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Fo ZDN Law only: Hi ZDNlaw, how are you doing ? it's been some time I have not asked you a question, however things have progressed so far, despite my clear and loud objection that my letter was not a deemed motion, the judge has used it as such to issue an order to vacate the amended judgment for the prejudgment interests only and to grant a motion for attorney's fee to Plaintiff, otherwise not pleaded and that would be invalid. Now the way the judge has "repaired" the non pleaded attorney fees award is by re-issuing a 2nd amended judgment, following the above order so the motion would fall in the 30 days of that ultimate final order. Of course there is room for argument here, but this is not my main issue. My main issue is about the way the father of the lawyer was introduced to the Court as expert to determine the hourly rates and hours of the son. Thanks God I have the transcript, because it's hard to believe.... meanwhile I collected evidence that this case is probably his first case as independent practitioner, heo had just opened his practice...sounds like a weird start.... now, to summarize all, is this matter for me to strike with a writ of prohibition, on the grounds that the father is totally unreliable as expert of the son ? The evidential hearing to determine the fees is at the end of september ? I am just opening the game here, because there is a lot more on the table to discuss about, in particular the lawyer sent a letter of threat using a fabricated fraud to my wife and her brother, non party, just before he served the settlement offer, amongst other egregious stuff, so a writ of prohibition against the evidentiary hearing maybe ? Not only the father-expert who has already made his point to the judge that his beginner son is worth $275/hour.... we had no right to object BTW, I tried to raise my hand at the motion hearing, but this is another subject.
Thank you for the first, I thought it was an offense to interrupt the court and that the judge would ask me if any objection at some point ?I have asked Plaintiff ('s atorney) to communicate the name of his expert by email when he was implying in between the lines that he would have one. The way he introduced it was sneaky, so I was feeling something fishy there again.Consequently, I filed an opposition to the motion before the hearing, in which i am objecting that Plaintiff failed to communicate the info on his expert before introducing him to the Court at the hearing.Now at the hearing, we made the objection again. When I say "we" it's my wife because I was found not to be a party, because the settlement offer on which this is based was to my wife only.The way it was engineered by my opponents is that they would allege that there was a clause in the lease purchase option contract (expired) granting attorney fees,and so they would go by FL Statutes. The allegation was enough to found the claim, despite the absence of such clause, and to be granted the relief... The unjust enrichment is totally unrelated to the completion of the lease purchase contract, but never mind. I filed a motion for clarification (to the attention of the judges of the DCA... just kidding ) However, we need to focus on the main subject...Now the order granting the evidentiary hearing to tax the fees to the max is granted, but I am within the 10 days to object.In regard to a Writ of Prohibition, is it your proposition that the court does not have jurisdiction to hear the matter regarding attorney's fees?Yes, but I did not explain you why yet on thta point.The writ of prohibition is on the point that the Court does not have jurisdiction to admit the father as expert of the son.FYI, as per the transcript ( sorry but I can't help form laughing when i read this, I ignore if this is the usual stuff thta happens in the Courts or if it's over the edge, as it looks to me.. ):
I'm familiar with this case. I'm obviouslyfamiliar with the attorney, he's my son. He will tellyou later, Judge, if you were asked, that the witnessthat was to come up had an emergency at the lastsecond and as a result of that I agreed to come up andtestify.
PS : let's make no mistake, the judge ordered him to come back at the evidentiary hearing in September, and that's where it becomes really fishy
Thank you for this good info
Now there is something that looks more serious to me.S (plaintiff's attorney) served his settlement offer on June 13th, 2012, just after sending 2 letters of threat on May 18th 2012.He was threatening my wife of fraud for having quitclaimed a property in Old Saybrook, CT to her brother
S sent a similar letter to her brother the same day ( Non party)He was purporting that the fraud is established by Florida and Connecticut laws, and was quoting a paragraph of Florida Statutes 726.108(2) in which the word “fraud” is used.S went to search the town records in CT and pulled out the copy of the recorded quitclaim deed, which he produced during the discoveries ( bate-stamped).Then at the Trial Hearing, at the end, he showed me the letter in a threatening way.... So far everything would be just questionable for an outsider, but when looking into the matter, it looks criminal to me.1. My wife was quitclaiming the property BACK to her brother who had quitclaimed it to her before he had been hospitlaized with a life threatening condition and was amputated from his leg. 2, The public records - reviewed by S - are showing that her brother had acquired the property a few years earlier, with his own funds and by means of a recorded loan, warranted by a mortgage.3. The financial consideration of the quitclaim is nil4. Googling the internet, anyone can find in seconds the value of the property. When matching to the amount of the loan, the equity of the property shows as ZERO.5. His way to engineer things, S puts things out of context and builds a case.6. Issue is that Florida Statutes 726.105(10 and (2) (Florida Uniform Fraudulent Transfer Act) do not apply here in any way.7. So the fraud is fabricated and malicious, for the purpose to extortionate tactics. S is on a contingent fee agreement, He's the beneficiary.So the "bill" here would be :THREATENING LETTER - EXTORTION - OFFENSE AS PER FLORIDA STATUTES 836.05Threatening letters and extortion are set forth specifically in Florida Statues Ch. 836.05 (2008) they are a a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
Violating model rule 4.3.4 (d) of American Bar Association Ethical Guidelines For Settlement Negotiations, titled “Dealing with Unrepresented Persons”,(the Brother) that obliges lawyers to avoid making inaccurate or misleading statements of law or material fact, and more so to use these in view to extort a personal benefit.Can't we argue that the settlement offer is nil, because it was served under fraudulent threat ?
Thank you for your amazing work. Will talk tomorrow.
All what you say is correct seen from the outside.The issue here are :
1. S is accusing of fraud both my wife and her brother, non-party. Even if he was right in his accusation of fraud, his letter is a threat, and is a fraud by itself. S can sue but he can't threat.2. that S as a lawyer has checked the property record at the Municipality, and so he is aware that the real owner is my wife's brother.
The quitclaim does not warrant ownership neither way, it is subject to cancellation by third parties who claim valid rights and does not require the consent of the beneficiary of the transfer of ownership.J ( the brother ) has quitclaimed to his sister Y because he was undergoing major hospitalization in a life and death condition ( diabete). They amputated his leg and could buy him some more time that way.
The house is being rented as vacation rental intermittently, which pays the bills, and Y is taking care of this. Her brother has major disabilities.
Here, more particularly, by quitclaiming back, my wife has affirmed that she does not intend to be the legal owner any further after her brother was rescued and the lender who has a mortgage on the property was requiring so.
3. S. a lawyer specialized in real estate, he cannot ignore that the second quitclaim just voids the first.
4. In august 2011 my wife had been dismissed as Defendant from the lawsuit.
His letter of threat is fraudulent as per FL Statutes and the threat is fabricated and malicious, which aggravates the situation.
The only logical explanation is that it is preceding his offer of settlementSo it is inducing to settle fraudulently.
What is the link in between the offer of settlement and the motion for attorney's fees ?The link is FLORIDA STATUTES §786.79
a party has the right to attorneys' fees when the following prerequisites have been fulfilled: (1) a party has served an demand for judgment upon the opposing counsel and party; and (2) the serving party has recovered a judgment at least 25% greater than the offer.My view is that the demand for judgment is fraudulent as it was served under illegal threat to induce Y to accept indirectly. (?)( note: this is not the only reason why it's nil, but let's focus on that one)Here is the letter of threat to the brother, same as to my wife:
Dear Mr. J:This Office represents PLAINTIFF in the ab ove referenced lawsuit pending in Florida against your sister and brother-in law. In August 2011, SISTER transferred the above referenced property to your name, individually. Since your sister is a party to an ongoing lawsuit which began in June of 2011, the transfer of the property to you will be deemed a fraudulent transfer pursuant to Florida and Connecticut law.Pursuant to Florida Statutes §726.108(2) "If a creditor has obtained a judgment on a claim against the debtor, the creditor, if the court so orders, may levy execution on the asset transferred orits proceeds." As such you may be subject to a lawsuit in the event you attempt to sell the property.
Here is the law :
836.05 Threats; extortion.— Whoever, either verbally or by a written or printed communication, maliciously threatens to accuse another of any crime or offense, or by such communication maliciouslythreatens an injury to the person, property or reputation of another, or maliciously threatens to expose another to disgrace, or to expose any secret affecting another, or to impute any deformity or lack of chastityto another, with intent thereby to extort money or any pecuniary advantage whatsoever, or with intent to compel the person so threatened, or any other person, to do any act or refrain from doing any act against his or her will, shall be guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
=================CONCLUSION : as i see it, there are 3 remedies here:a) Object to the order granting the motion for attorney's fees on basis that the offer of judgment was formulated under a threatb) Include this in my upcoming motion Rule 1.540 as fraud upon the courtc) any other typical remedy that I don't know of and you may inform me about
I'm not sure I get it. Why did J do this? So that the house does not get seized by the hospital?Because J wants his sister to inherit of the property first and then they needed to rent the house and pay the bills, renew contracts and what not.
So instead of granting a power of attorney and a will, J quitclaimed the house so during the hospitalization she could keep things going and if he would have died, then she would be the owner.Besides, J had to go on Medicare to afford the hospitalization, so his intention was that to leave the rental income to his sister as owner and she would pay the mortgage and the bills with it and keeps the balance if any as opposed to complicating his own situation.So when he came back from the hospital, she could not make it with the rents to cover the bills and he applied for a loan modification as he ws back on his mortgage payments.So the lender noticed the quitclaim and asked to reverse.The main point here is that there is striclty no equity left in this house and S knows it because he has reviewed the property records and he has seen the amount of the loan.So S can't just send that kind of letter to J. without looking at the real situation.The problem is that the laws he's referring to are in no way applicable to this case, he should not have ignored it and he threatened, which is a fraud regardless of any circumstances.The circumstances are aggravating the malicious intent and evidencing the causality with the upcoming offer of settlement.What it says amounts to: "J can't sell his house unless you settle."
Why do you think S can tell how much equity there is in the house?
because if he googles the address it will give him the value of the property and if he looks at the public records it will give him the mount of the loan.he's himself all over the internet with facebook etc... he's very familiar, (check under 00~8243)
know how much is unpaid on the loanThe HUD document and the annuities plan is part of the Town record, he could see it easily from there.check http://courtcon.co.palm-beach.fl.us/pls/jiwp/ck_public_qry_cpty.cp_personcase_details_idx?backto=D&soundex_ind=&partial_ind=&last_name=&first_name=&middle_name=&begin_date=&end_date=&case_type=&[email protected]
- I disagree. He has a right to argue this because she transferred property that would be subject to a judgment, and she has a right to show why he is wrong and cannot meet his burden of proof on the allegation.OK for the sister.However, we are talking about a letter to J - not a party here, and unrepresented - that letter clearly compels him not to sell his property under the allegation of fraud.
To me it looks like it matches perfectly the definition of letter of threat of FL Statutes 836.05 Letter of Threats as quoted here above ?It's applicable against Plaintiff in this case because the Statutes specifies to party in the lawsuit AND ALSO to linked third party ?I hope you can see the docket with the link above ? Let me knowsubject to a writ of executionThank you for the info, I will open a new thread for this one later
No need to beat a dead horse here I got the picture, it's some sort of minor objection, I will focus on more important stuff and ask you questions in other threads,
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