Wednesday, November 10, 2010

Reddo vestri , perdo vestri contradictio ut jurisdiction (Tales Of Pro Se Litigants)



You might think the last order in a case is the final order, but if you did, that marks you as a pro se litigant, tilting at the windmills of procedure as you ride your steed of individual rights over the grassy meadow of litigation...

... I'm feeling poetic today, and also remembering that I never actually finished reading Man Of La Mancha, probably because I was too busy reading Countrywide Home Loans Servicing v. Anderson, a Wisconsin Court of Appeals' case that is hot off the presses as of November 2, 2010, and which features a couple of interesting questions in an otherwise run-of-the-mill case.

Interesting question number one: How did Countrywide Home Loans Servicing LP appear in a case that was filed in January, 2009? If you google "Countrywide Home Loans Servicing" you'll get a bunch of links to Bank of America, and if you click on the "Countrywide Home Loans Servicing LP" link on the Making Homes Affordable site, you're sent to Bank of America's website. The FTC website identifies "BAC Home Loans Servicing" as a company formerly doing business as "Countrywide Home Loans Servicing," so how can a nonexistent company appear in the caption to a case, given that amending a caption to name the proper party is a simple matter?

It might be, though, that Countrywide and its lawyers didn't have time to amend the caption, because they were intent on immediately dismissing the case they'd filed, raising interesting question number two: Why was Countrywide really trying to dismiss the case? That requires a bit of background to explain, so here goes:

According to the Court of Appeals opinion, Countrywide filed the foreclosure on January 16, 2009. The pro se litigant, Anderson, filed a motion to dismiss "alleging multiple violations of [RESPA]." Anderson's motion was filed February 10, 2009.

Countrywide filed a motion to dismiss voluntarily under section 805.04(2), Stats. There's a bit of discrepancy about when Countrywide actually filed and served the motion: Countrywide said that it mailed the motion on February 7, 2009, citing to a letter it put in its appendix, but which didn't appear in the record. Court records show that the motion to dismiss was received by the court on February 17, 2009 -- 7 days after Anderson's motion to dismiss.

Countrywide's motion sought to dismiss the case, Countrywide said, voluntarily "with rights to re-open subject to terms of a workout." That's a quote from the Court of Appeals. But it didn't sound like Anderson wanted to work anything out, given that he'd already moved to dismiss the case, apparently with prejudice, on those RESPA grounds.

Whatever Countrywide's motives, it didn't matter -- because the Court granted Countrywide's motion for voluntary dismissal on February 25, 2009. Anderson hadn't objected to the motion by that time; his objection wouldn't be filed until March 2, 2009.

Anderson then, according to CCAP, wanted his motion to dismiss heard, but the circuit court denied that motion. Anderson then filed a motion for sanctions (the records available to me don't say what he was trying to have punished) and appealed.

On appeal, Countrywide first asserted, via motion, that the Court didn't have jurisdiction over the appeal because in its view, the order dismissing its claim wasn't a final order. When that motion was denied, Countrywide opted to bring the argument up again on appeal, raising the third interesting question: Why didn't the Court do something about Countrywide making the same argument that it had just lost on? The Court, after all, said that it

explicitly determined [in deciding the motion to dismiss the appeal] that the voluntary dismissal order was a final order for purposes of appeal....Our June 10, 2009 order fully resolved the jurisdictional issue.

Having allowed Anderson to appeal the case and allowed Countrywide to make an identical (losing) argument twice in a row without punishment, the Court then denied Anderson's claim (mostly) on their merits, raising the final and most interesting question, the one I hinted at in the beginning of this now-too-long post: When is the final order in a case not the final order in the case?

Don't get too lost in trying to work out that riddle: let the Court of Appeals solve it for you. More backstory, first, though: Anderson's first claim was that the circuit court had erroneously granted the motion for voluntary dismissal because it wasn't titled a motion:

He contends Countrywide's motion, which was entitled 'Application and Order for Dismissal' violated Wis. Stat. sec. 802.01(2)(a) because it was not framed as a motion...
The Court denied that claim, saying that

Although the better practice is to clearly identify motions, no modern court would deny relief, justified by facts brought to its attention, merely because counsel used a misnomer.


Whew! So that brief you filed the other day with the erroneous caption will still win your case. The circuit court also acted appropriately, the Court of Appeals held, by allowing the voluntary dismissal on Countrywide's rather than Anderson's terms -- by moving so quickly to dismiss, Countrywide had kept Anderson from being too harmed (other than the fact that Anderson faced foreclosure on his home and that Countrywide could opt to file again and again, voluntarily dismissing each time, a harm and a prospect the Court did not acknowledge.) Countrywide was actually doing Anderson a favor, the Court decided:

Countrywide stated it sought dismissal to attempt a workout. Thus, Anderson potentially stands to benefit from Countrywide's voluntary dismissal.

It's not clear why Countrywide, having filed an action that Anderson felt was subject to RESPA violations (violations that were never litigated, it should be noted) couldn't "attempt a workout" while the action was pending.

In any event, Anderson then also asked the Court to consider his appeal from the circuit court's decision denying his own motion to dismiss -- a motion the Court of Appeals did not consider a responsive pleading:
Here, Countrywide filed its motion [for dismissal] before any responsive pleadings.
The Court of Appeals decided that not only was Anderson's motion to dismiss not a responsive pleading (without explaining that) but also that it had no jurisdiction to review the circuit court's order denying that motion, for grounds that were not entirely clear. The Court of Appeals seemed to indicate that Anderson's motion to dismiss was based on jurisdictional grounds, by saying that it had no jurisdiction itself to review the order denying the motion because

In Grulkowski v. DOT, 97 Wis. 2d 615... we held that an order denying an objection to the circuit court's jurisdiction was not appealable as of right because it did not dispose of the entire matter in litigation. For the same reason, the order denying Anderson's motion to dismiss is not a final order...

There's nothing inherently wrong about that ruling, if Anderson's motion challenged jurisdiction -- except that the confusing posture of the case made it unclear how the Court could rule on Anderson's motion at all: The case had been closed prior to the order denying Anderson's motion, so it doesn't seem as if the circuit court could do anything about Anderson's request -- which apparently was a request that it not do anything about Countrywide's complaint.

To help not clear up matters at all, the Court of Appeals provided a footnote to that ruling:

Because of the case's procedural posture, we must briefly address a potential source of confusion. Ordinarily an appeal from a final order brings before us all prior nonfinal judgments, orders and rulings adverse to the appellant... In this case, the final order is the circuit court's February 25, 2009 order granting Countrywide's motion for voluntary dismissal. The circuit court's order denying Anderson's motion to dismiss is dated March 5, 2009. It is not a prior nonfinal order and is therefore not reviewable under Rule 809.10(4).

Helpful? Not really. Apparently, what Anderson had to do was seek leave to appeal a nonfinal order; that would be the only other way to review the circuit court's decision that it had jurisdiction to consider the claims Countrywide was making -- but seeking leave to appeal a nonfinal order doesn't seem the right way to go about appealing from the last substantive order in the case.

And, consider that Anderson's claim apparently was that the circuit court lacked jurisdiction to hear the case in some way. When you keep that in mind, the sequence of events is this:

1. Countrywide files a complaint.
2. Anderson challenges the circuit court's jurisdiction to rule on the case.
3. Countrywide moves to dismiss the complaint.
4. The circuit court exercises its power in a substantive way, granting Countrywide relief.
5. The circuit court then decides it has jurisdiction to do what it already did.
6. Anderson is denied leave to appeal the circuit court's ruling that it had the power to act because the Court of Appeals rules that it did not have the power to act on that ruling.

All of this might have been avoided, however, if Anderson had a lawyer -- because a lawyer might have more timely objected to Countrywide's motion to voluntarily dismiss, bringing the issue of jurisdiction before the court in a better way.






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