Almost every single thing I write on here urges anyone who reads this to get a lawyer. Since this blog is pitched at both lawyers and non-lawyers, I should probably urge the lawyers who read this to make sure they're familiar with a given area of law, and, if they're not, they should get a lawyer to help them, too.
To help drive home the point that you need a good lawyer to help you, I'm starting a new periodic feature here today, Tales Of Pro Se Litigants: True-life stories of people who tried to go it alone, and how they fared.
Now, I know that not every pro se litigant fares badly; some do quite well and some do better than that, even.
But going the pro se route appears to me to be like extracting your own tooth when you have a toothache. Sure, it might work out well -- but if it doesn't, the results can be catastrophic. In short, there's a lot to lose and very little to gain by going pro se, and a lot to gain and little to lose by going the hire a lawyer route.
The Case: Clearpointe Capital, Inc. v. Townsend. After Townsend bought a manufactured home from Steenburg Homes and made payments for several years, his missing a couple of payments resulted in the same-day assignee Clearpointe Capital filing a replevin suit in small claims, seeking to take away Townsend's house.
The Pro Se Defense: Townsend moved to dismiss on grounds that the circuit court lacked subject matter jurisdiction because the value of the home exceeded the small claims court limitation of $5,000; he should not have to pay Clearpointe's costs and disbursements; the complaint was deficient for failing to include an affidavit from the corporate agent who signed it that identified the signer as a full-time employee of Clearpointe; he was entitled to assistance with his defense under the Americans with Disabilities Act; that Clearpointe lacked standing to enforce the installment contract because it had not signed it; and that the contract required arbitration.
Townsend also, after the fact, filed a "writ of mandamus," and then an appeal from the judgment turning his home over to Clearpointe.
Where He Went Wrong: All of his arguments failed, and Townsend never filed a response to Clearpointe's motion for summary judgment, claiming he didn't do so because he "did not understand this affidavit thing." Townsend's claims were, as noted by the Wisconsin Court of Appeals, "not well elucidated nor well supported by relevant legal authority."
Also, Townsend didn't appear at the hearing for his writ of mandamus.
The result: Townsend's home was taken away, and he lost his appeal.
How a lawyer might have changed things: Townsend argued that the contract was subject to arbitration. That may or may not have been the case (it's not clear from the Court of Appeals' opinion) but a lawyer might have been able to void the contract, or force arbitration. An attorney could have reviewed his notice of right to cure and notice of default; a failure to comply with the Wisconsin Consumer Act as to those might well have entitled Townsend to a return of all money paid -- plus a ruling that he owes no further money, resulting in a free home. An attorney could, most importantly, have requested a stay of the replevin judgment pending appeal, leaving Townsend a house to live in while his case was fought. An attorney could also have investigated alternative remedies such as a chapter 13 bankruptcy, which might have allowed Townsend to cure the default over a longer period of time than allowed by the creditor.
An attorney also could have examined the complaint to see whether it met all the requirements of the Wisconsin Consumer Act. As an assignee of the contract, Clearpointe now wouldn't be required to comply with section 425.109, Stats. -- but the case which instituted that rule (wrongly)(the Rsidue case) wasn't decided until 2007; Clearpointe sued Townsend in 2002 and so at that time still had to comply with the pleading requirements, including the "figures necessary" requirement the Wisconsin Consumer Act imposes.
(Even if the case was filed today, an attorney could also, I think, argue that a same-day assignment such as this one might not fit into the Rsidue rule that relieved assignees from compliance with section 425.109. In this case, Steenberg sold the house, but the closing documents on the home automatically assign the contract to a third-party at the moment where Steenberg signed the papers. That seems to me to be a different type of 'assignment' than Rsidue was talking about, and allow a good-faith argument for a reversal or limitation of Rsidue's holding.)
Those are complicated arguments -- and not guaranteed to win-- but they're arguments that could have been made, and should have been made by a lawyer.
Also, lawyers know to always show up for your motion hearing.
0 comments:
Post a Comment