Author Topic: Trying to figure out what to do- sued by Kohn in WI  (Read 3163 times)

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BrokeBob

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #60 on: May 03, 2017 11:18:31 PM »
I am not sure, but I think the appeal to the judge in Wisconsin is a do-over, or very close to it. 

The judges in our county are the best judges in the state, and the most consumer friendly.  That doesn't mean you will win, it means your chances of winning are higher than any other county in the state. 

You may have a claim against Kohn for claiming in court that there is a small claims exemption, when there is really not.  This could be misrepresentation of the legal status of a debt.  A violation of the Wisconsin Consumer Act.

Which means, when you get your MTD and file in JAMS, you have a legitimate claim against them to file. 

Bruno the JDB Killer

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #61 on: May 04, 2017 01:30:18 PM »
See if your rules allow a motion to reconsider. If not, you'll have to appeal to the next level if they decide against you.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

fisthardcheese

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  • They forced arbitration into your contract. Use it
Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #62 on: May 04, 2017 01:34:34 PM »
This sounds like the typical small claims judge.  I'm sure he and the attorney will be laughing over this one at the golf club this weekend.

The judge made several errors of law and the attorney made several misrepresentations (lies) in conjunction with the collection of a debt (FDCPA violations).

You need to check your court rules to see how long you have to file an appeal.  There is usually a limited amount of time to do so.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

Bruno the JDB Killer

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #63 on: May 04, 2017 01:48:29 PM »
You have 45 days according to this, and you file in the Court of Appeals. There also appears to be a motion to reconsider, but that does not alter your 45 days.


https://www.wicourts.gov/publications/guides/docs/proseappealsguide.pdf
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

fisthardcheese

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  • They forced arbitration into your contract. Use it
Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #64 on: May 04, 2017 02:05:02 PM »
There also appears to be a motion to reconsider, but that does not alter your 45 days.


https://www.wicourts.gov/publications/guides/docs/proseappealsguide.pdf

If this were me, I would not give Justice Buford another crack at trying to think.  I would just go for the appeals court.
11 Arb Settlements (9 AAA, 2 JAMS)
3 JDB Suits Dismissed With Prejudice (2 pro-se, 1 consumer atty)
3 TCPA Settlements (2 pro-se, 1 consumer atty)
2 FCRA Settlements (consumer atty)
1 FDCPA Settlement (w consumer atty)
1 Small Claims Win (pro-se; Landlord/state consumer law violations)
1 State UDAP Settlement (ITS)
1 Federal PTC Settlement (before hearing; pro-se)

BrokeBob

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #65 on: May 04, 2017 04:58:24 PM »
If this were me, I would not give Justice Buford another crack at trying to think.  I would just go for the appeals court.

As I've mentioned,  the appeals go to the Circuit Court, which has the most pro-consumer judges in the state. 

In fact, from what I've seen elsewhere on this forum, attorneys in this county recommend that their clients expect to lose in small claims court, and then fight the case before a real judge in Circuit Court. 

Lots of ways the OP can win this in Circuit Court. 

Bruno the JDB Killer

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #66 on: May 04, 2017 05:38:49 PM »
I think he's in Circuit Court. That's where they have commissioners, unless I missed something.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

BrokeBob

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #67 on: May 04, 2017 05:54:06 PM »
You did miss something. 

I am in the same county as the OP, and I have experience with the court system there.  More experience than I would like, I must say. 

Small Claims has commissioners.  Not the top legal minds in the state.

Circuit Court has judges.  The APPEAL is to Circuit Court.  I never appealed from small claims up to circuit court, but in retrospect I should have one time.  My mistake. 

Many of the finest judges in Wisconsin, and certainly the most pro-consumer judges in Wisconsin, are in the Circuit Court in that county.  I personally believe the State of Wisconsin would be better served if the entire state Supreme Court were fired and replaced by judges randomly picked from my county's Circuit Court, but that is just my opinion. 

In other words, the OP can go from a commissioner who made a ruling that was clearly mistaken to a real judge who actually knows the law. 

I'm not offering legal advice to the OP, just the ONLY two choices are:

1.   Accept the bad ruling
2.  Appeal to a real judge

WonderinginWI

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #68 on: May 06, 2017 06:41:18 PM »
BrokeBob is correct. My next step, because my first hearing was before a Commissioner, not a judge, is to request a Circuit Court Judge.  I am filing that Monday.

BrokeBob was also correct in his assessment of the level of legal expertise and understanding of at least one of the commissioners in our county. And it wasn't just my case. I admit, I don't know much --but I definitely knew more than the guy that presided over my case.

He blatantly ignored the rationales I presented and obviously had little understanding of pertinent case law or consumer statutes in our state. And not just in my case. I watched several cases before mine was heard and it was all I could do to not sit there with my jaw agape.

So, thanks again for all of your input. I couldn't have gotten this far without you. The other day was a setback, but it ain't over yet.

WonderinginWI

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #69 on: May 06, 2017 07:32:56 PM »
PS. Brokebob is also accurate in his assessment and recommendations re: our State Supreme Court, IMO.

Bruno the JDB Killer

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #70 on: May 06, 2017 07:33:48 PM »
You should be able to win an appeal, the commish obviously does not know this area of  the law. The case law you need comes from the Circuit Courts of Appeal and SCOTUS, virtually every one of them has ruled that you have a right to arbitration under the FAA.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

WonderinginWI

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #71 on: May 29, 2017 01:48:38 AM »
Hi there!  I'm back with an update and a question (of course).

I requested and received a hearing with a real judge.  Essentially, I get a do-over with an officiant likely much more aware of consumer law and its application. I filed a new MTC arbitration and re-filed (Thanks, BrokeBob!) with JAMS naming the correct respondent (Midland not Kohn, duh). The only thing left for me to do at this point is to compose a response to Kohn's brief in opposition to my MTC.

The response is almost complete but I was hoping the community could give me a bit of guidance in the area of case law.  An argument made by Kohn was that I had waived my right to arbitration, citing Meyer v. Classified Ins. Corp.,  179 Wis 2d., 395-396 (Ct. App 1993.)

I read the case and it says what Kohn says it does:

"Conduct which allows an action to proceed to a point where the purpose of arbitration- to obtain a speedy, inexpensive and final resolution of disputes- is frustrated, is conduct that stops a party from claiming a right to a stay of the proceedings and referral for contractual arbitration."

Kohn said that because they had filed a dispositive motion (I assume they mean their motion for summary judgement filed in April), it was too late for me to compel arbitration. What I don't understand is how the motion was truly dispositive because I was denying the facts they presented.

I am quite sure there is case law that contradicts 1) the understanding of the purpose of arbitration put forth in the case above and 2) the allowable timeline for demanding arbitration Kohn is presenting. I just don't know what it is and my searches haven't found anything that seems to fit exactly.

Just as a sidenote- Kohn hasn't filed a single thing since the venue was changed. I am not sure if they are going with what they have already filed or are waiting to ambush me like they did earlier.

Anyway, thanks in advance for any assistance!!

trueq

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #72 on: May 29, 2017 03:27:31 AM »
Kohn knows arbitration is a losing position for them.

Make sure you have arbitration intiated if you have not already done so!

Who is underlying OC again?

Might help to subscribe to PACER and look up Federal briefs from that bank that contructed the contract where their lawyers talk about their arbitration clause as a divine, unwaivable, right.

That might win the judge over if he is sitting on the fence on it.

Another argument is that pro se' should be granted more leeway on "waiver" than a real lawyer.    They still get their bite at the apple, they just have to do it in a way the contract dictates.

Those would be the 2 arguments to destroy the "waiver" argument.
My free speech is not legal advice.  If you need legal advice, you need to talk to a lawyer.

Litigation Defense record
Arbitration record:   9 wins * 0 loses
Court Record:         2 wins * 2 judgments (1 of the 2 judgments has been vacated, other judgment upheld on appeal, marked "satisfied", because I wrote a check.)

The one bank that beat me in court, I now have a $2200 limit credit card from them again.
Redemption is always possible.

WonderinginWI

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #73 on: May 29, 2017 12:06:15 PM »
Arbitration was initiated and Demand Form was filed with the court.

The OC is now Midland, who purchased from Synchrony.

I will check out PACER.

Thanks, Q.

Bruno the JDB Killer

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #74 on: May 29, 2017 12:39:31 PM »
Kohn said that because they had filed a dispositive motion (I assume they mean their motion for summary judgement filed in April), it was too late for me to compel arbitration. What I don't understand is how the motion was truly dispositive because I was denying the facts they presented.


Cute. They file a motion and you get blamed for it.



"If you are not satisfied with a decision (judgment or order) made by a Circuit Court Commissioner, you are entitled to appeal that decision to a Circuit Court Judge.  Parties can request a Trial DeNovo in two types of Civil Matters:  Restraining Orders and Small Claims actions. Both require a Circuit Court Judge to hear the case as if it was never heard before."


Is the above what you did? According to that, which is on the WI court web site, they should not be able to bring up anything that happened in the previous case.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.