chicamarie Posted February 4, 2014 Author Report Share Posted February 4, 2014 @BV80 I realize that there is no silver bullet for the appeal in this case. I think my lawyer was trying to present all of the available options so I didn't freak out - although I was so shocked by the duration of the trial that I was long past freaking out. I think I am going to have to convince him to tackle the FDCPA issue. Originally, he wasn't sure it was a slam-dunk, not that it has to be, but there isn't much precedent in Oregon or anywhere else - lots of nondisclosure settlements and agreements though, I'm sure. As I have mentioned before, he really wants some published case law regarding this, so he doesn't want the mutual walk-away or nondisclosure settlement. As far as that goes, I don't know what the best case scenario is for me or him. If the judgment goes through without any settling, we bring the FDCPA suit, and they try to settle that without going to trial (settling involving my financial obligation to them going away), then theoretically the FDCPA case isn't on the books but the Oregon case law still stands, correct? Unless the judgment is vacated, and then the case law disappears (I assume) but so does my debt. If they settle for less, or for nothing, does that automatically vacate the judgment? It doesn't sound like it would. Frankly I'm not as concerned as I should be, probably, about the judgment being on my CR, as my credit was destroyed by earlier CC issues and modifying my mortgage. And if he refuses to do the FDCPA suit, which I could hardly get mad at him for after all he's done, then will I be able to rely on another consumer attorney taking the case? I had a terrible time finding anyone to do it the first time, but will the judge's decision in my case make it more tantalizing to other consumer lawyers? I would feel like I was cheating on him, but oh well. Quote Link to comment Share on other sites More sharing options...
BV80 Posted February 4, 2014 Report Share Posted February 4, 2014 @chicamarie then theoretically the FDCPA case isn't on the books but the Oregon case law still stands, correct? Is the court's ruling in your case going to be published? If it's unpublished, it's not case law. If they settle for less, or for nothing, does that automatically vacate the judgment? No. And if he refuses to do the FDCPA suit, which I could hardly get mad at him for after all he's done, then will I be able to rely on another consumer attorney taking the case? I had a terrible time finding anyone to do it the first time, but will the judge's decision in my case make it more tantalizing to other consumer lawyers? I would feel like I was cheating on him, but oh well. Just as you would get a second and third opinion for a medical issue, you do the same with legal issue. Contact your state bar association and NACA. http://www.naca.net Quote Link to comment Share on other sites More sharing options...
chicamarie Posted February 4, 2014 Author Report Share Posted February 4, 2014 How do they determine which decisions get published? Quote Link to comment Share on other sites More sharing options...
BV80 Posted February 4, 2014 Report Share Posted February 4, 2014 @chicamarie Ask your attorney. He'll be able to find out if the ruling is going to be published. Quote Link to comment Share on other sites More sharing options...
ArtVandelay Posted February 4, 2014 Report Share Posted February 4, 2014 Unless OR. is different than most states I don't see a case on this level setting any kind of precedent. Sure it might gain some traction in your local court with the same judge, but this should mean very little in the big picture. If you appeal then it will become case law, good or bad. That is why even if the case qualifies you have to be very careful what you get into. This is something you have to look at very carefully before jumping into. As for an FDCPA claim your goal should be to work on the judgment amount. If you sue Unifund under the FDCPA in federal court they are going to hire a defense type firm to handle the case. This may even involve an insurance company and their goal will be to minimize negative exposure and money. Nothing is guaranteed, but I can't see any major JDB risking 25%+ of their future income on a saving a few thousand. Hire which ever attorney you know is looking out for your best interest. Make sure they have FDCPA documented experience. Most will pay your filing fees up front and get paid by the other side if you win. In my opinion your goal should be to make the judgment amount 0, cancel the debt, remove the trade lines and agree not to issue a 1099. Quote Link to comment Share on other sites More sharing options...
Credator Posted February 4, 2014 Report Share Posted February 4, 2014 AFAIK in state court, case law usually comes from an appeal that results in a citable opinion. An appeal may also result in a non-citable, non-precedent memorandum decision. An appeal is won on the basis of showing the appeal panel, via the trial court record, that the trial judge made a reversible error, abused their discretion, and/or some other appealable event occurred. I can understand creating an appealable trial court record and pursuing a successful appeal. Actually planning and attempting to create a specific, favorable case law is probably a tall order for the average attorney and not likely to be a trivial task to a top gun attorney. I believe the judge is a major part of making positive case law. I need to make my trial court record, opposing needs to argue against the law/rules, and the judge must erroneously adjudicate in favor of the other party. I have litigated against an opposing attorney that has an impressive list of opinions with their name listed on those cases. Their clients presumably paid their law firm a lot of money to have their attorneys appeal their cases one or two levels up the court food-chain. Interestingly, almost every single opinion was adverse to the client. I don't take an appeal lightly. If I don't clearly see why the appeal court should answer my question(s), "Did the judge error when they did xyz", (based on the trial court record) in the affirmative, I would not appeal. In appealing a judgment, if I prevail, I would expect the judgment to be reversed and the plaintiff's claims to be remanded back to the trial court. At that point the plaintiff is free to continue the pursuit of their cause of action against me. Depending on the jurisdiction I may also be free to boot the trial court judge and get another judge. Quote Link to comment Share on other sites More sharing options...
chicamarie Posted February 5, 2014 Author Report Share Posted February 5, 2014 Thanks for the words of wisdom, Credator. I actually found this lawyer by researching Oregon case law. He has his name on 2 or 3 of the only debt collection lawsuits that have made it to the court of appeals and then been published. He didn't come out on top on all of them, but he's been to the show, so to speak, so at least I know that HE knows what he's getting himself into. After we cool off for a couple of days, the conversation will start anew and we will come up with the next plan of attack, or not. As the people here are aware, the JDBs up their game every time they are challenged, and I believe the cases he has argued over the years have reflected this. The documentation grows, they enhance their verbiage to correspond to the prevailing collections laws, etc. I'm sure he preserved everything necessary to at least consider an appeal, but whether he feels like it has enough merit? That's part of the conversation. I'm not hanging my hat on either option yet. It's tough, not having been in the room. I trust him to have made all the right arguments, but as I said, I wasn't there. One thing that stands out to me is that the judge is newly elected and hasn't heard many cases, and was very critical of BOTH sides not having enough case law to support their evidence or objections. And, since the trial was almost 7 hours long, I would be inclined to think that the judge was educating himself about these types of suits. Was he learning the right things? Hard to say. There isn't much case law here, sadly. Too rainy to fight back? Not lately though. I am sitting here in limbo, for the moment . . . Quote Link to comment Share on other sites More sharing options...
Credator Posted February 5, 2014 Report Share Posted February 5, 2014 Thanks for the words of wisdom, Credator. I actually found this lawyer by researching Oregon case law. He has his name on 2 or 3 of the only debt collection lawsuits that have made it to the court of appeals and then been published. He didn't come out on top on all of them, but he's been to the show, so to speak, so at least I know that HE knows what he's getting himself into. ...It's tough, not having been in the room. I trust him to have made all the right arguments, but as I said, I wasn't there. ... And, since the trial was almost 7 hours long, I would be inclined to think that the judge was educating himself about these types of suits. Was he learning the right things? Hard to say. There isn't much case law here, sadly....Nice move on researching the cases and finding a lawyer you could be comfortable with. Not being in the game would be tough for me. Obviously there can be advantages to sitting on the sidelines and sending in the attorney. Unfortunately, I have not had that option in collections. I have seen where the judge appeared to be significantly "educating" themselves on the litigants dime. Wish they knew the law better but if they don't I would want to get my supportive precedents under their nose with my explanation of them. Quote Link to comment Share on other sites More sharing options...
Recommended Posts
Join the conversation
You can post now and register later. If you have an account, sign in now to post with your account.