Judge Richard Niess, Branch 9 of the Dane County Circuit Court, is the judge I ran against last year. But, as evidenced by the hearings I attended this morning (October 26, 2011), Judge Niess not only gets it about mortgage foreclosures, but also has a colorful way of ruling -- and I'd quote him anyway because I liked the way he put these phrases, but it helps that he was ruling in my favor on the one case.
The first case was one in which BAC Home Loans Servicing had moved for default judgment, and the borrower had objected and filed an affidavit of excusable neglect as well as a proposed answer. In denying the default judgment and accepting the answer, Judge Niess noted that Bank of America, not BAC, had moved for judgment, but wasn't yet a party, and also noted that BAC had, apparently sometime after serving the borrower but before the answer was filed, contacted the borrower to attempt to work something out with her:
"That was a head-fake,"
said Judge Niess, and ruled that BAC's possibly-not-for-real modification offer justified the defendant in not having yet filed an answer.
Then it was on to my case, where the lender (an assignee of the original lender) had filed an affidavit with an uncertified assignment of mortgage, among other deficiencies. We responded by citing to Palisades v. Kalal, HSBC v. Griswold, and PHH v. Kolodziej, and asking that summary judgment be denied; we also filed a motion to dismiss the complaint, without prejudice, on equitable grounds, for filing a motion that was knowingly insufficient.
Judge Niess asked Aurora's attorney, at the outset, for a reply to our response, and before she could begin, he said (of my response to summary judgment) that it appears
"He's got you by the short hairs."
Aurora's lawyer got as far as admitting that the assignment wasn't certified and Judge Niess cut her off, saying that
"The triumvirate of cases from Judge Vergeront [that I cited]... are the most-cited cases in the Dane County Circuit Court... They don't publish these cases because they deem the conclusions are so obvious..."
And denied summary judgment. He denied the motion to dismiss, too, but warned opposing counsel that she ought to tell her fellow lawyers that "more and more of the court's time" is being taken up with insufficient motions and that these cases have been around for six months or longer and are dead on.
So it was win-win for me, and kudos to Judge Niess for making a quick and correct decision, as well as for pointing out to the mortgage lender that it better start actually reading the cases the Court of Appeals is issuing.