Bob Fletcher

Johnson Mark LLC suing for Midland Funding

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I thought Utah had a rule where they couldn't keep supplementing? My states says they can't without good cause and must ask permission, what does Utah say? I thought kent said something about this.

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Thanks Shellie98!!  You and KentWA are right! I think I will wait for the decision on my Motion to Preclude Initial Disclosures and if that does not go my way, will finish my MIL to preclude each additional document that has been provided.

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I keep forgetting about the update to the rules that limited production requests. So you have two options. Meet and confer letter that says the affidavit is incomplete and they must provide all those records that they relied on or subpoena the affiant with a Subpoena Duces Tatum. The subpoena duces tatum makes them produce all records they relied on. You will also want to meet and confer on who the mystery person is that transmitted the records. They are attempting to get the hearsay exception in by using those terms and you want to cast doubt on the records. From the affiants statement you have no idea if it was maybe the tooth fairy that transmitted the records.

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Below is a draft of my Meet and Confer letter to the Plaintiff regarding the latest affidavit of sale which is posted on post 164  I would appreciated any input!!!

 

Re: Affidavit of Dustin Smurdon

 

 

Let this letter serve as a meet and confer regarding the Affidavit of Sale by Dustin Smurdon, provided by Plaintiff, Midland Funding LLC.

It should be pointed out that this Affidavit of Sale is an incomplete document.  It refers to a “review of Chase’s records”. Without the “records” the Affidavit is referring to it is an incomplete document. The affiant claims he reviewed “Chase's records”.  Which “records” did he allegedly review?   The affiant also refers to an account being sold “on or about” a particular date. If he, in fact, 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.

This affidavit makes no reference to the accuracy of the records that were ALLEGEDLY reviewed. There is also no reference to the affiant’s personal knowledge of any “records” associated with the alleged sale.  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”.

Please provide the “records” the Affiant is referring to. Also, provide the service address and phone number for Mr. Dustin Smurdon.

In addition the Affidavit refers to “information transmitted by, a person”. Without this information, this affidavit is incomplete.  Defendant wonders who this “person” is?  Defendant would like to ask this “person” some questions regarding personal knowledge and accuracy of the “records”, so could you please provide a name, service address and telephone number of this “person”, so I may issue a subpoena and ask?  In addition, please provide the “information” allegedly “transmitted”.

It is my sincere intention to resolve this matter amicably without the need for judicial intervention. I am sure it was an over sight on the Plaintiff’s behalf that an incomplete document was provided.  These are simple requests and should be readily available to the Plaintiff as without these additional documents and names and contact/service information, this Affidavit of Sale is ambiguous at best and lacks foundation and documentary evidence.

 

Please provide the requested information within fourteen days of the receipt of this letter.

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Ok, so l'm getting an idea how it works! Judge denied my motion to preclude initial disclosures. In his answer he totally ignored all of my arguments and used one lame argument of the plaintiff's lawyers. It's like he totally ignores my brief. Now we know what we are up against. P×××k!

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Below is a draft of my Meet and Confer letter to the Plaintiff regarding the latest affidavit of sale which is posted on post 164  I would appreciated any input!!!

 

Re: Affidavit of Dustin Smurdon

 

 

Let this letter serve as a meet and confer regarding the Affidavit of Sale by Dustin Smurdon, provided by Plaintiff, Midland Funding LLC.

It should be pointed out that this Affidavit of Sale is an incomplete document.  It refers to a “review of Chase’s records”. Without the “records” the Affidavit is referring to it is an incomplete document. The affiant claims he reviewed “Chase's records”.  Which “records” did he allegedly review?   The affiant also refers to an account being sold “on or about” a particular date. If he, in fact, 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.

This affidavit makes no reference to the accuracy of the records that were ALLEGEDLY reviewed. There is also no reference to the affiant’s personal knowledge of any “records” associated with the alleged sale.  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”.

Please provide the “records” the Affiant is referring to. Also, provide the service address and phone number for Mr. Dustin Smurdon.

In addition the Affidavit refers to “information transmitted by, a person”. Without this information, this affidavit is incomplete.  Defendant wonders who this “person” is?  Defendant would like to ask this “person” some questions regarding personal knowledge and accuracy of the “records”, so could you please provide a name, service address and telephone number of this “person”, so I may issue a subpoena and ask?  In addition, please provide the “information” allegedly “transmitted”.

It is my sincere intention to resolve this matter amicably without the need for judicial intervention. I am sure it was an over sight on the Plaintiff’s behalf that an incomplete document was provided.  These are simple requests and should be readily available to the Plaintiff as without these additional documents and names and contact/service information, this Affidavit of Sale is ambiguous at best and lacks foundation and documentary evidence.

 

Please provide the requested information within fourteen days of the receipt of this letter.

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Good job. Don't know if it is for the post or not but using bold letters would be improper IMO. Not necessary. They'll get the idea.

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UPDATE: So I filed my 2nd Motion for a security bond and just received the Plaintiff's opposition which I will post below. I was told by the Court on my first Motion I could re-file the Motion if I could show a need for the bond. In my 2nd Motion, I mentioned the following:

  1. Application for a Utah Xchange account, which entails a cost of $25.00 for set up and a monthly fee of $30.00
  2. Plaintiff had requested my appearance at a deposition. The IRS allows $0.555/mile, which would have incurred an expense of between $44.40 and $49.95 to me
  3. I have attended a hearing requested by the Plaintiff which was 20 miles round-trip.
  4. I expect to have a lot of exhibits at trial and will incur copy and reproduction fees.
  5. Expenses incurred by me to date or soon to be incurred are $110.50 and $266.05 and this does not include my trips to the Court to File pleading and certificates of service.

Here is their answer in opposition in total:

 

Plaintiff, by and through its council of record, hereby submits this Memorandum in Opposition to Defendant's Motion to Dismiss: (these are their words not mine, although the caption says Memorandum in Opposition to Defendant's (second) Motion for Security Bond)

 

Defendant is not represented by counsel, and, therefore, is not entitled to security fees.

 

The "costs" listed by the Defendant are not recoverable were he to prevail at trial.

 

Additionally, Defendant failed to appear at the deposition that was scheduled. Moreover, Defendant has still not established reasonable necessity of a cost Bond.

 

Accordingly, Plaintiff request that the Court deny the Defendant's motion.

 

So that is it in its entirety. I did not go to the deposition as they had not followed Utah rules and sent then a letter stating so. I did say in my letter I would be willing to set up a mutually agreeable date time and place for a deposition should they like to follow the rules.  This still may happen, but they will have to do it in my county according to the rules..

 

I need to file a Response, but would appreciate any input before I do.  Thanks in Advance!!!!

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Here is a draft of my original Motion for Security Deposit with the case law and rules:

 

Comes, Now Defendant, XXXXX YYYYY, 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.

 

STATEMENT OF FACTS

 

On or around June 1, 2012, Plaintiff filed a Complaint and Summons on the Defendant.

On June 19, 2012, Defendant answered the Complaint and filed a Notice of Appearance.

Plaintiff claims Defendant entered into an Alleged Contract with Chase Bank USA N.A, which alleged Contract was subsequently assigned to Plaintiff

Plaintiff is a California Corporation and thus resides outside the State of Utah.

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.

 

 

MEMORANDUM SUPPORTING THE MOTION

 

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 order 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. 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

 

CONCLUSION

 

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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They are attempting to confuse things by stating you are not entitled to fees and therefore a security bond. The rule is clear that the bond is for costs, not attorney fees. You will need to quote the rule to show that some of those are recoverable. The XChange Fees are a gray area where some courts have granted and others have not. However copy fees are legitimate and there is much of the case yet to go forward and other fees may present themselves. To date plaintiff has shown only that their case may have been (use that to the court) filed without standing and and filed for deposition blatantly in violation of the rules. Based on plaintiff actions to date, defendant has a reasonable belief that plaintiff may possibly non-suit and leave defendant without recourse for his costs. Dump the attorney fee argument you posed with the reciprocity statute. Concede you are not entitled to fees, only costs.

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UPDATE, NEED HELP!!

 

This will be a bit of a long post, but will try to keep things as coherent as possible. Basically the attorneys are going for sanctions, including a default judgment because I did not show for their deposition.  Here are the details:

 

I received notice of a deposition in May for a deposition at the JM law offices on July 17. The caption of the brief was Notice of Deposition. I struggled with this since it was in a different county and I was not subpoenaed for the deposition. In the end I sent them a letter which they signed for the day before the deposition. It reads as follows:

 

July 12th, 2013

 

 

Johnson Mark LLC

P.O. Box 7811

Sandy, UT  84091

 

Re: Midland Funding, LLC Complaint

 

I received your request for a deposition and production of documents for July 17th, 2013. I am sorry to say your request does not comply with Utah Rules and I will not be able to attend that day.

 

If you would like to properly conduct the deposition in accordance with the Rules, you may contact me and arrange a date, time and location that are mutually acceptable. Of course, the location will have to be in Summit County. You have my contact information in my initial disclosures.

 

Regards,

 

In the meantime, I have sent them meet and confer letters regarding the inadequacy of their Bill of Sale and Affidavit from Chase. Time has just past and my intent is to send a second and final meet and confer letter asking for complete documents. I do not expect to hear back on this topic and plan to file a MIL to preclude.

 

So I just received a Motion For Rule 37 Sanctions Against Defendant which seeks the following relief pursuant to Rule 37(g):

  1. That Defendant's answer be stricken and default judgment pursuant to Rule 37(e)(2)(D) and:
  2. That Defendant be ordered to pay Plaintiff's reasonable expenses, including attorney fees and cost (including, but not limited to attorneey fees, preparation costs and costs for the court reporter/notary attendance) pursuant to rule 37(e)(2)(D):

They are saying in their argument I had not communicated about my failure to appear and they have tried to meet and confer. Which is wrong. I need to answer this Motion and have 10 days to get it done. I do have the signed green card from July 16th.

 

What is the best way to proceed?  Thanks in advance!!!

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Here is a copy of the Rule being cited:

 

Rule 37. Discovery and disclosure motions; Sanctions.

(a) Motion for order compelling disclosure or discovery.

(a)(1) A party may move to compel disclosure or discovery and for appropriate sanctions if another party:

(a)(1)(A) fails to disclose, fails to respond to a discovery request, or makes an evasive or incomplete disclosure or response to a request for discovery;

(a)(1)(B) fails to disclose, fails to respond to a discovery request, fails to supplement a disclosure or response or makes a supplemental disclosure or response without an adequate explanation of why the additional or correct information was not previously provided;

(a)(1)© objects to a discovery request ;

(a)(1)(D) impedes, delays, or frustrates the fair examination of a witness; or

(a)(1)(E) otherwise fails to make full and complete disclosure or discovery.

(a)(2) A motion may be made to the court in which the action is pending, or, on matters relating to a deposition or a document subpoena, to the court in the district where the deposition is being taken or where the subpoena was served. A motion for an order to a nonparty witness shall be made to the court in the district where the deposition is being taken or where the subpoena was served.

(a)(3) The moving party must attach a copy of the request for discovery, the disclosure, or the response at issue. The moving party must also attach a certification that the moving party has in good faith conferred or attempted to confer with the other affected parties in an effort to secure the disclosure or discovery without court action and that the discovery being sought is proportional under Rule 26(B)(2).

 

 

© Orders. The court may make orders regarding disclosure or discovery or to protect a party or person from discovery being conducted in bad faith or from annoyance, embarrassment, oppression, or undue burden or expense, or to achieve proportionality under Rule 26(B)(2), including one or more of the following:

©(1) that the discovery not be had;

©(2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place;

©(3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery;

©(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters;

©(5) that discovery be conducted with no one present except persons designated by the court;

©(6) that a deposition after being sealed be opened only by order of the court;

©(7) that a trade secret or other confidential information not be disclosed or be disclosed only in a designated way;

©(8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court;

©(9) that a question about a statement or opinion of fact or the application of law to fact not be answered until after designated discovery has been completed or until a pretrial conference or other later time; or

©(10) that the costs, expenses and attorney fees of discovery be allocated among the parties as justice requires.

©(11) If a protective order terminates a deposition, it shall be resumed only upon the order of the court in which the action is pending.

(d) Expenses and sanctions for motions. If the motion to compel or for a protective order is granted or denied, or if a party provides disclosure or discovery or withdraws a disclosure or discovery request after a motion is filed, the court may order the party, witness or attorney to pay the reasonable expenses and attorney fees incurred on account of the motion if the court finds that the party, witness, or attorney did not act in good faith or asserted a position that was not substantially justified. A motion to compel or for a protective order does not suspend or toll the time to complete standard discovery.

(e) Failure to comply with order.

(e)(1) Sanctions by court in district where deposition is taken. Failure to follow an order of the court in the district in which the deposition is being taken or where the document subpoena was served is contempt of that court.

(e)(2) Sanctions by court in which action is pending. Unless the court finds that the failure was substantially justified, the court in which the action is pending may impose appropriate sanctions for the failure to follow its orders, including the following:

(e)(2)(A) deem the matter or any other designated facts to be established in accordance with the claim or defense of the party obtaining the order;

(e)(2)(B) prohibit the disobedient party from supporting or opposing designated claims or defenses or from introducing designated matters into evidence;

(e)(2)© stay further proceedings until the order is obeyed;

(e)(2)(D) dismiss all or part of the action, strike all or part of the pleadings, or render judgment by default on all or part of the action;

(e)(2)(E) order the party or the attorney to pay the reasonable expenses, including attorney fees, caused by the failure;

(e)(2)(F) treat the failure to obey an order, other than an order to submit to a physical or mental examination, as contempt of court; and

(e)(2)(G) instruct the jury regarding an adverse inference.

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You reply with two things: Objection to their motion and a Motion For Rule 37 Sanctions Against Defendant for failure to comply with the rules, failure to meet and confer. Your exhibits in both will be your meet and confer along with the CMRR to show unarguably that they received it. Point out that plaintiff is attempting to harass and oppress a Pro Se defendant with motions plaintiff knows is based on false premise. Also ask for sanctions in your objection.

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Objection to their motion and a Motion For Rule 37 Sanctions Against Defendant for failure to comply with the rules, failure to meet and confer.

 

 

Sanctions against plaintiff, correct?      ^^

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OK, finished my opposition to Plaintiff's Motion for sanctions and have been staring at the computer and Rule 37 and am trying to wrap my brain around how to proceed with my Motion for Sanctions as per KentWA and Flyerfan,  Not sure if it is Monday or what but I am having trouble seeing what to use in the Rule to support my Motion. Is it another Rule I should be looking at, since 37 seems to deal with a person not attending a deposition?

 

Or am I making this too complicated? It seems like I should be incorporating:

 

(a)(3) The moving party must attach a copy of the request for discovery, the disclosure, or the response at issue. The moving party must also attach a certification that the moving party has in good faith conferred or attempted to confer with the other affected parties in an effort to secure the disclosure or discovery without court action and that the discovery being sought is proportional under Rule 26(B)(2).

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