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Page 47 of 83

46 Litigation fees related to a wrongful foreclosure case can seem unending. Even after prevailing in the lower court, the lender may be subject to a borrower's appeal, further dragging out issues. en, after prevailing on appeal and when it finally feels like it is over, the borrower refiles a new lawsuit, hoping something sticks, in order to further delay the foreclosure process. To combat the never-ending parade of litigation, various jurisdictions have statutes that allow courts to deem individuals to be "vexatious litigants," which curtails their ability to file any new lawsuits, without first getting court approval. Below is a summary of how Arizona and Nevada govern vexatious litigants. ARIZONA Deeming a borrower, or any litigant, a vexatious litigant is a serious consequence, and one that courts do not take lightly. To prevail, the moving party should paint a picture about, not just the borrower's history of litigation abuse; but also, how, if not stopped, the abuse will continue. Specific factors that Arizona courts will consider when deciding whether someone should be deemed a vexatious litigant include: (a) Repeated filing of court actions solely or primarily for the purpose of harassment. (b) Unreasonably expanding or delaying court proceedings. (c) Court actions brought or defended with- out substantial justification. (d) Engaging in abuse of discovery or con- duct in discovery that has resulted in the imposition of sanctions against the pro se litigant. (e) A pattern of making unreasonable, repetitive and excessive requests for information. (f ) Repeated filing of documents or requests for relief that have been the subject of previous rulings by the court in the same litigation. [Emphasis Added] A.R.S. § 12-3201(C), A.R.S. § 12-3201 (E)(1) (a-f ). Lenders usually rely on subsections (a), (c), and (f ) to support their motion to deem borrow- ers as vexatious litigants. e more unsuccessful litigation (or bankruptcies) the borrower files, the higher likelihood the court will deem the borrower a vexatious litigant. Unfortunately, there is no bright line rule on how many unsuccessful lawsuits or baseless motions are needed before the court deems the borrower a vexatious litigant. In fact, the same motion may be granted by one judge and then denied by another judge. While the unpredictability of whether a motion will be successful is frustrating, the upside to a successful motion is often worth the cost because it stops borrowers in their tracks and ends the seemingly never-ending cost of litigation defense and delays. A vexatious litigant will be barred from filing THE LITIGATION BULLY: VEXATIOUS LITIGATION A closer look at vexatious litigation and its impact within the legal system in the states of Arizona and Nevada. Feature By Robert A. Riether Esq.

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