BrokeBob

Learn from my Mistakes!

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I had a HORRIBLE day in court yesterday. I am considering appealing one case, but we are already working on a settlement. The thing is, the settlement would've been the same no matter what. Still, if they get nasty about it, I may appeal. I am also considering an appeal on the FDCPA counterclaim the juidge threw out.

But, I learned some important lessons. These were mortgage cases, which are almost impossible to beat in Wisconsin. I went in there knowing I was going to eventually lose, so I could at least make my mistakes on these cases. Then, when I have a case I could win later, I can do so.

1. Avoid court if possible:

First off, if you are pro se', you are almost always going to make serious mistakes. Even trueq made some big mistakes his first cases, and he is honest enough to admit that he made the mistakes and learned from them.

Second, what happens if you run across the 'old boys' network, or a judge that has already decided in his mind that you are in the wrong, and is looking for a while to rule against you. I am not saying that is what I ran across yesterday, but I came out of court feeling a bit railroaded. The judge may have done everything perfectly, but it certainly felt unfair. Stuff I considered hearsay was admitted. Even though the plaintiff's atty hadn't shown a connection between WaMu and Chase, the judge said it was 'common knowledge', and ruled that the connection did not need to be shown, or even stated in the pleadings. In fact, he ruled that the plaintiff did not even have to state that the loan had been sold to WaMu, because the Note showed an assignment to WaMu. AND, he threw out my FDCPA counterclaim, because it relied on a 2nd Circut Court decision, and Wisconsin is not if the Second Circut. He wasn't bound by the precedent, so he threw out the case. Just my opinion.

That is one reason why I called Discover later that day. I sent a Notice of Election of Arbitration along with a request to stop calling. The stopped calling, but they claim I never sent the Notice of Election of Arbitration. Despite the "this call may be monitored or recorded" warning and the persistent beeps, the lady at Discover was VERY upset when I said I was recording the call, too. That's a different story. I would rather avoid a lawsuit than have them sue and I have counterclaims for an invalid suit. What if I get a judge who doesn't care, and who just wants to ram a judgment down my throat?

2. Be careful with your pleadings

I made a SERIOUS blunder here that cost me the case. Some of you have seen sample answers around hethe internet that say something to the effect of: "The defendant has no knowledge of the allegation in paragraph 666, and neither admits nor denies and demands strict proof thereof". I made the mistake of putting those in my pleadings. Guess what. The lawyers on the forum know what's coming. Even though the plaintiff's lawyer dind't point that out, the judge, on his own, decided that was an admission. So, DENY everything. If I had written: "The Defendants deny the allegations in paragraph 666. We have no knowledge of this and demand stricct proof thereof", that would be OK. By not specifically saying 'DENY', it counts as an admission. So, I would've been able to survive a tag-team ambush by the lawyer and the judge and prevailed, if I had just written my pleadings better!

3. Don't be overconfident

I thought this was a slam-dunk situation, so I got a little sloppy. If I hadn't, I might've won.

4. Be VERY careful about what you read in the internet

Including this post :? A month or two after writing my pleadings, I realized the mistake from a post on this forum. Remember, the stuff on the net, including this forum is NOT legal advice. It's what others have tried, with varying degrees of sucess.

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Sorry you had a tough day. I really commend you, however, for taking the time to explain what went wrong and why.

A couple of comments:

It is hard to know what arguments to make and what to ditch. Personally, the WAMU/Chase argument doesn't pass my "red face test" and this may have hurt you. When a judge hears stuff like that sometimes, she thinks the argument is bogus and stops listening. Always lead with your strong suit.

Hearsay is tough. Lots of lawyers don't get it right. Exceptions swamp the rule. On the other hand, some judges don't get it right either. If yours made an error, and the error was material, you may have grounds for an appeal.

You're advice about copying stuff from the internet is spot on. I would add only onme thing that I have been saying here for years. Every state is unique. What works in one state may not work in another. There is no substitute for going to a law library in your state and consulting a good manual on practice an procedure.

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This is another reason to consider using arbitration when possible!

Judges tend to make the courtroom a paperwork mill to push and dispose of civil cases. Arbitration, these days, is expensive and laborious compared to court.

I'm glad to hear there is a negotiation yet on the one case. I wish I could have given some helpful advice on the foreclosure, but having no experience with the issue, I did not have much research to share on the topic. I've only dealt with unsecured stuff. Foreclosure in WI is an equitable action, which means its almost always decided on SJ.

Since you were upside down on both foreclosures, I guess its still somewhat of a relief.

Thanks for sharing!

p.S. that is spot on about denying everything. I had a JDB on illegal phone calls, had the phone log attached to the complaint and they denied!!!! Discovery has uncovered their log...one wonders how they could have denied in the first place. LESSON: THE OTHER GUY WILL DENY EVEN WHEN TRUE, SO YOU SHOULD ALWAYS DENY!

Edited by trueq
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TrueQ is right … the good ole boy network goes on too much in the local court system. I have substantial proof of my own and from other close friends that just electing arbitration at the first dunning letter changes the game 100%. If they send it the case to a local counsel just send off your arbitration request … it shuts the court game down! Done and it works!

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Sorry you had a tough day. I really commend you, however, for taking the time to explain what went wrong and why.

A couple of comments:

It is hard to know what arguments to make and what to ditch. Personally, the WAMU/Chase argument doesn't pass my "red face test" and this may have hurt you. When a judge hears stuff like that sometimes, she thinks the argument is bogus and stops listening. Always lead with your strong suit.

Hearsay is tough. Lots of lawyers don't get it right. Exceptions swamp the rule. On the other hand, some judges don't get it right either. If yours made an error, and the error was material, you may have grounds for an appeal.

You're advice about copying stuff from the internet is spot on. I would add only onme thing that I have been saying here for years. Every state is unique. What works in one state may not work in another. There is no substitute for going to a law library in your state and consulting a good manual on practice an procedure.

Well put … NACA puts out terrific books and CD’s and they are invaluable if you’re going at it Pro Se. I prefer arbitration since the demise of the NAF … AAA and JAMS are raping the OC and JDB with costs and they are demanding them upfront! Nuisance settlements with the OC and JDB give up. JAMS is 800.00 up front and 2000.00 for the first three hours paid by the business … AAA is between 700.00 and 1700.00 depending on how high you make the claim!

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With the "cost efficient" NAF option out...AAA and JAMs is raping JDB's and OC's on arbitration fees.

It is glorious leverage for the consumer!!!!!!!

I filed a AAA arbitration against West Asset for collecting past statue in WI (violation of Repose statue in our state) on out of statue AT&T bill...got AAA consumer fee waiver...AAA billed West Asset $1700 for initial fees...holy balls! AAA may be more expensive than JAMS for non-consumer party.

I'm rethinking my previous "negative" comments about AAA. JAMS is still better, but AAA is not quite as bad as I previously thought.

Edited by trueq
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I think AAA is trying to keep it fair to the consumer and the costs kind of indicate that. I am in AAA arbitration as we speak so I will keep everyone informed!

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threw out my FDCPA counterclaim, because it relied on a 2nd Circut Court decision, and Wisconsin is not if the Second Circut. He wasn't bound by the precedent, so he threw out the case.

He was right about not being bound. As it is from a foreign circuit it would only be persuasive precedent.

"The defendant has no knowledge of the allegation in paragraph 666, and neither admits nor denies and demands strict proof thereof".

In most places a failure to deny is deemed an admission. I guess pro se's use the "no knowledge" language because it sounds like a "lawyer." The closest thing to the "no knowledge" statement that I have seen a defense lawyer use is "deny and demand strict proof thereof." Which is completely idiotic because you have already denied the allegation--obviously that means the plaintiff has to provide evidence to meets its burden of proof. Apparently, a certain portion of the bar believes the opposing counsel to be too damn stupid to figure out that he or she has a burden of proof.

3. Don't be overconfident

I thought this was a slam-dunk situation, so I got a little sloppy. If I hadn't, I might've won.

Slam-dunk situations in litigation are almost as rare as a skunk ape.

4. Be VERY careful about what you read in the internet

Including this post :? A month or two after writing my pleadings, I realized the mistake from a post on this forum. Remember, the stuff on the net, including this forum is NOT legal advice. It's what others have tried, with varying degrees of sucess.

The internet is full of the crappiest "legal information" on the planet. Some sites even require that you pay to receive the crappy "advice." Like I repeatedly post - always review the rules of civil procedure for the jurisdiction the case is filed in when responding to pleadings or determining what can be done.

Brokebob has the right attitude regarding litigation. It's a constant learning process and a practice.

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My father taught law for about the last 20 years of his life. He was about to retire. my brother, who had just finished law school, said he couldn't imagine a lawyer retiring. One of my grandfathers practiced until the age of 82, and then died. My other grandfather went into 'semi-retirement' when he was 55, but he spent almost the next 3 decades taking his partnership's biggest and most interesting cases until he got Alheimers in his 80s.

I guess the point is, by the time a lawyer has been practicing for a few decades, he is starting to finally learn something?

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Thanks for the helpful advise brokebob. I'm fairly new to all this at the moment but trying to learn quickly. Seems the more I read, the more interesting things get. Pretty soon minutes, turn in hours of just reading the posts.

Sorry to hear about your recent case, I'm sure you'll prevail in the end, one way or another :)

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BrokeBob - thanks for sharing. Calawyer is right - sometimes a judge has already made up his or her mind.

I will be amending my online documents to include your advice and experience, but I'm very sorry that you didn't have a good experience.

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That is why I posted this. We help each other out here. At first, I was feeling a bit ashamed of some of my stupid mistakes. I've learned a LOT from others on this forum, the least I can do is to help others learn from me. As the saying goes, if you can't be a good example, at least be a horrible warning. :-)

Mortgage cases are almost impossible for a defendant to win in Wisconsin. I knew that coming in. However, consumer debt cases are considerably easier to win. I went into this partly for the experience.

I know that in the consumer debt cases, the main weapons the bad guys have are our ignorance and our fear. I'm certainly less ignorant than I used to be, and a lot less fearful. BAM! That just takes their main weapons away. I mentioned on another thread about a phone call later that day with a collections person at Discover. Being calm, in control, knowlegable, and with a phone recorder completely reversed the usual power arrangement. I became the person to be feared, not the sucker to frighten.

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... At first, I was feeling a bit ashamed of some of my stupid mistakes. ....

We would all be hanging our heads if mistakes made us feel ashamed.

We don't make mistakes. We make learning experiences.

I have a lot more cliches I'll dig up if you give me a minute or so.

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"deadbeats" really means "creative obligation avoidance planners."

OR

"illegal debt collection opportunity enlarger."

but I've been hanging around waaaaaaay too many marketing people lately.

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Was just looking for your stuff brokebob. Don't agonize over making the 'wrong' statement and it costing you the case. It didn't. I denied, denied, denied, and the judge said well defendant is not denying... YES I am. And that no knowledge kind of language is right in the statutes so somebody must use it. I sent admissions like admit there is no agreement, evidence, contract,... anything at all signed by defendant. Answer Deny. Yet in court attorney says defendant knows the banks don't keep that. Indeed! I could go on... but I still got SJ against me. The statute says only when there are no question of material fact. Every material issue was disputed. Still SJ.

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