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Motion for Summary Judgment Johnson Mark/Midland Utah


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I responded to the charges after I received the summons last fall.

And I sent discovery requests.

 

 

 

Here is the Plaintiffs Memorandum in support of Plaintiff's motion for summary Judgement:

 

 

 

Pursuat to rules 7 and 56 of the Utah Rules of Civil Procedure...moves for summary judgement

Plantiffs account balance 1200

Interest 400

 

The motion is supported by the memorandum of points, authorities and affidavits within.

Moves the court pursuant to rule 73 of Utah rules of civil procedure for an order augmenting the judgment in the amount of reasonable costs and attorney's fees expended in collecting said Judgement..

 

Declatation in support of motion

1. November 2013 Plaintiff sent discovery

2. Said discovery instructed defendant to respond to requests for admissions within 28 days or the admissions will be deemed admitted.

3. However, defendant has failed to respond to said requests for admissions and the time to do so has now expired.

 

Memorandum in support of plaintiffs motion for summary judgment

Statement of undisputed material facts:

1. november 2013 plaintiff sent discovery to defendant.

2. Said discovery instructed defendant to respond within 28 days

3. However defendant has failed to respond.

4. As such pursuant to rule 36 of the Utah rules of civil procedure the following facts are deemed admitted:

a. defendant entered into a contract with Chase thereby agreeing to pay for the balance on the account

b. defendant used or authorized the use of the account to obtain goods

c. Defendant didn't dispute within 60 day of writing any item in the periodic written statements sent regarding this account

d. Defendant failed to make all payments pursuant to the terms of the contract leaving balance 1200 with interest of 400 at the rate of 10%

e. Defendant is indebted to chase bank and its subsequent assignee plantiff for the full current acount balance of 1700

 

Argument

point 1

summary is appropriate in this case

Summary judgment is proper where the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. URCP rule 56©

A memorandum supporting a motion for summary shall contain a statement of material facts supported by citation to relevant materials such as affidavits or discovery materials.

Additionally when a party ignores requests for admissions they are automatically established as true on the 31st day following service of the request and the trial court doesn't have discretion to unilaterally disregard the admissions. kotter v kotter 2009 UT App 60.

Unanswered or objected to the admissions are conclusively established.

The effects of rule 36 are intentionally harsh and parties who fail to comply with the procedural requirements of rule 36 should not lightly escape the consequences of the rule. Langland v Monarch Motors 952 P.2d 1058, 1061 (UT 1998)

Therefore parties who ignore the requests for admissions do so at their peril. State ex rel. E.R., 2 P.3d 948, 951 (Utah Ct. App 2000)

In the instant case defendant was properly served with the Requests for Admission. Defendant failed to respond by either objecting or denying the requests within the time allowed under rule 36 URCP. As such admissions are deemed admitted.

As a result of said admissions defendant admits to entering into a contract with chase.. Thereafter defendant used or authorized the use of said account to obtain goods...Periodic written statements were sent to defandant. Defendant did not dispute in writting any of the charges or the application of any payments. Defendant then failed to make payments pursuant to the terms of contract. The account was subsequently assigned to plaintiff. Defendants failure to make payment to plaintiff pursuant to the terms of the contract entitles plaintiff to judgment as a matter of law.

 

Point 2

Defendant cannot rest on the allegations of the answer but must file an adequuate response to the motion for summaryjudgment showing that there is a genuine issue for trial.

 

Pursuant to rule 56e of the utah rules of civil procedure when a motion for summary judgement is made and supported as provided in this rule an adverse party may not rest upon the mere allegations or denials in their pleadings but the response by affidavit or as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial. If no response to the motion for summary judgment is filled by the defendant plaintiff is entitled to a summary judgment notwithstanding the addegations or denials set forth in the defendants answer. See Cowen and Co. v Atlas Stock Transfer Co., 695 P.2d 109 Utah 1984; Brigham Truck & Implement Co v Fridal, 746 P.2d 1171, 1173 utah 1987

 

Having filed a motion for summary judgment supported and accompanied by a memorandum of points and authorities plaintiff is entitled to a summary judgment as a matter of law if defendant fails to provide an adequate response. The defendant cannot rest upon the mere allegations or denials found in the pleadings but must file a response by affidavits or otherwise provided for in rule 56 of the utah rules of civil procedure. Further said response must set forth specific facts showing that there is a genuine issue for trial.

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1. Who is the named plaintiff in the suit? Midland Funding LLC

2. What is the name of the law firm handling the suit? (should be listed at the top of the complaint.) Johnson and Mark LLC

3. How much are you being sued for? 1750.

4. Who is the original creditor? (if not the Plaintiff) Chase

5. How do you know you are being sued? (You were served, right?) Served complaint

6. How were you served? (Mail, In person, Notice on door) In Person

7. Was the service legal as required by your state? Yes

Process Service Requirements by State - Summons Complaint

8. What was your correspondence (if any) with the people suing you before you think you were being sued? A letter from the Attorney stating that they were going to be taking legal action on behalf of Midland funding.

9. What state and county do you live in? UT. Weber county

10. When is the last time you paid on this account? (looking to establish if you are outside of the statute of limitations) 9/2009

11. What is the SOL on the debt? To find out: 4 or 6 I'm not sure

12. What is the status of your case? Suit served? Motions filed? You can find this by a) calling the court or B) looking it up online (many states have this information posted - when you find the online court site, search by case number or your name).

13. Have you disputed the debt with the credit bureaus (both the original creditor and the collection agency?) No

14. Did you request debt validation before the suit was filed? Note: if you haven't sent a debt validation request, don't bother doing this now - it's too late. No

15. How long do you have to respond to the suit? (This should be in your paperwork). If you don't respond to the lawsuit notice you will lose automatically. In 99% of the cases, they will require you to answer the summons, and each point they are claiming. We need to know what the "charges" are. Please post what they are claiming. Did you receive an interrogatory (questionnaire) regarding the lawsuit? I already responded to the Complaint.


16. What evidence did they send with the summons? An affidavit? Statements from the OC? Contract? List anything else they attached as exhibits.
Not much other than cc statements

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the problem is you did not answer their discovery.  If you have it, answer it now before you file your opposition.  maybe the judge will accept them.  in your opposition list any material issues of fact and reasons why it should not be granted,  you can then write in it you answered and denied.  look around the forum here for other threads that have answers so you will no what to put, and post it here before you send it.

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I'm looking to help defendants sued by JohnsonMark.....I believe I know how to defeat most of their junk debt buyers and how to respond to their filings and how to file your own motions, as well. I'm also looking to file a class action suit against them but I need to know who all is out there in the same boat as myself. I have been fighting them for 5+ years. Please contact me at yahooformylegalfile@gmail.com

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I responded to the charges after I received the summons last fall.

And I sent discovery requests.

 

 

 

Here is the Plaintiffs Memorandum in support of Plaintiff's motion for summary Judgement:

 

 

 

Pursuat to rules 7 and 56 of the Utah Rules of Civil Procedure...moves for summary judgement

Plantiffs account balance 1200

Interest 400

 

The motion is supported by the memorandum of points, authorities and affidavits within.

Moves the court pursuant to rule 73 of Utah rules of civil procedure for an order augmenting the judgment in the amount of reasonable costs and attorney's fees expended in collecting said Judgement..

 

Declatation in support of motion

1. November 2013 Plaintiff sent discovery

2. Said discovery instructed defendant to respond to requests for admissions within 28 days or the admissions will be deemed admitted.

3. However, defendant has failed to respond to said requests for admissions and the time to do so has now expired.

 

Memorandum in support of plaintiffs motion for summary judgment

Statement of undisputed material facts:

1. november 2013 plaintiff sent discovery to defendant.

2. Said discovery instructed defendant to respond within 28 days

3. However defendant has failed to respond.

4. As such pursuant to rule 36 of the Utah rules of civil procedure the following facts are deemed admitted:

a. defendant entered into a contract with Chase thereby agreeing to pay for the balance on the account

b. defendant used or authorized the use of the account to obtain goods

c. Defendant didn't dispute within 60 day of writing any item in the periodic written statements sent regarding this account

d. Defendant failed to make all payments pursuant to the terms of the contract leaving balance 1200 with interest of 400 at the rate of 10%

e. Defendant is indebted to chase bank and its subsequent assignee plantiff for the full current acount balance of 1700

 

Argument

point 1

summary is appropriate in this case

Summary judgment is proper where the pleadings depositions answers to interrogatories and admissions on file together with the affidavits if any show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. URCP rule 56©

A memorandum supporting a motion for summary shall contain a statement of material facts supported by citation to relevant materials such as affidavits or discovery materials.

Additionally when a party ignores requests for admissions they are automatically established as true on the 31st day following service of the request and the trial court doesn't have discretion to unilaterally disregard the admissions. kotter v kotter 2009 UT App 60.

Unanswered or objected to the admissions are conclusively established.

The effects of rule 36 are intentionally harsh and parties who fail to comply with the procedural requirements of rule 36 should not lightly escape the consequences of the rule. Langland v Monarch Motors 952 P.2d 1058, 1061 (UT 1998)

Therefore parties who ignore the requests for admissions do so at their peril. State ex rel. E.R., 2 P.3d 948, 951 (Utah Ct. App 2000)

In the instant case defendant was properly served with the Requests for Admission. Defendant failed to respond by either objecting or denying the requests within the time allowed under rule 36 URCP. As such admissions are deemed admitted.

As a result of said admissions defendant admits to entering into a contract with chase.. Thereafter defendant used or authorized the use of said account to obtain goods...Periodic written statements were sent to defandant. Defendant did not dispute in writting any of the charges or the application of any payments. Defendant then failed to make payments pursuant to the terms of contract. The account was subsequently assigned to plaintiff. Defendants failure to make payment to plaintiff pursuant to the terms of the contract entitles plaintiff to judgment as a matter of law.

 

Point 2

Defendant cannot rest on the allegations of the answer but must file an adequuate response to the motion for summaryjudgment showing that there is a genuine issue for trial.

 

Pursuant to rule 56e of the utah rules of civil procedure when a motion for summary judgement is made and supported as provided in this rule an adverse party may not rest upon the mere allegations or denials in their pleadings but the response by affidavit or as otherwise provided in this rule must set forth specific facts showing that there is a genuine issue for trial. If no response to the motion for summary judgment is filled by the defendant plaintiff is entitled to a summary judgment notwithstanding the addegations or denials set forth in the defendants answer. See Cowen and Co. v Atlas Stock Transfer Co., 695 P.2d 109 Utah 1984; Brigham Truck & Implement Co v Fridal, 746 P.2d 1171, 1173 utah 1987

 

Having filed a motion for summary judgment supported and accompanied by a memorandum of points and authorities plaintiff is entitled to a summary judgment as a matter of law if defendant fails to provide an adequate response. The defendant cannot rest upon the mere allegations or denials found in the pleadings but must file a response by affidavits or otherwise provided for in rule 56 of the utah rules of civil procedure. Further said response must set forth specific facts showing that there is a genuine issue for trial.

They tried this crap with me.  I copied it and wrote my response and pleaded with the Judge to not penalize me because I'm just a homemaker trying to do it right, not knowing all the legal terms, etc, and they are a huge law firm with trained and experienced lawyers just waiting for me to mess up.  I asked for more time to educate myself in law....*smiles*.  It worked. The Judge accepted everything ... mainly because I just sent it anyway, I think.  I just did it.  So just do it now as fast as you can.  Hand-deliver to courthouse if you can and .... beg.  

 

I hate JDC!!!!!

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