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Being sued in Utah....Can anyone help with answering??


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Hey everyone,

 

So i got served with a summons/complaint on 3-2.  I am a little lost on how to answer this.  There is not a case # on it but I am guessing that is common.  Maybe I will start by answering the questionnaire below.  Any help would be appreciated.  I just want to get this answered and get done with this.  Thanks everyone.

 

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.)   Johnson Mark LLC

3. How much are you being sued for?  $2xxx.xx

4. Who is the original creditor? (if not the Plaintiff)  It looks like DELL FINANCIAL SERVICES/CIT ONLINE

5. How do you know you are being sued? (You were served, right?)  I was served at my home address

6. How were you served? (Mail, In person, Notice on door)  In person

7. Was the service legal as required by your state?  Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued?  No correspondence

9. What state and county do you live in?  Utah, Utah 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 tried to get the payment information from Dell Financial but they did not have the info anymore.  Though they did say it was defaulted in September of 2009

11. What is the SOL on the debt? To find out:  It looks like it is 4 years

Statute of Limitations on Debts

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).  Summons served

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?)  No

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

 

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 $XXX.XX as of February 1, 2013 at the rate of 10.00% per annum less any payments made.  In addition, Plaintiff is entitled to recover interest from February 1, 2013 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 $475.00 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 $XXX.XX as of February 1, 2013 at the rate of 10.00% per annum less any payments made;

 

B. For additional interest from February 1, 2013 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 $475.00 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.

 

 

Here is an example of what the summons/complaint may look like: Sued by a Debt Collector - Learn How to Fight Debt Lawsuits

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.  There is not any evidence attached

 

I was looking at recent threads and I am now noticing that someone else here in Utah but in Salt lake County has almost the exact same summons.  Crazy

 

Thanks again for any responses

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With no case number that tell me you were served under the 20 Day rule. You can call the clerk at the number provided on the summons 13 days after you are served and get the case number, which you will need to put on your answer. They do not have to file the case until 10 days after you are served. Answering is pretty easy, just deny each and every paragraph except the first one *if* you in fact live in the county sued in.

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http://utahcommerciallaw.com/2012/04/11/utahs-reciprocal-attorneys-fee-statute-whats-good-for-the-goose-is-good-for-the-gander/

 

 

This is interesting, Kent, the poster may be able to get legal fees from Asset. They'll love that. Kinda hard to argue with the state Supreme Court. I'd work that into the answer just so they know they aren't getting a laydown pro se.

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Are you going to go ahead and file the answer?  There are plenty of samples here.  

I am definitely going to answer.  I have the 20 days and right now I am day 4 I believe.  I am just researching as much as possible before I answer.  It looks like I need to get a case number before I file the answer which KentWA has stated.  I will call the court on the 13th day to get that.  I have been reviewing KentWA's posts in other threads to get a clearer understanding on what I should do.  His posts are very beneficially, which is an understatement.  I have seen the many samples throughout on how to answer and I am getting a good feel on how whould I answer.  Thanks for the replies.

 

Bruno,

If I were to do this pro se, what would the legal fees be?

 

KentWA,

 

I am in the same situation as a another Poster on these forums, with a demand for Attorney Fees and no attachment of a contract showing any validation that this is my account.  Should I recognize that in my answer?

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There are no fees for answering in Utah. If you submit a counter-claim there are fees, but can be waived for low or no income. There is also a provision which allows you to force an out of state plaintiff to file a $300 bond (Rule 12(j) ). If they dismiss the action, you get the bond. Having to cough up $300 to even move the case forward may just get them to think hard before going anywhere with the case.

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I have not since I have never been sued, rather I always drug the JDB into court before they even go the chance to sue. According to the case law I recently read (and I just recently realized this rule was there) it is a rather simple motion invoking Rule 12(j). Here are some cases:

 

http://scholar.google.com/scholar_case?case=15066702512515986824&q=rule+12(j)+Security+for+costs&hl=en&as_sdt=4,45

 

http://scholar.google.com/scholar_case?case=13913017757496668967&q=rule+12(j)+Security+for+costs&hl=en&as_sdt=4,45

 

The second one is likely the most important.

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This looks like something to pursue. Having yet to file a motion, I have been doing some research on the process.  It is my understanding one needs to file the Motion, a Memorandum and a Conclusion.  What is confusing me is can it all be done in the same document or does it need to be separated out.  I have seen both.  Any help would be appreciated!!!

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I have done and seen as both and never had issues with the court. I have filed motions that are 2 or 3 pages long with all arguments in the motion. If it gets longer I break it out into a simple motion and a memo to explain the legal reasoning behind the motion.

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I apologize as I am still relatively new to this forum and not sure whether to post this here or in my original thread, but since it is relative to the above posts by Bruno and KentWA  and since I felt it could benefit Utah Defendants, I thought I would post here.  If this is not correct, please let me know.  Any way, below is a rough draft of a motion to Plaintiff, Midland Funding LLC for the Court to order the Plaintiff to furnish Security $300.00 Costs.  It loses a bit in the cut and past. Please Slice and Dice as you see fit.

 

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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all new assualt on utah consumers they are tergeting courts who diss pro pers make sure you tie the courts hands also the 300 bond is cool if everyone makes them do that it will tie up alot of money for plaintiffs think about it if 1000 people do it it is 300,000.00 that is basically frozen and 300.00 is more than they paid for the account.

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The only thing that possibly could add some weight is if you can find some cases where they dismissed after a defense was begun. You would have to go to one of the law libraries to get access to those records and then dig threw a ton of cases to find the 1% where someone fought back. However it might not be worth the effort unless you were already going to be in the law library.

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I apologize as I am still relatively new to this forum and not sure whether to post this here or in my original thread, but since it is relative to the above posts by Bruno and KentWA  and since I felt it could benefit Utah Defendants, I thought I would post here.  If this is not correct, please let me know.  Any way, below is a rough draft of a motion to Plaintiff, Midland Funding LLC for the Court to order the Plaintiff to furnish Security $300.00 Costs.  It loses a bit in the cut and past. Please Slice and Dice as you see fit.

 

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.

Thanks for the responses everyone.  It looks as though there is several actions that can be taken. 

 

One quick question on the above Motion.  Is this Motion filed with the answer?

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Like Bruno said you can file it all at the same time. However I always enjoy hitting them with different things at different times. In one case they got something from me once a day for over a week and called with a full settlement offer by the 6th business day due to the overwhelming work.

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Thanks for the help Bruno and Kent.  I have filed my answer.  I am working on the Motion for Security Costs now and will be filing that either this Friday or Monday.  I guess now I wait for their reply with a Request for Admissions.

 

A question I have though is that once I receive their disclosures and admissions response, is it then I send them a Request for Admissions also?

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