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N Cal Atty
N Cal Atty, Attorney
Category: Bankruptcy Law
Satisfied Customers: 9409
Experience:  Since 1983
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I would appreciate if you would indicate any cases which ...

Customer Question

I would appreciate if you would indicate any cases which would indicate lack of legal capacity or lack of legal authority to sue in alleging fraud of my opponent in a current litigation.

I would be interested to know if a party may legally act against one if she has not having the title of a property deed as the real Beneficiary Owner or if she has the title of the property deed in dispute.

Twenty one years ago Plaintiff transferred to (his daughter) Defendant name a property of vacant land pursuant to a Nominee Agreement between the parties.

The deed had in this case, a covenant such as a Nominee Agreement which makes the deed subject to the superior right of the Beneficiary Owner.

The other party of the agreement, the Defendant called the “Nominee” is legally defined as follow:

(a) “A person designated to act in place of another in a very limited way”.

(b) “A party who holds bare legal title for the benefit of others”.

(Black's Law Dictionary page 1076, 2, 3) (Emphasis Added)

Defendant terminology that Plaintiff "deeded the property to Defendant" should be taken with the understanding that the deed transferred to Defendant's name represented just a bare legal title with the expressed contractual part of the Nominee Agreement that Defendant Andrea Klamar was to function as a "Nominee" for John Klamar "Owner" and "that she will neither do nor suffer to be done any act or thing whatsoever which could, would, or might impair said title".

Consequently, with regard to Defendant allegations that "Plaintiff admits in his pleading herein that he deeded the property to Defendant in 1985should be clarified that Plaintiff deeded to Defendant just a bare legal title without granting to Defendant any beneficiary right on the property. Moreover, it has the stipulations that the Deed should be re-conveyed to the Beneficiary Owner at any time upon his request.

Defendant's daughter made disappear the Nominee Agreement and declared that she never signed anything and that she got the property "as a gift from father to daughter for the $10 consideration shown in the deed".

"Affidavits", witnesses and documentations will show in the litigation that she has committed conduct which amounts to a crime, fraud and she is wrongfully retaining the property since more than four years ago, and still holding the property deed in her name.

Recently come to my attention a case history where the judge dismissed a Plaintiff complaint based upon Plaintiff lack of legal capacity to sue because a couple of years ago in a Chapter 11 Bankruptcy Case Plaintiff failed to schedule a assets in the Bankruptcy petition.

I would like to use Defendant (my daughter) "lack of legal capacity to sue" among other arguments on the ground that she can not act representing the property as Owner when she is just a Nominee with bare title.

Submitted: 9 years ago.
Category: Bankruptcy Law
Expert:  N Cal Atty replied 9 years ago.
Lack of capacity can be a valid defense or at least a plea in abatement to any lawsuit. In this case it appears you are suing to quiet title to the real property the defendant claims she owns. You need her to have legal capacity to get a judgment against her. Were either of you involved in a bankruptcy action? In which State is the reap property located?
Customer: replied 9 years ago.


Thank you for your answer on yesterday evening. Please find as follows the answers for the questions you requested.

I started the Litigation as Plaintiff against my daughter (Defendant) requesting the Court the imposition of a "Constructive Trust" to reconvey the title of the property to my name which Defendant (daughter) previously denied on the ground that she received the Deed as a gift, that she never signed the Nominee Agreement and she is not the "Nominee" but actually she is the "real owner" of the property.

Defendant (my daughter) interposed a Motion for Summary Judgment, currently pending, requesting to dismiss the Complaint.

Among her allegations the most controversial is as follows:


Judicial Estoppel

"In 1993, Plaintiff filed a voluntary Chapter 11 petition in the United States Bankruptcy Court in and for the Southern District of New York.

This office has obtained a certified copy of Plaintiff's Bankruptcy petition from the National Archives and Records Administration. On Schedule "A" of that petition, Plaintiff was called upon to list all of his real property. Plaintiff listed only the house atXXXXX Southampton, New York. No mention was made of his purported beneficial ownership of the flag lot atXXXXX

So here, where Plaintiff swore and represented in his Bankruptcy that he only owned one piece of real property,XXXXX he should be judicially estopped from now claiming that he also was and is the equitable owner ofXXXXX

Plaintiff admits in his pleading herein that he deeded the property to Defendant in 1985. For purposes of this action, Plaintiff's admissions in his Bankruptcy pleadings constitute informal judicial admissions that he did not ownXXXXXin 1993 or 1995. Plaintiff should not be heard to claim otherwise now"

At the present time Defendant has the legal capacity to get a judgment against her.

My idea is to ask the Court to dismiss the Case on the ground of Defendant "lack of legal capacity to sue" as she got the Deed by fraudulent way and if it's proven that she is not the real owner, she would not be entitled to act and talk in the name of the property as the legitimate owner.

The property is in Southampton, Suffolk County, New York State and I made the Chapter 11 Bankruptcy Petition in the Southern District of New York.

As an alternative solution, would it be possible to request the dismissal of the Summary Judgment against me by "Statutory Limitations" as the case was dismissed 13 years ago?

What is the Statutory Limitation to initiate a Judicial Estoppel based on a Bankruptcy case closed such a long time ago?

Best regards,

John Klamar




Expert:  N Cal Atty replied 9 years ago.
I do not know enough bankruptcy law to be able to answer those questions, so I am going to opt out and ask the moderators to refer your post to the bankruptcy experts.
Customer: replied 9 years ago.
were you able to get me referred to someone else?