Confession of Judgment

[tedschulze]

Jurisdiction

Utah

Hi can you tell me the difference between the two conflicting Utah laws below.

70C-2-201. Authorization to confess judgment prohibited.
A creditor or its successor in interest may not, directly or indirectly, take or receive from a debtor an obligation that constitutes or contains a cognovit or confession of judgment, warrant of attorney, or other waiver of the right to notice and the opportunity to be heard in the event of suit or process thereon. Enacted by Chapter 159, 1985 General Session

78B-5-205. Judgment by confession authorized.
A judgment by confession may be entered without action, either for money due or to become due or to secure any person against contingent liability on behalf of the defendant, or both, in the manner prescribed by law. The judgment may be entered in any court having jurisdiction for like amounts.
Renumbered and Amended by Chapter 3, 2008 General Session

 

[adjusterjack]

They don't really conflict. You've taken the two sections out of context.

70C is the Utah Consumer Credit Code.

2017 Utah Code :: Title 70C - Utah Consumer Credit Code

Where confession of judgment is prohibited for consumer credit arrangements.

78B is the Judicial Code where confession of judgment is permitted for other types of civil matters.

2017 Utah Code :: Title 78B - Judicial Code :: Chapter 5 - Procedure and Evidence

 

[tedschulze]

Hi Yes I see what you are saying. My case involves a default business loan that comes under
78B-5-205. Judgment by confession authorized. But can I challenge that it violates the USA federal and Utah state Constitution. as far as due process

 

[adjusterjack]

But can I challenge that it violates the USA federal and Utah state Constitution. as far as due process

No. It doesn't violate either.

Utah Constitution - Article I, Section 7. [Due process of law.]
No person shall be deprived of life, liberty or property, without due process of law.

US Constitution - Amendment 5 - Trial and Punishment, Compensation for Takings.
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The "law" gave you the "option" of confessing judgment.

If you did confess judgment you did it by choice and that choice was your due process. You could have declined and gone to trial.

You aren't getting out from under on constitutional grounds.

I present to you three Utah appellate case decisions (out of many) in which confessions of judgment played a part, were routinely validated by the court, and nobody raised constitutional grounds as an attempt to invalidate the confessions of judgment.

Royal Resources v. Gibralter Fin. Corp., 603 P. 2d 793 - Utah: Supreme Court 1979 - Google Scholar

PLEWE CONSTRUCTION CO. v. Franklin National Ins. Co., 360 P. 2d 599 - Utah: Supreme Court 1961 - Google Scholar

Migliore v. Migliore, 186 P. 3d 973 - Utah: Court of Appeals 2008 - Google Scholar

So, if you did confess judgment, why did you do so and under what circumstances?

 

[tedschulze]

Hi thank you for your reply but I think I can challenge the constitutionality of the Confession of Judgment law in Utah in an appellate court. Do you think I will have a chance to win on this issue that will also have the effect of making the Confession of judgment contract void.

The due process clause of the U.S. Constitution, amendment XIV, safeguards each person's right to notice and the opportunity to be heard in court. Generally, judgment may not be rendered against a defendant who has not been duly accorded these rights.

The Fourteenth Amendment to the United States Constitution provides, in relevant part, that:[N]or shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Isbell v. County of Sonoma
Isbell v. County of Sonoma

Trauger v. AJ Spagnol Lumber Co.
Trauger v. AJ Spagnol Lumber Co.

Universal Declaration of Human Rights
Universal Declaration of Human Rights

 

[tedschulze]

I defaulted on a small business SBA signature loan; I am being sued under the name of the LLC business and under my name at the same time. The business has been dissolved 5 years ago and has no assets.
I signed a confession of judgment and the plaintiff filed it in court under the business name and under my name as the defendants after I was unable to pay after making payments for 5 years, depriving me of my due process.
I filed a Motion to set aside Judgment , but was denied. I am now in the process of making an Appellate brief for the appeals court.
The Plaintiff's attorney says the confession of judgment contract is under the corporate law. But I am the one being sued here.There is no company to get money from.

So the question is under the law since I am the one that is personally liable, do I have the protection of the consumer credit laws? or am I held to the business entity corporate laws when I try to defend myself in appellate court?
The consumer credit law in Utah forbids the use of confessions of judgment, but corporate law allows it.

 

[mightymoose]

Based on what information you are providing it seems unlikely you would get far with such claims on constitutional grounds.
The fact you are here asking these questions suggests you are proceeding without legal counsel. Without legal counsel you would likely be run over while trying to make this argument.
If you obtain legal counsel you might be able to shape the argument in a way that you are at least able to present it in court if you insist, but don't get your hopes up for success.

 

[army judge]

I defaulted on a small business SBA signature loan; I am being sued under the name of the LLC business and under my name at the same time. The business has been dissolved 5 years ago and has no assets.
I signed a confession of judgment and the plaintiff filed it in court under the business name and under my name as the defendants after I was unable to pay after making payments for 5 years, depriving me of my due process.
I filed a Motion to set aside Judgment , but was denied. I am now in the process of making an Appellate brief for the appeals court.
The Plaintiff's attorney says the confession of judgment contract is under the corporate law. But I am the one being sued here.There is no company to get money from.

So the question is under the law since I am the one that is personally liable, do I have the protection of the consumer credit laws? or am I held to the business entity corporate laws when I try to defend myself in appellate court?
The consumer credit law in Utah forbids the use of confessions of judgment, but corporate law allows it.

You need a lawyer.

You don't defend yourself upon appeal.

You take leave to appeal and your appellate argument is based on specific legal issues only, not broad constitutional principles.

An appeal isn't a trial de novo.

Again, you need a lawyer, not a discussion site.

No one on this site is equipped to tutor you extensively.

 

[tedschulze]

Hi Mighty moose thanks for your opinion, and I think you are probably right that the judge would not allow it. Not because I am wrong but because they would have to admit that all the thousands of other cases they ruled on that involved Confession of Judgment would also be void.
But my argument would be by an appellate brief in the appellate court, so what do you think of the idea of putting the court on judicial notice that the Confession of Judgment law is unconstitutional in my court case.

 

[adjusterjack]

the Confession of Judgment law is unconstitutional in my court case.

It isn't.

But you aren't obliged to believe anything we tell you here.

Good luck.

 

[mightymoose]

Hi Mighty moose thanks for your opinion, and I think you are probably right that the judge would not allow it. Not because I am wrong but because they would have to admit that all the thousands of other cases they ruled on that involved Confession of Judgment would also be void.
But my argument would be by an appellate brief in the appellate court, so what do you think of the idea of putting the court on judicial notice that the Confession of Judgment law is unconstitutional in my court case.

I think you are in over your head with this. It is clear by your question that you need help if you are going to pursue any action.

 

[zddoodah]

The confession of judgment process is not unconstitutional under the U.S. Constitution.

Cases from California and Florida aren't relevant in Utah.

You are free to contact local attorneys about whether they can come up with any creative arguments to make that confessions of judgment violate the Utah Constitution. Except to pay a retainer of at least $25,000.

what do you think of the idea of putting the court on judicial notice that the Confession of Judgment law is unconstitutional in my court case.

You're not using the terms "judicial notice" correctly in this sentence. You're certainly free to make whatever arguments you believe are supported by the facts and the existing law or a plausible extension of existing law.

 

[adjusterjack]

So the question is under the law since I am the one that is personally liable, do I have the protection of the consumer credit laws? or am I held to the business entity corporate laws when I try to defend myself in appellate court?

The subject of the lawsuit is a BUSINESS loan for which you made a personal guarantee. Confession of judgment is permitted.

 

[army judge]

I confess, I do not know who stole Bonnie's hot dog.

 

[adjusterjack]

I confess, I killed Laura Palmer...while I was possessed by Bob.