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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 need help preparing a motion to set aside or vacate in an

Customer Question

I need help preparing a motion to set aside or vacate in an eviction that I actually agreed to and I need to bypass my attorney in doing it. I'm being evicted from my trust owned home because I filed a lawsuit against the trustees for committing a number of torts against me. My lawsuit was filed a couple months ago but we did not yet serve the defendants. I couldn't figure out why at first but now it seems pretty obvious, my attorney waited to the very last second and I had to threaten him in order to get that done. we receive the eviction notice and it showed a hearing date that was a month away, two days later I checked the court website and saw that right after I had been served they went straight back to the courthouse and cancelled that hearing then they scheduled an alias hearing for the eviction that was only three days away, so that meant that the eviction was the very next day, so I contacted their attorney and told him that I had not been properly served and he swore up-and-down left and right that the alias had been served and that the original had never even been issued, he offered a sworn affidavit from the process server saying that he had delivered the alias when he had not, when I pointed out The fact that I have been served before the alias petition have even been produced he shut his mouth really real quick. Bottom line is that they were trying to trick me and the missing hearing him but it gets better. so my attorney started working on this "global settlement" that's going to include dismissing my claims, the eviction, and a number of other issues, and he was still refusing to serve the petition, so I kept pushing him to do it and finally he tells me that they had agreed to except service and then I didn't need to worry about it any longer. So fast forward to six days before the deadline to serve and the day before the eviction... My attorney has been telling me all along that we were going to fight the eviction and that negotiations were going great but then at the very last second he tells me that the defendants had not agreed to except service in that there was no time left to serve them, he told me that if I didn't except their agreement that I would have to give up my case because I wouldn't have been able to serve the defendants, then he tells me that part of that agreement is that I will not Contest the eviction. Actually, that was pretty much the entire agreement, there was a 30 day extension on serving the defendants but I had been telling him to do that for the past two months. I got pretty upset with my attorney and he flat out stopped talking to me, he said that he was not going to represent me anymore and that I needed to find somebody else. A Couple days later I had to track him down and tell him that he was going to be held responsible for any missed dates and I had to fight hard to get him to serve the petition, which he finally did but I haven't heard from him since. And then just yesterday I get a notice of his motion to withdraw from my case, and that hearing was scheduled for 3 o'clock yesterday, which was the same time that I had been served with a notice. So I called the courthouse up this morning and they have absolutely no record of him filing a motion to withdraw. So here I am one week before I have to be out of the house and I have nowhere to go, my attorney isn't raising a finger and is not even answering the phone and I'm expecting an answer to my lawsuit any day. I can prove that I was tricked, I have emails from him asking me to approve the agreement one day and then a week later he is still telling me he's going to fight the eviction. he still can't explain why he was telling me that I'd be able to stay in my home when he had already agreed that I would move out. I can show that my attorney was misleading me the entire time. I can also show that the eviction was done out of retaliation for filing a lawsuit, I actually have an email from the trustees that says "just don't sue And you won't be evicted". On top of that I can prove that the trust document itself doesn't allow for them to do it, I know that Kansas law does because they hold fee simple title but they removed the portion of the trust that said that it was supposed to provide for a house and inserted "soul and absolute discretion" which they did not have the legal right to do. How do I overturn this? I know that I have an attorney on record but I also know that a judge can sometimes speak directly with the client if it's an emergency and I'm about to lose my home with nowhere to go. Do I file a motion to vacate, set aside and if so is there a template for it? Is that motion based on fraud and deception, attorney misconduct, or what? Can I just write a letter or if I must file a motion then what what laws can I refer to?
Submitted: 1 year ago.
Category: Legal
Customer: replied 1 year ago.
I'm probably going to need to ask for a temporary restraining order right? The eviction was closed two weeks ago and I think the deadline has already passed for an appeal right? I have to be out of the house by the end of the month, that's just over one week away.
Expert:  AttyHeather replied 1 year ago.

Hi, I'm Heather, an attorney with 15 years experience. Just a moment as I review your information.

Customer: replied 1 year ago.
Thanks for picking this up, I know there's quite a bit here, so far all I have is s blank motion to set aside default judgement but it wasn't a default judgement, I actually conscented to it.
Customer: replied 1 year ago.
I'm hoping to be able to file a motion to set aside the eviction based on fraud and I'm hoping that the judge will entertain it due to the emergency nature of the eviction, but from what I understand the judge might not even look at it since I technically have an attorney... Do I submit a motion to remove him at the same time? It's actually a Missouri trust and j still haven't filed in Missouri but I live in Kansas where the torts were commited. I have filed in Kansas but I don't think Kansas can do anything about replacing the trustees, if I had filed in Missouri then I'd be able to ask the court to expedite the case but I'm kind of stuck
Expert:  AttyHeather replied 1 year ago.

I apologize for not getting back with you sooner. I thought that I had answered this, and I just realized I had not. So to clarify, did you actually sign an agreement, or agree in court that you would be out of the house by a specific date? If so, what date was that court order entered?

Customer: replied 1 year ago.
Here are the last few stamps; 07/22/2016 PLAINTIFF APPEARS BY ATTORNEY xxx, DEFENDANT APPEARS BY ATTORNEY xxx. CASE SETTLED, JOURNAL ENTRY TO BE SUBMITTED.(TAPE: ER)(JUDGE: Xxx)07/22/2016 FILE STAMP 07/22/16, CONSENT JUDGMENT FOR POSSESSION07/22/2016 Changed Case Status From PENDING to TERMINATED (OTHER DISPOSITION)07/22/2016 I didn't actually sign anything, my attorney agreed to this without my knowledge, in fact, I can prove that he lied to me by telling me that he was going to fight it two days after he had already agreed not to. But I think my best bet here is to prove that it's in retaliation for filing a lawsuit against the trustees. I actually have an email from them that says "just don't sue and you won't be evicted". From what I understand a landlord can't do that. I can also show that the plaintiff tried to trick me into a conscent judgement the first time they scheduled this eviction. They served me then when straight back to the courthouse and cancelled it, then scheduled an alias for three days out without telling me about it. I got lucky and caught it in time. My attorney just filed his motion to withdraw from the bigger case today and still won't answer the phone. I've been told that they already have s group of guys ready to throw me out in the 1st but I have nowhere to go. Is there something I can do today? Maybe ask for s temporary restraining order until I can figure out what to do? Can I write a letter or do I need to file a motion? I know there is a lot of information here but to sum it up... I have bipolar disorder and can't work, the trustees have cut off all my income and my wife and I don't have anywhere to go, the trustees have made it very difficult to bring my case and we can't lose our home, these guys are literately billionaires and are as "shady" as it gets. I know that if I can talk to the judge that he will see that what's happening isn't right and I'm about to lose my case too... I have no idea what to do about my attorney withdrawing and there's no time left to find another one. I'm trying but if I wait to find one before doing anything we will be homeless.I just called the courthouse and they confirmed that my attorney had been removed from the case. I did receive a motion for withdraw on the 17th that showed that he would be submitting it to the judge on the 17th at 3:00 but I called twice on the 18 and 19th and they hadn't received anything. The clerk just informed me that the judge approved his motion and I had not been given the chance to present my evidence, is that even legal?