Midland won a default judgement.... how?!?!

[wotan]

I went a few rounds with Midland in WI (sued via Kohn Law Firm). There was miscommunication between the two of us to set up a scheduling conference and because of that, they filed for a default judgement. I responded to their summons (but forgot to sign it) and now just received notice that there was a hearing on March 28 (which I never received any kind of notice of?) that I also missed.

Because of this, they won a sizable default judgement against me. What are my next steps? They never introduced any kind of paperwork that showed that this debt was mine or that I had ever done business with Midland. I have no idea what any of this is about and it's obvious that they beat me through some kind of flaw in the system (or my misunderstanding of it.) I really expected that once I got my day in court I would win -- but I somehow missed the chance!

Very frustrated and looking for any kind of advice.....

[Coltfan1972]

I have no idea what any of this is about and it's obvious that they beat me through some kind of flaw in the system (or my misunderstanding of it.).

At least you're honest about it and understand what happened. This is very common for these scumbags to prey on the perceived ignorance of the law by pro-se litigants. They do these type of "procedural" moves and this is a common way the case ends.

Bottom line, when you sign on to be your own attorney, you are treated in the eyes of the court as an atty of 20 years practicing.

An attorney does not let a "misunderstanding" turn into something like this. They follow up and watch the courts docket, which most are online. Whenever I have been involved in suits, it's rare for more than a few days to go by without checking the docket, or checking in with the court for any new activity or hearings scheduled.

With that said, you appear to have a lot more legit shot at getting the motion for default vacated (based on your post alone and not reading into anything). It's obvious you were fighting the suit. Most of the time the consumer does not answer the suit. When you say "went a few rounds" it's obvious you were fighting and disputing. If you have filed documents, pleadings, and most importantley an answer to their suit, I would not rule out a motion to vacate being granted.

Good luck. You're dealing with pure scum.

[tigger]

Very good advice provided above, by Coltfan.

Also, try searching this board for "vacating summary judgement" ,"how to vacate judgement"and also try the same search but add "WI" (your state) for tips on where to start.

Wish I could be more helpful. But I haven't had to do what you are about to attempt. But if I were faced w/a summary judgement, that is where I would start.

Wishing you all the best--good luck!

Edited April 5, 2012 by tigger

[wotan]

Yes -- I filed an answer (which was not signed and this was one of the things listed in the default judgement), a motion to strike their affidavit and a sent a letter to the judge telling him that I strongly opposed their motion for a default judgement.

How they can then have a hearing (attended only by telephone by the plaintiff) without notifying me is mystifying. I'm going to try and talk to the clerk in person to see what she says. Ugh!!

[legaleagle]

You are making major procedural errors. You don't send letters to judges, you file an objection to the motion. You might need an attorney to fix this now. Try to make a list of your reasons.

[wotan]

You are making major procedural errors. You don't send letters to judges, you file an objection to the motion. You might need an attorney to fix this now. Try to make a list of your reasons.

In ADDITION to the letter to the judge, I also filed an objection to the motion for default judgement. I'm sorry for not including that.

The reason that I sent a letter to the judge was per the Clerks recommendation and in response to a letter that Kohn sent to the judge. I just went in to file a motion to vacate judgement and she pulled the case to help me look at what happened. She was just as confused as I was about how they could get a default judgement without notifying me of the hearing date. Her recommendation? Write a letter to the judge and request that he re-open the case. I am going to do this as a first step as I appear to have some time before I'm required to file a motion to vacate judgement.

Hopefully he will respond or take the time to review the case.

[wotan]

Good news! The judge has scheduled a hearing to decide whether or not to re-open the case. Kohn/Midland has responded that they strongly oppose my motion because I've been "given enough chances to respond."

Anyone have any tips on what I can prepare to help persuade the judge that I'm ready and serious to proceed with the meat and potatoes of the case?

[1stStep]

If all else fails...look into a Chapter 128 filing - it's a WI version of BK...

[admin]

If all else fails...look into a Chapter 128 filing - it's a WI version of BK...

Respectfully, not sure this is need just yet.

[Coltfan1972]

Good news! The judge has scheduled a hearing to decide whether or not to re-open the case. Kohn/Midland has responded that they strongly oppose my motion because I've been "given enough chances to respond."

Anyone have any tips on what I can prepare to help persuade the judge that I'm ready and serious to proceed with the meat and potatoes of the case?

Hammer home that there is no prejudice to Midland if the case is re-opened. It's not fair and we legally won on a procedural error is good enough to win, but in cases like this the court will look at prejudice to the other side.

In other words what will the other side really be out if the case is re-opened. Of course a judgement but has anybody acted on that judgment or has the matter just been sitting around a few weeks.

Whatever you do say it's unfair or I'm not an attorney and I'm just doing my best. This is all within the judge's discretion, you don't need to play the poor me card, you need the misunderstanding and unintentional error card thrown in with the no prejudice to the other side card.

Let the other side use the it's not fair card. I would also basically be prepared to argue your case. No, you won't have a trial but you can show the judge this is not a delay tactic, you were working on the case, and you had a legit shot at winning until this misunderstanding came about.

It's like in certain type of appeals where you have to show the appeal court if not for the action one is appealing there would have been a different outcome. In this case the different outcome is obvious, there would have been a trial and there would have been a likely winner, you.

And stop sending letters to judges !!!!

[BV80]

This is from the WI statutes:

802.05  Signing of pleadings, motions, and other papers; representations to court; sanctions.

802.05(1) (1)  Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, and state bar number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

Were you notified of your failure to sign your answer to the Complaint?

[legaleagle]

there was a hearing on March 28 (which I never received any kind of notice of?

Who sent the notice, the court? Usually when there is a hearing the clerk sends a calendar notice to all parties. "I didn't receive it" is a weak argument. As I see it, your main problem is that you had no understanding of the court system and really made no effort to follow procedure. Lack of knowledge is a bit flaky, it will depend on the judge you get. Coltfan's prejudice argument may help, you'll have to throw yourself on the mercy of the court and convince the judge that if given the opportunity to do so, you can mount a viable defense. On the other hand, if you cannot, how can this prejudice the other side? A win is a win.

[debtfighter]

Good catch BV80.

[Coltfan1972]

On the other hand, if you cannot, how can this prejudice the other side?

By making the other side spend a lot of time and money when the question of victory was never really in doubt. Right now, I'd argue, there is no prejudice to the other side, plus there is a legit shot at winning, so it would not be making the other side spend money on frivilous, losing argument by the OP.

Almost the equivalent of criminal court where the police do an illegal search but the judge still lets in the evidence due to inevitable discovery. In other words, the matter (in this case OP appeal arguments) even if resolved in favor of the person filing the motion would still lead to a defeat eventually.

The bottom line is you're right about procedure and not having a real "legit" excuse. However, you have to throw something out there and I think it's a tad better argument than sorry I'll do better next time.

If I were the judge and I was going to bend the rules, I'd want to make sure the person's case had a shot of winning before I ordered the case re-opened.

[debtfighter]

there was a hearing on March 28 (which I never received any kind of notice of?

Without looking it up, I would say the RCP's require the moving party to notify the other party of the time, place and purpose of the hearing. So, if a Motion was filed, the JDB attorney should have notified them of the time and place of the Motion.

[wotan]

Without looking it up, I would say the RCP's require the moving party to notify the other party of the time, place and purpose of the hearing. So, if a Motion was filed, the JDB attorney should have notified them of the time and place of the Motion.

I received notice from the JDB attorney that they were requesting that a hearing be scheduled. But I never received a notice that the hearing WAS scheduled.... I had been assuming that the court would send me a scheduling note and give me the required 30-day notice.

[wotan]

This is from the WI statutes:

802.05  Signing of pleadings, motions, and other papers; representations to court; sanctions.

802.05(1) (1)  Signature. Every pleading, written motion, and other paper shall be signed by at least one attorney of record in the attorney's individual name, or, if the party is not represented by an attorney, shall be signed by the party. Each paper shall state the signer's address and telephone number, and state bar number, if any. Except when otherwise specifically provided by rule or statute, pleadings need not be verified or accompanied by affidavit. An unsigned paper shall be stricken unless omission of the signature is corrected promptly after being called to the attention of the attorney or party.

Were you notified of your failure to sign your answer to the Complaint?

I was not notified of this. Now that I (obviously) have been made aware of it -- do you think that I should resubmit my answer before I appear in court for the motion to reopen the case? Or should I bring a signed copy of my answer with me and prepare to file it at that time?

[BTO429]

Just ell the judge the simple truth, the Plaintiff failed to notify you of the court date, in any way shape or form.

Process of service and notifying parties to a suit is the only way to insure that there is a fair trial. Regardless of the out come. The Plaintiff misled you to think they were taking care of everything.

Lesson learned, never trust the opposing side.

[legaleagle]

Here, opposing counsel must inform you of any motions filed. Once the motion is granted and scheduled, it is the responsibility of the clerk to send notice, not opposing counsel. Could be different there.

[BV80]

I was not notified of this. Now that I (obviously) have been made aware of it -- do you think that I should resubmit my answer before I appear in court for the motion to reopen the case? Or should I bring a signed copy of my answer with me and prepare to file it at that time?

I don't know if you should go ahead and resubmit your answer or wait. Hopefully, someone will know.

However, in your motion to reopen the case, cite Rule 802.05(1) states that an unsigned answer will be stricken UNLESS the defect if corrected promptly after being notified. Point out that you were never notified of the omission.

Obviously, the Plaintiff knew you failed to sign it since they mentioned it in their motion for default judgment. If they had notified you, you would have promptly corrected the error.

If you don't mind my asking, what's the timeline? When were you served, when did you file your answer, and when did Midland file their MDJ?

[wotan]

I don't know if you should go ahead and resubmit your answer or wait. Hopefully, someone will know.

However, in your motion to reopen the case, cite Rule 802.05(1) states that an unsigned answer will be stricken UNLESS the defect if corrected promptly after being notified. Point out that you were never notified of the omission.

Obviously, the Plaintiff knew you failed to sign it since they mentioned it in their motion for default judgment. If they had notified you, you would have promptly corrected the error.

If you don't mind my asking, what's the timeline? When were you served, when did you file your answer, and when did Midland file their MDJ?

In case they are monitoring these boards, I think I'll only venture to say (at this point) that the case has been drawn out for just over a year now.

[BV80]

In case they are monitoring these boards, I think I'll only venture to say (at this point) that the case has been drawn out for just over a year now.

I was hoping they filed for default judgment right after receiving your answer. That would put you in a much better position to point out they didn't notify about the defect in your answer. The rule includes the word "promptly". I don't know if that word makes a difference considering they knew about the defect during this entire year but never bothered to notify you.

[BV80]

Did they send discovery requests, by any chance?

[wotan]

They did not. Here's the general sequence of events.

- Summons Received

- Answer submitted w/ motion to dismiss

<5 months go by>

- Scheduling Conference set

<5 months go by>

- Second scheduling conference set

- Motion for Default Judgement filed

- I responded to strike one of their affidavits (they claimed that I admitted in my answer that the account was mine but that I disputed the amount -- this is completely false) and filed a motion to oppose default judgement.

- They scheduled a hearing and failed to notify me.

- Default Judgement Granted

That brings us up to today where my hearing to reopen the case is tomorrow. I plan on appearing in person this time to avoid any possible confusion or miscommunication.

[wotan]

Court did not go in my favor. Judge didn't really care about any facts of the case and didn't seem to even know anything about it. He asked if I ever had the credit card in question and I said I did not know. He asked if Midland had a statement and their lawyer said yes, they had a statement showing the amount that they were seeking. He asked if they had the origin of that account and he said yes -- judge said he couldn't find in my favor and that he would ask that the plaintiffs work with me on resolving the judgement.

I had several things prepared (as well as a new signed answer to submit) but we didn't even get that far. He basically told me afterwards that he couldn't be clogging up the system with these kinds of things and that I needed to just see what I could do to settle with them instead of fighting it.

So -- What do you guys think. Chapter 128 or appeal?