See Jury Instructions for Causes of Action and Elements

Students of law might appreciate the lesson from the dialogue below.

The other day while studying post-Jesinoski opinions regarding TILA rescission, I kept seeing borrowers making what seemed like scatter-brained allegations and legal conclusions in order to stave off foreclosure. Yes, it SEEMS scatter-brained in retrospect. I felt like a Monday Morning quarterback like analyzing all the things the losing team did wrong (HOW ABOUT THAT BRONCOS DEFENSE in Superbowl 50!?). The losing players thought they did the best they could, but clearly they had not adequately trained or planned for the contest they lost.

As with the football game analysis, I wondered how the losers in the court case could have prepared better to win. At least they shouldn’t have written such garbage pleadings, shouldn’t they?

This question brought me face to face with the difficulty many litigants have of properly defining the causes of action in their lawsuit, along with the elements and associated facts in support. And even more importantly, how can they determine in advance that the court will have jurisdiction over the issues?

I wrote to law mentor and litigation consultant Storm Bradford of Mortgage Fraud Examiners. He responded with the terse explanation you see below my comments on the Cox opinion. Then he called me to clarify, and guided me to a state court web site for examples, which I shall share below.

Cox had declared bankruptcy, then sued for rescission and a variety of other related things. The court dismissed his causes of action one after the other with an explanation. Cox had not understood that the bankruptcy trustee had standing to bring some of the causes, but Cox did not. But Cox failed to partner with the trustee in the lawsuit. For the remaining issues, Cox just messed up by failing to state facts in support of elements of the causes.

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Author: bobhurt

See http://bobhurt.com

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