Jump to content

Recommended Posts

Suggestions Please??

 

Background:

My brothers Daughter (My Niece) got popped for a DUII in North Carolina and a $2000.00 retainer was placed with a Defense attorney to handle the process. One week later she was the victim of a homicide. No work was done by the attorney.  My Brother personally presented the attorney with a death certificate and requested the return of the retainer. The attorney claimed that anyone could make this claim and refused the request. My Brother is also from Oregon and he had a lot more things to worry about then the bad faith conduct of an attorney. Same attorney will not answer or return any phone calls. This seems totally unconscionable. 

 

Action taken:

Complaint was filed with the North Carolina Bar Association. They claim that in fee dispute resolution pursuant to 27 NCAC .0701 only the person who paid the legal fees may file a request for resolution of disputed fee. Obviously that is not possible nor is assignment for power of attorney and have a nice day.

 

Questions:

  1. If this is an identity problem would a notarized affidavit have any weight.
  2. Would the appointment of an Executor of the will/estate have any influence in this dispute with the Court.
  3. Would a motion with memorandum filed with the local court demanding fee return have any effect.
  4. How would a demand for return be filed and served by the local Sheriff. (If possible)
  5. Prefer not to use an attorney to assist in recovery of this small amount as it would be a wash.

Suggestions:

 

Would welcome ideas and/or recommended steps on how to resolve this sensitive out of state issue.

 

Thanks,

 

HP

 

 

Link to comment
Share on other sites

Sorry to hear this, but did she have a will or anything? Was probate involved? Last on the list is sue the lawyer and make him out for what he is, I doubt any judge will like to hear this kind of conduct. "I'm keeping the money because I can" isn't the greatest defense.

Thanks for the input. 

 

Young girl just out of the military and no real assets other then the apartment furnishings and a used car etc.  Trying to petition for my Brother to be appointed as administrator but am not sure if I do that in her residence State of North Carolina or here in Oregon. Either way it sounds like we have to set up an executor for the estate. There was no will and no real assets as is typical with young people. No probate was involved. 

 

HP

Link to comment
Share on other sites

Guest usctrojanalum

The executor or executrix has to make such a request. You will probably have to end up suing the attorney, HOWEVER... make sure that the ADR for the fee is not required first.  Where I am from you cannot sue an attorney to recoup attorneys fees until you go through the bar assocation fee dispute  arbitration first.

Link to comment
Share on other sites

I would say have someone go talk to a probate lawyer in NC. Or........see the clerk of the court. Appears that this is his jurisdiction.

 

§ 29‑12.1.  Controversies under this Chapter.

Any controversy arising under this Chapter shall be determined as an estate proceeding under Article 2 of Chapter 28A of the General Statutes, except that controversies arising under Article 8 of this Chapter shall be determined as set forth in that Chapter.  (2011‑344, s. 5.)

 

 

§ 28A‑2‑4.  Subject matter jurisdiction of the clerk of superior court in estate proceedings.

(a)        The clerks of superior court of this State, as ex officio judges of probate, shall have original jurisdiction of estate proceedings. Except as provided in subdivision (4) of this subsection, the jurisdiction of the clerk of superior court is exclusive. Estate proceedings include, but are not limited to, the following:

(1)        Probate of wills.

(2)        Granting and revoking of letters testamentary and letters of administration, or other proper letters of authority for the administration of estates.

(3)        Determination of the elective share for a surviving spouse as provided in G.S. 30‑3.

(4)        Proceedings to ascertain heirs or devisees, to approve settlement agreements pursuant to G.S. 28A‑2‑10, to determine questions of construction of wills, to determine priority among creditors, to determine whether a person is in possession of property belonging to an estate, to order the recovery of property of the estate in possession of third parties, and to determine the existence or nonexistence of any immunity, power, privilege, duty, or right. Any party or the clerk of superior court may file a notice of transfer of a proceeding pursuant to this subdivision to the Superior Court Division of the General Court of Justice as provided in G.S. 28A‑2‑6(h). In the absence of a transfer to superior court, Article 26 of Chapter 1 of the General Statutes shall apply to a trust proceeding pending before the clerk of superior court to the extent consistent with this Article.

Link to comment
Share on other sites

The executor or executrix has to make such a request. You will probably have to end up suing the attorney, HOWEVER... make sure that the ADR for the fee is not required first.  Where I am from you cannot sue an attorney to recoup attorneys fees until you go through the bar assocation fee dispute  arbitration first.

Thank you,

 

That was where we started however any North Carolina Dispute Resolution for fee's has to be initiated by the person paying the initial retainer. Possibly we can petition for administrative rights and then be able to work with the bar association. I was just amazed that this attorney adopted this position after the family presented the death certificate.

 

HP

Link to comment
Share on other sites

I would say have someone go talk to a probate lawyer in NC. Or........see the clerk of the court. Appears that this is his jurisdiction.

 

§ 29‑12.1.  Controversies under this Chapter.

Any controversy arising under this Chapter shall be determined as an estate proceeding under Article 2 of Chapter 28A of the General Statutes, except that controversies arising under Article 8 of this Chapter shall be determined as set forth in that Chapter.  (2011‑344, s. 5.)

 

 

§ 28A‑2‑4.  Subject matter jurisdiction of the clerk of superior court in estate proceedings.

(a)        The clerks of superior court of this State, as ex officio judges of probate, shall have original jurisdiction of estate proceedings. Except as provided in subdivision (4) of this subsection, the jurisdiction of the clerk of superior court is exclusive. Estate proceedings include, but are not limited to, the following:

(1)        Probate of wills.

(2)        Granting and revoking of letters testamentary and letters of administration, or other proper letters of authority for the administration of estates.

(3)        Determination of the elective share for a surviving spouse as provided in G.S. 30‑3.

(4)        Proceedings to ascertain heirs or devisees, to approve settlement agreements pursuant to G.S. 28A‑2‑10, to determine questions of construction of wills, to determine priority among creditors, to determine whether a person is in possession of property belonging to an estate, to order the recovery of property of the estate in possession of third parties, and to determine the existence or nonexistence of any immunity, power, privilege, duty, or right. Any party or the clerk of superior court may file a notice of transfer of a proceeding pursuant to this subdivision to the Superior Court Division of the General Court of Justice as provided in G.S. 28A‑2‑6(h). In the absence of a transfer to superior court, Article 26 of Chapter 1 of the General Statutes shall apply to a trust proceeding pending before the clerk of superior court to the extent consistent with this Article.

Thanks Bruno,

 

Some very good tips

 

HP

Link to comment
Share on other sites

I would ditch the fee resolution angle, that's usually reserved for being overcharged for services  provided. This is a different case, where the person died unexpectedly and therefore could not receive the services bargained for. Classic unjust enrichment case.

Thanks again,

 

That's even better. 

 

Best,

 

HP

Link to comment
Share on other sites

You said that the person was recently released from the Military. From what I remember they maintain the original residence for up to 90 days after discharge. So if her state of residence was Oregon upon entering the military and it is less than 90 days since discharge, Oregon is the state you properly file for personal administrator. I am sure this attorney would just love to have to come to Oregon to defend this.

Link to comment
Share on other sites

I think she was a North Carolina resident from Huey's post. I don't  think the bar complaint would fly in NC if she was from Oregon. They would have sent it back as jurisdictional. I've done three of these so far, so I know this stuff. Score: Bruno 3, lawyers zero. Don't mess with the King of Lasagne.

 

Even if they opened probate in Oregon the case would not be heard there. The attorney is in NC and the retainer was paid there so any dispute or suit would have to be filed there.  

 

What a sad situation and shame on the attorney making this harder on this family.  Even though there are no huge assets (although the 2k is an asset) open probate and get an administrator appointed.  Then send the scumbag a CMRR letter stating that as the administrator of the estate you are requesting the return of the retainer since the case cannot proceed with her passing away.  Give a time frame then if he doesn't pay:  SUE HIM.

Link to comment
Share on other sites

The executor or executrix has to make such a request. You will probably have to end up suing the attorney, HOWEVER... make sure that the ADR for the fee is not required first.  Where I am from you cannot sue an attorney to recoup attorneys fees until you go through the bar assocation fee dispute  arbitration first.

This too.  Still, I cannot see the NC Bar characterizing this as a fee dispute unless the attorney had done some work. 

Link to comment
Share on other sites

Thanks for the input. 

 

Young girl just out of the military and no real assets other then the apartment furnishings and a used car etc.  Trying to petition for my Brother to be appointed as administrator but am not sure if I do that in her residence State of North Carolina or here in Oregon. Either way it sounds like we have to set up an executor for the estate. There was no will and no real assets as is typical with young people. No probate was involved. 

 

HP

proof of executor ship can be found in the the military record they make service members make wills and provide benificiaries for SGLI payments they also make them list an executor for her estate. You can get that stuff from the VA with a copy of her DD form 214, it will be part of the military record which the VA has on file because the military makes departing service members register with the VA as part of their transition checkout of their command.

 

And what a douche attorney. Refer him to the bar when you get this. Notify the VA anyway as they can provide military honors at her funeral.

 

I know that no words from anyone can fill that void left suddenly in your and your families hearts, but let me say that anything I can do to smooth the rough edges of that hole you can rely on me. I hate the way americans treat each other now. I am tearful right now that this happened to you. A tear stained warrior is the most dangerous thing in the world.

  • Like 2
Link to comment
Share on other sites

Suggestions Please??

 

Background:

My brothers Daughter (My Niece) got popped for a DUII in North Carolina and a $2000.00 retainer was placed with a Defense attorney to handle the process. One week later she was the victim of a homicide. No work was done by the attorney.  My Brother personally presented the attorney with a death certificate and requested the return of the retainer. The attorney claimed that anyone could make this claim and refused the request. My Brother is also from Oregon and he had a lot more things to worry about then the bad faith conduct of an attorney. Same attorney will not answer or return any phone calls. This seems totally unconscionable. 

 

Action taken:

Complaint was filed with the North Carolina Bar Association. They claim that in fee dispute resolution pursuant to 27 NCAC .0701 only the person who paid the legal fees may file a request for resolution of disputed fee. Obviously that is not possible nor is assignment for power of attorney and have a nice day.

 

Questions:

  1. If this is an identity problem would a notarized affidavit have any weight.
  2. Would the appointment of an Executor of the will/estate have any influence in this dispute with the Court.
  3. Would a motion with memorandum filed with the local court demanding fee return have any effect.
  4. How would a demand for return be filed and served by the local Sheriff. (If possible)
  5. Prefer not to use an attorney to assist in recovery of this small amount as it would be a wash.

Suggestions:

 

Would welcome ideas and/or recommended steps on how to resolve this sensitive out of state issue.

 

Thanks,

 

HP

Contact her last commanding officer. he can probably kick open some doors. They have alot of weight and can tell the soldiers not to use that attorney and can help get the red cross involved which makes the VA work faster and may be a necessary step towards getting this attorney to do the right thing. also tell the NC prosecutor in charge of the investigation he may be able to lean on the attorney also.

 

I hope that things don't get worse.

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share

×
×
  • Create New...

Important Information

We have placed cookies on your device to help make this website better. You can adjust your cookie settings, otherwise we'll assume you're okay to continue.. For more information, please see our Privacy Policy and Terms of Use.