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Law Educator, Esq.
Law Educator, Esq., Attorney
Category: Business Law
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Experience:  All corporate law, including non-profits and charitable fraternal organizations.
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This is in relation to my ongoing questions on the Replevin

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This is in relation to my ongoing questions on the Replevin Case, which has two defendants, me and a corporation versus two plaintiffs, a corporation and an individual. I am representing myself and the corporation is represented by an attorney who started out also representing me. We filed a Motion to Strike as a Fraud on the Court against and received a judgement in our favor against the plaintiff corporation and have a continuance on a hearing on the same Motion to Strike against the individual plaintiff. I would like to file a counterclaim and third party claims for civil conspiracy naming the plaintiff’s attorney, a notary and the surety bond company; remaining shareholders would also be willing to join. Florida has basic conspiracy law requiring me to prove damages from conspiracy as a third party...The Plaintiff’s attorney accepted a cashier’s check in payment for the engagement drawn on the defendant corporation’s funds where the corporation’s name was identified on the check as the remitter, converted those funds to his own benefit and then applied those funds to engaging as the plaintiff’s action against the same corporation. Conspiracy based on illegal conversion of assets and applying those funds in a conflict of interest...The notary denied her notarization, alleged I had made a copy of her notarization on a stock purchase agreement, failed to report such accusations to the State as required by statute, wrote a statement to this effect used in a complaint to the County Sheriff and submitted before the court and committed insurance fraud in a claim against her errors and omissions coverage. Conspiracy based on fraud, wrongful denial of notarization per state statute, failure to provide notice to state per statute...The Surety Bond company paid a claim to me against the bond for the “denial” of a legitimate notarization and then failed to file the necessary notification to the state (existence of such required noticed used by them negotiating out a confidentiality agreement in release). Bond company did make a notice 10 months after payment subsequently to being challenged on the subject by me and then made a knowingly and false notice saying I made claim on allegation notary “improperly” notarized, opened a uninitiated E&O claim in my name threatening me with legal action in regard to the surety claim and denying any right to make such a claim since denial is an intentional act not covered by E&O, and refused to confirm their notice to the state stating I was not entitled to such information. Conspiracy based on obstruction, and possible bad faith claims practices and fraud in paying notary claim of liability for surety payment under E&O.Do we have grounds?I would like to have this question remain confidential until this case is over, thank you.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
Based on the facts you stated here, if they had the type of involvement you described above and were not merely engaged as agents of the plaintiffs, yes you have grounds to countersue them for the damages you suffered. Of course, you still do have to prove the actual damages you suffered, not merely speculative or non-pecuniary damages, but actual damages you incurred.
Customer: replied 9 months ago.
Not sure what would be the line between acting as agent but would guess it would be knowing action on the part of the attorney. The surety bond issuer would be acting as an agent for the state in my opinion as the obligee of the bond and the notary is an officer of the state. In regard to the attorney, we now have a response to a request for admission by the Plaintiffs that states he had prior knowledge of the intention of the Plaintiffs to use the corporate funds, and have learned by hearsay that he approached the Plaintiffs and asked for the funds to be reimbursed by the Plaintiffs telling them he would have to reimburse if the Plaintiffs did not pay. I have been told that the statute of limitations on these actions are 5 years, can you confirm?In regard to damages, the conspiracy has been the fraud on the court in my opinion and the actions that have led to the demise of the corporation. So the damages would be loss of investment value of shareholders and expenses related to the trial? It would also seem that these actions were done with intent and as such subject to punitive damages in Florida.
Thank you for your reply.
All of the parties who participated in the fraudulent conduct would be agents and liable for their conduct. So, you said that you have evidence of each of these parties participating in actions against you, that means that they are all liable to you for the damages you suffered.
Punitive damage, while possible, are rarely if ever awarded in FL absent proof of actual intentional fraud on the part of each party.
Customer: replied 9 months ago.
I am confused by your answer on agents, in your first reply you stated liability would be possible "unless" they were merely acting as agents and in the second reply you note all the parties who participated in fraudulent actions would be agents and liable. My claim would be they acted in conspiracy with the Plaintiffs to his end of a Fraud Upon the Court.In response to the original reply on having to prove damages I had asked, "In regard to damages, the conspiracy has been the fraud on the court in my opinion and the actions that have led to the demise of the corporation. So the damages would be loss of investment value of shareholders and expenses related to the trial?" I had also asked about the statute of limitations on this claim, is statute of limitations a more complex issue than I give it credit?
Thank you for your reply.
I think there may have been some confusion about that. I meant that if the attorney and notary were acting only in good faith reliance on representations of the other party then they would not be liable, but if they were actually a part of the conspiracy and were actively involved in the fraud other than only representing their client, they could be liable (which is what your facts described above).
Customer: replied 9 months ago.
Can you not respond to the question on the statute of limitations?
Sorry, I do not know why I did not answer that other than it was lost in the middle of your question. I apologize.
The statute of limitations for fraud is 2 years from the date the fraud was discovered. Replevin has a 4 year statute of limitations.
Customer: replied 9 months ago.
This based on florida?
Thank you for your reply.
Yes, it is in Florida under the FL statutes of limitations.
Customer: replied 9 months ago.
I am confused by the two year limit on fraud. Per my read of the statutes, 95.11, fraud seems specifically listed as 4 years. And I have not been able to identify how that would apply to conspiracy, and the fact that the conspiracy is ongoing. If additional overt actions have occurred would that not extend the time of such applicable period? Link for statute 95.11,
Thank you for your reply.
For fraud, the FL statute is 4 years initially, but it is also 2 years from the discovery of the fraud. So if the fraud was not immediately discovered, there is 2 years from discovery to file suit. If the fraud is immediately discovered, it is 4 years from that date of the fraud.
Also, for ongoing fraud, the statute of limitations does not begin to run because the fraud is continuing to be perpetrated.
Customer: replied 9 months ago.
Thank you for your response. In the instant case the existence of the fraud in regard to the attorney conversion of assets, has exceeded the statute of limitations and while I suspected such was the case and made attempts at discovery, there have been responses to questions that have left me uncertain. But with the response to a subpoena just received it is conclusive such responses where furthering acts in such conspiracy and the complaint of wrongful conversion of assets is legitimate. Can I argue based on the uncertainty I did not "discover" the fraud?
Thank you for your reply.
So since you did not discover the fraud, you had 2 years from when it was discovered to sue upon it. However, if the fraud is ongoing, then you can still sue on the ongoing fraud regardless.
Customer: replied 9 months ago.
Thanks for your response. But I am still uncertain as to whether I have portrayed the situation properly and so I thought I would do a quick summary that should be easy to get through and verify my assumptions.1. Plaintiff paid attorney to sue corporation with cashier’s check plainly listing corporation as remitter under Plaintiff’s name which Defendants (Corp and myself) contend is a conflict of interest and conversion of funds. Withdrawal of funds led to insolvency of Corporation. Case continues to this day. (July 2012).2. Defendants’ attorney said we had no way to go after the Plaintiff’s attorney as he was not a party of the suit and stated statute of limitations was 5 years on this and other aspects of case.3. Corporation filed a complaint with the Florida bar, (January 2014) upon suggestion of Defendants’ attorney, Plaintiff’s attorney filed responsive statement that he had a right to take money that was given to him and that his office had deposited the check without him having seen. The complaint was dismissed with the explanation that similar to a divorce the shareholder had a right to use the money and that we would have to sue Plaintiff. Plaintiff’s attorney withdrew from case, March 2014.4. However, upon subpoena just served, (September 2016), we just received copy of executed check and he had manually signed it, obviously not having been deposited without him seeing it.5. We also served a Request for Admissions, March 2016, which Plaintiff admitted Plaintiff’s attorney had knowledge of Plaintiff’s intention to use funds of Corporation prior to payment. We are also awaiting the response to a Request for Admissions that Plaintiff’s attorney did approach Plaintiff in March of 2014 seeking reimbursement of the cashier’s check and that he admitted he would have to repay the funds, (such RFA issued within last 30 days). We know from hearsay that he in fact did both approach Plaintiff for reimbursement and admitted that he would have to pay.One question, it is my understanding I can use the statement that the Plaintiff’s attorney made to the bar to establish the fact of his deception on the receipt of funds. I am going to start another question on the Surety Company/notary conspiracy following this.
Thank you for your reply. I do not know if you are aware or not, but the experts are not employees of the site and get no credit for spending time with customers unless they leave positive feedback. Thank you.
All of that describes a case against the Plaintiff, not the attorney. The attorney is not responsible for where his payment comes from. It is no different had Plaintiff gone to a car dealer and bought a car in his name with company funds, the car dealer is not liable and your recourse is against the plaintiff. His "deception on receipt of the funds" does not make him responsible for the Plaintiff taking money from the company and you need to be attacking the plaintiff of this one, not the attorney based on the description you just provided above.
Customer: replied 9 months ago.
an accounts payable clerk @ GE can embezzle funds and then write a GE check to an attorney to pay for his defense?
Customer: replied 9 months ago.
Or better yet, an accounts payable clerk @ GE can write a GE check to an attorney to sue GE for discrimination or whatever?
Thank you for your reply.
That is not the ATTORNEY'S fault who took the check, that is between GE and the employee who took the check. The attorney does not know if payment was or was not authorized by the company and the attorney does not have to track down every checking account owner to verify payment. If the payment is put in the bank and the company did not challenge the payment within 30 days after seeing the check on their bank statement, that is not the attorney's fault. You are just blaming the wrong party here.
Customer: replied 9 months ago.
But we recieved an RFP admission just a couple of months ago that the attorney had prior knowledge to such payment.
Thank you for your reply.
Even if he had knowledge of the payment, again it was not his responsibility, it was the jerk who took the money and had no authority to do so.
Customer: replied 9 months ago.
The corporation also filed suit against the plaintiff served to the instant case plaintiff attorney days prior to his filing of the replevin case suit that is subject here noting the payment to such attorney using corporate funds. My reading suggests that an attorney does have a responsibility to ensure his funding is legit
Thank you for your reply.
You are reading material very literally and strictly because it benefits your argument, but in reality, the attorney's liability is to deposit the payment to ensure it is not going to bounce. That is the scope of what bar associations have held the attorney to have, with the small number of exceptions where the attorney actually knew up front the money came from illegal means, which they do not know just by seeing a check.
Again, I still believe on the facts you keep belaboring that you are pursuing the wrong party and it is not the attorney liable, but the plaintiff.
Customer: replied 9 months ago.
I am sorry if you think I am belaboring the point, trying to get justice. I am unclear what changed from my initial fact description and your response there saying we had a basis to pursue.As I related, we have now determined he did know upfront based on the plaintiffs' response to recent request for admissions and the positive notice provided by the other case filing making it seemingly fall squarely in "the small number of exceptions."We, and it is not just me but also other shareholders, believe this case would have gone nowhere if not for the complicity of the plaintiff's attorney, a motion to strike as a fraud upon the court has been entered in regard to the corporate co-plaintiff and a matter of time in regard to individual plaintiff. The plaintiff is also broke, no small fault of said attorney in pursuing this obviously fraudulent case. We believe the plaintiff attorney has been complicit in this fraud but also recognize that is a hard road; but the only alternative in our opinion if we cannot recover the initial payment. This case is a blatant fraud that resulted in significant losses to the parties involved.
Thank you for your reply.
Well, it is the additional details that has caused me to to change what I am telling you. If I hand you a check from my company today for your business, you do not take time to call the name on every check you receive for payment, you do not have time it takes and the employees to do all of that if you are a busy company. It is no different with the attorney, from what your additional facts are now saying. If you file a case like this you could get stung for his attorney's fees for bringing this into court naming the attorney.
The fraud is on part of the plaintiff, I do not disagree with you on that, but I see no intent on the attorney's part to take your company money by fraud, he took a check from his client that he believed had a right to use the check. When he deposited the check your company did not claim the check was fraud to the bank. So again this comes back to the plaintiff and not his attorney.
Customer: replied 9 months ago.
I truly appreciate your responses, and I hope we both recognize it as a healthy sorting out of facts.The point is though we have now learned he did have prior knowledge that it was being done based upon the plaintiff's admission and that he provided misleading information in response to the company's attempts to understand the facts. Furthermore, it is not the company alleging the conspiracy but myself as an individual defendant that is alleging the wrongful conversion and use of those funds in a conflict of interest that has resulted in damages and losses to me.And I am unclear how I could be responsible for his costs. My action would be based on good faith and solid facts. It is my understanding in Florida recovery of costs is only available if provided by statute or contract or in response to a motion for sanctions for lack of facts.
Thank you for your reply.
I disagree with your assessment that he knew the plaintiff had no authority to pay with the check he paid with. I agree he knew that he paid with that check, but that is meaningless in suing the attorney.
You can be liable for the costs of his attorney's fees if he proves that he legally did not have the duty you seem to think he has and I have said he did not have as well. If he proves that, he can claim the suit is frivolous and as such you would be liable for his fees.
Again, you need to prove that he knew the plaintiff had no authority to pay him with the company check at the time he took the payment and if you can prove that then you have a claim.
Customer: replied 9 months ago.
Thank you. That makes it to the point and I agree. We have knowledge that he did but it is uncertain it would hold up in court.But regardless of whether he knew the payment was without authority, is there any instance where the use of corporate funds to sue the corporation itself not be a conflict of interest? And would not the knowledge of the unauthorized use of such funds in the middle of the case require him to address the situation?
Thank you for your reply.
No, it is not a conflict of interest as far as the attorney knows or is concerned. Like I said, the proof has to be that he knew up front that this client did not have authority to pay with company checks. There are so many instances today where small closely held companies pay with company check for these things and it is actually common.
The attorney did not have the type of duty you want him to have. But again, the plaintiff is liable so that is who you need to pursue.
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Customer: replied 9 months ago.
Sorry for the delay in responding. Most of all thanks for your responses, they have been very helpful. We have concluded, in agreement with your position, that this action would probably be fruitless. Our evaluation though, is based on the difficulty of any action against an attorney rather than a question of the validity of our position. Regardless, we would like to clear one point. The last point made was that we would have to prove certain he had knowledge that the payment was unauthorized. It seems to us that such knowledge was present based on the following:1. The chronology on the Plaintiffs’ actions will help explain. The Plaintiff, pro se, originally filed a replevin action, (June 2012), but subsequently and voluntarily dismissed this action in anticipation of hiring the respective Plaintiffs’ attorney at subject here. At this time, (June 15, 2012) the Plaintiff instructed the bank to disburse the corporation’s funds via cashier’s check mailed directly from the bank to the Plaintiffs’ attorney for $4,000. The bank instructions for payment explicitly named the Plaintiffs’ attorney as approving the transactions.2. The Defendant Corporation filed a lawsuit on July 12, 2012 against the Plaintiffs alleging among other items, conversion of funds including specifically noting the cashier’s check in payment to their attorney of $4,000, (within 30 days of cashier’s check). This was served upon and accepted by the respective Plaintiff’s attorney on July 14, 2012. On July 21, 2012, 9 days after the service of the Corporations suit, the Plaintiffs’ attorney filed the Replevin Complaint at subject, funded by the $4,000.3. This information was also made clear to the Plaintiffs’ attorney in August of 2014 with communications that included a copy of the cashier’s check at question along with a copy of the bank instructions, as per above, noting the Plaintiffs’ attorneys approval of the transaction.4. It is our opinion that this establishes his knowledge and the conflict of interest.We just wanted to get your ‘opinion’ as to the question of certainty with the Plaintiffs’ attorney’s knowledge so we know where we stand. In conjunction with submitting this I have rated your service and will move on to a new submission of a new query on the surety company and notary actions as touched on in the original question here.And thank you again for the assistance in understanding what we are dealing with.
Thank you for your reply.
The fact the plaintiff did actually authorize and gave instructions for the payment makes the plaintiff liable. The fact that the attorney approved the transaction is not enough to show he did not know that the Plaintiff did not have the authority to authorize the payment though, that is the issue. Even though the attorney approved the transaction, the attorney could not have done so had the Plaintiff not set up the transaction and authorized it. So again we are back to the Plaintiff being liable to you still for making the transaction he was not authorized to make.

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