ready2fight

UTAH complaint from JDB, possible SOL- need opinion

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I was served a complaint from Midland (utah)

 

They listed my maiden name instead of my legal name ( not that it means anything but their lack of detail)

 

I had no prior contact with them prior to summons.

 

verified with court on day 13 that they did file, and have been trying to figure out a response since.

 

they state

 

1) defendant resides in county

2) defendant entered into a contract with capital one account ending in ####, which contract was subsequently assigned to plantiff

3) defendent has defaulted on obligation under contract

4) the amount charge off on the account was $1,xxx.xx There is now due and owing to the pantiff the amount $1xxx.xx  In addition, plantiff is entitled to recover interest from the date of judgement at legal rate

5) further equity requires defendent to pay the value of the benefits received

 

DEMAND

A damages to be paid in the amount of $1,xxx.xx less payments made

B interest from the date of judgement at legal rate.

C for costs of court both pre and post judgement

D any other relief as the court deems equitable.

 

 

That is all they sent. a cover letter with the court address and explination that i have 20 days to respond. I only have 3 days left,needing something out today.

 

i do not have any records of this account to verify. my credit report does reflect a charge off from capital one, no amount given, opened in 2007 and last UPDATED in 2009. the last 4 digits on account are not listed so it does not confirm it is the account midland is referring to. no idea when last payment was, but my bank account records that i currently have don't show any paayment for at least 5 1/2 years. would have to really dig to go longer, but my assumption is if i had made a payment within 6 year mark, it is by a matter of possibly weeks, if not over the 6 years.

 

Utah law is 4 years SOL on open-ended accounts which should include credit cards. utah code 78B-2-307

 

Some judges opt to validate the 6 year statute code 78B-2-309  citing that it is considered a written contract, and gets 6 years.

 

there is other informarion that it shouldn't be a SOL of 6 years, but i have read all jdb in the state fight the 6 years and despite legal definitions by the state, judges often side with 6 years so it seems to be luck of the draw over letter of law.

 

So my main concern in my general denial is wht to put in my affirmitive defenses? I know i am cleared for the 4 year, and is very possible i am even cleared for the 6 year, but it would take time i no longer have to find out for sure.

 

Should I list SOL in my affirmative defenses now, or should i wait for discovery? Best template for response appreciated.

 

if i wait for discovery, how should i word my response now to allow that to be brought up during discovery? Some say if you dont bring it up in your response, then you cant bring it up later....

 

Also, anything else you would list in affirmarive defences?

 

Would love input ASAP as i have about 24 hours Thank you in advance! Only idea i have so far is the general denial to paragraph items 2-5

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any others you would list in the affirmarive defenses? They did not attach any proof or any other documents,etc.  they just have some random amount as charge off and say i owe it, the charge off amount was not listed on my credit report by OC. the partialnaccount number is not verified, if it is in regards to the account listed as opened in 2007, then the credit limit is the only amount listed on my credit report which is drastically lower than the charge off amount midland is claiming.. they are claiming they were assigned to the account, but there is nothing provided to show that. not a single date was provided in the complaint....no charge off date, account assignment date, date of default, etc.... any other defences come tomine? if so,how would you word them? many havementioned statute of fraud or something like that.. but i have read somuch in the last few days that it is all blending together.... not sure what would apply here....

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seems i should some how question their standing after reading the feed Standing when dealing with JDB ... is my response the appropriate time to do so? do i wait for discovery? how would you word that? Sorry so many quesrions... just trying not to sink this with my initial response.

 

also... what would your order of operations be?

 

respond, wait, discovery, motion to dismiss, counter claim, etc.... i need my game plan today... having trouble figuring out when to do what...

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any others you would list in the affirmarive defenses? They did not attach any proof or any other documents,etc.  they just have some random amount as charge off and say i owe it, the charge off amount was not listed on my credit report by OC. the partialnaccount number is not verified, if it is in regards to the account listed as opened in 2007, then the credit limit is the only amount listed on my credit report which is drastically lower than the charge off amount midland is claiming.. they are claiming they were assigned to the account, but there is nothing provided to show that. not a single date was provided in the complaint....no charge off date, account assignment date, date of default, etc.... any other defences come tomine? if so,how would you word them? many havementioned statute of fraud or something like that.. but i have read somuch in the last few days that it is all blending together.... not sure what would apply here....

I would expect to see affirmative defenses filed with an answer not a motion to dismiss. AFAIK an answer would not make sense to file if one was to file a pre-answer MTD attempting to have the claims dismissed before having to answer.

 

Often one can get a free consult with an attorney. I would be interested in speaking with one or two competent winning consumer attorneys with subject matter experience on defending collection lawsuits. They should also be able to provide some good insights to the court's current treatment of the 4 year vs. 6 year SOL the OP mentions.

 

http://www.utcourts.gov/resources/rules/urcp/urcp008.html lists some affirmative defenses.

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@ready2fight

 

I recently have been sued in UT as well.  For arguments sake, I would assume the UT trial courts have set a precedent for the 6 year SOL.  As far as affirmative defenses, I listed almost all from this post.  My reasoning is, in the complaint the JDB had zero supporting evidence.  As I also DENIED specifically every point from the complaint.   Make sure you at least respond within the allowed time frame.

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@ready2fight

 

If you have proof that the account is outside the SOL, you could file a Motion to Dismiss, if you choose.  If you don't have that proof, I'd claim it as an affirmative defense, and see what evidence they come up with during discovery.

 

Have you checked your credit report to see if the OC is reporting?  If it is, see if they provide a date of last payment. (not to be confused with a date of first delinquency)

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If the UT case law/precedent on SOL is unclear/non-existent it is likely a better course to assume the longer SOL applies when pursuing ones defense.

 

If my competent winning consumer attorney believes that they can successfully argue for the claims being filed after the SOL has run that might open the door for possible FDCPA claims (which may require me to consult with a different attorney that wins FDCPA claims) that may provide leverage that I could use to make the suit go away.

 

I would probably want to consider whether it made sense to possibly consult with both FDCPA and alleged debt defense winning attorneys.

 

Of course a timely response is the best course whether an answer or pre-answer motion is filed. IMO

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@ready2fight

 

If you have proof that the account is outside the SOL, you could file a Motion to Dismiss, if you choose.  If you don't have that proof, I'd claim it as an affirmative defense, and see what evidence they come up with during discovery.

 

Have you checked your credit report to see if the OC is reporting?  If it is, see if they provide a date of last payment. (not to be confused with a date of first delinquency)

the oc is still on my credit, but no data showing last payment or date of last default, etc.  it only shows listed as charge off,  terms as revolving,  and that they last updated the account 7/2009  and the credit limit amount. 

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@ready2fight

 

If you can't determine the date of last payment, you may have to wait and go through discovery.  If a later point, you find out that the account is time-barred, you could file your own motion for summary judgment.  But you have to claim the SOL as an affirmative defense in your answer to the complaint.

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if i state that debt is outside SOL in the affirmarive defense, do i have to site the specific utah code as to why? The 4/ 6 year SOL are different codes. Though i know for fact i would be fine in the 4 year code, and i have a good chance of being outside the SOL on the 6 year code... do i want/need to be specific to code? i'd hate to state the 6 year code and be wrong, or have a judge who would have considered the 4 year code.....and i would hate to state the 4 year code and that strike a nerve with the court... saying it falls under the 6 year and not even addressing the actual date because i list the "wrong" code....

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If I was going to file an answer with affirmative defenses on my own, prior to consulting with a winning attorney, I would probably start by reading Rule 8 that I previously posted in post #5. I would want to be sure to do my own due diligence to see if any court/local rules modified/supplemented those rules and whether those rules were even applicable in my situation.

 

In Arizona Rule 26.1 disclosure is a bit more involved than most other states and that is probably where I/Arizonans might need to put in more details on statutes supporting my/our defenses.

 

Rule 8. General rules of pleadings.
(
c) Affirmative defenses. An affirmative defense shall contain a short and plain: (1) statement of the affirmative defense; and (2) a demand for relief. A party shall set forth affirmatively in a responsive pleading accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. If a party mistakenly designates a defense as a counterclaim or a counterclaim as a defense, the court, on terms, may treat the pleadings as if the defense or counterclaim had been properly designated.

 

If similarly situated (and being in AZ) I would likely be considering using statute of frauds, statue of limitations, laches, and arbitration (if in the agreement and I was considering going down the path of binding contractual arbitration) for my affirmative defenses. In an AZ case a DC attorney cited out of state law to argue against a SoF affirmative defense. Other states may have their own case law making the SoF defense a non-issue for opposing counsel, assuming they are competent to find that case law.

 

Some more affirmative defense ideas can be found here: http://www.creditinfocenter.com/legal/affirmative-defenses.shtml Use of specific affirmative defenses and possible waiver of defenses not plead likely varies between jurisdictions.

 

Some info on answering a UT complaint: https://www.utcourts.gov/howto/answer/

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Hi, would like to get an update on what's happening with your case. Did you mention who the attorney is? In my opinion, I would file an amended Answer asap and use Utah's credit-consumer friendly Statute of Frauds. All credit agreements in Utah remain "void" unless and until the movant can prove otherwise. They have to lay the proper foundation to show/prove that you breached an enforceable credit agreement or the alleged credit agreement remains "void". Look into it and we can discuss.

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