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Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 27097
Experience:  Began practicing law in 1992
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i have a promissory note from a person that is about to receive

Resolved Question:

i have a promissory note from a person that is about to receive a settled estate amount in excess of what is owed to me. i want to know what exact action/forms i must generate to secure my receipt of money when that person gets theirs on settlement being approved by the probate court. i have submitted the note to the person's attorney, but i wish to secure my position without reliance on the person's attorney.
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.

JD 1992 :

Hello, and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today.

JD 1992 :

Is the promissory note a pay on demand?

Customer:

hello, yes i believe so, it reads as follows:

Customer:

promise to pay to: XXXXX XXXXX at wherever so designated, the principal sum of: xx shall be due and payable upon either final distrivbution of the assets of the trust, or upon receipt of significant settlement monies from the matter of an associated action that did not produce anything, and continues to read, whichever occurs first... and should there be a default...at the option of the obligee, become immediately due and payable.

JD 1992 :

This money you are talking about is not a distribution of the assets of the trust and not the settlement from the associated action?

Customer:

correct

JD 1992 :

You are going to have to file an action in court to get a lien against the monies now being paid but you may have a problem. Has the trust been distributed or is it still intact?

Customer:

still intact

JD 1992 :

The language that you gave indicates that the promissory note isn't due yet and the payment on demand is only triggered in the event of a default.

JD 1992 :

Who drew up that note?

Customer:

a lawyer, and it is due when the person get their money which they have just agreed between parties to distribute in final settlement.

Customer:

they have agreed between parties and lawyers but not yet presented to the court

JD 1992 :

That isn't in that language you just quoted.

Customer:

i gave you an excerpt of the note, if you like i can show it all

JD 1992 :

That excerpt doesn't address this settlement though, correct?

JD 1992 :

No need to see it all yet.

Customer:

the way it reads to me is that if the person gets their money i get mine,

Customer:

it does also say the note is unsecured

JD 1992 :

The language that designates when it becomes due is "shall be due and payable upon either final distrivbution of the assets of the trust, or upon receipt of significant settlement monies from the matter of an associated action "

JD 1992 :

And you stated that neither of those two contingencies have occurred, correct?

Customer:

well the assets are being distributed by the settlement i've mentioned

JD 1992 :

The trust assets?

Customer:

yes

JD 1992 :

You could argue that has the same effect as the "final distribution" then.

JD 1992 :

What you may want to consider doing is intervening in the case that is being settled and asking the judge to award that portion of the money/assets to you to satisfy the promissory note.

Customer:

the dispute is between two sisters that has been settled between them, each agreeing to recieve x% of what is left of the estate/trust.

Customer:

i don't want to consider, i want to do exactly as is necessary to ensure my receipt of my money.

JD 1992 :

That is the way that is most likely to get you your money.

JD 1992 :

It is more complicated and you are probably going to need a lawyer to handle the intervention but it would make sure you get paid.

Customer:

so what is exactly the action/form that will be filed in such an event?

JD 1992 :

A Petition in Intervention.

Customer:

anything else, and what is the ca form number, if any?

Customer:

can i file such an action in pro per?

JD 1992 :

I don't think there is a form number. Someone asked a few weeks ago and I couldn't find one online.

JD 1992 :

You can file an action pro se or pro per but if it isn't done absolutely correctly the judge will dismiss it and there probably won't be time to file another one.

Customer:

then there must be a format for it, can you provide the standard paragraphs pettioning the court?

JD 1992 :

No, we aren't allowed to provide specific language or forms, either one.

JD 1992 :

But there really isn't any specific language in a case like this.

JD 1992 :

Each Intervention is unique and requires drafting which is likely the reason there aren't any forms online.

Customer:

i've represented myself in civil unlimited more than once, and i've never lost a case, so i know about proper notice and such. there is i'm sure for the petition you mentioned.

JD 1992 :

You have to serve the parties just like you do in any original lawsuit. Essentially you are "pushing" your way into an already existing lawsuit.

Customer:

some opening language for the peitition, isn't there?

JD 1992 :

There is a standard opening paragraph but it isn't required.

Customer:

so just file the petition in the probate court asap before their settlement papers are presented?

JD 1992 :

Yes, before the settlement is completed by the court.

Customer:

so the fact that this persons atty asked for a copy of the note to be submitted doesn't mean a thing with respect to my getting the money, correct?

JD 1992 :

Correct. He is under no obligation to withhold the money for you.

Customer:

interesting then why he requested it.

JD 1992 :

He may do so, I have no way of knowing that, but if his client instructs him not to then he won't,

Customer:

i see

Customer:

is there anything else besides proof of service, filing the petition, along with a copy of the note; does it have to be notarized? shows where it was executed and states the venue in the event of action required to collect.

JD 1992 :

No, there shouldn't be anything else other than filing and serving the other parties and then requesting a hearing.

Customer:

request for hearing? this sounds like another form, or is it included in the petition? and why should there be such a request for a note signed by one of the parties settling?

JD 1992 :

Just filing a motion doesn't do anything, you have to get a ruling on it and an order issued by the court.

Customer:

it seems like i have to dig it out of you. file a petition, file a request for a hearing, prepare an order. i wish to a complete instruction, as if you were collecting for yourself, if you don't want to do that, i'm out.

JD 1992 :

You stated you were familiar with representing yourself in court, so I took that as you were. However, I will list out the specifics that you need to do:

JD 1992 :

1) File the Petition in Intervention in whatever case the settlement proceeds will be paid

JD 1992 :

2) serve all of the other parties.

JD 1992 :

3) Request a hearing on the Petition in Intervention and have the court issue an order.

JD 1992 :

4) Prepare the order pursuant to the court's oral order (unless that court prefers to prepare their own)

JD 1992 :

5) Send a copy of the order to the other parties for review and signature.

JD 1992 :

6) Send the order with signatures from the other attorneys or parties to the judge for their signature.

JD 1992 :

That should be all it takes.

JD 1992 :

Once the judge issues the oral order that should be enough to tie up your portion of the proceeds so long as you follow up within a reasonable time with the written order.

JD 1992 :

There is no specific definition of "a reasonable time" but you should try to get it done within 14 days.

Customer:

ok i think that's pretty complete.

Customer:

just that i need their agreement to have one of them pay a promissory note they've already signed?

JD 1992 :

You may also want to call the person that owes you and ask if they are willing to have you paid directly by the lawyer from the settlement rather than you filing the motion. If so, ask the lawyer to give you a "letter of protection".

JD 1992 :

I'm not sure what you mean by that post. Can you explain?

Customer:

you directions include send the order to the other parties for review and signature, then send the order with signatures...tot he judge; i just thought i could do this independent of their agreements. that's all.

JD 1992 :

You can if they won't agree. Most judges want all parties to sign off indicating that they agree your order reflects what the court says.

Customer:

oh, i see, is there anything else you wish to advise, if not i think we're done?

JD 1992 :

I can't think of anything else. When you discuss this with the other party you may want to mention that this could tie up the release of the money to them and that may give them some incentive to agree to instruct their lawyer to withhold the money from the settlement.

Customer:

ok thank you, XXXXX XXXXX very helpful.

JD 1992 :

You're very welcome and thanks.

Dwayne B., Attorney
Category: Legal
Satisfied Customers: 27097
Experience: Began practicing law in 1992
Dwayne B. and 11 other Legal Specialists are ready to help you
Expert:  Dwayne B. replied 1 year ago.
Thank you very much for the Positive Rating. Please come back and visit us if you have any new questions and feel free to ask for me by placing “FOR JD 1992” in the subject line or as the first words of your question and I will pick up as soon as I see it.

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