Can "The Man" Take Away That Gift Card Your Mom Gave You?

In the wake of the not-very-stringent, but not-very-necessary, gift card rules announced last week (and which take effect for cards purchased after August 22, 2010), it seemed fitting to ask not whether you might pay a fee if you don't use your card for a period of time, but, more importantly, can the state take the card away if not used in a given time?

Depending on where you live, maybe.

Some states -- like Alabama -- consider gift cards and gift certificates "abandoned" after about three years. Some states (Arizona is one) expressly say they're never abandoned. In Illinois, gift cards may be considered "abandoned" only if they're issued before 2003, or if they have an expiration date on them.

One of the shortest periods before a card is considered "abandoned" is in Maine, which deems the cards abandoned after about 2 years in some cases.

What that all means is that if you don't use a gift card in the time allotted, the merchant who took your grandma's money lo those many years ago has to turn the money over to the state, which will then either list it as unclaimed property or simply add it to the state's budget.

Here's the interesting part for us Wisconsin lawyers: Wisconsin isn't terribly clear on whether gift cards escheat or not. Chapter 177 controls that area of the law in America's Dairyland, and that chapter defines "Intangible property" as including "Moneys, checks, drafts, deposits, interest, dividends and income....credit balances, customer overpayments, security deposits, refunds, credit memos, unpaid wages, unused airline tickets and unidentified remittances."

(Wis. Stats. Sec. 177.10)

Wisconsin then says that "intangible property," unclaimed by the owner for more than 5 years after it became payable is presumed "abandoned," sec. 177.02(1), Stats.

Unclaimed property needs to be reported to the state and delivered to the state, by November 1 of each year; three years after it's turned over, the State can sell it.

Which means that, new controversial and not-really-needed rules aside, a bunch of states, including, arguably, Wisconsin, will impose on your gift card the ultimate penalty: hold it more than five years, and the State will take custody of it; 8 years later, the State will sell your gift card and apply the money to the general fund.

Also, the kitchen was sort of slanted.

My first apartment, upon moving out from my parent's house, was located just off the Marquette University campus. A 3-story building, we lived on the top floor, and when I first moved in, I was so enthralled by the idea that I had my own place that I overlooked all the little things I would come to discover over the course of the next 9 months living there.

Little things like there were mice galore in that building -- we used to have to sit on the couch with our feet up in the air to avoid them running across our toes - -and the heat, radiator heat -- was unadjustable, so that it was always 90 degrees in the apartment. That sounds nice, until you've got to get ready to go out and it's January, so you're going to have to throw on jeans and a sweater and a jacket. We'd have to wait until just before leaving and then throw on our clothes and rush out the door.

That, and the building was in the worst part of town -- or close to it-- so that we didn't especially want to go outside, much.

After that time, I was a lot more selective in looking for apartments or houses for rent and deciding where to move to. Back then, though, there wasn't an internet and there was no easy way to search coast-to-coast for detailed property listings with pictures and information. You had to look in tiny, indecipherable want ads to try find a place to live, and then go drive to the location to see what you were looking at.

Nowadays, with things like Move.com, it's easier than ever to find a house or apartment to rent, no matter where you're looking. So if I was searching today, I'd go to Move.com and find my new place -- and probably avoid the mice.

Why would a debt collector keep calling debtors who clearly didn't want to be bothered?

Consumers cannot prohibit debt collectors from contacting them about hypothetical or future debts. But maybe lawyers can?



I began thinking about this as I read Udell v. Kansas Counselors, Inc., 313 F.Supp. 2d 1135 (D. Kansas 2004), a case in which some wily consumers tried to get Kansas Counselors to never be able to call them again... period.

The consumers in 2003 were contacted by Kansas Counselors (KCI) about some debts that had been placed with KCI for collection. The consumers wrote to KCI and told them to "CEASE AND DESIST" attempts to contact them about the debt.

That was the consumers' attempt to take advantage of 15 USC 1692c(c), which limits the contacts a debt collector can have with a debtor after a "consumer notifies a debt collector in writing that the consumer refuses to pay a debt or that the consumer wishes the debt collector to cease further communications with the customer." (I talked more about that here.)

That letter was sent in March, 2003. In May, 2003, KCI got three more accounts placed with it for collection -- three new accounts: same consumers, different debts. So KCI wrote again to the debtors, and called them, too. Then, later that same month, KCI got two more accounts from these debtors placed with it. So they called and wrote again, on these new accounts.

The debtors, meanwhile, got themselves a lawyer, who wrote and said that KCI had violated the FDCPA by calling after the cease-and-desist letter (which really should just be a cease letter. Or a desist letter. It doesn't have to be both.) The lawyer said he represented the debtors on some accounts, but didn't specify which ones.

KCI then got even more accounts p,aced with it, in June, July and August, 2003, for the same debtors, and KCI called the debtors on those. So the debtors sued, claiming that KCI had violated 1692c(c), and that the phone calls KCI had been making (calling but not leaving messages) were harassing.

KCI said they hadn't violated the FDCPA at all -- and they were right. The district court ruled in their favor, noting that consumers don't have the right, under the FDCPA, to prohibit debt collectors from contacting them on future debts.

While the statute could, arguably, be read to let consumers put a blanket prohibition on all future communications from a debt collector, the Court reasoned, doing so wouldn't make sense, because the statute speaks about consumers refusing to pay a debt, and ceasing further communication. The Court reasoned that to cease further communications means, necessarily, that there has been a communication.

The Court also noted that the statute says that after a consumer does one, or the other, or both (refuses to pay or demands cessation of communication) the statute says that "the debt collector shall not communicate further with the consumer with respect to such debt."

That suggested to the district court that the cessation of communication applies only to a debt, not a debt collector in general.

The Court found support in an informal staff opinion letter from the FTC that agreed with it -- back in 1977 some staff lawyer at the FTC had written the letter saying that section 1962c(c) didn't prohibit debt collectors from contacting debtors about debts assigned after the cease-letter was sent. (FTC letters in general get little-to-no-weight in cases like this; the Court just used it to support its own reasoning.)

The court got that rule right; it's the with respect to such debt language that keeps debt collectors in the game after debtors send the cease-letter. In effect, section 1692c(c) lets debtors demand no further communication "with respect to such debt," and that suggests, as the Court correctly noted, that there has to have been a debt and a communication before a debtor can demand that the communication stop.

The Court also gave short shrift to a more interesting question -- whether KCI's continued phone calls were harassing. Under 15 U.S.C. 1692d(6), a debt collector cannot harass a debtor, and harassment includes specifically "placement of telephone calls without meaningful disclosure of the caller's identity."

Here, the debtors alleged that calls on May 7, 8, 12, and 13 were harassing. They didn't quite explain how that was, so the Court assumed that the harassment was claimed because KCI didn't leave a message -- which the Court found not harassing or oppressive at all. In fact, the Court noted that one treatise has suggested debt collectors can't leave messages because doing so might violate other FDCPA provisions.

What's interesting about this aspect of the case is that the Court found that calling four times in seven days without leaving a message did "not fall within the realms of the other types of egregious conduct" under the statute. Maybe so... but it comes awfully close to looking like "causing a telephone to ring or engaging any person in telephone conversation repeatedly or continuously with intent to annoy, abuse, or harass any person at the called number."

That's prohibited under the same statute, 15 U.S.C. 1692d(5). And calling without leaving a message may be done to "annoy" the person... especially if that person has previously written and demanded no further contact.

Here's the thing: The debtors in this case had written to KCI and demanded the KCI stop contacting them. KCI was prohibited from contacting the debtors about three specific debts, but also knew that the debtors didn't want to be bothered.

So why was KCI calling? And why was KCI calling four times in seven days? And why was KCI calling four times in seven days without ever leaving a message?

I'm not saying that KCI definitely was trying to annoy the debtors, and I don't know what affidavits KCI submitted to the Court. I'm just saying that it's not clear-cut, to me, that KCI's phone calls as a matter of law couldn't have violated the FDCPA -- placing four calls in seven days after receiving a letter asking not to be contacted could be done to annoy a person.

Here's an even more interesting question that wasn't dealt with by the Court at all: The debtors also claimed that KCI contacted them after it knew they were represented by a lawyer.

The such debt language factored into this argument, too: the debtors' lawyer had never bothered to specify which debts, in particular, he was representing the debtors on -- so KCI didn't know, when it contacted the debtors, whether their lawyer was representing them on that debt or this debt or the other debt.

Left open in that discussion was this question: what if a lawyer says he represents the debtors on all debts, now and in the future?

That's what I do: when I finally have to write to a debt collector for a client, I almost always say I represent them on this debt and that debt and the other debt and all debts, and all credit and collection matters. I try to make the letter as comprehensive as possible, so that my client -- who's been forced to contact me about this -- doesn't have to deal with debt collectors anymore.

In KCI, the lawyer never specified any particular accounts, so the Court correctly ruled that KCI didn't have any reason to think that the lawyer represented the debtors on accounts placed with KCI after the lawyer was hired.

I have trouble with that, too -- in a general sense, first: KCI again knew that the debtors had a lawyer now, working with them on these issues. The lawyer actually wrote twice to KCI about the issue, including (apparently) a claim that KCI was acting illegally in contacting his clients.

So why would KCI continue to contact the debtors directly? What reason would KCI have to not go to the lawyer and say "Okay, you represent these debtors, here's 5 more debts, can we talk to them about these?"

KCI wasn't required to do that (although it would likely have been good practice to take that step), but they could have done that. Instead, they opted to go on calling and writing these consumers who now had told KCI to stop, and had hired a lawyer to get KCI to stop, calling and writing them.

Why'd they do that? It may have been that KCI was legitimately attempting to collect a debt -- but it's not out of the realm of possibility that it may have been that they were intending to harass the debtors, who appear by all accounts to have been simply trying to get KCI to stop calling and writing them.

The FDCPA doesn't expressly prohibit anything KCI did here; but it sure seems to me that it should.

Anyway, the larger question I'm leaving you with is this: Can a lawyer stop debt collectors from ever contacting their clients again, if that lawyer tells the debt collector he (or she) represents the debtors on all collection matters for all debts, now and in the future?

I don't know the answer to that...yet. I'll get back to you when I have something figured out.

CHECK OUT MY FIRM'S NEW WEBSITE.
While it's still a work in progress, I'm pleased to unveil the Krekeler Strother S.C. website, which you can get to by clicking here.

Don't misconstrue my position on payday lenders.

If you've read this blog for long, or know me personally, you may think I have a low opinion of payday lenders, but that's not necessarily true, as not all check advance and payday loan lenders are cut from the same cloth.

As a lawyer, I'm aware that some industries and occupations may be painted with a broad brush when there are bad apples among the good -- and companies that offer cash advance payday loans are one of those industries, constantly under attack from consumer advocates and legislators looking for an easy target.

But many of the payday loan companies do good and operate in compliance not only with the laws, but with ethical business practices, as well -- providing a necessary service to fill in the gap in lending for people who may not qualify for more traditional loans, or who may not want to go through the headache and long waiting period of a traditional loan when they only need a little money and for a short time.

For people who fall into those categories, dealing with a responsible payday lender can be a godsend: a short-term, reasonable loan when they need it, with only nominal paperwork and with less reliance on credit scores.

A good lender in the industry will make sure that the borrower has the ability to repay the loan, will not lend more than is necessary, will offer reasonable interest rates commensurate with the risks it's taking on, and will do things to limit potential problems (such as rolling over loans or imposing punitive charges.) And when payday lenders follow those practices, there's nothing wrong with them: they're more like microbanks, serving an area of society not easily reached by more traditional commercial lenders.

With the bank failures and tightening of credit nowadays, microlenders such as payday loan companies can serve an even more valuable purpose, making sure that short-term loans are available.

So I have no problem with the idea of the industry or the general practices. If payday lenders cut corners or become irresponsible, then I think they should be held accountable (just like any other business engaging in unethical or illegal practices should.) But the majority of payday lenders don't do those things, and, if they're approached responsibly, will act responsibly in return.

Handel Was Wrong! (And might have screwed up someone's life.)

Like anyone, I occasionally have to drive places, and like anyone, I occasionally get tired of listening to sports talk radio and see what else might be on. That's how, this past Sunday, I came to be listening to "Handle On The Law," an am-talk radio show that airs at a variety of times on stations.

And that's how I came to hear Handel give a major piece of misinformation -- or potential misinformation-- to a caller who asked a question I deal with every day: Is a short sale or foreclosure better?

The called called up, got Handel on the phone, and asked just that: "Is a short sale or foreclosure better?" Handel then mentioned some possible tax issues with a short sale but decided that a short sale was better than foreclosure.

That's what he told her.

And it literally took less time for that call than for me to type it up.

Here's the problem with what happened as I listened in surprise:

First, Handel had no information. NONE. Not a single bit of information. He didn't know what type of property it was, how long the woman had held it, who else lived in it, whether she had tenants or if it was a residence... nothing. Nada. Zip. Zilch. (With me so far?)

He didn't know what state she lived in. He didn't know what her income situation was. He didn't know what her credit situation was. He didn't know anything.

Second, Handel purports to give advice -- he says so himself, right on his website:

Bill definitely knows his way around our wacky American legal system, and with a quick wit and razor sharp tongue, offers up advice to countless callers on a weekly basis... [Says Bill]:
"Handel on the Law began broadcasting in 1985. I enjoy it more today than the day I started. Abusing callers, giving marginal legal advice and telling callers where to go is still probably the most enjoyable thing I do other than having intimate moments with my wife...No...It is the most enjoyable thing I do."

Calling it "marginal" doesn't make it okay, and I'm not aware of a single state that lets you practice law in that state without being admitted to the bar. Some states make giving legal advice without being admitted to the bar a criminal matter. Handel doesn't claim he's providing entertainment, or some such: He specifically says that he gives advice to people.

So he gave that woman advice on her legal issue without knowing anything about her, and without knowing whether he could legally practice law in that state.

Third, what are Handel's qualifications to advise anyone on short sale vs. foreclosure? His website says that he was #1 in the morning drive-time radio... and that he "provided legal counsel for several hundred cases of third party reproduction." He has also, according to his site, gotten a law degree and "been an adjunct professor of Law at Whittier College School of Law where he taught "Legal Aspects of Reproduction Technology."

All of which doesn't tell you anything about his knowledge of foreclosures vs. short sale, and he may have greatly, greatly harmed that woman who called in: A short sale, getting the lender to agree to accept as full satisfaction of a debt whatever amount a buyer is offering, might have serious tax consequences for the woman. A short sale might force the woman to pay a commission or closing costs, reducing the amount of money the lender will get and thereby increasing the tax consequences. Agreeing to a short sale might also deprive the woman of any legal or equitable defenses to a foreclosure that she might have, defenses that can limit or defeat a foreclosure entirely. She would get to live in or use the property pending foreclosures in some cases. And that's all not considering whether she would be eligible for one of the federal programs to help modify loans, or any comparable in-house or state programs.

Handel doesn't purport to offer entertainment; he claims to offer advice, and his advice in this situation was negligent and may well have been malpractice.

If you want to listen the radio, try Dan Patrick. If you want legal advice, call a real lawyer, not some radio huckster who'll screw up your case and play it for laughs.

This Is Why I Hate People...

... is my newest attempt at a daily blog. You'll find it at This Is Why I Hate People (or, if you don't want to click a link and like to do all the hard work of typing, at http://babiespets.blogspot.com).

This Is Why I Hate People will be a more-or-less-daily, short-post blog that is pretty much self-explanatory; it'll serve as the antidote to the sweetness & light that marks so much of my other blogs.

And, yes, there is sweetness and light on my other blogs.

Check it out today!

Even grandfather clocks can go high-tech.

That is a grandfather clock.

Incredible, isn't it? We've got a grandfather clock in our house, one that needs to be repaired, and I was looking around for someplace that could fix up our old one when I stumbled across the grandfather clocks for sale at 1-800-4clocks -- clocks that include the one above, the "Howard Miller Tempo Grandfather Clock."

I like clocks - -interesting ones, at least, and I've always had a special love of grandfather clocks, since I was a kid and our family bought one. I like the way they look, I like the chimes, I like the complexity and grandeur.

But more than that, I love the way that Tempo clock looks -- completely different than a traditional grandfather clock, something that takes the old idea of counterweights and chimes and moves it into a design that wouldn't look out of place in an office... or a space station.

A grandfather clock can be a centerpiece of your living room -- as ours is -- or a focal point for your office waiting room, like that Tempo clock would be, or an addition to the study you're putting into that extra room downstairs. They can even be great wedding or housewarming gifts (as the 1-800-4clocks blog pointed out) -- and as that blog noted can be engraved or personalized with the names and dates of the wedding

That's because they're interesting,and special and unique -- the perfect accoutrement to any room, or occasion.

I've abandoned my plans to fix up our old clock, now: I want that Tempo clock. And not for the office, either: I'm going to replace our old living room grandfather clock with that one and really jazz up the ol' house.

Can you UNcause something to happen?

Lawyers aren't always entitled to believe their clients.

That's the thought I had after reading Brophy v. Mei, a Milwaukee County case recently decided by the Court of Appeals.

In Brophy, the plaintiff, Timothy Brophy, was a landlord sued by his tenants in a class-action suit. After trying to hire several lawyers, he hit on Daniel Mei and Mei & Associates, meeting with them on May 17, 2006 to hire them to defend the lawsuit.

At that meeting, Brophy said he told his lawyers he'd been served about thirty days before the meeting but couldn't recall the exact date. The lawyers, though, said that Brophy had given them the exact date and that based on the exact date, an answer was due on May 24, 2006 -- so that's when they filed the answer.

In reality, Brophy had been served April 4, 2006, making his answer likely due on April 24 (but certainly no later than May 18). The untimely answer meant that Brophy was in default, and a motion for default judgment was filed against him.

Brophy claimed later that Mei & Associates didn't try to defend that default judgment at all, but that doesn't seem to be true; court records show that they at least argued the case. The default as to liability left only class certification and damages as issues in the case.

The Mei firm then withdrew from representing Brophy, and Brophy hired a new attorney. Somewhere along the way, Brophy was served with requests for admission, but he never answered those, so damages were now fixed, too, and Brophy opted ultimately to settle with the class-action plaintiffs. (The underlying lawsuit dealt with issues of security deposits and building code violations.)

Brophy then sued Mei & Associates for malpractice. Mei defended the case and on summary judgment, argued that Brophy needed an expert witness to prove they did something wrong.

The trial court, and the Court of Appeals, agreed: Brophy had not hired an expert witness, and because of that, he couldn't prove that Mei had committed malpractice.

Brophy's argument was simple: Mei, he said, missed a deadline, and in Brophy's view, missing a deadline doesn't require any expertise to analyze. Since expert testimony is only required when a layperson wouldn't be able to understand the issues, Brophy felt he shouldn't have to have an expert witness say Mei committed malpractice by not filing an answer in a timely manner.

As I said, the courts disagreed, and found the issue to be not whether Mei had messed up by filing a late answer, but instead, what a reasonable lawyer would have done when confronted with an unclear date of service.

That's kind of a crucial point in this case, one that gets glossed over: Brophy's testimony was that he'd told the firm he'd been served about 30 days before their meeting. The firm testified that Brophy gave them an exact date.

The Court of Appeals found that discrepancy in facts to be unimportant (or, in the Court's unique phrasing, "lack[ing] the element of genuineness.") Instead, the Court said the issue is "what a reasonable attorney would do when faced with a client's representation as to the timing of service."

The Court seems to have decided, by phrasing the issue that way, one of two things: Having said that the discrepancy in facts was not genuine (a novel standard for this kind of case), the Court must then had construed (as summary judgment requires) the facts in Brophy's favor -- which means that the Court must have decided that Brophy testified that he'd been served about thirty days before the meeting with Mei.

Which, in turn, means that the Court should have held something other than what it did. If Brophy was served thirty days before meeting with Mei, he was either already 10 days late on his answer, or he had fifteen days left to answer. It's more likely that the time had expired: Section 802.06 gives either 20 days, or 45 days, to answer. A defendant only gets 45 days if a defendant is an insurance company, which wasn't the situation in the case against Brophy. (But Brophy may have had 45 days; I routinely give 45 days to answer in the summonses I file.)

If Brophy was already late, then the almost the only thing Mei could do is file a motion to enlarge the time to file an answer: filing an answer alone would probably be insufficient (although, I'll say, I've done that on occasion for a client who got to me too late: I've filed an answer and waited to see if the other side challenged it before filing the motion to enlarge time. If they don't challenge it, they may be waiving their right to do so.)

If Brophy wasn't late yet -- if the summons gave him 45 days, then Mei filed an answer in a timely manner, doing so on May 24, which would be within 45 days of when Brophy recalled being served.

The Court of Appeals didn't say that one or the other version of events was accurate-- that's an issue of fact not determinable on summary judgment. Instead, the Court set up the issue as "determining what lawyers do when their information about the timing of service."

(The complaint's notation as to the date of service was illegible, something that occurs more often than you'd expect.)

I can tell you what I do in such a case: I file an answer that day. But that's not what every lawyer does. That's just what I do. If you are a client of mine and you call me and you tell me that you got served but you're not sure what day you got served, I'm going to file an answer that very day, just to be on the safe side.




That's not my only option: I could call the opposing party and find out when the client was served... if they know. If you call my office, I probably won't know when your client was served, without going and getting the file and looking. I calendar when answers are due, but not the date of service, as a general rule. I also may not be able to take your call right away.

You could try to call the process server... if you know who it is, and if you can get a hold of them and they have the information available.

But taking extra steps to determine when a client was served means that you don't know when a client was served -- that either your client doesn't remember and you've got no records to look at, or you don't believe your client for some reason.

And that's not what Mei said in this case: Mei said they did know when the client was served. Mei's testimony was (apparently) that based on what Brophy told them, they did know when the client was served and calculated an answer date of May 24 and filed their answer that day.

The Court of Appeals then set up the question based on that -- saying that a reasonable attorney could do more than one thing when a client gives them a date certain as to the date of service. "at issue is Mei & Associates' reliance on Brophy's recollection as to service."

In other words, was it malpractice for Mei to believe their client? The Court of Appeals didn't decide that: that was the question, but the question couldn't be answered because Brophy didn't have an expert to say whether it was reasonable for Mei to believe his client.

That won't surprise any lawyers reading this, either: Clients are often not reliable sources for information that may be critical to the case -- because they're not writing down dates and they don't know what's important when it's happening to them. When a sheriff comes to the door and serves them papers, clients don't know, at that point, that who is serving them, the date they're served, and the way they're served (as well as how many times someone's tried to serve them) might be important. What they know is they've just been sued.

So any experienced lawyer measures what his or her client tells him or her against other evidence and information available: looking at the calendar to determine whether the day a client says he was served was a reasonable day to be served, looking at the filing date of the complaint (I once had a client tell me she was served on a date that turned out to be two days before the complaint was actually filed), checking with opposing counsel, if there's time, and taking other steps to make sure that the date your client believes something happened is the date that something actually happened.

The Court of Appeals, and the Circuit Court, were right to require an expert witness to say what Mei should have done, given that Brophy's recollection had him in default already, while their own recollection said they were well within the limits. Without having sat through that client interview, I can't say what I would have done -- so no juror could have said that Mei screwed up.

That decision should probably have been the end of the case -- but the Court went on to decide that Brophy couldn't have won anyway because, it said, he didn't prove causation.

Malpractice is only malpractice if it causes the damages; no matter how badly a lawyer might mess up, if the client would have lost anyway, there's no malpractice there. In Brophy's case, assuming that Mei did mess up in the answer deadline, that still left damages to be assessed, and apparently Brophy could have greatly reduced (or possibly eliminated) the total damages claimed against him: so he might have been found to have violated the law, but not owe any money.

Only Brophy didn't answer those requests for admissions -- so damages were assessed against him and he was forced to settle. Brophy claimed that the requests were moot by the fact that he hadn't answered (with Mei claiming that the answer, to be factually correct, would have had to admit at least some liability [on that note, I had to chuckle -- I can't recall a time I've seen an answer admit some liability, even when the answer should do so. I've seen, in fact, answers that deny everything up to and including the identities of the plaintiff. So I chuckled, and I wondered if the answer that Mei filed actually did admit some liability. I'm guessing -- guessing -- that it didn't]

That failure to answer doomed his claim against Mei, because Brophy couldn't prove Mei caused the damages, the Court of Appeals said.

I think the Court got it half-right, in that analysis: The Court was probably right, but didn't get to that answer the proper way, and the proper way probably required a trial.

The Court's analysis of whether Brophy could win against Mei after failing to answer the requests wasn't a question of causation at all. Mei had filed an answer untimely, resulting in a default on liability and setting the stage for a hearing on damages. Brophy correctly pointed out that losing some legal rights is harm in and of itself.

So the question becomes what harm did Mei's act actually cause (if any). The Court said that Brophy couldn't prove Mei's act harmed him, at all, because Brophy had failed to answer the requests for admission, thereby admitting the amount of damages and giving up the fight.

That analysis doesn't quite jibe, because Brophy wouldn't have to prove that Mei's actions were the only cause of his damages, but just a substantial cause of his damages.


Instead, the Courts should have analyzed the case in one of two other ways.

One way to look at Brophy's failure to answer the requests was to ask whether that was really a kind of superceding cause. A superceding cause -- or intervening act -- can relieve a party of the consequences of negligence. Stewart v. Wulf, 85 Wis.2d 461, 475, 271 N.W.2d 79, 85 (1978). To qualify as such, the intervening act must actively cause harm after the first negligence. There are some qualifications to the protection an intervening act can provide -- for instance, if the act is one that the original tortfeasor could have foreseen, it won't eliminate liability -- but otherwise, an intervening negligent act is one that eliminates liability from the first negligent actor and puts it all on the second negligent actor.

Intervening act isn't a perfect analysis in this case -- because it's not a third party acting, but Brophy -- but it's one way to look at Brophy v. Mei, a way to look at it that the Courts didn't seem to use.

The other way to look at Brophy v. Mei is comparative negligence, a simple analysis that asks whether Brophy, or Mei, was more negligent in producing any harm to Brophy. If Brophy is more negligent than Mei, then Brophy can't collect any damages (even if Mei was negligent.)

The trouble with both of those approaches is they probably require a trial, not summary judgment: comparative negligence is almost impossible to determine on affidavits, and the intervening act analysis is pretty fact-intensive.

Instead of remanding to determine whether Mei had demonstrated that Brophy's failure to answer was an intervening act absolving any prior negligence, or to hold a trial on who was more negligent here, the Court simply held that Brophy's failure to answer requests meant, as a matter of law, that Mei hadn't caused any harm -- that all the harm was caused by Brophy.

Which doesn't make any sense: I mean no disservice to Mei (I don't actually think they did anything wrong here, for a variety of reasons) but if Mei answered late, then, under Wisconsin law, Mei per se cost his client some rights, and under Hennekens v. Hoerl, 160 Wis.2d 144, that's damage: So Mei caused damage to his client. Was that damage uncaused by Brophy's failure to answer the requests? Uncausation isn't a legal theory I've ever heard of (and something that can't happen, absent Superman reversing the Earth's spin) -- just as I've never heard of genuineness being a standard on summary judgment.

Intervening act and comparative negligence are rules that are well-recognized in Wisconsin, as is the maxim that Courts shouldn't decide issues that aren't necessary in the case. Having (correctly) determined that Brophy needed an expert witness to prove his case, the Court should have stopped there. But if they were determined to go on, they should have at least gone on in a way Wisconsin recognized, instead of carving out a (thankfully unpublished) exception to the rule of causation.

Don't take chances with mesothelioma.

Mesothelioma is a scary word, and for a good reason: Mesothelioma is a scary disease.

Mesothelioma is a rare cancer that affects the lining of your internal organs, mostly the lungs but also on the heart or other organs. It's almost always caused by exposure to asbestos, generally from people who have been exposed directly to asbestos on the job site, or indirectly to asbestos from being around someone who works on a job site (some people think that just washing clothes with asbestos dust on them can be enough exposure to put someone at risk.)

Mesothelioma can begin with shortness of breath or chest pain, go on to cause weight loss, and end up getting more and more serious-- fatigue, and coughing up blood are common -- and treatment doesn't do a lot. The prognosis for survival of mesothelioma is extremely poor.

Because of how it's caused, mesothelioma may affect people in the lower earning bracket, having a devastating effect on the person and their family: many sufferers may not have health insurance or life insurance and may not have much in the way of savings or retirement funds if they die.

Those economic issues make it important that anyone suffering from mesothelioma, or anyone who may have been exposed to asbestos, consult a physician and an experienced lawyer right away: the doctor can help detect any problems and attack them early on, and the lawyer can help get compensation to avoid economic ruin.

Whether you're looking for a Florida Mesothelioma Lawyer or other experienced counsel in other states, make sure that you act now, before it's too late.

Wisconsin's Department Of Consumer Protection Was Probably Too Busy Regulating Chicken McNuggets To Piggyback Onto This Suit.

In the news today, Lifelock has agreed to settle claims brought by the Federal Trade Commission and 34 state attorneys general. The feds and states alleged that Lifelock misrepresented its ability to protect your credit, in particular because Lifelock's services (the suit said) couldn't help prevent fraud on existing accounts. (Lifelock also was alleged to not handle customer information in the way it promised, possibly placing your private information at risk.)

Lifelock agreed to pay $12 million to settle the case. You probably won't get any of that: $11 million goes to the FTC, and $1 million will be split among the states.

Wisconsin didn't bother going after Lifelock -- possibly because the agency (DATCP) and legislators who oversee it are openly dismissive of consumer protection -- so you Wisconsinites wouldn't have gotten any money anyway. (I don't know why Wisconsin didn't join in to the suit; they could've just copied the pleadings, jumped in there like the other states, and gotten some money from Lifelock for doing very little work. Isn't that the definition of government?)

If you did buy into Lifelock, you may still have a remedy: Section 100.18, one of my personal favorite statutes, would let you bring a claim if Lifelock falsely represented what they could do, and you'd be entitled to get your money back plus your attorney's fees. While nothing's guaranteed in this life (other than the guarantee that DATCP won't do much to help you as an individual), it seems likely you'd win, given that deceptive practices are exactly what the feds, and 34 states -- but not Wisconsin -- have alleged Lifelock did.

In fact, beyond the section 100.18 remedy, you may even be able to sue for three times your losses (plus attorney's fees), as Wisconsin provides a triple-damages remedy for victims of certain kinds of identity theft or mishandling of personally-identifiable information (via section 895.446, Wis. Stats.)

Equally important: Why did you buy Lifelock in the first place? They wouldn't do anything you couldn't do, for free, by accessing your free credit reports annually at annualcreditreport.com.

Annualcreditreport.com is the government run website that lets you access a free credit report, once a year, from each of the major credit bureaus. All you have to do is go get one every four months, and you'll be constantly monitoring your credit for nothing. So go today and get Trans Union's report. Then, in July, get Equifax's, for free. Then, in November, get Experian's. Then, next March, start over with Trans Union's.

There you go: In one blog entry, I've given you two different remedies for identity theft, and a way to avoid having it happen in the first place, all for free.

If wasting time and energy is your thing, you're probably a teenager in my house.

Coming this summer, in Wisconsin, you'll need to have auto insurance. Pretty soon, if ObamaCare passes, you'll be required to have health insurance. And, of course, you want homeowners' or renter's insurance, and you probably need business insurance, too, so you'd better get on the ball and start calling different insurance companies and agents, giving them all your information, waiting to hear back from them, and then comparing their quotes and coverages and making a final decision on what policy to buy.

That'll take you a couple of hours, or days, to get the work done, if not months, so get cracking!

Or, do it the easy way, using one of the online services like Netquote.com, where all you have to do is enter some basic information and you get referrals and quotes instantly.

Say you want some Mississippi insurance. You go to Netquote.com, type in your zip code, answer some basic questions, and within a minute you've got names, addresses, and even click-through links to find the insurance you need at a good price.

So I'd say use one of those -- but don't let me dissuade you from making all those phone calls, if wasting time and energy is your thing.

What's my case worth? Debt Collection Edition

First, an aside -- I got a call from Mr. Michaud, of the Rsidue Michaud, but I miscopied down the number you left; would you give me a call again, Mr. Michaud? I'd like to talk with you.

Now, on to the bigger stuff. What's the best way to get a six-figure jury verdict in your favor on an FDCPA case? Don't have the other side show up. As Homer Simpson said: "The two sweetest words in the English language: De-fault."

A Dallas jury in the case of Midland Funding v. Crystal Snow was asked to determine damages on a counterclaim in which Ms. Snow claimed that Midland had caused her phone to ring repeatedly, tried to collect a debt which wasn't owed, and otherwise harassed her in violation of the FDCPA. It seems Midland didn't bother showing up at trial, and the jury awarded:

$250 for actual damages other than mental anguish.

$100,000 for mental anguish.

and

"8.0 million dollars" in punitive damages.

I'm trying to find more facts on this case -- but you can read what is apparently the jury's "charge" (special verdict) here.

Start dealing with your debt now.

There are a variety of things that you can do to deal with seemingly-unmanageable debt, ranging from bankruptcy to debt consolidation -- but before you can begin to address the debt problem, you've got to have good information about those options.

Not everybody got into debt the same way, and not everybody is going to get out of debt the same way. But if you're looking at a bunch of credit card debt, or car loans that seem to never get paid off, or small student loans or other revolving or long-term credit, you may want to consider a debt consolidation loan.

Debt consolidation loans require some careful thought before taking them out, and expert advice. You can contact someone like Debt Consolidation Connection to get the information you need, and you should shop around and make sure your fully informed of the options and plusses and minuses of any approach, including a debt consolidation loan.

On the plus side, you may be able to reduce both the number and amount of your payments: Instead of 5 or 7 or 10 high-interest payments to different creditors, you might make one lower-interest payment to one creditor. You also might get to deduct the interest on your debt consolidation loan from your taxes, under some circumstances. (Check with your accountant.) These loans can also bring your credit current and begin to improve your credit scores.

The downside can be that you might not be able to discharge those debts in a bankruptcy anymore -- and if the debt consolidation loan is secured by a lien on your house, you might be placing your home in jeopardy if you miss payments.

Debt consolidation loans are a tool in your financial arsenal and deserve careful consideration. If you're thinking of taking one out, or need to deal with your debt, look into them and make an informed choice.

Be Careful What You Wish For -- Because It Might Mean You Can't Get Your Attorney's Fees Paid.

Some lawyers seem to believe that the sky's the limit on settlement demands and what to ask for in trial. The higher the better, the thinking seems to be, on the notion that juries or defendants will award something less. Ask for $100,000, and hope they give $50,000 is a common way of thinking, the fear being that if you ask for $50,000, the jury or judge will reduce it from there, and you'll get only a portion of what you want.

That kind of thinking is driven, in part, by the way people negotiate. Many, many times in my career, I've begun negotiations or made settlement offers at the outset of a case which represented a fair value of the case. In each situation where I've done that, the other side has uniformly responded with something less than what we offered -- and I've had to go to great pains to explain that my initial offer wasn't artificially high, wasn't inflated to allow for negotiating room, but was, instead, how I valued the case. There might be some room to go a little lower, but there wasn't much.

People -- especially lawyers and claims adjusters -- had, and have, a hard time grasping that, the idea that my offer wasn't set way up here in order to allow me to come down to here, the range where I actually wanted to be. They expected that if I wanted, really wanted to get $10,000 for my client, that I'd start at, say $50,000, and then work downward. Whereas, what I tend to do is say "I want to get $10,000 for my client, so I'll offer $10,000." And when I do that, the other side gets confused, or angry, or in one case, argues that I'm acting in bad faith.

(That really happened: An adjuster told me I was being unreasonable and acting in bad faith because our initial offer was our final, lowest offer and I wouldn't advise my client to go lower.)

A relatively recent case may help change the trend of artificially inflating offers and demands (and artificially lowering counteroffers and demands.) In Shadley v. Lloyds of Londonb, 2009 WI App 65, the Court of Appeals did a little legislating from the bench, of sorts, and came up with a formula to determine who really won a case -- and how much they should get in fees.

The basic facts are that Shadley hired Stys to move her house, and then was unsatisfied with the job Stys did, so she sued him for damages. She made negligence and breach of contract claims. The contract provided that

In the event that any action is filed in relation to this agreement, the unsuccessful party in the action shall pay to the successful party, in addition to all the sums that either party may be called on to pay, of [sic] reasonable sum for the successful part[y's] attorney fees.

That's where things got interesting. Stys served an offer of settlement under section 807.01(1), offering to pay Shadley $25,000. Shadley wasn't interested and went to trial, where she asked for $100,000 in damages. (The record apparently suggested that she might have asked for as much as $150,000 at one point.)

The trial court awarded damages to Shadley, but not for everything she wanted. In particular, Shadley didn't get reimbursed for things like her daughter's tuition. (It wasn't clear how Shadley thought that might be an element of damages.) In total, Shadley was awarded $14,976 -- or about $10,000 less than she could have settled for.

The trial court then ruled that Shadley was the "successful" party, and awarded her more than $43,000 in fees. Stys, of course, appealed, and the Court of Appeals put the judicial brakes on that award.

The Court of Appeals first found the contract to be ambiguous -- and then never mentioned the oft-repeated rule that an ambiguous contract is generally ruled against the drafter; such a rule would have meant that Shadley's preferred construction (that she was successful and gets her fees) was the winner. Instead, the Court said that the intent of the parties was the controlling factor, and also said (correctly) that the question of the parties' intent is a question of fact.

The Court of Appeals then said that the trial court's findings of fact about the intent of the contract were unsupported by the evidence in the record:

The trial court, however, failed to find that the parties' intended to equate the terms “successful party” and “prevailing party,” and we find no evidence in the record to support such a finding. Therefore, we find the trial court's decision to be clear error, and we will independently attempt to decipher the parties' intent.

That is, the Court of Appeals -- not a fact-finding court -- opted not to remand to the circuit court to make a factual finding about intent that was supported by the record (or to supplement the record.) Instead, the Court of Appeals -- not a fact-finding court -- set out to find some facts.

Only the Court didn't do that, either: Instead, it just used case law to interpret the contract. It relied on an earlier case interpreting a similar provision in a contract, and found that earlier case's analysis "helpful" in determining what the parties intended to do here.

(That earlier case was Borchardt v. Wilk, a 1990 case in which a promissory note said that:

"If the Note Holder has required me to pay immediately in full as described above, the Note Holder will have the right to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by applicable **656 law. Those expenses include, for example, reasonable attorneys' fees."

That's a standard paragraph in many promissory notes, and not really similar, at all, to the Shadley-Stys note, which doesn't talk about enforcing anything. The Borchardt note didn't mention success or failure, and the Shadley note doesn't mention enforcing things. Borchardt's main question was whether the note holder was entitled to fees for defending against a counterclaim brought by the borrower when the note holder sued to enforce the note. The Borchardt defendant won on the counterclaim -- and the Court of Appeals construed the contract to mean that the parties intended (?) to reduce the lender's attorney's fees award proportionately.)

After analyzing Borchardt and deciding it was similar to Shadley's contract, the Court of Appeals then found, as a factual matter, that the parties could not have intended that Shadley get all her fees when she didn't get all her damages.

The Court of Appeals did not cite to anything in the record on which it based that factual finding, instead basing its belief -- in the Court of Appeals, a belief becomes the law -- of what was intended on what it termed a "more rational reading" of the contract's fees provision.

In short, then, the Court of Appeals ruled that the circuit court, which had watched the whole trial unfold, had no evidence on which to base its interpretation of the contract -- and then interpreted the contract itself without saying what evidence it saw in the record to support that interpretation.

The Court's interpretation was this: Shadley and Stys must have intended that a party would be awarded fees in proportion to the success they achieved -- with the success measured as the ratio between what they asked for and what they got:

"A more rational reading of the provision would grant Shadley that proportion of her attorney fees that equate to her success at trial. On remand, the trial court is directed to determine the total amount of damages Shadley sought to recover and calculate the percentage of that total on which she was successful, i.e., the amount Shadley actually recovered divided by the total amount of damages she sought to recover. Allowing Shadley to recover her attorney fees only in proportion to her success seems to us the better reasoned and rational interpretation of the parties' contract provision. The Stys in turn, should receive that percentage of their attorney fees on which they were successful. That is the portion of Shadley's claim on which Shadley was not successful. For instance, if the trial court were to determine that Shadley recovered only 20% of the total amount of damages she sought, she should receive 20% of her requested attorney fees and the Stys should receive 80% of theirs, for a total of 100%."

Of course, that's not 100% of the fees by any measure other than "weird appellate math." The total of fees to be awarded, actually, under that formula is about 50% -- 80% of one side's, and 20% of the other's.

(To see why that's true, assume that each side had $43,000 in fees, as Shadley's side did. The total of fees, then, would be $86,000. The Court of Appeals "100%" fee formula would result in Shadley getting $8,600, or 20% of her fees, and Stys getting $34,400 -- or 80% of his fees. The total fees awarded are $43,000, leaving the total fees unawarded, and borne by the respective parties, at $43,000.)

The Court then didn't address who won the appeal -- Shadley might have lost even more, or less, since both sides appealed. Shadley tried to keep her total fees awarded to her, but got only 80% of her fees. Does that mean she lost? Or should she get 20% of her fees on appeal awarded to her, as well?

The Court also didn't look at alternative measures of success, such as the fact that Shadley won on both claims of her complaint -- so in terms of liability, she was 100% successful.

I've always been uncomfortable with courts purporting to determine what the intent of the parties was, especially when it appears that the actual language of the contract wasn't discussed at all, as seems to be the case here. It's only after the fact that the courts step in and start trying to decide what the parties "meant" by a form provision in a contract used in dozens or hundreds of situations. The pretense that the courts are discovering intent is especially thin soup in cases like this, where not a single fact is mentioned that suggests the parties intended to reduce their attorney's fees by the ratio of "what they were awarded" versus "what they sought."

(In fact, the opposite could be argued: Would Shadley have demanded more than $100,000 if she knew that not getting that much would reduce her fees award by 80% or more? After all, if Shadley had demanded only $50,000, and gotten the same result, she would have been awarded, under the Court's formula, 28% of her fees -- and concomitantly reducing Stys' fees award.)

The unworkability of the Shadley formula notwithstanding, the Court's decision will go on and will be used in the future to determine what fees should be awarded when a party is entitled to fees -- making it necessary for lawyers to determine, up front, how much should be demanded, and how much should be offered. That initial demand letter set artificially high to allow for negotiation down the line could end up costing a substantial amount of fees -- and an initial counteroffer set artificially low to allow a party to work their way up could have the same effect.

As an added bonus, or detriment, depending on where you stand, the Shadley/Borchardt rule might also allow parties to start using mediation negotiations as evidence in support of reducing a fee award. Settlement offers are generally inadmissible to prove liability, (sec. 904.08, Wis. Stats.) but may be introduced for other purposes, including, under Shadley, now, reducing the fee award. Mediation negotiations are supposed to be inadmissible as well, with very limited exceptions, (sec. 904.085, Wis. Stats.) -- but settlement offers aren't supposed to be mentioned "on the trial," either, being only to be brought up after the fact. So who's to say that it wouldn't be a manifest injustice, in a post-judgment motion seeking fees, to disallow a communication in mediation?

Don't deal with your lender on your own.

Day in and day out I deal with people whose housing and finances are in a crisis. More often than not, the troubles are very bad... and more often than not they didn't start out that way.

Troubles, at the beginning, are often not intractable. When problems with your mortgage start, early on, they are often far easier to deal with than later on when the problem has grown and created its own problems.

Easy to deal with, that is, for a trained professional, like an attorney who practices in Home Loan Modification efforts. That type of person (like me, and like others) sees these problems all the time, knows the law, knows what solutions and programs are out there, and can address the problem quickly and competently.

But too many homeowners don't seek help at the first instance: They try to go it on their own, working with lenders who may be indifferent to them, trying to figure out the complex interrelationship of federal and state laws and contractual rights and programs available -- all the while everything else in their life is demanding their attention, too. That can result in greater problems, ranging from bad loan modifications to defaults to foreclosure.

Don't try to go it alone. Get information on Home Loan Modification from experiences professionals. Talk to an advisor and find a lawyer that works in this area, and let them do the job. Sure, a lawyer might cost you some money -- but isn't it worth spending a little to save your house?

And getting advice on who to talk to and where to start doesn't have to cost you even that much: You can click those links to get to the The Fair Home Loan Bureau, which was established to help American homeowners deal with loan modification and avoid fraud and abusive banking practices. Their advisors are available free to anyone in the country, and can be reached online or by calling 1-877-487-1282.

Why It's Important To Read Your Credit Card Statement Enclosures

I'm starting to think maybe the creator of Wondermark is a lawyer:


And, while I'm at it, I'll mention for that site/strip that the writer is having a contest in which you can submit examples of clear business communications, or horrible business communications -- but you've got to them in today to have a chance to win. Details here.