How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask John Your Own Question

John
John, Attorney
Category: Legal
Satisfied Customers: 2904
Experience:  Licensed and practicing attorney.
71296933
Type Your Legal Question Here...
John is online now
A new question is answered every 9 seconds

Can I rescind a stipulation for settlement agreement if I was

Customer Question

Can I rescind a stipulation for settlement agreement if I was given misinformation prior to signing?
Submitted: 11 months ago.
Category: Legal
Expert:  John replied 11 months ago.
Hi, My name is XXXXX XXXXX I’m happy to assist you with your question today.

You can rescind a settlement agreement for purpose of fraud in the inducement by the other party. The Cal Supreme Court has defined this to mean:

"The general contract rules that govern this case are as follows: If a party believes it has been fraudulently induced to enter into a contract, "`"n order to escape from its obligations the aggrieved party must rescind . . . ."'" (Rosenthal v. Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 415 [58 Cal.Rptr.2d 875, 926 P.2d 1061], italics omitted.) The party's rescission obligations depend on the type of fraud alleged. Our state distinguishes between fraud in the execution or inception of a contract, and fraud in the inducement of a contract. (Ibid.) If the fraud goes to the execution or inception of the contract, so that the promisors do not know what they are signing, the contract lacks mutual assent and is void. It thus "`"may be disregarded without the necessity of rescission."'" (Ibid.) "`In the usual case of fraud, where the promisor knows what he is signing but his consent is induced by fraud, mutual assent is present and a contract is formed, which, by reason of the fraud, is voidable. . . .'" In that case, the party seeking to void the contract must rescind under our statutory and common law rules. (Ford v. Shearson Lehman American Express, Inc. (1986) 180 Cal.App.3d 1011, 1028 [225 Cal.Rptr. 895], italics omitted.) Rescission requires that the aggrieved party provide the other party to the agreement with "`prompt notice'" and an "`offer to restore the consideration received, if any.'" (Ibid.)

In your case you seem to be saying that you knew what you were signing but were misled as to the affect of the same. In that case, you'd have to declare a rescission, give back whatever you received and then re-file/re start whatever court proceedings you were involved in. The other party may attempt to fight the rescission, so you'll need proof that you were misled as a to some material element of the matter.

I believe this answers your question. However, if you need clarification or have follow-up questions regarding this matter, I will be happy to continue our conversation – simply reply to this answer. If you are otherwise satisfied with my response, please leave a positive rating as it is the only way I am able to get credit for my answers. Thank you, XXXXX XXXXX wish you all the best with this matter.

Customer: replied 11 months ago.

I This is a personal injury case and I signed the agreement at a mediation. The larger documents would come within 15 days for me to sign to settle. I was told by my attorney that I had better sign because my main witness, my doctor, wanted $100,000 to testify and he could not afford that. He also said we could not use his records or force him to court. The next day I found it was $10,000.00 or less for his fees and that we could use his records at any rate. I sent the lawyer a notice to rescind the next day. What do you think?

Expert:  John replied 11 months ago.
Stan,

A couple of issues. First, you need to review the mediation agreement - specifically is it a full and final settlement of all claims (which would be enforceable against you) or is it just a preliminary agreement that the parties would just go to court and enter at some date in the future (which is not enforceable as an agreement). I suspect it is binding as most mediators these days are requiring the parties to enter binding agreements, but you'll need to review/talk to your attorney about that.

Second, a misrepresentation by your attorney to you is not fraud in the inducement as far as being able to rescind the deal. The fraud would have had to been from the other party. Your attorney is your agent and has the legal authority to act for you in a case. If you are ultimately bound to the deal, you may have a claim of malpractice against your own attorney for misleading you. But your own attorney's misrepresentations to you cannot be a basis for rescission.

Hope this helps. let me know if I can be of further assistance.
John, Attorney
Category: Legal
Satisfied Customers: 2904
Experience: Licensed and practicing attorney.
John and 13 other Legal Specialists are ready to help you
Customer: replied 11 months ago.


What happens if I do not sign the agreement when it arrives?

Expert:  John replied 11 months ago.
That will really depend on the other party's prerogative. I'd have to believe the other side would probably try to force the deal, depending on the enforceability of the mediation agreement itself. If its not enforceable then they may just continue the litigation.
Customer: replied 11 months ago.


How can I find out if this can be enforced as I cannot trust my attorney to give me the correct answers?

Expert:  John replied 11 months ago.
You can retain an attorney in your area to review it.; seek a second opinion before you sign
Customer: replied 11 months ago.


I am still having difficulties as every attorney I am talking to has a different take. I was told that legal mal practice cannot take place if you have a settlement. Is that true? I have not heard a word from my attorney as yet about the email and letter to rescind.

Expert:  John replied 11 months ago.
That's true. If you do accept the settlment that could be interpreted as evidence that the attorney's advice to you was acceptable to you to the point that you accepted settlement. You'd have to show your attonrye did not present you with all the information or provided you misinformation with the intent hide the facts from you.
Customer: replied 11 months ago.


Attorney did not have the amount of the bills owed including Medicare but told me not to worry about it. Second he told me that my main doctor that I had been seeing for 4 years wanted $100,000.00 to testify in my case and without him there was no case and he did not have the money. I called the doctor next day and that was not true. The doctor charged $10,000.00; however, the attorney owed him money and that is where the figure came from. I should not be punished for what the lawyer owed? Also he said I could not just use doctor's reports. I found out that was not true either. What do you think? there is so much more as well. I could not get reports, bills, etc. from him the whole time. I have none even though I repeated wrote and asked. He would not return phone calls. I had to have other attorneys call him to call me.

Expert:  John replied 11 months ago.
Clearly your not happy with the representation, you were misinformed intentionally about several material facts in your representation. I'm not going to tell you to attempt to rescind your deal or to file a malpractice claim - these are decisions you'll have to make on your own. If you don't rescind the deal, then your acceptance of the deal can be used as evidence that you in fact agreed with your attorney's actions. That's what you're dealing with, and I think you'd have a fairly good chance at a malpractice claim and attorney grievance.

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
 
 
 

Meet The Experts:

 
 
 
  • Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    19941
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    8189
    25 years of experience helping people like you.
  • http://ww2.justanswer.com/uploads/jespoag/2008-12-17_222355_jessepic.jpg JPEsq's Avatar

    JPEsq

    Attorney

    Satisfied Customers:

    2132
    Experience as general attorney, in house counsel, SSDI, Family Law attorney, and law professor
  • http://ww2.justanswer.com/uploads/gsenmartin/2008-04-22_214950_me1.jpg Guillermo J. Senmartin, Esq.'s Avatar

    Guillermo J. Senmartin, Esq.

    Attorney

    Satisfied Customers:

    110
    7+ years of experience handling various legal matters.
  • http://ww2.justanswer.com/uploads/PA/PaulmoJD/2013-10-10_195858_JAImage.64x64.jpg Law Educator, Esq.'s Avatar

    Law Educator, Esq.

    Attorney

    Satisfied Customers:

    31621
    JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    15975
    Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.