One of the biggest mistakes we see in various court cases especially in wrongful foreclosure cases where homeowners who are represented by counsel is the failure by plaintiffs’ attorneys to file the complaint within the statutes of limitation period. Attorneys fail to file a claim within the appropriate statutes of limitation for numerous reasons. For example, lawyers often fail to determine the correct statute of limitation applicable to the claim. For instance to effectively bring a TILA lawsuit against your lender, it must be filed within “One Year”, of your mortgage closing otherwise the courts can only allow the cause of action based on whether your motion for equitable tolling is granted or not.
For wrongful foreclosure homeowners who hired Attorneys to represent them, do not assume that your Attorney knows the statutes of limitation period for every cause of action you intend to bring against your lender to save your home, because if your Attorney miss all major causes of action that would have disqualified your lender from stealing your home as a result of fraud, you may end up losing your home even if your lender is liable for other violations which may entitle you to a couple of thousands of dollars in compensation. Your goal is to save your home, so it is not a matter to be taken for granted because you paid your Attorneys big bucks to represent you.
Litigation attorneys are at a greater risk of malpractice claims than all other types of attorneys. Typically, errors arising out of litigation accounted for 35% to 40% of all claims reported. Clients who lose suits often point to a
perceived error by their attorney as the reason their suit was unsuccessful and seek a remedy against the attorney. The main causes of malpractice stem from missing deadlines, failing to calendar, failing to file, failing to
meet discovery obligations, inadequate trial preparation, inappropriate post-trial actions and improper withdrawal. The use of good docketing and tickler systems and the development of good client relations can significantly reduce malpractice risk
While Attorneys obviously need to be knowledgeable about the substantive issues in any lawsuit, some Attorneys does not take care to learn and follow the procedural rules of court.
Even experienced Attorneys do not know every procedural rule for every court in which they practice. Rather, they know where to find the particular procedural rules governing the litigation and make sure they follow them,
thereby reducing their exposure to malpractice actions.
This post, while not exhaustive, provides important tips to help homeowners who are being represented by Attorneys ensure that they are getting their money’s worth thereby avoid common pitfalls that usually
result in malpractice liability when Attorneys fails their clients. After all when you pay someone $5000-$10000 to save your home, you expect them to put their best foot forward. However, always remember that (YOU ARE YOUR OWN BEST ADVOCATED), as a Pro Se Litigant with http://www.fightforeclosure.net
The post highlights ten prominent points during the course of litigation where attorneys are prone to make mistakes, emphasizing specific
types of rules and procedures that are often overlooked. Armed with the information contained in this post, homeowners can help reduce the possibility of losing the homes as a result of negligence conduct of their hired lawyers which could possibly exposure the lawyers to malpractice liability.
THESE FOLLOWING AREAS ARE WHERE THE HOMEOWNERS SHOULD PAY CLOSE ATTENTION TO – THESE ARE WHERE ATTORNEYS USUALLY MAKE MISTAKES.
A GOOD DOCKETING SYSTEM
Attorneys risk malpractice claims when they correctly identify the expiration date of a claim but fail to file the complaint in a timely manner, allowing the claim to expire. One common pitfall is that the attorney or staff person
calendars the deadline in the attorney’s calendar, but the attorney fails to check the calendar, thus missing the date.
Homeowners should ensure that their lawyers can reduce their malpractice risk by diligently calendaring statutes of limitation deadlines and other deadlines that arise within their case. Everything that involves a time limit should be entered into the docket system and the system should generate several advance warnings of each deadline to be given to the attorney and support persons involved.
Although it is ultimately the lawyer’s responsibility to meet deadlines, unforeseen circumstances may prevent the lawyer from meeting a deadline. Homeowners should ensure that their case is assigned a backup lawyer or staff member who is responsible for bringing the deadline to the attention of the main attorney on the matter; or who is able to meet a filing deadline in the lawyer’s absence.
AVOID FILING AT THE LAST MINUTE
Malpractice suits for missing the statutes of limitation also arise when the lawyer and/or his office staff simply neglect to follow through and make sure the complaint is filed with the proper court on or before the deadline. A
variety of unforeseen problems may delay filings. For example, lawyers may sometimes assume that complaints sent by overnight mail will arrive in time and be processed by the court the next day. Similarly, office staff or third
parties hired to assist with the filing may make errors, such as filing the complaint with the wrong court, or missing a last minute deadline.
Such errors can be avoided by routinely filing complaints, motions and other documents in advance of the deadline. Filing at the last minute is a risky practice. Unexpected glitches are bound to occur from time to time. Filing ahead of time will give you breathing room to resolve the unforeseeable problems that might get in the way of filing before the limitation period expires.
KNOWING THE APPLICABLE LAW
DETERMINE THE CORRECT STATUTES OF LIMITATION FOR YOUR JURISDICTION
Attorneys often miss statutes of limitation deadlines when they incorrectly assume that the statutes of limitation runs after the same amount of time in different jurisdictions. For example, the statutes of limitation for a wrongful death claim in Tennessee runs in one-year. However, a North Carolina plaintiff ’s attorney handling a wrongful death suit arising in Tennessee might assume that North Carolina’s two-year statutes of limitation for a wrongful death claim applies in the situation. If the attorney files a claim after Tennessee’s expiration date but before North Carolina’s expiration date, the attorney missed the appropriate state’s deadline and could face a claim for malpractice.
PERFORM ADEQUATE RESEARCH AND INVESTIGATION
Nearly half of all malpractice claims arise from substantive errors. Examples include failure to learn or properly apply the law, and inadequate discovery or investigation. In addition to ascertaining all relevant statutes of limitation deadlines, it is important that homeowners ensure that their attorneys are familiar and comply with the law and standards of care in each applicable state.
One common type of malpractice claim resulting from inadequate knowledge of substantive law is in the area of personal injury claims arising out of automobile accidents. Such a claim arises, for example, where the client suffers personal injury in a wreck and there is a $25,000 limit on the defendant’s auto insurance. Since the client has $100,000 worth of damages, the defendant’s carrier readily issues a check for the policy limit of $25,000. The lawyer neglects to investigate whether any other coverage
exists. The client later learns he could have recovered an additional $75,000 from his own insurance policy that included uninsured/underinsured “UM/UIM” coverage. By then, however, it is too late because the client has
already signed a release of all claims against the tortfeasor. Since “[a]n underinsured [UIM] motorist carrier’s liability is derivative of the tortfeasor’s liability,” the UIM carrier may decline to provide any coverage. Liberty Mut. Ins. Co. v. Pennington, 141 N.C. App. 495, 499, 541 S.E.2d 503, 506
(2000), cert. granted, 353 N.C. 451, 548 S.E.2d 526 (2001); see also Spivey v. Lowery, 116 N.C. App. 124, 446 S.E.2d 835 (1994) (UIM carrier was not liable after plaintiff executed general release).
Experience lawyers in these areas and situations usually require have the client execute a limited release that protects the client’s right to recover UIM or UM benefi ts. For an example of a limited release that was upheld by the courts, review North Carolina Farm Bureau, Mut. Ins. Co. v. Bost, 126 N.C. App. 42, 483 S.E.2d 452, review denied, 347 N.C. 138, 492 S.E.2d 25 (1997). In other cases, the lawyer may fail to notify the UIM carrier of the
claim in a timely manner. If the client is unable to recover from his UIM carrier because of his lawyer’s neglect, he may have a claim for damages against the attorney.
In these cases that pertains to personal injury, the law requires the plaintiff to timely serve the summons and complaint on both the tortfeasor and the UM carrier prior to the expiration of the statutes of limitation. See N.C. Gen. Stat. § 20-279.21(b)(3); Thomas v. Washington, 136 N.C. App. 750, 525 S.E.2d 839, review denied, 352 N.C. 598, 545 S.E.2d 223 (2000). Failure to properly serve either the tortfeasor or the UM carrier may result in lost benefi ts for the client and a malpractice claim against the attorney.
These types of errors usually can be prevented through careful research and methodical procedures.
When dealing with wrongful foreclosure case, homeowners should stay abreast of new legal developments. Experts should be consulted, where needed.
PROVIDE ADEQUATE SUPERVISION OVER ASSIGNED TASKS
Malpractice concerns arise when lawyers fail to adequately supervise non-lawyers or junior associates. Lawyers can be held responsible for mistakes made by their employees. See e.g., Pincay v. Andrews, 367 F.3d 1087 (9th Cir. 2004) (Judge Kozinski’s dissent; holding attorney liable for a paralegal’s miscalculation). Such malpractice risk can be minimized
by providing adequate supervision and fostering an environment where questions and concerns can be freely raised. Staff should be carefully supervised as the attorney is ultimately the responsible party.
FILING THE COMPLAINT AND SERVICE OF PROCESS
After the proper statutes of limitation period has been properly identified and the complaint properly filed, other pitfalls await the unwary attorney. Attorneys commonly make mistakes in naming and serving the proper parties. Such defects can often be corrected. However, when a lawsuit is commenced at the eleventh hour (just before the statutes of limitation expires), as in most wrongful foreclosure cases, the attorney may not
have time to correct such flaws, and the client may suffer prejudicial harm as a result.
IDENTIFY AND NAME THE PROPER DEFENDANT
One of the most common mistakes attorneys make is that they fail to discover and identify the proper name of the corporate defendant whom the plaintiff seeks to sue. In a wrongful foreclosure case that involved securitization of mortgage loans, sometimes defendants mights be more than one. To avoid such errors, homeowners should ensure that their attorneys should make every effort to ascertain the defendant’s proper
corporate name either before filing the complaint or as soon as possible thereafter through discovery. A diligent effort should be made to determine all possible entities and persons who should be named as parties in the lawsuit. If situation involves foreign defendants, take special care in correctly naming and serving foreign defendants. Foreign service requirements, including Hague Convention requirements, may need to be followed.
SERVE ALL DEFENDANTS WITHIN STATUTORILY PRESCRIBED TIME LIMITATIONS.
Attorneys who commit errors in timely serving a complaint and summons on a defendant may also face malpractice liability.
Attorneys must serve a defendant with a complaint and summons within the statutorily required time limitations. These limitations vary according
to jurisdiction. For instance, an attorney must serve a defendant to a lawsuit in federal court within 120 days of the fi ling of the complaint. Fed. R. Civ. P. 4(m). However, a defendant in a lawsuit in North Carolina State court must be served in most cases within 60 days after the date of the
issuance of the summons. N.C. Gen. Stat. § 1A-1, Rule 4(c).
Attorneys who fail to perfect service upon a defendant within the statutory expiration period may request an extension of time for service of process. A federal court will grant an extension only if the attorney provides good
cause for the delay in service. Fed. R. Civ. P. 4(m). On the other hand, a North Carolina court will issue an alias or pluries summons to extend the time period for service upon request, provided certain guidelines are met. N.C. Gen. Stat. § 1A-1, Rule 4(d)(2). Thus, an attorney may be vulnerable to malpractice claims for failing to follow the rules of the particular court in which the case is being litigated. For instance, attorneys may request an alias or pluries summons “at any time within 90 days after the date of issue of the last preceding summons in the chain of summonses.” Id. Provided that the request is not made in “violations of the letter or spirit of the rules for the purpose of delay or obtaining an unfair advantage,” an attorney may request numerous alias or pluries summonses and extend the service deadline for a lengthy period of time without committing malpractice. Smith v. Quinn, 324 N.C. 316, 319, 378 S.E.2d 28 (1989). However, an attorney who does not request an alias or pluries summons within the 90 day time period invalidates the old summons and begins a new action. See CBP Resources v. Ingredient Resource Corp., 954 F. Supp. 1106, 1110 (M.D.N.C. 1996). An attorney risks malpractice liability if the statutes of limitation runs before the alias or pluries summons is issued in such a situation.
In addition, an attorney must refer to the original summons in an alias or pluries summons or else the alias or pluries summons is invalid. Integon Gen. Ins. Co. v. Martin, 127 N.C. App. 440, 441, 490 S.E.2d 242 (1997).
In addition, the attorney may encounter the situation where he is unable to serve the defendant with the summons and complaint because the defendant has died. To complicate matters further, the statutes of limitation
has expired. Homeowners should ensure that their Attorneys consult the statutes for their respective Jurisdictions. This statute will help the lawyer resolve the issue and save the homeowners cause of action.
KEEP THE SUMMONS ALIVE OR ENTER INTO ENFORCEABLE TOLLING AGREEMENTS WITHIN THE STATUTES OF LIMITATION WHILE ENGAGING IN SETTLEMENT DISCUSSIONS.
It is often in the client’s best interest to pursue settlement before spending the time and money involved to file or serve a complaint. However, in the instants where the Banks are not willing to work with homeowners, but where rather interested in stealing the homes through wrongful foreclosure, homeowners are left with little options but to pursue the litigation with their Attorneys or Pro Se, in order to save their homes.
In such cases, it is important that the homeowner let their Counsels know that it is crucial to keep the required summons alive and/or enter into an enforceable tolling agreement with the opposing party. Such tolling agreements must be executed before the statutes of limitation passes. Regardless of how close the parties may be to settlement, the Attorneys should not let the statutes of limitation pass without invoking proper protections for the homeowners.
For More Information How You Can Aggressively Defend Your Wrongful Foreclosure on Your Own “Pro Se”, thereby Avoiding These Costly Attorney Mistakes That Can Potentially Cost You the Most Valuable Investment You Have Ever Made which is “Your Home – The American Dream” Visit http://www.fightforeclosure.net (You Are Your Own Best Advocate!)