Who cares what Congress wanted? Let's just gut ALL the laws!

Is a person automatically harmed when someone else violates a federal law?

Put another way, do technical violations of the law, when allowed to be the subject of a civil suit, warrant an award of damages and attorneys' fees for successfully proving that the law was violated?

Yes, says a legion of attorneys and lawmakers who have enacted and used "private attorney general" type laws that allow for awards of statutory damages and attorney's fees and allow litigation for even technical violations.

No, says a Walworth County Circuit Court judge and the Wisconsin Court of Appeals.

Or, more precisely, they say No, not if the circuit court judge thinks your suit is a nuisance suit.

That's the ruling, more or less, in Braunschweig v. Hanson, a October 13, 2010 Wisconsin Court of Appeals' opinion that I expect will be stapled onto every single complaint, motion, brief, or letter filed by any debt collector in Wisconsin from here on out.

In Braunschweig, the plaintiffs were a flooring company who'd done work for the Hansons, and then hired a law firm to collect when the Hansons refused to pay. The law firm sent a "Notice of Intent To File Claim For Lien" to the Hansons, and when sued, the Hansons filed a third party complaint against MLF for violating the FDCPA by not including federally-required disclosures.

Both sides moved for summary judgment, and the Circuit Court ruled in favor of Hansons, finding that the Notice of Intent did not have information required by federal law.

Winner! Way to go, Hansons!

Except...

...the Hansons had conceded to the circuit court that they'd suffered no actual damages, leaving only statutory damages and attorney's fees for the circuit court to consider. The circuit court decided to award no statutory damages. As explained by the Court of Appeals:
In determining whether to award statutory damages the circuit court is to consider “the frequency and persistence of noncompliance by the debt collector, the nature of such noncompliance, and the extent to which the noncompliance was intentional.” 15 U.S.C. § 1692k(b)(1). The circuit court remarked that MLF’s conduct was not outrageous and that MLF had acted in good faith. It observed that no real damages had been incurred. On reconsideration it further explained that there had been just a technical violation of the disclosure requirements, that the violation would not have made any difference in the way collection was pursued, and that no real harm was done. The circuit court did not want to encourage motions to redress a mere technical violation when no actual damages exist.

The Court of Appeals went on to note that other courts have allowed awards of no damages for de minimis or technical violations, and upheld the circuit court's determination.

The lack of damages then meant that the circuit court did not award fees, either, so the Hansons won, but lost. They proved that a defendant had violated a federal law (the defendant law firm appealed that determination but the Court of Appeals did not rule on it, since the defendant had no judgment entered against them), but were awarded nothing for enforcing the FDCPA.

Typically, "private attorney general" actions require awards of fees because the damages suffered by technical violations are de minimis or non-existent -- making enforcement of those laws time-consuming and often undone if there weren't incentive for plaintiffs to bring actions and lawyers to represent them in doing so. And it's reasonable to assume that the law firm in this case will, in the future, include the required disclosures on their notices of intent, if only to avoid a repeat of this lawsuit. Since those disclosures are required by Congress, I'm not sure that the right result was reached in this case; going further down this path might allow defendants to ignore any provision of a federal or state law if ignoring that provision isn't going to cause actual harm to the recipients.

But actual harms can be few and far between with some of these cases. The FDCPA mandates a great deal of information and disclosures, much of which cannot cause actual harm if they're not included, and much of which are merely technical requirements. The requirement that a debtor be given 30 days to demand verification of a debt, for example, is a technical one rarely exercised by debtors. Suppose a debt collector put in the notice that a debtor had 20 days, instead of 30; would that be a technical violation not worthy of an award of statutory damages, even though a debt collector cut by 1/3 the time allowed for a debtor to demand verification?

Consider more substantive problems, too: Suppose a debt collector says that the debtor owes $20 more than he or she actually does, imposing a fee not allowed by law. The FDCPA prohibits doing things like that. If a debtor isn't going to pay the debt anyway -- or didn't owe the debt at all -- isn't that a "technical" violation that wouldn't have changed the outcome, under the circuit court's reasoning? If so, then the FDCPA's requirement that the debt collectors not try to charge fees not allowed by the contract or law, and not misstate the amount of the debt, have been eviscerated.

I get it that debt collectors don't like to be sued for violations of the FDCPA, period, especially when the violations are technical. But the FDCPA is not a hard law to comply with. I've represented debt collectors and creditors and we have a collector who works in our office. Given the low hurdle the FDCPA presents in terms of doing what it says to do, and given the fact that Congress appeared to want teeth in the enforcement mechanisms of the FDCPA even for technical violations, I think Braunschweig is wrongly decided, especially when you consider that federal courts like the Seventh Circuit Court of Appeals have found FDCPA violations for mistaken beliefs of default.

Luckily, it's not a mandate, either. Being unpublished, it's only persuasive, and Braunschweig really says nothing more than "it's okay for a circuit court judge not to award statutory damages." But even with that, it's going to be a damper on enforcing consumer rights and federal laws.

If you're going to have to travel back home, at least save some money doing it.

For Thanksgiving this year, I'm going... nowhere. I don't travel on holidays. Nor do I encourage others to travel on holidays.

But that's just me. I understand that other people might actually be social and want to, you know, dress up for the holidays and see their extended families and have big get-togethers, instead of just wearing sweat pants and watching football with the kids.

Whatever floats your holiday boat, I guess -- but if you're GOING to travel for Thanksgiving and Christmas and all the rest, at least check out the discount travel coupons you can get through BestOnlineCoupons.com.

BestOnlineCoupons.com is the first website I head to whenever I've got to shop for anything larger than one of those giant sodas you can get at convenience stores. Their site has discounts for just about anything you can imagine, and travel is one of those things you can imagine. They've got great Expedia deals, in fact, offering discounts and promo codes for Expedia hotels and air and more, so that you can go visit Mom or Dad (or even Uncle Albert, for you Wings fans) for less than you'd ordinarily pay -- leaving you more money to get them presents and enjoy the trip.

Or, maybe... and I just thought of this, so bear with me... you could take that money you saved and send it to the guy who helped you save it. (Me.) Just a thought. I'll be waiting at home. In my sweatpants.

Next up: Bank of America reads the entire Encyclopedia Britannica in one day -- WHILE JUGGLING!

It seems I'm not the only one skeptical about Bank of America's ability to actually review over 100,000 mortgages in about two weeks; an article in Slate this week echoes my concerns and includes other professional observations about whether or not Bank of America looked at anything in those weeks, and if so, what.

Writer Timothy Noah of Slate called BofA to ask what they'd reviewed; he was promised a call back but didn't get one. (Surprise?) He also cites to a case where Bank of America foreclosed on a person who didn't even have a mortgage as proof that BofA can mess up, and discusses the experience of an activist group that said it met with Bank of America to discuss ways to avoid foreclosure through modifications but claims that Bank execs "didn't even friggin' take notes."

It's like I said in my earlier post: individual lawyers and judges will still have to examine each and every case to make sure it's done right. Lawyers should be quick to ascertain the basis for the claims they're making on behalf of lenders; homeowners and their lawyers shouldn't take fill-in-the-blank affidavits at face value, and judges have to require that actual evidence be submitted.

And it doesn't hurt to explore other avenues of redress, too, since lenders who foreclose wrongly and lose might otherwise not pay a penalty, leaving innocent homeowners out attorney's fees and the stress of facing foreclosure.

Pop Quiz Time: Does The Constitution Protect You From Having Your Car Or House Seized?

Here's how my practice works sometimes: I come in to my office on a Sunday morning, bringing my four-year-old twins with me because (a) my wife needs a break and (b) I enjoy the thrill of trying to respond to emails while also making sure that the boys don't draw on the walls with permanent markers...again.

And while I'm doing all that, I decide to take a little break and maybe post something on this blog, so I go to look up recent jury awards and see if there's anything new breaking in the world of debt collection litigation.

I then come across Orchano v. Advanced Recovery, Inc., a 1997 case out of the 2nd Circuit, which meets the criteria I searched for ("Fair Debt" and "Jury Award.") And within minutes, I'm lost in the labyrinth of constitutional rights and questions being raised about whether there's a new tactic I can take to protect my clients -- or a new tactic I have to be aware of to protect my other clients.

The Orchano case by itself isn't all that important: the primary thing the Second Circuit had to opine on was whether a debtor who successfully sued under the FDCPA and section 1983 was entitled to his full attorney's fees of $36,200, or just the $6,000 awarded him by the district court.

The underlying facts -- briefly dealt with -- had to do with a wrongful repossession. Orchano's car had been repo'd, it seems, by a local company with two local police officers helping. Orchano then sued alleging violations of the FDCPA, Connecticut law, and section 1983. After settling with the cops, Orchano got a default against the repo company, and continued to trial against the Bank, where a jury awarded him $7,500 for his "constitutional" claims; the jury gave another $3,000 in compensatory damages for the state law debt-collection claims.

The district court then gave $6,000 in fees and costs to Orchano's two lawyers, and Orchano appealed. The Second Circuit vacated and remanded for a determination that actually found facts and made a reasonable decision based on those facts (judges not doing their job properly is one of the key reasons I'm running for the Bench), and that could have ended the case...

...except that I'm here on a Sunday morning, and one of the twins is hanging out in my office while the other is in the law clerks' office watching Up! and I've got a relatively clear head, and so I read the Orchano case and thought:

Wait a minute... section 1983? A civil rights violation for taking the car back? How can that be?

And then I had to do more digging, and more digging, and more digging yet, and I've been at it for a while now, and I came up with this answer:

Orchano could sue the Bank under 42 U.S.C. sec. 1983 because the bank had cops help the repo company.

Under section 1983, a person who "under color of" law deprives another person of Constitutional rights can be held liable. I've never brought a section 1983 suit -- although I defended one, once -- and I don't purport to be an expert on it (yet) but I do have a good feel for how Orchano was able to bring his action, and it seems to me that the inclusion of cops there is what subjected the Bank to that additional, Constitutional, liability.

Consider another foreclosure action where section 1983 came up -- Kavouras v. Fernandez-Powers, 928 F.2d 407 (unpublished, 7th Cir. 1991). In that case, Blanca Kavouras filed a federal action for foreclosure, alleging diversity. When the Court dismissed for lack of fully-pled diversity, Kavouras then amended to assert section 1983 violations, claiming that the foreclosure defendants were fraudulently transferring (or had transferred) the property and that they were doing so to keep the property from her, and that they were doing so because she was Hispanic.

Again, the Court dismissed the complaint, and Kavouras appealed. In an extremely brief opinion, the Seventh Circuit held that despite claiming a section 1983 violation,

None of the defendants in this case...are state actors or are alleged to have been acting under color of state law....The second cause of action asserted by Kavouras alleges that defendants conspired to deprive her of equal protection of the law based upon her race. Kavouras does not, however, identify any law or right which she has been denied in violation of equal protection. The only right arguably stated in her complaint is the right against deprivation of property without due process. That right is by definition a right only against state interference, and the complaint indicates no state action.

Emphasis added by me.

So a Bank's using a repossession company acting in concert with two police officers was sufficient as a nexus to qualify under section 1983, giving Orchano another remedy beyond merely an FDCPA action -- which might not have been available against the repo guys, and which almost certainly wasn't available against the lender, but Orchano, the case, raises a larger question, one I'm not ready to answer yet but I am ready to raise, and that question is this:

When, exactly, does a debt collection violation rise to the level of a constitutional violation?

As I said, I'm not fully ready to answer that (yet) but I can give some broad outlines. As shown by Orchano and Kavouras, the state (generally, and usually) has to be involved in some way -- and that way likely must be more than merely regulating the activity, and likely must be more than using a state procedure.

But not very much more, it seems: Filing an eviction action in state court wasn't "under color of state law," Fallis v. Dunbar, 386 F.Supp. 1117, aff. 532 F.2d 1061 (N.D. Ohio, 1974), but a State Personnel Board of Review attorney's issuance of a subpoena was "under color of state law" -- not necessarily just because the lawyer was working for the State Personnel Board but because the subpoena was issued pursuant to the "subpoena privilege."

The implications of Orchano for my clients (and yours) remain to be fully explored, and I'll set about doing that. But this may be a significant issue as the foreclosure mess continues and as lenders get more aggressive in recovering their debts, including replevin of property. After all, writs of assistance in Wisconsin are executed by a sheriff -- acting on behalf of a request from the Bank. Many repo companies contact the police for standby, and in at least one case I know of the officers advised the debtor to turn the vehicle over, possibly wrongly. In another recent case of mine, a lender who was unhappy about a debtor allegedly removing fixtures from the property contacted the police and filed a theft report. Lawyers involved in such cases have to be aware of the constitutional implications -- as I am, now, and you are, now.

Bank of America: "It turns out we just have some really fast readers employed here."

Bank of America suspended its foreclosures about two weeks ago, in part because it turned out that some employees were signing thousands of affidavits swearing they'd read tens of thousands of documents in an amazingly short time.

Two weeks later? Problem solved: B of A announced recently that it's ready to go ahead with at least 100,000 foreclosures in 23 states. By my count, that means that Bank of America reviewed roughly 6,250 foreclosure cases per day. (They probably skipped lunch breaks on at least 1 or 2 of those days, though, so let's be fair.) Taking people's homes is good for the economy, it seems -- if by "the economy" you mean "Bank of America shareholders:"

Shares of Charlotte, N.C.-based Bank of America had been flat earlier Monday but jumped on the news. They rose 36 cents, or 3 percent, to close at $12.34.

I've been asked by a lot of people in the past two weeks what the suspension of foreclosures meant for their case or their clients, and my answer was uniformly the same: nothing much. It's still up to trial lawyers -- and judges -- to make sure that lenders don't take away someone's house without the right to do so, and still up to lender's lawyers to fulfill their ethical obligations to make sure the evidence supporting their clients' claims exist.

Write poems about seals? Better register your name as a trademark, or anyone can use it.

If you Google me, right now, you'll find as the top-view first page results, some stuff related to my campaign for judge, and a few of my other blogs and links to the books I've written.

That's the first page. What if you go further in -- to the pages on Google that nobody goes to? I just did that now, too, and found that on page 10, there's a link to my book as a "free e book" and a mention of me on another blog, while the absolute last page has a link to a comment I left on Malcolm Gladwell's blog.

That's the first time I've ever done that, and, honestly, even you people who routinely google yourname, has anyone ever looked beyond the second page of results?

Anyone besides Beverly Stayart, that is?

Beverly Stayart is the self-described "sophisticated, well-educated, and highly intelligent professional woman” who protests seal treatments. She has an MBA from the University of Chicago, who in her spare time has published papers on the internet and as well as two poems about baby seals that are on a Danish website.

One day, Beverly googled herself -- although she did this via "Yahoo!," and who uses Yahoo or any other search engine, for that matter? -- and what she found was that she'd somehow gotten linked to pharmaceutical companies, porn sites, and other objectionable content.

When a letter to Yahoo! didn't get the links removed, Beverly sued and the case became Stayart v. Yahoo!, Inc., a case notable for more than just being the only legal case I can remember with an exclamation point in the case caption. In this instance, Beverly's case is also notable for the holding by the Seventh Circuit that says consumers don't have federally-protectable rights in their names -- at least not via trademark law.

Beverly sued under the Lanham Act, the federal trademark protection law. Yahoo! countered by claiming, correctly as it turns out, that the section of the Lanham act she filed under protects only those who have a commercial interest in their names -- holdings going back a pretty long way.

Beverly countered by saying her charitable activities did give her a commercial interest; her boycotts and scholarly posts and two poems, she said, were commercial enough that her name should not be linked to pharmaceutical or pornographic websites (for fear of confusing those people who might want a passionate seal poet to endorse their product, perhaps?).

The Seventh Circuit said those aren't enough:

standing to assert a § 43 claim is limited to a “purely commercial class of plaintiffs.” Berni v. Int. Gourmet Rest. of Am., 838 F.2d 642, 648 (2d Cir.1988) (quotation omitted). While Stayart's goals may be passionate and well-intentioned, they are not commercial.

The Lanham Act claims were dismissed, but that maybe didn't leave Beverly without a remedy entirely: she'd also plead invasion of privacy and other statutory remedies, and asked the federal courts to give her leave to replead and sue under diversity jurisdiction. That leave was denied, though, and the denial was upheld as having been a decent exercise of discretion on the part of the court.

Whether Beverly could go back to state court and sue -- or even just refile in federal court under diversity jurisdiction, since dismissals like this are not always "with prejudice" or on the merits-- isn't clear. What is clear is that this question may arise again in the future as other people discover that their names may be linked to things they don't want them linked to.

Imagine a couple of scenarios -- scenarios that may already be cropping up with the use of the "Like" Button on Facebook and similar items that make use of endorsements from your friends and family to get you to buy stuff. Suppose, instead of waiting for your friends to "Like" something, a website simply starts posting your name with links and saying you liked it. I could start garnering names from the Madison area phone book, for example, and listing them as "People Who Love This Blog," and then googling those names might lead you to my blog, so when you go look for your Aunt Myrna, you end up getting to this blog. Am I using your name for a commercial purpose? Sure -- but if you don't have a commercial interest in your name, then you won't be able to sue under the Lanham Act, and I can't right now think of a right you'd have in Wisconsin to sue. Defamation doesn't seem correct in that instance: saying you liked a legal blog doesn't seem to cause damages to you or harm your reputation (I hope?). It might be different if this were some unsavory site, but still...

... it's food for thought. And another thing to ponder: How commercial does your name have to be? Beverly had written two poems and a couple of internet posts. That wasn't sufficient to protect her name. Is my name commercially protected? I write several blogs, have spoken at seminars for lawyers, have published a couple of books, and am a practicing lawyer who (did I mention this?) is running for judge. It's likely I make more from these internet activities than Beverly did from hers -- so could I sue for infringement if people just started putting my name on things?

And if I can't, then where's the bottom rung of that letter? What about Maya Angelou? What about Stephen King? If some enterprising pornographer starts linking Stephen King's name to his sites, is that actionable? And if so, why is King's name more protectable than Beverly's? The Seventh Circuit doesn't say there's a cutoff in terms of revenues or dollars; the standard is whether your name is purely commercial, and is anyone's name "purely commercial?"

I don't know -- but I bet this question gets more common in the future.

Two more servicers now halting foreclosures:

Last Friday, two servicers of mortgage loans announced that they too are halting some foreclosures, for the same problems that other lenders have: insufficient documents, and insufficient proof of the right to foreclose -- problems ranging from no proof that payments were missed to no proof that the lender even has the note.

The two servicers are PNC, and Litton Loan Servicing.

And, in a new wrinkle to the foreclosure mess, title insurers are refusing to give policies of insurance to houses foreclosed on by some of the banks. From that same article:

Perhaps most worrisome was the news on Oct. 1 that title insurer Old Republic National - which provides protection to the homebuyer and mortgage provider in case any unpaid taxes, questionable ownership or other problems turn up - had ordered its agents to cease offering policies on foreclosed properties owned by GMAC or JPMorgan Chase. On Oct. 7, another title insurer, Stewart Title, issued an internal memo making it incredibly difficult - if not impossible - for an agent to write a policy for any foreclosure property connected to any of the now-tainted banks.

The article notes that 41% of all house sales this year were expected to be from foreclosed houses - -up from an average of 7%. So if you're buying a foreclosed house, y0u might not be able to get title insurance (which means you're not going to be buying it, either.)

More on what can be done about these problems will be coming in the future.

Someday, Obama's doing nothing might rank as the greatest accomplishment of the his presidency.

Amidst the sturm und drang of the foreclosure mess, now featuring three giant companies admitting falsely notarizing documents attesting to their right to foreclose, and recently involving a major lawsuit that I'll be addressing soon, comes a minor note that suddenly became a major note: Obama just pocket vetoed a bill that could have made it easier for lenders to get away with what they just admitted they'd been getting away with.

Now, granted, it's not as though state court judges have made it particularly hard for lenders to foreclose, with many judges letting almost any lending practice go unbothered while letting lenders steamroll ahead -- but Congress just tried to make it a whole lot easier. A little-known bill to force easier approval of electronic notarizations and require states to accept other states' notarizations had passed the House in April, but had been sitting untouched and likely to die in the Senate Judiciary Committee...

... until last week, when the Senate approved it without debate. Critics said the bill could shield lenders and servicers from claims of fraud, and noted that it was very odd that the bill had languished for so long and then been pushed through at the last second.

I agree. Very odd, unless you factor in lobbying and the desire for potentially-outgoing senators to have jobs waiting for them if they lose their re-election, and unless you factor in the fact that MERS -- Mortgage Electronic Registration Systems -- is located near DC and would likely benefit greatly from having approval of electronic notarizations.

More on that later, and I'll also begin, soon, detailing what, exactly, the problems might be able to do for besieged borrowers.

In the meantime, Obama's inaction on the bill means it dies without a chance to vote it into law, and that means that for now, homeowners don't have to worry that Congress sold them down the river. For now.

"WATER" we going to do to get attorneys and judges to understand basic rules of civil procedure?

Although no good pun goes unpunished-- get it?-- I couldn't resist starting the post with that title after I reviewed the July 21, 2010 Court of Appeals' decision in Byrd v. Landowski, a case involving misrepresentation claims in the sale of houses -- an area of litigation that appears to me to be growing pretty rapidly. (Unless maybe it only seems that way because the Novell case never ends.)

In Byrd, The Byrds bought a house from the Landowskis, doing so in 2005. On the RECR, the Landowskis acknowledged some prior water seepage in their basement but blamed that on record rainfalls and incorrectly-installed sump pumps. They then said that they'd had no problems with water since 2004.

After the Byrds moved in, they noticed that "mass quantities of water" were constantly being pumped from their house, and they also noted that when the power went out, that water got into their basement. By early summer 2008, the problem had gotten so bad that they had water in their house even while the sump pumps were chugging away. So they sued under section 100.18 (and sold the house while the action was pending... presumably disclosing the problems they'd noted.) They found out that the house was known, around the neighborhood, as "The Water House."

The Landowskis moved for summary judgment on a variety of grounds, all of which amounted to "we only had water in the basement on one occasion," with a smattering of "you didn't plead constantly-running sump pumps as a cause of action."

On that latter note, before I get into what the circuit court did with it and what the Court of Appeals did with it, I'd like to just say this:

WHERE IN THE RULES OF CIVIL PROCEDURE DOES IT REQUIRE THAT A CAUSE OF ACTION BE PLEADED?

It doesn't. I'm sorry for shouting-via-all-caps, but it doesn't. The Rules of Civil Procedure require that a complaint contain "[a] short and plain statement of the claim, identifying the transaction or occurrence or series of transactions or occurrences out of which the claim arises and showing that the pleader is entitled to relief," and a "demand for judgment for the relief the pleader seeks." Sec. 802.02(1)(a) and (b), Wis. Stats.

That's all. That's all that has to be in there.

This issue has actually been considered several times recently by higher courts -- the U.S. Supreme Court on several occasions in the past few years has looked at what must be plead in federal cases, and the Seventh Circuit, taking some guidance from those decision, quoted, Swanson v. Citibank N.A., 614 F.3d 400 (7th Cir. 2010), a federal practice treatise that noted:

all that is necessary is that the claim for relief be stated with brevity, conciseness, and clarity.... [T]his portion of Rule 8 indicates that a basic objective of the rules is to avoid civil cases turning on technicalities and to require that the pleading discharge the function of giving the opposing party fair notice of the nature and basis or grounds of the pleader's claim and a general indication of the type of litigation that is involved....

So, when faced with a motion that says You didn't plead sump pumps, the circuit court should, and the opponent must, ask the movant What rule requires me to plead sump pumps? "Constantly running sump pumps" is not a claim for relief. The claim for relief is lying about the condition of the house. The constantly running sump pumps are evidentiary proof the plaintiffs hope to present to show that the house's condition was misrepresented.

And you don't plead evidence.

Anyway, where was I? Oh, yeah. The circuit court granted summary judgment to the Landowskis... but the Court of Appeals reversed.

The Court first properly gave a "liberal reading" of the complaint under the notice pleading rules I discussed in my foregoing rant; that suggests that the circuit court did not, which failure to observe ordinary and longstanding rules of civil procedure cost the Byrds a significant amount of extra money in attorney's fees -- had the circuit court followed those rules of civil procedure, no appeal would have been necessary.

In following those longstanding rules of procedure, the Court of Appeals noted that "It was not necessary for the Byrds to specifically allege that the constant running of the sump pumps was the 'water problem' that caused damages."

The Court of Appeals then also correctly noted that there was no requirement for the Byrds to amend their complaint after selling the home: "Diminishment of value is not a cause of action, it is a remedy."

The Court then looked at the dispute of facts that existed. It noted that the Landowskis filed affidavits swearing they did not know of the problems. That contrasted with the Byrds' affidavits, which said the exact opposite. And the Byrds also had an expert affidavit which gave an inference that the water problems that existed in 2005 and beyond would have existed in 2004 and prior, which could let a jury infer that the Landowskis were lying.

That alone should have ended the matter: one side says yes, the other side says no, and you need a trial. But the Landowskis also claimed that there were no damages, that the problem was only "cosmetic." The Byrds' affidavits apparently testified about the problems they had had selling the home, which let the fact-finder infer that the water and sump pumps impaired the value of the home.

That impairment was seconded by an expert witness affidavit that the circuit court wrongly struck: The Byrds provided an affidavit of diminished value, which the Landowskis attacked as inadmissible because the appraiser did not use a "desired comparable sales approach." The Court of Appeals held -- again, correctly and in accordance with law that is so well-settled it should be considered black-letter law -- that the methods used went to credibility, not admissibility.

Decision reversed and case sent back for a trial, which is what should have happened in the first place. It wasn't an appropriate case for the defendants to file summary judgment motions, and it wasn't an appropriate case for the Court to grant summary judgment.

Too many cases these days are decided too expeditiously. Summary judgment used to be, and is still supposed to be, rare. But more and more cases are being decided on summary judgment-- wrongly, in my opinion, in many instances -- and I'm glad to see the Court of Appeals taking this matter in hand and setting things straight.

It's not over yet, though: A petition for review by the Supreme Court of Wisconsin has been filed.
_______________________________________________________________

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Briane Pagel
for
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