Bank of America willing to pay investors, not willing to let you stay in your home.

Bank of America, which back in March was the subject of leaks alleging that (among other things) it inflated the price of force-placed insurance, is reported to have completed a major settlement related to the Countrywide loans it bought up.

But don't get excited, unless you're a super-rich investor who didn't mind being duped by Goldman Sachs because someone, somewhere, was going to bail you out: in the grand (but so new the paint's still wet) tradition of American commerce now, only the rich will get anything:

Bank of America Corp settled nearly all of the claims related to the legacy Countrywide-issued first-lien residential mortgage-backed securitization (RMBS) repurchase exposure for $8.5 billion in cash.

The largest U.S. bank by assets said it intends to record an additional $5.5 billion provision to its representations and warranties liability for both Government-Sponsored Enterprises (GSE) and non-GSE exposures in the second quarter of 2011.

(Source.)

Which means two things for homeowners: (1) when B of A employees tell you the "investor" won't approve a modification, they mean "the boss." (2) They're still doing to try to take your house away.

How NOT To Do Things: An Adventure In Consumer Act Litigation, in Three Parts. (Part Three) (Consumer Matters)

Finally, time to finish up this series of posts. Part one is here, part two is here.

When we last left off, a dispute over $401 had led to two trials, an appeal, a $5,000+ award of fees against the debtor and his lawyer... and the debtor and his lawyer's request that the trial court sanction the defendants, who'd been winning all along.

By the time that the debtor, Olsen, filed a motion for sanctions against the plaintiff, the case had already been lost three times, which is no doubt why Olsen had to file a motion to reopen.

The grounds for the motion were fraud, under section 806.07(1)(c), Stats. It is difficult to tell the exact grounds for the claim of fraud; the appellate opinion (the second in the case) suggests that the claim of fraud related to the conclusions of law in support of the finding that the case was frivolous -- that the defendants had violated the "sanctity" of the court in their proposed findings.

In any event, the motion, while filed within the 1-year-period, was found to be untimely anyway, because the court found that Olsen and Katerinos had waited until the first judge had rotated out of the case and then filed their motion; so the motion to reopen on fraud grounds was denied (and found to be nonmeritorious.)

That, along with a bunch of other claims, was appealed, too, and the Court of Appeals used just 11 paragraphs rejecting the appeal before going on to address other issues in the interest of "finality."

The "finality" ruling involved the Court of Appeals discussing the fraud claims in more detail, while still not saying what, exactly, they were. The fraud claims were summarized this way:

The plaintiffs further allege that the defendants are perpetuating a fraud upon the court by not conceding the plaintiffs' interpretation of the case. Conceding the Olsens' interpretation of the law is by no means an obligation for which the defendants must engage simply upon the Olsens' request, especially after the court has already found in favor of the defendants.

The Olsens also boldly assert that the judgment entered against them was based upon the defendants' fraudulent activities. This court agrees with the trial court's conclusions made on the record that there is nothing here to suggest that this judgment resulted from fraud perpetrated on the Court, by any of the lawyers, by any of the defendants, by any representativesof the defendants, et cetera.

I like the et cetera. I liked that ruling, too, because a lot -- a lot --of lawyers believe that if you disagree with them about the law, you're frivolous. Because, you know, they're smart and all. This ought to put that to rest. Or maybe it'll help to see that the Court summarized the claims this way:

Some of this stuff that is cited in support of the proposition that the judgment resulted from fraud is simply silly.

Having found some of the arguments "silly" (et cetera!) the Court took up the three motions for sanctions, which now included a request for "punitive monetary penalties." The Court declined to award the Olsens any relief on their motion:

It is clear from the Olsens' briefs that they have very strong feelings in this regard. This court does caution all parties that the integrity of the justice system is dependent upon all participants being forthright with a dedicated adherence to the rules. Sometimes, however, emotions can cloud objectivity. This court has reviewed the materials submitted by the Olsens in support of their motion and cannot conclude that the relief they request is warranted. The Olsens' motion for sanctions is denied.

The Court then determined that this appeal, too, was frivolous, and awarded $1100 or so in costs to one side, while remanding to the trial court for a determination of fees to the other defendant.

It's interesting to note that the award of fees and costs so far was relatively nominal -- about $7,000, by my count; it's rare that I've seen lawyers keep the costs down like that when they believe the other side is going to pay, so good for those lawyers.

It didn't end there, though. There were no more appeals, but there was one thing left to do: Attorney Katerinos faced an ethics complaint as a result of all this.

The ethics opinion reviewed the underlying case's facts and noted that some of the arguments made were intended to keep his client on the hook for costs, while exonerating himself. Katerinos argued that since he was not a named party and not served, he couldn't be held liable for costs.

He also, the ethics decision noted, filed a petition for review of the first appeal, so there was more litigation than I noted in the foregoing; a lot more, in fact, as Katerinos also filed a second motion to reopen.

And a third appeal:

In January 2006 Judge Foley issued a written order awarding Dr. H. a total of $6,139.10 in fees and costs and awarded Hawthorne a total of $2,222.93. Judge Foley apportioned responsibility for these costs on a 90/10 basis between Attorney Katerinos and M.O. and R.O., respectively. Orders for judgment on these amounts were filed on February 23 and 24, 2006, and judgments entered on February 28, 2006. On April 7, 2006, Attorney Katerinos appealed the orders for judgment, which included by reference the November 21, 2005, orders denying his motion for sanctions and imposing costs in favor of the other attorneys (“Third Appeal”).

Katerinos then paid all the costs in full, covering his clients' costs, too, by settlement, and dismissed the third appeal. But that couldn't avoid an Office Of Lawyer Regulation complaint, which listed five allegations:

• Count One. By over-litigating this small claims case for two and one-half years to his clients' financial detriment, Attorney Katerinos violated SCR 20:1.1.3

• Count Two. By arguing during the First Appeal a position that was adverse and detrimental to his clients' interests and was potentially favorable to Attorney Katerinos' own interest, Attorney Katerinos violated former SCR 20:1.7(b).4

• Count Three. By filing a motion for sanctions in September 2005 that generally repeated grounds Attorney Katerinos had previously (and unsuccessfully) raised in a motion to reopen that the circuit court had already denied, Attorney Katerinos violated SCRs 20:3.1(a)(1) and (3). 5

• Count Four. By making a baseless statement indicating the defendants had misused their “relationship” between the presiding judge and one of the defense attorneys to victimize the plaintiffs and plaintiffs' counsel when, in fact, no relationship between the judge and the defense attorney existed, Attorney Katerinos violated SCR 20:8.2(a).6

• Count Five. By making a baseless statement in a motion for sanctions to the trial court filed on or about June 30, 2005, that the defense attorneys had made “threats of violence” against him, Attorney Katerinos violated former SCR 20:3.3(a)(1).7

(The threats of violence were alleged to be shaking a fist and mumbling about collection. The defendants' lawyers denied this.)

The OLR sought a public reprimand and costs, and true to form, Katerinos fought this to an evidentiary hearing. Among the facts that came out at the OLR hearing were this:

Attorney Katerinos continued to pursue the small claims litigation-over a bill of less than $500-despite clear warnings from the trial court and the court of appeals that his arguments were “silly” and that further discovery would be “frivolous on its face.” Indeed, at one point the circuit court advised Attorney Katerinos that if he pursued discovery on his third motion for sanctions the court would “anticipate putting you [Attorney Katerinos] in jail for it.”

That's something I haven't seen in discovery motions before. The referee found that OLR had proven every allegation, and the Supreme Court then took up the matter.

Katerinos did not appeal the findings -- but still fought them:

Although Attorney Katerinos declined to appeal the referee's report he nonetheless sent a 17-page letter to each justice. He challenges many aspects of the referee's recommendation which he describes as “rife with numerous errors, omissions, and misrepresentations.” His assertion that “[t]he lack of respect and regard for Wis. Stat. § 427.105 is ‘shockingly not right’ ...,” registers his disagreement with credibility determinations made by the referee. Attorney Katerinos further maintained that “OLR repeatedly interfered with the underlying small claims case while the action was still pending in the court system."

He states, inter alia:

While acting as a shadow party, OLR repeatedly abused the power and resources of the State of Wisconsin to derail the pending case and obtain the penalizing outcome it desired to punish the Respondent.

He then provides the court with an extremely lengthy list that he emphasizes is “not intended to be comprehensive” of the errors and omissions he perceives in the referee's report.

The Court did not take up that issue:

Attorney Katerinos explicitly declined to appeal the referee's report and recommendations. Therefore, we need not, and will not, address the many and varied complaints set forth at length in his letter to this court.

But it did point out one thing to Attorney Katerinos:

We will note, however, that many of Attorney Katerinos' objections and claims of purported error or omission are grounded in his own belief in the validity of his legal argument, notwithstanding the fact that several circuit and appellate courts have advised him that his arguments lack merit. Indeed, the letter to this court reflects a disturbing lack of awareness or respect for appropriate legal practice and procedure.

And concluded by imposing a public reprimand, and reiterating what OLR said in support of its petition:

As the OLR stated in written submissions, “[w]ere every such lawsuit to be handled in a similar fashion, our court system would come to a grinding halt.”

That's a good place to leave off.

Geek Alerts makes me a better person, but a worse worker.

It was hard enough to get any work done at my office BEFORE I found out about the Geeky Gadget Website Geek Alerts has put together; but ever SINCE I found them, my productivity has dropped to negative numbers.

That's right: I'm actually making MORE work for people around me while not doing any myself.

But I'm still doing my part to help the economy, because Geek Alerts has stuff that's too cool to not buy. Stuff like the "Inkless Metal Beta Pen," which is what it sounds like, only a whole lot better.

The "Inkless Metal Beta Pen" is a pen that NEVER RUNS OUT OF INK, because it doesn't USE any ink.

Instead of ink, the pen uses anodized trace amounts of the very stuff it's made of to write: the pen itself IS the writing material, but it still LOOKS like ink when you write.

So it can't run out of ink, can't smear, can't break in your pocket, and it CAN write upside down. It's like the astronaut pen, only you don't need to be an astronaut to use it.

See why I'm hooked on the site? And I can afford the stuff, too, because Geek Alerts offers all kinds of discounts and promotion codes and other money-savers. Like right now, just in time for summer, they've got Expedia coupons and other travel things, like Orbitz promotion codes, so that you can get your geek stuff and take it with you on vacation, and the whole thing is affordable!

Mr. Irrelevant Becomes Relevant For A Brief Period Of Time.

Lots of kids dream of a career in sports, or at least a sports-related field -- being an athlete, or a sportscaster or sportswriter, or maybe even a sports agent. Spend your day hanging around the quarterback, get to go to the Super Bowl and the college bowls, generally have most of your life resemble a fantasy football league only you get paid for it.

Who'd have imagined that consumer lawyers might get that same life? This story opened my eyes to the expanded boundaries of consumer protection litigation:

Rams linebacker David Vobora, following a record $5.4 million award from a federal judge for unknowingly using a tainted supplement, is seeking to have his four-game suspension for violating the league's drug policy expunged from his record, according to his agent, Marc Lillibridge.

Lillibridge and Vobora testified in the case, and Lillibridge was a part of the legal team that came up with the $5.4 million damages figure. Vobora sued Anti-Steroid Program, LLC, after being suspended for four games in 2009 for using a product from the company that was endorsed by players like Ray Lewis and was not on the league's list of banned substances, but turned out to be contaminated.

....

His lawsuit accused the company of intentionally misleading him and hurting his image in addition to lost income. The judge's order includes $2 million for damaging Vobora's reputation and another $3 million in lost "future income."

Vobora also lost $90,588 in game checks, plus the court ruled he lost $170,000 in performance bonuses and $100,000 in marketing endorsements.

(Source.) Of course, he did only play for the Rams -- the team that couldn't quite take the NFC West crown from the 7-9 Seattle Seahawks last year -- but still, Vobora had damages.

According to the Complaint, Vobora sued for negligence, a couple of varieties of misrepresentation and breach of warranty, and violation of Missouri statutes section 407.020, which the complaint says prohibits unfair or deceptive advertising, the damages for which were said to be damages for "intrusion" into his body, lost income and opportunities, and the like.

The victory isn't as exciting as it seems, though: Court records show that Vobora won by default: The Court allowed the defendant's counsel to withdraw, and when the defendant (a corporation) didn't get a new lawyer, the Court entered judgment by default because corporations in Missouri (like in Wisconsin) cannot represent themselves in court. (I used the same tactic to get a judgment in a case of mine.)

The Court's opinion on damages -- heard after evidence was taken -- is notable as possibly the only written court decision to determine the value of being "Mr. Irrelevant," the last person taken in the NFL Draft:

This Court finds and concludes that Plaintiff has suffered both special and general damages. At the time the facts in the Complaint occurred, Plaintiff was a starting linebacker in the NFL for the St. Louis Rams. Mr. Vobora was drafted by the St. Louis Rams in 2008 as the final draft selection, a draft selection commonly referred to in the NFL as “Mr. Irrelevant” due to the unique ‘honor’ of being the final pick of the draft. Plaintiff Vobora was the first “Mr. Irrelevant” to start an NFL game as a rookie since Marty Moore started for the New England Patriots in 1994.

The Court also found Vobora's future income lost to be $3,040,000 based on an affidavit from a player's agent, and awarded attorney's fees to be determined. I tried to find financial information on the defendant but haven't been able to locate it.

It seems, though, that the more important point of Vobora's victory was to force the NFL to rescind the suspension it imposed on him, in order to get around that loss of income. That seems unlikely to happen.

FTC Rules allow consumer choice at funerals.

Nothing is certain but death and taxes, right? And also, it seems, that the government will protect your consumer rights even after you die.

The Federal Trade Commission (FTC) has a "Funeral Rule" that not many people know about. The rule requires that funeral directors give you itemized prices in person, a list of prices and descriptions before showing you certain things, and also certifies your right to buy only the goods and services you want, so if you don't want a "package" you don't have to get one.

In particular, the FTC requires funeral directors to handle caskets you buy elsewhere, which is where Same Day Caskets, a Caskets Los Angeles company, can help you with those final arrangements. Nobody wants to SKIMP on a funeral, but nobody wants to pay overpriced surcharges. If you get a casket for a reasonable price, you can use the money you'd have spent on that to make even better arrangements -- more flowers, a better dinner, what have you.

Same Day Caskets offers you excellent caskets with superior craftsmanship, and in a variety of options: hardwood, metal, semi-precious. They have urns for cremations remains, and same-day delivery service in some locations (buying in-state can save on shipping fees, you know) so you can order the exact casket you want, and have additional money left over for the exact service you want. You can even order online (or talk with a sales rep, if you'd like.)

Funerals are hard enough; why get overcharged? The FTC guarantees you the right to pay only what's fair, and Same Day Caskets gives you the option of exercising that right, allowing you to devote your time and money and energy to remembering your loved on the way they'd like to be remembered.

Things JUDGES are not a fan of... (Interesting Judicial Comments)

Judge Susan Kelley, in ruling that "negative equity" in a car purchase doesn't always result in a secured claim in a chapter 13 bankruptcy, noted that other judges had come to other opinions, and included this footnote:

In his otherwise well-reasoned opinion, In re Look, Judge Haines quoted Tim Buckley's Starsailor album. 383 B.R. 210, 216 n. 11 (Bankr.D.Me.2008), aff'd, Bank of Am. v. Look, 2008 WL 2789477, 2008 U.S. Dist. LEXIS 54695 (D.Me. July 17, 2008). In search of inspiration and curious about this artist and the song, I found a short clip and listened. I do not recommend this to others. The corresponding online review called the album "his most extreme artistic statement, a cacophonous fusion of progressive jazz and avant-garde idioms with few comfortable moments. Buckley stretches the limits of his phenomenal vocal range to its limits, shrieking and moaning like a soul truly possessed." I was immediately required to listen to the entire "Bridge over Troubled Water" album to recover.

Here's Tim Buckley, Starsailor:



And here's my favorite track off Bridge Over Troubled Water, "The Only Living Boy In New York."



But I was tempted to put up Baby Driver:



The real point is, if you appear in front of Judge Kelley, try to quote some Simon & Garfunkel.

Things I am not a fan of... (Interesting Judicial Comments)

I'll get back to Part 3 of my series of posts on How NOT To Do Things, but in the meantime, as I actually work, here's a snippet from another decision proving how right I always am.

Remember how in the middle of a post the other day I digressed and said:

I am not a fan of motions for reconsideration. ...of the many motions I think lawyers waste their time filing, this one might be the top of the list.

In a decision on a motion for reconsideration in the case of Burney v. Thorn Americas, Inc., the Court, en route to granting one portion of the motion (because the Court had misunderstood the law) said this:

Motions to reconsider serve a limited purpose; generally, the appellate court fixes the trial court's errors. A trial court should grant a motion to reconsider only if there is newly discovered evidence or a manifest error of law. Caisse Nationale De Credit Agricole v. CBI Indus. Inc., 90 F.3d 1264, 1269 (7th Cir.1996). Evidence is newly discovered if the party did not know about the evidence and could not have known about it even if it had exercised due diligence. Id. at 1270. Parties who forgot to present evidence or who belatedly realize that evidence is important have failed in their responsibility, and a motion to reconsider provides no relief. Parties who intentionally withhold evidence are sandbagging and must live with the original decision. Id.

And while the Court granted that one portion, it said this about the rest of the motions:

In the motion for reconsideration, Rent-a-Center makes multiple arguments with multiple subparts. Given the extraordinary standards for reconsideration, most of these arguments are nothing more than static, obfuscating the one legitimate issue Rent-a-Center has raised.

"Static, obfuscating the one legitimate issue" is not generally how a lawyer would like a court to refer to his arguments.

That's not the Interesting Judicial Comment, though. This is:

In other words, manifest legal error is the narrow path between the Skylla of arguments already raised and the Kharybdis of arguments that could have been made. See Homer, The Odyssey, book 12, 11. 75-140 (Robert Fitzgerald trans. 1961).

I've never seen a cite to Homer before.

Just who are these mortgage "investors," anyway?

That's a question I'm sometimes asked by my clients who follow the news about foreclosures and so know that "investors" are frequently the people who are blamed for denying modification requests and who are cited as the "plaintiff" represented by servicers.

But... SURPRISE! They may not be investors at all:

New York Attorney General Eric Schneiderman has targeted Bank of America, the biggest U.S. bank by assets, in a new probe that questions the validity of potentially thousands of mortgage securities and their associated foreclosures....

...

Court testimony and independent studies have raised questions over whether banks and other financial firms passed along the required documents to trusts, the independent entities that oversee securities for investors. In some cases where trusts moved to seize borrowers' homes, judges have determined the trusts lacked legal standing due to faulty documentation.

...If the legal steps that guide securitization -- like taking mortgage documents from one party to another, a critical step under New York law -- were not undertaken, then the investors who bought the bundled loans could force the companies to buy them back, compelling them to eat enormous losses.

New York state investigators could also find that those securities aren't valid financial instruments at all and take action under state law.

(source.) This doesn't come as a surprise to anyone who's actually litigated a foreclosure case; lenders' and servicers' lawyers are upfront about the fact that they can't produce the documentation and/or don't have any contact with the "trustee" who is supposed to be their client, the plaintiff, and the company supervising the investments.

What does come as a surprise is that there are still judges out there who might let foreclosures go through without proper proof, and that there are still some people who are facing foreclosure but who won't go see a qualified lawyer.

At least none of the documents was signed "Paul Revere." (Mortgage Issues.)

Here's something you won't see in the Palin Email trove released recently: Sarah Palin might be acquainted with Linda Green.

Linda Green, you'll remember, is the nom de fraud used most frequently by "DOCX," the outfit that existed solely to forge documents to support foreclosures around the country; Linda was a real person whose name was signed by people who were not Linda, as it was easy to sign and short.

HuffPo reports:

Sarah Palin’s growing list of titles –- author, documentary subject, roving bus tour host –- just got bigger. She may now be able to add "mortgage fraud victim" to her resume. The conservative celebrity invested in a company that paid $1.7 million for an Arizona home with a title tainted by the so-called "robo-signer" scandal... But records on the property compiled by [a] fraud examiner shows that at least two fraudulent signatures were involved in re-financing and foreclosure transactions on the property in the years before Palin’s company purchased it, possibly raising questions about the legality of the sale. ... documents showing two fraudulent signatures involved in a refinancing and eventual foreclosure on the property. One of the signatures was "Linda Green," the robo-signing moniker highlighted in an April "60 Minutes" piece.

Turns out "Linda Green" has a friend:

...in 2008... a "Deborah Brignac" made signatures on foreclosure-related documents on the property that should not have authorized the transfer of the property to JP Morgan Chase. According to the documents cited, Brignac was working as a vice president at two different institutions: JP Morgan Chase Bank and Mortgage Electronic Registration Systems Inc., an electronic mortgage tracking service. Brignac is listed online as vice president of California Reconveyance Company, which was a subsidiary of Washington Mutual and is now a subsidiary of JP Morgan Chase.

So maybe now, when I ask to depose everyone in the chain of title and see their pre-suit signatures on a driver's license, I won't get told I'm doing something frivolous?

Danger, Will Robinson!

Excuse me if I'm a little distracted right now; it's hard to think about the law when I've just gotten updated on the new gadgets and cool geek stuff available for me to buy over at GeekAlerts.com.

Cool new stuff like a plush Cthulhu stuffed animal -- perfect for that kid who's obsessed with Lovecraft but still wants a little buddy to snuggle with -- or a float raft for pools and lakes that has hand-pedaled paddles to get you around.

That's the kind of things GeekAlert tells me about in their constant updates. RageGage, a gadget to smash down on when the road, or work, or whatever, gets too upsetting? They've got it, and now I want it.

That's why it's so hard to concentrate on work; I've got this site bookmarked at home and the office and I can't help checking it out to find out what's the latest cool thing I'm going to want to buy -- like the "Tronc Business Card Stand," which turns a business card display into art.

And I might even be able to afford all that stuff, too -- given that the GeekAlert people don't just tell me what's out there, but also offer discounts like an Apple Store promo code (helpful for getting an iPad to go with the waterproof iPad cover they offer) or a ThinkGeek coupon to pick up cool stuff from that site.

See where it gets hard to draft a complaint or answer discovery? You try focusing on mortgage documents when all you can think about is "I can really buy a 6 1/2 foot tall copy of the "Lost In Space" Robot?"

Yep-- they have THAT, too.

How NOT To Do Things: An Adventure In Consumer Act Litigation, in Three Parts. (Part TWO) (Consumer Matters)

Part one of this post is here.

After a lengthy battle in two courts -- small claims and the circuit court -- Mark Olsen, his wife, and his lawyer had lost: they owed their dentist $491, and they owed their dentist's lawyers $5,437.50, bills that had come in because Mark Olsen said "family doesn't put family in collection" and their lawyer, Katerinos, didn't know when to quit.

What do you do when you've lost two times and owe nearly six thousand bucks? You appeal, if you're Olsen and Katerinos. Maybe they were thinking "That's only two strikes, we've still got one swing left." Or maybe Katerinos really believed in the case and didn't yet know that Olsen was only doing this because he was mad at his sister-in-law.

Whatever the motivation, an appeal was filed, and the Court of Appeals noted that Olsen's entire claim rested on a finding that the dentist had agreed to accept periodic payments -- a finding that had not (and could not) be made in this case:

No facts of the type that would permit a jury to conclude that either defendant violated the Wisconsin Consumer Act are in dispute.

Plaintiffs' claim, that there was an agreement by Hoffmann to accept periodic payments, is unsupported by any evidence.

It is undisputed that Hoffmann's initial offer to permit Olsen to suggest a payment method was ignored by Olsen for months.

It is undisputed that Olsen made not a single payment while the proposal was open, and that he made no payment at all until contacted by Hawthorne.

Even then the partial payment of $100 was initially refused by Hoffmann.

If there was ever an “offer” to accept periodic payments, it was withdrawn by referral to collection, and never thereafter renewed by Hoffmann.

Indeed, the claimed existence of any “agreement” to periodic payments is further refuted by correspondence to Olsen from both Hoffmann's office and Hawthorne Collection Agency.

Summary judgment dismissing the complaint is amply supported by the record.

That was all one paragraph in the opinion; I broke it apart to make it easier to read and for poetic license.

Olsen and his lawyer also appealed the frivolousness ruling that had resulted in the $5400 fees award, and the Court of Appeals dealt summarily with that one, too:

The finding of a frivolous claim is also amply supported by the record before the trial court. Mark Olsen admitted that the only reason he brought the suit is because his sister-in-law works for Hoffmann and “family doesn't put family in collection.” The Olsens and their attorney continued the litigation, not just at the trial level but also in this appeal, knowing that there was no arguable basis in fact for a claimed violation of the Wisconsin Consumer Act. What is apparent from the record in this case is that the Olsens, with the assistance of their attorney, brought a frivolous lawsuit for the purpose of harassment of the defendants. That is what the trial court found. The court's finding is amply supported by the record. This is precisely the type of conduct that Wis. Stat. § 802.05 was intended to prohibit.

That created bigger problems for Olsen and Katerinos, because the rule is that if the court finds a claim frivolous, then the appeal is per se frivolous... unless you win. The Court held that the dentist was entitled to fees and costs on appeal, too, and remanded for the trial court to determine how much to award for that.

That's it, right? Three strikes and you're out, if that was the thinking about the appeal. Three different courts, three different judges, have now said that the case was frivolous, and, if Katerinos didn't know before, he'd been reminded by the opinion that his client's motivation here was revenge.

At best, Olsen could go back to the trial court and try to hold down the damage, you'd figure.

Or... he and his lawyer could up the ante and file more stuff. Guess which one they chose?

If you said "File a motion to reopen alleging fraud," give yourself a gold star: Following remand, Olsen, through Katerinos, in June, 2004, filed a motion to reopen the case and start all over again, and after some briefing and delays for scheduling that motion was heard...

... and denied...

in January, 2005.

So the dispute over $491 and what family does to family had now lasted nearly three years and resulted in three hearings and an appeal, and Olsen had yet to win on any issues, so far as any court records shows -- but the litigation just kept up, in the same apparent pattern, as the dentist and his collection agency again tried to get orders denying the motion to reopen approved, only to face objections, and then a motion for reconsideration.

I am not a fan of motions for reconsideration. It's basically a motion that says Please change your mind, and of the many motions I think lawyers waste their time filing, this one might be the top of the list. If a motion for reconsideration presents nothing new to the Court, why should the court change its mind? If it presents something that wasn't in the previous motion, why wasn't it in the previous motion?

Think about it this way: I make a request of you. You say no. I immediately say Please say yes, instead. Aren't you going to say "Why would I change my mind?" and hope I have a good reason?

Motions for reconsideration should be rare -- and even more rarely granted.

But Olsen and his lawyer were kicking that can again. The motion for reconsideration, filed in February 2005, was followed by a notice of appeal in March, 2005, setting the stage for a second appeal.

While the second appeal was pending, things kept happening in the trial court: the earlier judgments of $491 and $5400 were satisfied, and a motion for sanctions was filed, in July, 2005...

... By Olsen and his lawyer.

That's right: Having been found by two courts to be acting frivolously, having moved to reopen and lost, Olsen and his lawyer were now asking the Court to impose sanctions on the defendants.

The defendants who'd kept winning.

Take off, and get a great new property.

We've been searching for a new location for our firm, and it's not easy. Who has time to go around looking at a bunch of commercial buildings? We're trying to RUN A FIRM, not go on a tour of commercial properties. And besides that, half the time you'll talk to someone who'll say "I've got a place for you" but when you get there, it's completely undesirable: too small, needs too much improvement, whatever. It ends up being this huge waste of time.

I wish we had something like Real Estate Locators.com. Their real estate listings make it simpler and faster to try to find both commercial and residential real estate. They have MLS homes and real estate listings in any city or neighborhood, but they don't just leave you on your own flipping through online listings: they also get a real estate agent to follow up with you once you finish your search, to make sure your listings were up-to-date and answer any questions you might have.

They're the top-ranked real estate listing service... in CANADA. Which makes this great service not quite what we need, because I'm not licensed to practice law up there.

So now Canadians get to all find their properties much faster, while I'm still slogging through like a sucker.

How NOT To Do Things: An Adventure In Consumer Act Litigation, in Three Parts. (Consumer Matters)

Any longtime reader of this blog, as well as some lawyers who have opposed me, will know that I think that the phrase "frivolous" (and all its synonyms) is overused by lawyers and courts and litigants.

But that doesn't mean that things are never frivolous; sometimes, claims ought not to be brought, and lawyers ought to know the difference between claims that are good, claims that are not so good, claims that are bad, and claims that are frivolous.

The case that I'm going to discuss over the next three installments will help show the difference between that lower level of cases that are actually frivolous, and cases that aren't.

The story begins, as many bad experiences do, at the dentist, where Mark Olsen received some $591 dollars worth of dental services from Dr. Edward Hoffman.

Unwilling or unable to pay Dr. Hoffman, Mark Olsen ditched out on the bill, and Dr. Hoffman, in turn, offered to accept payments on it.

Mark Olsen ignored that offer for "many months," and when he didn't get paid, Dr. Hoffman turned to "Hawthorne Collection Services, Inc." to collect the debt.

Mark Olsen paid the debt collector $100, but nothing more after that, and so a small claims suit was filed.

But not the small claims suit you think: instead, Mark Olsen sued Dr. Hoffman, (and Hawthorne, the debt collector) hiring lawyer Douglas Katerinos to file the small claims suit, which alleged illegal collection activity in violation of the Wisconsin Consumer Act.

Sadly, I can't get the actual complaint to see what, exactly, was the illegal activity allegation, but I can give you what Mark Olsen's motivation for the lawsuit was: "family doesn't put family in collection."

Which can be explained better by revealing that Mark Olsen's sister-in-law worked for Dr. Hoffman -- but which doesn't explain why Mark thought it was okay to sue his sister-in-law's boss. Family doesn't put family in collection, but family does, apparently, sue family's employers.

Douglas Katerinos, at the time, had been practicing about 2 years, which may help explain part of what happened next.

A few months after the complaint was filed, the court commissioner ruled against Olsen. CCAP notes don't say much:

Plaintiffs in court with Attorney. Defendant in court by Attorneys. Hearing conducted. Oral decision rendered for defendant with entry of Judgment of DISMISSAL to be made on 02-26-03. As to counterclaim o Hoffmann: Oral decision rendered for defendant with entry of Judgment $491.36 plus costs to be made on 02-26-03.

Undeterred, Olsen appealed to the circuit court, asking for a jury trial this time and paying the fees for that. A counterclaim was filed, which Olsen (through Katerinos) moved to dismiss as untimely, which caused the case to drag out a bit, and discovery was apparently served (judging by the fact that there was a motion to quash the discovery requests), and a hearing on May 12, 2003 -- about six months after this action was filed -- resulted in more submissions being needed about motions to compel and other discovery issues.

Keep in mind that Mark Olsen's motivation here was family doesn't put family in collections.

On June 4, 2003, the Court denied Olsen's motion to dismiss the counterclaim, and then things took a slightly ominous turn, if you're Attorney Katerinos: CCAP has these notes:

Letters/correspondence
Additional Text:

Filed, Letter by Douglas Katerinos advising parties have agreed to suspend summary judgment deadline. sjo
25

06-25-2003

Notes

Additional Text:

Court called Attorney Katerinos and advised court has not suspended any deadlines.

Yikes. Many courts are mindful of motion deadlines to avoid messing up their calendars -- but I have never seen a court on its own call a lawyer and not approve a stipulation amending deadlines.

But maybe I'm just reading too much into that, since I know how this all turns out (which, I'll note, you're thinking you know, too, but you don't, unless you cheated and went and looked it all up on your own.)

In any event, a motion for summary judgment was filed, with not one, but two briefs (which is a different pet peeve of mine: there's nothing summary about a several-months-long, multiple-brief motion; wouldn't it have been simply to try the case? A trial took less than one day in the small claims court, after all. There's a bit of overlawyering going on on both sides here.)

Here's the CCAP note on the outcome of those motions:

Court Reporter: Michelle Yaklovich Plaintiff in court by Attorney D. Katerinos. Defendant, Edward Hoffmann, in court by Attorney Christopher Drosen. Defendant, Hawthorne Collection by Linda Wegenke, in Court with Attorney Bernard Stain. Both Defendant's motions for Summary Judgment. Court Grants Motion for Summary Judgment as to Hawthorn and Hoffman and does dismiss actions against them as well as fraud claim. Motion for Sanctions and contempt denied. As to Counterclaims, Court set hearing date on 9-5-03 at 10:00 a.m. Attorney Drosen was noticed by plaintiff that this motion was noticed for 9:00 a.m. and he was here at that time and now requests his fees. Court grants request for at least an hour of his time. Per order to be signed.

There's a lot going on there, including that mysterious order at the very end related to mis-noticing a motion. But the bottom line is Olsen lost, and the counterclaims continued to trial (so, summary judgment didn't work, not really, and again, why file those motions if you're just going to try the case anyway?)

And yet, it's not over. That was August 11, 2003. Ten days later, Olsen and Katerinos objected to the proposed order dismissing their claim (that's a very rare move), and the hearing was held and Olsen lost again: the order he'd objected to was signed, the counterclaim granted, and the Court was now going to hear motions for sanctions.

Hoffman and the collection agency had asked for fees, claiming the action was frivolous. The small claims' commissioner hadn't awarded any fees, and it's not clear whether Hoffman or the debt collector would have pursued the issue. But now they've gone through motions to quash and motions for summary judgment and a trial, and they've spent a lot of money.

The original bill -- $491 -- by the way, was not subject to costs of collection. Had Olsen simply made Hoffman file a lawsuit against him and defended it, so long as he did nothing frivolous, Hoffman would never have gotten any fees awarded, making it very unlikely that he ever would have collected anything.

After yet more objections to proposed orders, the Court finally entered an order against the Olsens (both Mark and his wife were plaintiffs) and Katerinos, the lawyer -- for $5,437.50.

(That was on top of the $491 they'd won, too.)

Undeterred, Olsen and Katerinos appealed.

Go on to part TWO by clicking here.