Author Topic: AFFIRMATIVE ANSWERS TO SUMMONS IN WISCONSIN, HELP  (Read 9733 times)

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Molegringa

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Re: AFFIRMATIVE ANSWERS TO SUMMONS IN WISCONSIN, HELP
« Reply #45 on: June 25, 2011 12:15:23 PM »
HarryC . . .  LOLOL . . .  I don't have time to sleep . . .  I'm cramming for the state bar exam . . .  OK, maybe I just feel like that . . .   :vbrofl:
« Last Edit: June 25, 2011 12:20:00 PM by Molegringa »

BrokeBob

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Re: AFFIRMATIVE ANSWERS TO SUMMONS IN WISCONSIN, HELP
« Reply #46 on: June 26, 2011 01:17:22 AM »
Molegringa-

I'm glad you found the provision in the WCA.  I forget, was it 425.104 and 425.105?  I forget at times. 

There are a couple of recent court cases.

First, the bad news:  If this were the OC, they would have to provide a strict accounting back to zero balance.  For some bizzarre reason, a JDB doesn't have to do that.  Courts make really weird rulings sometimes. 

The good news:  I've mentioned the Palisades case a few times.  Look it up.  Learn it.  It will be your best friend.  The Palisades case states that the written evidence MUST be verified by a qualified employee of the OC, who has first-hand knowledge of the file.  That is a VERY high hurdle for any JDB to jump.  It makes it VERY hard for them to get a judgment.

coltfan1972

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Re: AFFIRMATIVE ANSWERS TO SUMMONS IN WISCONSIN, HELP
« Reply #47 on: June 26, 2011 03:21:38 AM »
The good news:  I've mentioned the Palisades case a few times.  Look it up.  Learn it.  It will be your best friend.  The Palisades case states that the written evidence MUST be verified by a qualified employee of the OC, who has first-hand knowledge of the file.  That is a VERY high hurdle for any JDB to jump.  It makes it VERY hard for them to get a judgment.

This is nothing specific for Wisconsin.   This is how it works in all 50 states.  This is the number one problem for any JDB.  This is your biggest weapon and what I was advising you to read up on.  This is the sticky about this being the achilles heel for a JDB. 

While you can quote case law to support this position, it is not necessary.  A JDB, for obvious reasons, can't testify to the OC'S records.  They have no first hand knowledge of them.  In addition, any letter, assignment, bill of sale, or affidavit is hearsay without a person with first hand knowledge to authenticate.   They also can't use the business records exception as they were not an initial party to the OC'S records and have no knowledge of the OC'S business records policy. 

This is why my initial advice was to not request anything, except in a broad discovery request, that would tip them off about your knowledge of standing.  They might not be required to prove it in the initial stages.  However, sooner or later if your objection is framed properly they are sunk, game over. 

While i'm sure it's out there somewhere, I've yet to hear of a case where a JDB that paid about 2 cents on the dollar flew in officers from the OC to testify.   Another thing to keep in mind is the OC no longer has a dog in the fight.  The OC'S complete expenses would have to be paid by the JDB.  If there is two or more JDB'S involved they all have to be there to establish the chain of custody.  In other words, it's not happening. 

I have no idea if correct, but it has been reported that OC'S charge somewhere in the neighborhood of ten bucks a page for the OC'S records.  This is why in a DV response you might only get two or three statements. 

With all this taken into account, this is the perfect scenario of never chasing bad money with good money. 
Scroggin succeed in making this case an expensive nightmare for both CBOJ and its counsel.
Scroggin made a "mockery" out of CBOJ's deposition.

Scroggin made "perverted one-liners" during his deposition.
Scroggin called CBOJ'S counsel "a little witch"

Scroggin used the FDCPA as a "sword of intimidation."
Scroggin loves suing debt collectors.

Scroggin is proud of his behavior and "unapologetic."

Rebecca Worsham - Lead Counsel, Scroggin v. CBOJ- 3:12-cv-128, Eastern District of Ark.

Molegringa

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Re: AFFIRMATIVE ANSWERS TO SUMMONS IN WISCONSIN, HELP
« Reply #48 on: June 26, 2011 04:30:47 AM »
Brokebob & coltfan . . .

Thank you both SOOOOOOOOOOOOO MUCH,

Brokebob:  Statute 425.109 (h) I'm so glad I found it too . . . 

I think I'm good for right now, but who know's what's going to come down the road so I've  got my boxing gloves on and my feet firmly planted!!

BrokeBob

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Re: AFFIRMATIVE ANSWERS TO SUMMONS IN WISCONSIN, HELP
« Reply #49 on: June 26, 2011 03:38:37 PM »
Yes, you are right.  It is 425.109(h).   425.104 and 425.105 refer to the notice of right to cure default.  Read up on those as well.  If the OC never provided a 15 day Notice of Right to Cure Default, you can file for a MTD under those porvisions.  That doesn't work as much as it should, but it can slow things down a bit. 

In any case, if they don't have the writings as per 425.109(h), and they are NOT properly verified, they cannot win a judgment.  One of my favorite quotes from a judge in one of my cases.  The OC sued me, and the documents were "verified" by an affidavit by a "Litigation Support Specialist", who was a "registerd agent" of the OC.  The judge threw out the affidavit and the evidence, saying "I don't even know what a Litigation Support Specialist is"

coltfan1972

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Re: AFFIRMATIVE ANSWERS TO SUMMONS IN WISCONSIN, HELP
« Reply #50 on: June 26, 2011 04:13:19 PM »
One of my favorite quotes from a judge in one of my cases.  The OC sued me, and the documents were "verified" by an affidavit by a "Litigation Support Specialist", who was a "registerd agent" of the OC.  The judge threw out the affidavit and the evidence, saying "I don't even know what a Litigation Support Specialist is"

 :vbrofl:  That would be the guy in the next cube that has been there two weeks longer than anybody else. 
Scroggin succeed in making this case an expensive nightmare for both CBOJ and its counsel.
Scroggin made a "mockery" out of CBOJ's deposition.

Scroggin made "perverted one-liners" during his deposition.
Scroggin called CBOJ'S counsel "a little witch"

Scroggin used the FDCPA as a "sword of intimidation."
Scroggin loves suing debt collectors.

Scroggin is proud of his behavior and "unapologetic."

Rebecca Worsham - Lead Counsel, Scroggin v. CBOJ- 3:12-cv-128, Eastern District of Ark.

BrokeBob

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Re: AFFIRMATIVE ANSWERS TO SUMMONS IN WISCONSIN, HELP
« Reply #51 on: June 26, 2011 05:20:03 PM »
IMPORTANT!

I almost forgot this, and I cannot remember the exact place in the WCA where this provision is:

Under the Wisconsin Consumer Act, a transfer of a consumer debt from the OC to the JDB is NOT VAILD unless the OC sent a notification to the debtor.  I think it is somewhere in chapter 422.  I could be wrong. 

What I do know is:  I have seen copies of afirmative defenses written by experts who have defended JDB cases in WI, including the best known pro se litigator.   (no need to mention the name, since many law firms, esp. in WI, llok at DB, and they may do searches for his nomme de guerre  This winds up in the affirmative defenses pretty much 100% of the time. 

If I were defending against a JDB, which I have never done, I would rely heavily on 425.104 & 425.105, 425.109(h) and the provision about transferring rights to a JDB in my affirmative defenses.  But, that is just what I would do, based upon court filings I have examined in my state put together by people far more informed than I.  I have been known to use 425.104 & 425.105 as well as 425.109(h) as a basis for both affirmative defenses and for motions for dismissal. 

BrokeBob

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Re: AFFIRMATIVE ANSWERS TO SUMMONS IN WISCONSIN, HELP
« Reply #52 on: June 26, 2011 05:21:06 PM »
:vbrofl:  That would be the guy in the next cube that has been there two weeks longer than anybody else.

No, the one who has been there 2 weeks longer is the SENIOR Litigation Support Specialist.   :whackacow2:

Molegringa

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Re: AFFIRMATIVE ANSWERS TO SUMMONS IN WISCONSIN, HELP
« Reply #53 on: June 26, 2011 06:17:18 PM »
Thanks guys, you all are TOOOO FUNNY . . .

Reading and rereading EVERYTHING . . . have a copy of Palisades in my "file"

Brokebob; Is it the OC that needs to send the Right to Cure, or can it be the JDB???

going to look and see if I can figure it out now.  I think you're right the way I read it, it should be the OC . . . What do ya know  ;)

BrokeBob

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Re: AFFIRMATIVE ANSWERS TO SUMMONS IN WISCONSIN, HELP
« Reply #54 on: June 26, 2011 08:46:38 PM »
It does appear to be the OC. 

If you want, you could file a MTD instead of an answer, and then file the answers if you lose the MTD.  One possible way to do things:  demand the written evidence under 425.109(h), file MTD for Failure to State a Claim if the transfer of assets to the JDB was not valid, and another count for the MTD for Conditions Precedent for failure to provide a Notice of Right to Cure Default.  If you lose the MTD, THEN you can file answers and affirmative defenses, and possibly head the case to arbitration.  That would give you more time to learn all this stuff. 

You do seem to be learning very quickly, though. 

Molegringa

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Re: AFFIRMATIVE ANSWERS TO SUMMONS IN WISCONSIN, HELP
« Reply #55 on: June 26, 2011 09:09:04 PM »
Brokebob, Coltfan & others

Here is my FINAL ANSWER, (GULP)  I am filing tomorrow and sending all letters off CMRRR, with a courtesy copy for the judge (not sure if that's appropriate, but I'm doing it, if he wants to throw it away, that's fine

                                          
STATE OF WISCONSIN                     OMG COURT                   ABBA DABBA COUNTY
                                                                            CASE # ABC124
JDB
     Plaintiff

Vs

ME
     Defendant

ANSWER AND AFFIRMATIVE DEFENSES

    Comes now ME, Defendant herein, and submits her answers and affirmative defenses to the allegations contained in the Complaint filed against her herein.

FIRST DEFENSE

1. Admit allegations of paragraph one (1) of the Complaint, that the plaintiff in this action is  JDB, ASSIGNEE OF OC

2. Admit allegations of paragraph two (2) of the Complaint, that the Defendant is ME

3. Defendant is without sufficient information to admit or deny allegations of paragraph three (3) of the Complaint, therefore must respectfully deny that the plaintiff is in the business of purchasing debt, and is the assignee of OC, the original creditor involved in the credit transaction described below.

4. Defendant is without sufficient information to admit or deny allegations of paragraph four (4) therefore must respectfully deny the credit transaction is identified as Account # XXXXX.

5. Defendant is without sufficient information to admit or deny allegations of paragraph five (5) therefore must respectfully deny the Defendant defaulted under the terms of said credit transaction(s) by failing to make payments on said account(s) when due.

6. Defendant is without sufficient information to admit or deny allegations of paragraph six (6) therefore must respectfully deny the last charge or payment to said account occurred within six years of the date of the filing of this action.

7. Defendant is without sufficient information to admit or deny allegations of paragraph seven (7) therefore must respectfully deny the current balance due as of DATE is $XXX, with interest continuing to accrue at the current interest rate of X percent per year.

8. Defendant is without sufficient information to admit or deny allegations of paragraph eight (8) therefore must respectfully deny the Defendant refuse(s) to pay this debt despite due demand having been made by the plaintiff.

SECOND DEFENSE
Plaintiff fails to provide written proof of allegations.

THIRD DEFENSE
Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

FOURTH DEFENSE
Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

WHEREFORE, now having fully answered said Complaint, Defendant requests that said Complaint be dismissed, unless PLAINTIFF is able to submit to the court and the Defendant accurate copies of the written evidence, if any, of the Defendants alleged obligations as stated in this Complaint.  Therefore, Defendant is demanding strict written proof of alleged allegations. Statute 425.109 (h)

Respectfully submitted,


___________________________
ME, Defendant

CERTIFICATE OF SERVICE

I, ME (Defendant), do hereby certify that a true and correct copy of the above and foregoing answer and Affirmative Defenses has been sent certified mail, return receipt requested, postage prepaid, to  Law Firm, with courtesy copy sent to JDB, as well as a courtesy copy for the Judge B. Good TOMEE.

So certified, this the _____ day of _____________, 20 ___



_________________________________
Me, Defendant

OH MY, under number 8. there is no smiley face with sunglasses on my answers . . .  LOLOLOLOL
« Last Edit: June 26, 2011 09:20:17 PM by Molegringa »

BrokeBob

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Re: AFFIRMATIVE ANSWERS TO SUMMONS IN WISCONSIN, HELP
« Reply #56 on: June 26, 2011 10:27:12 PM »
This isn't perfect, but it will do.  I would add an affirmative defenses that there was no proper transfer of the debt from the OC to the JDB, and that there was no proper Notice of Right to Cure Default.  Make sure you send in the otherletter demand for written proof, as well.

coltfan1972

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Re: AFFIRMATIVE ANSWERS TO SUMMONS IN WISCONSIN, HELP
« Reply #57 on: June 26, 2011 10:43:00 PM »
Might seem innocent  but don't send a courtesy copy to the judge.   You will file your pleadings and that is how the judge will read what you file.   Not that your going to get in hot water being pro se, but ex parte communication with the judge should be avoided.   

Sending something to the judge direct is not a good idea.  It can put the judge in the position of having to notify the other side of the communication.  Obviously this is not something they want to be doing with there time.   

Just file your pleadings and send a copy to the other side.  Trust me, the court will look at anything in the file they feel is relevent to the case. 
Scroggin succeed in making this case an expensive nightmare for both CBOJ and its counsel.
Scroggin made a "mockery" out of CBOJ's deposition.

Scroggin made "perverted one-liners" during his deposition.
Scroggin called CBOJ'S counsel "a little witch"

Scroggin used the FDCPA as a "sword of intimidation."
Scroggin loves suing debt collectors.

Scroggin is proud of his behavior and "unapologetic."

Rebecca Worsham - Lead Counsel, Scroggin v. CBOJ- 3:12-cv-128, Eastern District of Ark.

trueq

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Re: AFFIRMATIVE ANSWERS TO SUMMONS IN WISCONSIN, HELP
« Reply #58 on: June 27, 2011 12:58:45 AM »
WI Consumer Act main points:   (For prelim dismiss motions)

Against an OC:

Demand 425.109 (1) and 425.109(2) paperwork!   Under Newgard vs. Bank of America OC is required to provide statements back to a zero balance, only on demand by the answer of consumer.

Any statements with charges they don't have, those amounts missing, get thrown out!   If they have no statements, no judgment can be rendered under 425.109(3)!   

BUT ONLY IF YOU MAKE THE DEMAND!   Demand it all: statements, applications, agreements, amendments to agreements, etc!   Only the statements is tested in case law here, for now.   Cap 1 had a case go to WI supreme court on whether application and cardholder agreement was needed, but it was settled before WI Supreme court got to it.   I suspect Cap1 was worried about precedent and let it go despite having summary judgment.

425.105 and 425.104, "Notice of right to cure Default".   This notice must be provided 15 days prior to suit or suit is barred under Indianhead.   Read the statue, this notice is specific in requirements and timing.    No one has ever done this properly in my experience.   

Against JDB or assign

425.109 has been neutered by Rsidue.   It seems JDB does not have to comply like OC on that.

However,

JDB still has to:
425.105 and 425.104, "Notice of right to cure Default".   This notice must be provided 15 days prior to suit or suit is barred under Indianhead.   Read the statue, this notice is specific in requirements and timing.    No one has ever done this properly in my experience.

The real hammer on JDB's in WI is 422.409.   Notice of assignment.   If you demand this notice, and in WI its imperative you demand this from first contact with JDB, if they do not provide or provide a computer sheet that says nothing, assignment is ineffective under WCA.   Meaning OC still has possession and if JDB sues, they have no standing...all kinds of offense can occur on your part from this happening to you.

If you cannot get case kicked for those things:

MTC arbitration!

If JDB still survives a MTC arbitration then:

You hit them with Palisades vs. Kalal on their defective SJ motion!

http://www.familyandconsumerlaw.com/2010/02/debtors-make-goal-line-stand-and-it.html

I HAVE NEVER LOST TO A JDB.

I have never seen a valid assignment from a JDB.  Even if they have an assignment, which i actually saw one once,  they cannot prove OC's assignment record, even if it is valid, under Palisades.

JDB's are to be kicked for sport, and in WI there is no excuse not to kick their robo-signing, fraudulent ways!


« Last Edit: June 27, 2011 01:26:41 AM by trueq »
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.

Molegringa

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Re: AFFIRMATIVE ANSWERS TO SUMMONS IN WISCONSIN, HELP
« Reply #59 on: June 27, 2011 01:21:23 AM »
TrueQ

I also have these affirmative Defenses (my first draft), but was afraid I was asking for too much, e.g. letting them know what I wanted.

 Should I use ALL of these NOW in my Defenses (425.109(1) 425.109(2), 425.104, 425.105 and 422.409)

OR

Do I file a  Prelim MTD, using these items (425.109(1) 425.109(2), 425.104, 425.105 and 422.409) ??? 


Or

Is the Prelim MTD the paragraph that follows the Defenses??) at the same time I file my Answers

I used 425.109 (h) at the end of Affirmative Answers. 

Which is the best way to go on the AFFIRMATIVE ANSWERS & DEFENSES . . .  all, little or somewhere in the middle?????  I just don't know which are the best to use.

I've spent the past week or so reading many of your posts and appreciate you taking a peek and providing info . . .

THANKS!!!

SECOND 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.

THIRD DEFENSE
Plaintiff fails to provide proof of allegations.

FOURTH DEFENSE
Plaintiff fails to provide "Notice of Right to Cure" Default 15 days prior to suit, site Wisconsin Statute 425.104 & 105.

FIFTH DEFENSE
Lack of Standing. Plaintiff has failed to provide a chain of ownership proving they are the real party in interest with standing to sue.

SIXTH 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.

SEVENTH DEFENSE
Plaintiff has provided no sworn statement testifying to the accuracy or validity of their recollection of the alleged account.

EIGHTH DEFENSE
Defendant claims Lack of Privity as Defendant has never entered into any contractual or debtor/creditor arrangements with the Plaintiff.

NINTH DEFENSE
Defendant reserves the right to plead other affirmative defenses that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account).

TENTH DEFENSE
Defendant reserves the right to submit counterclaims that may become applicable and/or available at a later time, (for example, if a real party in interest is established for alleged account) including, but not limited to, violations of the Federal Truth in Lending Act, the Fair Debt Collection Practices Act, and the Fair Credit Reporting Act.

ELEVENTH DEFENSE
Plaintiff has not shown the alleged debt is within the six (6) year Statute of Limitations for collections as required by Wisconsin Statute 893.43.





« Last Edit: June 27, 2011 03:04:54 AM by Molegringa »

 

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