StardusterToo]

Aside from the SOL, we all know they don't have standing. It's just that it's not a safe thing to bring it up to the judge until after discovery. The way you can handle things is impressive, but I would just make a mess of it.

After finding out that the old rules of procedure are supposed to be used in this case, there is really no end to discovery until the plaintiff says it's over. Those jerks are way too aggressive. So, if it helps out at all, I'm throwing everything including the kitchen sink at them.

[StardusterToo]

It looks like the delay was a Rule 56 motion to postpone a motion for summary judgment until discovery is made to contest it. Thanks, Coltfan1972 and BTO429, for pointing that out. Since it happened after the pretrial conference, there was no way to really know about it. This law firm does it a lot in the federal cases that were spotted on pacer.

So, what would be an appropriate way to fix this? Is a motion to reconsider appropriate? Should anything be changed before submitting it?

MOTION TO RECONSIDER

COMES NOW, the Defendant ______________, Pro Se, and hereby states that the Court should reconsider Plaintiff’s Rule 56 motion because Plaintiff fails to explain how any evidence that it might discover could defeat the Defendant’s summary judgment motion that was filed as a motion to dismiss.

To obtain Rule 56 relief, Plaintiff must explain how discovery could obtain evidence that might defeat the Defendant’s pending summary judgment motion.

Defendant’s motion relies exclusively on undisputed and uncontroverted facts that the Plaintiff provided to Defendant during discovery. Defendant has submitted documents of these facts as exhibits A, and B. And evidence that the Plaintiff might obtain through additional discovery cannot controvert those facts or otherwise defeat summary judgment for the Defendant.

“Rule 56© of the Utah Rules of Civil Procedure provides that summary judgment is proper where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Thonock v. Cook, Utah, 604 P.2d 934 (1979). When a motion for summary judgment is made and supported by affidavit as provided in Rule 56, an adverse party may not rely upon mere allegations or denials of his pleadings to avoid summary judgment but must set forth specific facts showing that there is a genuine issue for trial.” Bangerter v. Poulton, 663 P. 2d 100 - Utah: Supreme Court 1983.

FACTS

1. Exhibit A is a cardmember agreement provided to Defendant by Plaintiff through discovery.

2. The cardmember agreement sets that the Governing Law of Delaware be used to enforce the terms, agreement, and account.

3. Delaware Code Title 10, Chapter 81, § 8106 establishes a 3 year statute of limitations for “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”

4. Exhibit B contains credit card statements of the account from _date_ to _date_

5. These credit card statements were provided to Defendant by Plaintiff through discovery.

6. These statements appear incomplete only on transactions prior to _date_ and in no way has any effect on the statute of limitations.

7. The statements show the last purchase date as _date_.

8. The statements show the last payment was made on _date_.

9. The most recent statement shows that a balance of $**** is owed.

10. The summons that was served to Defendant states a claim for $****.

11. The credit card statements and the summons show identical values and that no further payments were made since __date__

12. The Defendant, _____ , was served a Summons by the Plaintiff, Midland Funding LLC, on _date_ and it was filed with the Court on _date_.

13. The Plaintiffs action was brought against Defendant after the 3 year statute of limitations.

14. The Plaintiffs action is untimely, and barred by Delaware’s 3 year statute of limitations.

15. The Plaintiff is without standing in this cause of action.

The Plaintiffs motion does nothing but cause delay and lacks merit “the trial court need not grant rule 56 motions that are dilatory or lacking in merit” United Park City Mines Co. v. Greater Park City Co., 870 P.2d at 893

Edited April 16, 2012 by StardusterToo

[BTO429]

Unifund ccr vs Nishawn Riley

The COA held that merely showing that payments were made on the account was insufficient to show that the Defendant, himself, made those payments.

[gwendalyncampbell]

I also have received the very similar interrogatories but I was wondering what I should answer for the additional question..

1. State the name, address, and telephone number of any person who used or made any charges to the Account in addition to you.

Also how should I phrase the answer to the original " i. State the name of every financial institution (bank, credit union, etc.) that has, or has had within the past 10 years, an account (savings, checking, etc.) on which you are a signer, co-signer, owner, user, or otherwise authorized to access."

This is what I was thinking..

Objection, plaintiff request for information regarding to the defendant in this manner is excessive in nature.

Plus I have no information in reality except the accounts I have open currently. All my credit cards have long since been destroyed and I did not keep the records because its been over 5 years since I've made a payment.