Author Topic: questions about civil procedure in WI  (Read 2730 times)

0 Members and 1 Guest are viewing this topic.

burnttoast

  • Valued Member
  • Posts: 21
questions about civil procedure in WI
« on: April 01, 2017 03:12:45 PM »
My question is about proper civil procedure in Wisconsin.
  • I am being sued by a JDB (JCS LLC) thru their lawyer M&K PA (also a "debt collector") - They filed on 1/18/17
  • I never received notification from either about being sued, BUT Lafayette Co. sent me a letter I was being sued - got the letter around 1/22/17
  • 1st court date was 2/6/17 I showed up to fight it... they did not.. per local court rules they set a hearing for 3/6/17
  • I called right after court to question why they didn't show up and the guy wanted all my personal info but i refused so he hung up on me ... its also recorded and they were informed. I called right back and talked to a lady and again informed her it was being recorded and we continued and she said he was already recorded to cease and desist from about 5 minutes earlier....so we hung up. anyways...
  • On 2/21/17 I faxed a validation letter to M&K PA ... (will have to attach on next comments)
  • I received a packet of about 40 pages of whats called discovery requests.... note the cover letter was dated Feb. 16th yet all formal signatures date it the 21st even the postmark. (attached)
I have yet to answer and I am almost done with it but thru this board I have found so much valuable information and am very GRATEFUL and I want to re-write it BUT as I'm learning the law... Ive discovered a few things, namely procedure and how I could get this dismissed.
  • I was told by a free legal service that I had until March 22nd to respond to their request and that was brought up on 3/6 and btw the lawyer from MN requested to phone in for that day the Judge asked him to file the motion... he did not to my knowledge
  • well so overwhelmed I never responded yet because I'm thinking I have until April 17th our next court date ...
  • on March 23rd I filed with the courts a request for production of documents from JCS LLC... (will have to attach on next comments)
  • on March 24th I received a copy of letter and scheduling Motion the judge asked the plaintiff to write ...from M&K PA stating I had until March 22 to file any motions... NOT TRUE!!! It was stated that i was advised by the legal service I had until March 22nd to respond NOT file any MOTIONS.... attached
  • on March 29th I filed a complaint with the CFPB and supporting documents (will have to attach on next comments)
  • on March 31st I received a letter from M&K PA that my response was overdue
  • any suggestions or comments are welcomed citing my rights or pointing to obvious

here is the law concerning civil procedure in Wisconsin
Quote
http://law.justia.com/codes/wisconsin/2011/802/802.06.html

I will have to add any remaining documents on next comments.

I want to add.... I think its SHOCKING this law firm lied in the schedule motion the judge requested them to submit for the case. Trying to trick the judge and cover their a** ...
 

burnttoast

  • Valued Member
  • Posts: 21
Re: questions about civil procedure in WI
« Reply #1 on: April 01, 2017 03:35:12 PM »
  • Just found the dunn letter! (attached)
  • Complaint filed with CFPB (attached)
  • Documents I submitted in that Complaint(attached)
  • Deceptive Scheduling Order  (attached)
« Last Edit: April 01, 2017 03:56:07 PM by burnttoast »

burnttoast

  • Valued Member
  • Posts: 21
Re: questions about civil procedure in WI
« Reply #2 on: April 01, 2017 03:41:02 PM »
any comments are so appreciated!!!
« Last Edit: April 01, 2017 03:57:03 PM by burnttoast »

Bruno the JDB Killer

  • BANNED
  • Posts: 14304
Re: questions about civil procedure in WI
« Reply #3 on: April 01, 2017 03:59:28 PM »
If they sent you discovery on Feb 21 you probably have 30 days to respond. (look it up)


on March 31st I received a letter from M&K PA that my response was overdue


It probably was.


On 2/21/17 I faxed a validation letter to M&K PA


Validation is improper after a suit has been filed.


on March 29th I filed a complaint with the CFPB and supporting documents


If this was about the court case, you wasted your time. the CFPB has no jurisdiction.


I have yet to answer


Did the Court grant you an extension? If not you can look forward to them filing for a default judgment or MSJ after having the requests deemed admitted.


I think its SHOCKING this law firm lied in the schedule motion


Really? You have a lot to learn about debt lawyers. It looks like a clerical error more than anything else. You are making a lot of rookie mistakes here; you need to study the rules of procedure instead of posting them here for us to read with all that other stuff.


how I could get this dismissed.


Highly unlikely. Dismissals are only granted for specific reasons. Those reasons are in your court rules. They are pretty much standard everywhere; so far I see nothing that fits.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

burnttoast

  • Valued Member
  • Posts: 21
Re: questions about civil procedure in WI
« Reply #4 on: April 01, 2017 04:07:46 PM »
I have been reading the laws since january... I should have posted i knew it was useless to file the debt validation request but i only learned that later... Also I have 45 days not 30 according to WI law Im looking for that now....

would you like me to delete my entire post then Id rather not waste anyones time. I have been apart of a secret group since last june studying laws and such I am working on a motion to dismiss on lack of standing and quite a few others. I was afraid to post for this very reason :(
Here are my defences thus so far:
Quote
DEFENSES
1.   As and for a First Defense:
Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.

2.   As and for a Second Defense:
Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.

3.   As and for a Third Defense:

Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.

4.   As and for a Fourth Defense:
Defendant claims a Failure of Consideration as there has never been any exchange of any money or item of value between the plaintiff and the Defendant .

5.   As and for a Fifth Defense:
Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

6.   As and for a Sixth Defense:

Defendant alleges that the Complaint includes references to alleged agreements made outside of the alleged written contract, violating the Parol Evidence Rule.

7.   As and for a Seventh Defense

Plaintiff's complaint fails to allege whether or not the purported assignment was partial or complete and there is no evidence that the purported assignment was bona fide.


8.   As and for an Eighth Defense

 Plaintiff's Complaint fails to allege that the Assignor even has knowledge of this action or that the Assignor has conveyed all rights and control to the Plaintiff. The record does not disclose this information and it cannot be assumed without creating an unfair prejudice against the Defendant .

9.   As and for a Ninth Defense

Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.

10.   As and for a Tenth Defense

Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.

Clydesmom66

  • Valued Member
  • Posts: 2165
Re: questions about civil procedure in WI
« Reply #5 on: April 01, 2017 04:46:36 PM »
I have been reading the laws since january...

There is a MAJOR difference between READING the laws and COMPREHENDING them and how to apply it to your case.  Based on what you posted so far you are clueless.

I have been apart of a secret group since last june studying laws and such I am working on a motion to dismiss on lack of standing and quite a few others. I was afraid to post for this very reason :(

I don't know what secret "group" you are a part of but they are taking you down a very dangerous path to a default judgment.  I don't agree with Bruno on much but you have made a LOT of mistakes so far.

Here are my defences thus so far:

2.   As and for a Second Defense:
Plaintiff admits to purchasing the defaulted debt allegedly owed by the Defendant, causing Plaintiff's injury to its own self, therefore Plaintiff is barred from seeking relief for damages.


Won't work and waste of time.  The courts ALL know they buy the accounts for pennies on the dollar.  NONE of that bars them from seeking relief.  Under basic contract law they step into the shoes of the original creditor with all the rights and responsibilities. 

3.   As and for a Third Defense:

Plaintiff's Complaint violates the statute of Frauds as the purported contract or agreement falls within a class of contracts or agreements required to be in writing. The purported contract or agreement alleged in the Complaint is not in writing and signed by the Defendant or by some other person authorized by the Defendant and who was to answer for the alleged debt, default or miscarriage of another person.


Utah is the only state that allows a Statute of Frauds defense is a credit card case. 

9.   As and for a Ninth Defense

Defendant claims Accord and Satisfaction as Defendant alleges that the original creditor accepted payment from a third party for the alleged debt, or a portion of the alleged debt, or that the original creditor received other compensation in the form of monies and/or credits.


The JDB buying your account does not absolve you of the debt.  It merely transfers the rights to collect from the OC to the JDB.  It means the OC can no longer try to collect from you under the Accord and Satisfaction doctrine NOT the JDB.

10.   As and for a Tenth Defense

Defendant invokes the Doctrine of Unclean Hands as the Defendant alleges that the Plaintiff or the person or entity that assigned the alleged claim to Plaintiff acted in a dishonest or fraudulent manner with respect to the dispute at issue in this case.


 :vbrofl:  If I had a nickel for every time a rookie added this defense in I could retire right now.  Best of luck with that.

ALL that list of defenses does is tell the court and the Plaintiff you can cut and paste from the internet and follow bad advice.  You REALLY need help with this and are about to get steam rolled.  You made MAJOR errors in the time line and filing timely responses to the court which now leaves you extremely vulnerable for a summary judgment. 

Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

Clydesmom66

  • Valued Member
  • Posts: 2165
Re: questions about civil procedure in WI
« Reply #6 on: April 01, 2017 04:53:38 PM »
any comments are so appreciated!!!

OMG.  Jefferson Capital.  What a shame you went with your "secret group" instead of a lawyer or coming here.  There are SO many things wrong with their discovery that had you done your homework could have defeated them already.

There is NOTHING deceptive about that scheduling order.  You didn't understand WI law and you had until March 22nd to file any motions.  The Plaintiff has until Monday.  If you failed to file any motions it is too late now.  WOW.  What a colossal up.
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

burnttoast

  • Valued Member
  • Posts: 21
Re: questions about civil procedure in WI
« Reply #7 on: April 01, 2017 05:19:48 PM »
Quote
OMG.  Jefferson Capital.  What a shame you went with your "secret group" instead of a lawyer or coming here.  There are SO many things wrong with their discovery that had you done your homework could have defeated them already..
I have denied their claim at every court date ! I thought I would be able to respond on March 6 or defend myself ... and a Motion hearing is set for April 17th. According to local court rules my response can be made if the judge schedules it after 30-45 days.... maybe this is A HUGE misunderstanding on my end. I truly have been doing my homework... but obviously I lack true understanding UGH

Quote
[There is NOTHING deceptive about that scheduling order.  You didn't understand WI law and you had until March 22nd to file any motions.  The Plaintiff has until Monday.  If you failed to file any motions it is too late now.  WOW.  What a colossal up/quote]

not true, I told the judge the legal firm said I should submit my answers by March 22nd ... The judge NEVER said I had to file any motions by March 22nd, and its all on record what was said....

also, according to my records the original amounts and original account numbers are not the same ... here is what legal advice they gave me :
A few observations about the paperwork you sent to me:
 
Quote
There is only a list of accounts for the last ‘bill of sale.’ How does one know that your account was in the previous sales without a list of accounts or something similar?  You should request those from the plaintiff by sending your own discovery list to the plaintiff.

the signatures on the bills of sale are not notarized, so they cannot be taken as evidence without further affidavits or testimony from a company who knows of the sales.  If you go to a hearing, you should point this out to the judge.

Bill of sale says “no warranties” so they cannot guarantee that the documents are correct by the seller so you should request statements that show how the plaintiff came to the amount due on the complaint.

The first bill of sale says that all accounts transferred from CIT Bank to MetaBank “except for any interest of Fingerhut.”  So you should question if Fingerhut accounts were actually included in that transfer and sale.

burnttoast

  • Valued Member
  • Posts: 21
Re: questions about civil procedure in WI
« Reply #8 on: April 01, 2017 05:33:42 PM »
Maybe this will help clarify my rights? Sent on March 22nd from an attorney. Please read and  your input is greatly appreciated, again.

also, I didn't file the complaint to help me with court I filed the claim because they never sent me validation !

Clydesmom66

  • Valued Member
  • Posts: 2165
Re: questions about civil procedure in WI
« Reply #9 on: April 01, 2017 05:39:14 PM »
also, according to my records the original amounts and original account numbers are not the same ...

They won't be the same.  It is nothing nefarious.  When a CA or a JDB gets an account they are required to assign it their own internal account number.  The amounts not being the same MIGHT be an issue or might not.  If the contract allows for the interest to continue or some states allow for pre-judgment interest then the amounts could be different.

There is only a list of accounts for the last ‘bill of sale.’ How does one know that your account was in the previous sales without a list of accounts or something similar?  You should request those from the plaintiff by sending your own discovery list to the plaintiff.

the signatures on the bills of sale are not notarized, so they cannot be taken as evidence without further affidavits or testimony from a company who knows of the sales.  If you go to a hearing, you should point this out to the judge.

Bill of sale says “no warranties” so they cannot guarantee that the documents are correct by the seller so you should request statements that show how the plaintiff came to the amount due on the complaint.

The first bill of sale says that all accounts transferred from CIT Bank to MetaBank “except for any interest of Fingerhut.”  So you should question if Fingerhut accounts were actually included in that transfer and sale.


Much of this is good but you are ill equipped to argue these points in court.  You will need case law and good RCP skills to effectively argue these points to a judge. 

The "no warranties" is not in reference to the documents of the OC.  It is in reference as to whether or not the account is collectable at all for any reason.  i.e. bankruptcy, already paid, consumer has died etc. 

Are they even suing you for a Fingerhut account?  If they are not then this is a waste of time.

I don't know who this "group" is but again, I am telling you they appear to be dangerous.
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

Clydesmom66

  • Valued Member
  • Posts: 2165
Re: questions about civil procedure in WI
« Reply #10 on: April 01, 2017 05:42:19 PM »
also, I didn't file the complaint to help me with court I filed the claim because they never sent me validation !

It doesn't matter.  Once they had sued they are NOT required to respond to your validation request under the FDCPA.  It is not a violation.  ALL information has to go through the court and discovery once that suit was filed.  PERIOD.  The CFPB is NOT going to act on your complaint. 

You are in over your head.  Even that low income law group is telling you that you are making mistakes according to that letter and because you stopped communication they closed your file. 
Be VERY careful following advice from the internet! What worked for someone with thousands of posts on a message board may not work for YOU in your state.  Consult a lawyer when ever possible.

Bruno the JDB Killer

  • BANNED
  • Posts: 14304
Re: questions about civil procedure in WI
« Reply #11 on: April 01, 2017 06:09:28 PM »
1.   As and for a First Defense:

Plaintiff failed to state a claim upon which relief can be granted. Plaintiff's Complaint and each cause of action therein fail to state facts sufficient to constitute a cause of action against the Defendant for which relief can be granted.



Okay, we're in Court. I'm the other lawyer and Clydesmom is the judge. Please present your argument that supports this defense. That is your obligation, you know. When you assert a defense you have the burden of proving it. Better you try it here than be embarrassed in court.

It's not that we're lording it over you, it's not even that you don't have much knowledge; it's that you are forging ahead  as if you know what you're doing when clearly you do not.

Most people come here and ask for advice as to what they can do. A very few throw a pile of garbage at us and ask us to justify it when we cannot. Everything you have done so far is incorrect from a procedural or legal standpoint.

If you think we're being tough on you, wait until you see what we do to each other. We have had our battles, but we respect each other's opinions and arguments, which we back up with legal precedent. A lot of what we do here is theory.

"I think this will work."

"Where is your case law?"

"I don't have any. Nobody ever made the argument quite this way before."

That's what you need to learn, and it takes a lot of time. If you can out think a debt collection lawyer, which my dog could do, you'll soon see how flustered they get when they realize they have been had.

You don't have to delete your post. Just start paying attention. One of the top experts on WI law is TrueQ, he will help you more on the technicalities. We others will teach you what not to do, and how to make a winning argument.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

burnttoast

  • Valued Member
  • Posts: 21
Re: questions about civil procedure in WI
« Reply #12 on: April 01, 2017 06:31:16 PM »
well I'm a sponge right now... but it may too late to teach me time wise... I really do appreciate you being straight forward and "tough" !!or how to file a Motion to Dismiss... I will do the homework in case law OR  Im open to any one recommending an attorney that will wait for payment or for them to pay my attorney fees ?

it IS from a fingerhut account... my balance was not what they are saying and also the account numbers are different....they added almost 750 to the amount.
I also learned JCS LLC is a debt buyer and claims to be a creditor but I never signed a contract with them nor made payments ever.. chain of command plays in here with at least 3 others before JCS LLC bought the account... to name a few I just dont know how to word it right is all!!

 to be honest I was just going to repeat over and over in court per M&K instructions "Defendant is at this time without knowledge or information sufficient enough to form a factual opinion as to the truth of the allegation." I then googled defences and wisconsin statutes and this led to another link and ultimately this board!!!!

thanks for all the advice ... and should I contact TrueQ ?
« Last Edit: April 01, 2017 06:43:52 PM by burnttoast »

BrokeBob

  • Valued Member
  • Posts: 1571
Re: questions about civil procedure in WI
« Reply #13 on: April 01, 2017 06:48:33 PM »
First off, the attorneys at M&K lie through their teeth all the time, because they can get away with it.  I'm not sure if they lied in this situation, but I am no more surprised that M&K attorneys would lie than if you told me my dog lifted his leg on a fire hydrant.

Your defenses look like you got them off a bad web site somewhere.

There are only two ways to win this one, and it may be too late for either of them.

1.  Wisconsin Statutes 422.409

2.  Motion To Compel arbitration.

BrokeBob

  • Valued Member
  • Posts: 1571
Re: questions about civil procedure in WI
« Reply #14 on: April 01, 2017 06:52:13 PM »
Major, major, major question here.

Did the judge ever sign that scheduling order?

If not, it has no validity whatsoever, and was just a suggestion on M&K's part.

If yes, you may already be way up the creek without a paddle. 

If yes, there is still SOME possibility you could get away with a MTC arbitration.  Probably too late, but you could try.