Civil Insanity: Part 2in HPN Blog
continued from last week...
This is where things got really messy. My new attorney had explained to me that it would be improper to allow the case to be re-opened because everyone had agreed to dismiss it, and once opposing counsel had filed to take the case off calendar, it was essentially a done deal. Kind of like when you buy something from a store that has a little sign next to the register that says “No Refunds. No Exchanges.” Even though the law does allow for these cases to be reopened, there appears to be a sort of an “attorney’s code of conduct”. And these verbal agreements are supposed to be honored. Maybe my attorney is the only one honoring them.
Therefore, the judge should not have supported opposing counsel’s argument, which was that I had dismissed the case simply because I didn’t like how my first case was going. I believe he did so to punish my first civil attorney for being incompetent. Well, he wasn’t punishing him… he was punishing me!
According to the research I did on this judge, he has made countless decisions in favor of people taken advantage of by their employers or mistreated by their physicians, but in my case, time after time, he has made what I believe to be prejudicial decisions in response to my negligent attorney. Which has been a lot, when I review my court records.
So, the insane thing right now is that, in violation of court rules, I have two open civil cases against the same defendant. Not because my current attorney is ignorant of these rules, but because my lender’s attorneys have created that situation. The judge hearing the second case has at least stated that he will not rule until the first case is decided. Which is nice of him, but creates a quandary for me in that the judge hearing the first case has already shown a history of bias against my case. So, if I lose the first case, will I lose the second one, too?
When we made our first appearance regarding the re-opening of the first case, an ex parte hearing, the first attorney was still representing me, even though he didn’t respond to the court summons. The one who had taken over was out of the country. For some reason, the opposing counsel had called me though they are never supposed to contact you personally. I think she knew that if she couldn’t get hold of the attorney, I might lose the case if he didn’t show. I also like to think she knew my lender had committed fraud on me, and wanted to be sure I didn’t lose. (Too bad she didn’t just lose my file – then I might have won simply because no response was filed, like this woman in Riverside, CA.)
With my stomach as jumpy as a Mexican jumping bean, I went to court to represent myself. The judge listened to the lender’s attorney’s argument for why the case should be re-opened, then asked me why my lawyer wasn’t present. I informed him that he was out of the country. To my mind, the one who had taken over was my attorney of record. The judge then continued the trial until my attorney could be present. It was that simple. I only had to answer one question, really, and laughed at how nervous I had been! Though most people consider me a calm, collected person even in times of stress, I do get nervous because there’s a lot on the line.
At the next hearing, my attorney called in (he is 200 miles away). The judge was out, so a commissioner was sitting in for him. After the defendants (the moving party in this action), made their case (also via telephone), the commissioner turned his attention to my attorney and asked his name. When the name didn’t match the name of the attorney of record, he went off on him! “I don’t know who you are, or what you have to do with this case, so I won’t hear any argument from you,” he lambasted. He didn’t even bother to ask me who this guy on the phone was. I could have cleared it up for him, but he clearly didn’t want to listen to anything either of us had to say.
The first attorney had failed to file a Substitution of Attorney form with the courts. My active attorney mailed him this form, and he agreed to sign it. For one month, he didn’t send it back, and when questioned, he said he had sent it in the mail and didn’t know what had happened to it. Another form went out to him, and then he just stopped answering his phone and returning calls. Finally, my new civil attorney had to drive 200 miles to make a special appearance in court to ask the judge to allow him to be named the attorney of record on the first civil action. Thankfully, the judge agreed.
Again, the first guy most likely didn’t want to remove himself, so that he could reap any rewards that might have been granted. His paralegal informed me that he had done the same thing to another client – told her to find a new attorney, then abandoned the case without substituting out. That client, however, went to court, represented pro se, and won. At that point, the attorney got involved with negotiating a settlement – of $25,000. I think the guy I’m using now will work to get me a much better settlement than that!
You may be wondering if I can go after this guy for malpractice. I could – however, both civil cases have to be final before I can go after him. After these past 3 years in court, I have to say that I would not like to go to court again, even though professional malpractice suits tend to be settled quickly by insurance companies. The guy most likely does not have legal malpractice insurance – it’s not a requirement in the state of California, so I’d be going after his personal assets. (This is why, when you first hire an attorney, you should ask for his malpractice insurance information.)
Couple that with the fact that not a single one of six attorneys I asked know of anyone who practices professional malpractice law – I can’t solicit a personal referral. I imagine that these are the guys who never get invited to the party, or if they do, are relegated to standing in a corner with the others. Kind of like any teenage-angst movie party scene, with the geeks huddled up and watching the cool kids' antics.
Like Saddam, I keep dreaming that once I get out of this box, I’ll be free, and I’ll be able to throw off this weight that hangs so heavily over me now. Unlike him, I won’t be going to the gallows! I will be able to start over, fresh, and more carefree. How I look forward to those future days!
PS - I'm interested in hearing from my readers - are you or have you gone through foreclosure? What's your story? * * * * * * *
Handy tip: Educate yourself. Don’t just take your attorney’s word for everything. There are many resources on the internet dedicated to the foreclosure crisis, and more information than you can possibly hope to read in one or two days. Consultations are usually free. You can meet with several attorneys and find the one who feels right for you. Don’t forget to ask how many of these cases they’ve taken on and how many of those they’ve won!
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