Question regarding motion for discovery

[Ummonx]

What is the name of your state?NY

we are embroiled in a nasty family fight. our two mildly mentally disabled uncles recinded POA from their sister and gave it to their niece. Since then the niece has found some pretty hard evidence of embezzlement from the uncles.

The matter at hand is, The uncles now are trying to evict thier sisters son from their house whom has paid no rent in 8 years. The sister and her son have launched a lawsuit alleging unjust enrichment, intent ot defraud, and defamation. The defendants are trying to get the eviction and the lawsuit joined.

At the most recent hearing the defendant asked for a continuance and a motion for discovery in which he intended to demand to see the will of the uncles. (The sister and her son at one time were left everything, this has now changed). The Judge granted the continuance.

Now my questions
1) It was my impression that no one has any right to see a will of a living person and a person has the right leave whatever to whomever. Am I correct?

2) if #1 is true then why would the judge issue a continuance

3) what constitues Unjust enrichment and would any of this be offset by the nonpayment of rent for 8 years.

4) Is Unjust enrichment grounds for holding up eviction proceedings?

Thank you all

 

[rmet4nzkx]

You have too many threads started all related to the same question. It is easier to combine the threads so that we can give you the best advice. Please take this and copy it onto the one you asked about libel and copy that and add it to the one about the POA and delete the 2 new ones then it will make sense. As it is it is hard to tell who is who.

 

[Ummonx]

didn't want to cross post in different forums. plus I am pretty sure that the defamation charge is garbage. I'll delete the defemation and add it to this thread. The POA question has been answered since we were already served with the lawsuit. I was trying to figure out how they were going to come at us.

 

[Ummonx]

Here is the question from the defamation Forum. Thanks to CBQ for answering

We suspect a former POA of an uncle embezzled money from him. Actually we have quite a bit of evidence including checks and nonpaid loans. We wrote to the district attorney to report the crime.

To make a long story short. the former POA and her son are now sueing us for defamation. couple of quick questions

1) since we were reporting a suspected crime are we protected in a defamation lawsuit if we had reasonable cause to report it? (meaning it wasn't arbitrary, we do have backup, though criminally it might be tough to prove)

2) what would we have to show to get the lawsuit thrown out

 

[rmet4nzkx]

didn't want to cross post in different forums. plus I am pretty sure that the defamation charge is garbage. I'll delete the defemation and add it to this thread. The POA question has been answered since we were already served with the lawsuit. I was trying to figure out how they were going to come at us.

That's why they should all be together.
most people us the "new posts" option on the toolbar so it's ok to put it all together, then we will see what has happened rather have to go and look it up or you repeat the whole story agin and again

 

[Ummonx]

ok, thanks I will keep that in mind. This thing is going to go on for a Looong time. any answers would be appreciated.

 

[stephenk]

first tell us what your uncles' attorney said when asked the same questions.

 

[Ummonx]

We have a meeting with them this week where I will ask the same questions. I am just trying to help them right now, I am not named in the lawsuit. Unfortunatly the uncles and thier POA are not very law savy. I have some background so I am trying to help them any way I can. Besides, I love this stuff (should have been a lawyer) I love to learn as much as I can.

In addition, since we are on the third continuance on the eviction, plus the motion of discovery I am wondering if their lawyer is not being agressive enough. I am trying to get a feel if the motion of discovery is something thats is usually granted in a case like this or is it something rare.

also if there is any online law library you could point me to, I would be glad to do my own research.

Thanks again

 

[Ummonx]

update and questions..

Well we couldn't meet with the lawyer this week. we will try for next. as for the other things. Hope some of this may help other people.

Defamation - the answer I got from my research and asking around is that it would be extremely hard to prove, especially if you were reporting a crime in resonably good faith.

Conspiracy to commit fraud. - The former POA's son has argued that the present POA and camp conspired to wait until he did work to the house and then evict him. It appears that the son did the all of the work to the home at least a year before the present POA has taken over. Since the POA change was prompted by the son's father dieing of a sudden heart attack, I would think they would be hard pressed to prove conspiracy or fraud.

Unjust enrichment - They may have something here and to tell you the truth none of us would be against paying them a fair amount. They apparently aren't in a negotiating mood.

Couple of questions, to those who would be so kind to answer

1) I havent found a decent answer online to the question if the 8 years of free rent could be used to offset the unjust enrichment.

2) This is taking place in a 1 horse town with exactly two judges. The judge that ruled for the continuance and is considering joining the lawsuit and the eviction is apparently buddy buddy with the eviction defendant's father inlaw who sits on the town board. He also has to deal with him professionally (zoning issues). While I would have to assume accusing any judge of favoritism would be suicide, would asking for a change in venue be offencive?
or would any of you just suggest taking our chances.

3) The motion of discovery for the will ruling still troubles me. Is an agreement (written or verbal) such as

I do "A" and you leave it to me in your will

is that legal? I am wondering if they will argue that the understanding was that the son fix upkeep the home in return for it in the will.

Thank you all in advance.

 

[rmet4nzkx]

This is complex and it appears that while you are making an issue of the POA's, the real issue is that the 2 uncles are still competant. They made an agreememt or a contract with the son of the POA, who in good faith was allowed to be the caretaker for the property and to improve the property, in exchange for something in the future and it is acknowledged that he did this in good faith at least 1 year prior to the changing of POA's and there was no conspiracy. The 2 uncles never objected to this arrangement which would make this contract estoppeled by word or conduct, until something else happened causing them to change POA's, default on that contract and suddenly, 2 competent but admittedly mentally impaired parties, change their minds, WHY?. Is this without undue influence? People usually decline as they age, so their competence and undue influence by the new POA is going to be raised. Now, they suddenly want to evict the person who kept the contract?

There is something wrong with this picture and maybe not what you want to hear. From what you have stated it seems that since there was no neglect and no conspiracy there may be more of a case of undue infuence on the part of the new POA than fault of the former and perhaps a neutral POA or guardian might serve the interests of the uncles better than interested family members.

 

[Ummonx]

rmet, thank you for your answer,

There are two sides to every story, I appreciate your Point of view.

The change in POA and subsiquent change in thier views were from a number of factors. Little of it has much to do with the law. since you asked I will share.

a) when the uncles mother died, POA was issued to their half brother and his 2nd wife.

b) The uncles were living in thier house, It was ask of them by thier former POA that they (8 years ago) they move out and the son and family move in. The uncles moved to a small apt in another building that they owned.

c) work was done, kitchen was remodeled, a garage built on the premises and a new well was put in. They were paid for by the following
well - uncles
kitchen - split
garage - son (I think)

d) when thier half brother died, the uncles asked my mother inlaw and her sister to take POA since they didn't like thier half brothers 2nd wife

e) When the account were recieved there was a small amount of money in thier accounts in spite of having a generous pension, rental property and social security.

f) upon opening the books, in the past 5 years (thats all we were given). we found

- multiple life insurance policies that the uncles were paying for but did not know exist
- multiple payments for the former POA's car
- multiple payments for the former POA's car insurance
- donations to the former POA's church
- two mortgages taken out on thier property which the uncles paid back. One the former POA paid themselves 33% of the mortgage as a finders fee the other, we have yet to find out what it was used for.
- multiple loans marked "LOANS" to the former POA's son that appear never to be paid back
- One loan which was "paid back" with monies withdrawn from thier account.
- this is all in addition to payment made to the former POA.

These have been reviewed by a lawyer and an accountant. they concurred.

g) The uncles also expressed interest in moving back into their house which they maintain they never wanted to move out of.

I would have to argue that if the above could be proved (and it can) it would constitue elder abuse. upon reviewing this with thier lawyer the uncles then decided on thier change in direction

I agree with you though perhaps a third party POA is in everyone's best interest. Unfortunatly the uncles dont do well with strangers.

again, thanks for your interest. If anyone could shed light on my specific questions it would be much appreciated.

 

[rmet4nzkx]

This is more information.
How much of the mismanagement of funds was done by the deceased half-brother who was the POA?

It may be elder abuse but sorting it out may be difficult, again a neutral POA would have made a difference.

 

[Ummonx]

all of it was done by him or his wife, She was POA. so technically she is responsible. but it was both of them and her son. We have contacted a DA. unfortuatly they have expressed doubts of prosecuting since she is 85 and well connected in the town. We may go to the next county where I have some influence.

quick question, can you even request a change of venue in a eviction case?

 

[rmet4nzkx]

all of it was done by him or his wife, She was POA. so technically she is responsible. but it was both of them and her son. We have contacted a DA. unfortuatly they have expressed doubts of prosecuting since she is 85 and well connected in the town. We may go to the next county where I have some influence.

quick question, can you even request a change of venue in a eviction case?

No the half-brother and his wife were POA together and after he died someone didn't like her and then decided to change things, apparently they didn't have a problem while the half-brother was POA, you can't prosecute a dead man, sure you can his widow. His widow is 85 years old, that won't fly in the other county either that is why the DA isn't taking it, how old are the uncles?

You need to step back and look at what has happened, remember it is family. In these situations families often haven't planned ahead for the declining years for impaired relatives then there is chaos and hurt feelings. How much is all this going to cost for attorneys, what will be left. Is it really in the best interest to move the uncles again no matter what they want today? What will it be tomorrow.

 

[Ummonx]

uncles are in thier 60's,

your probably right about the DA, But I have an In in the next county. it is worth it to move forward with the eviction. if just to get the guys back in thier house. One of them is on a walker, with a two flight walkup. bottom line is they want thier house back.

You have to remember these guys have maybe a 6th grade education. they were told what to do, they were told that no one in the family wanted anything to do with them. the half brother and crew was all they had.

As for the money, its gone, The family is a moot issue, the defendants have had a long history of this. if they never speak to any of us again it would probably be a blessing. As I said no one would be against compensating fairly for the improvements to the house.

The bigger issue is that defendants always "assumed" they would get all of the uncles assets. and now the gravy train has halted they are trying doing thier best to try to sieze whatever they can get thier hands on.

again I am concerned about the ruling of the judge. and the venue issue, if only to get them a fair shake.