SQLguy

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

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You can tell the judge in person they have not provided you with a name and address so you could supboena james olienick.  It violates your due process, and if you want to cross examine him, then they can't use the affidavidt, he has to appear in person. If the judge lets it in, object, state you want your objections noted for the record, and you request his name and address so you can subpoena him.  I doubt seriously they have his addy, but even so, they are not going to fly him in. (well never say never, but the odds are so ever in your favor)

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I don't have much else to argue about the documents.

I would find that hard to believe. (made for the sake of litigation, not true copies of originals, lacks authentication, lacks foundation, hearsay, can't overcome the business records exception to hearsay). I don't know your rules and haven't seen the docs, but I'm sure there's something to work with. You just may not have the time to get it into your MIL and file today.

 

Speaking of witch: On your memorandum #4 plaintiffs exhibit B is hearsay: I would also add "lacks foundation" and "lacks authentication". No one has laid a proper foundation for it or can authenticate it.

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Thanks @Anon Amos Good Idea.I actually found several places where that would be good to add.

Exactly. Use the time you have and file last minute if possible.

 

If you notice on HomelessInCalifornia's thread it was lack of foundation and lack of authentication that did it, and very little weight placed on hearsay (this was the judges comment).

Different state of course, but all states have many ways around hearsay and foundation and authentication are strong grounds for appeal in any state, and the evidence rules nation wide are much closer than many people realize. In my opinion

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@Anon Amos Thanks. My response to their Motion to Withdraw Deemed admissions is due today. Since they included the Affidavit as a part of that, and because if the hearing scheduled for Friday I was trying to get the MILin today. Do you think it would be better to wait a day or two for the MIL or should I try to get it in with my response today. (Also factoring in that it costs me about $13.00 every time I mail something out).

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@Anon Amos Thanks. My response to their Motion to Withdraw Deemed admissions is due today. Since they included the Affidavit as a part of that, and because if the hearing scheduled for Friday I was trying to get the MILin today. Do you think it would be better to wait a day or two for the MIL or should I try to get it in with my response today. (Also factoring in that it costs me about $13.00 every time I mail something out).

I can understand the expense, but I would consider them 2 separate issues and produce your response to the motion at hand. You can attack any affidavit they included with the motion however (I don't know you rules but it may be done with an opposition to the affidavit, possibly an affidavit of your own contradicting theirs) 

 

Then a separate MIL for each piece of evidence filed about 5 days before trial (depending on what the rules say).  

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@Spikey  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.

 

Case law isn't as big of deal since you're using the rules of evidence. It would be nice to have a case law cite that verifies your interpretation of the rules but it isn't critical.

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Case law isn't as big of deal since you're using the rules of evidence. It would be nice to have a case law cite that verifies your interpretation of the rules but it isn't critical.

 

 

 Agreed. It's the ICING on the cake.

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I can understand the expense, but I would consider them 2 separate issues and produce your response to the motion at hand. You can attack any affidavit they included with the motion however (I don't know you rules but it may be done with an opposition to the affidavit, possibly an affidavit of your own contradicting theirs) 

 

Then a separate MIL for each piece of evidence filed about 5 days before trial (depending on what the rules say).  

 

@Anon Amos Ok. I may have to figure out how to trim down my response. I'm only allowed 5 pages of response on the motion without permission from the court. I went the MIL route because it had been suggested in a previous post.

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you don't need a seperate MIL for each peice your attacking, you can attack them all in one MIL, but if your rules say they can only be 5 pages, and yours is longer, you may want to break it up.  My state it can be 5 pages or 50 pages, doesn't matter.

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Ok so I've taken the info in the MIL and added it to the response to their motion to Withdraw Admissions. It's a couple of pages over, but I think I'll be ok as one of the pages is the signature line and the other is the header. Any other thoughts or suggestions.

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The rules state 10 pages for a motion and 5 for a response. Here is the particular rule.

 

©(2) Length. Initial memoranda shall not exceed 10 pages of argument without leave of the court. Reply memoranda shall not exceed 5 pages of argument without leave of the court. The court may permit a party to file an over-length memorandum upon ex parte application and a showing of good cause.

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Thanks@shellieh98 I've incorporated  the information in my MIL into my response to the Request to Withdraw Admissions. I'm thinking I'll file that while still researching and working on the MIL and depending on the outcome of my hearing Friday, file it if needed. What does everyone think about that?

 

My hope is the judge will nail them on their late responses and give me a little bit of latitude (but isn't this what we always hope) I can really see this going either way and that is what makes me the most nervous.

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so your MIL would need to be less than 10 double spaced pages.

 

The memorandum cannot be over 10 pages. To keep it safe, file 2 documents, 1) The Motion and 2) the Memorandum

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The memorandum cannot be over 10 pages. To keep it safe, file 2 documents, 1) The Motion and 2) the Memorandum

@Bob Fletcher I assume you mean response? At this point I am putting the MIL on hold and including those arguments in my response to their Motion to Withdraw Deemed Admissions since the affidavit and supporting documents were included as exhibits to their motion.

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I still prefer 1 MIL per each piece of evidence, regardless of whether or not you can do it with 1. It's easier for a judge to exclude 1 piece of evidence and not the other (if that's how he's going to rule) or to view each piece of evidence separately (as will have to be done) and to make a ruling on it, if each piece  of evidence  has its own MIL with an attached order for the judge to sign. You make It easy on the judge, not yourself. And you will make the page limit requirements without a problem as well

 

I learned this from a book about judges written by judges where they take polls on different topics and ask 20  - 100 judges their opinions..

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@Anon Amos Ok. I may have to figure out how to trim down my response. I'm only allowed 5 pages of response on the motion without permission from the court. I went the MIL route because it had been suggested in a previous post.

I don't know your rules so I can't be of much help with procedure, the MIl at this stage in my court would be premature, but I'm sure you are researching your laws.

 

5 pages will work if you only stick to important fact paragraphs that say something that helps you win your case, and put a number in front of that paragraph. A number and then an important fact, another # and then another important fact. If you have something with no number in front of it; most of the time it does not need to be there. Most people write 90% more than they should. Also, the judge will only skim read it at best, that's another reason why adding the numbers is important. You can find a well written motion for examples.

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I don't know your rules so I can't be of much help with procedure, the MIl at this stage in my court would be premature, but I'm sure you are researching your laws.

 

5 pages will work if you only stick to important fact paragraphs that say something that helps you win your case, and put a number in front of that paragraph. A number and then an important fact, another # and then another important fact. If you have something with no number in front of it; most of the time it does not need to be there. Most people write 90% more than they should. Also, the judge will only skim read it at best, that's another reason why adding the numbers is important. You can find a well written motion for examples.

Thanks. I don't see anything in the rules specific to when the MIL can be submitted. Since a party has 10 days to file a response I would imagine it would need to be at least 14 days before trial. I have numbered my headings and put them in bold and caps so I feel good that it should be easy to read. Here's a redacted version of the entire response. I'm leaving work now but will head home and check here one last time before I print and head over to the post office. Any last minute advice is appreciated as always.

Response to Motion to Withdraw Final.pdf

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Check the top paragraph of page 2; it looks like you may have used the word "defendant" where it should be "plaintiff".

 

"Defendant in this case responded to the admissions 3 months after the request was served" 

 

" nothing in the record shows that defendant applied for extension of time"

 

"nothing to indicate defendant objected to the admissions or applied for a protective order"

 

 

It looks pretty good BTW, and the your argument is strong.

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I would be more specific in stating that their witness is not qualified because he not only is he not custodian of records, the only person who can claim the right to testify about records custodian of records for the OC, not some person from the buyer of the alleged debt. 

 

Check your person statements; several places, starting with your page two, you say Defendant when it appears that you mean Plaintiff, and vice versa.

 

Otherwise, good arguments of law.

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I would be more specific in stating that their witness is not qualified because he not only is he not custodian of records, the only person who can claim the right to testify about records custodian of records for the OC, not some person from the buyer of the alleged debt. 

 

This is a very important point. I already reached my "like this" quota for the day so It wouldn't accept it.

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@Bob Fletcher I assume you mean response? At this point I am putting the MIL on hold and including those arguments in my response to their Motion to Withdraw Deemed Admissions since the affidavit and supporting documents were included as exhibits to their motion.

 

No, for the original Motion. Utah rules allow you to either file the MIL (or any Motion) and supporting memorandum either together or as separate documents. If you do as Anon Amos suggests and file 1 MIL per document, I would combine the Motion and memorandum to simplify for the Judge. You won't have to worry about the length that way!

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Check the top paragraph of page 2; it looks like you may have used the word "defendant" where it should be "plaintiff".

 

"Defendant in this case responded to the admissions 3 months after the request was served" 

 

" nothing in the record shows that defendant applied for extension of time"

 

"nothing to indicate defendant objected to the admissions or applied for a protective order"

 

 

It looks pretty good BTW, and the your argument is strong.

That was actually a quote from the Supreme Court decision. I've put it in italics to make it more obvious.

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