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No Estate, but owes me money..help

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ltr

Junior Member
What is the name of your state? New York


I paid a (now deceased) retired attorney and owner of Brundage Publishing $4000.00 fees toward the publishing of my book and we have a signed contract. I told him that I had no money and didn't want to charge that much money if I couldn't get it back quickly. He assured me that I would have the book and double the money within 3 months. Two years later he has passed away from an illness which he knew he had when he took the money. I found he even tried to sell the business before he died, yet he never refunded my money. I called his wife who kindly told me to file a claim so that I could regain the money. She also said there was no attorney involved and the estate had not been settled.

After filing the claim in small claims court the wife hired an attorney who wrote to the court and asked for the claim to be completely dismissed since Brundage Publishing was a d/b/a for Frank Ressequie and neither one exists.

Thankfully, the judge did not dismiss, but wrote a letter stating that the case was adjourned until the lawyer forms an estate or the plaintiff makes a motion with a basis for putting the case back on the calender.

I think the judge is giving me a clue that I can put the case back on the calender, but I don't know how. When I called the attorney for the widow she said she would sue me if I tried to file a claim. I don't get it! This man took my money and the lawyer threatens to sue me!

Can someone please explain this to me and offer anyway for me to regain the money. I really appreciate any help. Thanks.
 
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Dandy Don

Senior Member
Please consult with a local probate attorney to find out how, as a creditor, you most likely should have filed a claim against the probated estate (instead of going to small claims court). If you have not already done so, check at the county courthouse to see whether there is an official probate case begun and who the attorney is and look at the complete set of documents that is in the probate file (just for your own information), but do NOT contact the estate attorney/executor about this, since they have no responsibility to act on your behalf and they are only charged with representing the interests of the estate and the surviving heirs. Most likely his estate has enough financial resources in it to be able to pay off the debt owed to you.

IF there is no estate opened up you can get one opened up (but consult your attorney about this) by filling out the paperwork as a creditor. It's hard to know right now whether she is telling the truth about an estate being "settled"--has one even been opened up yet? Maybe she is lying about that just to mislead you.

It is still possible that you may win the small claims case (you are entitled to win but I don't think the judge will rule in your favor since you should have filed a claim with the estate to begin with instead of going to small claims--but I understand that was the only way you saw to resolve the problem at that time). You will look better to the small claims court judge if you can prove you have filed a claim with the estate.

DANDY DON IN OKLAHOMA ([email protected])
 

ltr

Junior Member
Thanks so much for your reply.

When I went to the town where the business and owner was located I did go to the probate court and found nothing was opened. The attorney the widow hired since I filed my claim told the judge that the estate had not been formed yet, but even if it was she wanted it dismissed since I put the claim in his name and the company name. The small claims judge wrote back saying that he would put it on hold until the attorney notified the court upon formation of the estate or if I make a motion with a basis for putting the case back on the calender. I'm not sure how I could put it back on the calender, maybe if I knew the name of the executor? Though you said that I should not contact the executor (and the attorney threatened to counter sue me if I used the wrong name on the claim OMG!).

I will take your advice and go back to the city probate court and see about filing a claim there.

Do you have any thoughts as to what the judge meant by me making a motion to putting the case back on the calender? Thanks for your help.
 

Dandy Don

Senior Member
One reason that she may not be planning on opening up probate is that he could have put all of his assets into a trust and therefore probate may not be needed. If she has not opened up probate after 2 years, she is not likely to. It's hard to know if his estate is worth anything or if there are outstanding debt that would wipe out most of the value or not.

If you have an attorney, you may want to ask him/her to write a letter to the widow on your behalf giving her the opportunity to pay this matter outside of probate court and that if it is not paid, you will have no choice but to proceed with opening up probate. She most likely will not want probate opened up because there will be public notice about it and if there are any other unpaid creditors, they will be put on notice that they will need to file claims to be paid. If she doesn't want probate opened up she may be more inclined to go ahead and pay you what you are owed, whether you file a claim for it or not. Somehow I feel she is so mean that she won't pay and you will end up having to open up the estate to get paid.

DANDY DON IN OKLAHOMA ([email protected])
 

Dandy Don

Senior Member
You also need to get an opinion from an attorney about who you should name on any future claim. What city was Brundage Publishing located in? Did Mr. Ressequie sign your contract or was it signed by someone else with Brundage? You may want to name Mr. Ressequie's estate and forget about Brundage since it doesn't exist.
 

ltr

Junior Member
I really appreciate all of your help and will start working on your advice.

Mr. Resseguie did sign the contract himself and his home and Brundage Publishing were both in Binghamton, NY.

I would like to do as much of this myself, if I can, but I do have an attorney and I could have him write the letter for me. He is aware of this situation, but didn't think I would need him and told me to file the small claim. Obviously that hasn't worked out too well. I am driving to Binghamton on Monday because the Surrogate Court said they won't tell me over the phone if probate has been opened. And, I did hear from an author that there is at least one other person he owed, about $8000. for a book. This really stinks.
 

Dandy Don

Senior Member
You must be prepared to face the reality that perhaps he did not have enough assets left in his estate to be able to pay off debts and perhaps that is the reason that probate was not filed.

However, if you are able to get this estate opened up, as personal representative you or your attorney will have legal authority to order copies of his state and federal tax returns for current and past years, and perhaps they will give clues to his assets (income, dividend statements from stocks and bonds if he owned any, etc.). I'm somehow hoping that this will turn out to be a good outcome for you in getting paid what you are owed!
 

ltr

Junior Member
Thanks for all your help and your hope for a good outcome. I will try to be optimistic!
 

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