Tag Archives: Law

How Pro Se Foreclosure Defense Litigants Can Effectively Defend & Save Their Homes

25 Thursday Jul 2013

Posted by in Affirmative Defenses, Appeal, Case Laws, Case Study, Discovery Strategies, Federal Court, Foreclosure Defense, Judicial States, Legal Research, Litigation Strategies, MERS, Mortgage Laws, Non-Judicial States, Note - Deed of Trust - Mortgage, Pleadings, Pro Se Litigation, State Court, Trial Strategies, Your Legal Rights

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I    General Answer Issues

•   Be sure to raise lack of standing as a defense in the homeowner’s answer if the plaintiff’s ownership of the note and mortgage is questionable. Standing/capacity to sue may be waived if not raised in the answer.

 •  Late Answers: 

 •  Pro se homeowners often do not file answers and do not seek attorneys until they receive notice of the settlement conference. In these circumstances, homeowner attorneys should serve and file a late answer. If the plaintiff rejects the answer, file a motion to compel acceptance of the late answer.

•   A court may permit a defendant to file a late answer “upon a showing of reasonable excuse for delay or default.” CPLR § 3012(d); Cirillo v.Macy’s, Inc., 61 A.D.3d 538, 540, 877 N.Y.S.2d 281, 283 (1st Dep’t 2009).

•   Mortgagor’s belief that foreclosure action was stayed during ongoing settlement negotiations with mortgagee was reasonable excuse for filing late answer. HSBC Bank USA, N.A. v. Cayo, 2011, 34 Misc.3d 850, 934 N.Y.S.2d 792.

•   Courts have routinely permitted service of a late answer where the delay was not willful, the defendant has meritorious defenses, and service of the answer does not unfairly prejudice the plaintiff. See, e.g., Nickell v. Pathmark Stores, Inc., 44 A.D.3d 631, 632, 843 N.Y.S.2d 177, 178 (2d Dep’t 2007); Jolkovsky v. Legeman, 32 A.D.3d 418, 419, 819 N.Y.S.2d 561, 562 (2d Dep’t 2006); Watson v. Pollacchi, 32 A.D.3d 565, 565-66, 819 N.Y.S.2d 612, 613 (3d Dep’t 2006); Nason v. Fisher, 309 A.D.2d 526, 526, 765 N.Y.S.2d 32, 33 (1st Dep’t 2003)

•   Allowance of a late answer is consistent with New York’s strong public policy in favor of a determination of controversies on the merits. See, e.g., Jones v. 414 Equities LLC, 57 A.D.3d 65, 81, 866 N.Y.S.2d 165, 178 (1st Dep’t 2008);Hosten v. Oladapo, 52 A.D.3d 658, 658-59, 858 N.Y.S.2d 915, 916 (2d Dep’t 2008); Kaiser v. Delaney, 255 A.D.2d 362, 362, 679N.Y.S.2d 686, 687 (2d Dep’t 1998).

Where the defendant has answered but not asserted a standing defense, a motion for leave to amend to assert a standing defense should be granted if such amendment causes no prejudice to plaintiff. U.S. Bank Natl. Assn. v. Sharif, 89 A.D.3d 723, 933 N.Y.S.2d 293, 2011 N.Y. Slip Op. 07835 (2d Dep’t Nov. 1, 2011) (motions for leave to amend should be freely granted absent prejudice or surprise from the delay in seeking leave; reversing denial of leave and holding that trial court should have dismissed for lack of standing upon plaintiff’s failure to submit either written assignment of note or evidence of physical delivery).

• New York law permits reciprocal attorney’s fees for homeowner’s attorney in defending against foreclosure on residential mortgages: RPL § 282.

 II.  Affirmative Defenses and Counter Claims

A.   Standing and Capacity To Sue

 •    Many documents needed to establish standing were “robo-signed”

•   Sloppiness in assigning mortgages to mortgage securitization trusts often makes it difficult for plaintiff trusts (or servicers) to establish standing.

 1.   The Difference Between Standing and Capacity to Sue

 a.   Standing Is Jurisdictional

•   U.S. Constitution Article III – Case and Controversy Requirement

•   Siegel on New York Practice: “It is the law’s policy to allow only an aggrieved person to bring a lawsuit. One not affected by anything a would-be defendant has done or threatens to do ordinarily has no business suing, and a suit of that kind can be dismissed at the threshold for want of jurisdiction without reaching the merits. When one without the requisite grievance does bring suit, and it’s dismissed, the plaintiff is described as lacking “standing to sue” and the dismissal as one for lack of subject matter jurisdiction.”

•   “Standing to sue is critical to the proper functioning of the judicial system. It is a threshold issue. If standing is denied, the pathway to the courthouse is blocked. The plaintiff who has standing, however, may cross the threshold and seek judicial redress….The rules governing standing help courts separate the tangible from the abstract or speculative injury, and the genuinely aggrieved from the judicial dilettante or amorphous claimant.” Saratoga County Chamber of Commerce, Inc. v. Pataki,   100 N.Y. 801, 766 N.Y.S.2d 654, 798 N.E.2d 1047 (2003)

•   New York courts have treated standing as a common law concept, in contrast to federal approach, where it rests on constitutional and prudential grounds. New York case law tends to blend standing with capacity to sue.

b. Capacity to Sue v. Standing

•   Capacity to sue goes to the litigant’s status, i.e., its power to appear and bring its grievance before the court. For example, a foreign corporation or LLC may not bring an action unless it is registered with the Secretary of State; minors lack legal capacity, etc.

•   Standing requires an inquiry into whether the litigant has an interest in the claim at issue that the law will recognize as a sufficient predicate for determining the issue at the litigant’s request. Is the relief sought in the case properly sought by this plaintiff?

 2. Standing in a Foreclosure Case

 •  Foreclosing plaintiff must own the note and the mortgage at the inception of the action. Deutsche Bank National Trust Co. v. Barnett, 88, A.D. 3d 636, 931 N.Y.S. 2d 630, 2011 WL 4600619 (2d Dep’t Oct. 4, 2011); Kluge v. Fugazy ,145 A.D. 2d 537, 536 N.Y. S. 2d 92 (2d Dep’t 1988)

•   Note: represents contractual debt obligation Mortgage: represents collateral security for debt

•   Assignment of the mortgage without assignment of the debt, i.e. the note, is a nullity.

•   Assignment must be complete before foreclosure is commenced

•   Assignment can be by written assignment or by physical delivery of note and mortgage.

•   An indorsed note (to the plaintiff or in blank) is not sufficient: the plaintiff must prove physical delivery before the foreclosure was commenced.

•   If a written assignment involved and has a date, the execution date generally controls.

•   Back dated assignment are ineffective absent proof of prior physical delivery. Wells Fargo v. Marchione, 69 A.D. 3d 204, 887 N.Y. S. 2d 615 (2d Dep’t 2009)

 3. Common Assignment Red Flags in Foreclosure Cases

Assignments that jump over links in the chain of title, including timing.

•  Suspicious or contradictory endorsements and allonges.

•  Assignments from MERS as nominee

•  Robo-signing of assignment documents

•  Mortgage-Backed Securities Investment Vehicles: Pooling and Servicing Agreements and non-compliance with trust closing dates and other terms

 4. MERS and Standing

•  Second Department: assignment from MERS when MERS is designated merely as nominee of lender, and never owned note, is ineffective to confer standing on its assignee.

Bank of New York v. Silverberg, 86 A.D. 3d 274, 926 N.Y.S. 2d 532 (2d Dep’t 2011). See also In re Lippold, 2011 WL 3890540 (SDNY Bkrtcy 2011)(MERS, as assignor, could not legally assign the note as prior holder of note and mortgage only conferred legal rights with respect to the mortgage); In re Agard, 444 B.R. 231 (SDNY Bkrtcy 2011) (mortgage naming MERS as nominee did not authorize it to assign)

•  Issues concerning who executes assignments on behalf of MERS (plaintiff’s counsel, robo-signing servicer employees?)

 5. Waiver of Standing Defenses

•  CPLR 3211(e) only provides that capacity to sue is waived; no mention of standing.

•  Wells Fargo Bank v. Mastropaolo, 42 A.D. 3d 239, 837 N.Y.S. 2d 247 (2d Dep’t 2007); HSBC v. Dammond, 59 A.D. 3d 679, 875 N.Y.S. 2d 490, 875 N.Y. S. 2d 490, (2d Dep’t 2009); Countrywide v. Delphonse, 64 A.D. 3d 624, 883 N.Y. S. 2d 135 (2d Dep’t 2009).

•  Cf. Security Pacific Nat’l Bank v. Evans, 31 A.D. 2d 278, 820 N.Y.S. 2d 2 (1stDep’t 2006) (plaintiff lender commenced action after merging with anotherbank; lack of legal capacity waived; not an issue of standing)

•  Some trial courts have held there is no waiver of standing defense where plaintiff had not appeared or answered altogether. Deutsche Bank v. McRae, 894 N.Y. S. 2d 720 (Allegheny Cty. 2010); Citigroup v. Bowling, 25 Misc. 3d 1244A, 906 N.Y. S. 2d 778 (Kings Cty. 2009).

 6.Leave to Amend Answer to Assert Standing Defense

U. S. Bank, Natl. Assn. v. Sharif, 89 A.D. 3d 723,933 N.Y.S. 2d 293, 2011 NY Slip Op 07835 (2d Dep’t Nov. 1, 2011) (reversing denial of leave to amend to assert standing and denial of motion to dismiss for lack of standing where plaintiff demonstrated no prejudice and failed to establish its standing to foreclose). Aurora v. Thomas, 70 A.D. 3d 986, 897 N.Y.S.2d 140 (2d Dep’t 2010) (affirming grant of motion for leave to amend to assert standing and capacity to sue, finding no waiver where documents relied upon were revealed during discovery); HSBC v. Enobakhare, 2010 Slip Op 31925 (U) (Richmond Cty. 2010) (granting motion for leave to amend answer; amended answer could assert defenses that were arguably waived by failure to assert originally)

• Deutsche Bank v. Ramotar, 30 Misc. 3d 1208(A), 2011 WL 66041 (Kings Cty. 2011) (denying summary judgment and order of reference, granting defendant who had previously answered pro se leave to file amended answer asserting standing and robo-signing defenses)

 7. Standing as a Meritorious Defense to Vacate Default Judgments/Plaintiff’s Motions for Default/Summary Judgment/Order of Reference and Absence of Standing

 •  Prima facie case in a foreclosure case requires showing of ownership of note and mortgage. Campaign v. Barba, 23 A.D. 3d 327, 805 N.Y.S. 86 ( 2d Dep’t  2005)

•  Distinction between moving to dismiss for lack of standing when defense has arguably been waived and opposition to plaintiff’s motion for summary judgment and order of reference for failure to establish ownership of note (prima facie case)

8. Sua Sponte  Dismissals on Standing Grounds/Robo-signing Concerns

•  Financial Freedom v. Slinkosky, 28 Misc. 3d 1209(a) (Suffolk Cty. 2010) (denying summary judgment where plaintiff failed to submit note and mortgage and failed to demonstrate standing) HSBC Bank USA, N.A. v Taher, NY Slip Op 51208(U) (Sup. Ct. Kings Cty., July 1, 2011) (denying order of reference, making detailed analysis of robo-signed assignments and affidavits of merit and amounts due, questioning employment histories of individuals who signed papers on behalf of different entities, determining that plaintiff lacked standing to foreclose because, among other reasons, assignment of mortgage from MERS as nominee, which never owned note, was ineffective, and dismissing with prejudice. In light of frivolous motion for order of reference by HSBC and its counsel, court scheduled hearing on sanctions and ordered chief executive officer of HSBC to personally appear at hearing)

9. Standing as Meritorious Defense (for leave to file untimely answer or to vacate default)

 •   Deutsche Bank National Trust Co. v. Ibaiyo,  20910-08 (Queens Ct. 2009) (meritorious defense criteria for CPLR § 3012 motion to extend defendant’s time to answer)

•  Maspeth Federal Av. & Loan Ass’n v. McGown, 77 A.D. 3d 890, 909 N.Y. S. 2d 642 (2d Dep’t 2010) (trial court has considerable discretion on applications to vacate default and extend time to answer when determining existence of meritorious defense and reasonable excuse for default)

 10. True Capacity to Sue Issues

•  BCL §1372 (prohibits lawsuits by foreign corporations not authorized to do business in NY)

• Exception for foreign banking corporations via BCL § 103(a) and Banking Law § 200(4).

•  Sutton Funding LLC v. Parris,  24 Misc. 3d 889, 878 N.Y.S.2d 610 (Kings Cty. 2009) (dismissing foreclosure where plaintiff was not a foreign bank and was not authorized to do business in NY)

 B.  Federal Fair Debt Collection Practices Act (FDCPA), 15 U.S.C. § 1692-1692p

 1. Scope of FDCPA Coverage

a.  Who is covered

•  Applies to debt collectors. § 1692a(6)

•  Debt collector is any person who uses any instrumentality of interstate commerce or the mails in any business the principal purpose of which is the collection of any debts

•  For §1692f(6) purposes it also includes any business the principal purpose of which is the enforcement of security interests.

 •  Or, any person who regularly collects, directly or indirectly, debts  owed or due or asserted to be owed or due another.

 •  Includes debt buyers

 •  Includes attorneys who regularly collect consumer debts.

 •  There used to be an exemption for attorneys collecting on behalf of and in the name of a client. In 1986, Congress repealed this exemption.

b. Who is not covered

 • Original creditors.  § 1692a(6)(F)(ii)

 • It does include any creditor who, in the process of collecting his own debts, uses any name other than his own which would indicate that a third person is collecting or attempting to collect such debts. § 1692a(6)

 • Creditors employees or agents collecting in the name of the creditor. § §692a(6)(A)

 • State and federal officials performing their duties, such as the IRS or U.S. Dept. of Education. § 1692a(6)(C)

 • Persons collecting debts not in default, such as some servicers. §1692a(6)(F)(iii)

• Process servers. §1692a(6)(D)

 • At least one court has held that they are covered if they are engaging in sewer service Mel Harris v. Sykes, 757 F.Supp.2d 413 (2010)

 c. What transactions are covered Consumer debts

 •  Consumer is defined in § 1692a(3) as “any natural person obligated or allegedly obligated to pay any debt”

 •  Does not apply to artificial entities, such as corporations Debts are defined in § 1692a(5) as any obligation of a consumer to pay money

 •  underlying transaction must be for money, property, insurance, or services

 •  must be primarily for personal, family or household purposes

 •  no business debts or fines Communications – § 1692a(2)

 •  Means the conveying of information regarding a debt directly or indirectly to any person through any medium

 •  Also applies to statements and activities during the course of litigation. Heintz v. Jenkins , 514 U.S. 291 (1995)

 •  Recent amendments to FDCPA clarify that a legal pleading

cannot be considered an “initial communication” under FDCPA.

•  Note that this is a narrow amendment; other provisions of FDCPA still apply.

 2. Substantive Consumer Protections

 •  Cease communications. § 1692c

 •  Dispute/verification. § 1692g

 •  Notice within 5 days of initial communication

 •  Right to dispute within 30 days of receiving notice

 •  Once debt collector receives dispute in writing, must stop all debt collection activity (including filing a lawsuit) until it provides “verification” of the debt.

 •  NOTE: Local NYC law expands these dispute rights. Under local law, consumers can request verification at any time. NYC Admin Code § 20-493.2.

 •  Verification must include (1) copy of the contract or other agreement creating the obligation to pay (2) copy of final account statement (3) an accounting itemizing the total amount do, specifying principal, interest, and other charges.

 For each additional charge, the debt collection must state the date and basis for the charge. See  § 2-190 of the Rules of the City of New York.

 3. Prohibited Activities

 •  Communications. §§1692b & 1692c

 •  Contacting consumer after consumer sends cease communication letter

 •  Contacting consumer who is represented by counsel

 •  Contacting third parties about a consumer’s debt

 •  Contacting consumer at work if debt collector has reason to know that consumer’s employer prohibits such communication

 •  Common scenario: Debt collector can’t reach consumer, so calls consumer’s neighbor/family member/employer and leaves telephone number and message for the consumer to call back about an important matter. This is a violation.

 •  Harassment or Abuse. § 1692d

 •  Debt collector may not engage in conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with collection of debt

 •  Includes: threats of violence, use of profanity, repeated telephone calls for purpose of harassment, calling without disclosure of identity (e.g. threats to repossess property)

 •  False or Misleading Representations. § 1692e

•  False representation of character, amount, or legal status of any debt (e.g., suing for more interest and fees than is actually owed)

 •  Threat to take any action that cannot legally be taken or is not intended to be taken

 •  Implying that consumer could be arrested or children taken away for nonpayment of debt

 •  Pretending to be attorney, marshal

 •  Making false or inaccurate reports to credit reporting agencies

 •  Unfair Practices. § 1692f

 •  Using unfair or unconscionable means to collect a debt

 •  Collection of any amount (including interest and fees) that is not actually owed

 •  Threatening to take or repossess property (a) without the right; (b) without the intent; (c) if property is exempt

 4. FDCPA Litigation and Remedies

 a. Statute of limitations

 • one year from the date on which the violation occurs – § 1692k(d)

 • No continuing violations doctrine

 b. Jurisdiction

 • May bring in either state or federal court

 • May also bring as a counterclaim in a debt collection suit

 c. Construction

 • Strict liability statute – proof of the debt collector’s intent is not required

 • intent is a factor that can be used when calculating damages

 • Courts apply a “least sophisticated consumer” standard to analyze violations

 d. Remedies

 • Up to $1000 statutory damages

• A majority of courts hold that capped at $1,000 per action no matter how many violations are joined in the lawsuit

 • Per Plaintiff

 • Sometimes per Defendant, depending on the violation

 • Factors used by courts in determining statutory awards:

 • Intent to commit the violation or evade the protections

 • Repetition of the violations

 • Timely correction of the violations

 • Multiple consumers affected by the violations

• Prior violations by the collector for similar acts

 • Actual damages

 • Attorney’s fees

 • Declaratory relief

 • No Injunctive relief

 C. NYS Banking Law Defenses

 1. Banking Law § 6-l

 • Applies to loans made after April 1, 2003.

 • Covers “high – cost home loans”: a first lien residential mortgage loan, not exceeding conforming loan size for a comparable dwelling as established by the Federal National Mortgage Association in which (1) the APR exceeds eight percentage points over the yield on Treasury securities having comparable periods of maturity; or (2) total points and fees exceed 5% of the total loan amount, excluding certain bona fide discount points if total loan is $50,000 or more.

 • Prohibits, inter alia, (1) lending without regard to a borrower’s ability to repay; (2) points and fees in excess of 3% of the loan; (3) loan flipping; (4) kickbacks to mortgage brokers; (5) points and fees when lender refinances its own high-cost loan; (6) balloon payments, negative amortization, and default interest rates.

 • Provides private right of action with 6-year statute of limitations (from origination); actual and statutory damages; attorney fees; possible rescission of the loan.

 • Intentional violation may result in voiding of the loan.

 2. Banking Law § 6-m

 • Covers “sub-prime home loan”: a loan where the fully indexed APR for the first-lien loan exceeds by more than 1.75, or for a subordinate loan by more than 3.75, the average commitment rate for loans in the northeast region with a comparable duration as published in the Freddie Mac Primary Mortgage Market Survey (PMMS) in the week prior to the week in which the lender received a completed loan application.

 • Lenders must take reasonable steps to verify that the borrower has the ability to repay the loan, including taxes and insurance.

 • Prohibitions similar to those in Banking Law §6-l.

 • Lenders must disclose charges for taxes and insurance and must escrow such payments after July 1, 2010.

If you are ready to take the battle to these interlopers, in order to defend and save the home that is rightfully yours, visit http://www.fightforeclosure.net

 

 

 

 

 

 

 

How Pro Se Litigants Can Effectively Conduct Discovery for Their Court Cases

16 Tuesday Jul 2013

Posted by in Discovery Strategies, Fed, Federal Court, Foreclosure Defense, Judicial States, Litigation Strategies, Non-Judicial States, Pro Se Litigation, State Court, Trial Strategies

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Discovery is the pre-trial phase in a court case during which each party can use certain methods to obtain information and facts and gather evidence about the case in preparation for trial. It is the principal fact-finding method in the litigation process.

Almost all trial courts allow a wide scope for discovery, the theory being that all parties should go to trial with as much knowledge as possible, and that the parties should not be able to keep secrets from each other. This broad right can involve the discovery of any material relevant to the case excepting privileged information that is privileged or information that is the work product of the lawyers for the other side.

This is different from what you’ve seen on television and in the movies where there is a surprise witness or a missing document is found. The goal of discovery is to avoid surprises and for all parties to go to trial with as much information as possible. Not surprisingly, many cases will settle during the discovery phase as a result of what is discovered and what would be unwise to disclose in discovery.

In practice, the majority of civil cases settle after or during discovery. After discovery, both sides usually are in agreement about the strength and weaknesses of their cases, which may lead to a settlement that eliminates the expense and risks of a trial. The use of discovery is sometimes criticized as favoring the wealthier side as one tactic is to make requests of information that are expensive and time-consuming for the other side to fulfill.

Types of Discovery
The most common types of discovery include:

  • Required Disclosures. Parties are required to disclose certain information regarding four kinds of core information without a discovery request that concerns witnesses, documents, damages, and insurance. Parties must also disclose information about any expert witnesses who may be used at trial to present evidence. Any report written by an expert retained to give testimony must also be disclosed. Before trial, the parties must disclose witnesses who will be called at trial and those who may be called at trial including those witnesses who will be presented through depositions. In addition, the parties must disclose a list of exhibits that will be presented at trial and exhibits that may be presented at trial.

  • Depositions. A device by which one party asks oral questions of the other party or of a witness for the other party. The deposition is taken under oath outside of the courtroom, usually in one of the attorney’s offices. The deposition is transcribed by a court reporter and a copy of the transcript is provided to both parties. The transcript of a deposition may be used as evidence at trial.
  • Written interrogatories. A set of written questions about the case submitted by one party to the other party, witness, or other person having information of interest which must be answered under oath, and the answers to which must be provided to the requesting party within a set period of time.
  • Production of documents and tangible things. A written request asking the other party to produce specified documents or things relevant to the case. An early request to view documents and other evidence allow for a viewing of evidence that might deteriorate over time. It will also prevent many instances of the disposing of such evidence.
  • Physical and mental examinations. A written request submitted to the other party requesting that a physical and/or mental examination be made of a party.
  • Requests for admission. Written statements of facts concerning the case that are submitted to the other party that the party is required to admit or deny. Statements that are admitted will be treated by the court as having been established and need not be proven at trial.

All discovery requests must be reasonably complied with, answered, or objected to in the proper amount of time. If discovery requests are not answered or objected to, and sometimes if they are improperly answered or an improper objection is made, the side requesting the discovery may ask the court to compel proper responses, including the production of the requested discovery. The court may assess sanctions against a party not responding properly to discovery requests.

Conducting Discovery Once an answer to a lawsuit is filed, the time for conducting discovery begins. The timing and methods for conducting discovery will vary from state to state and from court to court. There are substantial and numerous rules governing discovery in each case. You should check your state rules and court rules for conducting discovery. Although there is a broad scope of what may be requested in discovery, there are strict deadlines for requesting discovery and responding to discovery requests. It is very important to be aware of and follow the deadlines because of the potentially serious consequences for non-compliance.

Discovery is conducted by sending written requests in a proscribed form to the opposing party specifically listing the type of discovery sought, the manner in which it will be obtained, and the time for complying with the request. Check your state and local rules for the required form of these requests.

Each state’s rules will include versions of the following rules:

    1. Written Interrogatories
    2. Demands for Inspection
    3. Requests for Admission
    4. Propounding Party (party making the discovery request)
      • Format of the discovery request;
      • On whom the request should be served;
      • Which party retains custody of the original discovery request; and
      • Filing requirement (most discovery is not required to be filed with the court unless pertinent to a motion heard before the court).
  1. Responding Party
    • Format of written response;
    • Effect of failure to respond in timely fashion;
    • Objections to the discovery request;
    • Verification (responding party must sign the responses under oath);
    • On whom the responses should be served; and
    • Filing requirement (most discovery is not required to be filed with the court unless pertinent to a motion heard before the court).

    Each state will have its own rules as to when a plaintiff and when a defendant may serve notice of taking a deposition that is initiated by serving notice on the other party in the required format. The notice will indicate whose deposition will be taken, when it will be taken, and where it will be taken. There will also be rules concerning compelling a person or party to be deposed and steps to take to compel attendance at a deposition.

    Each state will have its own rules as to the production of documents and tangible things. The party requesting the production must serve notice of the request in the required format. The notice will indicate which documents and things are to be produced, and when and where they are to be produced. There will also be rules for steps to take to compel production.

    It is a general rule that all parties involved in civil litigation, whether represented by an attorney or not, should be civil to each other. One of the things encompassed within this requirement for civility is the accommodation of each other’s schedules within reason and is particularly important with discovery because of the tremendous amount of information being obtained and exchanged. If either party reasonably requests to change a time for a deposition or the time for exchange of documents, the other party should be accommodating. If the other party seems to make a practice of requesting changes, not complying with discovery requests, or only partially complying, it might be time to go to court and request sanctions.

  2. For More Information How You Can Effectively Use Correct Discovery Procedures To Your Advantage in Winning Your Wrongful Foreclosure Litigation Visit http://www.fightforeclosure.net

Pro Se Guide To Civil Litigation

16 Tuesday Jul 2013

Posted by in Appeal, Discovery Strategies, Federal Court, Foreclosure Defense, Litigation Strategies, Pleadings, Pro Se Litigation, Trial Strategies, Your Legal Rights

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Civil Procedure Outline

I.        The Adversarial System

A.     Four Lessons

1.      Doctrine

a.       Formal rules of litigation (FRCP)

2.      Strategy

a.       Practical considerations (time, money principle)

3.      Theory

a.       Different frameworks for understanding the civil litigation system

4.      Skills

a.       Actual practice (drafting a complaint, answer, negotiation)

B.     Theories of Adjudication − FRCP 1: Rules shall be construed and administered to secure the just, speedy and inexpensive determination of every action. FRCP 1 does not provide much guidance. Therefore, the three theories below are applied

1.      Fair Fight

a.       Judge is passive referee that simply follows and enforces the rules

b.      The only interests are those party to the litigation.

c.       Mitchell v. A&K − Truck on the premises

2.      Justice Between the Parties

a.       Judge is active and corrects for disparities between the parties

b.      Only interests are those party to the litigation

c.       Conley − Black workers’ complaint lacks sufficiency but is accepted because need discovery

3.      Greater Good

a.       Judge is active and considers larger interests of society

b.      Takes into account third parties (other interest than just those before the court)

c.       Band’s Refuse − Judge called own witnesses and introduced own evidence

II.     Initiating the Lawsuit

A.     Plaintiff’s Claim (Complaint)

1.      Process

a.       File − FRCP 3: Action is started by filing the complaint with the court

b.      Serve − Complaint is given to the opposing party or parties

2.      Rules for assessing a complaint

a.       FRCP  8(a) − A pleading which sets forth a claim for relief shall contain

·        8(a)(1) − A short plain statement of the grounds upon with the court’s jurisdictions depends, unless the court already has jurisdiction and the claim needs no new grounds for jurisdiction to support it;

·        8(a)(2) − Short, plain statement of a claim showing pleader is entitled to relief; and

§         Flaws to avoid

§         Missing an element

                                                                                                                                       i.      Concerns include

·        Δ cannot answer

·        Notice to the court

·        Flush out meritless claims

§         Negating an element

§         Establishing an affirmative defense

·        When flawed − Subject to motion to dismiss

§         Particularity

§         Beyond reasonable doubt that plaintiff can prove no set of facts to establish claim Connely = Mere possibility

§         Particular enough that can draw fair inference
Sutliff = fair inference

·        8(a)(3) − a demand for judgment for the relief the pleader seeks; relief in the alternative or of several different types may be demanded

b.      Background rules

·        Allegations taken as true

·        Allegations considered on their face (no evidence) Mitchell v. A&K

·        No legal argument Sutliff

3.      Notice Pleading − level of detail or specificity

a.       FRCP 12(b)(6) − complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that  plaintiff can prove no set of facts in support of claim

i.                     Mere possibility
Complaint should not be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief

1.      Conely v. Gibson − Black union members sue for discrimination, defendant moves to dismiss for failure to state a claim, court holds for plaintiff

ii.                   Fair inference
Complaint must contain either direct allegations on every material point necessary to sustain a recovery or allegations from which an inference fairly may be drawn that evidence of material points will be introduced at trialSutliff v. Donovan

iii.                  Specific facts
Not good law Gillispie

b.      FRCP 12(e) – Request for the Π to give a more definite statement of the allegations in the complaint

i.                     Board of Harbor Commissioners
Facts: Oil discharged into waterway. Unclear who did it. D moves for more definite statement in order to frame an appropriate response pursuant to Rule 7. Court held for P.
Rule: Leans toward the fair inference standard. Information is specific enough b/c all of the elements are addressed.
(If P gives more definite statement that is still not specific enough can follow up with motion to dismiss)

c.       FRCP 12(f) − Motion to strike redundant, immaterial, impertinent and scandalous matter

4.      Policy considerations for determining whether the complaint is specific enough (background policy considerations for borderline cases)

a.       Sufficient notice to the D

b.      Allows investigation

c.       Provides early assessment of the merits

d.      Prevents a fishing expedition

e.       Who has access to the additional info

f.        Harm is worthy of the litigation

5.      Pleading in the alternative

a.       FRCP 8(e)(2): A party may set forth 2 or more statements of claim or defense alternately or hypothetically

i.                     If by the nature of the circumstance the P would not know which allegations are right

ii.                   Lack of knowledge – pleading in alternative is OK

iii.                  If facts should be known – pleading in the alternative not OK

iv.                 Can only collect on one of the claims

b.      McCormick v Kopmann (Car Crash Case)
Facts: McCormick dies in head on collision. Wife sues (1) bar owner (Huls) for over-serving alcohol  and (2) driver (Koppman) for crossing over the center line, causing the collision with her husband. Koppmann moves to dismiss b/c of contradicting allegations. Denied.
Rule: Pleading in the alternative is allowed where the P lacks knowledge about the key facts in good faith
Policy: Look at the models of adjudication

i.                     Justice between the parties − Should not be able to plead in the alternative if she knows the truth

ii.                   Fair fight − Should be able to use the evidence b/c it could be used against her

6.      Heightened Pleading Standard

a.       FRCP 9(b)– In all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity. Malice, intent, knowledge and other condition of the mind of a person may be averred generally

i.                     Strong inference standard

b.      PSLRA(Private Securities Litigation & Reform Act) − State with particularity facts giving rise to a strong inference that D acted with required state of mind

i.                     2nd Circuit – Strong Inference Standard (majority approach)

·        P must show motive and opportunity to commit fraud

ii.                   9th Circuit – Great Detail Standard

·        P must plead with great detail for deliberately reckless OR conscious misconduct (allegations in detail of who, what, when, where, how)

c.       Background policies for general particularity and heightened pleading

i.                     Giving notice to the D and the court

ii.                   Sometime giving the court the ability to assess the merits

iii.                  Preventing fishing expeditions

iv.                 Being attentive to who has the factual information

d.      Ross v. Robins (Faulty Birth Control Case) – 2nd Circuit
Facts: Ross purchases shares of Robins. Robins did not report safety and efficiency problems with the Dalkon Shield, but knew about them. After FDA made a public disclosure of the problem, stock prices fell. D moves to dismiss under 12(b)(6) for failure to comply with 9(b). Move to dismiss granted. P appeals.
Rule: Cases involving the Private Securities & Litigation Reform Act must meet a heightened pleading standard. . . strong inference standard.

e.       Cash Energy v. Weiner (Environmental Cleanup Case)
NOT GOOD LAW
Facts: Cash Energy engaged in storage and/or transfer of chemical solvents on a site adjacent to Weiner’s property. Weiner believes his land has been contaminated as a result of this activity. D moves to dismiss under 12(b)(6) for failure to comply with 9(b). Court grants motion to dismiss. P appeals.
Rule: Court holds cases involving CERCLA to heightened pleading standard, but this is not the law.

f.        Leathermann v.Tarrant County (Drug Bust Case)
GOOD LAW
Facts: Tarrant Co. obtains search warrants. Homeowners claimed assault. Rule: Rule 9(b) only applies to cases involving fraud, mistake or PSLRA. Rule 8(a)(2) still stands otherwise. Cash Energy is NOT the law. Rely on Leatherman.

7.      Voluntary dismissal

a.       FRCP 41(a)(1) − P can dismiss the case unilaterally as long as it is before service of an answer or a motion for summary judgment. If after the answer or motion, must have stipulation of both parties.

b.      FRCP 41(a)(2) − If parties are not in agreement, will need dismissal by order of the court

i.                     First time dismissed without prejudice

ii.                   Second time dismissed with prejudice

iii.                  If court doesn’t otherwise say, it is dismissed without prejudice.

c.       Reasons for voluntary dismissal

i.                     To file in another jurisdiction (don’t like the judge)

ii.                   A way to avoid sanctions under Rule 11

iii.                  If judge may grant a motion to dismiss under Rule 12, might want to pre-empt the ruling

iv.                 The SOL may be running so just decide to go away quietly

B.     Defendant’s Response

1.      RULE 12 MOTIONS

a.       Rule 12(a) − Timing to file responsive pleading

i.               12(a)(1)(A) − Answer complaint w/in 20 days

ii.             12(a)(4)(A) − After filing and serving 12(b)(6) motion, wait to hear back from court

iii.            12(a)(4)(A) − 12(b)(6) denied then must answer within 10 days

iv.           12(a)(4)(A) − If court postpones ruling on 12(b)(6), must answer withing 10 days

v.             If court grants motion to dismiss do not need to answer

vi.           12(a)(1)(A) − Grants leave to amend, court will specify timing

vii.          12(a)(4)(A) − If court denies motion to strike then must answer within 10 days

viii.        12(a)(4)(B) − If court grants motion to strike then must answer within 10 days

Timing under 12(a)

Within 20 days

Within 10 days

Never

Answer complaint

12(a)(1)(A)

File and serve a 12(b)(6) motion

12(a)(4)(A) wait for court to rule

12(b)(6) motion is denied

12(a)(4)(A)

Court postpones ruling on 12(b)(6) motion

12(a)(4)(A) after notice by court

12(b)(6) motion is granted

Never

Grants leave to amend

12(a)(1)(A) Once P has amended, court will specify timing

Denies 12(e) motion for more definite statement

12(a)(4)(A)

Grants 12(e) motion for more definite statement

12(a)(4)(B) after P fixes complaint

 

b.      Rule 12(b)
(b)(1) − Court lacks jurisdiction over the subject matter of the suit
(b)(2) − Court lacks proper jurisdiction over D
(b)(3) − Court is not the proper location for the suit; improper venue
(b)(4) − Insufficiency of process
(b)(5) − Insufficiency of service of process
(b)(6) − Failure to state a claim upon which relief may be granted

i.                     Motion to dismiss flaws

1.      Missing an element

2.      Negating an element

3.      Establishing an affirmative defense

ii.                   Use Conely and Sutliff standards to assess whether 12(b)(6) should be granted

iii.                  Court is limited to the four corners of the complaint and must take all of the allegations as true

(b)(7) − Failure to join a party

c.       Rule 12(c) − Motion for judgment on the pleadings (after the complaint and answer are done)

i.                     Vehicle for the D to answer

ii.                   For failure to state a claim

iii.                  Motion by the P if the Δ admits all of the relevant allegations

iv.                 Can be just like motion to dismiss for failure to state a claim, but is normally after the answer; same analysis

v.                   Must be brought forward without undue delay

d.      Rule 12(e) − Motion for a more definite statement

i.                     Usually used b/c unintelligible, not for want of detail

ii.                   If you understand what the P is saying but want more detail, some courts grant the motion; others don’t (e.g. US v. Board of Harbors)

e.       Rule 12(f) − Motion to strike

f.        Rule 12(g) − All then available Rule 12 motions must be consolidated into one pleading. All defenses not brought are waived except as under 12(h)

g.       Rule 12(h): Waiver or preservation of certain defenses

i.                     12(h)(1) − Disfavored defenses

·        Lack of personal jurisdiction – 12(b)(2)

·        Improper venue – 12(b)(3)

·        Insufficiency of process – 12(b)(4)

·        Insufficiency of service of process – 12(b)(5)

ii.                   12(h)(2) − Favored defenses

·        Failure to state claim upon which relief can be granted – 12(b)(6)

·        Failure to join a party – 12(b)(7)

iii.                  12(h)(3) − Most favored defenses

·        Lack of subject matter jurisdiction – 12(b)(1)

Rule

Rule Explanation

Defenses

Timing

12(b)(1)

Lack of subj matter jurisdiction

Most favored 12(g), 12(h)(3)

Bring at any time

12(b)(6)

Failure to state a claim upon which relief can be granted

Favored 12(g), 12(h)(2)

Can be made in any pleading or by motion for judgment on the pleadings or at trial on merits

12(b)(7)

Failure to join a party

Favored 12(g), 12(h)(2)

Can be made in any pleading or by motion for judgment on the pleadings or at trial on merits

12(b)(2)

Lack of personal jurisdiction

Disfavored 12(g), 12(h)(1)

Will be waived forever if you did not bring it with other Rule 12 motions

12(b)(3)

Improper venue

Disfavored 12(g), 12(h)(1)

Will be waived forever if you did not bring it with other Rule 12 motions

12(b)(4)

Insufficiency or process

Disfavored 12(g), 12(h)(1)

Will be waived forever if you did not bring it with other Rule 12 motions

12(b)(5)

Insufficiency of service or process

Disfavored 12(g), 12(h)(1)

Will be waived forever if you did not bring it with other Rule 12 motions

2.      DEFAULT

a.       FRCP 55(a) − Default entry by the clerk when the Δ has failed to respond

b.      FRCP 55(b) − Default judgment by
(b)(1) − Clerk if the award amount is certain; have to give 3 days notice
(b)(2) − Court, P must show damages

c.       FRCP 55(c) − Setting aside entry of default for good cause shown; if judgment has been entered, may likewise set aside under Rule 60(b)

d.      FRCP 60(b) − relevant grounds for setting aside default judgment would be mistake, inadvertence, excusable neglect, surprise; this is more likely to not be set aside because it is that much more in the process

e.       Three factors courts use to evaluate setting aside (Shepard Claims)

i.                     Non-defaulting party will not be prejudiced

·        Witnesses, evidence, SOL

ii.                   Defaulting party has meritorious defense

iii.                  No culpable conduct by defaulting party

·        If no prejudice and has meritorious defense, then culpable conduct must be willful for default to the set aside

f.        Shepard v. Darrah
Facts: Shepard (independent claims adjuster) alleges that Darrah (insurance broker) failed to pay him for services rendered. After delivery of the complaint Darrah’s attorney misses filing date for answer due to confusion about extension
Rule: Default judgment will be set aside if P is not prejudiced, D has a meritorious defense and the conduct was not willful

3.      ANSWER

a.       Admitting or Denying

i.                     Admit an allegation as true

ii.                   Deny

iii.                  Lack knowledge or information sufficient to form a belief

iv.                 Hybrid- give more particular responses, combo of above

b.      Rules

i.                     FRCP 8(b) − D shall respond to each averment by either (1) admit, (2) deny or (3) lack of knowledge or information sufficient to form a belief

·        LKISFB is treated as a denial

·        If it is found that you have sufficient knowledge or info, then LKISFB is treated as an admission (David v. Crompton & Knowles)

ii.                   FRCP 8(d) − Failure to deny – All averments are taken as admitted when not denied. All averment to which no responsive pleading is required or permitted shall be taken as denied or avoided

iii.                  FRCP 10(b) − Form of pleadings. Each claim or defense should be in a separate numbered paragraph; one allegation per paragraph

c.       Purpose of the answer

i.                     Respond to the allegations

ii.                   Assert defenses

iii.                  Provide any counter or cross claims

d.      David v. Crompton & Knowles
Facts: David was injured by a shredding machine in a factory. Δ says they don’t have sufficient knowledge to respond an allegation, then want to move to amend the answer to a denial. Motion to amend denied.
Rule: If you claim lack of knowledge and are found to have knowledge, could have acquired the knowledge (“Should have known”) or the info was within your control (“Only one who could have known”), then you have improperly used lack of knowledge answer and your answer will be deemed admitted instead of denied.

e.       Affirmative Defenses (shield)

i.                     FRCP 8(c) − Affirmative Defenses (list is not exhaustive)

·        D must include in answer, answer to amended complaint, or motion to dismiss or lose them FRCP 12(h)(1)

·        D must raise the issue and the D must prove it

·        SOL is a common affirmative defense

·        15(a) says you may amend an answer to insert affirmative defense

f.        Counter Claim and Cross Claim (sword)

i.                     FRCP 13(a) − Compulsory Counterclaims must be brought or lost

·        Must arise from same T&O weigh following factors

§         Logical relationship between the claims for them to be compulsory (liberal view)

§         Substantially the same evidence/facts – If the same evidence would substantially dispose of the issues raised by the opposing claims then the counterclaims are compulsory; if not, then they are permissive

§         Substantially same law applies

ii.                   FRCP 13(b) − Permissive Counterclaims may be brought but do not have to; different T&O

iii.                  FRCP 13(g) − Cross-Claim against Co-Party may be brought if same T&O as any of claims or counter-claims

iv.                 Purpose

·        Judicial efficiency − same jury, same case load

·        Consistency − Courts could rule differently on the same case or issue if raised at different times in different courts

·        Destroys P’s image

Type of Claim

Against

Same T&O

Different T&O

Counter

Opposing Party

Compulsory 13(a)
Must be brought

Permissive 13(b)
May be brought

Cross

Co-party

13(g)
May be brought

13(g)
Cannot bring

 

v.                   Wigglesworth v. Teamster’s Union
Facts: During union meetings, Wigglesworth was prevented from exercising his free speech rights. After the complaint was filed, Wigglesworth holds a press conference at which he accused the union of being mafia run and that certain union elections had been fixed. Δ files counterclaim. Δ files motion to dismiss under 12(b)(1). Motion to dismiss granted.
Rule: Test for same Transaction and Occurrence:
Logical relationship between the claims for them to be compulsory (liberal view)
Substantially the same evidence/facts – If the same evidence would substantially dispose of the issues raised by the opposing claims, then the counterclaims are compulsory; if not, then they are permissive
Substantially same law applies
NOTE: All of the above factors do not need to be met for there to be same transaction and occurrence

C.     Amended Pleadings

1.      Process for amending

a.       FRCP 15(a) − Party allowed to amend once as of right

i.                     Before a responsive pleading is served or

ii.                   If no responsive pleading is permitted, the party may amend within 20 days after it is served

Otherwise may only amend by:

(1) leave of the court or

(2) stipulation of the parties.

Leave shall be freely given as justice so requires

b.      FRCP 15(b) − When issues not raised in the pleadings are tried by express or implied consent of both parties, they shall be treated as if they are part of the pleadings. Amended pleading allowed, but not required

c.       If a disfavored Rule 12 motion is not brought in the answer, you can still amend the answer to include this Rule 12 motion so long as it is in the 20 day period

2.      Standard for the court to allow a party to amend

a.       Leave to amend will be given freely when justice so requires

3.      Factors the court will take into account in denying leave to amend:

a.       Undue delay

b.      Bad faith

c.       Prejudice to the opposing party

4.      Relation back of an amended pleading

a.       FRCP 15(c) − Relation back of amendment

i.                     15(c)(2) − Relation back of a claim – amending to add a new claim when the statute of limitations has run from the original service of the pleading, must be same T&O (T&O test as above)

ii.                   15(c)(3) − Relation back of a party − changing a party’s name or adding a party

·        Change the D or the name of the D

·        Name T&O  (T&O test as above)

·        Timing of notice – date of filing of original complaint + 120 days (Rule 4(m))

·        Form of notice

§         Can be informal, just need to notify the party

·        D is aware that but for a mistake of identity, he would have been named

§         Some jurisdictions say ignorance is not a mistake

iii.                  Swartz v. Gold Dust Casino
Facts: Swartz falls down stairs at the Gold Dust Casino. She alleges that the stair were thread bare, worn and slippery. Also, the stair violates the building code. Π files and serves a complaint against Gold Dust and Does I through V for negligence. Δ answers by denying the allegations. After discovery and interrogatories, Π discovered the true identity of Doe I and requests leave to amend their complaint. Δ files motion for summary judgment. Judge denies the motion for summary judgment. Motion for leave to amend is granted. Amended complaint is filed and served upon John Cavanaugh. Δ Cavanaugh raises 2-year statute of limitations as an affirmative defense in answer to amended complaint and moves for judgment on the pleadings.
Rule: Meets requirements for relation back

·        Changing the party or changing the name of the party − Yes, Doe I becomes Cavanaugh

·        Same transaction and occurrence − Yes, same day, same woman, same stairs (facts and evidence are the same); they are both negligence claims (doesn’t have to be the exact same claim)

·        Timing of the notice − Notice (not filing) within 120 days of the filing of the complaint; ONLY NOTICE OF THE COMPLAINT IS REQUIRED, NOT FILING

·        Form of notice − Cavanaugh got the amended complaint in the motion for leave to amend, also companies are so overlapped it is reasonable to assume that Cavanaugh would have known of the action

·        But for a mistake about identity − Cavanaugh knew but for a mistake of identity that they would have been sued
Cavanaugh would argue wasn’t a mistake, it was ignorance

iv.                 David v. Crompton & Knowles
Rule: Meets the requirements for relation back

·        Change the defendant − Yes, change Crompton to Hunter

·        Same T&O − Yes, same accident, law, etc.

·        Timing of notice − Maybe, Hunter is a division of Crompton (overlap of corporate entities)

·        Form of notice − yes

·        But for a mistake − Hunter would recognize that they would be on the hook for the machine; David thought Crompton was the manufacture. Maybe a mistake about ownership rights, not who is the manufacturer

D.     Rule 11

1.      FRCP 11(a) − Failure to sign a pleading, written motion or other written paper

2.      FRCP 11(b) − In representations to the court attorney is certifying that he has made a reasonable inquiry and that to the best of his knowledge, information and belief

a.       No improper purpose

b.      Claims, defenses or other legal contentions are supported by existing law or by a non-frivolous argument for the extension of existing law

c.       Allegations have evidentiary support

d.      Denials of factual contentions are warranted on the evidence or are reasonably based on a lack of information or belief

3.      FRCP 11(c) − Sanctions

4.      FRCP 11(d) − Rule 11 sanctions do not apply to discovery (Rules 26-37)

5.      Rule 11 Sanctions Process – 11(b)

a.       Basis under 11(b)(1)-(4)

i.                     11(b)(1) − Improper purpose, including delay

ii.                   11(b)(2) − No basis in existing law
(two components, only have to meet one)

·        Subjective − must believe had legal argument

·        Objective − must actually have legal argument

iii.                  11(b)(3) − No basis in evidence for the allegation or assertion

iv.                 11(b)(4) − No basis in evidence for the denial

v.                   Creates standards/duty

vi.                 Notwithstanding your good faith if knowledge or information was not reasonably researched, subject to sanctions

b.      Initiating Process − by motion or by court (no safe harbor when court initiates)

                                                               i.      Serve motion on party who then has 21 days to correct problem or motion is filed in court

                                                             ii.      Motion has to describe conduct

                                                            iii.      Motion has to be separate from any other motion

c.       Decision Process

                                                               i.      Court has to give party chance to respond

                                                             ii.      Describe conduct explicitly

                                                            iii.      Describe basis for sanctions

d.      Discretion

                                                               i.      Can violate the basis and not be sanctioned

e.       Type of Sanctions

                                                               i.      Designed to deter not to compensate, because court was using as cost shifting mechanism

                                                             ii.      Only strong enough sanction to deter conduct

                                                            iii.      Court can refer to state bar, or to go to school, reprimand

                                                           iv.      A represented party can be sanctioned

·        Not monetary if basis is 11(b)(2) because client is not expected to know the law

                                                             v.      Attorney’s fees and costs only available on motion

f.        Target

                                                               i.      Attorney

                                                             ii.      Firm

                                                            iii.      Party

Identify the action

Basis for sanction

Initiation

Decision

Process

Discretion

Types of Sanctions

Target of Sanction

Signing

11(a): Failure to sign paper

Notify party, court

N/A

Shall.  11(a)

No other option

Strike

N/A

Signing, filing, submitting, or later advocating position with…

-improper purpose (b)(1)

-no basis in law (b)(2)

-no basis in evidence for allegation or assertion (b)(3)

-no basis in evidence for denial (b)(4)

Sanctioned if frivolous either:

-subjectively (belief) or

-objectively (no reasonable inquiry; frivolous legal argument) 11(b)

Party’s motion:

-serve 21 days before filing (safe harbor)

-describe conduct

-only if not corrected

-not combine with other motion 11(c)(1)(A)

Court:

-order to show cause (OSC)

-describe conduct at issue 11(c)(1)(B)

Notice and opportunity to respond 11(c)

Order:

-describe conduct

-explain basis for sanction 11(c)(3)

May.  11(c) Can use discretion

Goal: Deter, not compensate 11(c)(2)

Options:

-nonmonetary directive (go to classes)

-monetary fine to court

pay other side’s attorney’s fees or costs 11(c)(2)

Restrictions:

-represented party not pay money under (b)(2).  11(c)(2)(A)

-attorney’s fees and costs only if on motion. 11(c)(2)

-no monetary sanction on court’s initiative unless OSC before voluntary dismissal or settlement. 11(c)(2)(B)

Party, attorney, law firm, or combination.  11(c)

6.      Zuk
Facts: Zuk, psychologist, had EPPI record therapy sessions for rental. Writes books that has transcripts from session and gets copyright. Zuk furloughed (fired). Zuk requests copies of the tapes. EPPI ignores the requests. Requests them again 1994. Requests are denied.
Rule:

 

DISCOVERY

III.         Discovery

A.     Analyze

1.      Proper use of device

a.       Must be described with reasonable particularity

2.      Responsive

a.       Did the party ask for it?

3.      Relevance − Rule 26(b)(1)

a.       Reasonably calculated to lead to discovery of admissible evidence pertaining to claim or defense

                                                               i.      Merits

                                                             ii.      Background

                                                            iii.      Impeach/Corroborate

                                                           iv.      Clues

Ø      If relevant to claim or defense do not need to make showing

Ø      If relevant to subject matter, burden of proof shifts to party seeking discovery (need court order and good cause shown)

4.      Protected

a.       Privacy − Rule 26(c)

i.                     Annoyance, embarrassment

ii.                   Undue burden or expense − Rule 26(b)(2)

·        Other means, source for same information

·        Already been ample opportunity for discovery

·        Rule 26(b)(2)(iii)

§         How much is it in controversy

§         What are parties’ resources

§         Needs of case

§         How relevant

§         What are important issues

§         Are there alternative sources of information

§         Consider models of adjudication

iii.                  Trade secrets − Rule 26(c)(7)

·        Economic detriment

·        Secret not generally known

·        Injury has to be clearly defined, serious injury

·        Competitive disadvantage

·        Balance between harm of disclosure and necessity to litigation

b.      Protective Order − Rule 26(c)

5.      Privilege

a.       Elements

i.                     With client (or prospective client)

·        Upjohn − Modified control group test which stated that only those in corporation who are in a position to control or even take a substantial part in decision about any action which the corporation may take upon advice of attorney

§         Modification to protect parties (lower and mid-level employees) who disclose and in corporation will need lower level employees to disclose in order to find out what happened

ii.                   Legal advice

iii.                  Legal advisor

iv.                 Relate to advice

v.                   In confidence

6.      Product − Rule 26(b)(3)

a.       Prepared in anticipation of litigation or for trial

b.      By or for another party, or by of for that other party’s representative (including attorney)

·        Party may obtain discovery of ORDINARY WORK PRODUCT (but not opinion work product) if:

i.                     Substantial need

ii.                   Party cannot get the substantial equivalent without undue hardship

·        In ordering discovery of such materials, court shall protect against disclosure of mental impressions, conclusions, opinions or legal theories of attorney or other representative (OPINION WORK PRODUCT)

§         Courts generally abide by this and protect against disclosure of opinion work product

§         9th Circuit (minority view) − Allows discovery of opinion work product if (1) pivotal issue and (2) compelling need (not applied to attorney opinion work product)

v     Must list in privilege log

B.     Discovery Devices

1.      Initial Disclosures − Rule 26(a)(1)

a.       26(a)(1)(A) − Party must disclose (provide or describe) what she is going to use to support her claim or defense (do not have to provide that which is harmful at this stage)

i.         Potential witnesses (name, address, telephone)

ii.       Documents

iii.      Damages

iv.     Insurance

2.      Depositions − Rule 30

a.       Testimony under oath that is recorded

b.      Reasonable notice

c.       Limited to 10 depositions

d.      One day, seven hours per depositions

e.       Only get to depose person once

f.        Third parties can be deposed (special rules apply)

g.       Rule 30(b)(6) − Describe in reasonable terms the category of person you want to depose, other side must provide the person that fits that category

h.       Objections to form

i.               Compound

ii.             Confusing/Unintelligible

iii.            Vague or ambiguous

iv.           Misleading

v.             Asked and answered

vi.           Argumentative

vii.          Mischaracterized witness testimony/Assumes facts not in evidence

·        If objections not made at deposition, waive right for answer not to be admitted into evidence later

·        Even after objection witness may answer, objections only serve to make answer inadmissible later

·        Rule 30(d)(1)

§         Instruct not to answer

§         Privilege

§         Protective order in place or going to seek one

§         Any objection must be state concisely, speaking objections not permitted

3.      Request for production (RFPs) − Rule 34

a.       Describe a category with reasonable particularity

b.      30 days to respond (written response including objections)

c.       Rule 34(b) − Produce those documents that are in producing party’s protection, control or custody (as kept or in categories, but not scrambled)

d.      Rule 26(b)(5) − Privilege or work product

i.               Materials that are attorney-client privilege

ii.             Work product in preparation of litigation

·        Privilege log − Must create a log of those items that are privileged, describe in general terms with objection

4.      Interrogatories (Rogs) − Rule 33

a.       Limited to 25 in number including subparts

b.      30 days to respond

i.               Written answers by attorney and signed off by party

ii.             Obligation to answer if reasonably obtainable

·        Rule 33(d) − If have to look through a large amount of records can just give other party records in lieu of answering (shift burden to requesting party)

c.       Contention interrogatories − Identify every fact (or all evidence) that supports your contention that X

i.               Most courts will not allow early on

ii.             Used to prove negative (to prove other side has no evidence of X)

5.      Exams − Rule 35

a.       Parties or those in care, custody or control of party (read narrowly)

b.      Must be “in controversy”

c.       Good cause shown

d.      Must have stipulation by parties or court order

6.      Request for admission (RFAs) − Rule 36

a.       Extension of pleadings

C.     Limitations on discovery

1.      Rule 26(b)(2)(iii) − Undue burden

a.       Outweighs likely benefits

b.      Needs of case

c.       Amount in controversy

d.      Parties’ resources

e.       Importance of the issue at stake

f.        Importance of proposed discovery in resolving the issue

SUMMARY JUDGMENT

IV.        Summary Judgment

A.     Rule 56(a)

1.      Claimant can move 20 days after commencement of action or after opposing party moves for summary judgment

B.     Rule 56(b)

1.      Defending party can move for summary judgment at any time

C.     Rule 56(c)

1.      Motion must be served at least 10 days before hearing (most courts require at least 21 days)

2.      Standard − Summary judgment shall be granted if moving party makes showing that there is no genuine issue as to any material fact

a.       What is fact at issue and why is it material?

i.                     Material if relevant to an element or affirmative defense

b.      Is there a genuine issue about it?

i.                     Is it plausible that could come out either way?

·        Adickes v. S.H. Kress & Co.

§         Key fact − Was there police officer in store?

§         Material to whether there was a conspiracy

§         D did not come up with enough evidence to initiate

§         D cannot do nothing in moving for SJ, must make some kind of showing (vague as to what this requires)

·        Celotex v. Catrett

§         Key fact − Was P exposed to D’s product?

§         Material to causation

§         Rather than showing through affirmative evidence, D made showing that absence of evidence on other side (contention interrogatories often used)

§         Absence of evidence − Courts are split on moving party’s burden

Ø      Point out there is no evidence (just state)

Ø      Point to evidence in record to show lack of evidence

D.     Rule 56(f)

1.      Not enough chance for discovery on issue (premature)

E.      Burden of production − Whether party has sufficient evidence to go to trial

F.      Burden of persuasion − Which party must convince trier of fact

G.     Party with burden of proof moves

1.      Every reasonable jury would conclude that it is more likely than not that moving party is right

2.      Ex. − Every reasonable jury would conclude that it is more likely than not that Jacques threw the rock

a.       Required to make initial showing

b.      Only if initial showing is strongly supported does opposing party have to respond

i.                     Burden of opposing party is to provide enough evidence to undermine moving party’s evidence sufficiently such that a reasonable jury could conclude that moving party is not more likely than not right

H.     Party who does not have burden of proof moves

1.      No reasonable jury would conclude that more likely than not that party opposing summary judgment is right

2.      Ex. − No reasonable jury would conclude that it is more likely than not that Jacques threw the rock

a.       Initial showing − Logically would make sense not to require initial showing, but if this were the case could be used as a weapon too easily

·        Celotex − Ambiguous which of two standard applies

o       Either merely point out that other side has no evidence

o       Or must do discovery to show that other side has no evidence

i.                     Burden of opposing party is to provide enough evidence that a reasonable jury could conclude that it is more likely than not right

ii.                   Note that since party opposing summary judgment will have burden of persuasion at trial, if moving party has met its burden, simply attacking the moving party’s evidence will not suffice to survive summary judgment

For More information How You Can Use Some of These Pro Se Civil Litigation Guidelines To Effectively Challenge and Successfully Win Your Wrongful Foreclosure and Save Your Home Visit http://www.fightforeclosure.net

Fight Your Foreclosure Protect Your Most Valuable Asset

18 Saturday May 2013

Posted by in Foreclosure Crisis, Foreclosure Defense, Fraud, Judicial States, Non-Judicial States, Your Legal Rights

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Homeowners have been the victims in this foreclosure epidemic. In every criminal act there is the criminal and the victim.  And like any criminal prosecution, unless the victim comes forward and prosecutes the criminal, the criminal will most likely be set free.  So what does this mean?  It means that more homeowners need to come forward and fight their foreclosures.  There are only a handful of true to the cause advocates that are fighting this fight with an army of pro-se soldiers.

We have now in the homeowners corner, a handful of prosecutors (Senators) that are willing to put the criminals feet to the fire.  We have the potential in front of us to give a criminal element to fraudulent foreclosure actions (which it is and should have always been to begin with).

There is a systematic approach I would like to share with homeowners facing foreclosure and attorneys alike that are engaged in foreclosure defense and that is the sales dynamic.  See there is a simple philosophy in sales that sales managers train their sales representative to do and follow.  Sales is a numbers games so the first rule of sales is (1) the more people you contact the greater your chance at closing a sale.  Sales mangers would require reps to make 100 calls a day because out of those 100 calls maybe 10 could be closed.

This is the same approach being used by foreclosure law firm mills.  File 100 foreclosure and maybe 10 fight back.  This means 90% of their foreclosures go to summary judgment without resistance.  To the parties initiating foreclosures these are great statistics.  It is for this very reason foreclosure law firm mills charge a flat rate of approximately $1,200 per foreclosure.  Any attorney will tell you that they normally charge a retainer of $2,500 to $10,000 to take a case depending on the circumstances surrounding the case at which point they will bill out anywhere from $200 to $350 per hour.  Think about that for a second.  An attorney that spends 10 hours on your case alone who bills out at say $300 an hour cost $3,000.  So what does it say of a foreclosure law firm mill that bills out a flat rate of $1,200 to a multi-million dollar financial institution?

If you can understand the sales philosophy that this is a numbers game with the bets on the homeowner that will not fight to keep their home, then try to understand the adverse affect those initiating these foreclosure actions will face if the homeowner actually defends themselves in litigation.  It would mean the foreclosure law firm mills would not be able to charge a flat rate of $1,200 to the banks or servicers.  It would mean they would have to charge more money to prosecute these foreclosure suits.  Banks don’t want to spend so they would look to other foreclosure mills to represent them which would open up a biding war for their work (which already exist on another level).  It would cause the banks to have to spend more money in litigation to defend their fraudulent behavior and their statics of 90% success to straight summary judgment would decrease.

For The Necessary Tools Needed To Effectively and Vigorously Challenge Your Wrongful Foreclosure, Against Those Interlopers Who Are Fraudulently Trying to Steal Your Home From You, Visit http://www.fightforeclosure.net

Federal Foreclosure Laws Affecting Landlord -Tenant

15 Wednesday May 2013

Posted by in Landlord and Tenant

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Protecting Tenants at Foreclosure Act of 2009 Pub. L. No. 111-22, §§ 701-704 (2009)
Congress passed the Protecting Tenants at Foreclosure Act (Title VII of S. 896, Pub. L. No. 111-22, §§701 – 704 (2009). This law immediately went into effect when President Obama signed it on May 20, 2009, and it applies to all pending and future residential foreclosures.

Tenants With an Unexpired Lease Term.
The law requires a new owner acquiring property at a foreclosure sale, including plaintiffs acquiring the property, to honor all terms and conditions of existing leases. This means the tenant can remain in the property for the time remaining in the lease term. However, if the new owner wants to live in the property, then the new owner may terminate the tenancy by giving the tenant at least 90 days written notice to vacate.

Tenants Without a Lease.
Tenants without a lease: In the case of tenants without a current lease, usually month-to-month tenants, the new owner must provide the tenant with a minimum 90 day written notice before terminating tenancy. This also applies when there is an unexpired written lease which has less than 90 days remaining.

Most Significantly, Residential Tenancies Now Survive The Foreclosure Process.
The implication of this change is that a tenant’s right to continued possession of the property is now outside the scope of the foreclosure action, and therefore the foreclosure court should no longer issue writ of possession when a bona fide tenant is in possession of the property. If the new owner after foreclosure desires to terminate the surviving tenancy, he/she must give the tenant 90 days written notice to vacate. Any notice sent prior to the certificate of title does not comply with the new statute and has no legal effect and a new notice must give a new 90 day written notice to vacate. These changes apply only when there is a “bona fide tenant” in the property, as defined in the new statute

Pro Se Legal Representation

14 Tuesday May 2013

Posted by in Foreclosure Defense, Litigation Strategies

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Pro Se Legal Representation refers to the instance of a person representing himself or herself without a lawyer in a court proceeding, whether as a defendant or a plaintiff and whether the matter is civil or criminal. Pro se is a Latin phrase meaning “for oneself”. This status is sometimes known as propria persona (abbreviated to “pro per”).