Motion served to OC but never filed?

[chitown]

What is the name of your state? FL

I received a copy of a dated motion and certificate of service to OC. One of the motion's goals was to "stay" a court order requiring payments to OC and former spouse as it was a motion to abate. Upon reading the motion I noted several material misstatements of fact and immediately sent an edited motion to my atty. Atty several weeks later sent an amended motion to me for review. Some of the original errors still existed and I sent another edited version to atty. Two weeks later I received another version of the motion except this time it required me to verify via notary. Unfortunately, there were still some minor errors. Due to the fact I was verifying the truth and validity of the motion, I edited the errors, had it notarized and sent to atty's office. (Time elapsed had been over 2 mos since initial motion was filed. In the interim, OC had filed a motion for atty fees for frivilous litigation.) Atty sent letter stating she was withdrawing because I did not follow her guidance due to editing of the motion. Said she was keeping all monies paid to-date and the retainer paid up front. Stated she would refund all but the retainer if I would sign a form releasing her as my atty.

Just prior to receiving the withdrawing letter, I accessed the Court's website and noted there had been NO original motion filed. I asked and was told it was sent back because there was no fee attached. I asked how can we amend a motion that was never filed? Atty said because original was sent to OC it is the procedure (file an amended motion). Asked, if original motion was to stay the order to pay and it wasn't filed, aren't I now in contempt? No response! Noted atty has not filed motion to withdraw as of yet (two weeks later).

Suggestions? Do I draft letter to Court explaining and file the "amended" motion? I can't believe the state bar would think this is appropriate conduct, is a complaint justified? What is the name of your state?

[Bretagne]

You need to file your amended motion with the court and pay the appropriate fee. Probably also need to file proof of service (certificate of service) of the amended motion on the county.

Do you have a date for a motion hearing? Or are you seeking ex parte relief?

You need to pay your financial obligations until the judge signs an order saying you no longer need to pay. Service of a motion requesting a stay is not the same as a stay. Pay up before you file the amended motion, or the court won't give you much forgiveness at your hearing.

Not enough info to see if the complaint against your former attorney would be justified.

[chitown]

Thanks for your response.

"You need to file your amended motion with the court and pay the appropriate fee."

I contacted the FL Bar today and was told I could not file any doc with the Court until atty was allowed to withdraw by the Court?

"Do you have a date for a motion hearing? Or are you seeking ex parte relief?"

NO, evidentiary hearing must be scheduled to determine the validity of the motion and whether Judge will allow further proceedings. Since motion was not filed I am assuming the Judge has no knowledge of the motion and accordingly no evidentiary hearing was scheduled by my non motion filing atty.

I currently do not have the funds to pay the amounts ordered (Monies were instead used for the non motion filing atty's monthly invoices and initial retainer.)

I requested the proper forms from the FBA to file a formal complaint against the non motion filing atty.

[Bretagne]

OK, so it sounds like your attorney needs to seek leave of court to be allowed to withdraw. That's why she's trying to get you to sign the form to release her as counsel in exchange for refunding your money.

How much will you get back if you allow her to withdraw from representing you? Might be worth it to get some money back and get a new attorney to get your motion filed rather than waiting.

You are really going to need to pay your court ordered obligations. It will bite you if you get in front of the judge and have built up arrears for non-payment.

[chitown]

Thanks again for your responses.

I will receive a little over 23% of the total monies paid to the non motion filing atty.

My concern with signing the release involves allegations of delay and frivilous litigation allegations by OC. Releasing the non motion filing atty could be twisted into appearing that I have caused a 3-4 month delay in the proceedings. Am not sure if the reasons/actions for releasing the non motion filing atty would be allowed to be raised/brought forward.

Good point about paying the monies ordered. However, in order to prevent FS from claiming the monies paid to her are not available to be refunded (if ordered and will be months until clarified) and to avoid a garnishment order request, I am going to explore placing the monies in the Court Registry until formally resolved. Will that appease the Court, you think?

At any rate, thanks again for your posts.

[chitown]

Responded to non motion filing atty stating prior motions to withdraw for FS and I had taken an average of 4 business days for Hearing and Order after motion to withdraw was filed. How was a delay of 1-2 mos computed? Her response was a copy of a motion to withdraw, listing me as "pro se", no notice of service to OC and the best one**************NOT FILED with the Court!! Next day I received a notice of Hearing for scheduled date of AUGUST 28!!!! Notice was dated June 6, 2007 (same date as the non filed motion to withdraw). Again no notice of service to OC and NOT FILED with the Court!! Have checked Court website through 6-8-07 with no recording(s) indicated.

PLEASE provide a suggestion or two. How can actions/non-actions as these, by a licensed bar member, be ignored with no sanctions imposed?

Thank you in advance