Bob Fletcher

Johnson Mark LLC suing for Midland Funding

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KentWA says:  I asked about notification because normally a third party subpoena is provided to you first and served 10 days later if you do not object. However I can not find that in the rules of civil procedure. It may be in the Rules of Evidence or Rules of Professional Conduct. I would just rip into them, make sure you call the call and calendar your motion for a hearing so they have to go to the court house and explain everything to the judge. You will have to notice them on the hearing.

 

I think I read somewhere I have 14 days to object, but cannot find the reference right now. But want to enter my objection tomorrow.

 

KentWA says:  Counter Claim for less than $2K is only $55 in Utah Courts:https://www.utcourts...ources/fees.htm

 

Good to know, I'm not sure where I came up with the $300.00 figure. Can the counterclaim be done at any time? and any suggestions?

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To enter a counter claim, you would need to file an amended answer. Rule 15 applies and due to the case having proceeded a bit so far you will need to motion for leave to amend. However it is a matter of right to amend once and should be freely given.

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Thanks KentWA!!

 

Filed my Motion to Quash and for a protective order this morning.  Next on my list are Motions for security deposit and to preclude the BOS.  Had a deadline with the Motion filed this morning, so that put me behind. Intend to file the other motions the first of the week.  Guess they will really be mad at me!! Oh Well....  Will then look into a counterclaim to see what I can come up with.

Thanks for everyone's help!!

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As you look at counter claims, make sure you read Brown v. Constantino et al

https://docs.google.com/a/duchesne.utah.gov/gview?url=http://docs.justia.com/cases/federal/district-courts/utah/utdce/2:2009cv00357/70264/25/0.pdf?1270054201&chrome=true

 

Note: Since this ruling the Utah Supreme Court has muddied the waters a bit as to Attorney's. However the Attorney is an Agent for Plaintiff, so any actions in litigation that may be false, misleading, etc are actionable against the debt collector.

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I just saw a great quote from calawyer on another case. With all the shenanigans this guys are playing you might want to consider using this. Most likely they are going to reply to your motions and this would be a great way to cap off your reply to their reply.

 


I think you are correct.  In your reply brief you might want to point out the inequity in having a professional litigant like Midland finding itself capable of filing a lawsuit but refusing to cooperate in discovery, attend hearings and comply with court orders---all against an unrepresented party.  It is hard enough for a pro per to figure out all of the applicable rules without the benefit of law school.  It is nearly impossible for you to figure out what to do when they don't follow the rules.

 
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Thanks Kentwa, the quote is a classic!! Have read through the decision you posted once, will take several readings for everything to sink in, Thanks again!!

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UPDATE - So I served Midland with my Motion to preclude Initial Disclosures for not supplying them within 14 days as required by Utah Rules.  Yesterday was nineteen days and no answer to my Motion. In Utah they have 10 days plus 3 for mail for a total of 13 days to object to a motion.  Being late is typical for them as they were almost 6 months late serving the initial disclosures.

 

I thought I would give it another day or so, before I asked for a decision. My question is when I file for a decision do I include an order with the request? Also any advice on wording the request for a decision would be really appreciated!!

 

Also working on my Motion to preclude additional disclosures provided within the last couple of weeks, but unfortunately life interrupts.

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Your motion to preclude should have included anything they were supposed to include that they had not included. If that is the case then their case would be DOA and their further disclosures would be excluded. Was the stuff they further disclosed covered under Rule 26?

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KentWA says:

Your motion to preclude should have included anything they were supposed to include that they had not included. If that is the case then their case would be DOA and their further disclosures would be excluded. Was the stuff they further disclosed covered under Rule 26?

 

 

Pursuant to Rule 26(d) & Rule 26(a)(1) in the opening paragraph. In the 2nd paragraph 26(a)(1)(B), (D) and (E) in the papers I received on June 9th 2013. They also cited Rule 26(d)(5) saying they requested the information prior to the initial disclosure deadline, but the Plaintiff is too busy with it many lawsuits around the country to comply.

 

I did mention further initial disclosures in my Motion to Preclude, but though  should cover my bases and get my objections in in case the original Motion did not work.

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Since there is a dispositive motion before the court you can wait until it is ruled on, unless the court sits on it. The rules committee clearly stated that their excuse is a "to bad, so sad" situation. They are to be ready for litigation upon filing of the suit, if they are not they need to delay filing. Just to stick it to opposing counsel, I would request oral arguments and drag him to the court house where he will have to explain everything to the judge. Of course the day I schedule it will not be a regular day at the court for him.

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Thanks KentWa!!

 

Well, I finally received the plaintiff's opposition to my Motion to Preclude. It looks like it was mailed on Wednesday, June 19th.  They were served on June 7th. I think part of their plan is to go beyond the deadline (in this case 19 days instead of the deadline of 13 days) for filing opposition in hopes I would file for an answer with the court and not have the opportunity to file my response to their opposition.  Catching on to the game.

 

Anyway, their response was based on they fact they say initial disclosures were sent to the location where they say I was served, my wife's business instead of where I asked items to be sent on my notice of appearance, which was filed with my answer.. They are saying  it was "harmless error"

 

They also in a final paragraph had a section titled "REQUEST TO SUPPLEMENT OPPOSITION WITH RESPONSE TO SUBPOENA". This was a separate motion I filed on 6/20/2013.  Hmmmm

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Thanks KentWa!!

 

Well, I finally received the plaintiff's opposition to my Motion to Preclude. It looks like it was mailed on Wednesday, June 19th.  They were served on June 7th. I think part of their plan is to go beyond the deadline (in this case 19 days instead of the deadline of 13 days) for filing opposition in hopes I would file for an answer with the court and not have the opportunity to file my response to their opposition.  Catching on to the game.

 

Anyway, their response was based on they fact they say initial disclosures were sent to the location where they say I was served, my wife's business instead of where I asked items to be sent on my notice of appearance, which was filed with my answer.. They are saying  it was "harmless error"

 

They also in a final paragraph had a section titled "REQUEST TO SUPPLEMENT OPPOSITION WITH RESPONSE TO SUBPOENA". This was a separate motion I filed on 6/20/2013.  Hmmmm

 

Do they have proof they sent them anywhere? If you can't prove it, it didn't happen.

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Besides what Flyerfan says, you have their initial disclosures that were unacceptable late with a date other than what they state. I would also get a declaration from your wife that no such documents were sent to the address they claim. Didn't they at one point say they were to busy to get everything in time? I would have a ton of exhibits to my reply. I would also start it out that Plaintiff again misstates facts and attempts to delay these proceeding with a late filed reply to Defendants Motion to Preclude, claiming harmless error when Plaintiff has clearly ignored not only the clear letter of the rules, but the spirit of the rules as articulated by the Rules Committee.

 

Have you filed your motion to quash? If so I would reference it as further evidence of bad faith on the part of Plaintiff.

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Thanks Flyer and KentWA!!!!

 

They have provided no concrete proof of sending anything and will be unable to as they send everything first class mail. The declaration from my wife is excellent.

 

I did file my Motion to Quash the Subpoena. Here is what they stuck on the end of their response to my Motion to Preclude:

 

They also in a final paragraph had a section titled "REQUEST TO SUPPLEMENT OPPOSITION WITH RESPONSE TO SUBPOENA". This was a separate motion I filed on 6/20/2013.  Hmmmm

 

In it says: Plaintiff has, in this matter, vaused a Subpoena to be served on the Owners of the property at xxxxxxRD in XXXUtah.Said Subpoena is a request for information, from a third party, relating to Defendant's use of and presence at XXXX Rd.

 

Said Subpoena was drafted the day after Defendant's Motion to Preclude was received and was served on xxxxLLC

 

The information requested in said Subpoena is relevant to the instant motion because Defendant is claiming that service of legal documents on him at xxxxxxRD is improper; however, records from XXXXLLC may show that Defendant had a significany presence and made significant use of the property at XXXXRD.

 

Unfortunately, Plaintiff has not yet received a response to said subpoena; as such, Plaintiff is requesting permission of the Court to supplement this Opposition to Motion to Preclude with records in response to the Subpoena.

 

They are basically arguing that because I filled out a business name registration in 2006 that I agreed to be served at the address. They are neglecting the fact that the business they are referring to went out of business in 2010 and a completely new business which is an LLC is located their. The LLC was formed in 2009 and is legally owned by my family and service had to be done for it through a designated agent. The problem is, I am not on the paperwork for the LLC and am not the agent for the LLC.

 

They are also claiming Defendant is Estopped from requesting preclusion of documents; no prejudice will result fromplaintiff's use of it's documents

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KentWA says: I would also get a declaration from your wife that no such documents were sent to the address they claim.

 

Does this declaration need to be notarized?

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Declarations are un-notarized, affidavits are notarized. You may be in a better standing if you can get it notarized.

 

As to the improperly raised issue of the motion to quash, you may want to do your own that you do not make any use of the address and service there would be completely improper. That you also provided a proper address with your answer and plaintiff is required to use the address provided, not some address they think you might be using. You will be banging them over the head repeatedly with all this.

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Do they give any reason for the claimed estoppel? They are beginning to throw anything they can dream up against the wall in the hopes that something will stick, they are in full desperation mode.

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KentWA says:

Do they give any reason for the claimed estoppel? They are beginning to throw anything they can dream up against the wall in the hopes that something will stick, they are in full desperation mode.

 

Cutting through the legal jargon, they say:

  1. Plaintiff in good faith, initially provided its initial disclosures to defendant at the address was the Defendant was served.(The papers from the process server say the papers were served to a John Doe at my wife's business).
  2. They say I chose to be served here due to a Business Name Application I made in 2006 for a business that has not existed since January of 2010.  I am not a legal agent for the current business. Plus I provided a service address on my notice of appearance. The judge pointed this out to them when he denied their MSJ back in November.
  3. They say they have sent and resent and supplemented all relevant discoverable documents . A lie! They have not provided answers to admissions and requests for documents.
  4. They say I have failed to object to any documents sent to me until now.
  5. They say denying the Motion will not prejudice the Defendant since I have known about the disclosures since the end of december

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Well you can rip that apart in no time at all. Make sure you point out that Plaintiff has been admonished by the court to properly serve you at the address provided in your appearance and service to the address they claim to have served at would be improper and may be an attempt to oppress defendant. Regardless, it is clear by the affidavit of XXXXXX no initial disclosure was attempted to be served at the address plaintiff claims to have served initial discovery at. The date on the Initial discovery shows the real date plaintiff provided initial discovery, which is over 6 months past the deadline plaintiff was required to provide initial discovery under a plain reading of rule 26. Therefore the only conclusion is that plaintiff is misstating facts to the court. Defendant is the one that is estopped from providing claimed discovery by their late filed initial disclosures by operation of Rule 26. If you have any paperwork from the dissolution of the business include that and make that part of your argument to destroy #2. 

 

If they have not answered admissions point that out and file now for a motion to have admissions deemed admitted.

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UPDATE - So I file my request for a decision on July 2nd. Some things came up in the plaintiff's brief that I thought I would throw out for input.

 

The plaintiff is basically saying that since I signed as agent in a business name application for a DBA business in February 2006. That I agreed for service at the address of my wife's business, which is an LLC of which I am not part of. The DBA ceased on January 22, 2010 and my name on the leased ended January 31, 2010,  The LLC was established January 25, 2010. The plaintiff is also saying that since I had agreed to service in 2006 and even though my involvement at the address ended in Jan, 2010, it was proper for them to send initial disclosures at the address of my wife's business. No proof has been provided of sending any initial disclosures to that address and none were received at the address.

 

As part of their exhibits they included a "proof of Service" signed by a process server. It states: "I served this process at the dwelling house or usual place of abode of Gonnawin by delivering a copy to John Doe, (verified Co-Residancy), the Co Resident of Gonnawin, who is a person of suitable age and discretion there residing"

 

The problem with the service is it was not a residence and the papers were not left with a member of the family, but left with someone helping out for a few hours. My question is, did I shoot my self in the foot since I answered the complaint and did not bring up improper service. I always wondered if the service was legal and Now that I have this it appears it was not legal. You can see it ws not a residence but a business

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Also planning on filing opposition to subpoena for Deposition per URCP45(e)(3)(B<C&F). Do I need to file this with the court since it is part of Discovery? Or do I just file the notification of service?

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What grounds would you have for such opposition? The main thing right now that will knock this out of the game is the motion for cost bond since you will have travel costs for the depo and costs for Xchange subscription. Those are verifiable costs imposed on you by plaintiff that they can not dodge out on.

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