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Lucy, Esq.
Lucy, Esq., Attorney
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Thank you very much. Question 1 If the dismissal is granted

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Thank you very much. Question 1: If the dismissal is granted does it abolish the foreclosure only or does it dismiss the entire debt or even the entire case? Can they then sue us again? Question 2: The bank was holding stocks in their vault as "collateral" since 2000; when the store closed in 2008 they said they were going to redeem it, hold the auction and then get back to us; 3 1/2 years later they have still not redeemed the stocks [ nor contacted us except to notify us of the foreclosure ] and today the stockmarket crashed making the stocks virtually worthless. Can we also add this to our dismissal and how should be it be worded? Question 3: They also refuse to honor the SBA guaranteed insurance; can this also be put in the dismissal?
Submitted: 3 years ago.
Category: Business Law
Expert:  Lucy, Esq. replied 3 years ago.
Hi,

My name is XXXXX XXXXX I'd be happy to answer your questions today.

1. A dismissal is not an adjudication on the merits. So it would stop the foreclosure, but wouldn't abolish the debt usually. If the case is dismissed without prejudice (usually because there was some procedural problem), then it can be brought again, unless the statute of limitations has expired. If it was dismissed with prejudice, the case cannot be brought again.

2. If the stocks are collateral, the bank has no right cash them in unless you default on the loan. The bank has no control over the stock market, so it's not their fault that the stocks are now worth much less. This doesn't sound like a grounds for dismissal, but if there is more information you think I need, please let me know. Sometimes it's hard to say without all the facts.

3. If you have insurance that is supposed to cover you in this case, and they're suing you instead of honoring the insurance, that would usually be an affirmative defense, which you would mention at the Motion for Summary Judgment stage. However, you could use it to say that they're not supposed to be suing you, so it might work in the dismissal. There's not really any harm in giving the judge multiple reasons to dismiss the case. If he agrees with any one of them, you'll win.

Good luck.
Lucy, Esq., Attorney
Category: Business Law
Satisfied Customers: 20373
Experience: Attorney
Lucy, Esq. and other Business Law Specialists are ready to help you
Customer: replied 3 years ago.
Dear Ms. Lucy, Thank you. Re: Answer #2: The stocks were put in their vault as collateral back in 2000. When the store had to close in 2008 we went to see the banker and told him we did not have enough money to make the payments and asked him to honor the insurance; he refused. We told him we had 2 buyers; he said we couldn't sell the store, it belonged to the bank; we now know this was a lie; we had every right to sell the store. He told us he would hold an auction, cash in all stocks and he would then get back to us. He hired an auctioneer, and got a measly $4,000 for $135,000 of equipment [ he refused to set minimum bid prices and things were given away for pennies ] and then never applied the proceeds to the loan! When I last spoke to him in August 2008 I asked why he had not redeemed the stocks because by then the economy had started sinking and they had lost a lot of value and he hold me they were "his" and he didn't have to; he could hang on to them "forever" if he wanted! We have heard nothing from these people since [ and have phone records to prove it ], until they informed us they were foreclosing on our home. He has still not cashed in the stocks as of this date [ and the stock market is falling again ] and has still not applied the proceeds from the auction to our loan. I have proof of all this in writing by the way, including the cancelled check from the auctioneer made out to the bank. To add insult to injury they are now claiming there never was an auction and have accused us of stealing the equipment! I'm not concerned about that part since I have all the proof of the auction but is this not slander? Does this answer any questions you may have had about #2? Thank you so much for your reply.
Customer: replied 3 years ago.
Dear Ms. Lucy, Thank you. Re: Answer #2: The stocks were put in their vault as collateral back in 2000. When the store had to close in 2008 we went to see the banker and told him we did not have enough money to make the payments and asked him to honor the insurance; he refused. We told him we had 2 buyers; he said we couldn't sell the store, it belonged to the bank; we now know this was a lie; we had every right to sell the store. He told us he would hold an auction, cash in all stocks and he would then get back to us. He hired an auctioneer, and got a measly $4,000 for $135,000 of equipment [ he refused to set minimum bid prices and things were given away for pennies ] and then never applied the proceeds to the loan! When I last spoke to him in August 2008 I asked why he had not redeemed the stocks because by then the economy had started sinking and they had lost a lot of value and he hold me they were "his" and he didn't have to; he could hang on to them "forever" if he wanted! We have heard nothing from these people since [ and have phone records to prove it ], until they informed us they were foreclosing on our home. He has still not cashed in the stocks as of this date [ and the stock market is falling again ] and has still not applied the proceeds from the auction to our loan. I have proof of all this in writing by the way, including the cancelled check from the auctioneer made out to the bank. To add insult to injury they are now claiming there never was an auction and have accused us of stealing the equipment! I'm not concerned about that part since I have all the proof of the auction but is this not slander? Does this answer any questions you may have had about #2? Thank you so much for your reply.

Expert:  Lucy, Esq. replied 3 years ago.
If they're accusing you of stealing the equipment in court documents, that's not slander, because that's privileged. If they're telling other people that you stole the equipment, that is slander, and you may have a cause of action against them.

You might be able to use the stocks to offset some or all of what they're saying you owed. I don't know if it would be enough to dismiss the case but, again, if you're already filing a Motion to Dismiss, it likely wouldn't hurt to mention it.
Customer: replied 3 years ago.
Miz Lucy, Thank you. It was not said in court documents; it was both verbally said to the people whose services we engaged to negotiate with the bank on our behalf and in a letter of which we have a copy. If I may ask a question; you said its "privileged" if its in acourt document; does that mean when I put forth our evidence and say the banker lied to us I will not be guilty of slandering him and he cannot try to take further action against us? Thank you for all your wonderful answers.
Expert:  Lucy, Esq. replied 3 years ago.
There is a qualified privileged n court proceedings against defamation actions. It's because we want people to be truthful in court. The privilege can be lost if abused, and it doesn't extend to statements made about the case outside of court (so, say, you couldn't call a news conference).

If the banker did lie, you could say so without fear of retribution anyway, because defamation is by definition an untrue statement. If he didn't, it's not a good idea to put anything in a court filing that you know isn't true. Also, in either case, you could reword it to state what the banker said, and that those statements turned out to be untrue. The banker will likely deny lying, but you may be able to get him to admit to making certain statements, and then you can show that there weren't true.
Lucy, Esq., Attorney
Category: Business Law
Satisfied Customers: 20373
Experience: Attorney
Lucy, Esq. and other Business Law Specialists are ready to help you

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