ethereal

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

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I'm typing up my Request for production of documents and was wondering if I should also do a request for admissions?

 

I looked in the sample forum and found some admittance questions that could be used.  I'm hoping for some feedback on what admittance questions have worked well for others or if it's even worth sending.  I can only ask 5 questions of admittance per Utah civil court rules, so if it's worth doing, it's even more important to ask the right ones.

 

EDIT: I found some questions in a thread that I can't find now.  It had asked for them to admit that they create the documents detailing account information rather than actually get that information from the OC.  Obviously, it's stated much better than that.

 

Also, I think I will still try MSJ based on their disclosures.  I'm just trying to cover all my bases here.

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

 

 

 

 

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.

 

 

I will have to disagree a bit, chargeoff is an accounting term which reflects that the OC has written off the account for tax purposes. Once they do that, they have washed their hands of it and must by law record the balance owed to THEM as zero. It does not mean the poster does not owe the original amount to the assignee. (if proven, of course) To pursue the argument that the account statement at zero represents the defense of payment, the poster would have to produce evidence that full payment was actually made. I don't think the poster has that. I think any judge will view this as desperation, and will rule against MSJ based upon such an argument. After all, when you represent yourself, you are supposed to know the laws and theories upon which you base your pleadings. Something like this would just make trouble for the poster.

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I'm typing up my Request for production of documents and was wondering if I should also do a request for admissions?

 

I looked in the sample forum and found some admittance questions that could be used.  I'm hoping for some feedback on what admittance questions have worked well for others or if it's even worth sending.  I can only ask 5 questions of admittance per Utah civil court rules, so if it's worth doing, it's even more important to ask the right ones.

 

EDIT: I found some questions in a thread that I can't find now.  It had asked for them to admit that they create the documents detailing account information rather than actually get that information from the OC.  Obviously, it's stated much better than that.

 

Also, I think I will still try MSJ based on their disclosures.  I'm just trying to cover all my bases here.

I'm curious where you saw the limit of 5 admissions? I'm looking at Rule 36 and I just don't see it.

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SQL - Keep scrolling down on Rule 26, for actions $50,000 or less you are limited to 5 Requests for Admissions and 5 Request for Production of Documents, Rule 34 and zero Interrogatories, Rule 33.  Make sure you are looking at the Correct Rule 36, not  the one superseded, 11/01/2011

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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 B) 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.

 

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. Objection, overly burdensome, meant to harass, douments asked for should already be in the possession of the plaintiff.

 

2. The last six (6) years of Bank statements from all financial institution [sic] that you have used or where you have an account. Objection, discovery of a defendants financial status or banks records in not discoverable prejudgment.  Will not lead to any discoverable evidence.

 

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.

I have said this on more than one occasions, bank records can be discoverable under certain circumstances. But if you do not object and make them prove why they need them they will be allowed by the court.

 

Rather than risk a court ruling regarding a waiver by failing to object, applicable privacy and privilege

objections should always be stated. Should the written discovery process land you in law and motion, a
practitioner who errors on the side of over-objecting will fair better than the attorney who missed a
significant objection.

 

Here are your arguments: Information about a party’s assets or ability to pay a judgement is generally not discoverable prior to trial. There is plenty of case law to support this claim, a diligent search by you can locate some from your state.

 

Collateral source rule:
“Objection. This discovery request seeks information not relevant to the subject matter of this lawsuit and not calculated to lead to the discovery of admissible evidence in violation of the collateral source rule. This request is also an invasion of Plaintiff's right to privacy.
 
there is a “substantive legal right” not to be subject to pre-judgment asset discovery except in very limited circumstances such

as when the court has made a specific finding that there is a reasonable basis for recovery of punitive damages. Plaintiff seeks no punitive damages in the matter before the court, therefore discovery of the Defendants assets and financial information is barred prejudgment.
 
overbroad in that ithe request seeks “personal financial information of a type ordinarily discoverable only in aid of execution after judgment has been entered.”
 
Federal Rule of Civil Procedure 26©(1), provides that the court “may, for good cause, issue an order to protect a party or person from annoyance, embarrassment, oppression, or undueburden or expense.” (Your state rules should mirror this.)
 
Federal Rule of Civil Procedure 45 provides that upon timely motion, the Court must quash or modify a subpoena if it requires disclosure of privileged or other protected matter and no exception or waiver applies or if it subjects a person to undue burden. Fed. R. Civ. P.45©(3)(A)(iii) and (iv). This Rule is intended to prevent abuse of the subpoena power and requires that a district court protect the property rights of the person subject to the subpoena.Klay v. All Defendants, 425 F.3d 977, 982 (11th Cir. 2005).
Furthermore, personal financial information is within the “zone of privacy”
 
Objection. This discovery request seeks the legal reasoning and theories of plaintiff’s contentions. Defendant is not required to prepare the Plaintiff's case.
 
 
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Here are your arguments: Information about a party’s assets or ability to pay a judgement is generally not discoverable prior to trial. There is plenty of case law to support this claim, a diligent search by you can locate some from your state.

 

Collateral source rule:
“Objection. This discovery request seeks information not relevant to the subject matter of this lawsuit and not calculated to lead to the discovery of admissible evidence in violation of the collateral source rule. This request is also an invasion of Plaintiff's right to privacy.
 
there is a “substantive legal right” not to be subject to pre-judgment asset discovery except in very limited circumstances such

as when the court has made a specific finding that there is a reasonable basis for recovery of punitive damages. Plaintiff seeks no punitive damages in the matter before the court, therefore discovery of the Defendants assets and financial information is barred prejudgment.

 

 

Why do you keep saying "ability to pay a judgment" when that is not the purpose of the discovery of records in these cases???   You can offer all the case law you can find to support that records are not discoverable in order to determine a defendant's ability to pay a judgment.  But that case law would have NOTHING to do with the reason bank records might be requested or compelled in these cases.  Again, this is not about a defendant's ability to pay a judgment.

 

Here is the pertinent part of the discovery rule:

 

Discovery scope. (b) (1) In general. Parties may discover any matter, not privileged, which is relevant to the claim or defense of any party if the discovery satisfies the standards of proportionality set forth below.

 

If a defendant has denied opening an account or making payments on an account, a creditor or JDB will request bank records in order to prove the defendant DID have the account and DID make payments.  That is relevant to the plaintiff's claim.

 

If a defendant is claiming the account is outside the SOL because the creditor/JDB has not proven the date of last payment, the plaintiff can request bank records in order to prove the defendant made the last payment.  Again, it's relevant. 

 

Yes, the defendant should object to requests and would definitely object to a motion to compel his bank records,  BUT not for the reason you claim (ability to pay a judgment) because your reason does not apply.

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Thanks for the responses.  This is some great insight and it's very much appreciated.

 

In my rough draft of response to their discovery request, I didn't object to the first item.  I just put that the only document I have is the summons for the complaint and that they already possess that document.  Would an objection as BTO posted have more of an impact?  I do worry that doing some things will make me look, at least in in the eyes of the judge (should this go to trial), uncooperative or that I'm being trivial.

 

I'm also a little confused as how to object to these requests.  By that I mean, you don't actually file a request with the court, only a certificate of service for disclosures, discovery and admissions.  So do I simply object in my response or do I need to file the objection with the court?  I can't seem to find anything in the rules that cover this specifically.

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Well I thought it was clear sailing.  I submitted my discovery request and admissions request.  The 28th day came and went 2 days ago.  Well today I got a thick docket of certificate of services and a response to my discovery.  There are a couple in there that scare me a bit, as it listed as Judgement. 

 

Their response to all my discovery request and admission request are objected.  They object to all my admission requests by saying it's premature and that I have not provided initial disclosures.

 

In another envelope they sent all the following docs:

Military service status

Declaration of costs and attorneys fees

Military service order

Judgment

Order

Motion for Summary Judgment

Memorandum in Support of MSJ

Summary Judgment

 

All of these papers have the attorney's names and address/info in the top left. As if they are sending them, not the court.

 

The Judgment, Order and Summary Judgment papers all have a line for date and District Court Judge on the bottom of them but none are signed or dated.  The language of those 3 are pretty much as follows:

 

The Court, having granted Motion for Summary Judgment herby enters judgement in favor of Plaintiff and against Defendant as follows:

(Insert list of charges)

 

The Order states:

 

Plaintiff's Motion for Summary Judgment was filed with the Court pursuant to Rules 7 and 56 of the URCP. No opposition to the motion has been filed and the time to do so has now passed. Plaintiff has submitted the motion for decision and no hearing has been requested. Wherefore, Plaintiff's Motion is Granted and Judgment shall enter for the Plaintiff.

 

 

In the Motion for summary judgment it says that I have 10 days to respond.  This is the first notice I've received!

 

Also there is an affidavit included that says (soandso) is an employee of Asset Acceptance and can testify, has knowledge of record keeping, etc.  They is also a doc that has a Purchase Date, Charge off balance, statutory interest rate and date of last payment listed.

 

Ugh, I'm not feeling good about this.  The court is closed now, so I can't call and see what's going on with my case.  We have a pre-trial conference scheduled for May 20th and it's still on the court calendar.

 

Please help me make sense of this.

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CAN YOU LOOK UP ANYTHING ONLINE? Some courts let you do this (mine does not).  If not, go to the court monday morning, and ask to see your file.  If they filed for a MSJ and did not notify you, motion for vacate right away.  I am sure there is a big ole penalty here, but I don't know what it is.Someone with more knowledge will weigh in.  But do file the vacate.

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Plaintiff's Motion for Summary Judgment was filed with the Court pursuant to Rules 7 and 56 of the URCP. No opposition to the motion has been filed and the time to do so has now passed. Plaintiff has submitted the motion for decision and no hearing has been requested. Wherefore, Plaintiff's Motion is Granted and Judgment shall enter for the Plaintiff.

 

Is this order signed by a judge? 

 

As Shellie stated, call the court first thing Monday morning to see if a judgment has been entered against you.  If it has, go to the courthouse as soon as possible to see how and when they claim you were served the MSJ.

 

If the order is not signed by a judge, it could be that they've filed an MSJ but have not sent it to you yet.

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No, they are not signed by a judge or dated.  I will definitely be contacting the court on Monday.  I can't find anything about my case online, unfortunately.

 

The MSJ is dated the May 3rd, but they didn't mail anything until May 9th.

 

I just hope I have some recourse.

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@ethereal

 

Don't panic.  This doesn't mean a judgment has been issued against you.  They may not have even filed the MSJ yet.  It could be that they're just letting you know that they're going to motion for a summary judgment.

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Calm down and take a breath. The order is sent along with the motion so if the judge agrees he can just sign it.

 

You will want to object to their Motion for Summary Judgement based on discovery is ongoing and defendant is preparing a motion to compel based on non answers. That alone is supposed to stop an MSJ right there. You should have sent disclosures even if they say you have nothing. The one thing you are going to want to keep is the bills on your current Dell account. Since you did not disclose it, you will only be able to use those to impeach their evidence. However that will be powerful evidence that they have the wrong person. 

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Bleh, I must've misunderstood.  I thought it they sent discovery before I sent my initial disclosures, I didn't have to bother.  Even though it's well past the time I was supposed to, I will send a certificate of service and my initial disclosures.  I'll object to the MSJ. 

 

Pursuant to the rule 56(e),"When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the pleadings, but the response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."  It would seem like I need some kind of affidavit? or does 56(f) mean I just have to say discovery is still in process.

 

Also, I need to object to their affidavit and so called evidence showing they purchased the account from the OC.  Any threads or advice you could point me to? I didn't object to any of their initial disclosures as they are not filed with the court so I can't object to them.  I plan to object to the terms and conditions they sent, in that I've never received them, so therefore I couldn't agree to it.

 

Another question.  Since they (kind of) responded to my initial requests for admissions, can I submit different questions this time around?  Oh and in their complaint they said that they are an assignee from Dell.  In the doc that has the charge off balance and purchase date, well it has a purchase date.  So it seems that they have admitted to purchasing rather than being assigned.  Isn't there a defense for this?

 

As always, thanks for the responses.  I got a little excited there, but good to know it's not over.

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 must set forth specific facts showing that there is a genuine issue for trial.-- that is what you need to show the court.  search around for MSJ threads and how they presented that.  I would start by sending some productions of docs to them, then you can state discovery is ongoing.  If you have no ongoing discovery, then they will bring up that fact.  You can also state you plan on calling the affiant to trial, 

 

Here is how bmc100 beats the MSJ, but his state is different so maybe the Utah guys can weigh in.

13. 99.9% of the time the JDB's attorney will file a Motion for Summary Judgment. As the Defendant, beat them to it and file your own MTD. Up to this point, the JDB has not supplied you with any documentation showing that they have made a proper claim. Also remember, this is an alleged creditor, they have to show they have standing to bring this suit. THe MTD, will force them to show their entire hand. Think of it as playing poker, you know from the start, even if you have never defended yourself in a lawsuit that your hand is stronger than theirs, so call out their bluff. Here is what will happen, the typically the JDBs suit will not get dismissed, the judge will create a court order telling the Plaintiff to produce certain documents in a certain amount of time, usually a week or two. The judge will then schedule a status hearing to allow the Plaintiff to either provide to the court the documents or they do not have them or do do not want to show them. In just about every case, they either dont have them or do not want to show them. The attorney will call you to ask for more time or to ask for a dismissal. Until they produce those docs, the case does not move forward.

14. If you do not file a MTD, as mentioned expect a motion for summary judgment. Here are a few big errors I see others making in filing an opposition to the MSJ.

1) They get someone elses opposition, copy and paste
2) THey do not file an opposition - Case over, Plaintiff wins.
3) THey do not properly plead their opposition by responding to each and every argument that the Plaintiff makes in the MSJ while providing authority, caselaw, and the rules and laws that apply to the argument, most of all they do not raise the defenses that they stated in their answer.

In any of these scenarios, it is game over, Plaintiff wins...you will not be able to appeal.

15) There will be another affidavit attached to the MSJ by an employee of the JDB. They will claim that they have personal knowledge of your account and the amount is correct or they will state they received this information from someone else with personal knowledge. In either case, it is Hearsay. The affiant needs to have personal knowledge of your account, how it was created...etc. We all know that a JDB employee has no personal knowledge of anything, but you need to argue this is your opposition or the court will take that affidavit as truth. It is not to the court to help you if you make a mistake, but if you bring up issues of fact...then the court has a basis to support your argument and either force the Plaintiff to come up with more documentation or deny their claim

 

--

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You will want to object based on discovery ongoing, however you will want to tear their case apart as well. Something I see as a possible opening. They did not send terms and conditions or the bill of sale in their initial disclosure, is that right? If so they can not use that evidence according to Rule 26 now and their case should be dead on arrival due to that failure. If they included that or anything else in their MSJ, you will want to motion in limine to exclude that evidence. However also in your objection address the crap that it is, self serving documents they created exclusively for litigation and are not business records.

 

These guys are using the standard play book and sticking to the script. The only new part of the script is they are attempting to use lack of disclosure in an attempt to beat you. To bad for them, rule 26 is very specific in that they are not allowed to object based on lack of disclosure. Now they can not object to anything if you press for motion to compel.Time to bury them in paperwork with motions, objections, etc.

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@KentWA, nah, they sent terms and conditions and they have the same "account charges" info they sent with their ID.  The only thing additional is the affidavit and a document that lists their internal account number, last 4 of the original account, account information, charge off balance, purchase date, statutory interest rate and date of last payment.  The account information just states Asset Acceptance is an LLC under the laws of Delaware and that it's an Assignee of Dell/CIT online bank or it's successor in interest.

Would I be able to motion in limine to exclude the document above?  I was planning on objecting as you described.  I was also going to attack the affidavit and the witnesses they listed in their ID as none of them could have personal knowledge.

 

My question is,  do I do all of this just in my opposition to the MSJ?  Or do I need to file all of these objections seperately?  I guess I'm confused on if there is some sort of formal objection form I need or if objecting in my opposition is enough.  Also, I haven't bothered to object to any initial disclosures as there was nothing filed with the court.

 

So they only put in the 3 points in their STATEMENT OF UNDISPUTED MATERIAL FACTS.  All of these are stemming on their affidavit as every numbered "fact" refers to the affidavit. I plan on opposing those specifically and adding on-going discovery as my opposition.  I am having trouble finding case law to back it up......

 

Or am I over-complicating this?  Is my objection enough?  For instance, Asset says their business records demonstrate that they purchased the receivable at issue.  Would my objection that their documents are self-serving for litigation and that the person who signed the affidavit has no personal knowledge, be sufficient.  Obviously, you can't say for certain, but in your laymen opinion, would that be enough?

 

You folks are godsend.  I was almost ready to just give up.  Thanks again.

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Alright, so just seeing if I could get a critique on the Opp to MSJ.  There was a hiccup with their first time serving the court, so they had to serve again. Anyhow, this is what I've come up with so far.  Any feedback is much appreciated.

-----------

Defendant, hereby, submits this Memorandum in Opposition of Plaintiff’s Motion for Summary Judgment.

 

Pursuant to URCP Rule 7©(3)(B), each of the following facts set forth in Plaintiff’s Memorandum are disputed by Defendant.

  1. ASSET ACCEPTANCE, LLC business records demonstrate that ASSET ACCEPTANCE, LLC purchased the receivable at issue in this case from DELL FINANCIAL SERVICES/CIT ONLIN BANK or it successor in interest. See Affidavit of AA EMPLOYEE, ¶3, filed herewith. See Terms and Conditions and Accounting, filed herewith.
  2. The original creditor in this matter is DELL FINANCIAL SERVICES/CIT ONLINE BANK and the original account number is ███████. See Affidavit of AA EMPLOYEE, ¶4, filed herewith. See Terms and Conditions and Accounting, filed herewith.
  3. The business records associated with the receivable demonstrate that our claim against Defendant is in the amount of $2,082.46 together with the interest at statutory rate of 10.00%. See Affidavit of AA EMPLOYEE, ¶5, filed herewith. See Terms and Conditions and Accounting, filed herewith.

POINTS AND AUTHORITIES

In an opposition of Summary Judgment, “A party opposing the motion is required only to show that there is a material issue of fact.” Lamb v. B & B AMUSEMENTS CORP., 869 P. 2d 926, 5.  In all of Plaintiff’s facts, it refers to an Affidavit of AA EMPLOYEE (Exhibit A, attached.)  Defendant disputes the knowledge of the affiant in this affidavit.  As the affiant is an employee of ASSET ACCEPTANCE, LLC and not the original creditor, there is no way that he/she has any personal knowledge of how the alleged account was established or how their records were maintained.  The statements made by affiant are hearsay and do not establish any factual information.  Further, the Accounting document (Exhibit B, attached) is a self-serving document created by Plaintiff for the sake of litigation.  Without proper authentication, all exhibits and /or documents set forth by Plaintiff, are controverted.  Thusly, all facts offered by Plaintiff are controverted. 

“Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith.”  U.R.C.P. Rule 56(e).  Plaintiff has failed to follow this rule as the ‘business records’ described in Affidavit of J. Giandario are neither sworn nor certified.  The documents do not meet the standard for authenticated evidence and thus do not meet the requirement of rule 56(e).  Further, Plaintiff has not shown any evidence to support that Defendant agreed to the Terms and Conditions.

“A single sworn statement is sufficient to create an issue of fact.” Webster v. Sill, 675 P. 2d 1170. 

“Generally, summary judgment should not be granted if discovery is incomplete since information sought in discovery may create genuine issues of material fact sufficient to defeat the motion.” Callioux v. Progressive Ins. Co., 745 P. 2d 838.  Discovery has not been completed in this action and thus summary judgment is improper.

 

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Now I thought the Webster v. Sill was a good case law to point to and I plan on putting in my own sworn statement in place of an affidavit.  Now, would you recommend a separate sworn statement or just signing this entire memorandum under penalty of perjury?  That's where I'm confused. 

 

Also, I went to the pretrial conference and the attorney asked if I would give any of the 6 years of bank statements.  At first I agreed to give 4 years of anything that was tied to DELL, but then I changed my mind and just said no.  It seemed just like an added expense and hassle on my part.  He then asked if he could get the name of bank.  I, again, said no.  I said if the court ordered their motion to compel then, of course, I would abide, but I see no benefit in helping them make their case.

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Welp, about to file my opposition in the morning.  I refined it a bit and added an unsworn declaration in lieu of an affidavit. 

 

Just to help out you Utah folks.  Check out U.C.A. 78B-5-705. 

 

Keeping my fingers crossed!

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