SQLguy

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

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In addition, the other party in that case raised timely objection to the admissions.  The other party in your case was asleep at the wheel.  I really think that pointing out the exact number of days that have gone by without a response is important--the plaintiff would need to prove that they would be unfairly prejudiced by those admissions....they cannot because they had more than 2 months to respond and did not say a word.

I don't know if a timely objection matters or not in Utah. I find it more interesting that the Plaintiff is trying to sneak untimely answers in now. They would have been better off just objecting to the admissions for being propounded so late in the discovery time frame. By answering, they're admitting that they should have answered them when they were sent.

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I also found this in one of the cases you referenced @kraftykrab

There is no evidence in the record to show that defendant had at any time applied to the trial court for an extension of time to serve the answers as is permitted under Rule 36(a). Further, there is nothing to indicate that defendant objected to the form of the request for admissions or asked for a protective order under Utah R.Civ.P. 26©.[5] Therefore, late filing of the answers was not excused, and the matters contained in the request for admissions were at that time conclusively deemed admitted...

However, even if a request is objectionable, if a party fails to object and fails to respond to the request, that party should be held to have admitted the matter.

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yep, thats key.  The other issue as I see it will be the leeway given to pro se litigants.  Those two combined look pretty good to beat them at this.

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Hi SQL guy!

 

Can you tell me who the JDB is in this case?  Or the Plaintiff's attorney?  I'm facing an attorney that's declaring using the same witness, Elizabeth Gamache.  I can't imagine they're all using her, or am I being naive in that assumption?   Frosted 1

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@frosted1 Sent you a PM.

 

Thanks to everyone again for your help. I need to know how to best argue on the affidavit. The submitted it to controvert the following statements in my RFA's

 

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. 

 

I have a few thoughts on this but not sure if they matter.

 

First, throughout the affidavit, the terms assigned and assignee However in other pleadings/motions they refer to the debt as being purchased. In fact there is even a date labeled purchase date on one of the documents they include with the affidavit. Is this even worth bringing up or arguing?

 

Second, I'm confused as to how I argue this as heresay. 

 

Finally besides the disclosure argument(which may or may not be applicable), what other ways should I attack this. Also do I include this in my response to their motion or do I file a separate Motion to Strike on it? I looked through the Utah rules but couldn't find anything specific to affidavits.

 

If it helps I can redact the affidavit and post it up.

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If it helps I can redact the affidavit and post it up.

It probably would help. Check your rules and see if there is any procedure errors with the affidavit. You have to attack the credibility of the affiant and the  testimony in the affidavit.

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Ok Here's the actual Affidavit. There are also exhibits attached that I did not include. The exhibits are basically a transaction detail, a copy of the terms and conditions (However it is labeled WebBank and not CIT) and what looks like something from AA's system that shows Purchase, Date Balance, Date of Last Payment, Account Number, OC account number and my name and address. If I need to post these up, let me know. 

 

(I took the affidavit down because the redaction was showing the info for a second when opening the file)

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Second, I'm confused as to how I argue this as heresay. 

 

Finally besides the disclosure argument(which may or may not be applicable), what other ways should I attack this. Also do I include this in my response to their motion or do I file a separate Motion to Strike on it? I looked through the Utah rules but couldn't find anything specific to affidavits.

 

 

 

I would prepare a MIL to preclude these documents, BOS, Affidavit and any other BS they have provided.  Following is a link to a redacted MIL from our angel, Shellie, bless her heart!!  It is for Colorado, so you will have to adjust for Utah.

 

http://www.creditinfocenter.com/community/topic/319342-johnson-mark-llc-suing-for-midland-funding/page-6  post 106 I believe.

 

I would get this in right away, as it will throw a monkey wrench in their plans!

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@Anon Amos I've also tried to check the rules for Affidavits and can't seem to find anything.

The affiant states "scope of my job responsibilities" & "by virtue of my position with plaintiff", but never says he's the custodian of records or what his position with plaintiff is.

 

Also in the testimony of the affidavit he states he "believes it to be true" or something to that effect. I don't know your rules but I would think you have something to work with there.

 

An employee of the plaintiff cannot know that the information he says was given to them by the OC is accurate, and he does not know about their record keeping or what steps were taken to insure the information is correct, and cannot lay a foundation for any hearsay information allegedly from the OC.

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@SQLguy

 

I agree with Anon.  Carefully read what Rule of Evidence 803(6) (or whatever your business record exception is) and compare it to the affidavit.

 

The rule usually states that the testimony must come from a custodian of records or "other qualified witness".  As Anon pointed out, the affiant doesn't claim to be a custodian of records, nor does he state his position with the company, so it's unclear if he's a "qualified witness".  See what your courts have ruled.

 

Also in the testimony of the affidavit he states he "believes it to be true" or something to that effect. I don't know your rules but I would think you have something to work with there.

 

 

If the JDB were to file an MSJ, you could use the above.  Affidavits in support of summary judgment must be made on personal knowledge.  If the affidavit states "information and belief" or something to that effect, that's not personal knowledge.  From the Utah Supreme Court:

 

 "Statements made merely on information and belief will be disregarded. Hearsay and opinion testimony that would not be admissible if testified to at the trial may not properly be set forth in an affidavit." Walker v. Rocky Mountain Rec. Corp., 29 Utah 2d 274, 508 P.2d 538, 542 (1973).

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@BV80 Thanks. I'm working on that next and hope to have it done by Sunday. Here is what appears to be the business heresay exception rule for Utah.

 

6)   Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:

 

 

 

A  the record was made at or near the time by — or from information transmitted by — someone with knowledge;

 

 

 

B  the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

 

 

 

C  making the record was a regular practice of that activity;

 

 

 

D   all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

 

 

 

E  neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.

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Ok so here's my response to their Motion to Withdraw Deemed Admissions. Any thoughts would be appreciated. I miscounted on the days and I need to get this in the mail on Monday (Probably a good thing anyways since my hearing is Friday)

In the bold face letters it says "defendant failed to object or file for a protective order" when it should say "PLAINTIFF failed to...."

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Ok so here's my response to their Motion to Withdraw Deemed Admissions. Any thoughts would be appreciated. I miscounted on the days and I need to get this in the mail on Monday (Probably a good thing anyways since my hearing is Friday)

 

Other than @Anon Amos comment, it looks real solid to me. Nice job.

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Nice catch!!! Got that fixed. Thanks! I think I've got some good stuff on the Affidavit too and hope to have that up later today or tomorrow. Now I'm just hoping the judge doesn't nail me too hard because of the statements.

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. Now I'm just hoping the judge doesn't nail me too hard because of the statements.

You may be able to attack the statements as well in a motion in limine.

 

Lack of foundation and authentication (from the OC), not true copies of originals and prepared for the sake of litigation, untrustworthy, incomplete and do not show how the amount alleged owed was calculated by showing transactions from a zero balance to the final charged off amount, hearsay and does not meet the business records exception to hearsay.

 

Some or all of the above may fit your case.

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Thanks @Anon Amos I was actually talking about the statements that I was supposed to provide them.

 

Here is my first whack at my Motion In Limine. I'm still a little confused as how to attack the docs they included as hearsay. I also noticed the agreement they included is for Web Bank not CIT. I'm not sure if it will make a difference to pint that out but I'm going to try anyways. As always, any help is greatly appreciated.

MIL Round 1.pdf

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@SQLguy Did you request a jury trial? You mentioned the jury in your memorandum, so I wanted to check. 

 

Love the part about sandbagging. Way to use the rules to your advantage.

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@SQLguy Did you request a jury trial? You mentioned the jury in your memorandum, so I wanted to check. 

@Spikey No. I did not. I used it in a more general term and I believe I got that from Shellieh's MIL. I'm a bit concerned about the lack of case law but had a really tough time finding anything that seemed to apply to my case.  I have a hearing on all outstanding motions on Friday and I believe all of this will come to a head there. I have an outstanding motion to dismiss based on their admissions and they have an outstanding Motion for Sanctions and Default Judgement because the bank statements have not been produced.

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Additionally I'm concerned that my arguments against their documents are weak. I'm basically counting on the judge to disqualify the affiant to also get the docs thrown out. I'm concerned that if he doesn't disqualify the affiant then I don't have much else to argue about the documents.

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