Utah - Midland by Johnson Mark LLC - denied Motion for Summary Judgment

[MillaRichards]

Today was a hearing for the Plaintiff’s Motion for Summary Judgment where Plaintiff’s attorneys asked Judge to deny the Motion right at the start 

I feel like I should file Motion to Dismiss the case 

Need advice 

[MillaRichards]

1. Midland sent me a Motion for Summary Judgment and Certificate that this was an exact copy of what they filed on April 27, 2021, but they didn't actually file! 

2. Motion for Summary Judgment in April or May of 2021 does not exist in a court file.

3. I didn't know that they didn't fill and submitted a reply memorandum in May 2021.

4. I guess they read memorandum and decided to adjust their defense. 

5. I sent Plaintiff’s attorneys a note in June 2021 that I will be out of the country the entire month of July 2021.

6. guess when they decided to file a motion for summary judgment? Correct. In the beginning of July 2021, so by the time I come back, the time limit to Respond had passed and they can get judgment by default. 

7. I had 24 year old daughter watching my mail and she had been instructed to watch for any words Lawyer,  law firm, attorney,  court, in my mail and call me immediately. So she did. 

8. I emailed a court, explaining that I asked attorneys of Plaintiff for continuance but they filed motion for summary judgment anyways and I am out of the country. 

9. They recommended motion to extend time to respond. 

10. I bought a cheap printer, typed in motion to extend time to respond, Certificate of service, request to submit for decision and order on my android, printed, signed, scanned by my android and emailed it to court. I printed a copy for a Plaintiff and mailed it to USA by trackable mail service. 

11. I waited for response from the court and in two days emailed the court clerk to see if they submitted to the judge.  Court clerk told me they will wait for a Plaintiff’s response!!! This where I was glad I've read that motion to extend time to respond is a Motion which does not require an opposing side opinion. I had to get a masking IP address service to pull Utah code of Civil Procedure to show a clerk exact article in the code which said that they need to submit it to the judge immediately without waiting for an opposing side.

12. I received 30 days extention to Respond.

13. Upon return to states I wrote a reply memorandum opposing motion for Summary Judgment and submitted exhibits and my sworn affidavite which I had notarized. 

14. Plaintiff did not respond to my memorandum. 

15. Plaintiff requested to submit for Decision in September 2021.

16. Today, January 3, 2022 was a hearing online for the Motion for Summary Judgment which lasted two minutes.

17. Plaintiff’s attorneys said that upon reviewing Defendant's memorandum, they agree that there is a material fact and would ask court to deny their own motion. 

18. My court hearing participation consisted of me stating my name in the beginning and me saying thank you and goodbye to the judge.

Ohhh. Forgot to add. Before the hearing,  on December 31, 2021, I submitted to the court Attachment to my memorandum opposing,  consisting of two exhibits.

It was 1) copy of the first motion for summary judgment which they certified that they filed, when in fact they didn't.  So I wrote in my Attachment that from Defendant’s point of view it is a second summary judgment filed by Plaintiff in this case. And 2) a copy of the case I said I will use in my legal arguments which was a case from 4th district utah court Northstar vs Haring 

Where Defendant won because contract was not legal 

[MillaRichards]

Ok. Today I've got a letter from Plaintiff’s attorneys with motion to Dismiss with prejudice 

[Jimmy E]

Perhaps I need to read your thread a couple of more times, but my initial guess would be Midland probably committed one or more FDCPA violations and didn't want to take a chance of a countersuit.  I don't know that I've ever seen a JDB voluntarily dismiss its own case WITH prejudice before!  Insofar as to whatever they alleged you owe, you've WON!

Jimmy

[MillaRichards]

It would be awesome to know what made them afraid... for a future reference...

My feeling was that they waited until the last second to see if I would show up for a Summary Judgment hearing. Then they looked at me for another couple minutes while we were waiting for a judge, I pretended to be busy with rereading an affidavite they submitted with Summary Judgment... and then they asked for their motion to be denied. I know that it is more favorable for them to withdraw it before the hearing,  instead of wasting court's time ... but I guess they hoped that I wouldn't show up and there it is... default judgment... I was ready for a battle... so when they asked an apology for wasted time and asked their motion to be denied... I was like, what am I going to do with all this adrenaline for the rest of the day?

[BV80]

I doubt they were afraid of anything.  If they really believed you had possible FDCPA violations to claim, they wouldn’t have dismissed with prejudice.  The dismissal would have been without prejudice so that they would have a countersuit if you filed suit against them.  

[Clydesmom]

2 hours ago, MillaRichards said:

It would be awesome to know what made them afraid... for a future reference...

My feeling was that they waited until the last second to see if I would show up for a Summary Judgment hearing. Then they looked at me for another couple minutes while we were waiting for a judge, I pretended to be busy with rereading an affidavite they submitted with Summary Judgment... and then they asked for their motion to be denied. I know that it is more favorable for them to withdraw it before the hearing,  instead of wasting court's time ... but I guess they hoped that I wouldn't show up and there it is... default judgment... I was ready for a battle... so when they asked an apology for wasted time and asked their motion to be denied... I was like, what am I going to do with all this adrenaline for the rest of the day?

Midland and their attorneys very much prefer the easy default judgment.  They are more likely to dismiss if they feel they will have a fight on their hands.  Losing what ever sum they were suing you for is factored in to their business model.  They are not prepared to prove their cases.  Dismissal keeps them from having to do that.  That is why consumers are encouraged to defend themselves instead of giving up.  Better to go down swinging than not try at all.

[MillaRichards]

5 hours ago, Clydesmom said:

Midland and their attorneys very much prefer the easy default judgment.  They are more likely to dismiss if they feel they will have a fight on their hands.  Losing what ever sum they were suing you for is factored in to their business model.  They are not prepared to prove their cases.  Dismissal keeps them from having to do that.  That is why consumers are encouraged to defend themselves instead of giving up.  Better to go down swinging than not try at all.

Good to know. I am sure I will be dealing with them again!

[MillaRichards]

5 hours ago, BV80 said:

I doubt they were afraid of anything.  If they really believed you had possible FDCPA violations to claim, they wouldn’t have dismissed with prejudice.  The dismissal would have been without prejudice so that they would have a countersuit if you filed suit against them.  

I didn't threaten FDCPA violations because I didn't research it yet... I know... irresponsible 

They wrote summons

I responded. 

They asked me for admissions TWICE

Each time they were sending Motions or requests for admission they delayed mail, so I had been receiving it on due day or almost on due day... their attorneys and I share the same zip code! 

Each time when responding I was quoting Utah Code, utah rules of Civil Procedure where unrepresented party has 7 additional days to respond if notified by mail. 

I sent them a notice that I will be out of country for a month, saved a  copy of letter and proof of delivery, they used this time to file summary judgment. Why do they have to cheat so annoyingly? Like exaggerating their own witness' affidavite in the Motion.

For example, she said "read and assumed", they write, witness proved, some things they said in the Motion she stated,  but Affidavit doesn't have anything about that fact. So I went several times with a pencil over the Affidavit and Motion and pointed out their exaggeration... 

I don't know. I wish I could know what exactly made them to drop it 

So we all can use it in a future

[Jimmy E]

18 hours ago, BV80 said:

I doubt they were afraid of anything.  If they really believed you had possible FDCPA violations to claim, they wouldn’t have dismissed with prejudice.  The dismissal would have been without prejudice so that they would have a countersuit if you filed suit against them.  

Thanks @BV80.  I'm always eager to learn.  Of course, who really knows why JDBs do what they do, but what's your opinion on why this or any JDB would purposely do this?  Is there perhaps a tax write-off or something?  It just seems so unusual to me -- that's why I ask.

Best,

Jimmy

[BV80]

8 minutes ago, Jimmy E said:

Thanks @BV80.  I'm always eager to learn.  Of course, who really knows why JDBs do what they do, but what's your opinion on why this or any JDB would purposely do this?  Is there perhaps a tax write-off or something?  It just seems so unusual to me -- that's why I ask.

Best,

Jimmy

Business losses and legal expenses are tax deductible.  That’s one reason JDBs don’t try any harder than they do.  Occasionally, there will be an attorney trying to impress his boss or make a name for himself, but most JDB attorneys are lazy.  

[MillaRichards]

Ok, so I just received a Notice of Withdrawal of Motion for Summary Judgment.

Plaintiff (Midland) withdrawing it's motion AFTER I responded to it.

They hurried up to file a motion before they saw that I responded to their Request for Admission. Because I did respond, their Motion for Summary Judgment didn't stand a chance. But they didn't withdraw it, they waited to see if I will oppose and how I will oppose. And when they saw Affidavit and attachments together with memorandum opposing, they knew they will lose, so they withdrew a motion! 

Now, I am going to write tomorrow a reply to the notice to withdraw. 

I hadn't done this one before, but going to say something like, pursuant Rule 41(a) of Utah Rules of Civil Procedure, Plaintiff can't withdraw a Motion after Defendant opposed it without a court order. 

Defendant asks the court to deny or deemed denied the Motion instead and bar Plaintiff from rearranging and filing Motion for Summary Judgment again in this case.

Defendant asks the court to consider a memorandum opposing summary judgment as a stand alone motion and the time to respond to it passed...

Sorry, it is night here in Utah.... 

I guess my brain doesn't work well.

If anyone has any ideas how to use this withdrawal for my benefit, please, advise.

In 2021 midland send me a copy of the motion for summary judgment,  but didn’t file it with the court. I didn't know that they didn't file, and wrote a memorandum opposing, which is not a small feat, with all attachments and Affidavit. Then it was quiet and I was wondering what was happening. And then they filed a Motion for Summary Judgment which was a new and improved and tried to cover loopholes to which I pointed out in my memorandum. 

I contacted the court and learned that first motion for summary judgment was never filed, they just said that they did. 

It was pretty evil. 

Now they filed the motion, waited when I respond,  and then withdrew.

The same company (Midland), and the same lawyers(Johnson Mark) but different case.

Advice? 

[BV80]

5 hours ago, MillaRichards said:

I hadn't done this one before, but going to say something like, pursuant Rule 41(a) of Utah Rules of Civil Procedure, Plaintiff can't withdraw a Motion after Defendant opposed it without a court order. 

 

Have you carefully read Rule 41(a)?  It is dismissal of action, claim, or party.  Withdrawing a motion is not a dismissal.  

 

5 hours ago, MillaRichards said:

Defendant asks the court to deny or deemed denied the Motion instead and bar Plaintiff from rearranging and filing Motion for Summary Judgment again in this case.

 

You can try this.  If I were in your shoes, I would.

The big issue is supporting what you’re asking the court to do.  Is there a rule or court precedent to support denying a withdrawn motion?   How are you prejudiced by a failure to have the withdrawn motion deemed denied?

I would want to see if there’s a rule for withdrawing motions.  Did they file a motion requesting the court’s permission to withdraw their motion?  Did they need to request the court’s permission?

 

[MillaRichards]

Did you think I didn't search for a withdrawal Rule? 

I am completely lost with withdrawals. New area for me. 

I know that most utah rules copy federal. Do you have a Federal rule about withdrawal? When I looked, all I found was about withdrawal a council. 

The way I was going to approach is like this: Plaintiff filed Motion for Summary Judgment based on mistaken assumption that Defendant didn't respond to Request for Admission on January 23, 2024.

Plaintiff had enough time to withdraw the Motion until Defendant filed a Memorandum Opposing the Motion on February 14, 2024. Yet Plaintiff took another 9 days to read, analyze and weigh said Memorandum, and only then filed for withdrawal to avoid Motion to be denied in court, because it will prevent Plaintiff to file a second Summary Judgment Motion after first one had been denied.

I've read somewhere a couple years ago that judges, at least here in Utah, do not like when the party files two Summary Judgment Motions in the same case. This is the reason why they withdraw. They wanted to see if I will lose it because improper response or no response at all. And when they saw it didn't happen, to avoid denial they now 1. See my defense points. 2. Can revise and resubmit.

This is exactly what they did to me in 2021. They read my arguments and found a person to give an Affidavit and present their pieces of paper as evidence. They clarified their language. Of course, I picked the Affidavit piece by piece in my new Memorandum but it was like I lost a chess game, you know?

And I feel that if I do not try to have this motion dismissed with prejudice, I will lose another chess game

Rule 41 is talking about dismissal an action voluntary without court order if opposing didn't respond or before opposing side responded. If opposing side responded, the court must make a decision at pretty much its discretion.

[MillaRichards]

They didn't ask for permission or court order. Just stated it. 

[MillaRichards]

This is what I found 

[MillaRichards]

I think I will try to pull out cases cited in this motion

[MillaRichards]

What about rule 15

If this is the one, it doesn't help me at all

[MillaRichards]

[MillaRichards]

What do you think? 

[BV80]

@MillaRichards

I cannot find a withdrawal rule for motions.

I’m sorry, but I don’t believe the rules and docs you provided will work.

The “Defendants’ Reply in Support of Motion to Withdraw…” is from the U.S. District Court for the District of Columbia. Along with referencing the federal rules of civil procedure, it cites federal court case law from other jurisdictions that would not be precedent in Utah state courts.  Of course, you could use them, but I don’t know how much it would convince the judge.   

Rule 15 from the Utah state rules is for pleadings.  A motion is not a pleading.

The Notice of Withdrawal is from the United States Bankruptcy rules.  That would definitely have no bearing in your court.

In regard to the last one, Utah rules of civil procedure have a Rule 41.  But it’s a dismissal of actions.  “Action” is usually the lawsuit or claim, not a motion.  I guess you could try to use it.

[MillaRichards]

I noticed that every single time a side files for withdrawal, they say, by advise of my attorney.

Nobody sites any statutes or regulations.

Truly a precedent law.

I need to find utah cases with withdrawal of Summary Judgment 

[MillaRichards]

I will file without mentioning rules but hopefully after finding a precedent. 

If I file, there is a chance of getting what I ask and if my demand is denied, then I am at exactly same position where I was. There are no negative consequences for me. 

I just think they should pay for their evildoing

 

[BV80]

56 minutes ago, MillaRichards said:

I will file without mentioning rules but hopefully after finding a precedent. 

If I file, there is a chance of getting what I ask and if my demand is denied, then I am at exactly same position where I was. There are no negative consequences for me. 

I just think they should pay for their evildoing

 

I’ve been sued by debt buyers, so I definitely don’t have fuzzy feelings fo them.  But, try not to take their actions or their attorneys’ actions personally.  Taking it personally or looking at it as “evil” just causes us to become more stressed and angry.  You don’t need to be more stressed and angry. It’s business to them.  They have a business model they follow.  

Most consumers do not bother to answer complaints. Or, if they do, they don’t follow up with anything else.  Attorneys for creditors and debt buyers have multiple lawsuits in the works.  For them, It’s probably expedient to simply have motions ready to be filed because they know most defendants are not going to defend themselves.

The Motion for Summary Judgment in your case could simply have been filed prematurely or by mistake.  It wasn’t because they were trying to do something evil against you.  The fact that the attorney withdrew the motion shows that he knew a mistake had been made.  

Rather than assuming “evil”, I prefer to think of them as incompetent and/or lazy.  Considering how many defendants fail to answer complaints, the attorneys don’t need to be evil.  It’s more likely that they’re so used to getting easy default judgments, they’ve become lazy.

[MillaRichards]

Ok. Well. We have only one debt lawyers company in our city. And if there is a debt buyer, they hire these attorneys. So, if you are due to respond in 14 days, it is a given that in the same zip code their motion will take 10 days to be delivered. If you inform them that you are going on vacation and ask to continue, they will file everything they can as soon as you leave and then say that they didn't receive your emails. If their debt verification lacking, they will ignore your requests and then without blinking say in court that they hadn't received it. I know it is not because they personally do not like me. It is because they just lie and play dirty with everyone 

I know they filed it by mistake. And if they would be normal people, they would just withdraw after they learned of it. But they waited a month. To see how it played. Last time they said they filed and sent me a summary motion with certificate that this is a true copy of what they filed in court. The only way how I learned that they didn't file is emailing to court clerks months after I respond. They read my response. They closed all gaps I pointed in my memorandum. And filed again like nothing happened. If you fight these scumbags you probably know how much time and research one memorandum opposing summary judgment takes. If you are not attorney, of course. Plus, English is not even my second, maybe my third language... so, they play games, take my time and energy and come up ahead and I need to find new arguments, because by using their technique they learn my defenses and then remaster their summary judgment motion. I had been lucky so far, that their remastered and renewed motion still always have holes. But what if next time it doesn't? I have three(!) cases with the same attorneys in court right now. 

Good thing is that when you get their first summary judgment motion,  there is no need to read it because only names, numbers and dates are changed. The rest is the same. 

Anyway. I am far from thinking that they give me 5 minutes of thought or sit and plan something evil. I am saying that this is their deceptive nature and the way they do business that makes me want to make sure I don't give them an upper hand, just like I would not get one unless proactively search for it.

If they would be respectful people, I would let things go. But they lie, cheat, lie again, they falsify documents, once in the court I even showed a judge our emails back and forth and they still point blank told a judge that it must have been somehow created by Defendant. 

So, yes, I will go write that reply and submit and will see what this new judge we have will decide. If not in my favor, at least I tried.