SQLguy

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

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I would just say after conducting  a diligent search, you were unable to locate the records. If they want to pursue the can subpoena the records and you can oppose at that time.

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I would just say after conducting  a diligent search, you were unable to locate the records. If they want to pursue the can subpoena the records and you can oppose at that time.

 Would I just do this in a Meet and Confer type letter back to them?

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 Would I just do this in a Meet and Confer type letter back to them?

 

Where you ordered by the Court? If so, you will have to formally respond

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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,.

Your honor willful intent is an evil motive or intent to avoid a known duty or task prescribed under the law with a moral certainty, Blacks Law dictionary; since I have relied on United States Supreme court decisions and the Constitution of the United States and the Date of Utah to guide in my decision not to turn over private and privileged information there is no willful intent, United States v Bishop 412 U.S. 346 (1973). Since the Plaintiff has failed to prove that the discovery of my financial condition before a judgment is rendered, when no punitive damages are sought, will lead to any evidence that is admissible in trial, and the Plaintiff cannot prove any willfulness on my part, and I would make a motion for the court to provide a protection order for the private information that the Plaintiff insists on discovering.

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I filed it yesterday. I wanted to make sure I gave them plenty of time. When I got the substitution of counsel notice, I gave them a little extra time just to make sure they couldn't argue harmless error. I probably gave them a little too much time but with the exception of dealing with the order I don't think it really hurt me.

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Ok So some new developments recently. I filed my MTD and got a response that they are in the process of preparing a motion to withdraw the deemed admission. Along with that they filed for sanctions and are angling for a default judgement because I didn't turn over the statements. I've used BTO's arguments and added a few of my own. Any feedback is appreciated.

 

 

Now comes the Defendant Pro Se in its response to Plaintiff’s Request For Sanctions. Defendant states as follows.

Defendant asserts the doctrine of Unclean Hands. Plaintiff claims that the Defendant has not turned over discovery evidence. However, the Plaintiff failed to respond to the Defendant’s requests for admissions and production until after the Defendant filed a Motion to Dismiss based on deemed admissions due to lack of Plaintiff’s response.

 

These responses were several months late and Plaintiff has not provided any reasonable explanation for the delay in their response. As the period for discovery has expired, this delay puts the Defendant at a severe disadvantage.

Because of the Plaintiff’s inaction, the Defendant believed that his Motion to Dismiss has a high likelihood of being granted. Defendant contends that until this motion has been decided, he should not be required to turn over personal and confidential information.  Defendant has based his belief in the success of his Motion to Dismiss on the Utah Appeals Court decision in the case of Discover Bank v. Kendall. (Docket 20120498-CA).

 Additionally, the Plaintiff has improperly served the Defendant in at least two instances in violation of U.R.C.P Rule 5. The first instance occurred with the Plaintiff’s Statement of Discovery Issues. Plaintiff initially claimed that the Statement of Discovery issues was served upon the Defendant on June 19th 2013. However the Defendant was not served with this statement and was unaware of this filing until the Plaintiff submitted a Request to Submit for Decision. Defendant responded to the Request for Decision and subsequently the Plaintiff did finally serve the Defendant properly. Defendant is unaware of any explanation from the Plaintiff regarding their failure to serve the Defendant properly for the initial Statement of Discovery Issues.

The second instance occurred after the order for the Defendant to provide his financial records was signed. Defendant was unaware of the signed order until the Defendant sent a letter dated November 15th 2013. This came over a month after the order had been signed. Again, the Defendant is unaware of any explanation from the Plaintiff regarding their failure to serve the Plaintiff within the fifteen day window specified in U.R.C.P. 7(f)(2)

 

The previously described behavior illustrates a pattern of inaction and delay. In Discover Bank v. Kendall the appeals court clearly stated

“..the court will not come to the rescue of a party who flagrantly ignores these rules  at the expense of a party who attempts to conform with them.”

 

The Defendant further argues that the information that was he was ordered to provide is protected by both the United States Constitution and the Utah State Constitution.

The United States 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."

 

The 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 the Defendant is 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.

 

Defendant further asserts that there is no willful intent in his decision not to turn over private and privileged information. Blacks Law Dictionary defines willful intent as an evil motive or intent to avoid a known duty or task prescribed under the law with a moral certainty. Since he has relied on United States Supreme Court decisions, Utah Appeals Court decisions and the Constitutions of the United States and the State of Utah to guide in his decision not to turn over private and privileged information there is no willful intent, United States v Bishop 412 U.S. 346 (1973).

 

Since the Plaintiff has failed to prove that the discovery of the Defendant’s financial condition before a judgment is rendered, when no punitive damages are sought, will lead to any evidence that is admissible in trial, and the Plaintiff cannot prove any willfulness on the Defendant’s part, Defendant respectfully requests that the Plaintiff’s request for sanctions be denied and that the order requiring the Defendant to provide these records be stricken. 

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@SQLguy

 

The judge signed the order?  Did you respond and tell them that it would take longer than 14 days to get the bank statements?

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This sounds similar to Frosted1's situation. Might be the same JDB attorney for all I know.

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@SQLguy

 

The judge signed the order?  Did you respond and tell them that it would take longer than 14 days to get the bank statements?

He did. I was not aware of this though until mid November. I did not respond because I thought my motion to dismiss would need to be decided before I was required to turn them over.

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This sounds similar to Frosted1's situation. Might be the same JDB attorney for all I know.

@Spikey I just read through his thread. Very similar situation with same JDB/Attorney. I could add a standing argument as they have not provided any proof of ownership of the debt at all. When thry did finally respond to my requests for production. denied any knowledge or posession of a Sales contract or any other documents related to the sale of the account. Is this something I should add? I should also note that both myself and the plaintiff have requested hearings on the outstanding motions.

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@SQLguy I'm not sure because you're filing an MTD which is usually appropriate if there are procedural errors based on the rules of civil procedure. If there's something in the rules regarding what's required to claim ownership of contract, you may have a leg to stand on. Otherwise a standing argument would be more appropriate for a MSJ. I just don't know Utah's rules on what type of motion is appropriate.

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@Spikey. The Motion to Dismiss was already filed. I'll clarify the recent timeline. They sent me a letter about a month after the order to turn over records was granted. I was unaware it had been granted up until that point. In the letter they stated they would give me 2 additional weeks. I immediately filed my MTD after receiving the letter. They filed a response stating that they were preparing a motion to withdraw deemed admission and concurrently filed a request for sanctions. Shortly after receiving this, I filed my request to Submit for Decision for the MTD.

 

The current thing that I am working on and what I posted above is my response to their Request for Sanctions as they have requested a default judgement. Quite honestly I'd be very surprised if their Motion to Withdraw Admissions succeeds as they were several months late. However I want to make sure I cover everything just in case.

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So, your MTD is based upon deemed admissions then? If they're months late, they're going be hard pressed to convince a judge that they should be withdrawn. I know in some states the judge has discretion to allow late responses, especially if the admitted admissions will win the case. But again the time frame is a big deal. It's one thing to be a few days late, even a week or 2 late, but months? That's way beyond negligence, especially for a member of the bar. Make sure you press on that point if you are allowed to make oral arguments. Although that doesn't seem very normal in Utah from what I've read.

 

I'm not surprised that they're going after sanctions for not complying on bank statements. Even if you filed a motion to set aside, Utah seems like the wild west compared to what I'm used to and based on frosted1's case they also pressed for a default. I still think it's ridiculous that the lynch pin of their case is your bank statements.

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I am in total agreement with you. We both have requested hearings so I am hopeful that the judge will either deny the hearing and rule in my favor, or grant the hearing and give them the chance to make fools of themselves. I just want to make sure I respond to the sanctions in the off chance something very wierd happens.

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@SQLguy

 

If your court rules allow for service by mail, this might be a he said/she said as to whether or not you were served.   I notice this in your motion:

 

Since the Plaintiff has failed to prove that the discovery of the Defendant’s financial condition before a judgment is rendered, when no punitive damages are sought, will lead to any evidence that is admissible in trial

 

Usually when a creditor requests bank records, it's because if you denied having the account, they are attempting to prove you made payments on the account.  If they have billing statements that show payments, they want to see if there are payments in your bank records that match the payments on those statements.  It has nothing to do with looking into your financial situation.

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Ok all, the Court Clerk just threw me a curve ball and I need some help. Apparently I have to file a request for hearing separately (Even though the rules say otherwise) However, that not withstanding, I need to prepare an order for dismissal and have no idea what it should look like. Any help is appreciated.

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Well I guess it seems I've gotten all the help I can from this site and I'm on my own now. Thanks to everyone who has helped thus far.

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Well I guess it seems I've gotten all the help I can from this site and I'm on my own now. Thanks to everyone who has helped thus far.

 

It is Sunday afternoon and the Playoffs are on.  While it is an urgency to you that doesn't equate to everyone else being available at the drop of a hat when you need FREE help.  Be patient.

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A sample order in Illinois for dismissal:

STATE OF ?

IN THE CIRCUIT COURT OF ?

COUNTY

 

Jerk JDB                                                          )
                                                                        )
Plaintiff,                                                           )
                                                                        )
v.                                                                     )           Case Number
                                                                        )
You                                                                  )
                                                                        )
Defendant,                                                      )
                                                                        )

 

SUMMARY JUDGEMENT ORDER

 

It is the order of the court that summary judgment with prejudice is hereby grated in favor of the defendant pursuant to section 2-1005 of the Illinois Code of Civil Procedure. 735 ILCS 5/2-1005 (1993).

  

 

 

DATE:

 

     

___________________________________

Judge                           Judge's No.

                   

 

Name

Address

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@Clydesmom I can appreciate that people are not available at the drop of the hat. However did you bother to notice that I have been waiting for 4 days for a response. I DO appreciate the FREE help which is why I thanked everyone who has helped me thus far. It would have been nice of you to contribute to my questions instead of giving a troll answer.

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