The Gander, Part LXIII

Over at FindLaw, Trevor Morrison of Cornell has an overly narrow, but interesting, take on one variety of "defense abuse" in tort litigation: wrongful removal. The problem here is that Professor Morrison, like so many others, assumes (without any data) that state courts are in general more favorable to plaintiffs than are federal courts; he even calls federal courts "defendant-friendly." This is contrary to my experience; and it certainly is not borne out by counterclaim practice in the federal courts, in which the nominal plaintiff and nominal defendant swap roles.

A typical example might be the respossession of a car by the finance company for nonpayment of the loan, followed by the finance company's lawsuit for the alleged deficiency between the amount remaining on the loan and the car's value at the (unreasonable cut-rate) auction at which the seized car was sold. So far, so good; but, in those instances in which the individual consumer can file a good-faith, and preferably even meritorious, claim under the Fair Debt Collection Practices Act or the Truth in Lending Act, the assertion simply does not hold, either in the nominal or the actual roles. Yes, this is federal law; but it is federal law frequently referenced in state court proceedings.

In any event though, I'd like to pass sauce for the gander for the forty-third time in the last couple of years.