Midland Funding v. Sotolongo

2014 UT App 95
_________________________________________________________
THE UTAH COURT OF APPEALS
MIDLAND FUNDING LLC,
Plaintiff and Appellee,
v.
DANIEL SOTOLONGO,
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
Third District Court, West Jordan Department
The Honorable Charlene Barlow
No. 100420287
Brian W. Steffensen, Attorney for Appellant
S. Grace Acosta and Jonathan H. Rupp, Attorneys
for Appellees Johnson Mark, LLC; Brad J. Clark;
Jacob H.B. Franklin; and William A. Mark
Christopher J. Rogers, Attorney for Appellee
Midland Funding LLC
JUDGE MICHELE M. CHRISTIANSEN authored this Opinion, in
which JUDGES J. FREDERIC VOROS JR. and STEPHEN L. ROTH
concurred.
CHRISTIANSEN, Judge:
¶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.
20120381-CA 2 2014 UT App 95
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
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. On October 20, Midland filed a default1
certificate with the district court because Sotolongo’s time to file an
answer had expired. The district court denied Midland’s request
for a default, treating Sotolongo’s letter as an answer to Midland’s
complaint. On that date, Midland also filed a certificate of service
for a set of discovery requests it had mailed to Sotolongo on
October 19.
¶3 Sotolongo failed to timely respond to Midland’s discovery
requests and did not request a protective order from the district
court prior to the expiration of his time to respond to the requests.
On December 1, 2010, Sotolongo filed a letter asking the district
court to order that he not be required to respond to discovery until
Midland responded to the demands in his October 14 letter.
Sotolongo did not submit that request for decision, and the district
court did not issue an order excusing Sotolongo from responding
to Midland’s discovery requests. On December 23, 2010, Midland
moved for summary judgment on the basis of Sotolongo’s failure
to deny Midland’s requests for admission that, if deemed admitted,

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20120381-CA 3 2014 UT App 95
established the essential elements of Midland’s breach of contract
claim.
¶4 On February 14, 2011, counsel for Sotolongo entered an
appearance with the district court and requested leave to amend
Sotolongo’s pro se answer. On March 28, in light of Sotolongo’s
prior lack of representation, the district court denied Midland’s
motion for summary judgment and allowed Sotolongo ten days to
amend his answer, respond to Midland’s discovery requests, and
prepare discovery requests of his own. Sotolongo’s amended
answer added Midland’s counsel—Johnson Mark, LLC and
attorneys Brad J. Clark, Jacob H.B. Franklin, and William A. Mark
(collectively, Johnson Mark)—as third-party defendants, alleging
various violations of the Fair Debt Collection Practices Act
(FDCPA) and the Utah Consumer Sales Practices Act (UCSPA)
against Johnson Mark (the Consumer Claims).
¶5 On July 13, 2011, Midland filed a second motion for
summary judgment on its breach of contract claim. Sotolongo filed
three motions for an enlargement of time to respond, the latest of
which provided for a due date of September 2, 2011. Sotolongo did
not file a timely opposition to Midland’s motion. On August 29, he
filed his own motion for summary judgment on the Consumer
Claims. That motion was accompanied by a “sworn verification” by
Sotolongo of the factual assertions made in the supporting
memorandum. Johnson Mark filed a cross-motion for summary
judgment on the Consumer Claims, and Sotolongo filed an
opposition and reply memorandum in support of his own motion
on those claims. On October 16, Sotolongo filed a “supplemental
memorandum” in opposition to Midland’s motion for summary
judgment on its breach of contract claim. Midland filed an objection
and motion to strike the memorandum as untimely and filed
without leave of court.
¶6 A hearing on all pending motions was held on February 16,
2012. After the hearing, Sotolongo filed a “post hearing
memorandum and motion to amend to conform to the evidence.”

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Johnson Mark moved to strike the memorandum as filed without
leave of court. In its March 19 Ruling and Order on the parties’
outstanding motions, the district court granted Midland’s motions
to strike Sotolongo’s supplemental memorandum and posthearing
memorandum, concluding that Sotolongo’s memoranda were filed
without leave of the court and could not be considered in deciding
the remaining issues. The district court granted Midland’s motion
for summary judgment on the breach of contract claim, explaining
that Sotolongo’s motion for summary judgment on the Consumer
Claims did not address the factual assertions and issues raised by
Midland’s motion and therefore had not adequately opposed it.
The court also granted Johnson Mark’s motion for summary
judgment on the Consumer Claims on the merits and denied
Sotolongo’s motion for summary judgment on those claims.
¶7 The district court then directed Midland to prepare an
affidavit of attorney fees, which Midland submitted on April 9,
2012. The district court entered judgment awarding Midland
attorney fees on April 11. Thereafter, Sotolongo filed a rule 60(b)
motion asking the district court to set aside the judgment, arguing
both that attorney fees were not authorized and that the district
court’s ruling was premature because Sotolongo was entitled to
five days to respond to Midland’s affidavit of attorney fees.
Sotolongo also argued that the district court had erred in granting
summary judgment and requested that the district court set aside
its summary judgment ruling. The district court denied Sotolongo’s
motion. Sotolongo then timely appealed from the district court’s
April 11 judgment.
ISSUES AND STANDARDS OF REVIEW
¶8 Sotolongo first challenges the district court’s grant of
Midland’s motion to strike his supplemental memorandum.
“Motions to strike pleadings or parts thereof are addressed to the
judgment and discretion of the trial court.” Francis v. State, 2013 UT
65, ¶ 19 (citation and internal quotation marks omitted). We review

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20120381-CA 5 2014 UT App 95
a district court’s ruling on a motion to strike a pleading for an
abuse of that discretion. Id.
¶9 Sotolongo next argues that the district court erred in
granting Midland’s and Johnson Mark’s motions for summary
judgment and denying his own motion for summary judgment.
“[W]e review a district court’s grant of summary judgment for
correctness, considering only whether the trial court correctly
applied the law and correctly concluded that no disputed issues of
material fact existed.” Id. (citation and internal quotation marks
omitted).
¶10 Last, Sotolongo argues that the district court erred in
awarding attorney fees to Midland prior to the expiration of his
time to object to the order awarding those fees. Where proceedings
are governed by an established rule of procedure, we review the
district court’s interpretation and application of the rule for
correctness. Edwards v. Powder Mountain Water & Sewer, 2009 UT
App 185, ¶ 14, 214 P.3d 120. However, where no rule of procedure
limits the district court’s authority, we must determine whether the
district court’s actions fall within its “broad discretion in managing
the cases assigned” to it. See Posner v. Equity Title Ins. Agency, Inc.,
2009 UT App 347, ¶ 23, 222 P.3d 775 (citation and internal
quotation marks omitted).
ANALYSIS
I. The District Court Did Not Abuse Its Discretion in Striking
Sotolongo’s Memorandum.
¶11 Sotolongo argues that the district court abused its discretion
in striking his supplemental memorandum because the district
court did not also strike a memorandum that Sotolongo maintains
Midland filed late. When reviewing a district court’s exercise of its
discretion, we will reverse only if there is no reasonable basis for

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20120381-CA 6 2014 UT App 95
the district court’s decision. Langeland v. Monarch Motors, Inc., 952
P.2d 1058, 1061 (Utah 1998).
¶12 Midland filed its motion for summary judgment on July 13,
2011. Any response to Midland’s motion was due no later than
September 2, based on Sotolongo’s requests for an enlargement of
time to respond. Sotolongo did not file his supplemental
memorandum in opposition to Midland’s motion until October 16.
Sotolongo did not request leave of the district court to file a late
memorandum in opposition to Midland’s motion for summary
judgment. See Utah R. Civ. P. 7(c)(1) (providing that a
memorandum in opposition shall be filed within ten days after
service of a motion). Neither did he request leave to file a
supplemental pleading relating to the parties’ motions, and such a
supplemental pleading was not otherwise authorized by the
district court or the Utah Rules of Civil Procedure. See id.
(providing that no memoranda will be considered without leave of
court except those enumerated in this rule). Thus, whether the
supplemental memorandum is viewed as an untimely opposition
or a supplemental pleading otherwise disallowed by the rules of
civil procedure, Sotolongo was required to receive leave from the
district court to file it. Because he did not do so, the district court
had a reasonable basis on which to grant Midland’s motion to
strike, and the district court therefore did not abuse its discretion
in striking Sotolongo’s supplemental memorandum. See Langeland,
952 P.2d at 1061; see also Hartford Leasing Corp. v. State, 888 P.2d 694,
702 (Utah Ct. App. 1994) (observing that a trial court acted “well
within its discretion in refusing to accept a supplemental
memorandum that was submitted without prior invitation and
outside the bounds of duly promulgated procedural rules”).
¶13 Sotolongo also asserts that Midland’s opposition to his
motion for summary judgment on the Consumer Claims was not
timely and that the district court should have struck Midland’s
opposition in addition to striking his supplemental memorandum.
Sotolongo contends that the district court’s striking of his
supplemental memorandum without striking Midland’s opposition

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20120381-CA 7 2014 UT App 95
“suggests an improper judicial bias in favor of Midland.” However,
Sotolongo never filed a motion to strike or an objection to
Midland’s opposition. He does not identify any place in the record
where he notified the district court of this issue with Midland’s
filings. The district court thus had only Midland’s motions to strike
before it at the time of the motion hearing, and it had no request to
strike the memorandum with which Sotolongo now takes issue.
Thus, we see no abuse of discretion in the district court’s actions.
Accordingly, we reject Sotolongo’s claim of judicial bias and affirm
the district court’s grant of Midland’s motion to strike Sotolongo’s
memorandum.
II. The District Court Did Not Err in Granting Midland’s Motion
for Summary Judgment on the Breach of Contract Claim.
¶14 Sotolongo next argues that the district court erred in
granting summary judgment to Midland on its breach of contract
claim. Sotolongo contends that Midland’s affidavits in support of
its motion were insufficient to establish that it was entitled to
judgment as a matter of law and that his sworn statement created
a disputed issue of fact as to the amount of the debt.
A. Midland’s Affidavits in Support of Summary Judgment
¶15 Sotolongo argues that one or more of the affidavits
accompanying Midland’s motion for summary judgment were
deficient and that the motion therefore did not have an adequate
evidentiary foundation for the factual allegations made therein.
Sotolongo asserts that as a result of these deficiencies, Midland’s
motion did not establish that it was entitled to judgment as a
matter of law. See Orvis v. Johnson, 2008 UT 2, ¶ 10, 177 P.3d 600
(“Where the moving party would bear the burden of proof at trial,
the movant must establish each element of his claim in order to
show that he is entitled to judgment as a matter of law.”).
However, Sotolongo neither moved below to strike any of
Midland’s affidavits nor presented any argument in his own
motion for summary judgment that Midland’s affidavits were

Midland Funding LLC v. Sotolongo
20120381-CA 8 2014 UT App 95
deficient. Sotolongo raised this issue only belatedly in his
supplemental memorandum, which we have determined was
properly struck by the district court. Supra ¶ 12. To preserve an
issue for appeal, the issue must be specifically and timely raised
before the district court in such a way that the district court has an
opportunity to rule on it, and “the challenging party must
introduce supporting evidence or relevant legal authority.” 438
Main St. v. Easy Heat, Inc., 2004 UT 72, ¶ 51, 99 P.3d 801. Because
Sotolongo’s argument that Midland’s affidavits are deficient was
never properly before the district court, it is not preserved for
review by this court on appeal.
¶16 Moreover, Sotolongo does not present any argument in his
briefing to this court to demonstrate any deficiencies in Midland’s
affidavits. He merely asserts that he demonstrated the deficiencies
in his supplemental memorandum. An issue is not properly
presented to this court for review by mere reference to a prior
pleading in which the argument was made—particularly where
that pleading was struck below—and we will not consider an
argument presented in this way. See Utah R. App. P. 24(a)(9)
(explaining that an appellant’s brief “shall contain the contentions
and reasons of the appellant with respect to the issues
presented . . . with citations to the authorities, statutes, and parts of
the record relied on”). Accordingly, Sotolongo has failed to meet
his burden of demonstrating error in the district court’s
consideration of Midland’s affidavits.
B. Disputed Facts Regarding the Amount Owed
¶17 Sotolongo next contends that he established a genuine
dispute as to the amount he owed on the account and that the
district court therefore erred in granting summary judgment to
Midland. “[I]t only takes one sworn statement under oath to
dispute the averments on the other side of the controversy and
create an issue of fact.” Draper City v. Estate of Bernardo, 888 P.2d
1097, 1101 (Utah 1995) (citation and internal quotation marks
omitted). Sotolongo claims that the amount owed was effectively

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20120381-CA 9 2014 UT App 95
controverted by his averments in his own motion for summary
judgment that (1) his account statements included “several
unauthorized charges for ‘Account Plus,’” (2) his account
statements were therefore inaccurate, and (3) the amounts claimed
by Midland on the basis of those statements were also inaccurate.
¶18 However, Sotolongo did not file a timely opposition to
Midland’s motion for summary judgment. And Sotolongo’s own
motion for summary judgment on the Consumer Claims failed to
address and controvert the factual statements in Midland’s motion
as required by rule. See Utah R. Civ. P. 7(c)(3)(B) (requiring a
memorandum opposing a motion for summary judgment to
contain “a verbatim restatement of each of the moving party’s facts
that is controverted” and “an explanation of the grounds for any
dispute, supported by citation to relevant materials”). “Each fact
set forth in the moving party’s memorandum is deemed admitted
for the purpose of summary judgment unless controverted by the
responding party.” Id. R. 7(c)(3)(A). Because Sotolongo’s motion for
summary judgment on the Consumer Claims failed to address or
controvert any of the factual assertions made in Midland’s motion
for summary judgment, Sotolongo failed to raise a genuine issue of
material fact that would preclude summary judgment on
Midland’s breach of contract claim.
¶19 Even if we were to look past Sotolongo’s procedural
missteps, the factual averments in his motion for summary
judgment on the Consumer Claims are inadequate to create a
factual issue as to the amount Sotolongo owed on the account.
Sotolongo’s averments do not specifically controvert the amount
owed but only reference “several” unauthorized charges.
Sotolongo does not identify the number or amount of the
unauthorized charges or the amount he believes is correctly owed
on the account. “[B]are contentions, unsupported by any
specification of facts in support thereof, raise no material questions
of fact as will preclude the entry of summary judgment.”
Schnuphase v. Storehouse Mkts., 918 P.2d 476, 477–78 (Utah 1996)
(citation and internal quotation marks omitted). While Sotolongo’s

Midland Funding LLC v. Sotolongo
2. For purposes of our analysis, we assume without deciding that
the Johnson Mark defendants are attorneys who “regularly engage
in consumer-debt-collection activity” and that the FDCPA applies
to their conduct in this matter. See Heintz v. Jenkins, 514 U.S. 291,
299 (1995) (internal quotation marks omitted) (concluding that the
FDCPA “applies to attorneys who ‘regularly’ engage in
consumer-debt-collection activity, even when that activity consists
of litigation”).
20120381-CA 10 2014 UT App 95
pleading below referred to an “Exhibit C” that may have contained
such information, this exhibit is not in the record on appeal.
Without more, Sotolongo’s generalized claim that the amount
owed was inaccurate due to “several unauthorized charges” in an
uncertain sum is not sufficient to raise a genuine issue of material
fact to preclude summary judgment. Accordingly, we affirm the
district court’s grant of summary judgment to Midland on its
breach of contract claim.
III. The District Court Did Not Err in Granting Summary
Judgment to Johnson Mark on the Consumer Claims.
¶20 Sotolongo’s third-party complaint and motion for summary
judgment against Johnson Mark raise a farrago of purported
FDCPA and UCSPA violations. We address the federal and state
claims in turn.
A. FDCPA Claims
¶21 Sotolongo argues that the district court erred in concluding
that all of his FDCPA claims must fail because Sotolongo did not
timely dispute the debt after receiving an initial communication
from Johnson Mark. Section 1692g of the FDCPA provides a debtor
with certain protections if, within thirty days of receiving an “initial
communication” from a debt collector, the debtor notifies the debt
collector in writing that the debt is disputed. See 15 U.S.C.
§ 1692g(a), (b) (2006). The district court determined that the2
undisputed facts demonstrated that Johnson Mark had sent an

Midland Funding LLC v. Sotolongo
3. Sotolongo does not challenge the district court’s grant of
summary judgment to Johnson Mark on his claims under section
1692g. Rather, he challenges only the district court’s failure to
analyze his other FDCPA claims independently of its determination
that his section 1692g claims were foreclosed.
20120381-CA 11 2014 UT App 95
initial communication to Sotolongo on July 23, 2010, and that
Sotolongo had not asserted any rights under section 1692g within
thirty days of receipt. The court determined that Midland’s filing
of its complaint on September 22, 2010, was therefore not an “initial
communication” and that Sotolongo’s request for verification at
that point did not trigger any protection under section 1692g. The
district court concluded that, as a result, none of Sotolongo’s
FDCPA claims could survive summary judgment.
¶22 Sotolongo argues that even if his section 1692g claims fail,
his claims under sections 1692d and 1692e were not foreclosed by
his failure to assert any rights under 1692g. We agree with3
Sotolongo’s assertion, but we affirm the district court’s grant of
summary judgment to Johnson Mark because Sotolongo has failed
to demonstrate that he is entitled to relief under any provision of
the FDCPA.
1. Misrepresentation of the Amount of the Debt
¶23 Sotolongo asserts that once he challenged the amount of the
debt, every subsequent representation by Midland as to the
amount owed was false and deceptive, and thus violated section
1692e of the FDCPA. “A debt collector may not use any false,
deceptive, or misleading representation or means in connection
with the collection of any debt.” 15 U.S.C. § 1692e (2006). However,
“the allegation that the debt is invalid, standing alone, cannot form
the basis of a lawsuit alleging fraudulent or deceptive practices in
connection with the collection of a debt.” Bleich v. Revenue
Maximization Grp., Inc., 233 F. Supp. 2d 496, 501 (E.D.N.Y. 2002). A
debt collector may rely on its client’s representations as to the
amount of the debt. Clark v. Capital Credit & Collection Servs., Inc.,

Midland Funding LLC v. Sotolongo
20120381-CA 12 2014 UT App 95
460 F.3d 1162, 1174 (9th Cir. 2006). And the FDCPA does not
impose on debt collectors a duty to independently investigate the
amount owed but only to confirm the amount claimed with their
client. Id.
¶24 Sotolongo argues that once he “vehemently denied” he
owed the amount Midland claimed was due on the account, it was
no longer reasonable for Johnson Mark to rely on the figures given
to it by Midland. However, the case he cites for this proposition,
Clark v. Capital Credit & Collection Services, Inc., clearly holds that
debt verification involves “nothing more” than confirming in
writing the amount owed with the creditor and that the FDCPA
imposes no duty on a debt collector to independently investigate
the claimed debt. 460 F.3d 1162, 1173–74 (9th Cir. 2006) (citation
and internal quotation marks omitted). Sotolongo does not argue
that Johnson Mark failed to verify the debt with Midland, and his
argument that Johnson Mark’s reliance on the figures given to it by
Midland was unreasonable is foreclosed by Clark. Accordingly,
Sotolongo has not demonstrated that Johnson Mark
misrepresented the amount owed in violation of section 1692e.
2. Credit Union Subpoena
¶25 Sotolongo next argues that a subpoena that Johnson Mark
served on Sotolongo’s credit union was improper and that its
issuance violated the FDCPA. The basis of Sotolongo’s argument
is that Johnson Mark failed to dispute Sotolongo’s “commentary”
to particular statements of fact asserted in Sotolongo’s motion for
summary judgment and that this commentary was thus deemed
admitted—establishing for purposes of summary judgment that the
subpoena was “‘a shameless invasion of Sotolongo’s financial
privacy and was offensive and harassing.’”
¶26 As an initial matter, it is not clear that such
commentary—consisting entirely of Sotolongo’s legal conclusions,
rather than factual assertions—is appropriate in a statement of
material facts in a summary judgment memorandum. See Utah R.

Midland Funding LLC v. Sotolongo
4. Sotolongo makes the same argument with respect to a set of
discovery requests that Johnson Mark served on him, which we
reject for the same reason.
20120381-CA 13 2014 UT App 95
Civ. P. 7(c)(3)(A) (setting out the required form of a statement of
material facts in a memorandum supporting a motion for summary
judgment). However, even if the incorporation of such legal
argument into a statement of material facts is proper, Sotolongo’s
legal conclusions are not facts that are deemed admitted if not
controverted by the nonmoving party. See id. (“Each fact set forth
in the moving party’s memorandum is deemed admitted for the
purpose of summary judgment unless controverted by the
responding party.” (emphasis added)). Accordingly, Johnson Mark
is not deemed to have admitted that the subpoena was “a
shameless invasion of Sotolongo’s financial privacy” or that it
violated the FDCPA.4
¶27 Sotolongo provides no other argument or legal analysis to
support his claim that the issuance of the subpoena constituted an
FDCPA violation. Neither does he explain how the subpoena
violated any particular provision of the FDCPA. We agree that the
timing and scope of the subpoena are very troubling insofar as the
subpoena targets a much broader range of financial information
than would be necessary to effectuate Johnson Mark’s purported
goal of establishing a payment history between Sotolongo and the
disputed account. However, this court’s discomfort with a party’s
discovery methods is not a ground for relief under the FDCPA.
Absent a demonstration by Sotolongo that the subpoena violated
a particular prohibition in the FDCPA, we are not persuaded that
he is entitled to relief.
3. Remaining Section 1692e Claims
¶28 Sotolongo also argues that Johnson Mark made an array of
false or deceptive statements and arguments in the course of
litigation. In considering claims under the FDCPA, we “are not
concerned with mere technical falsehoods that mislead no one, but

Midland Funding LLC v. Sotolongo
20120381-CA 14 2014 UT App 95
instead with genuinely misleading statements that may frustrate a
consumer’s ability to intelligently choose his or her response.”
Donohue v. Quick Collect, Inc., 592 F.3d 1027, 1034 (9th Cir. 2010).
Thus, “if a representation would not mislead or deceive with respect
to the debt, it is not actionable, even if it is technically false.” Penn v.
Cumberland, 883 F. Supp. 2d 581, 589 (E.D. Va. 2012) (emphasis
added). “In other words, in order for a false statement to violate the
FDCPA, it must affect a consumer’s ability to make intelligent
decisions with respect to the alleged debt.” Id.
¶29 Even if we assume that the remaining issues identified by
Sotolongo involve misrepresentations, he has not identified any
way in which these statements or actions by Johnson Mark—most
of them relating only to procedural matters and arguments made
to the court—misled or deceived him with respect to the debt.
Sotolongo has not demonstrated that Johnson Mark’s alleged
misrepresentations frustrated his ability to make intelligent
decisions with respect to his disposition of the debt or this
litigation. Accordingly, the conduct and statements identified by
Sotolongo are not actionable, and he has not demonstrated that he
is entitled to relief under section 1692e.
4. Section 1692d Claims
¶30 Sotolongo claims that a number of actions taken by Johnson
Mark in the course of litigation violated section 1692d of the
FDCPA. “A debt collector may not engage in any conduct the
natural consequence of which is to harass, oppress, or abuse any
person in connection with the collection of a debt.” 15 U.S.C.
§ 1692d (2006). This section protects a debtor “only from oppressive
and outrageous conduct.” Bieber v. Associated Collection Servs., Inc.,
631 F. Supp. 1410, 1417 (D. Kan. 1986).
¶31 While Sotolongo identifies nine specific actions that he
believes violated section 1692d, he provides no legal analysis or
authority for his claim that “[e]ach of these was an action which
had the natural consequence of harassing, oppressing or abusing

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20120381-CA 15 2014 UT App 95
Sotolongo. Each violated 1692d.” He does not attempt to explain
how the “natural consequence” of each of these actions was to
harass or abuse, or how these actions were oppressive and
outrageous. See 15 U.S.C. § 1692d; Bieber, 631 F. Supp. at 1417. Thus,
Sotolongo has failed to adequately brief these claims, and has not
met his burden on appeal. See State v. Thomas, 961 P.2d 299, 305
(Utah 1998). Accordingly, we affirm the district court’s grant of
summary judgment to Johnson Mark on Sotolongo’s FDCPA
claims.
B. UCSPA Claims
¶32 Sotolongo argues that the district court erred in granting
summary judgment to Johnson Mark on his UCSPA claims. It is a
violation of the UCSPA for a “supplier” to commit a “deceptive act
or practice” in connection with a “consumer transaction.” Utah
Code Ann. § 13-11-4(1) (LexisNexis Supp. 2010). In granting
summary judgment to Johnson Mark, the district court concluded
that Sotolongo’s UCSPA claims failed because collection of credit
card debt is not a “consumer transaction” and Johnson Mark is not
a “supplier” within the meaning of the UCSPA. However, we need
not determine whether the district court correctly interpreted these
terms because Sotolongo has failed to demonstrate that Johnson
Mark knowingly or intentionally committed any deceptive act.
“[T]he plain language of the UCSPA specifically identifies
intentional or knowing behavior as an element of a deceptive act or
practice . . . .” Martinez v. Best Buy Co., 2012 UT App 186, ¶ 4, 283
P.3d 521; see also Rawson v. Conover, 2001 UT 24, ¶ 36, 20 P.3d 876
(“The [UCSPA] . . . requires that the supplier knowingly or
intentionally deceive the consumer.”).
¶33 Sotolongo’s only briefing addressing this element is a claim
that “[m]any of the misrepresentations alleged by Sotolongo were
clearly ‘knowingly’ made as argued in Sotolongo’s papers.”
However, he has not made any such argument in his briefing to
this court, nor has he directed this court to any evidence in the
record from which we could make such a determination.

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Sotolongo’s UCSPA claims cannot survive summary judgment
without a showing of intentionally or knowingly deceptive
conduct. Accordingly, we affirm the district court’s grant of
summary judgment to Johnson Mark on Sotolongo’s UCSPA
claims.
IV. The District Court Erred by Awarding Attorney Fees to
Midland Without Allowing Sotolongo Time to Object.
¶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
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, the district court erred in entering judgment
after only three business days.
¶35 Rule 7 governs the form and timing for submission of
proposed orders. Utah R. Civ. P. 7(f). A party has five days after
service of a proposed order to object, and the party preparing the
order must file the order with the court upon the expiration of the
time to object or after the other party serves an objection. Id. R.
7(f)(2). However, this court has previously determined that “the
rules pertaining to the entry of proposed judgments and orders are
binding only on the litigants and not on the trial court.” Henshaw
v. Estate of King, 2007 UT App 378, ¶ 25, 173 P.3d 876 (concluding
that rule 7(f)(2) “places no restrictions on when a trial court may
sign a proposed judgment or order”). Because the rule applies only
to the parties, the district court could not violate rule 7 by entering
judgment before the expiration of Sotolongo’s time to object. See id.
(explaining that “nothing in rule 7(f) requires the trial court to wait
for the expiration of a party’s objection period prior to signing a
proposed order”).

Midland Funding LLC v. Sotolongo
20120381-CA 17 2014 UT App 95
¶36 However, while rule 7 does not restrict the district court’s
authority to enter judgment without allowing Sotolongo time to
object, we also consider whether doing so was an abuse of the
district court’s discretion to manage the case before it. See Posner v.
Equity Title Ins. Agency, Inc., 2009 UT App 347, ¶ 23, 222 P.3d 775.
When reviewing a district court’s exercise of its discretion, we will
reverse only if there is no reasonable basis for the district court’s
decision. Langeland v. Monarch Motors, Inc., 952 P.2d 1058, 1061
(Utah 1998).
¶37 In Henshaw v. Estate of King, the trial court had ruled from
the bench on the parties’ cross-motions for directed verdict and, at
the end of trial, instructed the prevailing party to prepare an order
reflecting the trial court’s rulings. 2007 UT App 378, ¶¶ 4–7, 173
P.3d 876. The trial court signed the order shortly thereafter, before
Henshaw filed an objection with the trial court. Id. ¶ 7. On appeal,
Henshaw argued that the trial court had violated rule 7(f) by
prematurely entering judgment. Id. ¶ 22. We rejected Henshaw’s
argument for the reasons explained above. Id. ¶ 25. We also
rejected Henshaw’s underlying due process argument on the basis
that he had been heard on his substantive challenge to the
proposed order—the trial court had rejected Henshaw’s objections
because the order “‘accurately reflect[ed] the [c]ourt’s ruling.’” Id.
¶ 26 & n.9 (alterations in original).
¶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

Midland Funding LLC v. Sotolongo
5. The district court’s entry of judgment so soon after service of the
affidavit by mail is particularly troubling given that rule 6 of the
Utah Rules of Civil Procedure allows a party three additional days
to respond to documents served by mail.
6. Midland argues that because the district court determined that
Sotolongo’s rule 60(b) motion did not present a “meritorious
defense” to the entry of judgment, this court should determine that
(continued...)
20120381-CA 18 2014 UT App 95
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. Accordingly, we conclude that the trial court abused5
its discretion in awarding attorney fees to Midland without
allowing Sotolongo an opportunity to object.
¶39 Further, we conclude that this error affected Sotolongo’s
substantial rights and therefore merits our vacating the district
court’s award of attorney fees to Midland. See Ross v. Epic Eng'g,
PC, 2013 UT App 136, ¶ 12, 307 P.3d 576 (“‘The court at every stage
of the proceeding must disregard any error or defect in the
proceeding which does not affect the substantial rights of the
parties.’” (quoting Utah R. Civ. P. 61)). The district court’s
premature entry of judgment in favor of Midland deprived
Sotolongo of his opportunity to argue that some or all of the
attorney-fees award was not authorized by statute or contract, or
to present any evidence bearing on the matter. Under these
circumstances, “there is at least a reasonable likelihood that in the
absence of the error the result would have been different.” Id.
Accordingly, we vacate the district court’s award of attorney fees
to Midland.6

Midland Funding LLC v. Sotolongo
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.
20120381-CA 19 2014 UT App 95
V. Attorney Fees on Appeal
¶40 Midland has requested an award of attorney fees and costs
reasonably incurred on appeal. When a party that was awarded
attorney fees below prevails on appeal, that party is entitled to an
award of fees reasonably incurred on appeal. Valcarce v. Fitzgerald,
961 P.2d 305, 319 (Utah 1998). Because Midland has successfully
defended its victory below with respect to the principal issues
raised on appeal, Midland is the prevailing party on appeal. See id.
However, when an appellee successfully defends a judgment on
appeal, an “award of fees on appeal requires both a fee award
below and success in the appellate court.” Holladay Towne Ctr., LLC
v. Brown Family Holdings, LC, 2008 UT App 420, ¶ 25, 198 P.3d 990,
aff'd, 2011 UT 9, 248 P.3d 452. Because we have vacated the district
court’s award of attorney fees, we may award Midland its attorney
fees incurred on appeal only if, on remand, the district court again
awards Midland its attorney fees incurred below. Accordingly, we
direct the district court on remand to first determine if Midland is
entitled to an award of attorney fees incurred below. If the district
court determines that such an award is authorized, Midland is also
entitled to an award of attorney fees reasonably incurred on
appeal, and we direct the district court to determine the amount of
both awards.

Midland Funding LLC v. Sotolongo
20120381-CA 20 2014 UT App 95
¶41 Midland also requests an award of “just damages,” arguing
that Sotolongo’s appeal is without merit and was asserted solely for
delay. This court may award just damages, including costs and
attorney fees, if we determine that an appeal is either frivolous or
taken for delay. See Utah R. App. P. 33(a). “But the imposition of
such a sanction is a serious matter and only to be used in egregious
cases, lest the threat of such sanctions should chill litigants’ rights
to appeal lower court decisions.” Redd v. Hill, 2013 UT 35, ¶ 28, 304
P.3d 861. “Sanctions are appropriate for appeals obviously without
merit, with no reasonable likelihood of success, and which result in
the delay of a proper judgment.” Id. (citation and internal quotation
marks omitted). Midland has not demonstrated that this is an
“egregious case” or that it has resulted in delay of a proper
judgment. Id. Accordingly, we conclude that Midland is not
entitled to an award of just damages, and we deny its request.
CONCLUSION
¶42 The district court did not abuse its discretion in granting
Midland’s motion to strike Sotolongo’s supplemental pleading that
was filed without leave of court. And the district court did not err
in granting summary judgment to Midland on its breach-of-
contract claim or to Johnson Mark on the Consumer Claims.
Sotolongo has not demonstrated his entitlement to relief under the
FDCPA or UCSPA for any actions taken by Johnson Mark or
Midland. However, the district court abused its discretion in
awarding attorney fees to Midland without allowing Sotolongo an
opportunity to object. We therefore vacate the award of attorney
fees to Midland, affirm the judgment of the district court in all
other respects, and remand for further proceedings consistent with
this opinion.