How to Conduct Discovery in a Collections Lawsuit

[danpride51]

Hello adjusterjack,

Thank you again for all of the assistance that you have provided. Due to my lack of knowledge of the request for production of documents process, the request was delivered to the opposing attorney's office via certified mail 12 calendar days prior to the discovery deadline. Today is the deadline date that I placed on the request but we haven't received a response from the attorney and our trial date is on 11 December. Even though they did not receive the full 30 day window, can we still inform the judge that they failed to respond to the request during the trial? Do you think the opposing attorney will use this as an excuse as to why they didn't respond?

I know that my wife is going to have a tough time defending herself for this civil case. It has been over 3 years since she moved out of the apartment in question and unfortunately, she shredded all of the documents related to living in the apartment a few months prior to being served. Two of the main documents that we were hoping to receive were the move-in condition report and the move-out inspection report that she completed while doing a walkthrough with the manager of the complex. If the damages were not discovered during the move-out inspection (i.e. carpet padding) and the manager signed the inspection report stating that the apartment was in good condition, would this be an effective defense? Another issue that doesn't make sense is the fact that the manager of the apartment complex never called my wife to inform her of the damages after she moved out. Her phone number is still the same as when she moved into the apartment, she was active duty military when she moved in and they had her supervisor's information, and when she called their office after being served, an employee told her she only owed $8.

With these factors in mind, how do think we will do at the trial next week?

[adjusterjack]

Due to my lack of knowledge of the request for production of documents process, the request was delivered to the opposing attorney's office via certified mail 12 calendar days prior to the discovery deadline. Today is the deadline date that I placed on the request but we haven't received a response from the attorney and our trial date is on 11 December.

Usually one would file a Motion to Compel Production but with the trial coming up next Friday I'm not sure it would do any good.

Even though they did not receive the full 30 day window, can we still inform the judge that they failed to respond to the request during the trial?

You could but I doubt it would do any good.

Do you think the opposing attorney will use this as an excuse as to why they didn't respond?

Possibly, but I think the issue of discovery will be moot at that point since the judge is likely to want to expedite the matter for such a small amount and is likely to allow the plaintiff to present his evidence.

The trouble with representing yourself in district court is that you are expected to follow all the procedural rules just like the plaintiff's attorney follows them. Judges might cut pro se defendants a little slack on minor items but not a lot.

I know that my wife is going to have a tough time defending herself for this civil case. It has been over 3 years since she moved out of the apartment in question and unfortunately, she shredded all of the documents related to living in the apartment a few months prior to being served. Two of the main documents that we were hoping to receive were the move-in condition report and the move-out inspection report that she completed while doing a walkthrough with the manager of the complex. If the damages were not discovered during the move-out inspection (i.e. carpet padding) and the manager signed the inspection report stating that the apartment was in good condition, would this be an effective defense?

Yes, it would. Unfortunately, you can bet that the plaintiff will only present documents and evidence that work in his favor. If your wife alleges that documents exists that work in her favor and she can't produce them, then the plaintiff's evidence will be given more weight than her unproven testimony.

Another issue that doesn't make sense is the fact that the manager of the apartment complex never called my wife to inform her of the damages after she moved out. Her phone number is still the same as when she moved into the apartment, she was active duty military when she moved in and they had her supervisor's information, and when she called their office after being served, an employee told her she only owed $8.

I noted earlier that failure to comply with the security deposit law could give rise to a counterclaim or defense, but the court will expect her to have presented that in accordance with the rules of civil procedure. She can certainly bring it up in court but might get shot down on a technicality.

It also occurs to me that she could raise the defense of "laches." Read the following:

http://lawpendium.com/Wiki/Utah_Affi...efense:_Laches

Unfortunately, "affirmative defenses" must be raised in the answer to the complaint. She can certainly raise it at trial but, again, the court could shoot it down due to improper procedure and, at that court level "I didn't know the procedure" won't go over well.

With these factors in mind, how do think we will do at the trial next week?

I don't have to be a pre-cog in a milk bath to see that the odds favor the plaintiff.

By the way, there is no "we" here. This is your wife's case. You'll be allowed to sit there in court but you will not be allowed to speak in her behalf as she cannot be represented by a non-lawyer at that court level.

If you say that you have testimony as a witness a smart lawyer will have you sent out of the courtroom until you are called as a witness.

You may have to resign yourself to sitting there quietly while your wife does her best to handle it on her own.

[danpride51]

Thank you again for the quick response. Will I be able to sit with her during the trial or will I have to stay in the back of the courtroom?

[adjusterjack]

Thank you again for the quick response. Will I be able to sit with her during the trial or will I have to stay in the back of the courtroom?

There are likely to be two chairs at the defendant's table so feel free to sit there with her. It's possible that the judge or the opposition will ask you to identify yourself and your purpose. Best answer you can give is "moral support" and leave it at that.

Did you look at the attorney fee provision in the lease?

Please quote it word for word for me.

[danpride51]

In regards to the attorney provision, the lease states the following:

"To enforce any breach or in any lawsuit involving statutory or contractual obligations of Owner or Resident, the non-defaulting party shall be entitled to recover costs of collections, attorney's fees, court costs, and all other costs from the defaulting party regardless of whether the matter is litigated or not. All amounts past due and/or in any lawsuit the entire judgement shall bear interest from the due date at the rate of 24% per annum compounded daily until paid. Any clause declared invalid by law shall not invalidate the remainder of this agreement. In the event resident brings claim against owner or its agents with a state or federal agency, owner shall be entitled to recover as against resident any attorney fees and/or costs and damages for its time (including an hourly rate for owner or its agent's time) if the agency fails to make a finding against owner. This agreement or its addendums is assigned to a licensed collection agency or attorney, a collection fee of 40% of the debt/obligation assigned shall be added to the amount owed pursuant to the terms hereof and as allowed by law."

As I stated in a previous post, my wife was active duty when she rented the apartment and remained on active duty for another year and 8 months after she moved out. She had to terminate the lease due to deployment orders and gave the appropriate notice as described in the military clause in the agreement. In the above paragraph, it states that the owner can add interest and a collections fee to the amount owed. Is this a violation of the SCRA as described in the paragraph below?

(§523. Fines and penalties under contracts
(a) Prohibition of penalties
When an action for compliance with the terms of a contract is stayed pursuant to this Act [sections
501 to 515 and 516 to 597b of this Appendix], a penalty shall not accrue for failure to comply with
the terms of the contract during the period of the stay.
(b) Reduction or waiver of fines or penalties
If a servicemember fails to perform an obligation arising under a contract and a penalty is incurred
arising from that nonperformance, a court may reduce or waive the fine or penalty if—
(1) the servicemember was in military service at the time the fine or penalty was incurred; and
(2) the ability of the servicemember to perform the obligation was materially affected by such
military service.
(Oct. 17, 1940, ch. 888, title II, §203, as added Pub. L. 108–189, §1, Dec. 19, 2003, 117 Stat. 2843.

Once again, I truly appreciate the advice/recommendations that you have provided as the JAG on base hasn't been able to provide any useful information as they do not know Utah law.

Daniel

[adjusterjack]

Make sure she brings copies of all her military papers to court and print out that section of the SSCRA.

Considering the real risk that a judgment could be for many thousands of dollars instead of the $800 something, it would be a good idea to consult an attorney or make some sort of cash settlement agreement to get them to dismiss the case to avoid court. A lawyer's fee for just that one day could be $1000 added to everything else.

Beyond that I can only wish her luck in handling this next week.

[danpride51]

One last question,

Will Utah Rule 73 apply and limit the amount of the request when the plaintiff asks for attorney's fees?

Rule 73. Attorney fees.

(a) When attorney fees are authorized by contract or by law, a request for attorney fees shall be supported by affidavit or testimony unless the party claims attorney fees in accordance with the schedule in subsection (d) or in accordance with Utah Code Section 75-3-718 and no objection to the fee has been made.

(b) An affidavit supporting a request for or augmentation of attorney fees shall set forth:

(b)(1) the basis for the award;

(b)(2) a reasonably detailed description of the time spent and work performed, including for each item of work the name, position (such as attorney, paralegal, administrative assistant, etc.) and hourly rate of the persons who performed the work;

(b)(3) factors showing the reasonableness of the fees;

(b)(4) the amount of attorney fees previously awarded; and

(b)(5) if the affidavit is in support of attorney fees for services rendered to an assignee or a debt collector, the terms of any agreement for sharing the fee and a statement that the attorney is not sharing the fee or any portion thereof in violation of Rule of Professional Conduct 5.4.

(c) If a party requests attorney fees in accordance with the schedule in subsection (d), the party's complaint shall state the basis for attorney fees, state the amount of attorney fees allowed by the schedule, cite the law or attach a copy of the contract authorizing the award, and, if the attorney fees are for services rendered to an assignee or a debt collector, a statement that the attorney will not share the fee or any portion thereof in violation of Rule of Professional Conduct 5.4.

(d) Attorney fees awarded under the schedule may be augmented only for considerable additional efforts in collecting or defending the judgment and only after further order of the court.

Amount of Damages, Exclusive of Costs, Attorney Fees and Post-Judgment Interest, Between


and:


Attorney Fees Allowed

0.00 to 1,500.00 allowed 250.00

1,500.01 to 2,000.00 allowed 325.00

Thank you again.

Daniel

[adjusterjack]

What that tells me is that the plaintiff can be awarded attorney fees easily if asking only for the scheduled amount but would have to justify and document any amounts greater than that.

[danpride51]

Hello Adjusterjack,

Well, we ended up losing the case but were able to get some of the charges reduced. The plaintiff's attorney ended up bringing all of the documents that we had been requesting for the past few months but the judge did not consider his lack of cooperation as being a factor as to why the matter could not be settled out of court. The judge allowed the plaintiff to recover attorney's fees and must submit an affidavit outlining the charges. The attorney stated that he must submit this to the court within 30 days but beyond that, what happens next? Can we dispute the amounts being claimed? Can the judge reduce the claimed amount? How long will we have to pay the full amount in order to settle the debt? As always, thank you for all of the information that you have provided.

Daniel

[adjusterjack]

The attorney stated that he must submit this to the court within 30 days but beyond that, what happens next? Can we dispute the amounts being claimed?

My guess is that the plaintiff's attorney will submit the attorney fee affidavit in the form of a motion and serve you a copy when it is filed with the court.

Like any other motion, you have the option of responding to it with your grounds as to why it shouldn't be granted or why it should be adjusted downward.

You'll have to see what the affidavit says before you can even begin to figure out a response to it.

Can the judge reduce the claimed amount?

Sure. The judge can reduce the claimed amount if he feels there are sufficient grounds to do so.

How long will we have to pay the full amount in order to settle the debt?

Once the final judgment is entered into the record (which would include any awarded costs and fees) your wife would owe the entire amount immediately.

However, enforcement of the judgment cannot begin until the deadline for an appeal passes. The deadline to file a notice of appeal from a district court is 30 days.

If she hasn't paid the entire amount within the 30 days, the judgment creditor is free to immediately file for wage garnishment or bank account levy. If the judgment creditor doesn't have the information necessary for doing that it can engage your wife in a "debtor examination" where she would be compelled to reveal her assets and sources of income under oath.

Keep in mind that the plaintiff's costs and attorney fees (and post-judgment interest) continue to accrue for enforcement of the judgment so you would be wise to start scraping up the money and be prepared to pay the entire amount of the judgment the day you are notified of the final amount of the award.