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This Question is for Eli
Submitted: 8 years ago.Category: Legal
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Answered in 10 minutes by:
6/30/2010
Lawyer: Ely, Counselor at Law replied 8 years ago
Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 103,583
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
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Customer reply replied 8 years ago

Hello Eli,

I have finished the motion for a continuance that I was working on. I think it is too long and much too detailed. I am also not sure about some of the content. You said that you would review it, and that would be great.

 

The terms of this website say that all of my questions are posted for "all to see. If that is so, how can I send you this motion to review?

 

Lawyer: Ely, Counselor at Law replied 8 years ago
If you feel comfortable, you can take out the names and other identifying items. But it is true, this site is subject to search engine.
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Customer reply replied 8 years ago

Should I cut and paste the document?

Lawyer: Ely, Counselor at Law replied 8 years ago
Yes please, but again, please take out any identifying names, dates, etc. Also please note that I can review it but make only coursery observations - I cannot draft a document for a customer.
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Customer reply replied 8 years ago

 

 

IN THE COURT OF COMMON PLEAS OF xxxxx

CIVIL ACTION- EQUITY

 

 

xxxN : NO. xxx

Plaintiff

Attorney ID# XXXXX

v.

 

xxxxxL, `

Defendant

 

MOTION FOR CONTINUANCE

 

This Motion for Continuance is brought by xxxx, Defendant, who respectfully XXXXX XXXXX support as follows:


1. A Hearing for Supplementary Relief in Aid of Execution is scheduled for xxx, 2010 at 10:00 AM.


2. Defendant, requests a Continuance for the following reasons:

 

  • a) The defendant, xxx believes that plaintiff's fees of $xxxxxxx are prohibitive for services provided by the plaintiff, which resulted in a less than successful divorce settlement for xxx. Plaintiff failed to adequately prepare for the Master's Hearing in Divorce, or the Divorce Hearing, and did not prepare the defendant for either of these events. Plaintiff refused xxx request for "Discovery", of her husband's income for purposes of calculating alimony, for information about her husband's retirement plans, or to engage in discovery for any reason. The defendant has filed a fee dispute with the xxxxx Disputes Committee, a true and accurate copy of which is attached hereto as Exhibit A, and is incorporated herein by reference.

  • b) Defendant, xxxxxx, presents to the Court, a copy of the ESCROW AGREEMENT, executed at the settlement of the marital home, dated xxx. A true and accurate copy of which is attached hereto as Exhibit B and is incorporated herein by reference. The matrimonial attorney for xxx husband, xxx (with the law firm xxx, P.C.) was appointed to act as the escrow agent for the real estate settlement funds. The terms of the escrow agreement stated that under no circumstances was the escrow agent permitted to release any of the funds unless the parties to the matrimonial proceeding, (xxxxx) had specifically agreed and authorized the same in writing. Defendant, xxx, had provided the plaintiff with a complete copy of all real estate settlement paperwork, including the Escrow Agreement. Plaintiff, xxx, neglected to disclose the existence of the Escrow Agreement (Exhibit B) in his Motion for Supplementary Relief in Aid of Execution, filed on xx or in the plaintiff's Complaint filed on xxx, 2010, for which a judgment of default was entered in favor of the plaintiff on xx, in the amount of xx (plaintiff's fees), and costs of suit. (Plaintiff's Invoice, dated xxxx, for xx, was not mailed to the defendant until xxx, six days prior to plaintiff's complaint filed on xxx, alleging breach of contract, for not paying his fees.)
  • c) Per the terms of the Escrow Agreement, the release of funds from the escrow account, at the written request of xxx, escrow agent, and without agreement in writing by xxx was a violation of the terms of the escrow agreement.

 

  • d) On xxx, the defendant received a letter from the plaintiff, stating that a check for xxx was jointly issued to both the defendant and plaintiff, for the defendant's share of the escrow account, and the plaintiff had possession of the check. The defendant went to xxx, where the escrow account was held, to find out more information. She brought a copy of the Escrow Agreement along to ensure that the bank was aware of the terms of the agreement. The bank did not have a copy of the terms of the escrow agreement, but had been instructed in writing by xxx escrow agent, as to how the funds in the account were to be disbursed. The bank informed me that xxx originally requested, in writing, that the defendant's share of the escrow account should be made payable in full, to the plaintiff,xx. The bank refused to do so, and xx amended her instructions requesting that the bank jointly issue xx share of the escrow account to both the plaintiff and defendant. The defendant recently learned xxxxxbank's decision to stop payment on the "joint" check. The bank provided the defendant with a copy of the Stop Payment details. A true and accurate copy of which is attached hereto as Exhibit C. The funds resulting from the stop payment remain in xxxxxxxx Account.

 

  • e) PA Code Rule 1.15. (a) (10) (f) pertaining to Safekeeping Property, states that: When in possession of funds or property in which two or more persons, one of whom may be the lawyer, claim and an interest, the funds or property must be kept separate by the lawyer (or escrow agent in this case), until the dispute is resolved. The lawyer (escrow agent) shall promptly distribute all portions of the funds or property, including Rule 1.15 funds, as to which the interests are not in dispute.

 

  • f) Because the check jointly issued to both the plaintiff and defendant on xx, 2010, is no longer valid as of xxx, the plaintiff's request of the Court to enter an order granting the plaintiff a limited power of attorney to negotiate the settlement check is not a valid request. Doing so would require another check to be jointly issued a second time. Per the escrow agreement, the defendant must show agreement in writing if the escrow agent may issue a check. P.A. Code Rule 1.15 (a) (10) (f) states that any funds that are not in dispute must be promptly disbursed, while any funds in dispute must be kept in the escrow account until the dispute is resolved. Therefore, the defendant does not agree at this time to the issuance of a check to the plaintiff, xxxxxxx until the defendant's Fee Dispute is resolved by the fee dispute Committee, or in another manner as ordered by the Court

 

  • g) On xxx, after the Divorce Hearing was over, the defendant went to the plaintiff's office to pick up a copy of the Divorce Decree. While the defendant was there, the plaintiff informed the defendant that he would no longer represent her. Therefore, on xxx, both xxxx, (with xxx attorney for the defendant at the time, and xxx received notification from xxx, that she had officially terminated xxx as her attorney, effective xxx. Notification was given in an email sent to xx; with xx copied on the email. A Letter of Termination was attached to the email, and mailed via regular mail to both xx, and xx. The defendant entered a pro se appearance a few days later as well.

 

 

2. Defendant, xx, disagrees with the plaintiff's claim that she executed a lien agreement against the proceeds of her equitable distribution proceeds, or that there was ever any discussion of a lien between plaintiff and herself. The first time the defendant became aware of the lien was in the hallway outside of the Courtroom after the Divorce Hearing. After the defendant told the plaintiff that she was extremely unhappy with his representation, he became agitated, and then stated that he had a lien on the defendant's equitable distribution proceeds.

 

  • a) The plaintiff attached a copy of the lien that he claims the defendant signed, to the complaint he filed on xxx. The signature on the lien does not match the signatures on the other documents, and is not the way the defendant signs her name. The signature on the lien includes both xxx married name and her maiden name. The defendant legally changed her name back to her maiden name, xx, in xy 2009. The defendant believes that if she had agreed to sign a lien, as plaintiff claims, the plaintiff would have included a reference to the lien in the "Other Arrangements, if necessary" section of the Fee agreement, as he did with the $xxx balance due on the retainer fee.

 

  • b) Defendant, xxx, states that she did not knowingly sign the Lien Agreement, Exhibit A, attached to Plaintiff's Motion. The plaintiff handed the defendant the Fee Agreement, and asked her to sign it, as he quickly summarized the terms of the agreement, after which he said that he was in a rush to attend to other business, said that our meeting was over, and asked the defendant to quickly sign the agreement without giving her the time to review what she was signing. After the defendant signed the Fee agreement, the plaintiff left the room to make a copy of the agreement. The plaintiff returned with the Fee agreement, gave the defendant the copy, and told her to quickly pack up her things, as he usually does. The defendant believes that the only way she may have signed the Lien agreement was if the plaintiff gave her both the Fee agreement, and the Lien at the same time, without telling her what he was telling her to sign, and being rushed by the plaintiff to sign, without time to review what she was signing, the defendant may have signed the lien, unknowingly. The only document that the plaintiff gave to the defendant after he made a copy in the other room was the Fee agreement. The plaintiff did not ever give the defendant a copy of a lien.
  • c) There is a small line above the xx in defendant's signature on the lien. It is possible that the signature may have been cut from one or two different documents and taped onto the signature line of the lien. If so, making a copy could easily show an edge of paper or tape that would look like the line above the defendant's signature.

 

3. This continuance is not sought solely for delay but that justice may be done.

Defendant prays that the Court grant the Motion for Continuance.



Respectfully Submitted,



xxx
Lawyer: Ely, Counselor at Law replied 8 years ago
This is TOO long for a motion for continuance. It should not be more than 1 1/2 pages long, double spaced!
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Customer reply replied 8 years ago
Any suggestions as to what I should leave out? also, I didn't file the fee dispute complaint yet, and I don't think I will have time, the prothonotary told me that I could file the motion with them, then walk it up to the court Adminstrators office. If they approve it, they told me that I could go to the judge's office and try to get a signature.
Lawyer: Ely, Counselor at Law replied 8 years ago
Again, I can't edit your document for you - I'm walking a thin line here, unfortunately - I can only make general observations. I would suggest leaving out background info and anything else that does not pertain as to WHY you need a continuance.
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