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COA "vacates" atty fees: Midland sneaks-in CCA 783 days post-suit!


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JDB atty Johnson Mark is forced to introduce the CCA after 783 days so they can get their "unclean hands" on fees...they tout "Account" in law suits without providing a valid CCA despite the action having to be "within" the SOF...by so doing, their attorney fee award was "vacated"! Good job InProSe litigant!!!!!

 

 

THE UTAH COURT OF APPEALS                                                                               MIDLAND FUNDING LLC,

Plaintiff and Appellee,v.           

DANIEL SOTOLONGO,(In Pro Se initially mak'nm spend tons of $)

Defendant, Third-party Plaintiff, and Appellant,

v.

JOHNSON MARK, LLC; BRAD J. CLARK; JACOB H.B. FRANKLIN; AND

WILLIAM A. MARK,

Third-party Defendants and Appellees.

Opinion

No. 20120381-CA

Filed April 24, 2014

Brian W. Steffensen, Attorney for Appellant

S. Grace Acosta and Jonathan H. Rupp, Attorneys

for Appellees Johnson Mark, LLC; Brad J. Clark; (dirt-bag JDB atty)

Jacob H.B. Franklin; and William A. Mark

Christopher J. Rogers,(dirt-bag wrote SB 281, just "withdrew" its Motion from my case!) Attorney for Appellee

Midland Funding LLC

 

¶1 Daniel Sotolongo appeals from the district court’s ruling

granting summary judgment in favor of Midland Funding LLC

(Midland) and its attorneys on a breach of contract claim brought

Midland Funding LLC v. Sotolongo

(1. Sotolongo incorrectly identified the plaintiff as “Portfolio” in his

letter.)

by Midland and multiple consumer-law claims brought by

Sotolongo. We affirm in part, vacate in part, and remand to the

district court.

 

BACKGROUND

 

¶2 This case arises from Midland’s attempts to collect a credit

card debt. On September 22, 2010, Midland filed a debt-collection  (without valid CCA)

complaint against Sotolongo alleging breach of a credit contract

and seeking the amount owed on the credit account plus interest

and attorney fees as provided for in the contract. By way of

response, on October 14, Sotolongo filed a letter pro se with the

district court. In that letter, Sotolongo denied that he owed the debt

and made various demands on Midland for information relating to

the credit account.1

...

IV. The District Court Erred by Awarding Attorney Fees to

Midland Without Allowing Sotolongo Time to Object. (typical JDB tactic)

 

¶34 Sotolongo next argues that the district court erred in

awarding attorney fees to Midland without first allowing

Sotolongo an opportunity to object to the basis for and amount of

attorney fees awarded. Midland served its affidavit of attorney fees  (with a mysterious CCA)

on Sotolongo by mail on Friday, April 6, 2012. The affidavit was

filed with the court on Monday, April 9, and the district court

entered judgment in favor of Midland on April 11. Sotolongo

asserts that because he was entitled to at least five business days to

file an objection to a proposed order under rule 7 of the Utah Rules

of Civil Procedure

 

6. (...continued)

the district court did not abuse its discretion in denying Sotolongo’s

motion and should decline to disturb the attorney fee award on

that basis. However, an order denying relief under rule 60( B) is a

separate appealable order from the underlying judgment. Amica

Mut. Ins. Co. v. Schettler, 768 P.2d 950, 970 (Utah Ct. App. 1989).

Sotolongo timely appealed from the April 11, 2012 judgment and

has framed his challenge as an attack on that judgment.

Accordingly, we do not review the district court’s denial of

Sotolongo’s rule 60( B) motion but review the underlying judgment

under the standards set forth above. See supra ¶¶ 8–10.

 

¶38 This case is unlike Henshaw in that the order entered by the

district court here was not merely a memorialization of a

previously entered ruling, but a decision on Midland’s entitlement

to attorney fees and the amount thereof. “Generally, attorney fees

are awarded only when authorized by contract or by statute.”

Bilanzich v. Lonetti, 2007 UT 26, ¶ 11, 160 P.3d 1041. While the

district court’s summary judgment ruling stated that Midland was

entitled to attorney fees, it did not indicate on what basis the court

had made that determination, and the parties had not addressed

the issue in their summary judgment memoranda. Indeed, the

contract that Midland produced as the basis for an award of

attorney fees was not placed before the district court until Midland

submitted its attorney-fees affidavit. And the district court

awarded attorney fees to Midland, presumably on the basis of that

contract, without allowing Sotolongo an opportunity to challenge

the authenticity of the contract or the scope of the attorney-fees

award authorized by the contract. The district court’s entry of

judgment in favor of Midland only three business days after the

attorney-fees affidavit had been mailed to Sotolongo unreasonably

denied Sotolongo an opportunity to be heard on the issue of

attorney fees. 5 Accordingly, we conclude that the trial court abused

its discretion in awarding attorney fees to Midland without

allowing Sotolongo an opportunity to object.

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