Saturday, October 6, 2012
Heck, I'd let you illegally repossess my car for about half of that. (My Actual Case Results)
Provided you get the right lawyer.
Take the recently-settled case of mine, Stull v. NMAC, Dane County Case Number 11 CV 2672. While the case is still open, officially, it settled this week for $70,000 -- Nissan Motors Acceptance Corporation, the defendant, will pay that to my client for its (alleged) activities.
(I have to say "alleged" because there has been no trial in this matter, and the settlement will not involve an admission of liability on anyone's part.)
Here is what we allege NMAC did: A while back, the plaintiff, Michele, fell behind on her car payments, the result of a combination of factors including a particularly hard-fought divorce battle and the economy. Nissan, as creditors are wont to do, decided to repossess the car.
Here is what we know: The repo company made a few attempts to try to get the car back from Michele, but was stymied each time until, one day, the repo guy found the car at Michele's house.
Here is what is disputed: Where, exactly, the car was. Michele says it was in her garage, with the large garage door closed and a smaller, people-sized door to the side unlocked but closed, as well. The repo guy, meanwhile, testified that the garage door was open and (depending on which statement you take) that the car was either completely out of the garage, or partially out of the garage. Michele disputes that and says the car was entirely in the garage with all doors closed but not locked.
Here is what we know, part two: Michele woke up the next morning, a Sunday, with her car gone, and called the police, thinking her estranged husband (against whom she was seeking a restraining order at the time) had taken the car as part of the divorce fight. The local sheriff investigated, the car was determined to have been repossessed, and the repo guy was given a ticket for (if I recall correctly) trespassing; he apparently plead no contest to that ticket, which was the legal equivalent of a jaywalking ticket.
That's when we got involved: Michele, who was already working with our office, hired us to sue Nissan, because in Wisconsin, you cannot repossess cars if the repossession involves a "breach of the peace," and trespassing is a "breach of the peace."
I called the repo company's lawyer and attempted to work out a return of the car, which ultimately would be valued at $13,500 or so; Michele owed Nissan about $21,000 on the car. At that time, we were intending that if Nissan simply gave the car back, and declared Michele not to owe any more money, we wouldn't press for more.
Nissan refused, and we sued. Keep that in mind as you read: Nissan could have gotten out of this simply by giving back the car and forgiving the remaining debt -- a cost of about $21,000 to it.
When we sued, we asked for a preliminary injunction to return the car, because Michele, a self-employed cleaner, used the car in her business and needed it to get her kids around, as well. The circuit court judge ordered the car returned pending further hearings, but Nissan invoked a little-known right it had, the right to require that Michele post a bond: Nissan could have waived that right but it didn't, and so to get her car back pending further hearings, Michele would have to pay to get a bond for $21,000, a prohibitive expense for a self-employed single mother.
So Michele abandoned the car, and when we say "abandoned" we mean abandoned in the legal sense: Michele had earlier filed a chapter 13 bankruptcy designed (in part) to let her keep this car and her house, and had in fact said in that bankruptcy that she intended (at the time) to reaffirm the debt -- to keep paying Nissan for the car. But with Nissan insisting that Michele, in essence, pay in advance for the car it had (allegedly) illegally repossessed, Michele changed her mind and abandoned the car, stopping her payments on it and converting her chapter 13 bankruptcy to a chapter 7.
A chapter 7 bankruptcy discharges any unsecured debts, like the money Michele would owe to Nissan. That's something to keep in mind, too.
Nissan was aware of the chapter 13 and then the chapter 7 -- its lawyers put in a claim in the bankruptcy to try to get all their money paid, too.
So the litigation continued in state court, and Nissan sold the repo'd car for $13,500 -- that's where we get that value from -- and then Nissan decided to up the ante and put pressure on Michele, two different ways.
First, Nissan moved to compel the production of documents; Michele had been looking for documents she'd promised to produce but hadn't yet, and Nissan decided that it couldn't wait any longer, so it filed a motion to compel and sought fees for the production of documents. Nissan then sought permission to file a late counterclaim against Michele, asserting a right to a deficiency of over $8,000 -- the money Nissan felt it was still owed after the sale of Michele's car.
Nissan, having taken those two moves -- moves that together were designed, apparently, to say to a single mother who had just declared bankruptcy "You're going to have to pay us a lot of money including our lawyer's fees," then made an offer of settlement, saying that it would give Michele the $13,500 it had made on the sale of the car and would waive the $8,000 Michele owed.
In other words, Nissan, after a year of litigation and a day of depositions and seeking an imposition of a bond and all the other stuff it had done, said "We'll take that first offer you made us way back when, thanks."
By then, though, Michele had incurred thousands in attorney's fees fighting Nissan and trying to save her car, so we weren't exactly in a mood to negotiate.
What I did, though, was tell Nissan's lawyers that the offer seemed a bit low: I suggested that Nissan come up to $30,000, and I'd try to get Michele to take that.
Nissan said no way (I'm paraphrasing) and then insisted that it would seek those attorney's fees for the motion to compel.
So we unveiled our hole cards: Nissan and its lawyers, by seeking to file the counterclaim, had (allegedly) violated bankruptcy court orders and the Fair Debt Collection Practices Act. You don't want to settle for $30,000? we told them. Fine, we'll take $70,000.
Nissan, confronted with the fact that we were aware of the full extent of their alleged wrongdoing, came up to $30,000 -- always one step behind us, Nissan kept wanting to fight the last war, as it were.
We stood fact: $70,000 was actually a pretty decent discount on what Michele could have gotten, since we were suing for the value of the car plus treble damages plus emotional distress and other losses, and the car wasn't necessarily worth only $13,500 -- remember that Michele owed $21,000 on it, so the base value of that claim alone might have been as high as $84,000.
Nissan, which had the chance to give the car back at the start, and waive its costs -- settling the case for $21,000 with no legal costs to it, and which had the chance to settle the case for $30,000, and which had refused both of those opportunities, agreed to settle for $70,000 paid to Michele, taking just two days to make that decision after a year-plus of litigation.
We have no idea what Nissan paid its lawyers in that time, of course -- but we know for sure that Nissan paid more than three times what it could have settled for at the outset.
This story, and others like it, are why I never agree anymore to confidential settlements. There are just too many reasons to not let Nissan and its lawyers hide this.