I Finally go to Circut Court on Wednesday

[BrokeBob]

Interesting. I have been a member of this forum since some time in February. In that time, I haven't appeared before any judge. Until this coming Wednesday, December 2. This is one of two foreclosure cases I have before this judge. Luck of the draw, not intentional.

So far, there was the summons and complaint, my answer, then my MTD, then their objection to my MTD, and their MSJ (for the same day as the MTD), my MTS some of their evidence as hearsay (some of it is HORRIBLE), their objection to my MTS, my answer to their objection, my MTS even more evidence, my answer to their MSJ, and a few briefs and affidavits on both sides. Tons of documents.

If it were not for this forum, I would be scared ****less. I have no idea what will happen on Wednesday. My guess would be both the MTD and MSJ getting thrown out, and then a trial some time next spring or even summer. That's OK. The place is on the market, and I would like to negotiate with them.

I look at it this way. In the unlikely event their MSJ is granted, I'm no worse off than before, and I still have a few months to try to work out a short sale. At worst, I will have learned a LOT.

If I beat MSJ, but don't get a dismissal, I am in a much better negotiating position, AND I will have learned a lot.

If I actually get my MTD, I will be in a fantastic negotiating position, and I can do the famous "I beat a member of the Wisconsin Bar dance". xdancexxdancexxdancexxdancexxdancex

In any case, I want to thank all of you.

I especially want to thank the admin for all the great stuff about legal procedures, and for running an amazingly helpful forum.

I want to thank trueq for sending me incredibly useful stuff on summary judgment in Wisconsin.

So, I see myself in a no-lose position. At worst, I've learned a lot. At best, it's time to dance! xdancexxdancexxdancexxdancexxdancex

[admin]

You might want to read this as well....

http://www.creditinfocenter.com/legal/what-to-say-in-court.shtml

[BrokeBob]

Thanks. Good pointers. I've been objecting to EVERYTHING as hearsay.

[BrokeBob]

Interesting. The plaintiff's atty sent me some papers the DAY BEFORE a morning hearing. I'll have to look up the proper statute that prohibits filing papers less than 5 days before the hearing.

Several minor victories so far.

First, I objected because they had two exhibits with the same name. Their response was to resubmit the exhibit, and then accuse me of trying to delay the case, and ask for sanctions against me.

Second, I got them to change attorneys again. I pointed out that their atty, their top litigator, couldn't be both an affiant and an advocate. They handed it off to an associate.

Third, I was able to force this associate to appear in person, instead of by phone. Aw, don't you just feel SO sorry for her?

I can tell they are PISSED! The papers they filed in response to mine were a quickly written ramble mixed with bile.

So, the proper way to procede tomorrow is to be as sweet as honey with this associate.

This strategy sometimes works. I used to be a moderately well-known backgammon player (not anymore). Once, in the mid-1990s, I played in one of the very first on-line tournaments. It was double elimination. I won a small prize, and in the process beat some players who were some of the best in the world. There was one opponent I beat twice (remember, this was double elimination). She was the top ranked woman in the game at the time. My strategy was to act like a perfect gentleman, and get her so upset she lost her cool. In the first match, she had me on the ropes, and didn't deliver the knockout punch, because she lost her cool. I can tell they are losing their cool. A pro se' defendant is daring to challenge them.

I have a good idea how to deal with this case. Hearsay upon hearsay upon hearsay, backed by affidavits based on information and belief.

[ficofightr]

Second, I got them to change attorneys again. I pointed out that their atty, their top litigator, couldn't be both an affiant and an advocate. They handed it off to an associate

I had this same scenario come up but I waited until as late as possible to bring this up so I could nail them in the court room rather than giving them a chance to switch attorneys and submit different documentation.

[unusualsuspect]

Hearsay upon hearsay upon hearsay, backed by affidavits based on information and belief.

This needs to be your line in court... kind of like "if the glove don't fit - you must acquit."

But I'd change it to "Hearsay heaped upon hearsay with affidavits to support heaps of hearsay."

[BrokeBob]

UPDATE:

Partial victory, partial defeat.

I go their early, and the new plaintiff lawyer was there, along with an employee of the plaintiff who had signed an affidavit.

First, the judge threw out my MTD.

Then, we got the their MSJ, and my multiple motions to strike evidence and affidavits.

Perhaps the judge has a different idea of what is hearsay from what I do. The evidence ranged from pure hearsay to perfect. He only threw out one exhibit. However, that exhibit was necessary for summary judgement.

I had asked to strike parts of three affidavits: two by one of the plaintiff's attorneys, and one by an employee of the bank. The judge would not allow the atty's affidavits. He made an interesting comment to me: "I understand you have a beef with Mr. _______'s affidavits", grinning, because I had pointed out some ethical violations. I was not nice to the plaintiff's atty in some of my briefs.

So, the judge could not grant summary judgement. He gave the plaintiff until Jan 4 to come up with better evidence and affidavits, and then gave me until Jan 19 to respond. The hearing will continue on Jan 22.

I have a feeling I will lose on Jan 22. However, that will at least buy some more time, while my real estate agent tries to find a buyer. I hope to avoid the actual foreclosure.

[trueq]

The onus is on them to have their act together by 1/4.

I'd write the court on 1/5/10 to dismiss if you get nothing from plaintiff.

You also bought yourself 52 days, maybe more.

My money is on them asking for continuence if you push dismissal on 1/5.

Thet may not have the "better evidence".

Great job!

[BrokeBob]

Of course, the credit union's representative tried to blame ME for her not giving the correct evidence to the attorneys. Funny how that works. Every mistake the plaintiff or the plaintiff's attorney make is somehow my fault.

We will see how well they were paying attention in court. The judge practically hammered it over their heads that an attorney's affidavits are NOT suitable as evidence, and that they needed the CU's representative to make the affidavits instead. So, even if they replace the hearsay evidence with real evidence, if they forget to replace the hearsay affidavits with real affidavits, I may still beat SJ. If that is the case, I can quote the judge's own ruling. That would be very nice.

You are right, getting a bit over 7 weeks helps a lot when I am attempting a short sale. Combined with the time I bought by answering the complaint, I bought slightly over 2 months. Consider that for another rental property, there was an offer on the table under 7 weeks after it hit the market. Worst case scenerio, I now have a little less than 5 months before a sherrif's sale to find a buyer. I hope my real estate agent appreciates the extra couple of months.

Meanwhile, there is an offer for a unit for which Cha$e is pursuing foreclosure. I'm getting messages from my real estate agent that Cha$e is being extremely uncooperative. I already sent in a notice to elect arbitration. I think I need to turn up the heat a bit, as in Wis. Stat. 788.02

[trueq]

And ask for the transcript to be prepared for yesterday's hearing!!!!

I had this issue: Judge completely forgot what he said at previous hearing.

Transcript will cost you money, but its worth it! (It also takes 3 weeks to prepare in some cases, so order it today!)

Once you get a copy, send a copy to court and opposing counsel with your 1/5/10 MTD with the pertinent parts of judge's quote highlighted!!!

Trust me on this one!

[admin]

I think you're doing great and I also doubt they will be able to come up with a thing in Jan. If they could, I think they already would have.

[BrokeBob]

Actually, I think they could. I think it was just stupidity on their part that they didn't.

TrueQ has a point. The judge laid VERY specific criteria as to what they need. If they can't do that in a month, they are complete idiots. The transcript would be very useful for my answers if they continue to make mistakes. Of course, if they do, they will try to blame it on me.

The transcript could be very useful in another case I have, coincidently, before the same judge. This particular judge in effect says he only grants an MTD if the claim fails to state a case, even if everything in the claim is true. In my other foreclosure case, the lawyers were too sloppy to even claim that they had obtained the loan from the OC. Everything else he considers an MSJ on the part of the defendant, such as failure to meet preconditions. This is helpful to know, in case I get sued by a CC company that doesn't give the 15 day notice. I would attach an affidavit, and file for MSJ.

I really need to push things on my other foreclosure case, with Cha$e. I have an offer on a short sale, with a proposed closing date of Jan 15, dependent on Cha$e accepting. They are not even responding to calls from my real estate agent. I am considering a big 1-2 punch. First, file an MTD for Failure to State a Claim, and also file for a Stay for Arbitration, since my wife's Cha$e card agreement has an arbitration agreement. Cha$e has really been ****ing us around. They have repeatedly refused to send us documentation. In fact, I may demand they send us $500 so we can initiate claims against them in JAMS. If they screw up this short sale, I will make a claim for either the amount of the sale, or even the amount the tax appraisers are charging us, which is higher.

[trueq]

Read this article form Pagel's blog! Posted today!!!!!

http://www.familyandconsumerlaw.com/2009/12/laws-you-should-know-about-ask-your.html

You can hammer Chase's posterior with this under Wis Stats 138.052!!!!!

Send letter away today, via certified mail returned receipt, spelling out your short sale demands!

If they fail to respond by 12/17....BOOM! You can sue under 138.052 for failure to respond under state law...$500 +actual damages! (minimum actual damage: amount of lost short sale!)

If you can prove Chase was willful you could taag for double and triple damages under some other torts in WI....

Go forth and kick some posterior! You don't have to put up with their insane cone of silence!

Sue! Sue! Sue!

Edited December 3, 2009 by trueq

[BrokeBob]

Ho-lee-COW!

This is amazing.

Your comment is spot on, as well. I sent in a request to Chase CC customer service for documentation, on Nov 2. They sent back a letter, which we received Nov 25, refusing to give us documentation. Specifically, this was for the arbitration agreement. Actually, we have TWO letters sent to us refusing documentation. The first was because we DVed the CA. How stupid can you get?

I sent the Cha$e lawyer, for the foreclosure case, a notice I sent to the Circut Court on Nov 25. I demanded a copy of the arbitration agreements for Chase and WaMu, since the card had originally been with WaMu, and allegedly so had the mortgage. So, if they don't respond by 15 days after the 25th, that is another violation.

In any case, I have notified the Court and the attorney I plan to pursue this in arbitration. So, I will demand $500 from Chase, through their attorney, for expenses in filing with JAMS. If they don't cough up, yet another violation!

In the meantime, I can always amend my answers to put in some counterclaims. Wisconsin state law allows that to be done ONCE without the permission of the other side, if it is within 6 or 8 months, I forget which. The case was filed in late September, so I'm well within the time.

So, I'll find out who my real estate agent is trying to negotiate with. I'll send a letter, CMRRR, and if they don't respond in 15 days, I'll file a claim in JAMS for triple the amount of the purchase price. 8-)8-)8-)8-)

[trueq]

the lawyer...

AND

any servicing company...

Sue in the A.M. in the P.M, when its raining, and when its shining!

Cleaning up the manure combustion of idiot lawyers is a constant renewable resource!

[nascar]

trueq, was that your Howard Dean imitation? YEEEEOOOWWW

[ficofightr]

Also remember that even if they get a proper affidavit, the witness has to be in court to testify otherwise you can object to it as hearsay.

If they try to use business rule exception then point out that the affidavit was not made near the time of the act/event or that the person writing the affidavit doesn't have personal knowledge. Usually one of these two applies depending on the details of the affidavit.