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Going for security deposit Utah


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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.

 

STATEMENT OF FACTS
  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.
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 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

 

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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I believe Utah is based on the federal rules so you can look and see what the fed courts allow. Idon't think they have a motion to preclude but you never know you could be the first.

 

Don't be afraid to blaze a trail if it hasn't been done before maybe because we never looked at it that way.

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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.

 

STATEMENT OF FACTS
  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.
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 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

 

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.

By the way, nice digging into the litigation budget. Everyone in utah needs todo that. However I worry that this will make so implied admissions that you are a party to the contract that you conceed it has some fee provisions and you are a party to it.

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Good point Seadragon!  The way I was interpreting the above statute as any case based on a contract.  MF's complaint was based on an alleged contract, but I am not seeing how this would imply the Defendant being part of the Contract.  Was trying to put Plaintiff on notice there was a possibility of them paying Costs if they lose, while at the same time supporting my request for Rule 12(j).  Am I off on this interpretation?  This is why I posted.  The input is great.

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  • 2 weeks later...

Fletcher- what firm is suing you? I just spoke with an attorney regarding FCRPA violations and he said that he's never lost to Johnson Mark and Bennett Law never settles (midlands counsel in my case).

 

He said he'd  like to take mine on if he finds violations, but that doesn' touch my case now....so don't know what I'll do.

 

Going to file for the deposit tomorrow!

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Johnson Mark for Midland Funding.  I believe they violated when they filed the complaint without anything attached.  They were also 5 months late with their initial disclosures.  When I called them on it, they submitted "Supplemental Initial Disclosures", trying to ignore the fact they never sent the initial disclosures.  After I answered the complaint, it took them over 4 months to serve discovery.

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One has to see the humor in these things! :ROFLMAO2:  When attorneys for Plaintiff finally sent initial disclosures 5 months late, they stated "....these supplemental documents were requested by Plaintiff's counsel prior to the initial disclosure deadline but received by Plaintiff's counsel after due date. Due to the volume of Plaintiff's accounts and documents around the country, it typically takes longer than 14 days to obtain documents oa any one account.  As a result, Plaintiff herewith supplements its initial disclosures in this matter".  It seems they were not ready to file the complaint.............

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If they have filed it with the court you do a Motion to Strike. If it is something they sent you in disclosures of discovery, then it would be a motion to preclude or a motion in limine to preclude.

 

I would file a motion to preclude for all the stuff they sent that they did not disclose properly. It is not your fault their business practices are crap. To bad, so sad, the rules are the rules.

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KentWA - Let me run this by you.  In their disclosures they included CC statements from the OC, Chase, which show last payment on the acct.,  August 2008 and last charges from I believe May 2008.  Both of these are well past the 3 year DE SOL.  I have been thinking about going for MTD based on the DE rule. This is based on Thaiboxgirl and the previous dismissal for a UT Resident.  I checked credit report and it only states "180 days past due as of March 2009"  which means last payment in the Aug/Sept of 2008. Would you still want to preclude the disclosures and use the Credit report as an exhibit for filing MTD?

 

I really want to make as much work as possible for Plaintiff/JM, but do not want to blow it.  The only other items in the disclosures were an Agreement which stipulates DE law and a generic Affidavit of sale from Chase regarding the sale of a pool of accounts, without any names numbers etc.

 

Also, would like to be able to sue them for Filing a complaint after the SOL and perhaps not attaching a contract to the original complaint.

 

Appreciate your input!!

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Your credit report is hearsay evidence and not admissible. However what if the worst happened, they allow the credit report in and then the judge improperly rules that DE does not apply, they will use the credit report against you.

 

If it was me I would submit an affidavit that stated something to the effect "In the time period of XXX to XXX I have made no payments to the OC or JDB". Then to counter that affidavit they are going to have to find some documentation. However if they come up with some documentation suddenly, they obviously had it and failed to disclose it so you object and ask it to be stricken. Under the rules they can not use what they did not disclose.

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No rush on the motion to preclude until you get closer to MSJ time, right now I would just strike at their entire case the easy way. Since you have a possible SOL issue, just go for the MTD. In their reply if they try to reference anything the did not disclose in initial disclosures, object on Rule 26 grounds.

 

There is also the mess with them strategy of hitting them with the motion to preclude a few days after they get your MTD. That will just pile more work on top of them.

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Below is a draft of my memorandon for MTD in Utah, based upon Delaware's SOL.  I utilized Starduster's and Thaiboxgirls posts for great assistance! (thanks)  I stirred up JM with my motion for Security Deposit, (it's been 12 days since they were served and I have yet to receive an opposition to my Motion), They have now sent out subpoenas trying to get record of payments to Chase.  So....I thought I should take an aggressive stance and file the MTD.  I do not have any Utah law in the Motion.  Do you think it will be a problem?  If so, I will work on digging some up.  Thanks in advance!!

 

William A. Mark (9602)

Johnson Mark LLC

Attorneys for Plaintiff

P.O. Box 7811

Sandy, UT 84091

 

 

 

THIRD JUDICIAL DISTRICT COURT, STATE OF UTAH

SUMMIT COUNTY, PARK CITY DEPARTMENT

 

MIDLAND FUNDING LLC,

                                Plaintiff,

 

 

                Vs.

 

 

Gonna Win,

                                Defendant

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       Case No.: xxxxxxxxxxxxxxx 

 

       Judge: Todd Shaughnessy

 

MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS

               

INTRODUCTION

Plaintiff Midland Funding LLC is in the practice of buying “junk debts” and through it's lawsuit claims that it is the assignee of Chase Bank USA, N.A., and as is such, Plaintiff has adopted all legal rights and remedies as outlined in Chase Bank's Cardmember agreement.

STATEMENT OF FACTS

1.        Plaintiff, Midland Funding LLC filed its complaint on or around June 1, 2012.

2.        Defendant filed his answer with the court on June 19th, 2012.

3.        On August 2nd, 2012, Defendant had not received Initial Disclosures as required by U.R.C.P. Rule 26 (a)(2)(A), and sent a certified letter return receipt requested, to Plaintiff’s Attorneys asking since there had been no communication, had the complaint been dropped.

4.        On or around November 8th, 2012, Defendant received a Minute Entry from the court answering Plaintiff’s request for Summary Judgment. Judge Shaughnessy advised the Plaintiff all Discovery Papers mailed by the Plaintiff had been mailed to an address differing from the Defendant’s “Pro Se Notice of Appearance” and on the “Answer, Affirmative Defenses” filed by the Defendant.  Judge Shaughnessy advised the Plaintiff may correct this deficiency and give the Defendant a chance to respond. Absent the filing of a notice to submit, it was ordered no further action would be taken.

5.        On or around November 20th 2012, Defendant received Plaintiff’s First Set of Requests for Production of Documents and Admissions.

6.        On December 14th, 2012 Defendant answered Plaintiff’s Request for Production of Documents and Admissions. In his response, Defendant noted he had yet to receive Initial Disclosures.

7.        On December 19th Defendant filed its First Set of Discovery for the Plaintiff

8.        On or around December 22nd, 2012, Defendant received Plaintiff’s initial Disclosures. Plaintiff noted that due to the volume of Plaintiff’s accounts and documents across the country, it typically does not meet the 14 day deadline as required by U.R.C.P Rule 26(a)(2)(A).

9.        On or around January 3rd, 2013 Defendant received a Minute Entry from the court denying a Plaintiff’s Request for Scheduling Conference.

10.     On or around January 12th, 2013 Defendant received Plaintiff’s response objecting to Defendant’s first set of Discovery as Defendant had requested more than discovery than allowed by U.R.C.P Rules 34 and 36.

11.     On January 18th, 2013 Defendant filed his Amended Request for Admissions and Production of Documents.

12.     On or around February 20th, 2013, Defendant received Plaintiff’s answers to the Amended Requests for Admissions and Production of Documents.  Plaintiff objected to all in general saying Defendant had not provided Initial Disclosures to the Plaintiff.

13.     On March 1st, 2013 Defendant provided Defendant’s Initial Disclosures to Plaintiff.

14.     Now, Defendant makes this Motion to Dismiss Plaintiff's lawsuit over this time- barred debt. Defendant had received no communication from the Plaintiff prior to receiving the Complaint filed by the Plaintiff.  No documents were attached to the Complaint supporting the Plaintiff’s Lawsuit. Plaintiff failed to provide the cardmember agreement and other pertinent evidence through initial and ongoing disclosures, as required by rule 26 of the Utah Rules of Civil Procedure. It was not until Defendant received Plaintiff's Initial Disclosures that the Defendant had the opportunity to study and understand the cardmember agreement.

 DEFINITIONS
(as provided by USLegal.com)

1.        Accrue: The term Accrue has the following meanings:
A. To come into existence as a claim that is legally enforceable.
B. To come as a gain, addition or increment
C. To increase, accumulate or come as a result of growth.

2.        Mutual Account: Mutual account means an account showing debit and credit transactions between parties on both sides of the account. When two parties enter into a mutual dealing, a mutual account is created. Under a mutual account, each party to the account takes the position of a debtor and creditor in relation to the other party. In order to establish a mutual account, the parties must have a cross demand or cross open account and an express or implied mutual agreement stating that the claims are to be set off against each other.

In Gresty v. Briggs, 127 Kan. 151 (Kan. 1928), the court observed that “Mutual accounts arise where each party has rendered services or sold articles of property to the other with the express or implied understanding that their respective claims shall, upon settlement, be offset to the extent of the smaller claim. Nor in such case is it material whether both or only one of the parties keep the accounts. The distinction lies in the nature of the transaction or transactions. The more usual definition of “mutual accounts” is reciprocity of dealing, charges and credits on both sides each party having a cause of action against the other”.

3.        Running Account: Running account is an open, unsettled, revolving credit facility offered by a seller to a buyer. Using a running account, a buyer can continually buy or obtain goods or services up to the limit agreed with the seller. Amounts paid by the buyer can be used for making further purchases. Generally, a running account is made with a firm, store, or business, but the account will be maintained in a bank to which the salary, wages, or pensions are paid on a regular basis. When creating a running account, the buyer agrees to settle the account within the agreed date.

4.        Transaction: According to 15 USCS § 7006 (13), [Title 15. Commerce and Trade; Chapter 96. Electronic Signatures in Global and National Commerce; Electronic Records and Signatures in Commerce], the term transaction means “an action or set of actions relating to the conduct of business, consumer, or commercial affairs between two or more persons, including any of the following types of conduct:
(A) the sale, lease, exchange, licensing, or other disposition of (i) personal property, including goods and intangibles, (ii) services, and (iii) any combination thereof; and the sale, lease, exchange, or other disposition of any interest in real property, or any combination thereof.”
 


MEMORANDUM SUPPORTING THE MOTION


The Agreement’s choice of law provision expressly states that original creditor Chase Bank's intention was to include the Delaware statute of limitations. The Agreement (“Cardmember Agreement”) explicitly states “THE LAW OF DELAWARE, WHERE WE AND YOUR ACCOUNT ARE LOCATED, WILL APPLY NO MATTER WHERE YOU LIVE OR USE THE ACCOUNT” (See Exhibit- A ). The agreement does not explicitly alter, modify or waive the Delaware statute of limitations. The agreement explicitly includes “THE LAW OF DELAWARE” without expressly excluding anything from “THE LAW OF DELAWARE”. The Delaware statue of limitations is a part of the law of Delaware.

The U.S. Supreme Court has stated, "It may be wise policy, as a matter of harmonious interstate relations, for states to accord each other immunity or to respect any established limits on liability. They are free to do so." (Nevada v. Hall, 440 U.S. 410, 420-27 (1979))

THE DELAWARE STATUTE OF LIMITATIONS IS APPLICABLE

1. The agreement establishes that the governing law of Delaware is to be used.

2. The agreement does not alter, modify or waive the Delaware statute of limitations.
3. A credit card account was created based on the agreement and it was maintained under the jurisdiction of Delaware. Chase Bank USA, N.A. exported and used the interest rate statutes of Delaware (Delaware Code Title 5, Chapter 9), in accordance with 12 U.S.C. § 85 (Rate of interest on loans, discounts and purchases), on the account since the creation of the account.

4. Chase Bank USA, N.A. is incorporated in Delaware. Delaware Code Title 5, Chapter 9, § 956. states “A revolving credit plan between a bank and an individual borrower shall be governed by the laws of this State (Delaware)”.

5. Delaware Code Title 10, Chapter 81, § 8106 establishes a 3 year statute of limitations for the plaintiff’s cause of action.

6. The plaintiff’s cause of action would be barred in Delaware.
7. Accordingly, the plaintiff’s cause of action is barred in Utah by Utah’s statute of limitations. Utah Code §78B-2-103. (Action barred in another state barred in Utah.) A cause of action which arises in another jurisdiction, and which is not actionable in the other jurisdiction by reason of the lapse of time, may not be pursued in this state, unless the, cause of action is held by a citizen of this state who has held the cause of action from the time it accrued.

THE STATUTE OF LIMITATIONS HAS EXPIRED

The proper definitions to the following words are very important to better understand the Delaware statute of limitations: Accrue, Mutual Account, Running Account, and Transaction.

The statute of limitations is 3 years from the accruing of the cause of action. (Delaware Code Title 10, Chapter 81, § 8106). According to the Chase Credit Statements, provided by the Plaintiff, the last payment on the credit account was August 19th, 2008 (see Exhibit B - Chase Credit Statement). According to Chase Credit Statements, provided by the Plaintiff, the last charge on the account was January 24th, 2008. (see exhibits C – Chase Credit Statement). The Delaware statute of limitations starts to run from the date of the last purchase.

The last purchase was a transaction creating a debt owed to the credit card account.  Regardless of any due date, that amount was owed when the transaction was made. The agreement (“Cardmember Agreement”) states “You must pay any amount over your credit line, and you must pay us immediately if we ask you to. This agreement applies to any balance on your account, including any balance over your credit line”.

Accordingly, the cause of action does not start to accrue from the time of default, as any amount owed is owed at the time of each transaction. The last payment shown on the credit account was August 24th, 2008. This debt is time-barred as matter of law.

A payment in and of itself is not a transaction and no cause of action would accrue from a payment to this account. “Delaware has not adopted the proposition that a payment postpones commencement of or tolls the running of the statute of limitations.” Snavely v. AUTO. INS. CO. OF HARTFORD, CONN., 438 A. 2d 1229 - Del: Superior Court 1981.

If a payment were considered a transaction that a cause of action could accrue from, then the last payment was made August 24th, 2008 and the Plaintiff’s cause of action would be barred as of August 24th, 2008. An exception to this is in Delaware Code Title 10, Chapter 81, § 8108. In the case of a mutual and running account between parties, the limitation, specified in § 8106 of this title, shall not begin to run while such account continues open and current.

If this account were a mutual account and a running account, the cause of action would still accrue from the last transaction, but the statute of limitation would not begin to run until the account was no longer open and current. However, the Plaintiff is still barred from this cause of action because after the last transaction in a mutual running account, the account is no longer a running account and the statute of limitations begins from the date of that last transaction.

“It is equally clear both from the terms of the Delaware Statute and from a uniform current of authority that, where there is a mutual open account, there is an implied agreement of the parties that each item shall not constitute an independent debt, due at its date, but that the Statute shall not begin to run until the date of the last transaction.” Brown v. CONSOLIDATED FISHERIES COMPANY, 165 F. Supp. 421 — Dist. Court, D. Delaware 1955

The exception provided by Delaware Code Title 10, Chapter 81, § 8108 is not applicable. This account is not a mutual account. “Delaware Courts have held on a number of occasions that the quoted provision of 10 Del.C. § 8108 does not apply where all the charges were on one side.” Snavely v. AUTO. INS. CO. OF HARTFORD, CONN., 438 A. 2d 1229 — Del: Superior Court 1981. “It seems entirely clear that where the account is all on one side, the cause of action arises from each item as far as the Statute of Limitations is concerned and they are severally barred when, as to them, the Statute has run.” Brown v. CONSOLIDATED FISHERIES COMPANY, 165 F. Supp. 421 — Dist. Court, D. Delaware 1955

The Statute of Limitation was not tolled by Delaware Code Title 10, Chapter 81, § 8117.

A careful reading of the statute shows that the statute of limitation is only tolled until a person can be served with process. The statute also requires that a person first depart from Delaware.

The Delaware Supreme Court addressing "Section 8117" held that the statute of limitation was not tolled since the defendants were non-residents and in dicta stated that to hold otherwise would "result in the abolition of the defense of statutes of limitation in actions involving non-residents." Hurwitch v. Adams, 155 A.2d 591, 594 (Del.1959).

“In any event, whatever the precise argument made may be, we think that the Delaware statute of limitations on actions for personal injuries runs continuously without interruption when there is available to the plaintiff throughout the period an acceptable means of bringing the defendant into court. Therefore, the answer to the first question posed is that there has been no tolling of the statute of limitations since these defendants, at all times, were subject to substituted service” Hurwitch v. Adams, 155 A.2d 591, 594 (Del.1959).

For purposes of this litigation, Defendant has always been and continues to be a Utah resident. The Plaintiff did not file suit and attempt service until beyond the statute of limitations. Since the Defendant, for purposes of this action, has never been a resident of Delaware, Section 8117 does not apply and it does not operate to toll the three years statute of limitations.


                                                                  CONCLUSION
 

The Plaintiff’s cause of action is time-barred. The parties to the contract agreed to a choice of law at the inception of the contract. Therefore the court should not presume that they made that choice without knowledge or an interest in doing so.

The relevant portion of the “Cardmember Agreement” between the parties states the following choice of law provision:

”THE TERM AND ENFORCEMENT OF THIS AGREEMENT AND YOUR ACCOUNT SHALL BE GOVERNED AND INTERPRETED IN ACCORDANCE WITH FEDERAL LAW AND TO THE EXTENT STATE LAW APPLIES, THE LAW OF DELAWARE WITHOUT REGARD TO CONFLICT-OF-LAW PRINCIPLES. THE LAW OF DELAWARE, WHERE WE AND YOUR ACCOUNT ARE LOCATED WILL APPLY NO MATTER WHERE YOU LIVE OR USE THE ACCOUNT”.

The agreement here states clearly that regardless of any conflict of laws principle that may apply to this agreement, the laws of Delaware apply. The next sentence in the agreement, “the Law of Delaware, where we and your account are located apply, no matter where you live or use the account”.


PERTINENT UTAH CODES

Utah Code §70A-5-116. Choice of law and forum.

The liability of an issuer, nominated person, or adviser for action or omission is governed by the law of the jurisdiction chosen by an agreement in the form of a record signed or otherwise authenticated by the affected parties in the manner provided in Section 70A-5-104 or by a provision in the person’s letter of credit, confirmation, or other undertaking. The jurisdiction whose law is chosen need not bear any relation to the transaction.

Utah Code §78B-2-103. Action barred in another state barred in Utah.
A cause of action which arises in another jurisdiction, and which is not actionable in the other jurisdiction by reason of the lapse of time, may not be pursued in this state, unless the, cause of action is held by a citizen of this state who has held the cause of action from the time it accrued.

PERTINENT DELAWARE CODES

Delaware Code Title 5, Chapter 9, § 956. Governing law:

A revolving credit plan between a bank and an individual borrower shall be governed by the laws of this State.

Delaware Code Title 10, Chapter 81, § 8106 Actions subject to 3-year limitation:

No action to recover damages for trespass, no action to regain possession of personal chattels, no action to recover damages for the detention of personal chattels, no action to recover a debt not evidenced by a record or by an instrument under seal, no action based on a detailed statement of the mutual demands in the nature of debit and credit between parties arising out of contractual or fiduciary relations, no action based on a promise, no action based on a statute, and no action to recover damages caused by an injury unaccompanied with force or resulting indirectly from the act of the defendant shall be brought after the expiration of 3 years from the accruing of the cause of such action; subject, however, to the provisions of §§ 8108-8110, 8119 and 8127 of this title.

Delaware Code Title 10, Chapter 81, § 8108 Mutual running accounts.
In the case of a mutual and running account between parties, the limitation, specified in § 8106 of this title, shall not begin to run while such account continues open and current.

Delaware Code Title 10, Chapter 81, § 8117. Defendant’s absence from State.
If at the time when a cause of action accrues against any person, such person is out of the State, the action may be commenced, within the time limited therefore in this chapter, after such person comes into the State in such manner that by reasonable diligence, such person may be served with process. If, after a cause of action shall have accrued against any person, such person departs from and resides or remains out of the State, the time of such person’s absence until such person shall have returned into the State in the manner provided in this section, shall not be taken as any part of the time limited for the commencement of the action.

CITED CASES
Gresty v. Briggs, 127 Kan. 151 (Kan. 1928)
Nevada v. Hall, 440 U.S. 410, 420-27 (1979)
Snavely v. AUTO. INS. CO. OF HARTFORD, CONN., 438 A. 2d 1229 - Del: Superior Court 1981.
Brown v. CONSOLIDATED FISHERIES COMPANY, 165 F. Supp. 421 — Dist. Court, D. Del 1955
Hurwitch v. Adams, 155 A.2d 591, 594 (Del.1959).

 

Defendant respectfully requests that the Court enter its Order granting Dismissal of the above referenced action. Defendant also respectfully asks this court to award fees incurred in defense of this action, and any other relief this Court deems just.

 

 

Respectfully Submitted,

 

Dated this xxth day of March, 2013

 

 

 

 

   
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Bob-

 

Here is what I found from StardusterToo's thread. It is the actual opinion! The problem is I can't get a hold of StardusterToo and I don't know the case number, name, etc. We can cite unpublished cases, but I have no way to find it. Maybe we can both help each other out. Are you really in Park City also?????? I was just at courthouse!

 


 

 

The Courts ruling.

Before the court is Defendant’s Motion to Dismiss. The parties have filed various pleadings on this matter and oral argument was presented to the Court on __DATE__. After hearing oral argument from the parties, the Court took the matter under advisement to review a document (joint statement) provided by the parties on the date of the hearing.

The Court now having carefully reviewed all relevant pleadings, the applicable law and taking into consideration oral argument orders that Defendant’s Motion to Dismiss be and hereby is granted.

The Court agrees with the arguments made by Defendant in her Motion and Memoranda. The facts relevant to this motion are undisputed and outlined by the parties in their Joint Statement of Facts and Issues. A key issue is whether Delaware’s statute of limitations applies in this case. The relevant portion of the “Cardmember Agreement” between the parties states the following choice of law provision:

THE TERM AND ENFORCEMENT OF THIS AGREEMENT AND YOUR ACCOUNT SHALL BE GOVERNED AND INTERPRETED IN ACCORDANCE WITH FEDERAL LAW AND TO THE EXTENT STATE LAW APPLIES, THE LAW OF DELAWARE WITHOUT REGARD TO CONFLICT-OF-LAW PRINCIPLES. THE LAW OF DELAWARE, WHERE WE AND YOUR ACCOUNT ARE LOCATED WILL APPLY NO MATTER WHERE YOU LIVE OR USE THE ACCOUNT.

The Court is cognizant of the case law that provides that the lexi fori rule applies regardless of the contract’s choice of law provision unless the contract expressly provides for a particular application of a state’s statute of limitations. The Court finds that the terms of agreement in this case which state “to the extent that State law applies, the law of Delaware without regard to conflict of law principles” expressly provide that regardless of the conflict of law principles, including the lexi fori rule, the laws of Delaware apply. The lexi fori rule is one of the established conflict of law principles in cases such as this case. The agreement here states clearly that regardless of any conflict of laws principle that may apply to this agreement, the laws of Delaware apply. The next sentence in the agreement, “the law of Delaware, where we ad your account are located apply no matter where you live or use the account”, support this as well. The agreement included the application of Delaware law on all issues regardless of established conflict of law principles such as the lexi fori rule. Therefore, Delaware’s three year statute of limitations applies in this case.

Having determined that Delaware’s three year statute of limitations applies, the Court agrees with Defendant that the three year statute of limitations had expired when this action was filed and that there was no tolling period which would apply.

Defendant’s Motion to Dismiss is granted.

Defendant is designated to prepare an appropriate Order consistent with this ruling and the grounds stated by Defendant which the Court adopts. 

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Update on motion for Security Deposit.  Filed Motion on March 13th and have not heard back from Plaintiff.  It has been 14 days, so will file my Request for Decision.  Will post the decision when I get it.  How long does it typically take for the Judge to review the file and grant a decision?

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HELP NEEDED, PLEASE!  Asking for Security Costs in Utah seems to be relatively uncharted territory and I feel we need to fight this as best we can to set a precedent for future cases against the JDB's.

 

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!!

Any help would be greatly appreciated!!

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