Author Topic: Trying to figure out what to do- sued by Kohn in WI  (Read 2458 times)

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WonderinginWI

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #75 on: May 29, 2017 01:08:39 PM »
Yes, Bruno, I requested and was grated a Trial de Novo with a circuit court judge.

The instructions and rules for the Trial de Novo were not readily accessible so I went to the law library in the courthouse. The librarian and I spent quite a while researching. The gist of what we discovered is that the judge may consider all the old filings plus any new filings. Kohn hasn't filed any new stuff yet so I assume they're going with what worked for them first time around.

In addition to my MTC, I am refuting every point Kohn previously made and backing it up with the most recent case law.

trueq

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #76 on: May 29, 2017 06:00:13 PM »
Stick with the MTC arbitration.  You win that SJ motion is destroyed.

Defending their SJ motion is playing on their terms.

If the unthinkable happens, and judge denies your MTC....ask for a 60 day continuance to respond to SJ motion.

I have a winning SJ response brief a church member of mine used to beat Kohn on SJ outright (told him to file MTC arbitration, but he insisted to take Kohn on in SJ).   We talked about his brief a lot and I said it was a very good brief AND he should win on technical point  (combination of 422.409 and Palasades vs. Kalal witness problems for JDB)....but it all comes down to whether judge likes you better...so I gave him 50/50 on winning it.

Sure enough, he went in there and just pasted the Kohn lawyer on SJ.   Kohn lawyer was ticked.   (A certified bar lawyer should be ticked, being kicked around by a pro se' litigant on the law.)    This was a very conservative judge in a very conservative county not big on consumer rights....it should have been a cupcake walk for Kohn lawyer.   Instead, it was the mother of all defeats.

He was sure glowing after that victory.    Sometimes the hard road is more satisfying in the end.

So don't lose hope, if, for some reason, judge thinks this is "waiver" of arbitration on the MTC, even when it is not.

Aside from that issue being appealable, you can get continuence of SJ motion and do same thing guy I mentioned in this story did on SJ.

....but keep eye on ball MTC arbitration is the focus right now.


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.

CleaningUp

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #77 on: May 29, 2017 06:28:09 PM »
Something to remember if the plaintiff argues that you are participating in court and therefore waiving abitration:

The only reason that you are appealing is that he commissioner hearing the case made a legal error in not allowing arbitration per the contract.  You are not trying the case in court, you are trying the error of the lower court.

Bruno the JDB Killer

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #78 on: May 29, 2017 06:49:05 PM »
All you have to do to defeat their MSJ is use their own argument against them. The motion is improper and premature, since there is another  dispositive motion before the court to be decided, which is your MTC. A dispositive motion is one that disposes of the case. Arb disposes of the case.
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 #79 on: May 30, 2017 06:13:15 PM »
Thanks All!

If the unthinkable happens, and judge denies your MTC....ask for a 60 day continuance to respond to SJ motion.

TrueQ:  I believe my appearance before the commissioner spooked me.  Will the judge not say, "You've had weeks to respond to the SJ motion, why would I give you 60 more days?"




WonderinginWI

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #80 on: May 30, 2017 06:22:17 PM »
What should I offer in response to Kohn's argument that the purpose of arbitration is to settle disputes in an efficient and economical manner?  They complained that arbitration might cost them $5-10K and take months to resolve.

Bruno the JDB Killer

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #81 on: May 30, 2017 08:15:11 PM »
Contracts don't mention cost. Too bad for them if they don't like what's in the contract they are suing you under.
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 #82 on: May 30, 2017 08:47:48 PM »
Thanks Bruno!

I am putting finishing touches on my response to Kohn's Brief in Opp to my MTC.  I am finding loads of case law specifically relating to the arguments they put forth- and just for a bit of fun, I am including several cases where Midland themselves (plaintiff) is all whiny about why arbitration clauses should ALWAYS be enforced. hee hee

Bruno the JDB Killer

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #83 on: May 30, 2017 09:17:54 PM »
Do WI courts allow a reply to an objection? If not, your reply will be disregarded. Others who know WI law will chime in, but this is basic stuff in most jurisdictions. WI rules seem to be based upon the FRCP, which only allow a reply under certain circumstances.


The case law you mention should have been included in your original motion. Maybe it's just me, but I sense something going on here where you are being set up by Kohn. They are NOT stupid. We shall see.
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 #84 on: May 31, 2017 04:37:20 PM »
I don't know what the procedural rules are. 

In the old days I would submit a response to an objection, and it would be accepted.  Same county. 

Bruno is correct about the contract argument.  They cannot selectively apply the parts of the contract they prefer, and ignore the parts that are inconvenient at the time.  That is a complete red herring, and any competent judge will throw that out. 

There is one and only one way Kohn can win this one.  If they can convince the judge that Kohn filing a dispositive motion causes you to waive your rights to arbitration.  An action by THEM waiving YOUR rights. 

Simply, what actions caused arbitration to be waived in the case they cited?  Unless it was an identical or very similar situation, you argue that it doesn't apply because their actions cannot waive your rights. 

Here is what you need to work on, and this is NOT legal advice.

Kohn has good lawyers, and their lawyers are good public speakers who feel very comforatable in that courtroom.  The attorney has likely won cases before that judge in the past.  He is using that fact to try to intimidate you.  He may steam and fume and bluster and filibuster in the courtroom, but you will have your chance to speak.  When you do, compose yourself, and present your argument in plain English:  the contract they forced upon you has an arbitration provision, and you are simply availing yourself of your rights under their contract.  Simple as that.  Keep it Stupidly Simple. 

trueq

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #85 on: May 31, 2017 08:08:11 PM »
The expense argument is irrelevant.

Response to that is:

"His client as alleged asssignee assumed all the contract terms, not just the terms that allege I have to pay."    "either his client assumed the contract, or he did not....which is it?"

That will clarify issue into denying the contract or capitulating the contract terms.
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 #86 on: June 13, 2017 06:24:47 PM »
The date for the hearing set to hear my MTC is the end of this month.

With a significant amount of assistance from the experience and wisdom garnered here, I filed a brief outlining solid legal basis to refute every single arguement contained in Kohn's Brief in Opposition to my original MTC.

Just today, I received a copy of Kohn's new Brief in Opposition.  It is, word for word, the exact same document they filed originally except they tacked an additional statement on the end,

 "Here, not only was a dispositive motion filed, the Court has already heard the motion and granted said motion.
While the defendant certainly has a right to hear her case reheard on the merits on this denovo, she
does not get to remove the case to arbitration after losing at the commissioner level. To stop the
case now in favor of arbitration at this extremely late stage, as the case is set for Trial, would only
serve to frustrate the very point ofarbitration-to reach a speedy final resolution ofthe dispute. The
defendant has waived her right to arbitration."

So, here's my question:

In this brief, Kohn did not address or change a single arguement I'd challenged, including the one where they say the governing arb clause dissallows small claims cases.  It doesn't.  Even the Court Commissioner in the first hearing told the Kohn attorney that they had that wrong.  In my brief, I alleged that their attempt to miscontrue that clause is a violation of WI and Federal consumer law.  Does this continued insistance consistute further violation?

I almost feel like I'm being punked. That they are submitting this "placeholder" of an arguement for now and will hit me with some expert legal analysis at the actual hearing.

Any thoughts?

BrokeBob

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #87 on: June 13, 2017 09:59:19 PM »
Essentially, either the judge will rule you waived arbitration or won't. 

This new argument is pretty bogus.  It is saying that since the commissioner ruled against you, then filing for arbitration NOW is way too late.  IF this were the first time you elected arbitration, that argument might make sense. 

In fact, you filed an MTC before the commissioner ruled.  If the commissioner's ruling was incorrect, then they are just throwing mud around. 

Another point is that this is a de novo hearing, and in THIS hearing the first thing you did was demand arbitration, which you had already demanded in the original case. 

trueq

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Re: Trying to figure out what to do- sued by Kohn in WI
« Reply #88 on: June 14, 2017 03:14:06 PM »
You need a to submit a response brief with AN AFFIDAVIT testifying to your side of the facts.

In the response brief, accuse other lawyer of lying about timeline, he cannot testify to the facts of the issue here for his client.

Only your affidavit should be considered to the facts of when you exercised the arbitration clause....not the other lawyer's ongoing beligerance to escape the contractual clause.

You got 14 days from when you received opposition brief to file a response brief.

Keep it short, simple, to the point...the argument is about the facts, not the law, keep it focused on that.   You can't possibly have waived because you exercised clause early and often, they just ignored and are lying to the court.   That should be your focus.   Feel free to state it exactly like that.
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 #89 on: June 16, 2017 09:03:49 AM »
I think I just figured out why Kohn's new Brief in Opp to MTC (same as their old Brief) didn't address any of the rebuttals I'd made in my Brief in Response. 

For these new proceedings (trial de novo), I opted in as an e-filing party. Per WI rules, non-initiating documents (those other than Motions, Supoenas, etc.) do not have to be served on another e-filing party. The electronic filing serves as notification..  Kohn, as a high volume litigant, is required to e-file while pro se litigants are not.

Perhaps the reason Kohn is acting like they never read my Response is because they never read my Response. The hearing date is in a couple weeks. Maybe my Response will be brand new info to them like their original Brief was to me at the Commissioner hearing.

 

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