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Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Consumer Protection Law
Satisfied Customers: 88758
Experience:  Attorney experienced in commercial litigation.
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I am trying to decide to whether file on a probate summary

Resolved Question:

I am trying to decide to whether file on a probate summary order ;
1. Motion to reconsider ( within 10 days)
OR
2. Motion to vacate judgement (within 30 days)

What are the pros and cons of either ? Can you file both together ? In case of denial, is the appeal process the same ?
Submitted: 9 months ago.
Category: Consumer Protection Law
Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.

You should file actually both motions at the same time. The court will likely deny the reconsideration, unless you have some very compelling new evidence you believe the court did not consider as courts rarely like to reverse themselves. If they deny the reconsideration, you still have a shot at asking them to vacate and you cite your legal grounds as to why the case should be vacated and if the motion to vacate is denied, then you can seek to appeal the denial of the motion to vacate, which would only be to appeal the motion to vacate being denied arguing that you had legal grounds for the judgment to be vacated and the court improperly denied that motion.

You really should consider, since the courts really dislike pro se litigants, getting a new attorney to step into the case as it greatly increases your odds here of success.



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Customer: replied 9 months ago.

Thanks for you answer,


 


So do I submit two separate documents simultaneously, listing the reasons in both documents or do I submit one document with the title stating " motion to reconsider and vacate judgement " ?


 


Is the fact that my attorney withdrew "objection to claims" against estate, without consulting me, sufficient to vacate the judgement in your opinion ?


 


TO consider: I do not have any "new evidence", the judge failed to look at evidence and hear testimony. More importantly, my attorney just withdrew objections without consulting me and thereby allow final accounting to go through. So what i do want him to do is look at the evidence and then adjudicate. All he ( OK judge-ancillary) did was refer to the findings of the primary probate judge in CT and state that it was dispositive of the issues raised in OK, thereby converting sole property into joint industry property. The problem is that the CT findings do not address the status of real property in OK, I have an attorney look at it and he says so too.


 


What does "pro se litigants" mean ?

Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your response.

You submit two separate motions at the same time both with a separate memorandum in support of your motion.

Your attorney withdrawing the claims against your wishes could be grounds to argue the motions, but it just makes your case more difficult as the other attorneys have told you.

Pro se litigants are those not represented by attorneys and who are representing themselves.
Customer: replied 9 months ago.

I understand that you state for me to submit two separate motions, but since the contents in the memorandum are the same, is it not superfluous to do so, especially since i do not have any new evidence. I just think the attorney acted improperly and the judge's reading of the CT findings was erroneous to the matter at hand.

Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your response.

While the contents of the memorandum will be substantially similar, you are asking for two different things so some of the grounds are the same but your reasoning is still going to be a little different as to why it should be reconsidered and why it should be vacated.
Customer: replied 9 months ago.

So will I have to set two separate hearing dates or does a denial of the "motion to reconsider" automatically trigger the next "motion to vacate" and a corresponding hearing date ?

Expert:  Law Educator, Esq. replied 9 months ago.
Thank you for your response, that is up to the court. Of course, you can file the motion to reconsider within ten days and then at day 30 you file the motion to vacate so you can force the court to do two separate hearings, that is the alternative way of doing this.

Of course, you do realize as the other attorneys told you this is an outside chance of either of these working because the court does not like to reverse itself and your attorney may have permanently damaged your case and you might have to try to go against your former attorney for malpractice to collect your damages and a local attorney would have to review your attorney's conduct to see if pursuing your former attorney would be possible if you lose these motions.
Customer: replied 9 months ago.

Are appeals filed on Motion to Vacate only OR are they filed on Motion to reconsider too ?


 


Are the hearings to decide the granting/denial of these motions only ?


 


Meaning that if successful, I will get to present my case on the original pleadings at another future hearing, correct ?

Expert:  Law Educator, Esq. replied 9 months ago.
The appeal would be after the motion to vacate.

Yes, the hearings are to decide the merits of your motion to grant or deny them. If granted then you would get to present your case at trial or other hearings.
Law Educator, Esq., Lawyer
Satisfied Customers: 88758
Experience: Attorney experienced in commercial litigation.
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