Mortgage Servicing Fraud
occurs post loan origination when mortgage servicers use false statements and book-keeping entries, fabricated assignments, forged signatures and utter counterfeit intangible Notes to take a homeowner's property and equity.
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Hi,
Can anyone answer me regarding substitute of an attorney?

I just found out recently that the new attorney that I retained backed in August 2010 has not filed the certification of substitution of an attorney.  Out of curiosity I called my previous law firm and they informed me that they never received  the substitution of an attorney letter and therefore they have nothing on file.

And I checked with the court clerk documents and there is nothing on file.  Does this mean that my new attorney is technically not representing me since the plaintiff's never received their letter informing them of the new attorney?

What is my option here, I did sign a retainer's agreement in August and he has reassured me that he will submit this letter when picking up my case file from the previous law firm.

The fact that there is nothing on file at the county clerk, what does this mean?
How does the plaintiff's attorney correspond when they are not aware of the new attorney?

Not clear what to do and would appreciate some useful comments and guidance.
Thanks

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seeking2learn
I do not know enough details of your particular  case but from what you have posted in these 2 threads, if I were you I would be immediately looking for a new attorney.. Next time find out their track record and what they plan to do for you before you plunk down large summs of money.

Read your Retainer Agreement. There are some in which no money is refundable even if only minimal service is  rendered. In such a case you would probably need an attrney to get back your money for you.

What state are you in? Maybe someone might be able to recommend an attorney.


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William A. Roper, Jr.
Lucy:

It seems to me that there are three key issues.

One issue is precisely what the retainer agreement you signed actually SAYS about the disposition of the retainer you paid to the attorney.  Since in most places, parties are free to contract, the express written terms of that retainer agreement is going to be critical.

But attorneys also have some ethical duties to their clients.  What the statutes and the cases say about the disposition of retainer amounts in your jurisdiction is UNCLEAR.

A second issue relates to the attorney's duty to zealously represent you both under the terms of the retainer agreement and under the attorney disciplinary rules of your jurisdiction.  Once you retained the attorney and paid him the retainer, he probably had some DUTIES to you under both the agreement and the disciplinary rules.  Hopefully, you have a COPY of the retainer agreement you signed.

To any extent that the attorney has missed any critical deadlines, he might very well be liable for malpractice, etc., though these cases can be very difficult to win.

A third issue relates to the attorney's duty to promptly make an appearance on your behalf and to file a motion to substitute counsel.  Once an attorney enters an appearance on your behalf, he usually cannot withdraw EXCEPT with the permission of the court.  This is one of the reasons attorneys ask for the retainer up front.

It doesn't seem to me to be unusual that an attorney might specify that he would become the substitute upon the surrender of the case files by the predecessor.  While many of the documents relating to the case are no doubt on file with the court, this is not universally true.  Correspondence between the parties, including discovery served and discovery responses, are not usually filed with the court except in respect of certain events, such as to be used as evidence in a summary judgment proceeding.

So it is very important that the new attorney obtain the case file from the prior attorney.

By contrast, some attorneys may seek to hold onto the case file where there are outstanding payments and/or disputes with the client as to amounts owed, etc.  But as long as the original attorney REMAINS your attorney of record, that attorney has some duty to continue to represent you (even where amounts are due) unless and until expressly excused by the court.  You would need to consult (a) the rules of civil procedure for your jurisdiction, (b) the attorney disciplinary rules of your jurisdiction, (c) the cases interpreting and elaborating upon these, and (d) the retainer agreement with the prior attorney to determine precisely what your rights and duties are as well as the rights and duties of the attorneys should there be a disagreement.

As long as the prior attorney continues to represent you, the parties are probably bound under the rules to correspond with the prior attorney -- the attorney of record.  The opposing party may have no duty to communicate with your new attorney unless and until the substitution actually occurs.

It is in your interest to resolve any disputes between your prior counsel, the replacement attorney and even some other alternative attorney who you have since found and now prefer in lieu of the second replacement attorney.  A new attorney you select ought to be able to help you resolve this.  But if there is a payment dispute as to the original attorney, this may also cause some apprehension with a new attorney who will be interested in getting paid.

READ THE RULES!  READ THE CASES.  Communicate with the attorneys, preferably in writing AFTER you know and understand your rights.  Waiting or doing nothing may make things worse.  TRY TO GET SOME HELP FROM AN HONEST LAWYER!

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I agree .

A client has the right to ask the lawyer for ALL copies of the lawsuit filings, discoveries etc. The client should establish his/her own file and follow up the lawsuit closely. Check the case dockets as often as possible.

Remember, the client has only one lawsuit to follow up : his own lawsuit.
The lawyer has many cases to work on. So keep close watch on your own lawsuit and remind the lawyer of deadlines and Hearing dates few days before so he remembers to read the case.


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After I search through all the latest documents at the court clerks office and found no certification for a substitute of attorney, I got worried and called my first attorney's law firm to ask about how my files and substitution was handled. 

My current attorney has not submitted a signed substitution of attorney letter to the first law firm, and so they informed me that the plaintiff law firm has not been notified of the substitution.  Yet, my first law firm relinquished our case file to my current lawyer without this signed document. 

So my situation is:  No certification of substitution  letter on file in court clerk's office.
                             Plaintiff law firm has not be informed of this
                            
Where does this leave me?  I told my current lawyer not to bother filing the substitute, it is way too late and he has wasted over 5months of my time and money.

Now he is willing to rework the retainer's fee and will file the letter, so I just sent him an explicit, berated email about my disappointment and his negligence regards to his complete lack of ethics and responsibility.

Yes, he will be fired and I will ask for my money, but by not performing his duty how can I punish him?  Any suggestions?


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William A. Roper, Jr.
Lucy:

In most contractual matters, the law looks not to punish, but to remedy by way of damages.

I haven't yet seen you articulate how you believe that you have been HARMED by the failure to file the substitution of counsel document.

If this has resulted in missed court deadlines, loss of rights in the litigation, failure to respond to discovery or some other specific problem, then you need to carefully weigh and identify how to minimize the harm to yourself as well as how to quantify these damages.  You might have a cause of action for malpractice.

It may be more problematic where no explicit deadlines have passed and time has merely elapsed.  If your jurisdiction has an explicit discovery period, as is found under the Texas Rules, the passage of time without effective discovery could have grave implications for your case even if no deadline has yet passed.  But in most places, the parties by agreement or by application to the court can seek an enlargement of time to act in many matters.

Whether the mere passage of time is really damaging to you can also be a matter of perspective.  If you are actually insolvent and/or in a state which prohibits deficiency judgments, a DELAY in the foreclosure might operate to your financial advantage where the plaintiff ultimately prevails.  On the other hand, if the plaintiff has no rights in the property whatsoever (in the extreme where you are being sued for foreclosure where there is no mortgage at all because you paid cash for the subject property), your out of pocket costs for legal representation, the ongoing cloud on the title and an inability to sell or dispose of the property might involve some very real damages to yourself.

My intuition is that it is probably unproductive to think in terms of punishing the lawyer, OTHER THAN by filing a disciplinary complaint.  If you haven't been conspicuously HARMED by the lawyer, you might be content in recovery of the full retainer.  You can always file a disciplinary complaint LATER.

I would also caution you against sending shrill or hostile letters or e-mail messages to the unsatisfactory attorney.  It is probably more productive to send communications which are thoughtful, factual, diplomatic and restrained.  If ever you need to use these communications as evidence, you want to be perceived as a paragon of patience, kindness and goodness.  That is, you want to be recognized as the victim, not as an angry or hostile person.
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William Roper Jr,

Hi,
I agree, one should not retaliate in anger nor frustration, and should calm down and think about what needs to be done instead of wasting on what has been done.

I did e-mail my attorney and pointed out that despite numerous attempts he has not been responsible with his actions regards to his affirmations to take care of the matter.

He has proven to me several times that he does not keep his promise, and there is no follow through with his actions.

He has not sent me an invoice since the first one in September, and never a follow up of what he is doing regards to our case.   Back in November when we finally had a meeting with our lawyer, he did promise he'll get in touch with the plaintiff to see where we stand and what is being done with the case, since I told him I want to move the case along.  so, if he did not submit the substitution of attorney letter, how or why would the plaintiff talk or discuss the case with him?  which means he has not gotten in touch with them as he promised.

Anyways, yesterday I faxed him the termination letter as well as a refund of the retainer's fee and all itemized expenses for his services thus far.  I am also sending it via certified.

I now have to see what damages I have incurred do to this mishap.  we did oppose the motion for summary judgment and lost, but now 5 months have passed what other recourse do I have?
Can we still put in an opposition to the final judgment or is it too late?




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