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The forgetful lawyer: Is it malpractice, or just a pain?

By Ilyce Glink,

A few years ago, I hired a lawyer to collect money from a deadbeat renter. He handled the case badly and let it drag on forever.

The renter moved to Massachusetts, where it is apparently very hard to collect on a judgment. I finally found a collection agency and tried to collect, but they had no luck and the guy moved again.

The collection agency claims that the deadbeat renter went “underground” and could not find him.

Before the judgment, when I hadn’t heard from the lawyer for some time, I called to find out whether there was any progress, and he admitted that he had forgotten about us. At this point, I have just about given up on collecting from the renter, but is there any way I can go after the lawyer for the fees I paid him? He clearly didn’t do the job and has admitted forgetting about us.

I’m sorry that you haven’t had any luck collecting from your deadbeat renter. A lot of people have suffered severe financial harm during this recession and have had to leave town when they couldn’t afford to pay their bills.

There are a couple of things you can do. The first is to request that the lawyer return the money you paid him. If he is honest and believes that you were harmed by his actions, he might decide to return the fees. But, if you were not harmed by him and he was able to obtain a judgment against the renter, you might not have much of a claim against the lawyer. Although his actions might have delayed your case, you might not be better or worse off because of it.

The key is whether the lawyer committed malpractice in his representation in your case. If he filed all the right forms and did not miss deadlines but the case was delayed because of his timing, you might not have a case. But if he failed to file the case on time, missed deadlines or otherwise was negligent in representing your case, you can file a complaint against the lawyer for malpractice with the state attorney disciplinary board.

Even though the lawyer said that he had forgotten about you, the real issue is whether you were harmed by his forgetfulness. The lawyer was able to obtain a judgment against the renter. Had he not forgotten about you and had you gotten the judgment any earlier, would you have collected money? If the debtor did not pay you then and does not pay you now, it might not be something for which this lawyer should bear the risk.

Keep in mind that you have to decide before filing suit whether the costs of the suit will outweigh the return that you might receive and whether you will be able to recover money if you receive a judgment. Some people think that once they sue someone and receive a judgment, the debtor will automatically pay. Unfortunately, that’s not the case. In some cases, trying to collect the debt might cost more than what you might be owed.

Whether the state disciplinary board agrees with you will be another story. But if he missed deadlines, it should get involved. If he did not miss deadlines, the board might view your case as a fee dispute and might not look into it in great detail.

You should look over your case and decide whether to ask the lawyer to return the fees, to file a complaint or to do nothing.

I own an investment house in a limited liability company with a business partner. We are each 100 percent guarantors on the house loan.

The loan is only 16 days past due (it’s never been more than 30 days late, and we usually pay on time), yet the bank that just took over our original lender (which failed) has listed our property in the foreclosure section of the paper.

We have left several messages to try to speak with a loan officer with the bank because we are running out of cash. But we have yet to hear back from anyone at the old bank or the new one. We haven’t received any notices or anything.

To make matters worse, we just got finished adding a bathroom to the house because we were told by several real estate agents that if we had an additional bath it would really help us sell it this spring.

This cost more than $2,500, and if we had known this would happen (or even could happen), we never would have done it.

My business partner does have a personal loan with the same bank for a lake lot that he quit paying on some time ago. That loan is in his personal name.

Can the bank tie his personal bad loan to our LLC? Can it put it in the paper without telling us or making any effort to communicate with us? Why would it have not come to me first as a guarantor to see if I wanted to pay off the note on the LLC? I have called the bank and they tell me they can’t talk to me about the loan and to call their attorney. I have left the attorney a message without a response.

I don’t know what to do.

It sounds as though there might have been a mistake made with regard to which property is being listed for foreclosure sale. I’d go to the bank and ask to speak with the general manager or branch manager. Try to go to the corporate headquarters for the bank so you really speak to someone in charge. Take your paperwork, and make sure your loan is current.

You may need to hire a lawyer to help get this sorted out. And you need to have a sit-down with your partner to find out what else is going on with his finances. You and he are now tied together legally, and you should know what you’re facing.

By the way, what’s the deal with being 16 days late? Once you’re more than 10 or 15 days late on a loan (depending on the days given to you in the loan documents), you’re late. And, my feeling is you should be paying your loan on the date it is due, which is the first of the month or whatever day of the month is set forth on the promissory note you signed. You should make a point of paying this loan on time, every month.

You should know that in some commercial transactions lenders have the ability to make all loans they make to you work as if they were one big loan. That is to say, if you default on one loan, you effectively default on all the loans.

However, even if you defaulted on a loan on a different property, the lender would still have to initiate certain procedures to foreclose on this property and the other. For these legal issues, you would need to talk to a lawyer in your state who could represent you. It may be that the lender has listed your property as a possible pre-foreclosure case but has not started foreclosure proceedings. If that’s the case, their notice to you about the foreclosure might be coming soon.

Finally, you can always go to your local courthouse and review the case filings to determine whether the lender has initiated foreclosure proceedings against you. In some states, those filings are online and you can search by name to see whether you are being sued.

—Tribune Media Services

Ilyce R. Glink is an author and nationally syndicated columnist. Her latest book is “Buy, Close, Move In!” If you have questions, write to Real Estate Matters Syndicate, P.O. Box 366, Glencoe, Ill. 60022, or contact Glink through her Web site, thinkglink.com.

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