SQLguy

I Think I Just Won My Case. Need Help With Next Steps

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Hi All,

 

I've been a bit quiet about my case lately. Frankly I was overly stressed and just needed to keep things to myself for a bit. However an interesting development has come up. I served my Request for Admissions on 9/4. Under Utah rule they had 28 days to respond. If they did not respond then the admissions would be deemed admitted. The 28 days was up on 10/2. As of today I still have not received their response.

 

I need to know what my next step is to get this dismissed. I've listed my admissions below. Any help is appreciated.

 

 

1. Admit that you are not the legal owner of the alleged account.

 

2. Admit that you have no admissible evidence that the Defendant owes the alleged debt.

 

3. Admit that Plaintiff's disclosed document named Account Detail is self-serving and was created for litigation purposes.

 

4. Admit that you have no proof that the disclosed document titled Citibank Cardmember Agreement for the Dell Account was the agreement in force on the alleged account at the time of the alleged default.

 

 5. Admit that Plaintiff's witness Elizabeth Gamache has no personal, firsthand knowledge of record keeping procedures, billing practices, Defendant's alleged use of the alleged account, and any alleged agreement between Defendant and DELL FINANCIAL SERVICES/CIT ONLINE BANK.

 

 

 

 

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There's usually a procedure to get admissions deemed admitted. Even if the rule seems to indicate that it's automatic, it's rarely automatic. You probably need to file a motion to get them deemed admitted. Then you can file a MSJ to close out the case based on the admitted admissions. 

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And do it quick! You need to submit a motion to deem admissions admitted and supply your proof of delivery with it. Make this your top priority. If this motion is granted you have absolutely won your case.

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Ok so I just read the rules regarding admissions and I think I may have messed up a bit. The rule states

 

The request shall notify the responding party that the matters will be deemed admitted unless the party responds within 28 days after service of the request.

 

I didn't include this in my admissions. Where should I go from here?

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Ok so I just read the rules regarding admissions and I think I may have messed up a bit. The rule states

 

The request shall notify the responding party that the matters will be deemed admitted unless the party responds within 28 days after service of the request.

 

I didn't include this in my admissions. Where should I go from here?

 

Send them again with the required statement. I'm fairly certainly not including the required statement invalidates the admissions you previously sent.

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Crap. That's what I was afraid of. I was in such a hurry to get those out that I totally missed that requirement. I guess they get their second chance. ::thunderously::  I may go ahead and file the request anyways. Maybe I'll get lucky.

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I'm hoping one of the Utah experts will chime in but I'm pretty sure that motioning to have them admitted as is will get denied based on that statement not being on the document.

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Your fine they did not object now file for motion for summary judgment

“The rule does not say the court may admit the matter—it says ‘[t]he matter is admitted.’

 By simple operation of Rule 36(a), parties who ignore requests for admissions do so at their peril.”

 

 

http://webcache.googleusercontent.com/search?q=cache:Bpt4zkgLtlAJ:caselaw.findlaw.com/ut-court-of-appeals/1628021.html+&cd=3&hl=en&ct=clnk&gl=us

 

 

¶ 5 Rule 36( b )(1) states, “The [truth of any discoverable] matter is admitted unless, within 28 days after service of the requests, the responding party serves upon the requesting party a written response.” Utah R. Civ. P. 36( b )(1). Utah courts have repeatedly held that facts contained within requests for admissions are deemed admitted when they are not answered within the time prescribed in rule 36(a). See, e.g., Langeland v. Monarch Motors, Inc., 952 P.2d 1058, 1061 (Utah 1998); Jensen v. Pioneer Dodge Ctr., 702 P.2d 98, 100 (Utah 1985); Kotter v. Kotter, 2009 UT App 60, ¶¶ 16–17, 206 P.3d 633; Barnes v. Clarkson, 2008 UT App 44, ¶ 11, 178 P.3d 930; In re E.R., 2000 UT App 143, ¶ 13, 2 P.3d 948. “The rule does not say the court may admit the matter—it says ‘[t]he matter is admitted.’ By simple operation of Rule 36(a), parties who ignore requests for admissions do so at their peril.” In re E.R., 2000 UT App 143, ¶ 11, (alteration in original) (quoting Utah R. Civ. P. 36(a)(2) (current version id . R. 36( b  )(1))).¶ 6 Discover Bank does not deny that it was over two months late in responding to Kendall's requests for admissions. Discover Bank also never requested an extension of time to serve its responses, and it never objected to the form of Kendall's requests as was permitted under the rule. See Utah R. Civ. P. 36( b )(2)-(3). Consequently, on January 4, 2012, twenty-eight days after Kendall served his requests, the matters in Kendall's “admissions [were] automatically established as true.” See Kotter, 2009 UT App 60, ¶ 16. - See more at: http://webcache.googleusercontent.com/search?q=cache:Bpt4zkgLtlAJ:caselaw.findlaw.com/ut-court-of-appeals/1628021.html+&cd=3&hl=en&ct=clnk&gl=us#sthash.iuWV55Xh.dpuf

 

http://webcache.googleusercontent.com/search?q=cache:x_H_qdh5o-MJ:law.justia.com/cases/utah/court-of-appeals-unpublished/2004/butterfield091004.html+&cd=7&hl=en&ct=clnk&gl=us

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Holy crap racecar...that is GOLD. Thank you so much. I would assume I just include that information in my motion in the MEMORANDUM SUPPORTING THE MOTION section. Correct?

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Racecar is 100% correct. Right now their goose is cooked, it has been more than the 5 days they get for service by mail. However you do not want to jump too fast as they can try to claim minor error and get the judge to go along with them. Do not call this to their attention. Read this case as it is very good, a Pro Se almost cooked his own goose by failing to follow procedure but managed to pull it out in the end.

http://www.leagle.com/decision/In%20UTCO%2020130411D57

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Thanks. How much longer should I give them. They actually only get 3 extra days so as of right now they are a week late. They also have a motion out to try and get my bank statements, however I have not seen a decision come through on that yet.

 

I also have a Request for Security Deposit that they did file a response to, but I haven't submitted a Request for Decision on it yet.

 

Oh and they also sent me " Supplemental Initial Disclosures"  These were a different Cardmember Agreement than the first one they sent and a bunch of screen prints of charges, payments and such.

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They also have a motion out to try and get my bank statements, however I have not seen a decision come through on that yet.

 

Sweet. There so busy trying to throw punches they let their guard down.

 

I see a big right hook coming!    xboxingx

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How nice. All your case law for you MSJ is neatly written in Kendall's appeal. :). Go get them, and don't forget to file for the motion for decision so they don't have time to withdraw. I don't know how long you should wait, I would write my killer motion, and when perfected, see how much time has passed. Couple weeks?

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HI all,

 

I wrote the Motion To Dismiss up and need some feedback. Thanks.

 

Comes, Now Defendant,SQL Guy, Pro Se, pursuant to Rule 7(B)(1) of the U.R.C.P. hereby moves the court to dismiss this complaint

 

STATEMENT OF FACTS

  1. On or around March 21, 2013, Plaintiff filed a Complaint and Summons on the Defendant.
  2. On April 6, 2013, Defendant answered the Complaint
  3. On September 4th,2013 Defendant served Plaintiff with a Request for Admissions via US Mail.
  4. Plaintiff has failed to respond to Defendant’s Request for Admissions.

 

 

MEMORANDUM SUPPORTING THE MOTION

 

Defendant served the Plaintiff the attached Request for Admissions via US Mail on September 4th 2013 as evidenced by the attached Certified Mail Receipt.

 

Plaintiff’s counsel received the request on September 5th as evidenced by the attached US Mail Return Receipt.

 

Rule 36 of the Utah Rules of Civil Procedure indicates that a matter is deemed admitted unless the responding party responds within 28 days of the service of the request.

 

The Plaintiff failed to respond within the appropriate time as indicated in Rule 36

 

The Utah Court of Appeals recently weighed in on similar circumstances  in Discover Bank v. Kendall. In their decision The appeals court states in part:

 

5 Rule 36(B)(1) states, "The [truth of any discoverable] matter is admitted unless, within 28 days after service of the requests, the responding party serves upon the requesting party a written response." Utah R. Civ. P. 36(B)(1). Utah courts have repeatedly held that facts contained within requests for admissions are deemed admitted when they are not answered within the time prescribed in rule 36(a). See, e.g., Langeland v. Monarch Motors, Inc., 952 P.2d 1058, 1061 (Utah 1998); Jensen v. Pioneer Dodge Ctr., 702 P.2d 98, 100 (Utah 1985); Kotter v. Kotter, 2009 UT App 60, ¶¶ 16-17, 206 P.3d 633; Barnes v. Clarkson, 2008 UT App 44, ¶ 11, 178 P.3d 930; In re E.R., 2000 UT App 143, ¶ 13, 2 P.3d 948. "The rule does not say the court may admit the matter—it says `[t]he matter is admitted.' By simple operation of Rule 36(a), parties who ignore requests for admissions do so at their peril." In re E.R., 2000 UT App 143, ¶ 11, (alteration in original) (quoting Utah R. Civ. P. 36(a)(2) (current version id. R. 36(B)(1))).

 

¶6 Discover Bank does not deny that it was over two months late in responding to Kendall's requests for admissions. Discover Bank also never requested an extension of time to serve its responses, and it never objected to the form of Kendall's requests as was permitted under the rule. See Utah R. Civ. P. 36(B)(2)-(3). Consequently, on January 4, 2012, twenty-eight days after Kendall served his requests, the matters in Kendall's "admissions [were] automatically established as true." See Kotter, 2009 UT App 60, ¶ 16.

 

¶14 Thus, we determine that none of Discover Bank's actions in the proceedings below constituted a request for the withdrawal or amendment of the admissions. "Requests for admission must be taken seriously, and answers or objections must be served promptly. The penalty for delay or abuse is intentionally harsh, and parties who fail to comply with the procedural requirements of rule 36 should not lightly escape the consequences of the rule." Langeland v. Monarch Motors, Inc., 952 P.2d 1058, 1061 (Utah 1998). Because the matters in Kendall's admissions were conclusively established as true, the district court erred in granting summary judgment in favor of Discover Bank.

 

As the Plaintiff has not responded, objected to, or requested an extension of time to serve its responses, the following statements Pursuant to Rule 36(B)(1) are deemed admitted:

 

 

1. Admit that you are not the legal owner of the alleged account.

 

2. Admit that you have no admissible evidence that the Defendant owes the alleged debt.

 

3. Admit that Plaintiff's disclosed document named Account Detail is self-serving and was created for litigation purposes.

 

4. Admit that you have no proof that the disclosed document titled Citibank Cardmember Agreement for the Dell Account was the agreement in force on the alleged account at the time of the alleged default.

 

5. Admit that Plaintiff's witness Elizabeth Gamache has no personal, firsthand knowledge of record keeping procedures, billing practices, Defendant's alleged use of the alleged account, and any alleged agreement between Defendant and DELL FINANCIAL SERVICES/CIT ONLINE BANK.

 

 

As the Plaintiff, through their lack of response, has admitted that they are not the legal owner of the alleged account, the Plaintiff lacks standing to pursue this complaint further. Defendant respectfully requests that this case be dismissed.

 

 

 

CONCLUSION

 

Plaintiff has not responded, objected to, or requested an extension of time to serve its responses to the Defendant’s Request for Admissions.  Pursuant to Rule 36(B)(1), Plaintiff has admitted that they are not the legal owner of the account and thus lacks standing to pursue this complaint further. Defendant requests that this case be dismissed.

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Make sure you request the case be dismissed WITH prejudice.   :)%

 

Thanks. I had that in there originally but took it out because I was concerned that they would deny with prejudice but would grant without. (I'm probably way over-thinking that) I'll make sure I put it back in.

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I hear ya, but if they have admitted they are not the legal party (which they did like it or not), then they should not have the opportunity to try again.

 

The judge can change it to without if he so chooses but if he allows the admissions deemed admitted, he will give you WITH prejudice. The only question is if he will give them the chance to correct it and respond to your admissions.

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Ok I need some advice. I got a bit busy and haven't filed my Motion to Dismiss yet. It's going in the mail tomorrow. Everything has been quiet until today. Today I received what is essentially a Meet and Confer letter regarding their request for statements. Apparently the judge signed the order (I never received a signed copy until today) It states that they are giving me an additional 14 days to provide the statements before they file for summary judgement. The thing is I do not have physical possession of any statements. How should I handle this? The motion process will take a bit longer than the 14 days so I don't want to make the judge mad.

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I would think proceeding with your motion would actually stop theirs dead in its tracks...regardless of whether it was granted or not. How can they continue to request statements you don't have when their admissions prove they have no case?

I'm anxiously waiting for a Utah member to help you. The plaintiff didn't just quit pursuing the case because they filed the motion, so what's their excuse for not following the discovery rules? I'd like to hear them answer why they failed to do so in front of the judge.

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Thanks. I would think the same thing but I definitely want to avoid getting on the wrong side of the court. I'm guessing things at the attorney's office are a mess. About 1-2 weeks ago I received a notice of substitution of counsel that indicated the original attorney on the case is no longer with the firm. I added a request for hearing in my motion. I'm not sure it will be needed but I thought it would be good to have in there just in case.

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Thanks. How much longer should I give them. They actually only get 3 extra days so as of right now they are a week late. They also have a motion out to try and get my bank statements, however I have not seen a decision come through on that yet.

 

I also have a Request for Security Deposit that they did file a response to, but I haven't submitted a Request for Decision on it yet.

 

Oh and they also sent me " Supplemental Initial Disclosures"  These were a different Cardmember Agreement than the first one they sent and a bunch of screen prints of charges, payments and such.

Financial condition is not discoverable pre trial unless a person is suing for punitive damages.

Since it recognizes the exact intent of the Federal Constitution, you have a means to argue this under the constitution.

Marbury v Madison, 5, 137 (1803)

The Constitution is the supreme law of the land.

Clearly, for a secondary law to come in conflict with the Supreme Law is illogical, for certainly the Supreme law would prevail over all other law. Clearly our forefathers had intended for the supreme law to be the basis of all law. And for any law to come in conflict with it would be null and void of law; it would bear no power to in inforce; it would bear no obligation to obey; it would purport to settle as if it never existed; unconstitutionality would date from the date of the enactment of such a law, not the date so branded in an open court of law. No courts are bound to uphold it and no citizens are bound to obey it.

It operates as a mere nullity, or a fiction of law.

 

McCulloch v Maryland 17 U.S. 316 (1819)  Reiterated the same as Marbury on page 406

"this Constitution, and the laws of the United States, which shall be made in pursuance thereof," "shall be the supreme law of the land," and by requiring that the members of the State legislatures and the officers of the executive and judicial departments of the States shall take the oath of fidelity to it. The Government of the United States, then, though limited in its powers, is supreme, and its laws, when made in pursuance of the Constitution, form the supreme law of the land, "anything in the Constitution or laws of any State to the contrary notwithstanding."

 

 U.S.Constitution is the supreme law of the land, it is a contract enforceable in a court of law, pursuant to the statute of Frauds, and you are the clearly intended and expressly designated beneficiary. And the law is to be construed in the light most favorable to the beneficiary.

 

Utah's state constitution reads word for word exact to the U.S. constitution. Sec. 14. [Unreasonable searches forbidden. Issuance of warrant.] The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause supported by oath or affirmation, particularly describing the place to be searched, and the person or thing to be seized.

 

In order for them to prevail they will have to prove to the court that the information contained in your financial documents will lead to discoverable evidence that is relevant to the case.

 

Defendants objections are grounded upon the the amendment IV of the United States Constitution and Article 1, section 14 of the State of Utah's Constitution. Therefore the Plaintiffs request relating to the scope of discovery and the ability to undertake a fishing expedition miss the mark. Discovery of Constitutionally protected information is on a par with discovery of privileged information and is more narrowly protected than traditional discovery.

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Thanks BTO. That is good. I've seen disagreements on this very board about the discoverability of financial statements pre-trial so it's a bit confusing. Since the order has already been signed, what would I need to do to oppose it further. Mainly I at this point I believe I just need time until the Motion to Dismiss is decided while not giving them anything and not disobeying the order to the point where it gets me in trouble,.

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