loribellag

JDB backed off, now what should I do?

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@loribellag

 

Discovery is the process of asking the other party for specific documentation, requests to admit, and in the case of Interrogatories, answers to specific questions.

 

Some states have Disclosure.  That's not the answer to the complaint.  Disclosure is when a party discloses names of potential witness and documents that they will provide as evidence.

 

Your answer to the complaint merely admits or denies allegations and can contain affirmative defenses.

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To ClydesMom: Let me just get my terms straight: Am I correct in thinking that Discovery is where I'm asking for something (docs, admissions, etc), and Disclosure is where I'm giving something (docs, admissions, etc.)? So, my answers are disclosures, right and that's why my affirmative defenses don't belong there? If so, when should I have listed my affirmative defenses? In with my discovery, maybe listed after my requests?

 

@loribellag

 

Yes, discovery is the process by which you get the evidence the Plaintiff intends to use against you.  There are several methods:  request for documents, request for admissions, interrogatories, and deposition.  Some states do not allow discovery in small claims court cases and everything is conducted at trial.  Georgia is an example of one of those states.  Some states limit the amount of questions you can ask of the other party so you have to choose carefully so that you maximize your knowledge gained due to the imitations.  

 

When the Plaintiff sends discovery to you your answers are responses to their demand for information.  You do not "try" your case in your answers to discovery. 

 

The general process is this:

 

Plaintiff files a lawsuit against defendant stating "he owes me money"  because of (reason) breach of contract. (or what ever they choose)

Defendant is served and the clock starts ticking on filing an ANSWER to the suit. Typically 20-30 days.  If the defendant doesn't answer or show up:  default judgment.

Defendant answers and this is where they say:  "I deny I owe JDB any money because"  and then list affirmative defenses such as lack of standing, the SOL is expired and they are time barred from pursuing, ID theft etc.

     **Part of your answer and affirmative defenses cannot be a demand for evidence or documents.  This is NOT the place or time to argue the case or gather evidence.

Next step is Discovery if the RCP of your state allow for it.  Some choose all 3 RFAs, ROGs, and documents.  It depends on what is important to each defendant.

The Plaintiff will serve discovery on you and the bullquirt part is they want YOU to produce the documents they need to prove their case.  This is where you have to honestly but creatively say no and refuse to provide it without pissing off the court.

Once all that is done if they other side has not dismissed you have to prepare for trial.

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@loribellag

 

Yes, discovery is the process by which you get the evidence the Plaintiff intends to use against you.  There are several methods:  request for documents, request for admissions, interrogatories, and deposition.  Some states do not allow discovery in small claims court cases and everything is conducted at trial.  Georgia is an example of one of those states.  Some states limit the amount of questions you can ask of the other party so you have to choose carefully so that you maximize your knowledge gained due to the imitations.  

 

When the Plaintiff sends discovery to you your answers are responses to their demand for information.  You do not "try" your case in your answers to discovery. 

 

The general process is this:

 

Plaintiff files a lawsuit against defendant stating "he owes me money"  because of (reason) breach of contract. (or what ever they choose)

Defendant is served and the clock starts ticking on filing an ANSWER to the suit. Typically 20-30 days.  If the defendant doesn't answer or show up:  default judgment.

Defendant answers and this is where they say:  "I deny I owe JDB any money because"  and then list affirmative defenses such as lack of standing, the SOL is expired and they are time barred from pursuing, ID theft etc.

     **Part of your answer and affirmative defenses cannot be a demand for evidence or documents.  This is NOT the place or time to argue the case or gather evidence.

Next step is Discovery if the RCP of your state allow for it.  Some choose all 3 RFAs, ROGs, and documents.  It depends on what is important to each defendant.

The Plaintiff will serve discovery on you and the bullquirt part is they want YOU to produce the documents they need to prove their case.  This is where you have to honestly but creatively say no and refuse to provide it without pissing off the court.

Once all that is done if they other side has not dismissed you have to prepare for trial.

 

Thank you. It is much more clear now. I thought you were saying not to include affirmative defenses in my answers, but your were really saying not to ask for documents in my answers. That makes much better sense. Unfortunately my understanding comes after I've already done some of the wrong things. Do you think I should now just wait to see what happens or should I amend my answers to fix my previous mistakes? (i.e. include my affirmative defenses where applicable after each answer and also take out requests for docs from my answers)?

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Thank you. It is much more clear now. I thought you were saying not to include affirmative defenses in my answers, but your were really saying not to ask for documents in my answers. That makes much better sense. Unfortunately my understanding comes after I've already done some of the wrong things. Do you think I should now just wait to see what happens or should I amend my answers to fix my previous mistakes? (i.e. include my affirmative defenses where applicable after each answer and also take out requests for docs from my answers)?

Amend your answers to correct the errors.  You want to preserve all your rights.

 

Here is some case law from UT that you should be aware of that could be harmful to your defenses including the statute of frauds:

 

According to the UT Court of Appeals, personal knowledge is not required to lay the foundation for the admission of business records.

Portfolio Recovery Associates, LLC v. Migliore, 2013 UT App 255 - Utah: Court of Appeals 2013

The district court determined that the Sage affidavit included sufficient foundation to admit the documents as business records. This determination was within the district court's discretion. As discussed above, the district court was entitled to take the averments in the Sage affidavit regarding Sage's qualifications as a records custodian at face value. Sage attested that he was an authorized representative and custodian of records for PRA and that he was familiar with the manner and method by which PRA maintained its books and records—specifically the manner and method by which it maintained its records of assigned debts. This is a sufficient evidentiary basis for the district court's determination that an adequate foundation existed to receive the attached documents as business records. See Superior Receivable Servs., 2008 UT App 225, ¶ 10 & n.2. The district court therefore did not abuse its discretion in denying Migliore's motion to strike the Sage affidavit and the exhibits thereto.

Here's a ruling by the UT Court of Appeals based on the Statute of Frauds.

Capital One Bank v. Wilkerson, 2009 UT App 333 - Utah: Court of Appeals 2009

Wilkerson asserts that the trial court erred because there was no signed credit agreement as required under the statute of frauds. However, for credit agreements such as the credit card account at issue here, there is an exception to the statute of frauds permitting certain credit agreements to be enforced without the debtor's signature. See Utah Code Ann. § 25-5-4(2)(e) (2007); see also MBNA Am. Bank, N.A. v. Goodman, 2006 UT App 276, ¶ 8, 140 P.3d 589 (noting the statutory exception for credit card agreements).

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@loribellag

 

Rule 15. Amended and supplemental pleadings.

(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 21 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 14 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

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Amend your answers to correct the errors.  You want to preserve all your rights.

 

Here is some case law from UT that you should be aware of that could be harmful to your defenses including the statute of frauds:

 

According to the UT Court of Appeals, personal knowledge is not required to lay the foundation for the admission of business records.

Portfolio Recovery Associates, LLC v. Migliore, 2013 UT App 255 - Utah: Court of Appeals 2013

The district court determined that the Sage affidavit included sufficient foundation to admit the documents as business records. This determination was within the district court's discretion. As discussed above, the district court was entitled to take the averments in the Sage affidavit regarding Sage's qualifications as a records custodian at face value. Sage attested that he was an authorized representative and custodian of records for PRA and that he was familiar with the manner and method by which PRA maintained its books and records—specifically the manner and method by which it maintained its records of assigned debts. This is a sufficient evidentiary basis for the district court's determination that an adequate foundation existed to receive the attached documents as business records. See Superior Receivable Servs., 2008 UT App 225, ¶ 10 & n.2. The district court therefore did not abuse its discretion in denying Migliore's motion to strike the Sage affidavit and the exhibits thereto.

Here's a ruling by the UT Court of Appeals based on the Statute of Frauds.

Capital One Bank v. Wilkerson, 2009 UT App 333 - Utah: Court of Appeals 2009

Wilkerson asserts that the trial court erred because there was no signed credit agreement as required under the statute of frauds. However, for credit agreements such as the credit card account at issue here, there is an exception to the statute of frauds permitting certain credit agreements to be enforced without the debtor's signature. See Utah Code Ann. § 25-5-4(2)(e) (2007); see also MBNA Am. Bank, N.A. v. Goodman, 2006 UT App 276, ¶ 8, 140 P.3d 589 (noting the statutory exception for credit card agreements).

 

Thank you. Where can I find case rulings that might support my case? I have no idea how to find these.

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Thank you. Where can I find case rulings that might support my case? I have no idea how to find these.

 

I am not bashing you but THIS question is why many pro-se defendants lose their case.  You at least asked.  By doing the leg work yourself if the judge questions you on why you chose a case to cite or any of your defenses you can intelligently answer.  Someone who blindly follows advice from a stranger on the internet is not going to know what to say when challenged by a cranky judge and eventually gets steamrolled.

 

Okay, moving on:  Google Scholar is a good place to start.  

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@loribellag

 

Rule 15. Amended and supplemental pleadings.

(a) Amendments. A party may amend his pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed upon the trial calendar, he may so amend it at any time within 21 days after it is served. Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. A party shall plead in response to an amended pleading within the time remaining for response to the original pleading or within 14 days after service of the amended pleading, whichever period may be the longer, unless the court otherwise orders.

 

It has been much longer than 21 days since I filed my answers, so I guess it's too late to amend them?

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@loribellag

 

The cited rulings are from the UT Court of Appeals.  That court is going to pretty consistent on its rulings and will trump the rulings of lower courts. 

 

Right now, I'd wait to see what evidence, if any, the JDB provides and go from there.

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@loribellag

 

That rule says that you can request permission from the court to amend your answer if it's been longer that 21 days.

 

Otherwise a party may amend his pleading only by leave of court or by written consent of the adverse party...

 

How would you change your answer?

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I took a look at the reference made about Utah's SOF. Got some serious insight.

UTAH CREDIT CONSUMERS: Be cautious when partaking in an Internet Forum like this one. Earlier in this thread, negative comments were asserted about the Statute Of Frauds in Utah in affirmatively defending yourself against JDB frivolous, hearsay law suits filed against you. Your best friend, and primary affirmative defense should be the SOF. Look at what happened to our fellow consumer when he “abandoned” the SOF to his own peril…if you are squeamish do not read! Migliore got all caught up out in deep water away from solid shoreline (without his SOF life vest) chasing after JDB fools bait.

FOOTNOTE: “ We note that Migliore argued below that a credit contract is unenforceable under Utah's statute of frauds without evidence of a written contract between the parties. However, he has abandoned this argument on appeal.”

"Migliore filed a rule 59 motion to amend the district court's grant of summary judgment. The district court conducted a hearing on the rule 59 motion, ultimately denying Migliore's motion and affirming its prior order. The district court entered final judgment on June 5, 2012, and Migliore timely filed his notice of appeal."

THE UTAH COURT OF APPEALS

PORTFOLIO RECOVERY ASSOCIATES, LLC,

Plaintiff and Appellee,

v.

CHARLES W. MIGLIORE,

Defendant and Appellant.

Memorandum Decision

No. 20120700‐CA

Filed October 24, 2013

Third District Court, Tooele Department

The Honorable Robert W. Adkins

No. 100301459

Ronald Ady, Attorney for Appellant

Christopher J. Rogers, Attorney for Appellee

11 PRA’s complaint asserts a breach of contract claim based on

the assignment of the Account to PRA by Wells Fargo Bank. “The

elements of a prima facie case for breach of contract are (1) a

contract, (2) performance by the party seeking recovery, (3) breach

of the contract by the other party, and (4) damages.” Bair v. Axiom

Design, LLC, 2001 UT 20, 14, 20 P.3d 388. Because Migliore failed

to file responsive affidavits or other admissible evidence, the facts

are undisputed.

Also, in Capital One vs. Wilkerson, our fellow credit consumer got caught up in only 1 element of the SOF (there are about 17 one must use in your Answer and Discoveries to keep that creible dispute over a material fact alive (as did Harling), and in the courts face for it to be plainly seen and represent the elephant-in-the-room & fly-in-the-ointment!) The credit card agreement exception has about 7 elements that control whether or not the "void" credit agreement becomes enforceable. A signature is not required if movant can prove that. But the other 7 elements to a non-signed are required.

Also, in MBNA Am Bank vs. Goodman, as well as Superior Receivable Services vs. Pett, the OC plays a significant role and has a credible profile throughout the District trial, unlike the JDB law suits you and I are facing in our cases. But in no case decision at any level have the safeguards within the SOF been overcome. They were either not properly laid out (all 17) in the Answer or were "abandoned" when needed most!

All of thses cases are great to read and be familiar with as it represents what the JDB has and does not have. Forums like this could turn out to be your worst nightmare if you allow them to so effect you. We are here to win by keeping our eye on the target: JDB's can not enforce a SOF-protected "void" credit agreement...and they know it, but will use deceipt to send you off into deep water to drown yourself.

! Migliore.doc

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UTAH CREDIT CONSUMERS: Be cautious when partaking in an Internet Forum like this one. 

 

Truer words have never been spoken.  Be especially suspicious of anyone who encourages you to contact them privately off the forums for legal advice.  You have NO way of knowing who they are, their legal training, or their agenda.

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Comments that would put a huge smile across all the JDB's faces and attorney's, even if they were punished and fined and sanctioned out of business and/or run out of the state!

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