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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Estate Law
Satisfied Customers: 90221
Experience:  Experienced in Trust and Succession Law, including Louisiana Laws
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Hi! OK, we are back! Well we listened to our third attorney

Resolved Question:

Hi! OK, we are back! Well we listened to our third attorney and actually filed a lawsuit against the bank for breach of fiduciary.....it has been, of course, a nightmare. He doesn't take anything seriously and has missed filing deadlines as well as not getting interrogatories to them on time and risking the whole case being closed....they answered the interrogatories but only what they chose to answer as a condition! Now after getting our deposition and not yet giving theirs they have made a motion for summary judgment. Our only positive left is that in their interrogatory they casually mentioned that altho they notified us in November 2011 of their failure to file the change of beneficiary form for 6 plus years, note this: they actually found their error in August 2011, 3 1/2 months earlier! Meaning that they continued to allow us to believe and act on incorrect balance information deliberately and no longer by mistake! Our lawyer is not that excited about it so we are asking you....is this not a whole nother ballgame? We actually bought a house in early Nov. 2011 just before we found out that we had $385,000.00 less than we had been told for 6 plus years that we had in the IRA. Hopefully you remember that my husband was the sole owner per one form and they lost the 2nd form making him only 50% owner. They then simply transferred the m oney into the other beneficiaries name on the same IRA.
We were reluctant to sue the bank but they refused to settle and our lawyer was very positive at the time. But now we do not see how they can get away with intentionally not notifying us immediately upon discovering the error. We are not smart but this seems to clearly be a really bad thing for them to do.....yes??
We are hopeful but in doubt that our current attorney will file a proper response to their motion and really don't know now what to do.
The motion for summary judgment is on Statement of Undisputed Material and no genuine issue....." Our attorney says not to worry, standard procedure, etc. but he said that about missing deadlines too and was wrong! Soooo....the document looks pretty serious to us.
In essence we would appreciate any response, advice, or even criticism you have to offer....is there any hope?
Thanks all over again,

Terry & Jean Pope
Submitted: 1 year ago.
Category: Estate Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking.

If your attorney is missing deadlines and not objecting to their refusal to answer interrogatories and depositions, then this is arguably malpractice and grounds to pursue your attorney for improperly handling the case and seek damages from him. Additionally, it is grounds to dismiss him and hire on a new attorney, which is what it sounds like is needed here.

The issue with the change of beneficiary form, if they prove it was a legitimate change form, even if they failed to file it or provide notice to you, would arguably still be enforceable, which is likely why your attorney is not seeking to raise this issue with the court.

Yes, summary judgment is standard procedure and in order to defeat their summary judgment, you have to prove that there are material issues of fact that are still in dispute and that you have legal basis still for a claim based on those disputed material facts. Your attorney though, from what you are stating, does not sound like he is working diligently to pursue this for you as he is legally bound to do and as such you might want to consider pursuing him for malpractice and seeking a new attorney to pick up the case and to do so before you fire him outright, you need to take the case documents showing what he has or has not done to another local attorney to review and agree to take on the case. Once you have an attorney agreeing to take on the case, that is when you terminate this one and if what he did causes you to lose your case then you sue him for malpractice and seek your damages.



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Customer: replied 1 year ago.

Thanks very much for your reply.....we are still confused about the new info we got only in their interrogatories that they withheld telling us about their mistake even after they knew of it for 31/2 months. They knew we were making decisions and acting on incorrect balance info and even advised us on actions we took in spending money based on what we thought our assets were. Is the deliberate withholding of notice of their error and correction of our balance not a serious issue for them? WE, of course, think it borders on criminal behavior and we not only suffered damages from the 61/2 years of reliance on accidental false info but as well from the 3 1/2 months of deliberate false info. Our ability to make informed financial decisions was taken by their negligence, both accidental and deliberate, and while their liability may be limited due to an unintentional mistake for 6 1/2 years, we do not see how they are not liable for the deliberate act in the 3 1/2 months.


Will this be enough to stop the granting of the motion for summary judgment?


We are truly dismayed at the prospect of losing our case due to our lawyers lack of care and expertise but we are now afraid that we will also have to pay the Banks attorney fees!!!! Should we consider dropping the case? Would that be in our ultimate best interest?
I am longwinded and argumentative at best, XXXXX XXXXX and I apologize.....I just want to be sure we are aware of all possible consequences of our possible actions.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

What the court will look at is only the validity of the beneficiary change form. If the form is valid and not a forgery, then the mistake would be considered "harmless error" because even had the properly filed it or properly notified you when they discovered the error, it would not change the validity of the form or the outcome of your case and that is something that your attorney should be determining.

What your attorney should be trying to fight is the validity of the beneficiary change form and if he can do so this is grounds to stop summary judgment.

In order to sue your attorney for malpractice here, you have to prove that he not only acted improperly but those actions were the sole reason for you losing the case.
Customer: replied 1 year ago.

OK, again Thanks for your reply. Now, the validity of the second form is not questioned...we don't know why she did it but she did...it wasn't filled out correctly but we do believe it was her intent to split the IRA. We are suing the Bank for damages as a result of their mistake and breach of fiduciary for their actions upon discovering the mistake.


Harmless error is not an accurate description of the consequences of our relying on their erroneous actions and subsequent info for over 6 years in planning our financial future. We had no way of knowing that the threat of a possible bank error taking $385,000.00 from us in one fell swoop existed. May I ask you to consider how you would handle the same situation?


 


You are the first attorney to just flat out say that if the form was valid it doesn't matter that the Bank messed us over!! But since the Bank seems to feel the same way we are getting panicky. And our lawyer is less than supportive and almost totally nonresponsive.


 


While you may not believe this, I really am not looking for only the answers I like, we are desperate to know the truth so if you really believe that the validity of the second form is the only issue that matters then we are glad to have your opinion.


 


Please answer about our liability for the Banks attorney fees if we drop this suit....can we even just drop the suit at this point?


 


Thanks for your tolerance and response.


 


Terry & Jean Pope


 


We are not looking to sue our attorney but we may have to make him aware that we are thinking of either replacing him or dropping this lawsuit.

Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your response.

The problem is that if the form was valid, the bank really did not "mess you over" because had no error been made and they filed it appropriately, you would not have received the money anyhow. That is what the court would look at in this type of case- whether or not had the bank done everything 100% correctly, were you damaged. Had they filed this correctly and notified you, would you have received the money, and if you would not have received the money then this is where the term "harmless error" is used. Yes, I know you were "harmed" in the manner that you were expecting something you would not receive because there was a beneficiary form change made, but the issue is you need to ask, as the court would have, what would have happened if the bank did file the form and did not wait 6 years to discover the error. If the answer to that is you would not have received the approximately $300K you mentioned above, then I am afraid the bank might be right in this matter and not your attorney.

You have to prove here that you were actually damaged and would not have been damaged had they filed it 6 years ago properly and did not make the mistake. Upon discovering the mistake, if the bank took reasonable measures to correct it they did not breach any duties. Thus, your attorney would have to prove they knew for 3 1/2 months and this time was not reasonable to correct the error.

Customer: replied 1 year ago.


Again, Thanks for your response.....can you please address the questions about dropping this lawsuit and our liability for the bank's legal fees?


 


Thank you,


 


Terry & Jean Pope

Expert:  Law Educator, Esq. replied 1 year ago.
I apologize, sorry for not addressing that part.

If you voluntarily dismiss the suit, which you have a right to do, the other party would have to prove the claim was frivolous and without merit and/or filed merely to harass them, in order for the court to award legal fees. If the court finds that at the time you filed based on the information you had that there was a rational legal argument for your claim, they will deny the other party's fees.

Law Educator, Esq., Attorney
Category: Estate Law
Satisfied Customers: 90221
Experience: Experienced in Trust and Succession Law, including Louisiana Laws
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