Force Your Mortgage Lender To Talk To You.

I hear a lot of the time from people who are frustrated in dealing with mortgage companies -- they get put on hold, they can't get answers, they get different answers depending on who they talk to and what day it is, and so on.

I sympathize, because I get the same thing -- when I call on behalf of clients, I get the same runaround from mortgage lenders and encounter the same problems, as do my paralegals.

The reasons for that are many -- chief among them the fact that lenders have a variety of people working for them, in different departments, and many of those people aren't sharing information as rapidly as they could or should -- but there's a simple and inexpensive solution that I (or your own lawyer) can help you with. That solution is:

Force your lender to talk to you.

And, for a change, doing that might be easier done than said. Here's how: Ask for mediation.

Mediation is a meeting between parties to a legal case, with a trained professional who will review the case and try to help the parties reach a mutually agreeable resolution -- without a trial, depositions, witnesses, motions, juries, and all the rest. It's generally nonbinding and often very very helpful.

Wisconsin has a statute - -it's section 802*.12, if you must know -- that allows a judge to order the parties to mediate (or engage in other alternative dispute resolution.) It also allows a judge in a legal case to issue a "stay" of proceedings until that mediation is done. The judge can require that the lender participate in the mediation "in good faith," meaning that someone from the mortgage lender has to show up at the mediation and they have to have authority to resolve the case.

In short, a judge can order your lender to sit down at a table and talk with you.

That's a great idea, because it forces lenders to take notice of your particular case, and it forces them to discuss your particular case with the lawyer who will attend the mediation, and it forces them to think about your case in a different way: instead of thinking about your case as a foreclosure where they'll be taking your house and selling it, they have to think of your case as a meeting to try to resolve things amicably.

One judge, in Wisconsin, in particular, takes this even farther: Judge William Dyke, of Iowa County, has a mediation local rule that requiring that your mortgage lender -- or your credit card lender or anyone suing you for a money judgment -- tell you about the possibility of mediation, and Judge Dyke has shown himself to be very much in favor of requiring lenders to try to settle cases, including foreclosure cases, in good faith and short of a trial. He's even trained a panel of mediators (with my help) to do just that.

So if you're having trouble getting your mortgage lender to talk to you, ask your lawyer -- you do have a lawyer, right? You'd better-- to get the judge to order mediation. It's a game-changer.

*Correction: In the original article, I had 801.12, but Professor Natalie Fleury, of Marquette Law School, corrected me. It's been a long time since I had professors telling me I was wrong, but I still recall the number one rule of law school: the professors are always right.

Interesting Judicial Comments, 5

Judge Easterbrook of the Seventh Circuit Court of Appeals demonstrates, in one simple quote, an understanding of consumer affairs, marketing, cause-and-effect, and old jokes:

The “tests” on which [the makers of the Q-Ray Ionized bracelet] relied were bunk. (We need not repeat the magistrate judge's exhaustive evaluation of this subject.) What remain are testimonials, which are not a form of proof because most testimonials represent a logical fallacy: post hoc ergo propter hoc. (A person who experiences a reduction in pain after donning the bracelet may have enjoyed the same reduction without it. That's why the “testimonial” of someone who keeps elephants off the streets of a large city by snapping his fingers is the basis of a joke rather than proof of cause and effect.)

F.T.C. v. QT, Inc., 2008 WL 43583 (7^th Cir. 1/3/08).

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Cross-Pollinization.

It's important to keep you aware of the things I'm aware of. It helps promote blogodiversity.

What I'm Writing:

Ninety-Four: In part 17, I explore why my meeting with a Supreme Court Justice turns out ultimately to be nothing but a walk-on part. (Thinking The Lions)

What'd you used to do in college? I used to have fun, and I still should be...(The Best of Everything)

First some magic tricks. Then the end of the world. Joe's first show went off without a hitch, thanks to a little help from ancient Mayan secrets, and Conan O'Brien. (AfterDark.)


Sue someone, and have them pay your attorney? It can be done. (Family And Consumer Law: The Blog)

These tables are tiny: At an awkward dinner with Ivy, Bumpy remembers their first "real" date... (5 pages)

I thought I was that interesting: I like The Intern's tips on writing memoirs. (Aaaaughh!)

Why is Brigitte shooting at Rachel? Talk about awkward: When Rachel's pregnant lover shows up again in a flying saucer, the first thing she does is start shooting. (Lesbian Zombies Are Taking Over The World!)

Facebook Me! Or whatever the verb is.

What I'm Reading And Listening To:

She says she doesn't make sense but she does... Angela's blog I Speak seems to be talking about my family. (I Speak.)

Socialized medicine is one thing, but socialized grape growing? Lisa's got some insight into champagne. The kind of insight that can only come from drinking a lot of it, I assume. (Lost In Provence)

I heard of them first: this music blog has free downloads (hopefully legal...) and a crush on Florence and the Machine. (Selective Service)

Wisconsin consumers have a right to have their attorney paid by the other side, if they win their case.

Everyone knows that if you lose your case, you can appeal it. But what about if you win your case? Can you still appeal it, and would you want to?

In a word, yes. You can appeal any decision that was "adverse" to your claims -- so even if you won your case, you can appeal if in winning your case, you didn't win everything that you wanted to win.

That's what happened in the case of Bayfield Financial LLC v. Harvey (a case that was actually two cases, but that's not important here.) In Bayfield Financial, a couple of debt collectors sued a couple of people, and the couple of people hired a lawyer who defended them, and the lawyer won their case.

The lawyer won their case based on some unspecified claim under the "Wisconsin Consumer Act," a law that helps govern relationships between creditors, debt collectors, and consumers. The Wisconsin Consumer Act is an underutilized, sweeping law that more people should know more about, and one of the things that the Wisconsin Consumer Act says is that when a consumer wins a case against his or her opponent, that consumer is entitled to have the opponent pay his legal fees.

So, under the Wisconsin Consumer Act, if you as the consumer win your case, your attorney gets paid by the other side.

The judge in Bayfield Finance agreed with that principal in general, but then issued a ruling that the lawyer in question would get paid only $750 per case, for $1500 total.

That's where the problem that led to the appeal arose: The lawyer had asked to be paid $2,898 in one case and $2,793 in the other, so he'd been shorted as much as $4100.

So the consumers, through their lawyer, appealed, and they won again -- the Wisconsin Court of Appeals said that the trial judge had erred and ordered the judge to reconsider the attorney's fees, including, now, an award of attorney's fees for the appeal itself.

The Court of Appeals did that because the Wisconsin Consumer Act is meant to help enforce consumer rights (in part) and a big part of enforcing those rights is paying attorneys to do that. Most consumer cases involve only small amounts - - a couple hundred dollars, or at most a couple thousand. (The Bayfield cases, because they were small claims cases, involved claims of less than $5,000 against each person.) When you're only suing or being sued for small amounts, it often doesn't pay to hire a lawyer.

Unless the other side has to pay your lawyer if you win, which is the whole point of the Wisconsin Consumer Act.

It's not clear yet what the total tab will be for the lawyers' fees, but it'll likely be a whole lot more than $750 per case, once the appeal is factored in.

Click here to read more about Debt Collection Issues.

Hey, if you don't want free money, you could always give it to me.

Who holds your escrow account, and should you care?

The fact that I'm asking the question should tip you off that, yes, you should care who holds your escrow account. And the fact that I, a lawyer, am asking should tip you off that knowing who holds your escrow account could make you some money, if you live in Wisconsin.

An "escrow account," in the sense I'm using it here, is an account set up by your mortgage lender to make sure you pay your property taxes and homeowners' insurance. Like almost anything else to do with your mortgage, it's subject to a lot more restrictions than many people might imagine; the federal government puts rules on your escrow account, and Wisconsin does (other states probably do, too, but I don't practice law in those other, lesser, states, so I can only tell you what Wisconsin does.)

I'm not going to review all of those restrictions and requirements here. I'm just going to talk about the one where you might make some money. That's this one:

(am)1. Except as provided in par. (b) and unless the escrow funds are held by a 3rd party in a noninterest-bearing account, a bank, credit union, savings bank, savings and loan association or mortgage banker which originates a loan on or after January 1, 1994, or a loan subject to subd. 3. and which requires an escrow to assure the payment of taxes or insurance shall pay interest on the outstanding principal balance of the escrow at the variable interest rate established under subd. 2.

That's section 138.052(5)(am)1. of the Wisconsin Statutes, and while it's written in complicated legalese to justify the existence of lawyers, what it means is this:

If you have an escrow account for your mortgage, and if that escrow account is not held by a "3rd party" but is instead held by your lender, then your lender is required to pay you interest on that escrow account.

Interest! That's free money.

Which only makes sense, because you pay your escrow monthly -- it's tacked onto your payments -- and build up a fund of money, money that your lender (or some other person) holds until the end of the year, when they pay your taxes from that fund. So the law says that you, not your lender, should get the interest on that account.

Unless it's held by a 3rd party, which is where the catch is, and it's a catch that's big enough to swallow the exception, in many cases, because I can't think of, offhand, any lender that administers their own loans these days. Almost every loan I see has a "servicer," a 3rd party that works the loan for your lender, and that third party may hold the escrow account for your lender, and if they do that, then your lender doesn't have to pay you interest on your account.

And why is that, you may ask? I don't know, really -- I can't say what the legislature was thinking when it wrote this law. But I can speculate (I'm good that that) and what I speculate is the reason is that the servicer gets paid from the interest on the escrow accounts (and interest on "suspense accounts," and other fees and costs, as we learned) and so I expect that an exception was made to let servicers make money off those accounts.

Which seems a little unfair to me: The lender wants you to have an escrow account (you can always opt out but I don't recommend that, because it's likely to lead to trouble) and then uses the interest -- your interest -- on your money to pay someone else to do their work for them.

But it's all academic, anyway, because you don't know who holds your escrow account, do you? Maybe you should ask -- or have your lawyer ask for you. Not just because you might be entitled to interest on your escrow account (it would amount to $170 a year, or maybe more) but if your lender violated that provision, you might be entitled to get not only your unpaid interest, but also an extra $500 -- and they may have to pay your lawyer's fees in collecting it.

So who holds your escrow account? Because you should care.

Got a question? I can't give you advice but I can try to answer your questions. See the sidebar for how to contact me.

I usually bet all my money on the Bills to go 16-0. One day, that ship's gonna come in.

NFL training camps are starting around the league, which means one of two things: (1) sports betting is gearing up, or (2) sports betting is gearing up but being kept surreptitious because it's illegal where you're betting.

Either way, you need to do two things: First, make sure that betting is legal or get yourself one of them fancy lawyers, and second, get yourself some decent information so that you win your bets. You know what attorneys say: Winning is the best defense.

Okay. So we don't say that. What we do say is get your football picks from a reliable source that knows what they're talking about, like AddictSports.com -- your home for great picks in the NFL, NCAA and more.

I wonder how much you'd get for ants in your pants. (What's My Case Worth, 1)

I am frequently asked "what's my case worth?" or "How much do you think I should settle for?" Or "What'll this cost me if they win?" And my answer to that question, each time I'm aksed, is always the same: "Look, I don't really know you, Mr. Drive-Through GUand I just would like my milkshake please." Why won't that guy just give up?

Valuing a case -- deciding how much to ask a jury for or settle for prior to trial or pay out in response to a demand -- is a tough call, and depends on a lot of factors, including where you live, how much insurance coverage there might be, the permanency of the injury, the parties involved, and about a zillion more. And it also requires a consideration of other, similar cases, to see how juries have handled those cases in the past, and to see what the parties settled for in the past.

So I thought I'd start, from time to time, giving you a look at What's My Case Worth by providing you with jury verdicts and settlements that have been reported in Wisconsin. Here's the first:

$19,000 for fleas in a rental house: In this Milwaukee County case, a mother and her two sons sued her landlord for renting them a house infested with fleas and mold; the renters alleged the landlord knew about the problems and violated Wisconsin's consumer protection laws by renting it anyway, and that the mold and the fleas had caused health problems for them. Without admitting liability, the defendants ultimately settled by paying $6,270.32 to mom, $1500 to one kid, $1000 to another (both in "restricted CDs") and lso paying $1,082.68 in medical reimbursement. The plaintiffs' lawyer got a cool $9100 for their time and energy. After settlement, the case was dismissed.

Keep up with the news... while looking like you're working.

Want to see, in real time, what people in the social media universe are saying about the Judge Sotomayor confirmation hearing in the Senate?

You must -- you wouldn't be reading this blog if you weren't interested in the law, and if you're interested in the law, then you want to know what's going on with President Obama's first appointment to the Supreme Court, and what people are thinking about it.

Thanks to Viralheat, you can -- in real time, at your desk. Viralheat is an easy and affordable way to monitor content generated by real people like you and me about public events. And not just public events -- any public thing, like products, companies, trends, and more. So if you're marketing something, you can use Viralheat to keep track of what people are saying about it on social networks like Facebook and MySpace. That lets you identify trends and analyze how marketing is working and what people are REALLY thinking.


Viralheat is fanatical about doing the best and fastest large-scale network monitoring. But don't take my word for it: Click that link there to check out how they handle people's input on Judge Sotomayor, and see for yourself.

Back next week!

Life intrudes again: I won't be blogging this week until probably Friday or maybe Saturday, depending on how things go (I've got another one of those trials. It's really annoying how my boss expects me to work for my pay). While I'm off suing people, why not check out the archives on this site, or look at one of my other sites:

Thinking The Lions: It's life, only funnier - -my life, to be exact. With memories of trips to DC and my honeymoon mixed in with stories about all the jobs I've had, plus my destructive twins and a lot of music.

The Best of Everything: Just what it sounds like: A roundup of everything that's The Best in any category you can think of... ranging from the most scientifically accurate Modest Mouse song to the Best Olsen Twin.

AfterDark: The scariest stories you'll find anywhere. Serialized short horror stories. Two completed stories right now: What You Need: Taylor has what people need... and that's too bad for him, and "The Grave-Robbers" -- New Sam learns a lot about his family when he turns 12, including why there are so many bodies buried below the house. Plus, The End of Light just started. Will Joe The Magician destroy the world?

"5 Pages." Read a novel the way I write it: 5 pages at a time. In Up So Floating Many Bells Down, you'll meet Sarah, whose fiance drowned the night of her bachelor party -- sending her off to join a group of people trying to prove that there's a serial killer at work. Meanwhile, her brother Dylan leaves town after the tragedy, setting up shop as a writer/photographer in Las Vegas. But he comes back over Thanksgiving one last time before heading to New York... without either of his fiancees.

Lesbian Zombies Are Taking Over The World: 2 weeks ago, Rachel woke up and realized that she didn't know who or what she was. On the advice of her octopus, she headed south, where she met Brigitte. Just as they fell in love, though, Rachel was kidnapped and dragged off an adventure through the 73 dimensions. It's the world's only sci-fi/horror/fantasy/erotic/serial novel!

Are you a frustrated writer? Me, too -- kind of. But I'm less frustrated since I began talking about writing, and getting published -- or, rather, not getting published -- on AAAAAUGGGHHHH!!!!!!!!!!!!! (Or: Why is it so hard to get an agent, get published, get rich, and move to Hawaii?) You'll find posts on my efforts to get published, plus how I come up with ideas, plus a lot of fun thoughts about writing.

That oughtta keep you busy. See you next week.

What's My Case Worth? Table of Contents

What's my case worth? provides details about previously decided or settled cases reported by the parties. Each case needs to be considered on its own merits and your own case might settle (or get an award) of more or less than these reported cases depending on a variety of factors.

Jury awards $31,000 for attempts to collect a debt that was paid.

$21 million for mortgage servicing problems.

Jury awards $15,000 for emotional distress in FDCPA case; a judge says no way.

Jury awards $1.5 million to debtor for vulgar calls.

Is it true that Waukesha County Jurors Don't Give Awards?
Verdict one: Could have had $28,500, but went to trial.
Verdict two: zero dollars, but that's not the whole story.

Improper installation of computer equipment: $19,000 to a cheesecake restaurant.

Harassing calls and a no-show defendant = $8 mil, plus for FDCPA case.

Jailed for a weekend = less than thirty thousand in legal malpractice case.

Landlord pays up in dispute over claimed dirty apartment.

Seller Collects Holding Costs When Buyer Refuses To Close On House Sale.

Failure to honor warranty results in big money on home improvement claim.

Real estate agent pays for failure to make payments on mortgages.

Weird Laws You Didn't Know You Need (3)

When's the last time you saw a homing pigeon? Unless you possess a time machine, I'm guessing the answer is: never.

Or maybe you see them all the time... because you don't really know what a homing pigeon looks like, do you? Maybe you should, because in Wisconsin, you can get in a lot of trouble if you don't know what a homing pigeon looks like. And by "a lot of trouble," I mean "not very much trouble at all."

But you can get in some trouble, because Wisconsin has this law:
29.317 Taking homing pigeons. Any person who takes, catches, kills or impedes the progress or otherwise interferes with any homing pigeon shall forfeit not more than $50.

I know, you're thinking: "That's just one of those old laws on the books again, right, something from like 1815 that they just didn't repeal." (That, or you're thinking "Weird... what does a homing pigeon look like?")

Well, you're wrong if you're thinking the first one: This law has only been on the books in Wisconsin since 1975 -- it's younger than me.

And as for the second one, here's what a homing pigeon looks like:

Other Weird Laws:

Don't mess with telegrams.

Why can't I bribe a chauffeur?

You know who really knew how to work the markets? John Travolta's character in that subway movie. Not that I'm recommending that as a strategy...

Here's my past investment experiences, all wrapped into one for you:

I have a mutual fund that my Dad gave me as a present years ago. I put some money into it about every three months.

And I own 2.5 shares of Wal-Mart stock that I bought through some online thing or other, a site that I have trouble tracking down and that I forget about all the time.

That's it. I'd like to have been more invested in the stock market -- especially because with the market down I think it's a good time to invest some money, as the market will climb and I'll then reap the benefits -- but I didn't have the background or the ability to be an investor or stock trader.

Now, though, I think I can, because I've discovered an online trading platform that works for people like me -- who want to learn -- and for people who already know the stock market.

The platform is tradeMONSTER, and it offers something for everyone. For people like me, who want to learn how to invest smartly, it's got something called "paperTRADE," a program that lets you learn how to invest by simulating the stock market without having you spend any money -- so you can open a paperTRADE account and try out investment strategies before you risk any real money.

And they've got licensed professionals ready to help through an online contact process, so if you (or I) don't understand someone, you can get help right away. And the people they've got are likely to be good, given the brains behind tradeMONSTER-- the leadership team is headed by a guy whose got 28 years in the securities industry, and he's backed by a guy with 22 years in the field.

Once you're ready to trade, tradeMONSTER is a good one to work through -- no hidden fees, so you can price everything upfront, and their commissions are lower than almost everyone else's, so you pay less for your trades.

They'll even let you handle stocks in your IRA through the account, so you can take a more active role in managing your future retirement funds.

tradeMONSTER has got me thinking about becoming more of an active investor -- and they'll give me the tools to do that right.

Clark Howard Was Wrong!

This is why, when you have a legal question, you call a lawyer, not a charismatic talk radio host who pronounces "McDonald's" as Mac-Donalds. No matter how much Clark Howard may charm you with his discussions of how he loves his egg McMuffins, he's not a lawyer and he's not qualified to give you legal advice.

Yesterday was one of the rare times that I was listening to Clark's show. I don't ordinarily listen or watch him because I don't have a lot of patience for "consumer tips" that include how to take a luxury vacation to Hawaii, and because I don't know what Clark's expertise is. But I was driving back from a trial and felt like talk radio instead of music, and only Clark came in clearly, so I listened as a woman called in and posed this problem:

She'd been married, she said, for fifteen years, and before being married, her husband had a car loan that he'd defaulted on. Now, she said, that old car loan was on her credit report and she'd gotten a call from a debt collector trying to get her to pay the loan.

Clark told her that (a) she should dispute the credit report using a form provided by the credit reporting agency. He then said that she should (b) write directly to the creditor, using certified mail, and demand that they retract that report, with a threat to sue them under the Fair Credit Reporting Act. Clark then said that (c), it was okay that the debt collector called them, but that they couldn't sue because the debt was beyond the statute of limitations.

Clark really, really missed the boat. Really. He gave that woman incomplete and bad information. That's because he's not a lawyer.

I'll give Clark some credit: Telling the woman to dispute the report was okay. He was right about that.

The rest, though, was incomplete and misleading and sometimes just plain wrong.

Let's start with (b), demand retraction and threaten to sue under the Fair Credit Reporting Act. The "Fair Credit Reporting Act" (or "FCRA") is a part of a larger series of federal laws that regulates consumer credit (that's money you and I borrow for household or personal reasons.) The FCRA is a complicated and long law that has a lot of ins and outs, but I don't need to go over the whole thing here to show how Clark was wrong; I just need to point out the part about suing people who provide information to credit bureaus.

See, the "FCRA" applies to credit reporting agencies (like Trans Union or Equifax, among others) and to people who get those credit reports, and to people who provide information used in those credit reports.

So before you can sue anyone under the FCRA, you have to make sure that they are one of those people. You have to make sure they're a credit reporting agency, or a user of credit reports, or a furnisher of information.

The woman on the phone didn't tell Clark who put the information on her credit report, and Clark didn't ask. He didn't ask because he's not a lawyer and shouldn't be giving legal advice and so he didn't, apparently, know that the FCRA doesn't apply to everyone in the world; it applies to those three groups. In this case, it's likely that the debt collector fell only into one category, at best: They might have reported it to the credit bureau, and if they did, they might have violated the law.

Might have.

But if they didn't report it, then threatening to sue them under the FCRA is nonsense at best and frivolous at worst.

I won't get into, at this time, a discussion of what you can sue under the FCRA for; that's even more complicated. But I will mention that there are two kinds of violations of the FCRA. There are "willful" violations, and "negligent" violations. Those are two different kinds of illegality -- one means (more or less) "on purpose" and one means (more or less) "accidental."

Clark told the lady on the phone to threaten to sue for damages-- her losses as a result of the inaccurate report. Assuming that the only negative reference on her report was this (allegedly) inaccurate report, then maybe the lady had losses (although she didn't know that yet.) But that's a big assumption. A big assumption. She hadn't yet been denied refinancing her house (that was what prompted her to call) and she didn't know whether she would be denied, or would pay higher credit costs, or what her damages might be.

If you're not damaged, then you can't sue under the FCRA unless the violation was willful.

So Clark told this woman to threaten to sue a company that maybe hadn't done anything wrong, before she knew if she was damaged.

And that wasn't all he got wrong.

Clark also told this woman that the statute of limitations had run on her debt. (I discussed statutes of limitations here.) I don't know what the statute of limitations on this woman's debt was, and, frankly, neither did Clark. And he shouldn't have been discussing it. Telling someone when the statute of limitations runs is legal advice and legal advice can only be given by a lawyer.

But more importantly, maybe it hadn't run. In Wisconsin, a creditor has six years to sue on an unpaid debt... generally speaking. But when does that six years run from? It runs from the default -- it runs from the time that the payment was supposed to be due. So if a payment was made, at some point in the last six years, that re-sets the clock.

Clark said the debt was 15 years old and that the statute had run -- but he didn't know when the last payment was made. It does not matter when you take out the loan; it matters when you breach the loan. (At least in Wisconsin.)

So Clark Howard told this woman that the debt collection company couldn't sue her. But he didn't know that. He didn't have anywhere near the amount of information he should have had to give her that legal advice. And he's not a lawyer.

Clark also didn't know whether there would be a different statute of limitations for enforcing a car loan, or whether the creditor could still try to take the car (if the person still had it) or anything else about this debt. All he knew was that it was taken out 15 years ago. That's it.

Finally, Clark missed out on a basic part of this whole exchange. This woman was getting calls from someone trying to collect a debt. That means that the Fair Debt Collection Practices Act (FDCPA) might have applied.

(Note that I, unlike Clark Howard, am not assuming it applied. I'm just saying it might have applied, because I, unlike Clark Howard, need more information.)

If the FDCPA, which governs some people collecting some debts applied, then the woman may have had other rights. She might have had the right to have a written "validation notice" sent to her within five days of the phone call she received -- and if she didn't get that, she might have had the right to sue.

The FDCPA, if it applied, might also have barred this person from even calling about the debt. Clark said it was okay for them to call, but not to sue. That is not the law everywhere, though, and Clark Howard would know that if he's a lawyer.

In Wisconsin, a debt collector governed by the FDCPA can't even call you if the debt is too old. If the statute of limitations has run, a debt collector might be violating federal law just by calling you about that debt.

And if they violate the FDCPA, they could owe you up to $1,000, plus attorney's fees, even if you weren't otherwise hurt.

Because I couldn't listen to the entire phone call, I don't know if Clark later mentioned the FDCPA. If he did, I apologize. But I suspect that he didn't, and even if he did, the fact remains that Clark was giving legal advice he's not qualified to give. He's not qualified because he has no legal background, he's not a lawyer, and he didn't have all the information any minimally competent lawyer would want to address that question.

Clark Howard almost entirely dropped the ball on that woman's call, and I tried twice to call his show and tell him that and provide accurate information.

Clark Howard is not a lawyer. He might be able to tell you how to save a couple of bucks eating an Egg McMuffin at McDonald's, but he's not the person you should call when you have a legal question. I know he's entertaining, and I know he's free-- but you get what you pay for.

Are you the only person in your neighborhood without DirecTV?

Look around your neighborhood as you drive home tonight. Do you see a lot more of those little gray DIRECTV satellite dishes?

You sure do. I do -- I see them everywhere -- on my neighbors' roofs, outside apartmetn buildings, even on a mobile home last week. And that's because of two reasons: first, the DIRECTV Deals you can get are phenomenal. DIRECTV can get you hooked up and watching TV faster and cheaper than you'd ever imagine.

Second, and equally important, DirecTV is easier and better to deal with than your cable company. Your cable provider has a monopoly - -they don't have to worry about you switching to another cable company, so they don't care what you think of them. Call for help? They'll put you on hold, laugh at you, not show up for appointments, and continue to charge you too much.

DirecTV is different. They're number 1 in customer service, and they have that rank because they have to compete, and they want you to choose them. So they provide great customer service and great programming options, 100% digital programming, HD programming, DVR upgrades, and great pricing options.

How do I know all this? Not just because everyone in my neighborhood has that little dish, but because I do, too. I've been a DirecTV customer for two years now, and I've loved all 31 million minutes of that time.

"Time is an illusion. Lunchtime doubly so." -- Douglas Adams.

Let's talk about time. You hear a lot about time-- it's relative, it flies, it's the root of all evil...

... or maybe I'm getting my sayings confused? Maybe, maybe not. Time may not be the root of all evil, but it is the root of a lot of confusion, at least in the law, where "time" is so confusing that it needs to be legislated -- at least in Wisconsin.



Wisconsin has a law called, simply "Time." It's section 801.15 of the Wisconsin Statutes. That law defines what a holiday is, so far as "time" is concerned, sets out a rule for counting time (so far as the law is concerned), sets the time for filing and doing certain things (but only certain things, not everything) and gives extra time for doing things depending on how you found out about them.

Sound confusing? That's because it is. But it's also incredibly important, because nearly everything in the law has time limits, and those time limits can change depending on who's doing what and how they're doing it.

Let's look at some basic time limits on things in Wisconsin and see how that law affects them.

The time which you have to file a complaint is called the "Statute of Limitations," and that time isn't in the time statute at all; statutes of limitations are in different sections of the statutes entirely. Some are all collected up in one "chapter" (a group of statutes that's all similar to each other) and others are found scattered throughout the law. "Statutes of limitations" determine how long you have to file a complaint. They can be as short as a six months and as long as 20 years, depending.

A key point to remember about a "statute of limitations?" Generally speaking, if you don't file your complaint ("filing" a complaint means, simply, giving an original to the clerk of courts) within the time allowed by the "statute of limitations," you lose -- you can never sue for that. (Generally.)(Remember, almost nothing is absolute in the law. But it's better not to take chances, so just talk to a lawyer and find out when you have to file by.)

The time in which you have to "serve" a summons and complaint, in Wisconsin, is 90 days. A lawsuit is started by the filing of a summons and complaint with the court and then by "serving" it on the person who you're suing. ("Service" is a technical term we'll talk about later.) Once you file a complaint, you've got to serve it within 90 days -- or your suit hasn't been started properly at all. This 90-day time limit isn't in the "time" statute, either, but the "time" statute does say that the 90-day period can't be extended. At all. Period.



The time you have to answer a complaint when you've been served varies. If you've been served with a summons and complaint, you have to answer that complaint -- meaning you've got to get your written response to the clerk of courts, and the person suing you, within a certain period of time. The length of time you have to answer varies depending on what you're being sued for. If you're being sued, in Wisconsin, for $5,000 or less, that's a small claims case and you'll have at least 5, but not more than 30, days to "answer." (But you may have to appear in person instead of filing a written answer.) If you're being sued for foreclosure, you'll have 20 days, usually to "answer." If you're being sued for a tort -- a personal injury claim -- you'll usually have 45 days. (If you're an insurance company, you'll get 45 days, too, no matter what. That's why I recommend that everyone be an insurance company.)

The summons -- which always comes with the complaint -- will tell you how many days you have to answer and where you have to send your answer too. But why take chances? Call a lawyer -- they'll know what to do.

That time, too doesn't get extended, generally -- and, again, if you don't act, you'll lose. The person suing you will win by default.



The time that something occurs is different depending on what you're doing. Here's another wrinkle: doing more or less the same thing at the exact same time in the law doesn't mean that legally you did those things at the same time. Confusing again? I agree. Let's look at an example: serving things.


Most things are served in the law, by mail. (Most things. Not ALL things. Be careful!) Most things are filed in the law by mail, too -- only rarely do lawyers or their staff go walk something over to the courthouse to hand it to the clerks.

So if I have to serve and file something, and I make all my copies and put them into an envelope and send them off, all at the same time, I've done all those things at the same time, right?

Wrong. (Trick question! Gotcha!) Things are considered served when they're mailed (generally!), but are considered filed when the clerk actually gets them. So if I mail an answer to opposing counsel, and the clerk, today (July 3), then the answer was served July 3 -- but it won't be filed until the clerk gets it, probably July 6.

The time in which you have to act is sometimes extended by things -- but don't count on it. Sometimes -- but only sometimes-- the time you have to act can be extended. But only sometimes. For example, if the law gives you less than 10 days to do something, then that's technically "10 days not counting weekends and holidays." And if you get served something by mail, you get three extra days to respond to that thing.

So it's possible that you might have a few extra days to do something -- but I don't recommend counting on those few extra days. In my own practice, when I have something due on a given day, I plan on filing it, or serving it, or mailing it, the day before. Or two days before. Sometimes even a week before, if I really want to be careful.

I do that because it's too important to risk blowing a deadline. I don't want to make someone lose their case because I monkeyed around counting days. If I've got 20 days to answer a complaint, I'll plan on doing it on day 15. That way, no matter what happens, I should be covered -- even if on day 15, I get sick and get the flu, I've got 5 days left. If on day 16 I get stuck in traffic, and on day 17 my computer crashed, I've still got 3 days left. If on day 18... well, you get the point.

So if you've got a time limit coming up... what are you waiting for? Is it really worth losing your case to buy an extra three days? Call a lawyer now... while you've got the time.



The information in this post is intended for general legal knowledge only, and applies only to Wisconsin law. If you have a legal question about another state, you should contact a lawyer in your state. Like if you have a Minnesota legal question, contact a Minnesota lawyer. If you have a more specific legal question, contact me at the office number on this blog.

Asking a lawyer how much you should pay a lawyer is kind of like asking a shark how much of your leg he wants.

Time for a reader question! Reader John emails this question to me:

How much should I pay lawyer [to] buy a house?
There are so many factors to consider. Would you be kind enough as to give me some pointers as what to look for or avoid? Would you consider giving me a couple pointers? I am very grateful for your help. Sincerely,
John

The law being the law, John, I have to say this first: remember that I'm not your lawyer and I'm not giving you legal advice. Also, remember this: I'm only licensed to practice in Wisconsin, so my legal knowledge extends only so far as the Wisconsin border. There may be a variety of state laws wherever you live (you didn't say) that impact house buying and place rules on lawyers and realtors and title agents, laws that I don't know exist and that I can't talk about.

But with that said, here's my answer:

Whatever they charge for legal work.

You should pay your lawyer that lawyer's usual rate to go over your paperwork and advise you on buying your house. I'd guess, in a typical home purchase, that you're talking about a couple of hours of work, if no trouble comes up. So depending on the going rate for lawyers in your area, expect to pay a minimum of $200 or so, up to $1,000.

Now, if trouble starts, that cost might go up -- but if trouble starts, you want a lawyer on your side, right? Remember what I always say about hiring a lawyer:

If it's not a complicated legal problem, then it won't be very expensive because lawyers don't charge a lot for uncomplicated things. But if it is a complicated legal problem, then it might be expensive ... only if you've got a complicated legal problem, you definitely want a lawyer.

In short, John, it's always worth it to hire a lawyer to deal with legal issues, including buying a house. I don't think a lawyer is necessary to purchase a house, John. But I think it's advisable. It's advisable for a couple of reasons.

First, any house you're buying is going to cost you $50,000, $100,000, $200,000, maybe more. You're going to pay for it, in all likelihood, for 20 or 30 years of your life. If you're going to spend $200,000 to live in something that you'll pay for for the next 30 years, it's worth it to pay a lawyer a couple hundred dollars to look things over and give you some advice -- to make sure that you're making a good deal and not getting ripped off and that everything's in order.

Everyone objects to that advice and says "Why should I hire a lawyer, with all that extra expense?" I think that's funny: People have no trouble buying a car and telling the dealer to throw in those super-fancy floor mats for an extra $200, but tell them to have a lawyer look over their home purchase for $200 and they'll scream bloody murder and say they don't need it.

You'll sleep better at night if a lawyer helps you buy your house -- even if that means your house costs an extra $1,000 or so.

True, the vast majority of home purchases don't involve lawyers and don't lead to trouble; but if those homeowners had hired a lawyer to look things over, they wouldn't have spent a lot of extra money and they'd have had fewer worries about the transaction.

And for those purchases that do lead to trouble, the buyer could have benefited from consulting a lawyer who could see those problems and either fix them or advise the person not to buy the house -- avoiding years and years of headaches and trauma and expense and lawsuits.

A lawyer can look over your offer to purchase, and any counteroffers or amendments to the offer. A lawyer can explain confusing legal terms or help offer solutions to otherwise-intractable problems. And a lawyer can tell you whether there are potential problems with the deal you're making and offer advice on how to not get sued, or get yourself in a situation where you have to sue.

It's hard, John, to tell you in advance what to look for every time and what a lawyer could help you avoid, and a lawyer isn't the only professional you should consult. So let me give you a quick checklist of things to keep in mind and people to consult, and also some warning signs that you're entering into a bad deal.

First, the people to consult:

A lawyer. (But you knew I'd say that; I already did.) Call and find one that does real estate transactions; your state bar or local bar association can help you. But the best way to find a lawyer is to ask your friends, family, coworkers, and business associates who they recommend. If they liked their lawyer, that's a good sign, and even if that lawyer doesn't practice in that area, he or she may know somebody who does.

A home inspector. Your lawyer can possibly recommend someone to do this. Hire a good one and ask for references. Then listen to him or her, because failing to do that can lead to big problems down the line. In the Wisconsin case of Novell v. Migliaccio, a guy bought a home from a friend-of-a-friend. His home inspector suggested hiring a foundation expert because of concerns about leaking, but Novell decided not to, trusting the homeowner's word. Later -- you guessed it -- the basement leaked and he had to sue, and Migliaccio's defense amounted to "Well, you should have listened to your expert, not me."

An appraiser. A new code of ethics in the housing industry prevents using appraisers with too-much-inside contact with banks -- already leading some to complain that sales are being hampered by all this honesty -- but nothing keeps you from getting your own appraisal. They cost about $400 or $500, an expense that amounts to only 0.2% of the cost of the $200,000 house you're buying.

After you've got your three guys (or gals) lined up, here's some warning signs that maybe things aren't going so well:

Are there problems with your loan or purchase documents? Repeated errors or miscommunications are not good. If your lender or realtor keeps making mistakes -- not mere little typos, but significant mistakes -- and having to rework the documents, ask yourself why. The answer is not likely to be a good one. Do you want to be borrowing money from someone who is mistake-prone at best?

And, if there is anything... ANYTHING...incorrect on those documents, DO NOT SIGN THEM. I actually had a mortgage broker, when I tried to refinance, tell me to sign some application materials that contained patently false information. This guy knew I was a lawyer and still told me to sign the papers -- after I'd told him the information was false. "It's not important," he told me.

It is important. If you lie in those documents, you could be committing mortgage fraud. If the information is incorrect, you may not be buying the house or getting the loan you think you're buying. For example, if the income stated on the loan application is higher than your actual income, not only are you committing mortgage fraud, but it's actually less likely that you'll be able to afford the house you're moving into -- since lenders use your income to determine whether you can make the loan payments. So signing that application with incorrect income makes it possible that you're committing a crime and setting yourself up for a foreclosure.

And a corollary to that: Do not sign any blank papers. Don't listen when they say "I'll fill this in later."

Are things taking much longer than you were promised they would? Unexplained delays can mean trouble. Pushing back a closing date more than one time can mean trouble. Make sure you -- or your lawyer -- finds out why the date is moving and what the reason for the delay is. A short delay may not spell lawsuit, but longer or frequent delays without explanation are fishy.

Are things being rushed? Conversely, if it's all moving a little too fast, ask why, too. This is a major purchase -- either buying a house or refinancing is a commitment of thousands of dollars. Is that really something you want to do in a hurry? We spend 10 minutes deciding what to buy at McDonald's -- take some time to think through your purchase.

Are you being asked to say something untruthful or not to mention something? This is kind of an offshoot of the false application problem but deserves its own topic. The number of cases I've seen where someone was told not to mention that they had another loan, or to claim that money was a gift when it was not, or otherwise hide the true nature of the transaction, is staggering. So I'll say this simply: You should not have to lie to get a house. If someone involved in the transaction is asking you to hide the truth, stop and talk to your lawyer.

Are promises being written down? Every -- EVERY aspect of a transaction to buy a house should be in writing. Is someone promising to help you with payments? Are they promising you could refinance or reduce your payments or get rid of monthly insurance? Write it down and make them sign.

A promise that's not written down and signed isn't a promise. Again, the number of people who come into my office and say The mortgage broker told me he'd refinance me, or I was told that the lender would waive the first few payments or some other claim... a promise that then wasn't followed through on and led to trouble. If someone promises you something, have them write it down. If they won't write it down and sign it, they're lying to you.

Those are a few tips, John, and I hope they're helpful. Remember, overall, most house purchases go smoothly and lead to many happy years of living in your dream house with no troubles at all -- other than fixing the roof, replacing the furnace, re-wallpapering where your kids colored on the living room walls, having the carpets steam-cleaned after you accidentally and totally not on purpose spilt your "Red Pop" soda on them, and all the other fun of home ownership.

Lawyers can't help you with those things -- but they can help make sure your home purchase goes more smoothly.