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Johnson Mark LLC suing for Midland Funding

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  1. Sued by Midland Funding via Johnson Mark LLC
  2. Served in Person by process server
  3. Initial Comlaint filed June 2012, 3rd judicial court Utah, no paperwork filed with initial complaint
  4. Original Creditor Chase Bank
  5. Claims:a)Defendant resides in this county and/or signed a contract giving rise to this action in this county. Jurisdiction and venue is proper  B) Defendent entered into a contract w/ Chase Bank , which contract was subsequently assigned to Plaintiff.  C)Defendant defaulted on the obligation under the contract.  D) The amount chrged off on the account was $xxxxx, There is now due and owing to the Plaintiff the amount of $xxxx, plus accrued interest of $xxxx as of may 2012. at the annual rate of 10 percent per annum less any payment made. In addition, plaintiff is entitled to recover interest until  all amounts due are paid.  E) Plaintiff may be entitled to recover reasonable attorney's fees as provided in the contract. Plaintiff may seel attorney's fees in the amount of $775.00 pursuant to URCP 73. Said fees will not be shared.  F0 Plaintiff may also be entitled to additional attornue's fees post-judgement.  G) Further equity requires Defendant to pay the value of the benifits received
  6. Demand:  A) for damages in the amount of $xxxxx, plus accrued interes of $xxxx, etc.  B) For additional interest from May 2012 until paid at 10%.  C) Reasonable att fees.  D) Post Judgment Att Fees.  E) for cost of court both Pre and post Judgment.  F) Any relief the court deems hust and equitable
  7. Answered Complaint within time frame and filed notice of appearance giving address for communication from the Plaintiff or the Court.
  8. Heard nothing after filing the answer and after 35 days sent a letter to Att saying since I had heard nothing I assumed the matter was dropped
  9. Recived a letter from the Court in November 2012.  Johnson Mark had motioned for Summary Judgment and Court said it appeared Discovery requests from the Plaintiff had never been served on the Defendant and all papers served by the Plaintiff were served to an address differing from the Defendants address in the appearance.  He said the Plaintiff may correct this deficiency, but to mail to correct address
  10. Received Discovery from Plaintiff in November after the letter from the court.  Answered within time frame but pointed out I had never received intitial disclosures and they were doing things out of order.  I eventually received them.
  11. I sent my RFA and RFD to Plaintiff and heard back after the the time allowed under UT Code.  The attorneys made  mention they had never received the discovery request, but just hppened to be going through the court docs and saw that I had requested discovery.  I sent the request Certified, return receipt signature required and have all the receipts.

According to UT Code, all RFA's not answered within 28 days, 31 days if mailed, are deemed admitted.  I received their answers at 36 days, post marked 35 days.


Now the nitty gritty.  Where to go from here.  They are requesting a pretrial conferance to work out discovery issues.  Of course, in their answers to my request for discovery the objected to everything.  Here are my RFA's

  1. Admit the Plaintiff has no first hand or personal knowlwedge of the OC business practices
  2. Admit the Plaintiff has no personal or first hand knowledge about how the alleged debt was created or caculated by the OC
  3. Admit the Plaintiff is not in possession of a certified copy of the alleged contract with the OC signed by the Defendant
  4. Admit the Plaintiff lacks a witness from the OC who has specific first hand knowledge of the Account and can testify to the sale of the account and how the account prior to its sale was kept and maintained.
  5. Admit the Plaintiff has provided no proof of Assignment of the alleged Accoutnt to the Defendant.


I did file a Certified denial of the debt.  I ran accross this forum recently and probably needed their help sooner.  Do  I file a motion to dismiss?

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Their basis was "Defendant has failed to provide initial disclosures".  I was not aware I had anything to disclose.  They also said they did not receive my request, which is a lie, since I have a signed receipt.  Their repsonse with objections was after time allowed (31 days)

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Read the disclosure rules (Rule 26) carefully. If they have not provided disclosures you should file a motion to preclude. The rules in no way allow you to object because they did not do their part. One parties discovery misconduct does not allow another to avoid the rules.




Especially pay attention to the Advisory Committee Notes which a judge should pay close attention to. Rule 26 was revised last year to expedite cases and many bottom feeding lawyer have not paid attention or hope the defendants just default or make some error. The new rules would make them work too hard. 


Providing the responses late by a day is not going to be a problem for them, but if you try to press it then you might have the judge looking negatively toward you.

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So it looks like I need to provide initial disclosures to remove that objection.  Not exactly sure what to provide as I have no witnesses, etc. to provide.  Do I need to provide my contact information other than service address.  I would like to totally remove that objection.  Would I then need to ask them to respond to Discovery requests?


Also, so what you are saying is there is not much to go on with the Plaintiff being 4 days late in Discovery answers?  What made me think of it was they mentioned a so called excuse for not getting their Discovery answers in on time.  I was not sure about the exactness of the Rules.



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Your intial disclosures will be just like you say, list your name and service info. for documents and such just list that you have none at this time.


You are sitting good with the judge being on the advisory committee as he will be very versed in the rules and can use them to beat them over the head with them. The rules do not say that you have to meet and confer to exclude based on Rule 26, however it might be a good since rule 37(a)(3) states you must make a good faith effort to meet and confer in other discovery matters where you seek sanctions.

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OK, will get those off on Monday.  Do I need to provide a telephone number? and do you think it best to include a letter asking for discovery answers now that the objection has been resolved.  I just feel like I need to keep an aggressive posture with these guys and do not feel good waiting for their next move.  I know their M.O. is pushing for Summary Judgment.



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The Rules of Professional Conduct is chapter 13 on this page: http://www.utcourts.gov/resources/rules/ucja/


You do not necessarily provide a phone number but it might show a willingness to cooperate in matters of the case.You can provide an email address as well, however you are going to have to check that regularly and I would say you need to make a statement that you do not consent to electronic service. As of 1 April the attorney is required to accept electronic service, but a Pro Se does not have to.

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In Utah electronic service is something other than email. The lawyer files the papers in the e-file system and then you get notice it is there. Last time I looked it was a $300 activation fee and a $30 monthly fee as well. I suppose you could argue that since it is cast you are required to pay to the Courts that it is  fee or cost awardable. However I am not going to let the other side force me to pay. I won sanctions in one case because they always e-filed and never sent me a thing claiming it was what everyone does, but the rules saw the court must approve it and you must pay the fees.

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I sent off my initial disclosures.  My questions are?

  1. Since  I provided an answer to their objection to RFA and RFPOD, do they have to answer, the Request now or do I have to ask them to do so.  If so, how would this be done?
  2. If waiting for an answer, how long should I wait, especially since the Plaintiff has filed a motion for a pre-trial conference?
  3. My guess, is if they answer, there will be other objection(s), and nothing will be provided.
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  • 4 weeks later...

After reading what Bruno and KentWA had to say, I thought it might be fun to go for a security deposit as per Rule 12(j) and Rule 12(k), URCP.  Following is a rough draft of a Motion to do so.  Would appreciate any input!!  Please slice and dice as you see fit.  By doing so, I am also putting the Plaintiff, Midland Funding on notice that I may go for attorney fees.


Thanks in advance for any help!!


Comes, Now Defendant, ReadyToWin, Pro Se, pursuant to Rule 7( B)(1) of the U.R.C.P. hereby moves the court to require Non-Resident Plaintiff, Midland Funding LLC to furnish a security deposit of $300.00 for Costs.



  1. On or around June 1, 2012, Plaintiff filed a Complaint and Summons on the Defendant.
  2. On June 19, 2012, Defendant answered the Complaint and filed a Notice of Appearance.
  3. Plaintiff claims Defendant entered into an Alleged Contract with Chase Bank USA N.A, which alleged Contract was subsequently assigned to Plaintiff
  4. Plaintiff is a California Corporation and thus resides outside the State of Utah.
  5. This action is early in the Discovery stage and the Defendant has yet to learn how this proceeding will progress. In the likely event there may be counterclaims and costs incurred by the Defendant in said action it is reasonable to ask the Court for a security deposit for Costs.


A recent Utah Supreme Court opinion has interpreted Utah’s reciprocal attorney’s fee statute.  This statute, found at Utah Code Section 78B-5-826 (referred to as the “Reciprocity Statute”), provides the following:

“A court may award . . . attorney fees to either party that prevails in a civil action based upon any . . . written contract . . . when the provisions of the . . . contract . . . allow at least one party to recover attorney fees.”

The Reciprocity Statute has been commonly understood to mean that if a contract gives one party the right to recover attorney’s fees from the other party to the contract in a dispute regarding the contract, that contract provision becomes reciprocal.  As a result of the statute, each party then has the right to recover attorney’s fees from the other party.  So, as a possible example, if a provision in a loan agreement gives the lender the right to recover the lender’s attorney’s fees in a lawsuit to collect the loan, and the borrower is successful in defending against that collection lawsuit, the borrower will likely have the right, by benefit of the Reciprocity Statute, to recover the borrower’s attorney’s fees from the lender.

The Utah Supreme Court tested the scope of the Reciprocity Statute in the recent case of Hooban v. Unicity International, Inc., 2012 UT 19 (March 27, 2012).

In defense to Unicity’s attorney’s fee claim, Hooban argued that the Reciprocity Statute was only applicable if the attorney’s fee provision in the contract was “unilateral” (i.e., for the benefit of only one party) and that the statute did not apply in this instance in which the attorney’s fee provision was “bilateral” (i.e., benefitting both parties). The Supreme Court concluded that the terms of the Reciprocity Statute have no such limitation.

Hooban then argued that because the trial court determined that he was not a party to the distributorship contract, the attorney’s fee provision in the contract and the Reciprocity Statute had no application to him.  The Supreme Court rejected this argument by concluding that if Hooban had prevailed in his claim to enforce the distributorship contract, Hooban would have been deemed a party to the contract and would then be able to enforce the attorney’s fee provision in the contract.  This “hypothetical” outcome therefore gave Unicity the right to enforce the attorney’s fee provision against Hooban under the Reciprocity Statute.

Utah’s Reciprocity Statute regarding attorney’s fees is intended to achieve a public policy of fairness, but creates an added risk for any party who files a lawsuit to collect or enforce what that party believes is a contractual right in an instance in which the contract at issue has an attorney’s fee provision in favor of any party.  Thus Defendant is at risk without the security deposit.


Pursuant to Rule 12(j) of the U.R.C.P. Defendant request the Court to require the Plaintiff to submit the Security of $300.00 for Costs and Charges which may be awarded against the Plaintiff.  Furthermore, pursuant to Rule 12(k) of the U.R.C.P. Plaintiff must provide the undertaking as ordered by the court within 30 days of the service of the order. The Court shall, upon Motion of the Defendant, enter an order dismissing the action if the Plaintiff fails to file the undertaking as ordered by the Court within 30 days of the order. Bunting Tractor Co., Inc. v Emmett D Ford Contractors Inc. 2 Utah 2d 275 (1954) 272 P.2d 191. Maxfield v Fishler 538 P. 2d 1323 - Utah: Supreme Court 1975




In summary, the Plaintiff is an out of state, non-resident corporation. Considering Utah’s Reciprocal Attorney’s Fee Statute Utah Code Section 78b-5-826, Defendant should be protected under U.R.C.P. Rule 12(j). Defendant prays the court find in its favor by invoking Rule 12j) U.R.C.P. and require the Plaintiff to file a $300.00 undertaking with sufficient sureties as security for payment of such costs and charges as may be awarded against Plaintiff.

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I filed my Motion for Security Costs on March 13th and JM for Midland Funding was served on March 14th.  As per the Utah Rules , A response in opposition needs to be filed within 10 days and if they are served via USPS mail add 3 day for a total of 13 days.  On March 28th, (15 days after Plaintiff was served w/ Motion), I filed my Request for a decision and the Plaintiffs attorneys were served with the request on March 29.  On March, 29th, Plaintiff mailed opposition to security costs and I was served with it today, April Fools Day.


Here is their answer:


Argument - "Defendant has requested a cost bond to be filed by Plaintiff but has failed to show or allege what costs (not attorney fees but costs) he might incur in this case. As such, without even alleging what costs might be incurred, Defendant cannot have shown any "reasonable necessity" for any such cost bond.  Furthermore, the Utah Rules of Civil Procedure have recently been amended with the specific goal of keeping costs such as this one down to a reasonable amount.  Finally, Defendant cites a number of cases about attorney fees, however, Defendant in this case, is pro se and as such he cannot at this time be awarded attorney fees.  Until or unless Defendant can show the reasonable necessity for a cost bond, his request should be denied."


  1. First of all the Plaintiff's response was late, although I am beginning to believe this is just another tactic for the JDB, should I still provide the Court an answer to the Plaintiff's opposition.  I have 5 days to do so. 
  2. Regarding the formulation of an answer, it seems the Plaintiffs answer seems to be simply that since I am Pro Se, I won't have any attorney fees.  This certainly does not mean I will not have costs involved in dealing with these wretched creatures.  It is not possible to know in advance, what costs I might have.  I am a Pro Se Defendant, and this is all new to me.  Plus according to Utah Law, a Pro Se Defendant may be entitled to Fees if the Defendant wins its case.  In my Motion I mentioned we were in the early stages of Discovery.  It is interesting controlling costs is only important for the Junk Debt Buyers, since they have to file so many lawsuits!!
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Following is my response to their opposition:




  1. On March 14, 2013, Plaintiff was served with Defendant’s Motion for Security Costs.
  2. As of March 28th, 2013, Plaintiff had not served Defendant with a Statement and Memorandum Opposing the Motion and Defendant filed a Request for Decision.
  3. On April 1, 2013 Defendant was served with Plaintiff’s Opposition to the Motion.
  4. Said Opposition was post-marked March 29th, 2013.




Plaintiff failed to respond to the Defendant’s Motion for Security Costs in the time allowed by U.R.C.P. Rule 7©(1). According to this Rule the Plaintiff must file its Opposition within 10 days of being served.  Even allowing an additional 3 days as per U.R.C.P. Rule 6(e), the response was beyond that allowed.


Furthermore, Plaintiff’s Argument that the Bond should not be allowed as the Defendant has failed to show or allege what costs may be incurred, is a specious argument as it assumes the Defendant will have no cost incurred simply because he is a Pro Se Defendant.  Defendant clearly states it is too early to tell what expenses will be incurred in this matter.  To date, in postage and office supplies alone, the Defendant has incurred a fair expense.


In addition, Defendant assumes the recently amended Utah Rules of Civil Procedure with the goal of keeping costs down does not only apply to the Plaintiff and should likewise apply to the Defendant and no where do the changes not allow for the posting of a security bond.

Finally, it is important for Defendants in a court of law to have some protection from the vexatious litigation of the “Junk Debt Buyers”.  The Plaintiff is a “Junk Debt Buyer”.


This was filed with the court on 4/3/13.

Defendant prays the Court rule in his favor.


Request for an answer has been submitted.

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Latest Update,


Received from the Court today a "Notice of ALL Pending Motions", with a court date of 4/22/13, which says the Court has set aside 30 minutes for Oral Arguments on all "Pending Motions"  The Plaintiff has a Motion before the Court for a Pre-Trial Conference and I have a Motion before the Court for a Security Deposit.  Not exactly sure what to expect here?


I do have my MTD for SOL in my Quiver and was holding it until I received an answer on my request for Security Deposits.  This changes it a bit and was thinking of submitting it just prior to the Oral Arguments.  I would do it now, but will be out of town at a critical period with deadlines etc.  Not sure if I would tick off the Judge by submitting it just prior to the hearing.  I'm sure it will tick off the Plaintiff/JM.

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Technically you can, but if you don't give the opposing side some time to review the thing they will object to it as untimely. That usually means it will be calendered forward so they can respond to it. The SOL could have gotten rid of this from the get go if it is legitemate, it is a simple procedural dismissal. Holding onto it as a last shot makes no sense and will probably tick off the judge because you wasted a bunch of the court's time litigating a case you knew was out of SOL.

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Good point Bruno, I don't want to tick off the judge.  If I file now would you expect the Judge to allow Oral Arguments on the SOL at the scheduled meeting?


Flyerfan - It was under Utah SOL,, but since Utah is a Choice of Law State, and the Chase Agreement is under Delaware Law I am going to argue their 3 year SOL.  Both the last payment and purchase is well beyond the 3 year SOL

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Flyerfan - It was under Utah SOL,, but since Utah is a Choice of Law State, and the Chase Agreement is under Delaware Law I am going to argue their 3 year SOL.  Both the last payment and purchase is well beyond the 3 year SOL


Got it.


Bruno is right, of course, file it asap.

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  • 2 weeks later...

Need some advice on procedure.  I am currently scheduled for oral arguments on Motions before the Court on Monday April 22nd.  I have just found out I have to be out of town all next week, so am drawing up a Motion to Postpone the Court date.  As it only 1 week away, I  want to file today and am not sure if I need to submit an Order with the Motion to Postpone.  If I do, it seems like I would eed to have the signature line as the Judge?  Also, I know I need to serve the Plaintiff with the Motion.  Is this something they will typically respond to?

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