Bob Fletcher

Johnson Mark LLC suing for Midland Funding

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KentWA says - What grounds would you have for such opposition?

 

I was planning on Undue Burden and costs and the fact that the Depo is in another County.  According to the Rule 45:

 

(e)(3) The person subject to the subpoena or a non-party affected by the subpoena may object if the subpoena:

 

(e)(3)(B) requires a resident of this state to appear at other than a trial or hearing in a county in which the person does not reside, is not employed, or does not transact business in person;

 

(e)(3)(F) subjects the person to an undue burden or cost;

 

It will really be a burden for me (actually not only me but other people as well), to attend the disposition. Am I off base on this?

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NO you are not too off base, but it is likely the judge may side with them or tell them to move it to your county. However, as I said above, if the court makes them cough up hard cash for the bond they are not going to want to do that. But if the lawyer just has to spend a little bit of his time for a depo, it is not a big deal and causes you grief.

 

Simply put you now have the ammo to clearly move for a bond with demonstrable costs. Not only will they have to once again go to court, they are most likely to have to pony up cash to continue the case. Of the cases where it was invoked that I have looked over, the cases died then and there with the JDB never coming up with the bond.

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Thanks KentWA!!

 

My immediate problem is that the Depo is set for July 17 and if I file the motion for security costs even tomorrow, that time will come and go before they have to answer the Motion for Security Costs.  What do you think about filing the Motion for Security costs followed a couple of days later with a motion objecting to the subpoena. According to Utah rules I just have to file the motion objecting before the date. This way the Depo would be put off until we go through the process. Or do you think I should file for a continuance on the Depo and then file the Motion for Security Costs. If so, how do I file for a continuance? Do I just send them a letter???  They already did a continuance on their own subpoena moving it from June to July.

 

I have also received their opposition to my Motion to Quash the Subpoena of my Wife's Landlord, and will post that after we try to hash this first item out.

 

As always KentWA, thanks for your input!!  It is greatly appreciated!!

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I am thinking a continuance on the Depo may be the thing to do as it would buy me time for the Motion for Security costs.  There must be some provision for a continuance as things come up in the course of life.  I was able to achieve a continuance on a court date without a problem and this is a discovery matter.

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For a continuance you can just contact opposing counsel and request to reschedule, They should do that with no problem, especially if you have a couple of proposed dates.If they do not want to play ball, then go with the first plan you had. I did not realize what you were attempting here and there is a little more strategy you need to use.

 

File for the cost bond and then the next day oppose the depo on multiple grounds, costs being one of those.Make sure you include Xchange costs and anything else you can come up with from the rules and statutes.

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A letter asking for a continuance should be fine. Pretty informal procedure, really.

 

Oh, and... KentWa rocks!  Great info given to you!

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I missed a fuller explanation. Ask for oral arguments on both your motions, that makes you a big PIA for the attorney as he is going to need to go to court on a date of your choosing and not a date he selects. If the court grants the cost bond you can choose to withdraw the second one as moot since they have to put up the bond for your costs and you will have delayed the depo with the motion already. Once ordered to put up the bond they can not proceed until they post the bond. However if you have more good basis for opposing the depo, then go for it. However it would be real hard to fully avoid a depo unless they turn coward and cheap and run off. :)

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Thanks KentWA!!  Going to work on my Motions, is the proper place to ask for oral arguments in the Conclusion portion of the Motion?

 

If the Depo where I live, I would not oppose. It is basically a 1 hour drive one way to the attorney offices, through a major canyon.  Tires need replacing at present on a shared vehicle that is not safe for interstate travel (High Speeds over long distances), plus it puts a burden since more than one person depends on the car daily at specific times. I figure the Depo with travel time is at least 4 hours.

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KentWA says:

File for the cost bond and then the next day oppose the depo on multiple grounds, costs being one of those.Make sure you include Xchange costs and anything else you can come up with from the rules and statutes.

 

I am having a hard time finding anything in Utah Statutes regarding what is eligible for cost recovery. Rule 54(d)(1) says; "Except when express provision therefor is made in a statute of this state or in these rules, costs will be allowed as of Course to the prevailing party unless the Court otherwise directs..."

 

I also think Utah leaves the Recovery of the expense of computerized legal research to the discretion of the Court, but I cannot find corresponding statute or rule.

 

HELP!!

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There is a form on the forms site that enumerates many of the basic costs. Xchange costs are a point of contention it seems now, as there are rulings both ways. Since they are paid to the courts some courts have allowed them, others have not. You will also believe that you are going to need lots of trial exhibits (i.e. everything summerizing plaintiffs production at least), which copy fees are allowed.

http://www.utcourts.gov/resources/rules/urcp/forms/docs/23_Verified_Memorandum_of_Costs.pdf

 

Not only do you ask for Oral Arguments in the conclusion, but in the caption. SO it will look something like "Motion for Cost Bond. Oral Arguments Demanded"

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Many Thanks KentWA!!! Have my Motion for Security Bond ready to file tomorrow.

 

Quick question, when I file my Objection to the Deposition for reasons previously stated, what is best to put in the Caption?  Simply: Defendant's Objection to Plaintiff's Request for Deposition since it not really a motion.

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Did they request it, or subpoena you? If it is a a request, you do not have to comply and can tell them to take a flying leap until they make suitable arrangements including a date you agree to. However if it is a subpoena, then it is Motion to Quash Deposition Subpoena or Motion to Quash XXX (where XXX is whatever language they used in the caption of their Subpoena).

 

http://webster.utahbar.org/barjournal/2011/07/objecting_to_subpoenas_in_stat.html

 

You should be able to find examples in Googleusing terms like: utah motion to quash deposition subpoena

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Thanks KentWA!! again!!  Filed my Motion for Security Bond this morning and will file Motion To Quash Subpoena Monday Morning,

 

UPDATE - Received a new affidavit of sale in the trickle of supplemental Initial Disclosures this morning. In my Motion to Preclude Initial Disclosures, I asked the Court to Preclude all Initial Disclosures. I have submitted my request for a decision so we will have to see what happens. In the meantime will need to be prepared to Oppose this new document. It is from a Mr. Dustin Smurdon, Attorney-in-Fact for Chase Bank and Notarized by a Ms Maria Narvaez. Here it is in its entirety, of course, redacted.

 

State of Florida, County of Seminole

 

I am authorized by Chase Bank USA, NA ("Chase") to make this affidavit.

 

Based on a review of Chase's records, which are made at or near the time of the occurrences set forth therein by, or from information transmitted by, a person having knowledge of these matters, and kept in the ordinary course of Chase's business, GonnaWin had a credit card account with Chase, account number xxxx-xxxx-xxxx-last four. The account was sold and transferred to Midland Funding, LLC on or about November 10, 2010. At the time of the sale to Midland Funding LLC, the amount due on the account was $2xxxx.xx.

 

The records of Chase indicate that the last payment on the account wa made on September 19, 2008.

 

Chase has not further interest in said account for any purpose.

 

On behalf of Chase Bank USA, NA

 

The affidavit was notarized on June 20th, 2013.

 

This appears somewhat desperate as how would this Attorney in fact have any knowledge of the account in question and was he working for Chase at the time of the sale?  I have not seen an Affidavit like this on CIC, but it's entirely possible it has been posted and I  missed it.

 

Also, this affidavit is not even remotely close time-wise to the sale of the alleged account.  What is the best way to attack this Affidavit?

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@Bob Fletcher

 

Here's my non-attorney take on the affidavit. 

 

1.  This affidavit is solely for the purpose of attempting to prove that Chase sold your account to Midland.  Based upon the language, it is not an attempt to authenticate Chase's cc statements.  Read your rules of evidence regarding hearsay and the business records exemption.  In my state it's Rule of Evidence 803(6).  That rule includes all of the statements necessary in an affidavit in order to authenticate business records. 

 

As you would see, this affidavit doesn't include all of that language, so it can't be used to authenticate any cc statements.

 

2.  "on or about".   The affiant claims he reviewed Chase's records.  Which records did he allegedly review?   If he, in fact, he reviewed the records that were related to an alleged sale of the account, that record/agreement would state the date of the sale.  Therefore, the word "about" would not be necessary because the date would be specific.

 

3.  This affidavit makes no reference to the accuracy of the records that were ALLEGEDLY reviewed, although such a statement is probably not required.  However, I might argue since the affiant made no reference to the accuracy of the records and considering the fact the he stated "on or about" the date of the sale, there is a doubt that he actually reviewed the records.

 

4.  Notice that he does not state that he is employed by Chase.  He claims he's "authorized by Chase" to make the affidavit.  What does that mean?  Is he employed by Chase or not?    How is he authorized? 

 

In other words, which statements indicate that he is qualifed to attest to the contents of the affidavit?

 

All of that being said, you might need to case law to support the arguments.

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And HUGE for an MSJ, there is no mention of personal knowledge. I received an identical one from Christina Paperman.

 

Nothing referenced as an exhibit makes every word she says conclusory and lacking foundation and documentary evidence.

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KentWA says:

Did they request it, or subpoena you? If it is a a request, you do not have to comply and can tell them to take a flying leap until they make suitable arrangements including a date you agree to. However if it is a subpoena, then it is Motion to Quash Deposition Subpoena or Motion to Quash XXX (where XXX is whatever language they used in the caption of their Subpoena).

 

I just went back and looked at the paperwork (2 documents) sent by the attorneys and they say 1) Notice of Deposition and 2) Request for production of Documents

It was not an actual SUBPOENA. Not sure where I got that idea, other when I first opened it, it looked very official.I had not actually looked at it since receiving it, (a bit of avoidence therapy)   KentWA, thank you for pointing out a crucial item.

 

I'll send them a letter telling them to pound sand!

 

BV80 - thanks for the input! xasiansmilex

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I found this record from a North Carolina Bankruptcy record. Fatal mistake made, not disputing the affidavit

 

"Ownership of the Debt

Debtor contests the validity of the assignment attached to eCAST’s original proof of claim. Debtor contends that Rachelle Riggins, in her

capacity as “Team Leader,” did not have proper authority to execute the assignment on behalf of Chase. eCAST amended its proof of claim

to include the affidavit of Mr. Smurdon, an officer of Chase, which confirmed ownership of the debt by eCAST. The debtor did not dispute

the Smurdon affidavit nor introduce any evidence to substantiate its attack on the validity of the assignment.

Therefore, eCAST has shown by a preponderance of the evidence that it is the owner of the account at issue."

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Affidavit first: BV80 made several good points and read Rule 803 and 902 carefully. Then prepare a discovery request for each and every record the affiant reviewed. They are not allowed to hide those and must produce or the affidavit goes down the toilet. They are going to have to pay chase to get those records. Also start getting a depo by written questions ready for the affiant with questions like, who is your employer, what is your job description, What records did you review, how did you review them, etc.

 

On the Depo: Don't just says "pound sand", but rather nicely tell them to. Tell them their depo does not comply with the rules ( you do not really have to tell them in what way) and that you are unable to make it that day. If they would like to properly conduct the depo in accordance with the rules and arrange a date and time that is mutually acceptable, you have no problem with that. Of course due to your hectic schedule it might be that you only have Saturday available. :)

 

They may want to run right off to the court with a motion to compel rather than attempt to further work out differences, but you always get the chance to point out that they are the ones that do not want to meet and confer. This is a regular problem with JDB attorney's and when called on it they get beat over the head on it.

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What BV80 said.  I would also note, he said a" transmitted by, a person having knowledge of these matters" transmitted this info.   well I wonder who that person is? I'd like to ask them a couple of questions, so could you please provide me a name and address, so I may issue a subpoena and ask?

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Shellie says: I would also note, he said a" transmitted by, a person having knowledge of these matters" transmitted this info.   well I wonder who that person is? I'd like to ask them a couple of questions, so could you please provide me a name and address, so I may issue a subpoena and ask?

 

Good Point, Thanks!!!

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KentWA says - "Affidavit first: BV80 made several good points and read Rule 803 and 902 carefully. Then prepare a discovery request for each and every record the affiant reviewed. They are not allowed to hide those and must produce or the affidavit goes down the toilet. They are going to have to pay chase to get those records. Also start getting a depo by written questions ready for the affiant with questions like, who is your employer, what is your job description, What records did you review, how did you review them, etc."

 

OK, so here is my dilemma!!  According to URCP Rule 26(C)(5) I am limited to asking for 5 requests for production of documents. Being new to this,, when I fired off my request for documents, I made five requests. It now appears I need to make more requests. So is the proper procedure to use the following or is there an approach I am Missing??:

 

©(6) Extraordinary discovery. To obtain discovery beyond the limits established in paragraph ©(5), a party shall file:

 

©(6)(A) before the close of standard discovery and after reaching the limits of standard discovery imposed by these rules, a stipulated statement that extraordinary discovery is necessary and proportional under paragraph (B)(2) and that each party has reviewed and approved a discovery budget; or

 

c)(6)(B) before the close of standard discovery and after reaching the limits of standard discovery imposed by these rules, a motion for extraordinary discovery setting forth the reasons why the extraordinary discovery is necessary and proportional under paragraph (B) (2) and certifying that the party has reviewed and approved a discovery budget and certifying that the party has in good faith conferred or attempted to confer with the other party in an effort to achieve a stipulation.

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Another issue is that standard discovery is to end at 6 months according to the Rules and that period has come and gone, but the Plaintiff keeps supplementing their initial disclosures which were 6 months late.  I am waiting to see what happens to my Motion to Preclude Initial Disclosures. If I am successful this all becomes a moot point. If not, I need to attack them.

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