Author Topic: Attorney mistake or lack of attention?  (Read 702 times)

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head22

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Attorney mistake or lack of attention?
« on: September 28, 2013 04:15:14 AM »
I have been involved on another thread on a summons I received and in doing research and asking questions came upon what I think is a realization of a past default judgement.

I was going to file bankruptcy a couple of years ago. I consulted with an attorney and got all the necessary forms to fill out. I agreed that I was going to file and would hire this attorney's services. I made a third of the payment of a little over $1,000.

During my time that I was going over my records, and having second thoughts about filing bankruptcy, which my wife was against, I received a summons from Allen Adkins saying I was being sued by Citibank for a credit card debt of over $12K. I gave the summons to my attorney who said they would file an answer and would keep me posted.

The attorney contacted me several weeks later and told me that AA had asked for a continuance and again told me to wait and see what happens next and would keep me posted.

Several weeks passed and I received a summary judgement notice from the court in Citbank favor.

My attorney told me that the judge could rule for summary judgement any time during the case and that is what happened to me. I was ticked but figured my attorney did what they could.

Today while I was exchanging questions and answers on these boards about my other case I was told that a summary judgement could not be imposed without a hearing. I also read several other sites that said the same thing. Harrumph! What happened here?

Was my attorney being untruthful? Did my attorney not do the job right and feed me a line?

I have since decided not to file bankruptcy but have never taken any steps to try to get any of my payment to the attorney back.

If there was a summary judgement involved and my attorney didn't do their job do I have any recourse?

Was my attorney incompetent? Violate any rules?

This is a broad explanation I realize but feedback would be appreciated.


gowyo

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Re: Attorney mistake or lack of attention?
« Reply #1 on: September 28, 2013 05:07:06 AM »
I think the thing to do is to go to the courthouse and look at the file to see what happened.
I am not a lawyer and most likely a crackpot.

BrokeBob

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Re: Attorney mistake or lack of attention?
« Reply #2 on: September 28, 2013 05:17:58 AM »
+1

You need to see what, if anything, your attorney did.

You need to see if the court ordered a hearing or not.

Nightfall1134

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Re: Attorney mistake or lack of attention?
« Reply #3 on: September 28, 2013 12:41:58 PM »
If your court district has online records, you can also probably look online and do a search for yourself.  Most likely it will state whether or not there was a response to any motions for summary judgment.

Did you have a contract with the attorney regarding the Chapter 7 you were planning on doing with him?  That should give you a clear picture on how much money, if not all, you will get back.  If he indeed did work on the case that got SJ filed he may try keeping some of the money for that work as well.

maggie22

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Re: Attorney mistake or lack of attention?
« Reply #4 on: September 28, 2013 01:00:38 PM »
You could call your attorney and simply ask for your file. 

Also, while on the phone, ask your attorney pointed specific questions so you won't have to guess what actually happened.
 

head22

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Re: Attorney mistake or lack of attention?
« Reply #5 on: September 28, 2013 05:50:52 PM »
Thanks for all the replies. Looking foward to Monday

Brunothe JDBKiller

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Re: Attorney mistake or lack of attention?
« Reply #6 on: September 28, 2013 09:09:03 PM »
Rule 166a Summary Jugment


Motion and Proceedings Thereon.

The motion for summary judgment shall state the  specific grounds therefor. Except on leave of court, with notice to opposing counsel, the motion and any supporting affidavits shall be filed and served at least twenty-one days before the time specified for hearing. Except on leave of court, the adverse party, not later than seven days prior to the day of hearing may file and serve opposing affidavits or other written response. No oral testimony shall be received at the hearing. The judgment sought shall be rendered forthwith if (i) the deposition transcripts, interrogatory answers, and other discovery responses referenced or set forth in the motion or response, and (ii) the pleadings, admissions, affidavits, stipulations of the parties, and authenticated or certified public records, if any, on file at the time of the hearing, or filed thereafter and before judgment with permission of the court, show that, except as to the amount of damages, there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law on the issues expressly set out in the motion or in an answer or any other response. Issues not expressly presented to the trial court by written motion, answer or other response shall not be considered on appeal as grounds for reversal. A summary judgment may be based on uncontroverted testimonial evidence of an interested witness, or of an expert witness as to subject matter concerning which the trier of fact must be guided solely by the opinion testimony of experts, if the evidence is clear, positive and direct, otherwise credible and free from contradictions and inconsistencies, and could have been readily controverted.


Sounds like a hearing to me. Your attorney obviously agreed to handle this for you from what you posted. Unfortunately, he dropped the ball. The SJ was probably granted absent objection.


BK attorneys don't always know how to defend a credit card case. This guy sounds like one of them. AA had asked for a continuance. For what? Lawyers only ask for continuances when they are expected to go to court. You know, like for maybe a hearing?

Normally you ask the court for a continuance, not opposing counsel. These snakes have no problem lying to get what they want. Maybe AA threw the continuance at him and never filed for one. Then the hearing comes up, he doesn't go, and bingo, you get a 12K judgment.


Now comes the hard part; you can sue for malpractice, but you would have to prove a "case within a case" and show that absent his lack of diligence, the outcome would have been different. In other words, you'd have to prove that you could have beaten the plaintiff. Good luck with that one. If you can't do that, you have no damages.

Malpractice suits typically require an expert witness to explain the standard of care to the jury, and how it was breached. They get $500 per hour, if you can find one. You can argue that if the conduct is so egregious that any lay person can understand it, and you may get this part waived. No action at all is a lock.

Now the other hard part.....you have a fee agreement, does it state he will defend you in this case? Unless it does or he entered an appearance, this won't go far. Especially if you take option two, which is a bar complaint.

First thing you have to establish is the attorney-client relationship for the case in question. They go by the documents. Without the above, they'll dismiss your complaint. He can simply claim that he verbally agreed to represent you but you never followed through.

This could be very difficult to resolve. Taking on attorneys in court or in a bar complaint is not for the new user, if you get my meaning. I've done or helped with 3 so far and won them all. "It ain't easy." Maybe you could convince him to give you a refund or help you get the case reopened.



I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

head22

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Re: Attorney mistake or lack of attention?
« Reply #7 on: September 29, 2013 01:41:42 AM »
Thanks for your diligence in this matter. You put much thought into things and I appreciate your time here.

I really don't want to go after the attorney. I just want to have some facts to bring up so I can try to get some money back. AA was representing Citibank, the original creditor. From what I have read over the last few weeks it is pretty tough to beat an OC since they have all the documentation. My complaint is that she told me to wait and see and then I get a judgement against me with no warning. Sounds like she made a mistake, then relied on my lack of knowledge to cover it.



Brunothe JDBKiller

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Re: Attorney mistake or lack of attention?
« Reply #8 on: September 29, 2013 03:03:46 PM »
t is pretty tough to beat an OC since they have all the documentation.


Not so. They only have a complete record on accounts that are a few years old, and even them they delete a lot of stuff after two years. Depending on what they have, Citi is one of the easier ones to make a lot of trouble for. It takes quite a bit if work and knowledge, but it can be done.

Sounds like she made a mistake, then relied on my lack of knowledge to cover it.


Probably the case. There is no reason to take this from an attorney. None. Many of us here would have her you know what in court or in front of the bar so fast she wouldn't know what hit her.


I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

coltfan1972

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Re: Attorney mistake or lack of attention?
« Reply #9 on: September 30, 2013 06:08:24 AM »
All of this is speculation and a lot of what ifs.  As it has already been advised, get everything on the case from A to Z.

Then you can figure out what is going on and we can also help you better.  From what you posted I agree with Bruno that it appears your attorney dropped the ball.   However, and I'm guilty of it all the time, you are looking at this in the light most favorable to you. 

It's human nature and we all do it.  However, you just need to get all the documentation, put it in chronological order and then report back. 
Scroggin succeed in making this case an expensive nightmare for both CBOJ and its counsel.
Scroggin made a "mockery" out of CBOJ's deposition.

Scroggin made "perverted one-liners" during his deposition.
Scroggin called CBOJ'S counsel "a little witch"

Scroggin used the FDCPA as a "sword of intimidation."
Scroggin loves suing debt collectors.

Scroggin is proud of his behavior and "unapologetic."

Rebecca Worsham - Lead Counsel, Scroggin v. CBOJ- 3:12-cv-128, Eastern District of Ark.

shellawella

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Re: Attorney mistake or lack of attention?
« Reply #10 on: September 30, 2013 01:55:11 PM »
Quote
Not so. They only have a complete record on accounts that are a few years old, and even them they delete a lot of stuff after two years. Depending on what they have, Citi is one of the easier ones to make a lot of trouble for. It takes quite a bit if work and knowledge, but it can be done.

Not true for me! This specific OC has ALL records back 10 yrs! This OC is not one of the easier ones; they are one of the tougher ones in my experience! They fight for blood!
My comments are NOT legal advice!
shellawella

Brunothe JDBKiller

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Re: Attorney mistake or lack of attention?
« Reply #11 on: September 30, 2013 01:58:10 PM »
It happens, but rarely. Must be AMEX.
I am not an attorney. Any information I post is strictly my opinion and should be treated as such.

waytootired

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Re: Attorney mistake or lack of attention?
« Reply #12 on: September 30, 2013 02:08:08 PM »
+1 Bruno and Coltfan.  Did I miss it somewhere, or did you state the date of the judgment?  If not, when was the judgment entered?  As Coltfan said, a lot of this is speculation, but I'm thinking because your attorney thought you were going to go through with a bankruptcy at the time, that she neglected the suit because she didn't think it would matter in the end.  And as has been said, it's typical for some "consumer attorneys" only to be knowledgeable about bankruptcy.  Most of them have no idea how to argue a consumer credit case for a defendant. 

As Bruno was saying, it may be very difficult for you to gain any traction with your issues against your attorney.  No doubt, she let you down, but how can you prove it, and what will you gain?  She's probably perturbed that you didn't follow through with the bankruptcy so she could get the rest of the money you were going to pay her... but seriously, that doesn't let her off the hook for what she has cost you. 

I like Bruno's idea (I was thinking it too as I read the thread) about discussing the situation with your attorney and being very clear that you know she made a serious misstep in not handling your case, and (I think anyway) that she was counting on your bankruptcy solving that matter (and she shouldn't have), and so you want her to consider the money that you already gave her for the bankruptcy as her payment to get that case reopened.  (That, and the fact that she OWES you now!)  If it hasn't been too long the judgment may be able to be vacated, and especially if your attorney explains that she wasn't worried about there being a judgment because you were preparing to file bankruptcy at the time, which is now aborted.  Excusable neglect?  Is that an argument to vacate?  What do you guys think?

This is a complicated situation for sure, but I think you may prevail if you are aggressive!
No, I'm not Gwyn.  I don't even really look like her that much, but definitely more than the other avatars.  We do have one thing in common though; neither one of us is an attorney.  But MAYBE we can both act like one sometimes.  (I say maybe because I can only speak for myself... I've never seen her play an attorney before.  So far I'VE been able to pull it off though.)

head22

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Re: Attorney mistake or lack of attention?
« Reply #13 on: July 25, 2014 02:57:34 AM »
OK. I never spoke to my attorney directly about this case until this week when I requested the file on my case from her. I should have done this long ago but I didn't. Bad move on my part.  The particulars:

I hired this attorney originally to claim bankruptcy which I later decided not to do. She filed an answer to the suit against me and on August 4th 2011 a trial date was set for November 30, 2011.

On October 17th, 2011, the Plaintiff submitted a brief that included a motion for summary judgment and also included a Notice of Submission/Oral/Telephone hearing set for November 18, 2011. He sent a copy of this brief to my attorney. The copy of the submission request states that "Please take notice that a request for Submission on Plaintiffs MSJ is hereby scheduled for November 18, 2011 at 9:30 am in court #3 etc..The motion will be ruled on without the necessity of an oral hearing, unless one is requested in writing by you".

I don't see any official notice of the hearing from the clerk in the file my attorney gave me.

Furthermore, the plaintiff sent a proposed agreement  for 120 day continuance of the 11/30 trial to my attorney which she signed and sent back. This notice was sent on November 3rd. An order for the trial was set and sent November 7 for January 30, 2012. On the same date of November 7 the clerks website shows the agreed motion for continuance as submitted, no order. Around that time my attorney told me about the request and wait until January and see what happened.

On November 15, 2011, an order not entered shows on the courthouse website for a continuance of the trial.
On November 21, a letter from the plaintiff shows on the website. The file I have from my attorney doesn't have a copy of that letter.
On November 22, a summary judgment in favor of the plaintiff was filed and notice sent.

I hope to get to the courthouse tomorrow to get the file they have. In the meantime, my question is this: Did the plaintiff pull a fast one procedural wise by getting an request for submission hearing set through CMRRR and she didn't notice? Then requesting a continuance on the 11/30 trial date to keep her off balance? If so, why wasn't an official order sent to my attorney? I doubt she would purposely omit the order if it was sent to her, or doesn't one have to be sent in this case, just the notice via certified mail? Is this legal if that is what happened?

I was looking into getting the MSJ vacated but my time period expired. I have up to 4 years to submit a bill of review to get the case looked at which is what I want to work on. I am assuming that my attorney (former now) gave me everything she had on file. I will find out if that is the case when I get to the courthouse. I have to have 3 reasons for the judgement to be reviewed. If however, there was any rules broken I can have it overturned from what I understand.

Was my attorney unwise as to the tactics of these lawsuit attorneys because she only handles bankruptcy?  It seems to me that any attorney that read the paragraph above would respond somehow and know what was happening. Did my attorney drop the ball on this?

I haven't had any discussion with my attorney on this yet. She is out until next week. I can pointedly ask her if she messed up when I do talk to her. She told me that the judge can rule on summary anytime during the proceedings without a trial when the judgment came down. I was told that wasn't true on this thread. Was she lying figuring that I wouldn't find out she was hoodwinked?

I may find out more answers when I get the file from the courthouse.
« Last Edit: July 25, 2014 03:19:17 AM by head22 »

head22

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Re: Attorney mistake or lack of attention?
« Reply #14 on: July 25, 2014 03:36:18 AM »
I don't believe any rules were broken after reading some case
« Last Edit: July 25, 2014 03:58:38 AM by head22 »

 

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