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Damien Bosco
Damien Bosco, Attorney
Category: Estate Law
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I am the Trustee for my Father's Living Trust in Illinois,

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I am the Trustee for my Father's Living Trust in Illinois, which has a “No Contest Clause” and an appointed Special Co-Trustee provision for handling all dispute resolutions and said resolution is binding.Older brother had several purchase options for property and excavation equipment, etc. to be exercised within 9 months from decedent’s death on 7/19/2016.A motion was presented to the court by older brother’s attorney being the plaintiff, for restraining order/injunction to be granted additional time to maintain the status quo; 1) because plaintiff needed more time to consider his options (incorrectly stating) because he had not been provided the accounting and inventory 2) alleging that I intentionally delayed providing the accounting and inventory by falsely stating they had requested within a conference call on 8/25/16 trying to establish a fiduciary breach of my duty to remove me as Trustee. 3) They also claimed there wasn’t time to engage the named Special Co-Trustee before the deadline expired, that the Special Co-Trustee did not have authority to extend the time period, and that they were not competent. 4) They also requested a certified accounting be submitted to the Court, which was not ruled upon or mentioned again.FYI: The hearing was on 4/6/17. It was noted in court that the plaintiff had been supplied the accounting and inventory about sixty days prior, wherein the plaintiff attorney corrected himself. The judge granted the motion for the additional time to only maintain the status quo specifically so that we could engage the Special Co-Trustee to hear any matters while acknowledging his jurisdiction per the Trust and would not comment on any fault.My question encompasses the fabricated untrue statements made within the motion by the plaintiff attorney in his attempt to try to establish that I had delayed this request for the accounting and inventory by falsely stating this request was made within the conference call. I believe the attorney’s statements were lies based on the following:There was an agenda for said Conference Call that does not corroborated the subject or the requests being mentioned as they are not listed or even alluded to within the agenda, which was established by the plaintiff attorney and the Trust attorney at the time.
The plaintiff attorney had provided a typed Summary of the Conference Call. This summary does not corroborate or document any such requests being made and/or even the subject matter. This summary and agenda were intentionally omitted and not presented to the court.
The Trust attorney at the time and me both state that these requests were not stated within this call.
Additionally, the creditability for such a request for an accounting to be made at this time is quite questionable considering its unreasonableness, being the conference call was on 8/25/16 and I did not gain access to the accounts until 8/10/16.There was an additional statement within the motion on the subject of an appraiser being hired to appraise the real estate property, which was briefly discussed within the call and documented within the summary of the call, but not as represented within the motion:
In the motion, the plaintiff attorney states that after the Trust attorney mentioned the appraiser being considered, we then all agreed to use this appraiser and there wasn’t a need to contact any others. This is a misrepresentation, as this did not take place, there was not any agreement stated nor was their approval required.
The plaintiff attorney’s summary of the call, stated that the Trust attorney only mentioned that he had reached out to this named appraiser and comments from the plaintiff and plaintiff attorney were that they did not object to using this appraiser.My question is do the false representations and statements made by the plaintiff and the plaintiff’s attorney constitute lies?. Could the intentional misrepresentation be considered a fraud upon the court with the intentional statements misleading the court and not submitting the summary? Is this be a matter for the ARDC? I can supply scanned copies any documents needed.Thank you,

Hello: My name is ***** ***** I am an attorney. Please give me a moment to review your question. I may ask some questions to clarify issues.

To clarify, I believe you saying the attorney purposely stated falsehoods in the motion papers knowing them to be false? Or are you saying that your brother provided the attorney with the falsehoods? Also, during the hearing were these dispute of fact presented to the court, and what was the Judge's response to the dispute in facts or to the attorney who you say later corrected them? In other words, did the Judge reprimand the attorney orally?

Customer: replied 2 months ago.
My attorneys response was that there was no wrongdoing on my part in regard to the delay and that he was requesting the motion be dismissed on the grounds that the special co-trustee had jurisdiction.
The judge recognized the special co-trustee's jurisdiction per the Trustor's intention and as the courts recognize alternative dispute resolutions/arbitration, but denied our motion to dismiss only because the deadline time period was about to expire wherein the judge was maintaining the statis guo allowing more time to get the matter to the special co-trustee.Therefore, the untrue statements made by the plaintiff attorney within his prepared motion and only attested to by his client (my brother) were never addressed or presented to the judge.
My attorney stated, addressing these would be contrary to our position that the court did not have jurisdiction as per his motion to dismiss? I believed a statement could have been inserted regarding this issue just as the statement was made that the allegations of delaying the accounting were without merit.The judge stated he would not rule on or address the allegations of fault.So, the false statements were made by the plaintiff attorney with the motion being signed as being accurate and under the penalty of perjury by the plaintiff.The Trust attorney I initially hired was my father's attorney who wrote the Trust (such as it is) who unfortunately represented and wrote the separate Trusts for my dad and his wife (being married later in life around age 68 after being widowed) as the attorney withdrew fearing a conflict of interest if litigated, being engaged with a $3500 retainer at the end of July being handed off to another firm per his coordination at the end of September. Wherein, I received an invoice for an additional $15,000.00, with naratives as to activities performed, but was not detailed as to time charged and rate, etc. as required by law. After requesting a detailed invoice, I received such, wherein, the narative or descriptions of the work performed significantly changed, which is another issue that I need to address as well as a $500 additional bill submitted for a task performed for my father that was not invoiced or paid?Sorry for the tangent segue and apologize for mispellimgs or gramatical errors as replying from cell phone. Also, I am not an attorney, however, have an insurance claims law certification, and supervised a claims litigation unit in California, so have some related knowledge or enough to be dangerous and worked for a celebrity management attorney probably hearing all the attorney jokes - never worried about being bitten by sharks out of professional courtesy, etc. - jk - also comedy writer, sorry.Hope I answered your question.If these intentional fabricated false statments that "Webster" would define as lies, which were malicious in nature and meant to inflict harm by insinuating wrong doing that in this case would be a breach of fiduciary duty (if proven) being cause for my removal as Trustee, meet the threshold of being seen as a fraud upon the court, would render any court order invalid, correct?Therefore, could I petition the court for the court order extending the deadline (for the second time) to be "dismissed" giving this reason and/or because in the interim with the first appointed Special Co-Trustee resigning due to this attorney's ex parte communications, the plaintiff has been disinherited with the invoking of the No Contest Clause for multiple violations, thereby, forfeiting his rights and status to make a claim under the Trust and/or the court order's no longer being applicable given the plantiff's chamge in status?Thank you,
Customer: replied 2 months ago.
Please, first read since I digressed, give short answer and then can call as needed or if required, as at about $60K spent on this and letter writing campaign, still unable to obtain dad's personal property from former residence owned by wife who passed thirty days later and now by her son looking for money to pay for his 2nd DUI and conspiring with older brother allowing him access to dad's office files, etc. and only litigation was injunction hearing!

Pardon me, but you are providing too much information for such a Q&A. It is difficult to address all your issues at once! SO, I have to narrow it down to the original question to make sure we get the bottom answer for you. You mention above that the Judge did not consider the facts stated in the motion and decided the motion on other grounds. Therefore, the motion appears not to have been denied in its entirety. Therefore, it does not appear that the court at this time considered the motion frivolous or determined that the motion had no basis in fact and/or law. Unless or until the court denied the motion in its entirety or made a determination that the facts stated in the motion were untrue (or lies as you would say), then it would be difficult for you to make a case at this time either for sanctions or malicious prosecution (meaning to punish) or to file a disciplinary complaint.

Customer: replied 2 months ago.
My apologies as I was working on two questions and interrupted several times hit the send before editing.So, the statements made in the motion which I state are lied were never considered, discussed, or onjected to at the hearing and the judge stated he was not going to rule on fault. He only extended the deadline to maintain the status quo to allow to engage the Special Co-Trustee and get the "matter" to him.Now, the first Special Co-Trustee resigned due to the plantiff attorney's badgering and caused two named successors not to accept the appointment. Therefore, the process continues as well as the expenditure of funds because of the court order, which needed to be extended.So, I wanted to know if I have a strong case regarding the untrue statements made within the original motion as I outlined.Recall, the plaintiff attorney states that requests were made for the accounting and inventory for the Trust within a conference call on 8/25/16 between him, his client, my Trust attorney at the tome and me.There was an agenda for the call and these request are not listed.
The plaintiff attorney provided a Summary of the Conference Call with headings and details, wherein, these requests are not listed or documented within the Summary, not even the subject matter.
The one subject that was discussed during this call about the appraiser is a complete misrepresentation when the two statements are compared.
Additionally, one would question the reasonableness of such a request being made 2 weeks after gaining access to the accounts making it highly questionable.
The Trust attorney states it nevet happened and so do I.Since it is not just my word against his, but his own summary of the call that contradicts his allegations in his motion and such a summary by an attorney would have documemted such a request.Did I reasonably prove that he lied and/or do I have a preponderance of evidence to petition the court to conside?My main goal is to have the court order extending the time period, but specifically, the requirement of engaging the Special Co-Trustee stipulation removed, if not the entire court order dismissed as he has had over 90 days, refuses to exercise his options, refuses to present actual disputes, interferes with the engagement process and has been disinherited with the order stating 45 days from the engagement of the successor not from his appointment.I hope this is better. I am a little perplexed with my brother and sister being unrecognizable with their conduct. Handling mutilated remains in the Army was easier.

We would need to speak on the phone to discuss all the nuances you want to discuss. I will send you a premium service offer. When you accept it, we can arrange a time to speak.

Customer: replied 2 months ago.
Mr. Bosco,I realize how complex it has become and difficult to narrow it down to one issue with so many aspects that could come into play. I have a conference with my attorney shortly and should have time this afternoon. Is there a particular time that would be convenient?

When you accept the premium service offer we can arrange a time later this afternoon or early evening.

Damien Bosco and 2 other Estate Law Specialists are ready to help you

Hello Larry: Please provide your phone number in the private contact box (not the public box) and I can give you a call at 1:30 pm, EST if that works for you. Thank you, Damien

Or let me know if 4:30 pm works for you.

Customer: replied 2 months ago.
Mr. Bosco,I await your call for the live discussion and/or proposed times for the same. I also noted your EST reference and inquired if you practice and/or are licensed in Illinois? The original times that were suggested I believe did not work out due to the timing of the responses.Thank You,Larry

Hi Larry: I do not practice in Illinois. If you are looking to speak to an Illinois attorney, we can open your question to see if one is available. Just let me know. Note that Just Answer experts do not dispense legal advice or give legal opinions as it is not a law firm. Just Answer legal experts can discuss general principals of law and are knowledgeable of the area in which they are an expert. If you want to have a legal opinion or a consultation with a local attorney, I can attempt to get a number for a legal referral service in your area. Otherwise, we can speak at 12:30 pm today your time.