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Tina, Lawyer
Category: Legal
Satisfied Customers: 8775
Experience:  JD, BBA Over 25 years legal and business experience.
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I have a five+ year old foreclosure matter that has survived

Customer Question

I have a five+ year old foreclosure matter that has survived a motion to strike and twice scheduled for trial, only to have the bank cancel the trials. In April 2015, the bank filed it's first MSJ. Rather than (or maybe prior to?) filing an opposition, our current counsel filed and amended answer to the original answer filed in 01/2012, "adding" 11 affirmative defenses to the six original. Our counsel did not copy us with this amended answer until after it was filed. The Bank withdrew the MSJ in June 2015. Last week, they filed an amended MSJ, and apparently our counsel failed to include an incorporation clause in the amended answer filed May 2015, which supersedes the original Jan 2012 answer, and we now no longer have our original 6 (critical, including unclean hands) affirmative defenses, and are left with the 11, rather impotent add-ons. My immediate thoughts upon reading the amended MSJ was that our counsel needed to file an affidavit of error requesting leave to file an "amended amended answer" that fully incorporates the original answer, and stay the MSJ until ruling on that issue. Our counsel, instead filed a Motion to Withdraw, didn't serve us or opposing counsel with it and has made no effort to get a hearing date. Now what? Oppose the MTW and try to force them to repair the mistake? I thought malpractice carriers even offered assistance in helping their insureds repair errors in pleadings when possible to mitigate of not prevent damages? Go straight for malpractice? Do we have to actually have to lose the MSJ before we're damaged enough to file suit, or does having to oppose an MSJ without the crux of your defense damage enough?
Submitted: 1 year ago.
Category: Legal
Expert:  LegalKnowledge replied 1 year ago.

Good afternoon. Do you know why he is withdrawing? Did he address this with you?