Need Assistance with Request for Admissions Please

[fatsac]

A friend of mine has a case where she is being sued by a Collection Agency over a child care debt that was State assisted. Due to school starting, she needed to take her kids out of day care and put them in school. When doing so, the day care explained that she would need to pay the entire month that she was using the services, even though she would only be using a partial month of service (contrary to what the contract states). She paid for the entire month (state assisted) and only used the day care services up until the 11th of the month.

In the contract, that is signed and dated by her, it states that she must provide 2 weeks written notice before terminating the contract. She provided 2 weeks verbal notice that she was taking the kids out of day care and terminating the contract. The Day Care said nothing about written notice to her when she informed them of taking the kids out. She did not have the contract on hand to examine nor did she think she needed to when removing her kids or terminating the contract.

She was sent a bill by the Day Care for the entire month after she took the kids out. She called and explained to them what happened and they said they would look into it. She didn't hear anything more from them. To her surprise she was sent to collections over the debt that she didn't know she owed. She did send a validation letter once she received the collection letters. What were returned to her were copies of the original contract that she signed and an itemized list of payments to the day care. Stating payments that were made and stating when each child attended. It stated an outstanding balance of $56 due to costs that are not covered by the State assisted program plus a charge for the entire next month (not 2 weeks) after she had taken her kids out of day care.

The thing is, they are suing her for an entire month that they say she didn't pay. There is no wording in the contract that states if she doesn't pay they are able to charge her a full month. It only states that a written two week notice is required and payable prior to terminating... it goes on to say that the parent will be charged even if the time is not used for this two week notice.

If it doesn't state that they can charge her for the entire month and the only wording in the contract states a two week notice, wouldn't she only be responsible for those two weeks? Considering she paid for the full month and only utilized 11 days of that month. She would have already paid for the two weeks that are required (with written notice) but she also would have paid for two additional weeks of service that would have covered any issue with (verbal notice).

Can you please help her/us with this RFA so she can start to get this thing taken care of? She did nothing wrong and should not be having to go through this type of thing. Especially when it was a state assisted (fully paid) program in the first place. It seems to me that the Day Care actually owes the State of Utah money due to overcharging her for the additional 2 weeks of service. She does not dispute that she owes them the $56 that the state assistance would not cover.

-------- Start QnA --------

1. Who is the named plaintiff in the suit?

Would like to keep this one under wraps till it's over. Very small CA in Utah

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)

Would like to keep this one under wraps till it's over. Very small Lawyer in Utah

3. How much are you being sued for?

$2000+ - Initial bill was for $981 from OC

4. Who is the original creditor? (if not the Plaintiff)

Day Care

5. How do you know you are being sued? (You were served, right?)

Served

6. How were you served? (Mail, In person, Notice on door)

In person

7. Was the service legal as required by your state?

Yes

8. What was your correspondence (if any) with the people suing you before you think you were being sued?

They called; she explained why she thought she didn’t think she owed then debt. They just kept telling her that she didn’t give 30 days’ notice.

9. What state and county do you live in?

Salt Lake County, Utah

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)

2009

11. What is the SOL on the debt? To find out:

4 Years

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

Motion to strike and default judgment due to her not answering “Request for Admissions”. She did answer the initial summons but failed to answer the RFA in time. She asked for a hearing and the Judge gave her an additional 5 days to get the RFA in. That is why we are here asking for your assistance now.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)

Yes

14. Did you request debt validation before the suit was filed?

Yes

15. How long do you have to respond to the suit?

4 days

16. What evidence did they send with the summons?

Copy of signed contract and copy of itemized payments. The additional month was written in like it was an afterthought.

-------- End QnA --------

The signed and dated contract (Exhibit A) was included with the RFA

Here are the RFA questions:

1.Attached to these Request for Admissions as Exhibit A and by reference incorporated herein is a State Paid Payment Agreement. With respect to said exhibit, admit:

A.That Defendant signed the agreement.

B.That Defendant signed the agreement on or near month/day/year.

C.That Defendant signed the agreement for the purpose of placing her children in XXX

2.With respect to Exhibit A, admit the exhibit provides, "A written 2 week notice is required and payable prior to terminating my child care needs with XXX. Parent will be charged even if time is not used for this two week notice."

3.With respect to the previous question, admit that Defendant did not provide written notice of the date Defendant intended to terminate the services of XXX.

Thank you for any help you can provide

Edited August 15, 2012 by fatsac

[My~Cuz~n~Vinny~]

2.With respect to Exhibit A, admit the exhibit provides, "A written 2 week notice is required and payable prior to terminating my child care needs with XXX. Parent will be charged even if time is not used for this two week notice."

3.With respect to the previous question, admit that Defendant did not provide written notice of the date Defendant intended to terminate the services of XXX.

XXXXXXXXX

I'm a newbie here but I think I'd say...

Admit 2. Yep ! Sho~nuff. Remember you got all that 4 weeks ago

3. Deny. Defendant verbally told plaintiff they would receive a written notice and payment on such a such a day. That same such day Defendant sent the written notice.Plaintiff is entirely mistaken and their accusation is complete hearsay.

Basically your hearsay is as good as theirs. You show no prior history of intent to defraud said business nor any other business relationships you have or had. Sorry...but your wrong Mr. Day care center.

Who picks up your mail/ Are you sure said letter didn't go in to your shredder so you could fraudulently bilk the Defendant since she no longer required your services? Prove me wrong then.

Maybe said business didn't have enough money to pay taxes or the power bill for the property. All I know is that I sent it.

I could be wrong though. Maybe she left the letter with them the same day she told them and they misplaced it.

Maybe they were closed and she taped the letter to their door because she paid them cash that same day and then went home to properly type the letter..

Edited August 15, 2012 by My~Cuz~n~Vinny~

[fatsac]

I believe when she went in front of the judge she admitted to not providing written notice. Basically, explaining the entire story to the Judge.

When she requested a hearing and went to court she thought it was to explain what happened to the Judge. After she had explained the situation, the Judge told her that she wasn’t there for the debt. She was there because she didn’t answer the RFA. The Judge stated to the CA Attorney that they was going to give her a break and gave her five days to submit the RFA. The Judge also stated that they were going to throw out the motion to strike and default Judgment. The Attorney asked if he could keep it on hold so he wouldn’t have to re-file. The Judge said ok it’s on hold till answered then it will be denied.

Edited August 15, 2012 by fatsac

[My~Cuz~n~Vinny~]

I believe when she went in front of the judge she admitted to not providing written notice. Basically, explaining the entire story to the Judge.

When she requested a hearing and went to court she thought it was to explain what happened to the Judge. After she had explained the situation, the Judge told her that she wasn’t there for the debt. She was there because she didn’t answer the RFA. The Judge stated to the CA Attorney that they was going to give her a break and gave her five days to submit the RFA. The Judge also stated that they were going to throw out the motion to strike and default Judgment. The Attorney asked if he could keep it on hold so he wouldn’t have to re-file. The Judge said ok it’s on hold till answered then it will be denied.

Ooops... I didn't see that . Thanks !

[fatsac]

Any advice from the morning crew

[KentWA]

Yep, just like Vinny said, deny and make them prove she did not provide written notice. I take it she has already filed her answer. I would think about counter suing for violation of the Utah Consumer Sales Practices Act since the contract does not say she has to pay for the entire month. A finding of a violation would wipe out the $2K she owes since the violation is $2K.

[fatsac]

She did answer the summons already. I will be getting a copy of that answer from her so we know exactly what was stated.

It looks like the Judge gave her 10 days to file the RFA not five like previously stated. She called the court to confirm.

She will answer the RFA with only one denial. It's not that she disputes the contract is signed or she took her kids to day care. It is solely the notice that was given. It was 3 years ago. Maybe she did tape it to their door or sent it USPS but it was something that wasn't significant enough to remember.

Attached to these Request for Admissions as Exhibit A and by reference incorporated herein is a State Paid Payment Agreement. With respect to said exhibit, admit:

A. Agree

B. Agree

C. Agree

2. Agree

3. Denied

I will get something written up and submit for review if you don't mind.

What are your opinions on filing a Production of Documents at this time? I believe they are required to submit documents automatically and have but I want to see everything they plan on using.

I agree that we should file a counter claim but am not sure if that is possible at this point. As you can tell we are very green when it comes to this stuff so we will do our best to read/learn as much as we can.

Thank you!!

[KentWA]

I would deny everything. The denial is not testimony that is subject to purjury, it is just like when you see a case in criminal court and the guy was caught on video, has a video taped confession and even signed a confession, then pleads not guilty. It just forces the other side to prove every element of their case. In cases for small amounts like this where you deny everything, then they may be much more amiable to settlement.

You can amend your answer to include a counter suit at this point by filing a motion for leave to amend answer. If you do not, thinking I will file later you will waive your right to file suit later.

[BrunoTheJDBkiller]

I see this as an unjust enrichment case. Maybe it's a stretch, but that may be all you need. Party A agrees to such and such a contract which calls for payment in case they do not leave the little snot nosed drooling screaming PITA in day care. (Sorry, I don't have kids and really don't like them, they smell bad) LOL Okay, she pulls the kid out and pays the remainder of the month as I understand your post. Now they want MORE? Based upon what? How do they justify this? Okay, let's say they want you to pay for 20 years of day care if you cancel. What's the difference? They are getting money they do not deserve for services they did not provide. What happened, they couldn't sign up another 5 year old Ritalin crazed terrorist to take care of? Why not? Come on. This is way out of line. This is like being sued by a cab driver for the ride you never took. Make your argument on logic and reasonable circumstance, sometimes that works better than the letter of the law.

[fatsac]

So I am going post as much info as I can about this case. If any of you guys are willing you can give us some direction we would sure appreciate it. Someone tell me if I have given out too much info.

Now I must say it was truly awesome that the Judge gave her a break and allowed her a few more days to get this RFA submitted. I believe the lawyer had filed all the paperwork they needed to get the judgment.

I have the following:

Summons

Answer to Summons/CoS

Notice of disclosures

Plaintiff’s first set of Request for Admissions

Motion to Compel Discovery

Order on Motion to Compel Discovery

Motion to Strike Answer and Enter Default Judgment

Notice to Submit for Decision

Notice of Default Judgment

The following is the summons, answer, affirmative defenses, and request for admissions

Summons

Comes now the Plaintiff in the above*entitled matter and for cause of action alleges as follows:

1. That Defendant(s) is a resident of SALT LAKE County, State of Utah.

2. That on or about the XXth day of XX, 2009, Defendant (S) did execute and deliver to DAY CARE an agreement. (A copy of which is hereto annexed as Exhibit "A".)

3. Defendant(s) being in default, demand for payment has been made, but Defendant(s) still owes to Plaintiff the sum of $9XX.00 plus interest at the rate of thirty*six percent (36%) per annum from the Xst day of XX, 2009, the date of the last account transaction.

4. Said Agreement further provides for the payment of reasonable Attorney’s Fees and for Collection Agency Fees. A Reasonable Attorney's fee is $3XX.00 in the event of default and a proper Collection Agency Fee under the Agreement is $2XX.00.

5. That said Chose in action was assigned to CA by written assignment on the XXth day of XX, 2010.

Summons Answer

I agree completely with everything stated in the following numbered paragraphs of the complaint or petition:

Paragraph 1 - 2

I disagree with all of the following numbered paragraphs of the complaint or petition:

Paragraph 3

I neither agree nor disagree with the following numbered paragraphs of the complaint or petition because I don’t have enough information:

Paragraph 4 - 5

Affirmative Defenses

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein failed to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment as the Plaintiff would receive more money than plaintiff is entitled to receive.

Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

Request For Admissions

Questions:

1. Attached to these Request for Admissions as Exhibit A and by reference incorporated herein is a State Paid Payment Agreement. With respect to said exhibit, admit:

A. That Defendant signed the agreement.

Denies the statements made by plaintiff in paragraph 1A.

B. That Defendant signed the agreement on or near month/day/year.

Denies the statements made by plaintiff in paragraph 1B.

C. That Defendant signed the agreement for the purpose of placing her children in XXX

Denies the statements made by plaintiff in paragraph 1C.

2. With respect to Exhibit A, admit the exhibit provides, "A written 2 week notice is required and payable prior to terminating my child care needs with XXX. Parent will be charged even if time is not used for this two week notice."

Denies the statements made by plaintiff in paragraph 2.

3. With respect to the previous question, admit that Defendant did not provide written notice of the date Defendant intended to terminate the services of XXX.

Denies the statements made by plaintiff in paragraph 3.

------- End -------

Let me know what you think about the answers to the RFA.

Getting started on a Amended Answer and Counterclaim.

Should i add a few more items to the answers? Lack of privity, No exchange of money or goods, contributory negligence, assumption of risk in assuming ownership?

I have not found anything in the Utah Consumer Sales Practices Act that specifies the contractual terms. I am still looking for something else that resembles fraud but doesn’t say it. The CA asking for 30 days payment is extortion right? Pay up or we will take you to court for something that is not specified in the contract. If that is the case someone may be personally liable…CA rep or Lawyer...who?

76-6-406. Theft by extortion.

(1) A person is guilty of theft if he obtains or exercises control over the property (money or kids?) of another by extortion and with a purpose to deprive him thereof.

(2) As used in this section, extortion occurs when a person threatens to:

(i) Do any other act which would not in itself substantially benefit him but which would harm substantially any other person with respect to that person's health, safety, business, calling, career, financial condition, reputation, or personal relationships.

Need to pull the reports and see what is not reporting right. Include any violations. Tell me if I am wrong, missing something, or moving in the wrong direction.

As far as the Unjust Enrichment, it was used as an Affirmative Defense. I want to feel like I have more than just a “poor me” defense though. Even though we believe that “Justice would prevail”, it does not mean it will with ease. Assist me with this in any way because I am out of my realm. This CA is going to be miffed when they were seconds away from default judgment and now have a counter claim and POD/RFA to deal with. Just thinking about you guys helping people out on this stuff. You really do have fun with this stuff don’t you

Thank each of you… appreciate it

Edited August 17, 2012 by fatsac

[fatsac]

Ok so here is a Draft of the Amended Answer and Counter Claim

Let me know what you think if you would. I need some confirmation that I am heading in the right direction...or not

Amended Answer

Same as before or should I change all of them to denied??

Affirmative Defenses

1. In original answer - Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein failed to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.
   
2. In original answer - Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment as the Plaintiff would receive more money than plaintiff is entitled to receive.
   
3. Defendant alleges an unconscionable act or practice by the Plaintiff. Plaintiff's Complaint indicates that the defendent is obligated to pay a debt that is outside the terms of the contract.
   
4. Defendant alleges a deceptive act or practice by the Plaintiff in connection with a consumer transaction. The Plaintiff's Complaint indicates that the defendant is obligated to pay a debt when there is no contractual obligation to pay such debt.
   
5. Defendant alleges unfair practices as the Plaintiff's Complaint alleges an amount that is not expressly authorized by the agreement.
   
6. Defendant alleges extortion as the Plaintiff's Complaint indicates that the defendent is obligated to pay a debt when there is no contractual obligation to pay such debt as such is attempting to damage the financial condition of the defendant.
   
7. In original answer - Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.

Counter Claims

Violation of the FDCPA

15 USC 1692Sec. 1692e.

807. False or misleading representations

(2) The false representation of - (A) the character, amount, or legal status of any debt; or ( any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt.

(10) The use of any false representation or deceptive means to collect or attempt to collect any debt or to obtain information concerning a consumer.

I based this one off the fact that they are trying to collect something that has already been paid. They are specifying that the legal status is past due when it has been paid. They are saying that she owes for the full month when the contract clearly states the parent must give two weeks notice. It does not say that she must give 30 days notice!

Is this due to her paying a month in advance? If so, what if she paid 6 months in advance? Why are they suing for the entire month when the verbiage about termination of contract is two weeks.

Why are they intentionally asking for 30 days? Why does this contract not say what will happen if I don't give two weeks and due to that what can be enforced? The contract does not specify what the consequences are for not providing two weeks notice other that stating the parent will be charged for this two weeks, used or not. It's like it leaves it open.

Violation of the FDCPA

15 USC 1692Sec. 1692e.

808. Unfair practices

A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section:

(1) The collection of any amount (including any interest, fee, charge, or expense incidental to the principal obligation) unless such amount is expressly authorized by the agreement creating the debt or permitted by law.

This one is based off the fact that they are asking for something that has already been paid and they are asking for a full 30 days when the contract clearly states two weeks.

Violation of the Utah Consumer Sales Practices Act

Utah Code 13-11-5. Unconscionable act or practice by supplier.

(1) An unconscionable act or practice by a supplier in connection with a consumer transaction violates this act whether it occurs before, during, or after the transaction.

(2) The unconscionability of an act or practice is a question of law for the court. If it is claimed or appears to the court that an act or practice may be unconscionable, the parties shall be given a reasonable opportunity to present evidence as to its setting, purpose, and effect to aid the court in making its determination.

(3) In determining whether an act or practice is unconscionable, the court shall consider circumstances which the supplier knew or had reason to know.

This one is based off the lack of terms not outlining what happens if you do not give two weeks notice and leave and also the 36% fees are considerably outrageous also. Who in their right mind would agree to that.

Violation of Utah Consumer Sales Practices Act

Utah Code 13-11-4. Deceptive act or practice by supplier.

(1) A deceptive act or practice by a supplier in connection with a consumer transaction violates this chapter whether it occurs before, during, or after the transaction.

(2) Without limiting the scope of Subsection (1), a supplier commits a deceptive act or practice if the supplier knowingly or intentionally:

(j) (i) indicates that a consumer transaction involves or does not involve a warranty, a disclaimer of warranties, particular warranty terms, or other rights, remedies, or obligations, if the representation is false

This is based off the 30 day deal again. They are asking for obligations or payment for something that is not outlined in the contract. It's not like they are asking for the two weeks the contract states.

Am I streching it with criminal codes?

Violation of Utah Criminal Code

76-6-406. Theft by extortion.

(1) A person is guilty of theft if he obtains or exercises control over the property of another by extortion and with a purpose to deprive him thereof.

(2) As used in this section, extortion occurs when a person threatens to:

(i) Do any other act which would not in itself substantially benefit him but which would harm substantially any other person with respect to that person's health, safety, business, calling, career, financial condition, reputation, or personal relationships.

Violation of Utah Criminal Code

76-8-1205. Public assistance fraud defined.

Each of the following persons, who intentionally, knowingly, or recklessly commits any of the following acts, is guilty of public assistance fraud:

(8) any provider who bills a client or a client's family for goods or services not provided, or bills in an amount greater than allowed by law or rule;

Not sure how I can work these in:

Violation of Utah Administrative Code

Rule R986-700. Child Care Assistance.

R986-700-706. Provider Rights and Responsibilities.

(4) If a provider accepts payment from funds provided by the Department for services which were not provided, the provider may be referred for criminal prosecution and will no longer be an approved provider following the procedure outlined in section R986-700-718. This is true even if the funds were authorized under R986-700-718.

(5) If an overpayment is established and it is determined that the provider was at fault in the creation of the overpayment, the provider is responsible for repayment of the overpayment.

I think there might be a law that states that the state assisted day care can only charge or bill for days that the kids were actually in day care. Not sure where I am going to find that though.. need to ask about starting a day care.. and see the rules or procedures for state assisted day care payments.

Edited August 20, 2012 by fatsac

[fatsac]

Now I have a copy of her first validation letter w/green card and copy of her 2nd letter explaining that she feels their claim is null and void. She stated she would be willing to settle for $56 and the CA entry taken of her credit reports.

The CA did not file for 10 months after that.

When they attempted validation of the debt they had sent the contract, punches for each child (2), and a statement of payments. I can see she only used 5 days (1,3,4,8,11) for one child and 4 days (1,3,4,8) for the other. So a total of 5 days were used the entire month of September and they have the nerve to go after her for all of October…what db's

None of the document that was included with validation was included with the plaintiff's first set of discovery documents except for the contract. The contract was also included with the RFA.

The original summons included the contract and a copy of the FDCPA 809. Validation of debts. Yeah a copy of the page out of the book

I am not sure if I should include this as part of discovery. It shows the timelines but it also shows that she took the kids. Without this document they have no proof she used the services.. So I know it has to come out later. How are they going to show she even had a debt with them?

Why did the keep this out of the original discovery (disclosure)? Are they not required to submit all documents they have concerning the case? Are they keeping it for later? I know they have it so why would they not submit it during discovery? I would think if I submitted it with validation and green card the Judge would see they are hiding something. Why didn't they submit that?.. I got it from them. and it has their specific account number stamped on it (just like the contract). So you know it came from them.

You see these also prove that she only used the services up until the 11th. Without these she cannot prove that…showing that she already paid two weeks plus another two weeks for nothing. Without these they cannot prove she defaulted. So one way or another these must come out or there is no case.

I am in need of some guidance here guys. Any help you can give is truly appreciated.

[KentWA]

Don't just blindly quote the code, you can specifically cite the reference and then state what they did i.e:

COUNT 1

Violation of the Federal Debit Collection Act (FDCPA) 15 USC 1692Se(2) and 1692e(10)

1. Attempt to collect monies already paid.

2. Attempt to collect monies not due.

This should give you a start. It is late and my brain is not working so fast otherwise I could come up with some good verbiage.

[BrunoTheJDBkiller]

Unjust enrichment can be used as a defense or a counterclaim, but they must already have your money. You can't say "If I pay them......" Unfair trade practice is a countercalim, not a defense. Drop the extortion, you cannot use criminal statutes in a civil case in this manner. You COULD use them if they constitute support of an unfair trade practice, but overall I'd say drop it, you'll just make trouble for yourself and you don't need it. Enforcing a contract is not extortion.

[fatsac]

Bruno, I think I see where you’re coming from about the unjust enrichment. I had a moment of clarity earlier today with something you said a couple of posts back. It did not sink in the first time. Thank you again for your time.

Couple of questions about this contract:

1st Item:

The agreement states "The parent agrees to be 100% responsible for what the state does not pay and for any overtime used".

To me that says that the Day Care will attempt to bill the state and if they do not pay, the parent will be responsible. This says the parent is not automatically responsible. The Day Care must attempt to bill the state first.

Is that interpreted the same to you guys?

2nd Item:

"A written 2 week notice is required and payable prior to terminating my child care needs with Day Care. Parent will be charged even if time is not used for this two week notice."

If the Defendant has not terminated their child care needs then how can they owe anything? It is only after they terminate their child care needs that they would owe.

Defendant still has a child care need with the day care and or any other respective day care. She wasn't moving or leaving state and she would have happily continued using the day care services in future summer months. Her intensions were not to terminate her child care needs with day care. Defendant was simply suspending services for that month.

What this paragraph says is you must have a child care need with the day care or you will have to pay 2 weeks even if you don't use it.

It is saying that if I want to quit being friends it will cost ya. Even after they have received $6-7000..

There are no monthly terms on this contract. It doesn't say she must pay month after month. It doesn't say what happens if she defaults (i.e. you will be charged 30 days if you don't notify us in writing that you don't want to be buddies).

Am I off my axis on this one? What can we do?

Thank you..

Edited August 21, 2012 by fatsac

[fatsac]

It looks like we have a special procedure for discovery motions in Third District Court. The party is supposed to, in good faith, attempt to work things out or resolve issues without court involvement.

The lawyer for the CA filed a motion to compel discovery (before she was given more time to answer the RFA) but did not contact her by telephone or any other means in an attempt to meet. He did not file and serve and “Statement of Discovery Issues” either.

How can I or can I benefit from this? This may be why the Judge allowed her more time for the RFA.

Here is the rule:

Special procedures for disclosure and discovery motions in the Third District Court.

Rule 10-1-306. Expedited procedures for resolving discovery issues.

Statement of the Rule:

(2) The parties shall do the following before filing with the court any discovery motion, including a Motion for Extraordinary Discovery (Utah R. Civ. P. 26©(6)(), Motion to Compel, or Motion for Protective Order (Utah R. Civ. P. 37):

(2)(A) Meet and confer regarding the issues, in person or by telephone, and attempt in good faith to resolve or narrow the issues without court involvement.

(2)( File and serve on all parties a "Statement of Discovery Issues", in a form consistent with the requirements of Rule 10. The statement shall not exceed four pages, shall not include exhibits, and shall include a certification stating that the parties have met and conferred regarding the issues and attempted in good faith to resolve or narrow the issues without court involvement. The statement should contain at least the following:

(2)((i) the precise relief sought;

(2)((ii) the basis or reason for the relief sought;

(2)((iii) a statement regarding proportionality (Utah R. Civ. P. 26((2)); and

(2)((iv) a statement in compliance with Rule 26©(6), if applicable.

The party shall also file a separate proposed form of Order consistent with the relief sought.

(2)© Within five days following service of the “Statement of Discovery Issues”, any party objecting to the relief sought may file and serve a “Statement in Opposition” in a form consistent with the requirements of Rule 10. The opposition shall not exceed four pages and shall not include exhibits. The opposition should briefly address pertinent issues raised in the statement. The party shall also file a separate proposed form of Order consistent with the relief sought. The parties’ written submissions will be docketed and placed in the court file.

(2)(D) Upon filing the opposition, or expiration of the time for doing so, either party may, and the party seeking relief shall, file with the court a Request to Submit for Decision. (Utah R. Civ. P. 7(d)).

(2)(E) The court will promptly set a telephone conference to discuss the matter, and will advise the parties by email or telephone of the date and time for the conference. The court reserves the right to decide the issue(s) without a telephone conference if it determines that a conference is unnecessary, and in its discretion, may require the appearance of counsel and/or the parties in lieu of a telephone conference.

(2)(F) The court will resolve most if not all discovery issues during or in advance of the phone conference. The court anticipates that no discovery motions will be necessary, but if appropriate, the court will use the telephone conference to set a briefing schedule for a motion addressing all unresolved issues together with a hearing date, if needed. In most circumstances, the court anticipates adopting one or the other of the proposed Orders.

[fatsac]

Amended Answer and Counter Claim

Amended Answer

Can I remove items from the answer? Like an explanation as to why she denied one of the questions?

Affirmative Defenses

1. Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein failed to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.
   
2. Defendant alleges that the granting of the Plaintiff's demand in the Complaint would result in Unjust Enrichment as the Plaintiff would receive more money than plaintiff is entitled to receive.
   
3. Defendant alleges an unconscionable act or practice by the Plaintiff. Plaintiff's Complaint indicates that the Defendant is obligated to pay a debt that is outside the terms of the contract.
   
4. Defendant alleges a deceptive act or practice by the Plaintiff in connection with a consumer transaction. The Plaintiff's Complaint indicates that the defendant is obligated to pay a debt when there is no contractual obligation to pay such debt.
   
5. Defendant reserves the right to amend and/or add additional Answers, Defenses and/or Counterclaims at a later date.
   

Counter Claims

COUNT 1

Violation of the Federal Debit Collection Practices Act (FDCPA) 15 USC 1692Se(2), 1692e(10), and 1692f(1).

1. Attempt to collect monies already paid.

2. Attempt to collect monies not due.

3. Attempt to collect monies not authorized by an agreement.

COUNT 2

Violation of the Utah Consumer Sales Practices Act Utah Code 13-11-4((2)(j)(i)), and 13-11-5(1,2,3).

1. Attempting to collect monies already paid.

2. No terms of default are on any agreement.

This is what I have for the counter claim. Let me know what needs to be improved.

Do you have any examples of Motion for Leave to Amend Answer. Seems a bit detailed from what I read.

Thank you

[fatsac]

bump

[KentWA]

Your motion will be simple and state your reasons. I found an example from Utah County:

http://www.gregkersten.com/files/Mo_to_Amend_Answer.pdf

Then you need a memo to go along with it:

http://www.gregkersten.com/files/Memo_in_Support_of_Mo_to_Amend_Answer.pdf