James Dawson
Junior Member
South Carolina
Gentlemen,
"To recover for an attorney's malpractice, your malpractice lawyer will generally have to prove that you would have prevailed in the matter but for the attorney's malpractice. This sets up a two-fold inquiry -- first that malpractice occurred and second that you would have been successful in the matter had the malpractice not occurred."
Based upon this statement I believe I have a case for malpractice but I am unsure as to its legal validty and how to proceed should that assesment be correct. I respectfully ask for you assistance.
In May of 2001, I was contacted by the bank holding both my first and second mortgage informing I was in arrears. I explained that my father was in the hospital dying of cancer and I would send all documentation proving my status as being current. The following day a representative called and informed her of my father passing, the scheduling of his funeral on saturday and my intent to address the matter on Tuesday as Monday was Memorial Day.
On Sunday morning at 8:30am, a represeentative from the bank called reaching my elderly mother who she berated from nearly an hour before I discovered the call and brought it to an end. On Tuesday the bank caled and spoke with me and repeated the same threats insisting foreclosure would be filed in ten days.
I contacted a family friend for whom I clerked in college who sent me to a fellow attorney. I explained the situation, provided documentation of payments and explained that previous problems had occured with this bank which they admitted was a problem with their accounting software.
The attorney insisted I had no other choice then file Chapter 13. The unitended result of Chapter 13 is that it cut off all financial for my company and many clients company policy dictated they could not do business with a company with a principal in bankrutpcy, even reorganization.
Unable to continue, I was forced to close my business and unable to find employment I could not keep up with the payments to the court as dictated by the Chapter 13. The attorney filed another motion explaing this would delay matters and buy me sometime to find a new place to live. At this point my legal fees totaled $5000.
The attorney insisted nothing could be done, foreclosure was inevitable. I presented him with an opinion form the FTC concerning the banks violation of the FDCA, as well as a response from the Ohio State Attorney General indicating their interest in persuing charges against the bank as this was not an isolated case. I even presented a letter from the President of the bank apologizing for the numerous accounting errors that all customers had been forced to endure.
Still he insisted nothing could be done. In fact, there was nothign he could or would do. I, on the other hand facing eviction and the probablity of being homeless, as well as that of my mother took action.
I arranged a reverse mortgage with the plan of transfering full ownership to my mother and a seocnd mortgage to cover the difference between those proceeds and the principal on the first mortgage.
I then wrote the CEO of the bank, explained my difficulties, my willingness to file suit if neccessary but suggested an alternative-an out of court settlement. If the bank would accept the principal and forgive all other debts including legal fees and the entire second mortgage I would not file suit against the bank.
They accepted in 48 hours and at closing the "missing payments" were discovered in an "undeposited funds" account of the bank.
If I could do all of this, why couldn't my attorney? Was Chapter 13 the only course of action or the course of action simply most expediant and profitable for him? Does this constitute malpractice?
Because of the Chapter 13 filing my business is gone and my income serverely dminished, my credit is ruined, and both my mother and myslef has experience extreme emotional distress.
I kook forward to your reply and thank you for your time and assistance in this matter.
Sincerely,
James T. Dawson
Gentlemen,
"To recover for an attorney's malpractice, your malpractice lawyer will generally have to prove that you would have prevailed in the matter but for the attorney's malpractice. This sets up a two-fold inquiry -- first that malpractice occurred and second that you would have been successful in the matter had the malpractice not occurred."
Based upon this statement I believe I have a case for malpractice but I am unsure as to its legal validty and how to proceed should that assesment be correct. I respectfully ask for you assistance.
In May of 2001, I was contacted by the bank holding both my first and second mortgage informing I was in arrears. I explained that my father was in the hospital dying of cancer and I would send all documentation proving my status as being current. The following day a representative called and informed her of my father passing, the scheduling of his funeral on saturday and my intent to address the matter on Tuesday as Monday was Memorial Day.
On Sunday morning at 8:30am, a represeentative from the bank called reaching my elderly mother who she berated from nearly an hour before I discovered the call and brought it to an end. On Tuesday the bank caled and spoke with me and repeated the same threats insisting foreclosure would be filed in ten days.
I contacted a family friend for whom I clerked in college who sent me to a fellow attorney. I explained the situation, provided documentation of payments and explained that previous problems had occured with this bank which they admitted was a problem with their accounting software.
The attorney insisted I had no other choice then file Chapter 13. The unitended result of Chapter 13 is that it cut off all financial for my company and many clients company policy dictated they could not do business with a company with a principal in bankrutpcy, even reorganization.
Unable to continue, I was forced to close my business and unable to find employment I could not keep up with the payments to the court as dictated by the Chapter 13. The attorney filed another motion explaing this would delay matters and buy me sometime to find a new place to live. At this point my legal fees totaled $5000.
The attorney insisted nothing could be done, foreclosure was inevitable. I presented him with an opinion form the FTC concerning the banks violation of the FDCA, as well as a response from the Ohio State Attorney General indicating their interest in persuing charges against the bank as this was not an isolated case. I even presented a letter from the President of the bank apologizing for the numerous accounting errors that all customers had been forced to endure.
Still he insisted nothing could be done. In fact, there was nothign he could or would do. I, on the other hand facing eviction and the probablity of being homeless, as well as that of my mother took action.
I arranged a reverse mortgage with the plan of transfering full ownership to my mother and a seocnd mortgage to cover the difference between those proceeds and the principal on the first mortgage.
I then wrote the CEO of the bank, explained my difficulties, my willingness to file suit if neccessary but suggested an alternative-an out of court settlement. If the bank would accept the principal and forgive all other debts including legal fees and the entire second mortgage I would not file suit against the bank.
They accepted in 48 hours and at closing the "missing payments" were discovered in an "undeposited funds" account of the bank.
If I could do all of this, why couldn't my attorney? Was Chapter 13 the only course of action or the course of action simply most expediant and profitable for him? Does this constitute malpractice?
Because of the Chapter 13 filing my business is gone and my income serverely dminished, my credit is ruined, and both my mother and myslef has experience extreme emotional distress.
I kook forward to your reply and thank you for your time and assistance in this matter.
Sincerely,
James T. Dawson
