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  1. #1
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    Can I sue my ex-wife's divorce lawyer for damages from not disclosing a judgement?

    What is the name of your state (only U.S. law)? Illinois

    Hello,

    My question is, do I have standing to sue my ex wife's divorce attorney for not disclosing that she was sued and had a judgement entered during our divorce?

    Background...:

    During our divorce my ex-wife was sued over a credit card balance and a judgement was entered against her. The card was just in my ex's name. The lawsuit went fast. It was filed towards the end of our divorce; she was served, never showed up, and a default judgement was entered against her a few weeks before our divorce was finalized.

    In Illinois, a civil judgment places a lien against real property. So I never knew about this lien. We owned a house together, and I was allowed to live in it until it was sold. Because the housing market was so bad I stayed for several years. When I was ready to put it on the market I did a search for any mechanics liens... and that was when I found out about this judgement.

    I didn't realize that judgements automatically created liens against real property in Illinois. Surprisingly, neither did most real estate lawyers I spoke to. I suppose homeowners in these situations usually file bankruptcy, making the lien a non-issue. Or they remain married, and its also a non-issue (TBE ownership defeats a judgement lien in Illinois).

    Anyways, I didn't have any of that legal knowledge about liens back then, and spent money on legal fees to consult with various lawyers over the course of many months to find out if there was some way to short sell the house. The house recently went back to the bank and I'm living somewhere else.

    In Illinois during a divorce I believe both sides must disclose a material change in financial circumstances, including legal proceedings. I know my lawyer was all over me about staying current with opposing counsel on these things. My ex's attorney should have told us about the lawsuit against my ex. I can't ask my divorce attorney about any of this; he was a sole practitioner and sadly he died young a few years ago.

    Do I have standing to sue my ex's attorney? My damages would be for legal fees spent to fruitlessly learn I couldn't short sell my house; and for fees spent during my divorce regarding disposition of the house - those alone are probably a couple of thousand dollars. Thanks in advance.


  2. #2
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    Quote Originally Posted by mofa88 View Post
    What is the name of your state (only U.S. law)? Illinois

    Hello,

    My question is, do I have standing to sue my ex wife's divorce attorney for not disclosing that she was sued and had a judgement entered during our divorce?

    Background...:

    During our divorce my ex-wife was sued over a credit card balance and a judgement was entered against her. The card was just in my ex's name. The lawsuit went fast. It was filed towards the end of our divorce; she was served, never showed up, and a default judgement was entered against her a few weeks before our divorce was finalized.

    In Illinois, a civil judgment places a lien against real property. So I never knew about this lien. We owned a house together, and I was allowed to live in it until it was sold. Because the housing market was so bad I stayed for several years. When I was ready to put it on the market I did a search for any mechanics liens... and that was when I found out about this judgement.

    I didn't realize that judgements automatically created liens against real property in Illinois. Surprisingly, neither did most real estate lawyers I spoke to. I suppose homeowners in these situations usually file bankruptcy, making the lien a non-issue. Or they remain married, and its also a non-issue (TBE ownership defeats a judgement lien in Illinois).

    Anyways, I didn't have any of that legal knowledge about liens back then, and spent money on legal fees to consult with various lawyers over the course of many months to find out if there was some way to short sell the house. The house recently went back to the bank and I'm living somewhere else.

    In Illinois during a divorce I believe both sides must disclose a material change in financial circumstances, including legal proceedings. I know my lawyer was all over me about staying current with opposing counsel on these things. My ex's attorney should have told us about the lawsuit against my ex. I can't ask my divorce attorney about any of this; he was a sole practitioner and sadly he died young a few years ago.

    Do I have standing to sue my ex's attorney? My damages would be for legal fees spent to fruitlessly learn I couldn't short sell my house; and for fees spent during my divorce regarding disposition of the house - those alone are probably a couple of thousand dollars. Thanks in advance.
    Simple answer: No.


    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.
  3. #3
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    Quote Originally Posted by mofa88 View Post
    What is the name of your state (only U.S. law)? Illinois

    Hello,

    My question is, do I have standing to sue my ex wife's divorce attorney for not disclosing that she was sued and had a judgement entered during our divorce?

    Background...:

    During our divorce my ex-wife was sued over a credit card balance and a judgement was entered against her. The card was just in my ex's name. The lawsuit went fast. It was filed towards the end of our divorce; she was served, never showed up, and a default judgement was entered against her a few weeks before our divorce was finalized.

    In Illinois, a civil judgment places a lien against real property. So I never knew about this lien. We owned a house together, and I was allowed to live in it until it was sold. Because the housing market was so bad I stayed for several years. When I was ready to put it on the market I did a search for any mechanics liens... and that was when I found out about this judgement.

    I didn't realize that judgements automatically created liens against real property in Illinois. Surprisingly, neither did most real estate lawyers I spoke to. I suppose homeowners in these situations usually file bankruptcy, making the lien a non-issue. Or they remain married, and its also a non-issue (TBE ownership defeats a judgement lien in Illinois).

    Anyways, I didn't have any of that legal knowledge about liens back then, and spent money on legal fees to consult with various lawyers over the course of many months to find out if there was some way to short sell the house. The house recently went back to the bank and I'm living somewhere else.

    In Illinois during a divorce I believe both sides must disclose a material change in financial circumstances, including legal proceedings. I know my lawyer was all over me about staying current with opposing counsel on these things. My ex's attorney should have told us about the lawsuit against my ex. I can't ask my divorce attorney about any of this; he was a sole practitioner and sadly he died young a few years ago.

    Do I have standing to sue my ex's attorney? My damages would be for legal fees spent to fruitlessly learn I couldn't short sell my house; and for fees spent during my divorce regarding disposition of the house - those alone are probably a couple of thousand dollars. Thanks in advance.
    No, you have zero standing to sue your ex's attorney. You might possibly have standing to file for contempt against your ex if you suffered actual financial damages from the situation with the house. It all depends on how the divorce decree and marital settlement agreements were worded. Consult a local attorney who can review your original divorce decree and marital settlement agreement and go from there.


  4. #4
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    Quote Originally Posted by mofa88 View Post
    What is the name of your state (only U.S. law)? Illinois

    Hello,

    My question is, do I have standing to sue my ex wife's divorce attorney for not disclosing that she was sued and had a judgement entered during our divorce?

    Background...:

    During our divorce my ex-wife was sued over a credit card balance and a judgement was entered against her. The card was just in my ex's name. The lawsuit went fast. It was filed towards the end of our divorce; she was served, never showed up, and a default judgement was entered against her a few weeks before our divorce was finalized.

    In Illinois, a civil judgment places a lien against real property. So I never knew about this lien. We owned a house together, and I was allowed to live in it until it was sold. Because the housing market was so bad I stayed for several years. When I was ready to put it on the market I did a search for any mechanics liens... and that was when I found out about this judgement.

    I didn't realize that judgements automatically created liens against real property in Illinois. Surprisingly, neither did most real estate lawyers I spoke to. I suppose homeowners in these situations usually file bankruptcy, making the lien a non-issue. Or they remain married, and its also a non-issue (TBE ownership defeats a judgement lien in Illinois).

    Anyways, I didn't have any of that legal knowledge about liens back then, and spent money on legal fees to consult with various lawyers over the course of many months to find out if there was some way to short sell the house. The house recently went back to the bank and I'm living somewhere else.

    In Illinois during a divorce I believe both sides must disclose a material change in financial circumstances, including legal proceedings. I know my lawyer was all over me about staying current with opposing counsel on these things. My ex's attorney should have told us about the lawsuit against my ex. I can't ask my divorce attorney about any of this; he was a sole practitioner and sadly he died young a few years ago.

    Do I have standing to sue my ex's attorney? My damages would be for legal fees spent to fruitlessly learn I couldn't short sell my house; and for fees spent during my divorce regarding disposition of the house - those alone are probably a couple of thousand dollars. Thanks in advance.
    How long ago did all of this happen and how long ago did you learn of the judgment lien?

    The failure to disclose relevant financial information at the time of the divorce seems to me to be a problem - but not one that could necessarily lead to a lawsuit against the attorney. More needs to be known.


  5. #5
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    What's the timeline here?


  6. #6
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    In Illinois, there is a two year statute of limitations, from the date of discovering the cause of action, for filing an attorney malpractice claim - but the period of repose bars all claims if not filed within six years of the attorney's acts or omissions (although fraudulent concealment can toll the SOL and repose).

    There is not only a question as to whether the ex-wife's attorney owed a duty of care to the ex-husband, a non-client, but a question as to how much the attorney knew. It can be incorrect to say that the ex-husband has no standing to sue the ex-wife's attorney without knowing more.

    Again, more facts would be nice - or, better, mofa88 should seek out the help of an attorney in his area of Illinois for a personal review of the facts.


    Last edited by quincy; 05-01-2016 at 08:35 PM.
  7. #7
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    Quote Originally Posted by quincy View Post
    In Illinois, there is a two year statute of limitations, from the date of discovering the cause of action, for filing an attorney malpractice claim - but the period of repose bars all claims if not filed within six years of the attorney's acts or omissions (although fraudulent concealment can toll the SOL and repose).

    There is not only a question as to whether the ex-wife's attorney owed a duty of care to the ex-husband, a non-client, but a question as to how much the attorney knew. It can be incorrect to say that the ex-husband has no standing to sue the ex-wife's attorney without knowing more.

    Again, more facts would be nice - or, better, mofa88 should seek out the help of an attorney in his area of Illinois for a personal review of the facts.
    The OP should seek out the help of an attorney regarding filing an action for "professional malpractice" against his ex-wife's lawyer?!


  8. #8
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    Quote Originally Posted by latigo View Post
    The OP should seek out the help of an attorney regarding filing an action for "professional malpractice" against his ex-wife's lawyer?!
    That is what I said, isn't it?


  9. #9
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    Quote Originally Posted by quincy View Post
    That is what I said, isn't it?
    You are wrong. The only thing he could possibly do is report this to the bar as an ethics violation -- but that won't go anywhere unless there is evidence that the attorney KNEW about the judgment lien and said nothing.


    Parents should remember 3 things: Love your kids more than you hate your ex; when you have children the relationship with the other parent is until death; your children determine what type of nursing home you end up in.
    Nothing stated by me should be taken as giving you legal advice or forming an attorney/client relationship.

    Attorney-GAL in Ohio.

    I've removed the knife from my back, polished it, and will one day return it -- long after you think I have forgotten.
  10. #10
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    Quote Originally Posted by Ohiogal View Post
    You are wrong. The only thing he could possibly do is report this to the bar as an ethics violation -- but that won't go anywhere unless there is evidence that the attorney KNEW about the judgment lien and said nothing.
    I think that Quincy's post needs to be read & considered in its entirety. Quincy is saying that the OP likely doesn't have a cause of action, but, without a thorough review of all of the facts by a local attorney, there is no way someone can know for sure.


  11. #11
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    Quote Originally Posted by Zigner View Post
    I think that Quincy's post needs to be read & considered in its entirety. Quincy is saying that the OP likely doesn't have a cause of action, but, without a thorough review of all of the facts by a local attorney, there is no way someone can know for sure.
    Quincy is using the term "malpractice" in a situation where the attorney was not representing the person. Malpractice can only be committed against an actual client.


  12. #12
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    Quote Originally Posted by LdiJ View Post
    Quincy is using the term "malpractice" in a situation where the attorney was not representing the person. Malpractice can only be committed against an actual client.
    Fair enough...


  13. #13
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    Quote Originally Posted by LdiJ View Post
    Quincy is using the term "malpractice" in a situation where the attorney was not representing the person. Malpractice can only be committed against an actual client.
    No, LdiJ. This is wrong. And that is what I was trying to correct in your earlier post.

    Attorneys can in fact be sued by a non-client for malpractice.

    It used to be that attorneys were protected from claims filed against them by non-clients, thanks to the doctrine of privity. A privity of contract is a relationship between the parties to a contract that allows them to sue each other but prevents a third party from doing so.

    This protection from suit by a third-party is no longer the case in Illinois or in many other states. Whether a malpractice claim can be filed against an attorney by a non-client can depend on if the attorney owed a duty of care to the non-client.

    From Pelham v. Griesheimer, 440 NE 2d 96, Ill. Sup. Ct. 1982, the Court said: "We consider that privity is not an indispensable prerequisite to establishing a duty of care between a nonclient and an attorney in a suit for legal malpractice ... The trend in tort law has been to abolish privity of contract (Rozny v. Marmul (1969), 43 Ill. 2d 54) as a prerequisite to establishing a duty."

    See also: Greycas, Inc. v. Proud, 826 F. 2d 1560, Court of Appeals, 7th Circuit, 1987, where the Court said that, in Pelham: "[T]he Supreme Court of Illinois discarded the old common law requirement of privity of contract for professional malpractice; so now it is possible for someone who is not the lawyer's (or other professional's) client to sue him for malpractice."

    Is what has been described here likely to support a malpractice suit against the ex-wife's attorney? I have no idea. It depends on far more facts than we have been given. It is probably unlikely ... but I would not want to rule out the possibility without knowing more.


    Last edited by quincy; 05-02-2016 at 12:08 PM.
  14. #14
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    I still agree with ohiogal.
    Greycas, Inc. v. Proud, 826 F. 2d 1560, Court of Appeals, 7th Circuit, 1987 (Emphasis mine: )
    Proud is undoubtedly correct in arguing that a lawyer has no general duty of care toward his
    adversary's client; it would be a considerable and, as it seems to us, an undesirable novelty to
    hold that every bit of sharp dealing by a lawyer gives rise to prima facie tort liability to the
    opposing party in the lawsuit or negotiation. The tort of malpractice normally refers to a
    lawyer's careless or otherwise wrongful conduct toward his own client. Proud argues that
    Crawford rather than Greycas was his client, and although this is not so clear as Proud
    supposes � another characterization of the transaction is that Crawford undertook to obtain a
    lawyer for Greycas in the loan transaction � we shall assume for purposes of discussion that
    Greycas was not Proud's client.
    Therefore if malpractice just meant carelessness or other misconduct toward one's own client,
    Proud would not be liable for malpractice to Greycas. But in Pelham v. Griesheimer, 92 Ill.2d
    13, 64 Ill.Dec. 544, 440 N.E.2d 96 (1982), the Supreme Court of Illinois discarded the old
    common law requirement of privity of contract for professional malpractice; so now it is
    possible for someone who is not the lawyer's (or other professional's) client to sue him for malpractice. The court in Pelham was worried, though, about the possibility of a lawyer's
    being held liable "to an unlimited and unknown number of potential plaintiffs," id. at 20, 64
    Ill.Dec. at 547, 440 N.E.2d at 99, so it added that "for a nonclient to succeed in a negligence
    action against an attorney, he must prove that the primary purpose and intent of the attorneyclient
    relationship itself was to benefit or influence the third party,
    " id. at 21, 64 Ill.Dec. at 548,
    440 N.E.2d at 100. That, however, describes this case exactly. Crawford hired Proud not only
    for the primary purpose, but for the sole purpose, of influencing Greycas to make Crawford a
    loan. The case is much like Brumley v. Touche, Ross & Co., 139 Ill.App.3d 831, 836, 93
    Ill.Dec. 816, 819-20, 487 N.E.2d 641, 644-45 (1985), where a complaint that an accounting firm
    had negligently prepared an audit report that the firm knew would be shown to an investor in the
    audited corporation and relied on by that investor was held to state a claim for professional malpractice. In Conroy v. Andeck Resources '81 Year-End Ltd., 137 Ill.App.3d 375, 389-91, 92
    Ill.Dec. 10, 21-22, 484 N.E.2d 525, 536-37 (1985), in contrast, a law firm that represented an
    offeror of securities was held not to have any duty of care to investors. The representation was
    not intended for the benefit of investors. Their reliance on the law firm's using due care in the
    services it provided in connection with the offer was not invited. Cf. Barker v. Henderson,
    Franklin, Starnes & Holt, 797 F.2d 490, 497 (7th Cir.1986).
    I have seen it with beneficiaries claiming a trust/will/estate plan was wrong and others like third party beneficiary type issues. For an opponent in litigation? For a purported lack of disclosure?

    I think the remedy is with the court if he feels the other side had to disclose something in the divorce litigation they did not.


  15. #15
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    Quote Originally Posted by tranquility View Post
    I still agree with ohiogal.
    Greycas, Inc. v. Proud, 826 F. 2d 1560, Court of Appeals, 7th Circuit, 1987 (Emphasis mine: )


    I have seen it with beneficiaries claiming a trust/will/estate plan was wrong and others like third party beneficiary type issues. For an opponent in litigation? For a purported lack of disclosure?

    I think the remedy is with the court if he feels the other side had to disclose something in the divorce litigation they did not.
    I think that there is not nearly enough information given to give any definitive answer.

    Clearly a statement like "malpractice can only be committed against an actual client" is wrong. And saying that "the only thing he could possibly do is report this to the bar as an ethics violation" is assuming facts that we have not been given.

    Given what you bolded, how do we know that the proceeds from the sale of the house were not in some way instrumental in the parties forming an agreement? How do we know that mofa88 was not influenced by his ex-wife and her attorney into agreeing to an "equity-in-house in exchange for other property" deal, where the judgment lien would have played a role? We don't.

    Again, I believe there is reason for mofa88 to see an attorney in his area for a review of the situation, this to determine if there is any legal action worth pursuing, whether it be a malpractice claim against the ex-wife's attorney or something entirely different.


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