What can be done with fraudulent attorney?
October 2, 2012 12:32 AM   Subscribe

This is happening in California. I am helping a friend find his way through a legal morass. He hired an attorney who came highly recommended by two acquaintances. His attorney agreed to sue a mortgage bank for fraud, prevent foreclosure, make a new loan workout, and sue for other damages (incredible emotional distress). Unfortunately, the attorney has completely flaked; committed multiple no-shows (fined four times by the judge and referred by judge to State Bar for sanction); and my friend's case was actually dismissed by the judge for the last no-show, only to be reversed by the judge because my friend accidentally happened to be in court that day to watch his proceeding, and pleaded for a continuance. The judge in this case even suggested my friend get another attorney, as she (the judge) reversed the dismissal.

The attorney has also turned out to be incredibly unethical; she never returned calls (only three calls in 16 months), and is extremely elusive. She (the attorney) also revealed some details of my friend's case to one of the acquaintances that recommended the attorney!

The attorney has become mostly uncommunicative, and now denies in emails that he was supposed to do anything but forestall the foreclosure. The attorney has agressively insinuated negative things about my friend, in email, and insists that she has done what she was hired to do. The attorney has not agreed to meet, in spite of multiple requests to do so.

My friend is from another country, and thought he could trust this attorney because she came recommended by known acquaintances. My friend is not a "helicopter client"; he has trusted his attorney, but has was never informed about details of the case, and has been led down a deceptive, primrose path to potentially losing his home.

1) My friend has paid all but $500.00 of a $12,000.00 retainer. He doesn't want to give this attorney another dime, but the original contract says the attorney can place a lien on my friend's house for non-payment.

2) How do we get rid of this attorney and get my friend's legal papers back? Is it possible to get the fee back from this flake attorney? Can my friend sue this attorney for damages if he loses his home - not just for the fee, but for the amount of his loss in the home, if he loses the home?

3) Is it possible, once a case like this has been started, that the plaintiff (a non-lawyer) can take on the case himself? Maybe I can help him (I'm not a lawyer). Is that advisable? My friend is attempting is a loan workout for a house that was never underwater. The incredible details of the fraud perpetrated by the mortgage bank (including a literal admission of illegal activity by one of the bank's loan officers) are all available. I was also a witness to the bank's multiple deceptions.

4) My friend is beside himself, because his home WAS sold to another bank at auction, several months ago, in spite of the promise to place an injunction against foreclosure by his lame attorney. When my friend found out about this, his attorney said, "don't worry, everything will be OK. Now the attorney is telling my friend that he will lose his case and that all she did her job by delaying the foreclosure (btw, the house is not underwater; there is a substantial of equity in the home). My friend's attorney is just plain lying. Any advice is greatly appreciated.
posted by Vibrissae to Law & Government (7 answers total) 1 user marked this as a favorite
Get another attorney stat!!! A good one this time, do some research. They can answer ALL of these questions for you.
posted by fshgrl at 12:39 AM on October 2, 2012 [2 favorites]

Wow, if I ever saw an AskMe that required a "get a lawyer" answer, this is it! Your friend needs a(nother) lawyer right away. I'm sure the trust level and the funds for legal help are pretty low, but still -- another lawyer! It's just too complicated and there's too much at stake to not get one.
posted by Houstonian at 1:00 AM on October 2, 2012

In no way should your friend proceed without a new lawyer. There's too much involved at this point, including potential malpractice.

Document everything.
Hire a new lawyer
File a complaint with the bar association
Contemplate suing the lawyer for malpractice if a satisfactory conclusion is not reached (this step only if the house is lost and/or the fee is not recovered from the original lawyer)
posted by inturnaround at 2:33 AM on October 2, 2012 [2 favorites]

IAAL, IANYL. I practice in another state and have quite a bit of foreclosure experience, so all of my opinions may not apply to certain aspects of the foreclosure.

First, if the parcel was sold at auction, I think it is gone. The purchaser is an innocent third-party, and if the sale happened several months ago, any time period for moving to set aside the sale have probably already passed. So, there is no "if he loses his home" - it is likely gone already.

The lawyer is entitled to keep the file until your friend pays in full. That is called a charging lien or retaining lien, and it is on the file itself. If your friend lawyers up, a letter or phone call from the new lawyer might give the old lawyer reason to forget about the $500 and hand over the file. However, the more likely reaction is to hold onto the file because she knows she has a pissed client, and why hand over documents when she is looking at a possible lawsuit from a disgruntled client? Does your friend have money to pay a new lawyer?

The only way your friend could sue the lawyer for damages would be a malpractice suit. These are very hard to prove, and your friend would have to show that because of the lawyer's negligence, your friend lost his house. I think that case would be a loser. The reason is that your friend lost his house because he didn't repay his loan like he was supposed to. To prevail in foreclosure, your friend would have to prove that if it weren't for the lawyer, he would still be in his house. Your friend will not be able to make that showing. The lawyer will say that your friend lost his house because he didn't repay his home loan, and the lawyer would be right.

Your friend could represent himself because he has a right to pro se representation. I don't recommend it. What is to be gained if the house is already gone? I have firsthand experience in a lot of foreclosure cases with pro se debtors. They don't tend to win because of weird theories of "fraud" and such, and they often copy and paste their arguments from the internet. All it does is annoy everyone, including the judge, and waste money. They are generally bogus cases. Your friend might have the one-in-a-thousand great case, but everyone thinks they do. Most courts see these cases as a stalling tactic to workout a refi or simply live in a house for nothing. (I have seen people live in a house for years without paying a dime). So, if all the lawyer did was delay the inevitable, she did do her job.

I would be very surprised to learn that the bank defraud your friend. Did he think he was borrowing money to buy a house? Is that what happened? If so, there's no fraud. And, the emotional damages claim is a non-starter.

I am happy to continue by MeMail if you like, but I do not think things look good for your friend based on these facts. I am frankly interested to learn of the multiple deceptions you witnessed.
posted by Tanizaki at 5:09 AM on October 2, 2012 [1 favorite]

>First, if the parcel was sold at auction, I think it is gone. The purchaser is an innocent third-party, and if the sale happened several months ago, any time period for moving to set aside the sale have probably already passed. So, there is no "if he loses his home" - it is likely gone already.

Very few foreclosed properties are truly "sold at auction". In the majority of cases, the only bidder is the holder of the note. It bids its debt and takes over ownership of the home. It hopes to sell in the future, but, hey, this is California.

The posting by the OP says that "another bank" bought the house. I have never seen that happen.

In most states, maybe in all, there is a period of redemption, during which the sale can be reversed if the total of overdue payments, costs, etc. is paid.
posted by yclipse at 5:49 AM on October 2, 2012

I am a law student (emphatically NOT a lawyer) in the Los Angeles area. My SO is an attorney and does some bankruptcy and foreclosure work. I've heard stories about messes like this.

Your friend needs another attorney. Immediately. yclipse's mention of the redmeption period and Tanizaki's comments should give you a basic idea of kinds of issues in play, although your friend should go over the details, such as the failures to appear, specific promises made to the client, etc. with a California attorney before any kind of estimate of the probability of prevailing in a malpractice suit (or obtaining a settlement) is given. Anecdotally, there's been a lot of attorney discipline for this sort of thing lately, but I don't know if that has yet translated into an uptick in successful malpractice suits.

Self-representation is not a good idea in a situation like this.
posted by snuffleupagus at 7:08 AM on October 2, 2012

I would absolutely, definitely, consult a lawyer - one who has experience with both foreclosure/mortgage law and malpractice law.
posted by insectosaurus at 8:29 AM on October 2, 2012

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