UPDATED: 6/4/10 Need OPP to MSJ critique!

[ethereal]

So I got the summons on 2/13 and I've done some research but the deadline is coming quick.  Any help would be so much appreciated.  I'll follow the format for posting.

 

1. Who is the named plaintiff in the suit?
-- Asset Acceptance, LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.)
-- It just has the names of the attorneys.  I'm unsure if it's a good idea to post their names.  LMK if it's important to know

3. How much are you being sued for?
-- 2XXX+

4. Who is the original creditor? (if not the Plaintiff)
-- Dell Financial Services / Cit Online

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

6. How were you served? (Mail, In person, Notice on door)
-- Process server/P.I. left it with my roomate.

7. Was the service legal as required by your state?
-- Yes, I believe it was.

8. What was your correspondence (if any) with the people suing you before you think you were being sued?
-- None, that I know of.

9. What state and county do you live in?
-- Utah, Salt Lake County

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations)
-- I honestly can't remember and can't find anything on my CR (nor can I pull another CR for free.  Pulled them in June last year.)

11. What is the SOL on the debt? To find out:
-- I'm guessing 6 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).
-- I don't know.  I will be calling the clerk tomorrow as it's been 15 days and the plaintiff is supposed to file within 10.

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)
-- No, I haven't.

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late.

-- No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit?

 

I have 20 days.  The summons has 2 lists in it, Claims and Demands, as follows:

 

CLAIMS:

1. Defendant resides in this county and/or signed the contract giving rise to this action in this county. Jurisdiction and venue are proper in this court

2. Defendant entered into a contract with DELL FINANCIAL SERVICES/ CIT ONLINE BANK opening an account ending in XXXXXXXXXXXX, which contract was subsequently assigned to Plaintiff.

 

3. Defendant has defaulted on the obligation under the contract.

 

4. The amount due and owing to the Plaintiff is $2XXX.XX plus accrued interest of #XX.XX as of Nov. 2012 at the rate of 10.00% per annum less any payments made.  In addition, Plaintiff is entitled to recover interest from Nov. 2012 until the date all amounts due are paid.

 

5. Plaintiff may be entitled to recover a reasonable attorney's fees as provided in the contract. In the event Defendant fails to respond to this Complaint, and default is entered, Plaintiff may seek attorney's fees in the amount of $400.00 pursuant to U.R.C.P. 73. Said fees will not be shared in violation of Rule of Professional Conduct 5.4.

 

6. The Plaintiff may also be entitled to additional attorney's fees for post-judgement services rendered in accordance with applicable law.

 

7. Further, equity requires Defendant to pay the value of the benefits received.

 

DEMAND: Plaintiff requests judgement as follows:

 

A. For damages in the amount of $2XXX.XX plus accrued interes of $XX.XX as of Nov. 2012 at the rate of 10.00% per annum less any payments made;

 

B. For additional interest from Nov. 2012 until amounts dues are paid at the rate of 10.00% per annum;

 

C. For reasonable attorney's fees (if any) in the amount of $400.00 purusant to U.R.C.P. 73;

 

D. For post-judgement attorney's fees in accordance with applicable law;

 

E. For costs of court both prejudgment and post-judgment; and

 

F. Any other relief as the court deems just and equitable.

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
-- Nothing

 

So, I want to get my answers ready.  I'm not even sure I should affirm the first claim. 

 

I don't believe SOL has been reached, but I'm not certain.  The account is with Dell, as it says above.  I currently have a Dell Financial account in good standing so I know it's not referring to that.  How might I find out if this is past the SOL?

 

I don't know if this was assigned or bought by Asset Acceptance.  If they prove that they're assigned in the contract, I won't have any way to fight, right?

 

 

Again, thanks in advance for any help.

[KentWA]

Asset buys debts and they can not prove they own it in 99.99% of the time. Deny everything except #1 if you are in fact a resident of the county. As an alternative you can specifically admit your are a resident of the county and submit to the jurisdiction of the court, and deny the remainder of claim #1.

 

All the Dell accounts I have seen operate as credit card accounts and have credit card terms and conditions. So the SOL should be 4 years due to the exception within the UCC that bars a credit card from being an instrument.

 

If you have a Dell account in good standing, you can make a big issue that your Dell account is in good standing and cause Asset to be required to cough up a whole lot of documentation. However they usually turn coward and run for the dismissal counter at the courthouse when they are challenged by a consumer. Push back hard and they run faster.

 

EDIT: read all the other threads here recently about Utah. I have posted some good stuff there.

[ethereal]

Thank you much, I will check out your posts.  Gotta call the clerk today and see if they even filed. 

 

I didn't put the attorneys in my OP, but I searched the forum and apparently he's(they're) an attorney for JDB's.  It's listed as JOHNSON MARK LLC.

[KentWA]

These guys are the worst for FDCPA violations. It is possible there are even violations in the complaint, check it carefully I already see one. In their demand ( c ) they cite Rule 73.

 

Rule 73( c ) If a party requests attorney fees in accordance with the schedule in subsection (d), the party's complaint shall state the basis for attorney fees, state the amount of attorney fees allowed by the schedule, cite the law or attach a copy of the contract authorizing the award, and, if the attorney fees are for services rendered to an assignee or a debt collector, a statement that the attorney will not share the fee or any portion thereof in violation of Rule of Professional Conduct 5.4.

 

From what you have said they did note comply by attaching said contract, state the basis of the fees or make the affirmative statement that they will not share the award. This is an FDCPA violation and the attorney can not escape liability in Utah based of Litigation Privledge according to Brown v Constantino

http://law.justia.com/cases/federal/district-courts/utah/utdce/2:2009cv00357/70264/25

[BV80]

From what you have said they did note comply by attaching said contract, state the basis of the fees or make the affirmative statement that they will not share the award. This is an FDCPA violation and the attorney can not escape liability in Utah based of Litigation Privledge according to Brown v Constantino.

 

How is that an FDCPA violation?

[admin]

How is that an FDCPA violation?

I'd like to know that myself. 

[KentWA]

False or misleading statements in a pleading is actionable in Utah, here they demand attorney fees without the required documentation of justification - Brown v. Constantino et al

[BV80]

False or misleading statements in a pleading is actionable in Utah, here they demand attorney fees without the required documentation of justification - Brown v. Constantino et al

 

Oh, I see what you mean.  It's a UCSPA violation.

[ethereal]

I may be wrong but in their claim:

 

5. Plaintiff may be entitled to recover a reasonable attorney's fees as provided in the contract. In the event Defendant fails to respond to this Complaint, and default is entered, Plaintiff may seek attorney's fees in the amount of $400.00 pursuant to U.R.C.P. 73. Said fees will not be shared in violation of Rule of Professional Conduct 5.4.

 

They do site the law and say that the fee won't be shared.  I'm unsure of the language: "state the amount of attorney fees allowed by the schedule," but could that be the $400.00 they put in? 

 

 

I'm about to type up my response.  I have a couple of questions first.  Do I need to address the demand section at all?  Also, I decided to just pay to get my CR pulled from equifax and the last payment showing on that account was in July, 2007.  Now I'm not certain if the SOL is 4 years or 6, not to mention does SOL begin from when the debt was open, sold or closed out by the OC? 

EDIT:  Just read SOL article and see that it can start from the first missed payment.  Perhaps SOL is my best bet, assuming it's 4 years.

 

I'm worried to use SOL because I'm uncertain of the time frame and also, doesn't that admit to the debt?

 

Also on affirmative defenses, would Lack of Privity apply?  I've never heard from these guys before.

 

 

Again, thanks for the help.  I don't want to screw this up and only have another day to get my answer in the mail.

[KentWA]

You are right that they cited Rule 73, I was not too clear in that post. However they did not meet the requirements to request such relief. Read Rule 73 carefully. They must attach the contract that allows them to collect such fees"

 

 

 

"the party's complaint shall state the basis for attorney fees, state the amount of attorney fees allowed by the schedule, cite the law or attach a copy of the contract authorizing the award, and, if the attorney fees are for services rendered to an assignee or a debt collector, a statement that the attorney will not share the fee or any portion thereof in violation of Rule of Professional Conduct 5.4."

 

 

 

 

You said they attached nothing and they do not explain the basis of such fees. There is case law that states requesting fixed attorney fees is an FDCPA violation. Rule 73 gives them an out only if they properly comply with said rule.

 

SOL can be pressed later when discovery is conducted since you have no proof it applies at this time. Other affirmative defenses should not be included unless you have proof. Lack of privity does not apply to credit card cases. When you include affirmative defenses it becomes your burden to prove them.

[ethereal]

Alright, rough drafting my reply here.

 

Defendant, appearing pro se, for its reply to the Complaint of ASSET ACCEPTANCE, LLC (hereafter "Plaintiff") states as follows: All Answers correspond to the numbered paragraphs of the Complaint. All allegations of the Complaint are denied unless expressly admitted herein.

 

1. Affirm in part.  I am a resident in the listed county and submit to the jurisdiction of the court.  DENY signing any contract.

 

2. DENY.  Plaintiff does not show proof of an alleged contract between Defendant and DELL FINANCIAL SERVICES / CIT ONLINE BANK.

 

3. DENY.  Plaintiff does not show proof of an alleged contract between Defendant and DELL FINANCIAL SERVICES / CIT ONLINE BANK.

 

4. DENY.  Plaintiff does not show proof of a contract and/or obligation between Plaintiff and Defendant.

 

5. DENY.  Pursuant to U.R.C.P. 73, Plaintiff must state the basis for such fees and attach a copy of the contract authorizing the award.  Plaintiff has neither stated the basis or attached said contract.

 

6. DENY. This request calls for admission of matter defendant has denied and thus it is improper.

 

7.  DENY. Denied: This request calls for admission of matter defendant has denied and thus it is improper..

 

COUNTER CLAIMS

 

COMPLAINT I

 

1. Defendant resides in Salt Lake County, Utah and is a consumer as that term is defined by the Fair Debt Collection Practices Act 15 USC 1692 et seq ( “FDCPA”)

 

2. Upon information and belief, ASSET ACCEPTANCE, LLC. is a foreign limited liability Company authorized to do business in Utah; that ASSET ACCEPTANCE’s principal business is the collection of debts from others; that ASSET ACCEPTANCE regularly collects debts; that ASSET ACCEPTANCE uses the instruments of interstate commerce and the mail to collect debts

 

3.  ASSET ACCEPTANCE and its agent JOHNSON MARK LLC are “debt collectors” as the term is defined by the FDCPA.

 

4.  ASSET ACCEPTANCE and its agent JOHNSON MARK LLC have violated FDCPA by pleading fixed attorney fees without proper documentation or basis for such fees; Brown v. Constantino et al.

 

CONCLUSION

 

1.  WHEREFORE, the Defendant asks for the Court for judgement:

 

a. Dismissing Plaintiff's complaint with prejudice.

b. Ordering Plaintiff to cease all collection activities on alleged contract.

c. Ordering Plaintiff to remove item(s) from Defendant's credit profile.

d. In favor or Defendant's counterclaim

e. For statutory damages in an amount up to $1000 per 15 USC 1692k,

f. Costs and disbursements of this action,

g. Such other and different relief as the Court finds proper.

 

 

 

 

So, do I need to address their DEMAND? 

 

And I've stole the wording and formatting from other posts on this site. 

 

KentWA, I'd like to thank you especially for your help on this.  If I'm ever in the Basin, I'll buy you a round!

[ethereal]

Bump.

 

Any feedback on my answer would be most appreciated.  Still unsure if I'm required to address their DEMAND.

[ethereal]

Ooh, I was perusing the case law thread in the case law forum and found this:  http://www.le.utah.gov/code/TITLE70C/htm/70C07_020500.htm

 

This states: " No action under this title may be brought more than one year after the date of the occurrence of the violation. This section does not bar a person from asserting a violation of this title in an action to collect the debt which is brought more than one year after the date of the occurrence of the violation as a matter of defense by recoupment or setoff to the extent of the outstanding balance of the debt."

 

If this applies in my case, the SOL is 1 year.   I'm trying to read through the rest of the code to see what it covers.

 

EDIT:

The only thing in the code that concerns me is :70c-1-105 "This title does not displace limitations on powers an organization is authorized to exercise under the laws of this state or the United States."

 

If I'm reading this correctly, this code becomes moot?

[ethereal]

So I filed my answer and tomorrow will be the 20th day.  Should I immediately file for discovery or do I need to wait for the AA to file a motion?   That's the thing that I'm unsure of.

[upsman40]

So I filed my answer and tomorrow will be the 20th day.  Should I immediately file for discovery or do I need to wait for the AA to file a motion?   That's the thing that I'm unsure of.

Check your rules of Civil Procedure to see how discovery and admissions has to be performed.  In Michigan or at least the court i was in, you can file Interrogs, admissions, affirmative defenses etc.. along with your answers....

[trikcity]

Hey ethereal,

 

I recently got the same exact summons as you from the same firm.  I was wondering how your answer turned out and if you have received any correspondence from the firm?  Also do you know if they filed the complaint with the court?

[KentWA]

On your question of Discovery. You need to read Rule 26. They are required to send you disclosures 14 days after you serve your answer. Right now I would sit back and wait. If they do not provide any disclosures they can not offer anything in the way of evidence. The rules were just recently revised and most of the JDB lawyers have no clue how badly you can slam them with this.

[ethereal]

Oh nice! I just read up on it.  I'll dive in again this weekend.  Work is killing me right now.

 

@trikcity

I haven't heard from them.  I didn't file the above answer.  Here is my amended:

1. AFFIRM in part.  I am a resident in the listed county.  DENY signing any contract.


2. DENY. I am without knowledge or information sufficient to form a belief about the truth of this statement.


3. DENY. I am without knowledge or information sufficient to form a belief about the truth of this statement.


4. DENY. I am without knowledge or information sufficient to form a belief about the truth of this statement.


5. DENY. Pursuant to U.R.C.P. 73, Plaintiff must state the basis for such fees and attach a copy of the contract authorizing the award.  Plaintiff has neither stated the basis or attached said contract.

 
6. DENY. This request calls for admission of matter defendant has denied and thus it is improper.


7. DENY. This request calls for admission of matter defendant has denied and thus it is improper.

 


AFFIRMATIVE DEFENSES




1. Defendant reserves the right to amend and/or add additional answers, defenses and/or counterclaims at a later date.




COUNTER CLAIM

 

 

1. Defendant resides in Salt Lake County, Utah and is a consumer as that term is defined by the Fair Debt Collection Practices Act 15 USC 1692 et seq ( “FDCPA”)


2. Upon information and belief, ASSET ACCEPTANCE, LLC. is a foreign limited liability Company authorized to do business in Utah; that ASSET ACCEPTANCE’s principal business is the collection of debts from others; that ASSET ACCEPTANCE regularly collects debts; that ASSET ACCEPTANCE uses the instruments of interstate commerce and the mail to collect debts


3. ASSET ACCEPTANCE and its agent JOHNSON MARK LLC are “debt collectors” as the term is defined by the FDCPA.


4. ASSET ACCEPTANCE and its agent JOHNSON MARK LLC have violated FDCPA by pleading fixed attorney fees without proper documentation or basis for such fees.


 



DEMAND: The Defendant asks for the Court for judgement:



 

A. Dismissing Plaintiff's complaint with prejudice.


B. Ordering Plaintiff to cease all collection activities on alleged contract.


C. Ordering Plaintiff to remove item(s) from Defendant's credit profile.


D. In favor of Defendant's counterclaim


E. For statutory damages in an amount up to $1000 per 15 USC 1692k,


F. Costs and disbursements of this action,


G. Such other and different relief as the Court finds proper.

[ethereal]

Gah, I may have flubbed on the counterclaim, should've cited some case law for the violation.

[ethereal]

Ok, finally got a response from them.

 

One of them was a motion to dismiss my counterclaim because I didn't pay the filing fee.  Well, that was my own fault, however I believe I still have time to pay this if I want to proceed with the counterclaim.  I honestly didn't realize I had to pay a filling fee for a counter-claim.

 

The other is a request for production of documents and request for admission. 

 

Production Requests:

 

Please produce the following documents by providing legible photocopies of the originals to Plaintiff's attorneys within twenty-eight (28) days after service of the requests upon you.

 

1. Any documents that relate or refer to the Plaintiff's claims or your defenses in this Action, including but not limite to the following: any letters, emails, faxes, communications, notices, agreements, application, statements, receipts, proofs of payment, check stubs, or other documents relevant o this Action of this Account.

 

2. The last six (6) years of Bank statements from all financial institution [sic] that you have used or where you have an account.

 

3. Any communication(s) and correspondences(s) with anyone related to this Action or this Account, including but not limited to DELL FINANCIAL SERVICES/CIT ONLINE BANK, Plaintiff, third-parties, any fact witnesses, expert witnesses, professionals, (whether they have been retained to testify or not).

 

4. Any documents you may present as evidence or exhibits in a trial of this Action, including without limitation, any reports or exhibits prepared by any expert or lay witnesses pertaining to this Action and any documents relating to any witness you intend to call at trial.

 

Requests for Admission

 

Please admit the following facts:

1. Admit you entered into a contract with DELL FINANCIAL SERVICES/CIT ONLINE BANK thereby agreeing to pay for the balance on the account.

 

2. Admit that you used, or authorized the use of, the Account to obtain goods, services or money.

 

3. Admit that you did not dispute, within sixty (60) days and in writing, any item in the periodic written statements sent to you regarding this Account.

 

4. Admit you failed to make all payments pursuant to the terms of the contract.

 

5. Admit Defendant is indebted to DELL FINANCIAL SERVICES/ CIT ONLINE BANK and it's subsequent assignee, the Plaintiff, for the Account Balance as defined above with interest at the rate of 10%

 

 

 

Ok, so there's the documents they've sent.  The one that concerns me is banking records for the last 6 years?  What the hell is that?  Can I refuse that?  I don't see how that is even relevant.  As far as the other documents, I'm happy to comply as I'll be sending them the summons I received.

 

The admittance seems obvious to me...as in don't admit anything.  Any special wording or form that needs to be used? 

 

Finally, tomorrow, the 18th is the last day they have to provide all their documents to me regarding their case.  As KentWA was kind enough to point out, they must disclose without asking.  Now this part, I want to be absolutely sure about...URCP 23(a) clearly states that both parties must disclose pretty much all their documents as well as names and phone# of witnesses. 

Does that mean I DO NOT have to request production of documents?   I would hate to have them come up with something later.

 

Also, does this mean that if I don't receive any documents within the 14 day period that anything they may come up with later are inadmissible in court?

 

Finally, if they don't provide any documentation, would a motion to dismiss based on lack of proof be prudent?

 

 

You folks are great!  In a way, I'm glad this is happening as I've got a good look into the judicial process.  That said, it would be a bit less stress to not have to deal with it to begin with.  A great learning experience to be certain.

[Handlefix13]

Correct me if I'm wrong guys but they have 14 days from the time of receiving you answer to provide their initial disclosure per rule 26 of Utah's ROCP.  In order to get the court involved however, ie motion to compell or sactions, you must provide proof that you have at least attempted to confer with the plaintiff (rule 37) to get those disclosures.  If they still do not respond to your meet and confer with their disclosures then you have met the requirement of rule 37 and motion for dismissal, or whatever avenue you decide to go could be filed and anything they attempt to provide in defense of that motion could be inadmissable. 

 

As far as the bank statement thing is concerned I'm not sure how that works.  They want to see the 6 years worth to establish that payments have been made.  But someone else is going to need to chime in on whether or not you can refuse on that one.

[Spikey]

As far as the bank statement thing is concerned I'm not sure how that works.  They want to see the 6 years worth to establish that payments have been made.  But someone else is going to need to chime in on whether or not you can refuse on that one.

 

This has come up before, 6 years of bank records would be burdensome to obtain, not to mention the fees required for the bank to get them. They're also trying to get the defendant to prove their case for them. I recommend objecting. Make them try to obtain a motion to subpoena your bank if they want the information that badly.

 

There's a good discussion on the topic here: http://www.creditinfocenter.com/community/topic/319468-jbds-motion-to-order-6-years-of-bank-records/?hl=%2Bbank+%2Bstatements

[KentWA]

Object based on several points, Burdensome, not likely to lead to admissible evidence, improper at this stage in litigation and irrelevant to the present case. When you send their discovery back to them, include a meet and confer letter that is very long about your objections to their request and at the end remind them of the duty to disclose. It will be their own fault if they do not read all your meet and confer letter. Once you have done the meet and confer and they do not cure the issue, you can motion to exclude all further evidence and they suddenly have no case.

[ethereal]

An update here, they sent initial disclosures the day after they sent discovery request and admissions request. 

 

The disclosures include a photocopied user agreement of a DFS credit agreement.

 

The other has all my information with an old address.  But it does have my employer, SSN and email address.  It then has a spreadsheet listed as: transactions with date, transaction description and transaction amount.  Finally it has a Balance sheet, with corresponding months.  The final month, listed as 5/31/2011 has the balance at $0.00, which I'm assuming is the time that the OC charged off the account.  There is also a complete account number listed on these pages.

 

None of this has the OC's info on it but there is an 'Assignment of Account' clause in the agreement that was sent to me.

 

Should I attack their disclosures as hearsay?  Also, can I try to compel discovery showing that they're assigned by the OC?

 

I'm going to go pay the filing fee for the counter claim and file my admissions and objection to their discovery request for 6 years of bank info.  I'm really not sure how to react to their disclosures though.

[KentWA]

If they have not filed them with the court, then there is nothing to file a motion against.

 

 

 

The final month, listed as 5/31/2011 has the balance at $0.00, which I'm assuming is the time that the OC charged off the account

 

You could make that assumption or you can take it literally. I would approach it that plaintiff has just proven your case that there is Zero balance and you owe nothing. If they provided nothing that explains what occurred, I would take the last statement and file a Motion for Summary Judgement. They may be able to come up with something that bring facts into dispute and defeats the MSJ, but it is unlikely. However even if they do manage to defeat MSJ, you lose nothing and they burn more money and realize they have a fighter on their hands.