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Need Help Fast!!! Asset Acceptance Request to Submit for Decision for Discovery issues

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Hi All,

 

I've been away for a bit but need to get some help with something. The most recent activity on my case was that I went to a pre-trial conference. The JDB lawyer basically wanted me to release my bank statements and I refused. We are still in the discovery window and I have been busy with other things, but have been religious about checking the mail. Nothing has come until today. Today I received a Request to Submit for Decision for Discovery issues. In it they state that they served me a statement on June 19 2013. I never got this statement. 

 

What do I need to do to fix this?

 

Here's the questions

 

 

 1. Who is the named plaintiff in the suit? Asset Acceptance


2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Johnson Mark

3. How much are you being sued for? ~$1600.00

4. Who is the original creditor? (if not the Plaintiff) Dell Financial

5. How do you know you are being sued? (You were served, right?) Served in Person

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

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

8. What was your correspondence (if any) with the people suing you before you think you were being sued? None

9. What state and county do you live in? Utah, Salt Lake

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) Possibly April 2010

11. What is the SOL on the debt? To find out: 4 Years


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). In Discovery

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

16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits. Nothing, Under Discovery they have provided a generic acount statement an a generic printout of a card holder agreement

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Sorry If I didn't make it clear. The document is titled Request to Submit for Decision. In it it indicates that they sent me something to do with discovery and that I did not respond in the time allowed by rules.. There is also an unsigned order that they have prepared attached to it where they basically want the judge to order me to release my bank records.

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Oh okay, it's a meet and confer letter. Usually they have to send that before they can file a motion to compel.

What kind of questions have they asked you? If you list them, being vague of course, we can probably give you ways to answer. I have even seen a great response to the question asking about your bank account. Get them up, let's knock them down!

;)

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No it's not a Meet and Confer. We have already had a pre-trial conference. At the pre-trial conference they asked me if I would be willing to provide the statements. I told them no. Without seeing the document they reference in the Request to Submit for Decision, I'm guessing that document was a similar to a Motion to Compel. Since I didn't respond to that document (because I never received it) They submitted the Request for Decision asking the court to rule in their favor and order me to produce the statements.

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Okay, so then according to them, you not only didn't answer the M&C, you didn't respond to the maybe or maybe not 'motion to compel'?

Is that right? If they are now giving you a 'request to submit for decision', that would have to mean a MTC was filed. They can't just pretend to give you a copy, not actually file it, and then send you something saying they did. Is there evidence of a filed MTC? Is there proof that they also filed this new request and calendared a hearing for it???

Either way, have you sent an opposition to this new document?

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There was never any Meet and Confer letter. That is not in play here. Here is what the Request to Submit for Decision says.

 

The Plaintiff by and through its Counsel hereby requests that its Statement of Discovery Issues be submitted to the Court for Decision.  Said statement is ready for decision as :

 

1. The Statement was served on June 19, 2013.

2. A memorandum in Opposition was not filed or received from Defendant and the time to do so has now passed.

3. A hearing has not been requested.

 

Wherefore Plaintiff prays that the matter regarding the statement of Discovery Issues will be decided. 

 

Then they have attached what looks like a prepared order for the judge to sign. The problem is that I never received the Statement of Discovery Issues that they claim to have served on June 19th. So I need to know how to handle this. Do I submit an objection to their request based on the fact that I never received the Statement of Discovery Issues? How do I stop this from getting to the judge and having the judge issue a ruling against me.

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Okay, let's see...they never sent you anything, but asked for it in the pre-trial hearing right? They are saying you haven't followed the rules so I'm curious to know their level of compliance.

So, did they comply with Rule 26 a(1) and a(2), which is disclosure, by sending it to you within 14 days of filing the complaint? They cannot request discovery without satisfying the disclosure requirements per Rule 26 c(2).

Rule 26(B) is about scope of discovery, and specifically states that it must be relevant. I don't see how bank records are, and b(3) states the burden is on them to prove that the requested information is relevant to the case. Have they given you a reason to why they are requesting it?

Rule 26 f states they are required to file a certificate of service for the discovery requests. Was this done?

I'll keep looking for things but it would be helpful to know the answers to these questions because they are basically claiming you've not followed the rules of the court and that you've not opposed their demands. So, if they have failed to file a certificate of service for the requests they claim to have sent to you, you've got an excellent argument for why it went unopposed.

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These threads may help clear things up about the history. 

 

Need Assistance Asset Acceptance / Johnson Mark (Initial Post)

 

Interesting Initial Disclosures From AA (Details What I received in the way of Initial Disclosures)

 

Need Help With Defendant's Admissions and Requests for Production (Haven't actually filed these yet as we are still within the Discovery window)

 

I'm not sure about the Certificate's of Service. They have included one in everything they have sent me thus far, so I have no reason to doubt that they filed them seeing as they are required to file electronically with the court. However I will give the court a call tomorrow and ask them about the specific Statement of Discovery Issues.

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Anyone? My instinct tells me to call the Attorney and at least notify them that I did not receive Their original Statement of Discovery Issues.

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If it were my case, I'd immediately draft an opposition to what they filed and serve it on them. In that, I would state I did not receive their propounded discovery. I would also add that the bank records are irrelevant to the case at hand and only become relevant in the event the plaintiff wins. Also, did you verify that they filed a certificate of mailing of the discovery requests?

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I tried to contact the court on Tuesday but couldn't get anyone in the Clerk's office to answer. Yesterday was a state holiday so I am going to try again today. I've got the opposition written up and ready to go, I will just need to mail it out today.

 

Here is what I have for the opposition. Please let me know if there are any edits I should make.

 

Now comes the Defendant Pro Se in its Opposition to Plaintiff’s Request to Submit for Decision. Defendant states as follows.

 

Plaintiff’s Request for Decision is for its Statement of Discovery Issues. In their request, Plaintiff states that a copy of this was served upon the Defendant on June 19th 2013

 

Defendant states that as of the date of this objection the Defendant has not received the Plaintiff’s Statement of Discovery Issues.  Defendant further asserts that because the Defendant has not received the Plaintiff’s Statement of Discovery Issues, deciding on this issue at this time is premature and highly prejudicial.

WHEREFORE the Defendant prays that the Plaintiff’s REQUEST TO SUBMIT FOR DECISION be denied.

 

Defendant further requests that the Plaintiff provide the Defendant with a copy of the Plaintiff’s Statement of Discovery Issues and that the Defendant be allowed time to respond as appropriate.

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Ok just got off of the phone with the court. It looks like they did file a Certificate of Service. However it appears to have had an incorrect zip code on it. I'll get my opposition filed.

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These guys (Johnson Mark)are notorious for saying they they send things when they do not. Have seen it my case a couple of times. I went through the same thing with them regarding bank statements. They want them to see if you made payments to the OC. We went before the judge for Discovery Issues and I told the judge I had tried really hard but was not in possession of what they were looking for. He told JM they had ways of finding the info through subpoena, so they sent subpoenas to a couple of banks. It's a smoke screen and a tool for MSJ. Remember they have to prove standing, so keep pounding away on that issue. They are also trying to through you off base. Keep focused!

 

The problem when I questioned their honesty before the judge, he just ignored it and acted like they were as pure as the wind driven snow. This is what we are up against in Utah, so we really need to work harder. File your opposition as per Hot Wheels and file a Motion for security deposit ASAP.

 

What have they provided to prove standing?

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Thanks Bob. They have provided absolutely nothing to prove standing, The ONLY things that they have provided are a generic cardholder agreement and what looks like an inhouse created document with my name SS# OC Name and balance. I have followed your thread about security deposit but never saw how it turned out. Did you end up getting it?

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Ahhh Ok. Here's a fun thing, I may be able use the fact that they are pressing the statement issue against them in trying to get the deposit. My bank charges 5$ for each statement and 3$ for each check. Add that up to the 5 years worth of statements they are asking for and that's the bond limit That doesn't even count the postage I've already spent. I'm not going to concede the statements but I sure will use them as an argument for the bond. 

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I would include an affidavit with your opposition stating that you have received no discovery documents on 19 June or after that date. I would also include that Plaintiff has not conducted a meet and confer which may have resolved these issues.

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Thanks KentWA we actually had a pre-trial conference where they asked me about the statements. Since I refused then, would a meet and confer be necessary? I've already submitted my opposition. Should I submit the affadavit  as an addendum to it?

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Without knowing what they filed you are at a big disadvantage. I would now file for a protective order requiring Plaintiff to properly serve you, using the instance of this very motion as the reason you need said protective order. Also file for a cost bond. Get offensive with them and start to make them work extra hard and wish they had never filed this case.

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OK...Interesting thing about the cost bond. I was reviewing the copy of the cardholder agreement they sent in their initial disclosures. There is Arbitration all over the thing....but I can't see anything in there at all about Attorney's Fees or collection costs. The only talk of costs is in relation to Arbitration. And even at that it states that each party will bear their own expenses regardless of the party that prevails unless the arbitrator applying applicable law determines otherwise.

 

With that being the case, 2 things. First, can I really file for the deposit where the only provision in the contract applies to arbitration. And second, wouldn't this be grounds to get their fees and costs excluded along with any collection fees and costs that have been added?

 

I like the idea of a protective order. What would proper service be? It looks like they mailed it so would I just request they require a signature upon delivery?

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It is my opinion that the cost bond does not have anything to do with your agreement. It is in the Utah rules and it is for protection (for the Defendant) when a foreign (business whose home state is out side of Utah) entity files a complaint against a Utah resident. I think it is to provide some protection for the Defendant if the Defendant prevails and wants to recover costs.  Not a lot of costs are allowed, but it would be a pain in the tush to try to track down an AA or MF down. We need to keep trying for this so we can come up with a plan so that every Utah Defendant in a JDB lawsuit can require the JDB to post bond.  This would hopefully help deter the JDB'rs.

 

This is my humble opinion and I admit I am very new to this.

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Bob is right, this has nothing to do with the contract. This has everything to do with the rules and their filing as a foreign corporation plaintiff.

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Ok thank to both of you for clearing that up. I was lead down that path because I was reading Bobs write up to the court in his thread and saw this line.

 

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.”

 

 

I figure the worst that can happen is that they argue that the provisions of the contract do not allow for fees, which would just be crazy for them to do.

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