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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 89698
Experience:  JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
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Hi Paul, Thank you very much for your prompt and valuable

Resolved Question:

Hi Paul,

Thank you very much for your prompt and valuable answer.
Regarding to this case and development I have some further questions.

As I have explained in my first question: I had some serious trouble with the next neighbor;
he did some unlawful performance on our property, when we were away. I contacted the former Owner/Attorney (At the time we purchased the property he was not our Lawyer).
He also had a lot of problems with this neighbor and the HOA as he lived there
(He had an awful grumble also). He said he will be very glad to help me without any charge.
Finally, in 2007 the case did go to the court. The neighbor suit me on a counterclaim; reason: Violation of the Covenants. However, the judge of the superior court ruled against us on this counterclaim: CIVIL ACTION NO.07 0161: ORDER DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING DEFENDANT’S CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT.
CONCLUSION
For the reasons set forth above, the Court hereby DENIES Plaintiff’s motion for partial summary judgment and hereby GRANTS Defendants’ cross motion for partial summary judgment. IT IS SO ORDERED this 19th day of July, 2013.

My Attorney sent me the order and a letter on 07/23/2013. Please see main part of this letter:
“The Judge is a nice man and I like him personally, but in all the years I have practiced before him, he has never shown an ability or inclination to properly analyze legal issues and decide them according to the law. His decision is clearly based on the fact that some of your neighbors filed affidavits opposing your position and saying that they liked the covenants.
Obviously this is not how a judge is supposed to decide cases like this.
Even though the Judge’s decision itself did not surprise me, the number and type of mistakes is shocking and I believe that the Supreme Court will reverse this decision.”
I agreed promptly and asked him twice to file the necessary documents to the Supreme Court. For undisclosed reason I did not get a reply.
By chance my Attorney was in Tokyo and he asked me to meet him 09/05/2013,

Now he said: With this case we can not appeal to the Supreme Court.
We have to take the entire legal action to the Superior Court again and it will be judged by the same Judge as before. Should we insisted to do so, we have to consult a different attorney, perhaps his associate, but certainly it may become very expensive. He said, he has already spent over 200 hours on this case, (this is very astonishing and unbelievable), he is not willing to spent more time,
When we decide to take his associate he will support on the part of the covenants.

Except from this, he mainly was trying to convince me to reach a settlement where every part has to take his own cost, without any compensation.
This option is really not good and not acceptable; we still have not cleared up everything and the HOA may demand the payments for many years before.
On top, it would be very unpleasant to live further in this neighborhood and when
we try to sell this residence it would be very complicated and we can expect
only a minimal price.

I find this development very strange. How he can write, after seeing this conclusion more than 1 week: “I believe that the Supreme Court will reverse this decision”
and now after more than 6 weeks I hear, it is not possible to appeal to this Court.

On this small Island are many lawyers, the relations are very close and it will be nearly impossible to find an attorney who will fight against his own kind.
I normally do not like to seek a different representative, but in case it will be required to do so, could you offer a way out?

Please be so kind to give me your honest opinion and advice on this matter.
This subject is extremely important for us and will decide our future life.
And all this, for a long time, from a group of people without legal documents!

I look forward to hear from you

Best Regards.

R. W.L.
Submitted: 12 months ago.
Category: Legal
Expert:  Fran-mod replied 12 months ago.
I have let Paul know that your question is waiting. If I can be of further assistance let me know.
Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your question and for asking for me. I apologize for the delay, but I was out of the country with a client matter and had limited internet access. I look forward to working with you again.

It seems like after he read the decision the superior court must not have entered a final judgment yet in the case and as such this is why he needs to go back to the superior court before going off to the Supreme Court.

You need to understand that the term settlement means something that is not 100% what either party wants, but something they can live with. Thus, if you cannot come up with some compromise that you can live with to settle the case, you must tell this attorney to go back to superior court and pursue the case properly as he promised.



I truly aim to please you as a customer, but please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. Please consider that I am answering the question or question that is posed in your posting based upon my reading of your post and sometimes misunderstandings can occur. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered.

Kindly remember the ONLY WAY experts receive any credit at all for spending time with customers is if you click on OK, GOOD or EXCELLENT SERVICE even though you have made a deposit or are a subscription customer. YOU MUST COMPLETE THE RATING FOR THE EXPERT TO RECEIVE ANY CREDIT, if not the site keeps your money on deposit.

Also remember, sometimes the law does not support what we want it to support, but that is not the fault of the person answering the question, so please be courteous.

Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 89698
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Law Educator, Esq. and 7 other Legal Specialists are ready to help you
Customer: replied 11 months ago.

Hi Paul,



Thank you very much for your answer from 09/09/2013.



Sorry, I have some more questions to this case:


In no doubt, I am sure we can not reach a satisfied settlement. The offered option is really not good and not acceptable; we still can not clear up everything, and the HOA may demand the payments for many years before. On top, it would be very unpleasant to live further in this neighborhood and when we try to sell this residence it would be very complicated and we can expect only a minimal price.



I am troubled about our Attorney, the responsibility and the time-frame:


----------------------------------------------------------------------------------------------------------------


- February 03-2004 Signing of the acquisition-contract.


Our assignment of lease states: Assignor asserts that reflective covenants of the HO Association are not and never been covenant.


I had every reason to rely on this statement, it was not written from any seller, and it was written from the Owner, Attorney himself. (At this time he was not our Attorney only the Seller.)I did not ask for this statement. It seems the former Owner/Attorney wrote this declaration deliberately to have a chance for revenge. There is an other paragraph in this contract: In case the HOA and


the covenants are proved unenforceable, the fee he has paid (over $20.000) will belong to him.


------------------------------------------------------------------------------------------------------------------


- On 04/01/2006 I contacted the former Owner/Attorney. He also had a lot of problems with this neighbor and the HOA as he lived there. He said he will be very glad to help me without any charge. He had a lot of trouble with the same neighbor and the HOA. Please see my firs Question.


- In 2007 the case against the neighbor went to the court. The neighbor suit me on a counterclaim; reason: Violation of the Covenants. However, the judge of the superior court ruled against us on this counterclaim:


---------------------------------------------------------------------------------------------------------


- 19th day of July, 2013, CIVIL ACTION NO.07 0161: ORDER DENYING PLAINTIFF’S
MOTION FOR PARTIAL SUMMARY JUDGMENT AND GRANTING DEFENDANT’S CROSS MOTION FOR PARTIAL SUMMARY JUDGMENT.
CONCLUSION
For the reasons set forth above, the Court hereby DENIES Plaintiff’s motion for partial summary judgment and hereby GRANTS Defendants’ cross motion for partial summary judgment. IT IS SO ORDERED this 19th day of July, 2013.
-------------------------------------------------------------------------------------------------------------
- On 07/23/2013 my Attorney sent me this order above, and a letter:


My Attorney says: “The number and type of mistakes the judge made is shocking and


I believe that the Supreme Court will reverse this decision.”


I very much agree with him, and asked him to file an appeal to the Supreme Court.


----------------------------------------------------------------------------------------------------------------


- 09/05/2013 I med my Attorney in Tokyo: Now, after 6 weeks he said:


With this case we can not appeal to the Supreme Court.


We have to take the entire legal action to the Superior Court again and it will be judged by the same Judge as before. Please see my former Question.


--------------------------------------------------------------------------------------------------------------------


I think, the time from 04/01/2006 as I contacted our Attorney, and he said he is glad to take this case, until 19th July 2013 as the Judge ruled on this case, is excessive stretched. Please see my first question. Our Attorney and former Owner should have concluded this case much earlier.


Even at June 2010 (three years ago), there was a Court Hearing scheduled on this case, but it took not place. My question to our Attorney: “Why was this hearing canceled”? It was not answered; he only asked back: who told you that there should be a Hearing? His office has informed me! I get the opinion that our Attorney is miss-representing us. What can we do?



Responsibility:


Before we signed the acquisition-contract we had several Experts who assisted on the purchase:


1.) Construction Professional to inspect the property, he said: This property has no restriction. (We can not contact this Construction Professional any more).



2.) Real Estate Agent has said: We should ignore the HOA and the Covenants in the case


they will approach us we should not sign and not pay anything to the HOA..


He has not provided us with any documents related to the HOA or the Covenants,



3.) A different Attorney, I had hired to examine the acquisition-contract, assured us orally,


in the present of the Real Estate Agent, my wife and my daughter, that the covenants


are not binding on us and we should not sign or pay anything, it easily could interpreted


that we accept the HOA and agree to the covenants.


 


4.) Our assignment of lease states: Assignor asserts that reflective covenants of the


HO Association are not and never been covenant.


I have trusted this statement, and I consider the persons 1. 2. and 3. have depended on


this declaration also..



Actually, I think all of these Professionals, from 1. to 4., are correct in their assertion, the main


problem is the wrong ruling of the Judge. But I can not accept that I should take the entire burden, because I, an innocent person, relied on the assertions of this experts.



We selected this Island as a retirement destination, invested a lot of money, expecting peace and harmony; but since we are living here it is like a nightmare. Nearly 10 years of intimidations, threats, harassments, insult and abuse. No-one ever can compensate this kind of treatment.



Is there any other possibility than going back to the superior court and have the same Judge?


What is your opinion on our Attorney, can we trust him? I have some hesitation.


This small Island has many lawyers, the relations are very close and it will be nearly impossible to find an attorney who will fight against his own kind. I normally do not like to seek a different representative, but in case it will be required to do, can you recommend a way out?



Dear XXXXX, please be so kind to offer me your sincerely XXXXX XXXXX this case, maybe you see a complete different resolution. I look forward to hear from you.



Many Greetings

Expert:  Law Educator, Esq. replied 11 months ago.
Thank you for your response.

The issue I see here and why the attorney is saying that he cannot yet go to the Supreme Court is that there has not yet been a final judgment, it seems as though from what you have above is that there has only been a partial summary judgment in the matter, meaning there are still issues open to be litigated. So at this point you need to get back to the Superior Court and you need to get them to issue a final judgment on the case that if you lose can then be brought to the Supreme Court .

The major issue I see is you need a declaratory judgment regarding the covenants. You have to get the court to issue a complete and final ruling on everything including whether or not these covenants are in fact valid and binding on you as you were never notified about any covenants and never signed on agreeing to the covenants.

Unfortunately, it is going to require more litigation to resolve, but you are going to have to get this done and if the judge does not correct the errors he has made, then the Supreme Court would be the next step.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 89698
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Law Educator, Esq. and 7 other Legal Specialists are ready to help you
Customer: replied 4 months ago.

 


Dear Law Educator, Esq.



This is what PaulMJD advised me; please see my other questions also:


-- ‘If you cannot come up with some compromise that you can live with to settle the case, you must tell this attorney to go back to superior court and pursue the case properly as he promised’.--


1. Question: - Must we go back to the superior court when we wish to perform the case properly?


Can we contact the Judge or the Bar Association directly? Do we have other, even better options?


------------------------


My attorney is not willing to precede this case (now after 8 years), he wrote this statement:


-- ‘I intend to withdraw completely from representing you on any matter, including the covenants issue.—‘


I hat small disagreements with this Attorney; some of my writing to him is in red cursive:


2. Question: - As I asked this attorney/former owner, if he is willing to take this case. He said he would be very glad to help us without any charge; he himself had some tough troubles with this neighbor.


But after he was in charge, the proceedings were very lackluster and slow.


I asked him several times to give this case to other lawyers or to one of his partners, but he said:


No, he will continue this case.’ Sometimes I had the impression, that he had something to hide, but to keep on in a very boring and uninspiring motivation until we are tired and abandon the litigation.


I normally would like that he fulfills his commitment; this island is very small, here are many lawyers,


but everyone knows everyone and hesitates to take this case. He is familiar with this and even asked me for the name of my new lawyer as he would like to speak with him.


Because of all of this, is he entitled to withdraw completely from representing me on any matter, including the covenants issue??— Now after 8 years?


-------------------------------------------------------------------------------


1.) Please provide me with legal evidence that your statement in the ASSIGNMENT OF LEASE from Feb 04, 2004 is correct. Your statement:


- Assignor asserts that reflective covenants of the - - - Homeowners Association are not and never have been valid covenant.-‘


I never would purchase a residence under the control of a HOA and Restricted Covenants;


I have not asked for this testimonial.


3. Questing: - Can we cancel the purchase of the residence (Feb. 04, 2004) and collect the money, plus expenses back, because the contract is misleading? (PaulMJD declared it so)


------------------------------------------------------------------------------------


2.) The question about the septic system is not resolved up to now.


I have informed you already with my fax-writing from 05/01/2005 and 04/20/2005


(see copy attached) and several times after, even in the presence of Heinz Staffler.


Please inform me how you will settle this matter.


4. Question: - Even the preliminary contract states, that a septic system should be installed, to the standard of the DEQ. The constructer installed a holding tank only, which needs to be pumped out and is therefore very expensive and it will have an adverse effect on the pricing of the residence in case of sales. Can I apply for compensation?


----------------------------------------------------------------------------------------


‘ 3.) A bench trial, regarding our case was set for June 21, 2010.


The notice from the Court did come at the end of the year 2009. I have asked about this trial several times and offered my assistance. I have not any information up to now, why did this trial not take place? We could have concluded this case several years earlier. Please give me a reliable explanation to this subject.’


As I asked sometimes before, he asked only back: ‘Where I do know this from’?


5. Question: - Can an Attorney cancel a bench trial without informing the client?


----------------------------------------------------------------------------------------------


 


‘4.) The attachments at my e-mails from Feb./28/2011 and June/02/2012 –


- My comments and Declaration- should go to the court. We never have discussed this


and it was not provided to the court also. We did not have a meeting before the hearing


as you have suggested and promised. Why not?’ No answer on this.


6. Question: Is the Attorney entitled to ignore my comments and my signed declaration,


without discussing anything, also I have asked to provide it to the court?


I think my comments and declaration were very important to show the judge the attitude


of the opposite and me. It would set an entire different picture.


-----------------------------------------------------------------------------------


‘5.) I asked this question several times, first via e-mail 2013/11/ 21 and later directly:


- I would like to get a copy from my audio tape of my deposition from the opposite


Attorney. Can I ask him direct, or will you arrange this? -


At our last meeting Feb/22/2014 you said you will ask the attorney. Please inform me’.


The attorney from the opposite asked me at the aural deposition:


You have only a holding tank; this is much more expensive as a septic system? (Please see point 2. above) I said, yes it is so. This question and my answer are not in the transcript. My attorney said he will acquire it, but has always an excuse not to provide me with this copy up to now.


7. Question: It seems, that both attorneys have worked together on the desire of my attorney


to withhold this information? In my opinion it is against the law. What should I do?


--------------------------------------------------------------------------------------------


8. Question: My attorney has made aural deposition and transcripts with the persons from the opposite, this turned out very much in my favor, but my attorney has not provided this deposition


to the court, even it surely may have turned the ruling in a different direction.


----------------------------------------------------------------------------------------------


9 Question: In case I must consult an new attorney, it maybe difficult to find a lawyer I can trust


on this small island, what other option can you suggest to me?


 


Thank you and Best Regards.


 


-----------------------------------------------------------------------------------------------------

Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your response and multiple new questions.

1) You cannot circumvent court process and just go to the judge. If you cannot settle the matter between you and the other party, you have to go to court.

2) He is entitled to withdraw if he can do so without causing extreme material prejudice to your case. If his withdrawal would cause material prejudice to your case then the court will not allow it. Of course if he does not want to do more on the case, you can file a malpractice complaint with the state bar and also get yourself a new attorney to take up the case.

3) If the contract is false and misleading then that is grounds to seek to void the contract based on breach of contract.

4) Yes, if they promised to provide a septic system as part of the contract or stated it was in good condition and it is not, then this could be a part of your damages

5) The attorney can cancel or continue a trial without notice to their client for good cause.

6) The attorney has the right to decide what to enter as evidence in court based on his professional judgment. If the client disagrees, then the attorney has to withdraw if they cannot reach a compromise and you have to get yourself a new attorney.

7) It is not against the law, but it is not ethical and grounds to file a complaint against your attorney with the state bar for malpractice and conflict of interest.

8) You are entitled to all of the depositions that he took when you go to another attorney, so he will have to turn them over to you.

9) The other option to get another attorney is to try to get one from one of the other islands, but you need an attorney licensed in that state.




I truly aim to please you as a customer, but please keep in mind that I do not know what you already know or don't know, or with what you need help, unless you tell me. Please consider that I am answering the question or question that is posed in your posting based upon my reading of your post and sometimes misunderstandings can occur. If I did not answer the question you thought you were asking, please respond with the specific question you wanted answered.

Kindly remember the ONLY WAY experts receive any credit at all for spending time with customers is if you click on OK, GOOD or EXCELLENT SERVICE even though you have made a deposit or are a subscription customer. YOU MUST COMPLETE THE RATING FOR THE EXPERT TO RECEIVE ANY CREDIT.

Also remember, sometimes the law does not support what we want it to support, but that is not the fault of the person answering the question, so please be courteous.

This is NOT the practice of law nor is it legal advice to you, it is merely educational information for you to use to seek out a licensed attorney in your state to get actual legal advice from them. Please use sites such as http://www.martindale.com or http://www.lexmundi.com or http://www.hg.org to find a local attorney to get actual legal advice in all matters.
Customer: replied 4 months ago.

 


Thank you very much for your fast and useful replay.


I would like to clarify question 6:


 


6. Question: Is the Attorney entitled to ignore my comments and my signed declaration, without discussing anything, also I have asked to provide it to the court?


 


My comments and declaration were very important to show the judge the attitude of the opposite and me.


 


I think it would have set an entire different picture, but he ignored my request without discussing anything with me, and it was not


provided to the courd also.


 


Nearly 2 years after he was assigned to this case, he asked me


to sign a document that states, that I can not him make financially responsible when we loose the litigation. I sined.


What have I to do further?


 


Thank you very much.

Expert:  Law Educator, Esq. replied 4 months ago.
Thank you for your response.

I know you believe that your declaration was important, but when it comes to introduction of evidence, legally the rules of professional conduct give the discretion to the attorney to determine what they introduce.

If you want him to remain in the case you have to file an objection to his withdrawal.

If he made you sign a waiver of liability, generally attorneys do that when they have a client insisting on pursuing a matter that the attorney does not believe will be successful or when a client will not follow what the attorney says. If you did sign such a waiver, then the court will hold you to it.
Law Educator, Esq., Attorney
Category: Legal
Satisfied Customers: 89698
Experience: JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
Law Educator, Esq. and 7 other Legal Specialists are ready to help you

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