Do I Need An Attorney?

Client first law assists in making clear and understandable the plethora of documents encountered in everyday life.  The most obvious need for an attorney by an individual or family in the ordinary course of day to day events lie in the creation or reading of important legal documents such and contracts and wills.   First, we often need coaching in the timely preparation of wills and trust to channel assets to loved ones and friends.   Similarly, we are often confronted with the necessity of contract review or document review challenges for real-estate purchase, insurance or investment decisions around stock or pension fund analysis.  In these large investment decisions we cannot rely exclusively on the self interested brokers to protect our best interest.  You may not be able to understand the legalese of these documents, and the risk factors which are incorporated may require your own personal attorney to decipher. If these protections can be provided at a reasonable cost and without your leaving your home or office, why not try it.   It may be just the convenient and necessary support needed to encourage you to make sound and timely fiscal decisions.   Why shouldn’t you have your own attorney’s advice when required even though you are an ordinary wage earner or small business person?

Here are some examples of counseling in the following areas from actual services provided:

  1. How to leverage the equity in your home                                              
  2. Document review                                                                                               
  3. Settlement negotiation
  4. Heirship property negotiations: We will identity where the property is located and analyze the level of difficulty based upon the family heirship breakdown and cost associated with acquiring ownership, including title charges and legal process.
  5. Lease Purchase Agreement Property Negotiation
  6. Partition Suit Negotiations
  7. Franchise Agreement Counseling
  8. A response to an attorney’s request for insights in marketing property Tax appeal services.
  9. Response to an inquiry by a local business when they were sued in out of state court
  10. Real Estate Sale Contract Negotiation

 

  1. Leveraging the Equity in your Home

We propose to offer a loan advisory service to those in need of cash and who do not realize how to leverage their house for that purpose or realize that the cost of refinancing, with the exception of the appraisal, can be rolled into the loan.

PROTOTYPE CUSTOMER AND SERVICE PROVIDED

  1. Likely 35-60 years old (age is no barrier)
  2. Owns own home
  3. Has steady employment for at least 2 years
  4. Has cash flow problems and can’t catch up
  5. Number of dependents
  6. Pull credit report: needs a score of over 650
  7. gross annual income
  8. Analyze prospect
  9. If we can help, a fee contract is executed.   We are not brokers. Our contract is based upon providing an advice service to help our client to get out of financial debt.  Consideration for the service will be based upon an hourly rate or 3% of the final loan amount whichever is higher.
  10. Obtain an appraisal at a cost at market rate, usually $300-$400
  11. Obtain 2 months of pay stubs.

COUNSELING SERVICE DESCRIPTION  After professional consultation with the client and in the event it is determined that the family finance appears to be at the root of the distress, one solution that may be recommended is for the client to consider that he/she refinance their dwelling.  If the client agrees that they are willing to explore refinancing their dwelling, they will be advised that it is best to review their credit and employment status prior to applying to refinance.

The documents we will want to see for initial analysis will be,

  1.     Current, (within 1 month) credit report.  (you can get it on line).
  2.     2 months CURRENT pay stubs.
  3.     Two years of CURRENT constant employment. (Does not have to be with same employer).

These are the basic requirements to enable us to inform you whether they stand a chance of succeeding in obtaining a loan.

In the event you appear to be a good candidate, you will be informed that the lending institution you choose will most likely require an appraisal of their property which will cost approximately $300-$400 dollars.  Our initial fees for our services are $40 an hour.  For that we will assist them in processing the application.

An example of an actual correspondence to a client’s financial institution on the client’s behalf once financial feasibility is established:

Dear Ms._______________

After two years of fighting to maintain solvency in the payment of their retail creditors and negotiating for modifications of their two mortgages, their financial struggle has finally come to rest.  Their bankruptcy attorney guided them through the process of filing for bankruptcy under Chapter 7 earlier this year.  They received a discharge in August.   They were also successful in excluding both their automobile loans well as their mortgages.  They were also successful in negotiating a release of their second mortgage.

Now that these difficulties are behind them, they would like to use the equity in their house to begin to rebuild their credit.  They would like to start with their mortgage.   Their house is worth about $200,000.  Their current mortgage balance is $115,000 at 5.5 percent annual interest.    They are requesting a refinance loan at a lower rate in the amount of $140,000, permitting them to obtain $25,000 in cash at closing against their equity with which to fix-up their house and establish some cash reserves.  We would also like you to consider issuing them a visa card with an opening balance of $2,500 at a reasonable interest rate.

  1.  Document Review

Dear Client First Law

I have attached documents for your review.

I think it is OK to sign, but wanted to make sure I wasn’t signing something that may cause future problems. They said without my signature they lose access to my accounts and only the home office will be able to access the accounts. They said the new law may exist because some advisors have not acted in the best interest of clients.

Client First Response:
Click on the link below. The link opens to an explanation of the exemption you are being asked to sign:

https://www.clearygottlieb.com/~/media/cgsh/files/the-dols-new-investment-advice-regulation.pdf
The article is written by Cleary Gottlieb, a New York lawyer skilled in SEC issues.  To summaries his report, he suggest that the exemption you are asked to sign relaxes a rather complex set of regulations governing “self-dealing and conflicts of interest of the Ameriprise advisors who may suggest investments which arguably could prove to be bad advise. The SEC, Department of Labor, and Internal Revenue regulations work hand in hand to protect the public from pension funds ( otherwise known as investment funds for the sake of my discussion) from the numerous failures which occurred during the pre Obama market meltdown.

The upshot of this exemption is to put you on notice to read carefully any investment information sent to you by Ameriprise.  It is important to be aware whether the company specifically   “recommends” the investment or is simply making you aware that the investment exist. Always ask questions regarding the fine print in your investment prospectus.

The ultimate question is what happens if you don’t sign it. Do you gain or lose protection? This is a “protect your a_ _” exemption which defines the limits of liability in an investment failure by limiting the basis of company liability conditioned upon the extent to which their recommendation is reasonably and carefully crafted based upon a number of variables brought out by Gottieb’s report.

Do a fast read of the article. Jot down questions, and then call me. This is a good exercise to sharpen your investment eye.

  1. Settlement negotiation:

Example of an actual attorney letter

Dear ——-

I have reviewed the proposed settlement agreement, and I have an abiding belief that your lawyers have inadequately defended your right to work even though you have a disability.
I would like to call your attention to the recommendations I made to your dad earlier when settlement was proposed to you:
“she should not give too much discretion to her attorney. He does not want to go forward; true enough.  Give him what he wants, but only if he satisfies her concerns. She should be encouraged to understand the art of compromise: she will have used her law suit to win other advantages besides a settlement award.  She will have secured her future against possible prosecution and kept her county employment in her resume without having had to spend any money. This is safely accomplished by playing your endgame correctly.

Make the authority she gives to her attorney to withdraw her case specifically conditioned upon her attorney getting written agreement on both the employment stipulation in number 1 of your draft letter and the forbearance to initiate criminal proceedings alluded to in number 2 of the draft letter; and, in addition, the agreement should stipulate that her withdrawal will not incur any financial liability, including court cost, to her for having brought the suit.  Also, she should reserve the right to read and approve the final agreement.”

Some months ago you also said this to me regarding your suit:

“My lawyer stated that because my license was suspended from the end of April till the beginning of June. and I drove at work on a suspended license, the employer stated they would have fired me had they had known of this information.  My lawyer stated that this cuts my damages. He stated this is a law in this state…..”

In the light of your best settlement strategy and the weight given to your suspended drivers license by your attorney, I offer these comments. First, the county doctor who placed unfair conditions around your continued employment in the face of your disability caused the accident following on your initial attack would have seemed to me to be a basis for summary judgment in your favor or at the very least have been deemed to have shifted the burden to the County during discovery or at trial to dispel that inference.  You have not informed me just how the County dealt with that anomaly.

Further, the self-serving allegation by the County that you “knowingly drove” without a license and the rather specious charges implicating you with knowledge of and condoning a seems calculated to run you away from seeking compensation for your wrongful termination without having to deal with how their doctor unfairly addressed your case.  The charge of knowingly driving without a license is an unproven fact which is directly related to your having not been given notice of the license hearing and the notice of hearing going to your old address; and, the judge’s discretionary actions under those circumstances is not a foregone conclusion.  He might have been persuaded to simply curtail your driving without suspension in light of your infirmity.  You had no opportunity to challenge that suspension.  You should ask for citation to the law which your attorney gives so much weight.  Let’s see what it says.

Lastly, I do not understand the basis of the dollar settlement if your fee agreement is based upon thirty percent.  There is no mention of the future prosecution issue in the settlement except to say you must return the award if you are later prosecuted.  Does your lawyer have to return his fee in that eventuality? The agreement lacks mutuality on this point, and leaves future prosecution open. What’s the incentive to settle now if that the case.

I believe your case is stronger than it appears.  I would suggest that you have your lawyer redraft to address these concerns and others outlined in the strategy described above or perform a pre-trial of the issues.  More money to you should not be out of the question.

  1. Heirship property negotiations: We will identity where the property is located and analyze the level of difficulty based upon the family heirship breakdown and cost associated with acquiring ownership, including title charges and legal process.

Example of correspondence which illustrates this process:

Dear Client ———-,

I have attached below our local Attorney’s assessment of the level of difficulty in accomplishing a sale of your family’s interests in heirship property in Louisiana.

There appears to be substantial front end cost estimated to be upwards of ten thousand dollars to accomplish the necessary probates of your deceased family members.

The person who has an existing vested interest and the best shot at producing a buyout of your family’s interests is _____, but he would have to initiate legal process and spend more than the five thousand he has offered.   I do not believe he is well advised as to just how to accomplish that.

Dear Attorney,

I spoke with Mr. ____ at the _____ State Bank and they will require clear title and a clear title policy in order to proceed with their loan.  In Louisiana, a quitclaim deed is not sufficient to convey title except in very limited circumstances.  If there are owners of the property that are deceased, then successions would be required.  Without performing a full title search, we cannot offer any guarantees as to what would be required.

Attorney ___________

 

Dear _____,

Last week Attorney _______ referred me back to you.   I left a message with your office on Friday regarding a matter I originally brought to you last summer.   I am prepared to renew my request for a title search and closing representation in connection with a possible sale of the interest of my Chicago clients in property located in _____________, La.  However, unlike before we now have a potential purchaser, ________.  Their banker is _______at ______ State Bank.

He has committed to pay up to $5,000 of the attorney’s fees to accomplish this sale; he is currently farming on the property and has already acquired the interest of other heirs via quit claim deeds.   I will therefore need you to prepare a title abstract, cash deeds (quitclaim deeds in my parlance), a purchase contract, and perform the closing.

However, before commencing work I want to be assured that no probate or partitioning is required.  Before we begin, I am requesting that you call his banker to find out from their bank officer all of the condition precedents to closing on a loan to him.  I have told him to expect your call.   In other words, quit claim deeds should be the only legal requirements.  Find out what the seller’s title policy must guarantee to the purchaser and therefore, what are the legal condition precedents to closing before you begin your work.

This correspondence will follow up on our conversation last summer concerning my interest in selling the interest of ________’s heirs in the 40 acre tract.    These  heirs are my clients; their representative is Mrs. _________ of Chicago.  I am licensed in Illinois and North Carolina.

I have attached copies of flow charts of both the line of heirs as well as real estate tax information at the Morehouse Parrish Tax Assessor’s office.   The original tract was acquired prior to marriage.  _______is the record owner.  She died in the 1920’s leaving 4 children: A___, D____, H_____, and C_____.  D___’s heirs do not want to sell.  The farmer working the land has already acquired the interests of at least two of C_____’s four children as well as those of H_____’s heirs.  (See attached heirship flow chart for notations of these acquired interests)   D____ Q_____’s heirs do not wish to sell.

Dear Local Attorney,

I was referred to you then by the Chicago office of Chicago Title as someone who could provide title assistance with the sale of the one-quarter heirship property interest in land in ______________, La  owned by clients of mine in Chicago who are the heirs of _________, graphically depicted on the attached flow chart.  Responding to my inquiry about the legal requirements of a partition suit and/ or probate issues, at that time you referred me to another local attorney, __________.  Attorney ________ was everything you said he was: gracious and knowledgeable.  We have decided that a decision for probate or partition is premature at this time given the “pocketbook’ of my client and the possibility of a simple transfer via quit claim deeds of my clients’ interest.

Please confirm your understanding of my instructions and that you will call the _________ State Bank officer to determine whether there is a green light to go forward.

Please call me after your preliminary review and investigation and let me know if you are able to be helpful in achieving a sale of my clients’ interests.

  1. Lease Purchase Agreement Property Negotiation:

My husband and I are looking into doing a lease purchase to sell our home and would like to know how much it will cost for you to look over the contract and advise us. We would like to start this process in early July and appreciate any advice that you can share, thank you for you time. I have attached a copy of the contract and can be reached via email or phone at ___________, you can also reach out to my husband ______ at ___________.

Dear Mr. and Mrs. __________,

I have reviewed the financial strategy of the lease to purchase deal in general.  I have included in an attachment of several bullets of information for your review and our later discussion.  The extent to which your financial interest are embodied in the proposed contract frame the elements of where contract negotiation begins.

Please review the attached and let me know a time this weekend when you will have approximately an hour to devote to the discussion of what you believe your best strategy to be. Also tell me how you hold property and whether you believe your mortgage agreement is consistent with your intended undertaking.  Have you signed any other agreements with _________?

I encourage you to bring all of your concerns, no matter how far fetched you may think them to be, to our discussion.

Lastly, take a look at the Georgia State statute relevant to lease purchase agreements.

Dear ______,

You should make a check list from our conversation the other evening which includes suggested additions to your contract as a guide in your negotiations with your lessee.  Just to hi-light it.  Your main goal is to insure the income stream does not stop during the rental period and that the purchase option should be exercised subject only to well defined criteria.  All provisions should be clear and unambiguous in the way we have discussed it.  Getting both first and last months rent is a good idea.  Also, try to get a higher option price if you can.  Make sure that the lessee is responsible for holding you harmless and indemnifying you from any liability arising out of their subleasing. Let me know if you have questions. Forward to me any revisions you would like my opinion on.  There will be no further charge for this consultation.

6. Partition Suit Negotiations:

Dear Attorney ________,

Mr. ___________ has retained me to settle matters with his aunt, Ms. ______ on the above referenced matter.  The property for which you were appointed  Commissioner is heirship property, and when it comes right down to it neither of them wants to sell to strangers.   Mr. __________ has asked whether you could compromise your outstanding bill.  I believe he wants to take out a loan and buy out his aunt’s interest.

Attorney ______,

It was a pleasure talking with you. My client’s concern is that you did not forecast to him the basis of your fees prior to your work.   He is additionally disgruntled by his attorney’s charging him fees up front for an action that has resulted in being charged for something he could have done himself without incurring either of your fees.

I look forward to receiving a copy of the Court order approving your fees.  I have to agree that a buy out by the parties’ interest in the property would incur your fee of 5%.  The paradox is that they could have done this without the partition suit.  For me, this triggers an inquisition of why this case was brought in the first place if the result was a forgone conclusion of sale by either to the other which could have been accomplish without court intervention.

I do not have to reach answers to those questions in order to ask for mitigation of the current charges.  What is your bottom line on fees?  Whatever the sale price of 1/2 interest in the property should be the cap on fees.  But, in light of the off putting of my client’s attitude by the diminishing returns of the whole affair, I suspect there is room for an admission by all attorneys involved that he and his cousin have been compromised by events which do not reflect a forecast of  clarity in the outcomes produced.   Therefore, I invite you to include in your fee calculation the additional calculus of quantum merit.

Attorney ______,

After conferring with my client, I wish to modify his current intentions.  He does not wish to obtain a mortgage and buy out his cousin’s interest.  He plans to live on one of the two units which this property is constructed and zoned for while continuing in ownership with his cousins, giving her sole rights to the rental proceeds of the remaining unit.

Please understand that this conundrum of circumstances is a direct result of lawyers who were unable to “see the forest for the trees.”   The parties wanted King Solomon’s wisdom and got lawyer fees (pardon my hyperbole).

I pray that your Firm will recognize the fact that this began and ends as a family squabble which inadvertently involved the judicial process,  possibly because of a failure of our profession to properly counsel and direct the course of this controversy;  if you do, you and your Firm will arrive at a fair compromise which will cover your Firm’s compensatory expenses without unfairly penalizing their ineptness and my own shortcomings in fashioning a better outcome.

Attorney ______________,

Its looks like the parties will have to work things out themselves since neither wants to sell.  However, notwithstanding the legitimacy of your fees, they did not expect $340 an hour fees to sale their house.  They are agreeable to each paying $1000 immediately to settle this Matter.  Are you authorized to settle this case now for $2000?

Attorney ____________,

The current balance is $3673.61.  I am willing to waive the interest that has accrued, making the amount due $2,553.76.  I did the work.  The parties should have considered the cost before they started fighting between themselves.  Of course, hindsight is 20-20.

Dear Client,

I am including my series of emails with Attorney _____ on your case.  His last offer of compromise is included below.  I have also included our previous correspondence as well.  Please discuss this email with your cousins.  If agreeable, you will each owe one-half of $2553.76 or $1276.88.

You should regard Attorney ________s’ email as a settlement letter.  It is important to conclude this settlement immediately.  This can be accomplished by each of them sending a check to Attorney __________ at the address included in his email below within the next two weeks, hopefully.

  1. Franchise Agreement Counseling:
  • SCOPE OF ASSIGNMENT:
  1. PROVIDE COUNSELING ASSISTANCE IN SUPPORT OF BUY- BACK OF ORIGINALLY SOLD BUSINESS ASSETS;
  2. PROVIDE STRATEGIC ADVICE UNDER “1” ABOVE GOING FORWARD BASED UPON REVIEW OF SUBMITTED CLOSING DOCUMENTS FROM NOVEMBER OF 2015, JULY 2016 DOCUMENTS, FRANCHISE ENGAGEMENT LETTER, AND RESPONSE TO SEPTEMBER 4TH EMAIL OF CLIENT RESPONSIBILITY IN FRAMING A STRATEGY TO FACILITATE THE BUY BACK OF ORIGINALLY SOLD BUSINESS ASSETS, AND DAILY UPDATES.

After reviewing all the documents for the original and the current transactions, I have determined that at minimum, these adjustments need to be made in the existing agreement and a new agreement for your protection:

  • Original Agreement Changes
  1. The Operating Agreement should be amended to “require” a detailed quarterly P&L and quarterly net cash statement be distributed to all “members” of and a timely response to any reasonable request for income and expense documents.
  1. Amendment to the Operating Agreement should also be made to provide that “net cash” is determined by: calculating the amount of receipts for a quarterly period, referred to as the gross. Once totaled, all obligations paid from those funds are subtracted, leaving the net cash amount as the remainder.
  • New Agreement
  1. Should operations cease at the store in the future because of our inability to renew the lease or because of a natural disaster or act of God, the Davis family shall have the right to relocate the store to a nearby location without incurring any additional costs or development controls.
  1. Notwithstanding any other agreements executed contemporaneously with this memorandum to the contrary, the store location shall operate under the same agreement as the other store. This store shall be owned outright by my client and not subject to any fees or approvals, either in development or operations not otherwise stipulated herein.  These restaurants shall be freely alienable between family members as well as on the open market to third parties without the restraint of any other agreement to the contrary.
  1. The design and development plan for all retained stores shall be done at the complete discretion of my client.
  1. The third party beneficiary indemnity limitations of Article 9 of the Asset Purchase Agreement shall be eliminated and those indemnities be extended to all elements of my client’s business enterprise involved herein.
  1. Articles 6.5 and 6.6 of the Asset Purchase Agreement with respect to future stores shall also be eliminated. Future stores developed by my client shall conform to the “look” and “feel” of the original store.  In addition, my clients agree, in the spirit of cooperation,  to seek the advice of _______, LLC management on cost efficient design concept alternatives which are intended to enhance the design presentation and functional operations of its stores, provided that ________, LLC shall provide its response within seven (7) business days of receipt of design plans.  Should my Client  fail to open their first store in the State of Tennessee within 12 months, they agree to forfeit the right to develop the state.
  1. A Franchise fee of $5,000 shall be paid for the ________ location in addition to an on-going 5% royalty fee on gross sales.
  1. This agreement shall supersede any other agreement signed by the parties contemporaneous with the repurchase of the original store.
  1. Should any disputes under this memorandum agreement arise, the losing party shall pay the reasonable attorney fees of the prevailing party.    Signatures____________________
  • What are the production obligations of the Franchisor under the existing operating agreement.   

OPERATING AGREEMENT

  • Registered with the Securities and Exchange Commission under the Securities Act of 1933: What is the current status?
  • _______ Limited Liability Company. Articles of Organization filed with the __________ Secretary of State. Article 1
  • Business conducted under L.L.C. What of liability insulation of other individuals Article 2 see Article 5.3
  • Business run as a partnership for tax purposes. Article 4
  • Principal Office in ___________________
  • Capital Contributions: Article 8. Separate capital account to be maintained by the Company for each Member. 8.2
  1. Within twelve months of execution of the operating agreement, Franchisor shall contribute a maximum of $300,000 or more at its discretion for opening of first restaurant.
  2. Within twelve months anniversary of the first restaurant’s opening date, if the first restaurant achieves $1, 250,00 in gross sale and 25% of net/bottom-line “ (“First Restaurant Performance Target”)
  3. Your accountant should develop formula based upon the included language as to the requirement of capital contributions for the first three stores. No further obligation of capital contribution specified in this section.
  • Distribution to Members. Net tax distribution shall be made quarterly in accordance with Member units. Article 9
  • Books of Accounts and Records maintained by Manager. Review by Members on reasonable notice as set out in Article 11.
  • Violations of agreement enforced by injunctive relief Article 15.2
  • Engagement of Law Firm as Franchise Counsel See letter of July 12, 2016

Applied for trademark registration at federal level. Has registrations been received? See p.3

  1. A response to An attorney’s request for insights in marketing property Tax appeal services.

“When you get in front of a potential client, it is essential that you tell them if you can make a difference to their profitability,  You must give them a means to assess your impact.  You must be able to give them a working language to assess profitability in terms of the criteria for lowering property taxes.  Your marketing strategy is to provide a matrix for them to determine revenue potential in terms of property tax reduction.  Focus on the quantifiable revenue potential as a return on investment: property tax reduction as a revenue goal divided by the cost of property tax appeal.  Do you see?”

  1. Response to an inquiry by a local business when they were sued in out of state court

Hire local counsel to respond to this complaint without submitting to Missouri’s jurisdictions with a motion to transfer case to Illinois jurisdiction because St. Louis is an inconvenient forum given that all the witnesses are in Illinois.  Illinois law applies with respect to transactions in Illinois. If you need help identifying counsel, let me know.  You need someone skilled is civil procedure and contracts.

*****************
I am so glad you have secured local counsel. First, make sure you prepare a detailed account of the facts dating from when you first became aware of this controversy, your familiarity with the underlying allegations in the complaint and the parties therein, including whether you have knowledge of the underlying trust, have a ______account, or know the co-defendant.  Be sure to include a description of the scope of business activities of the _________Company, and the names of staff employed to accomplish those activities during the relevant time period.

Second, I believe it advantageous to familiarize your local counsel  with our preliminary discussions about your reluctance to go to trial in St. Louis County.  Although this is a case of pure fraud on your company and ______ bank, the alleged actions happened in Chicago: the check was written in Illinois and the actions of your company in check verification occurred in Illinois.  The only action in Missouri is the check negotiation.  Plaintiff wants us to believe that they negotiated a check for a Chicago resident, for over 90K without getting the holder’s social security number (and perhaps a background check), driver’s license or verifying with the bank the check is drawn on or waiting for the check to clear before advancing funds.  Seems incredible to me.  Is this a verified complaint or information and belief?

Third, the plaintiff and both defendants have citizenship in different states and the prayer for relief exceeds the federal court threshold. Removal to federal court is therefore possible in either St Louis or Chicago.  Has the co-defendant been served?  Is she a material party?

Fourth, looking at the status of the plaintiff as a holder in due course, your fraud defenses are only overcome by the plaintiff’s good faith attempts to verify the genuineness of the check and the bank upon which it is drawn and to have otherwise acted reasonably under the circumstances.  Their alternative theory of negligence must be supported by specific factual allegations of acts done by you or your Company staff which support that claim. The specificity of those facts can be drawn out by interrogatories or depositions.  Your counsel’s strategy, in my opinion, will likely be to establish what the legal elements of plaintiff’s causes of action are and, on those adduced facts, determine whether a motion for summary judgement supported by documentary evidence and affidavits will likely result in a dismissal of plaintiff’s case.

Fifth, I do not know what short of summary judgment can dismiss plaintiff’s case with prejudice or induce them to withdraw it.  Pleading defects are cured by amendment.  Its important to keep in mind that these substantive or procedural attacks can only occur after submission to the St. Louis Circuit Court.
When is it prudent to remove your case to federal court in your own jurisdiction on forum non convenience grounds?

Lastly, plaintiff’s veracity is such a large part of this case that attorney complicity in bringing a frivolous case must be part of your counsel’s initial entreaties as to why such a bogus case is being brought. Can they be persuaded to dismiss their own complaint short of protracted litigation either in Missouri or Illinois?    Your counsel’s “come to Jesus” meeting with apposing counsel  after filing your  limited and special appearance to save default and ask for time to answer, plead, or otherwise motion the court, could be just the thing to create some clarity and save some unnecessary effort and fees.

Given this short sketch, find out what your counsel’s approach will be and why.  Feel free to share this email with them.

  1. Real Estate Sale Contract Negotiation

Real estate sale contracts are binding upon the parties even before they reach an attorney for closing.  The terms and conditions of the contract may for the first time be fully understood by the parties as they are interpreted by their closing attorney as they march toward closing.  This fact belies the importance of sound advice during the contract negotiation phase of the real estate purchase. Such advice includes:

  • REVIEW AND ADVISE ON THE DRAFTING OF A REAL ESTATE SALE CONTRACT
  • CONTRACT NEGOTIATION

Client first law assists in making clear and understandable the plethora of documents encountered in everyday life.  The most obvious need for an attorney by an individual or family in the ordinary course of day to day events lie in the creation or reading of important legal documents such and contracts and wills.   First, we often need coaching in the timely preparation of wills and trust to channel assets to loved ones and friends.   Similarly, we are often confronted with the necessity of contract review or document review challenges for real-estate purchase, insurance or investment decisions around stock or pension fund analysis.  In these large investment decisions we cannot rely exclusively on the self interested brokers to protect our best interest.  You may not be able to understand the legalese of these documents, and the risk factors which are incorporated may require your own personal attorney to decipher. If these protections can be provided at a reasonable cost and without your leaving your home or office, why not try it.   It may be just the convenient and necessary support needed to encourage you to make sound and timely fiscal decisions.   Why shouldn’t you have your own attorney’s advice when required even though you are an ordinary wage earner or small business person?

Here are some examples of counseling in the following areas from actual services provided:

  1. How to leverage the equity in your home                                              
  2. Document review                                                                                               
  3. Settlement negotiation
  4. Heirship property negotiations: We will identity where the property is located and analyze the level of difficulty based upon the family heirship breakdown and cost associated with acquiring ownership, including title charges and legal process.
  5. Lease Purchase Agreement Property Negotiation
  6. Partition Suit Negotiations
  7. Franchise Agreement Counseling
  8. A response to an attorney’s request for insights in marketing property Tax appeal services.
  9. Response to an inquiry by a local business when they were sued in out of state court
  10. Real Estate Sale Contract Negotiation
  11. Criminal consulting:Review of case file

 

  1. Leveraging the Equity in your Home

We propose to offer a loan advisory service to those in need of cash and who do not realize how to leverage their house for that purpose or realize that the cost of refinancing, with the exception of the appraisal, can be rolled into the loan.

PROTOTYPE CUSTOMER AND SERVICE PROVIDED

  1. Likely 35-60 years old (age is no barrier)
  2. Owns own home
  3. Has steady employment for at least 2 years
  4. Has cash flow problems and can’t catch up
  5. Number of dependents
  6. Pull credit report: needs a score of over 650
  7. gross annual income
  8. Analyze prospect
  9. If we can help, a fee contract is executed.   We are not brokers. Our contract is based upon providing an advice service to help our client to get out of financial debt.  Consideration for the service will be based upon an hourly rate or 3% of the final loan amount whichever is higher.
  10. Obtain an appraisal at a cost at market rate, usually $300-$400
  11. Obtain 2 months of pay stubs.

COUNSELING SERVICE DESCRIPTION  After professional consultation with the client and in the event it is determined that the family finance appears to be at the root of the distress, one solution that may be recommended is for the client to consider that he/she refinance their dwelling.  If the client agrees that they are willing to explore refinancing their dwelling, they will be advised that it is best to review their credit and employment status prior to applying to refinance.

The documents we will want to see for initial analysis will be,

  1.     Current, (within 1 month) credit report.  (you can get it on line).
  2.     2 months CURRENT pay stubs.
  3.     Two years of CURRENT constant employment. (Does not have to be with same employer).

These are the basic requirements to enable us to inform you whether they stand a chance of succeeding in obtaining a loan.

In the event you appear to be a good candidate, you will be informed that the lending institution you choose will most likely require an appraisal of their property which will cost approximately $300-$400 dollars.  Our initial fees for our services are $40 an hour.  For that we will assist them in processing the application.

An example of an actual correspondence to a client’s financial institution on the client’s behalf once financial feasibility is established:

Dear Ms._______________

After two years of fighting to maintain solvency in the payment of their retail creditors and negotiating for modifications of their two mortgages, their financial struggle has finally come to rest.  Their bankruptcy attorney guided them through the process of filing for bankruptcy under Chapter 7 earlier this year.  They received a discharge in August.   They were also successful in excluding both their automobile loans well as their mortgages.  They were also successful in negotiating a release of their second mortgage.

Now that these difficulties are behind them, they would like to use the equity in their house to begin to rebuild their credit.  They would like to start with their mortgage.   Their house is worth about $200,000.  Their current mortgage balance is $115,000 at 5.5 percent annual interest.    They are requesting a refinance loan at a lower rate in the amount of $140,000, permitting them to obtain $25,000 in cash at closing against their equity with which to fix-up their house and establish some cash reserves.  We would also like you to consider issuing them a visa card with an opening balance of $2,500 at a reasonable interest rate.

  1.  Document Review

Dear Client First Law

I have attached documents for your review.

I think it is OK to sign, but wanted to make sure I wasn’t signing something that may cause future problems. They said without my signature they lose access to my accounts and only the home office will be able to access the accounts. They said the new law may exist because some advisors have not acted in the best interest of clients.

Client First Response:
Click on the link below. The link opens to an explanation of the exemption you are being asked to sign:

https://www.clearygottlieb.com/~/media/cgsh/files/the-dols-new-investment-advice-regulation.pdf
The article is written by Cleary Gottlieb, a New York lawyer skilled in SEC issues.  To summaries his report, he suggest that the exemption you are asked to sign relaxes a rather complex set of regulations governing “self-dealing and conflicts of interest of the Ameriprise advisors who may suggest investments which arguably could prove to be bad advise. The SEC, Department of Labor, and Internal Revenue regulations work hand in hand to protect the public from pension funds ( otherwise known as investment funds for the sake of my discussion) from the numerous failures which occurred during the pre Obama market meltdown.

The upshot of this exemption is to put you on notice to read carefully any investment information sent to you by Ameriprise.  It is important to be aware whether the company specifically   “recommends” the investment or is simply making you aware that the investment exist. Always ask questions regarding the fine print in your investment prospectus.

The ultimate question is what happens if you don’t sign it. Do you gain or lose protection? This is a “protect your a_ _” exemption which defines the limits of liability in an investment failure by limiting the basis of company liability conditioned upon the extent to which their recommendation is reasonably and carefully crafted based upon a number of variables brought out by Gottieb’s report.

Do a fast read of the article. Jot down questions, and then call me. This is a good exercise to sharpen your investment eye.

  1. Settlement negotiation:

Example of an actual attorney letter

Dear ——-

I have reviewed the proposed settlement agreement, and I have an abiding belief that your lawyers have inadequately defended your right to work even though you have a disability.
I would like to call your attention to the recommendations I made to your dad earlier when settlement was proposed to you:
“she should not give too much discretion to her attorney. He does not want to go forward; true enough.  Give him what he wants, but only if he satisfies her concerns. She should be encouraged to understand the art of compromise: she will have used her law suit to win other advantages besides a settlement award.  She will have secured her future against possible prosecution and kept her county employment in her resume without having had to spend any money. This is safely accomplished by playing your endgame correctly.

Make the authority she gives to her attorney to withdraw her case specifically conditioned upon her attorney getting written agreement on both the employment stipulation in number 1 of your draft letter and the forbearance to initiate criminal proceedings alluded to in number 2 of the draft letter; and, in addition, the agreement should stipulate that her withdrawal will not incur any financial liability, including court cost, to her for having brought the suit.  Also, she should reserve the right to read and approve the final agreement.”

Some months ago you also said this to me regarding your suit:

“My lawyer stated that because my license was suspended from the end of April till the beginning of June. and I drove at work on a suspended license, the employer stated they would have fired me had they had known of this information.  My lawyer stated that this cuts my damages. He stated this is a law in this state…..”

In the light of your best settlement strategy and the weight given to your suspended drivers license by your attorney, I offer these comments. First, the county doctor who placed unfair conditions around your continued employment in the face of your disability caused the accident following on your initial attack would have seemed to me to be a basis for summary judgment in your favor or at the very least have been deemed to have shifted the burden to the County during discovery or at trial to dispel that inference.  You have not informed me just how the County dealt with that anomaly.

Further, the self-serving allegation by the County that you “knowingly drove” without a license and the rather specious charges implicating you with knowledge of and condoning a seems calculated to run you away from seeking compensation for your wrongful termination without having to deal with how their doctor unfairly addressed your case.  The charge of knowingly driving without a license is an unproven fact which is directly related to your having not been given notice of the license hearing and the notice of hearing going to your old address; and, the judge’s discretionary actions under those circumstances is not a foregone conclusion.  He might have been persuaded to simply curtail your driving without suspension in light of your infirmity.  You had no opportunity to challenge that suspension.  You should ask for citation to the law which your attorney gives so much weight.  Let’s see what it says.

Lastly, I do not understand the basis of the dollar settlement if your fee agreement is based upon thirty percent.  There is no mention of the future prosecution issue in the settlement except to say you must return the award if you are later prosecuted.  Does your lawyer have to return his fee in that eventuality? The agreement lacks mutuality on this point, and leaves future prosecution open. What’s the incentive to settle now if that the case.

I believe your case is stronger than it appears.  I would suggest that you have your lawyer redraft to address these concerns and others outlined in the strategy described above or perform a pre-trial of the issues.  More money to you should not be out of the question.

  1. Heirship property negotiations: We will identity where the property is located and analyze the level of difficulty based upon the family heirship breakdown and cost associated with acquiring ownership, including title charges and legal process.

Example of correspondence which illustrates this process:

Dear Client –———,

I have attached below our local Attorney’s assessment of the level of difficulty in accomplishing a sale of your family’s interests in heirship property in Louisiana.

There appears to be substantial front end cost estimated to be upwards of ten thousand dollars to accomplish the necessary probates of your deceased family members.

The person who has an existing vested interest and the best shot at producing a buyout of your family’s interests is _____, but he would have to initiate legal process and spend more than the five thousand he has offered.   I do not believe he is well advised as to just how to accomplish that.

Dear Attorney,

I spoke with Mr. ____ at the _____ State Bank and they will require clear title and a clear title policy in order to proceed with their loan.  In Louisiana, a quitclaim deed is not sufficient to convey title except in very limited circumstances.  If there are owners of the property that are deceased, then successions would be required.  Without performing a full title search, we cannot offer any guarantees as to what would be required.

Attorney ___________

 

Dear _____,

Last week Attorney _______ referred me back to you.   I left a message with your office on Friday regarding a matter I originally brought to you last summer.   I am prepared to renew my request for a title search and closing representation in connection with a possible sale of the interest of my Chicago clients in property located in _____________, La.  However, unlike before we now have a potential purchaser, ________.  Their banker is _______at ______ State Bank.

He has committed to pay up to 5k of the attorney’s fees to accomplish this sale; he is currently farming on the property and has already acquired the interest of other heirs via quit claim deeds.   I will therefore need you to prepare a title abstract, cash deeds (quitclaim deeds in my parlance), a purchase contract, and perform the closing.

However, before commencing work I want to be assured that no probate or partitioning is required.  Before we begin, I am requesting that you call his banker to find out from their bank officer all of the condition precedents to closing on a loan to him.  I have told him to expect your call.   In other words, quit claim deeds should be the only legal requirements.  Find out what the seller’s title policy must guarantee to the purchaser and therefore, what are the legal condition precedents to closing before you begin your work.

This correspondence will follow up on our conversation last summer concerning my interest in selling the interest of ________’s heirs in the 40 acre tract.    These  heirs are my clients; their representative is Mrs. _________ of Chicago.  I am licensed in Illinois and North Carolina.

I have attached copies of flow charts of both the line of heirs as well as real estate tax information at the Morehouse Parrish Tax Assessor’s office.   The original tract was acquired prior to marriage.  _______is the record owner.  She died in the 1920’s leaving 4 children: A___, D____, H_____, and C_____.  D___’s heirs do not want to sell.  The farmer working the land has already acquired the interests of at least two of C_____’s four children as well as those of H_____’s heirs.  (See attached heirship flow chart for notations of these acquired interests)   D____ Q_____’s heirs do not wish to sell.

Dear Local Attorney,

I was referred to you then by the Chicago office of Chicago Title as someone who could provide title assistance with the sale of the one-quarter heirship property interest in land in ______________, La  owned by clients of mine in Chicago who are the heirs of _________, graphically depicted on the attached flow chart.  Responding to my inquiry about the legal requirements of a partition suit and/ or probate issues, at that time you referred me to another local attorney, __________.  Attorney ________ was everything you said he was: gracious and knowledgeable.  We have decided that a decision for probate or partition is premature at this time given the “pocketbook’ of my client and the possibility of a simple transfer via quit claim deeds of my clients’ interest.

Please confirm your understanding of my instructions and that you will call the _________ State Bank officer to determine whether there is a green light to go forward.

Please call me after your preliminary review and investigation and let me know if you are able to be helpful in achieving a sale of my clients’ interests.

  1. Lease Purchase Agreement Property Negotiation:

My husband and I are looking into doing a lease purchase to sell our home and would like to know how much it will cost for you to look over the contract and advise us. We would like to start this process in early July and appreciate any advice that you can share, thank you for you time. I have attached a copy of the contract and can be reached via email or phone at ___________, you can also reach out to my husband ______ at ___________.

Dear Mr. and Mrs. __________,

I have reviewed the financial strategy of the lease to purchase deal in general.  I have included in an attachment of several bullets of information for your review and our later discussion.  The extent to which your financial interest are embodied in the proposed contract frame the elements of where contract negotiation begins.

Please review the attached and let me know a time this weekend when you will have approximately an hour to devote to the discussion of what you believe your best strategy to be. Also tell me how you hold property and whether you believe your mortgage agreement is consistent with your intended undertaking.  Have you signed any other agreements with _________?

I encourage you to bring all of your concerns, no matter how far fetched you may think them to be, to our discussion.

Lastly, take a look at the Georgia State statute relevant to lease purchase agreements.

Dear ______,

You should make a check list from our conversation the other evening which includes suggested additions to your contract as a guide in your negotiations with your lessee.  Just to hi-light it.  Your main goal is to insure the income stream does not stop during the rental period and that the purchase option should be exercised subject only to well defined criteria.  All provisions should be clear and unambiguous in the way we have discussed it.  Getting both first and last months rent is a good idea.  Also, try to get a higher option price if you can.  Make sure that the lessee is responsible for holding you harmless and indemnifying you from any liability arising out of their subleasing. Let me know if you have questions. Forward to me any revisions you would like my opinion on.  There will be no further charge for this consultation.

6. Partition Suit Negotiations:

Dear Attorney ________,

Mr. ___________ has retained me to settle matters with his aunt, Ms. ______ on the above referenced matter.  The property for which you were appointed  Commissioner is heirship property, and when it comes right down to it neither of them wants to sell to strangers.   Mr. __________ has asked whether you could compromise your outstanding bill.  I believe he wants to take out a loan and buy out his aunt’s interest.

Attorney ______,

It was a pleasure talking with you. My client’s concern is that you did not forecast to him the basis of your fees prior to your work.   He is additionally disgruntled by his attorney’s charging him fees up front for an action that has resulted in being charged for something he could have done himself without incurring either of your fees.

I look forward to receiving a copy of the Court order approving your fees.  I have to agree that a buy out by the parties’ interest in the property would incur your fee of 5%.  The paradox is that they could have done this without the partition suit.  For me, this triggers an inquisition of why this case was brought in the first place if the result was a forgone conclusion of sale by either to the other which could have been accomplish without court intervention.

I do not have to reach answers to those questions in order to ask for mitigation of the current charges.  What is your bottom line on fees?  Whatever the sale price of 1/2 interest in the property should be the cap on fees.  But, in light of the off putting of my client’s attitude by the diminishing returns of the whole affair, I suspect there is room for an admission by all attorneys involved that he and his cousin have been compromised by events which do not reflect a forecast of  clarity in the outcomes produced.   Therefore, I invite you to include in your fee calculation the additional calculus of quantum merit.

Attorney ______,

After conferring with my client, I wish to modify his current intentions.  He does not wish to obtain a mortgage and buy out his cousin’s interest.  He plans to live on one of the two units which this property is constructed and zoned for while continuing in ownership with his cousins, giving her sole rights to the rental proceeds of the remaining unit.

Please understand that this conundrum of circumstances is a direct result of lawyers who were unable to “see the forest for the trees.”   The parties wanted King Solomon’s wisdom and got lawyer fees (pardon my hyperbole).

I pray that your Firm will recognize the fact that this began and ends as a family squabble which inadvertently involved the judicial process,  possibly because of a failure of our profession to properly counsel and direct the course of this controversy;  if you do, you and your Firm will arrive at a fair compromise which will cover your Firm’s compensatory expenses without unfairly penalizing their ineptness and my own shortcomings in fashioning a better outcome.

Attorney ______________,

Its looks like the parties will have to work things out themselves since neither wants to sell.  However, notwithstanding the legitimacy of your fees, they did not expect $340 an hour fees to sale their house.  They are agreeable to each paying $1000 immediately to settle this Matter.  Are you authorized to settle this case now for $2000?

Attorney ____________,

The current balance is $3673.61.  I am willing to waive the interest that has accrued, making the amount due $2,553.76.  I did the work.  The parties should have considered the cost before they started fighting between themselves.  Of course, hindsight is 20-20.

Dear Client,

I am including my series of emails with Attorney _____ on your case.  His last offer of compromise is included below.  I have also included our previous correspondence as well.  Please discuss this email with your cousins.  If agreeable, you will each owe one-half of $2553.76 or $1276.88.

You should regard Attorney ________s’ email as a settlement letter.  It is important to conclude this settlement immediately.  This can be accomplished by each of them sending a check to Attorney __________ at the address included in his email below within the next two weeks, hopefully.

  1. Franchise Agreement Counseling:
  • SCOPE OF ASSIGNMENT:
  1. PROVIDE COUNSELING ASSISTANCE IN SUPPORT OF BUY- BACK OF ORIGINALLY SOLD BUSINESS ASSETS;
  2. PROVIDE STRATEGIC ADVICE UNDER “A” ABOVE GOING FORWARD BASED UPON REVIEW OF SUBMITTED CLOSING DOCUMENTS FROM NOVEMBER OF 2015, JULY 2016 DOCUMENTS, FRANCHISE ENGAGEMENT LETTER, AND RESPONSE TO SEPTEMBER 4TH EMAIL OF CLIENT RESPONSIBILITY IN FRAMING A STRATEGY TO FACILITATE THE BUY BACK OF ORIGINALLY SOLD BUSINESS ASSETS, AND DAILY UPDATES.

After reviewing all the documents for the original and the current transactions, I have determined that at minimum, these adjustments need to be made in the existing agreement and a new agreement for your protection:

  • Original Agreement Changes
  1. The Operating Agreement should be amended to “require” a detailed quarterly P&L and quarterly net cash statement be distributed to all “members” of and a timely response to any reasonable request for income and expense documents.
  1. Amendment to the Operating Agreement should also be made to provide that “net cash” is determined by: calculating the amount of receipts for a quarterly period, referred to as the gross. Once totaled, all obligations paid from those funds are subtracted, leaving the net cash amount as the remainder.
  • New Agreement
  1. Should operations cease at the store in the future because of our inability to renew the lease or because of a natural disaster or act of God, the Davis family shall have the right to relocate the store to a nearby location without incurring any additional costs or development controls.
  1. Notwithstanding any other agreements executed contemporaneously with this memorandum to the contrary, the store location shall operate under the same agreement as the other store. This store shall be owned outright by my client and not subject to any fees or approvals, either in development or operations not otherwise stipulated herein.  These restaurants shall be freely alienable between family members as well as on the open market to third parties without the restraint of any other agreement to the contrary.
  1. The design and development plan for all retained stores shall be done at the complete discretion of my client.
  1. The third party beneficiary indemnity limitations of Article 9 of the Asset Purchase Agreement shall be eliminated and those indemnities be extended to all elements of my client’s business enterprise involved herein.
  1. Articles 6.5 and 6.6 of the Asset Purchase Agreement with respect to future stores shall also be eliminated. Future stores developed by my client shall conform to the “look” and “feel” of the original store.  In addition, my clients agree, in the spirit of cooperation,  to seek the advice of _______, LLC management on cost efficient design concept alternatives which are intended to enhance the design presentation and functional operations of its stores, provided that ________, LLC shall provide its response within seven (7) business days of receipt of design plans.  Should my Client  fail to open their first store in the State of Tennessee within 12 months, they agree to forfeit the right to develop the state.
  1. A Franchise fee of $5,000 shall be paid for the ________ location in addition to an on-going 5% royalty fee on gross sales.
  1. This agreement shall supersede any other agreement signed by the parties contemporaneous with the repurchase of the original store.
  1. Should any disputes under this memorandum agreement arise, the losing party shall pay the reasonable attorney fees of the prevailing party.    Signatures____________________
  • What are the production obligations of the Franchisor under the existing operating agreement.   

OPERATING AGREEMENT

  • Registered with the Securities and Exchange Commission under the Securities Act of 1933: What is the current status?
  • _______ Limited Liability Company. Articles of Organization filed with the __________ Secretary of State. Article 1
  • Business conducted under LLC. What of liability insulation of other individuals Article 2 see Article 5.3
  • Business run as a partnership for tax purposes. Article 4
  • Principal Office in ___________________
  • Capital Contributions: Article 8. Separate capital account to be maintained by the Company for each Member. 8.2
  1. Within twelve months of execution of the operating agreement, Franchisor shall contribute a maximum of $300,000 or more at its discretion for opening of first restaurant.
  2. Within twelve months anniversary of the first restaurant’s opening date, if the first restaurant achieves $1, 250,00 in gross sale and 25% of net/bottom-line “ (“First Restaurant Performance Target”)
  3. Your accountant should develop formula based upon the included language as to the requirement of capital contributions for the first three stores. No further obligation of capital contribution specified in this section.
  • Distribution to Members. Net tax distribution shall be made quarterly in accordance with Member units. Article 9
  • Books of Accounts and Records maintained by Manager. Review by Members on reasonable notice as set out in Article 11.
  • Violations of agreement enforced by injunctive relief Article 15.2
  • Engagement of Law Firm as Franchise Counsel See letter of July 12, 2016

Applied for trademark registration at federal level. Has registrations been received? See p.3

  1. A response to An attorney’s request for insights in marketing property Tax appeal services.

“When you get in front of a potential client, it is essential that you tell them if you can make a difference to their profitability,  You must give them a means to assess your impact.  You must be able to give them a working language to assess profitability in terms of the criteria for lowering property taxes.  Your marketing strategy is to provide a matrix for them to determine revenue potential in terms of property tax reduction.  Focus on the quantifiable revenue potential as a return on investment: property tax reduction as a revenue goal divided by the cost of property tax appeal.  Do you see?”

  1. Response to an inquiry by a local business when they were sued in out of state court

Hire local counsel to respond to this complaint without submitting to Missouri’s jurisdictions with a motion to transfer case to Illinois jurisdiction because St. Louis is an inconvenient forum given that all the witnesses are in Illinois.  Illinois law applies with respect to transactions in Illinois. If you need help identifying counsel, let me know.  You need someone skilled is civil procedure and contracts.

*****************
I am so glad you have secured local counsel. First, make sure you prepare a detailed account of the facts dating from when you first became aware of this controversy, your familiarity with the underlying allegations in the complaint and the parties therein, including whether you have knowledge of the underlying trust, have a ______account, or know the co-defendant.  Be sure to include a description of the scope of business activities of the _________Company, and the names of staff employed to accomplish those activities during the relevant time period.

Second, I believe it advantageous to familiarize your local counsel  with our preliminary discussions about your reluctance to go to trial in St. Louis County.  Although this is a case of pure fraud on your company and ______ bank, the alleged actions happened in Chicago: the check was written in Illinois and the actions of your company in check verification occurred in Illinois.  The only action in Missouri is the check negotiation.  Plaintiff wants us to believe that they negotiated a check for a Chicago resident, for over 90K without getting the holder’s social security number (and perhaps a background check), driver’s license or verifying with the bank the check is drawn on or waiting for the check to clear before advancing funds.  Seems incredible to me.  Is this a verified complaint or information and belief?

Third, the plaintiff and both defendants have citizenship in different states and the prayer for relief exceeds the federal court threshold. Removal to federal court is therefore possible in either St Louis or Chicago.  Has the co-defendant been served?  Is she a material party?

Fourth, looking at the status of the plaintiff as a holder in due course, your fraud defenses are only overcome by the plaintiff’s good faith attempts to verify the genuineness of the check and the bank upon which it is drawn and to have otherwise acted reasonably under the circumstances.  Their alternative theory of negligence must be supported by specific factual allegations of acts done by you or your Company staff which support that claim. The specificity of those facts can be drawn out by interrogatories or depositions.  Your counsel’s strategy, in my opinion, will likely be to establish what the legal elements of plaintiff’s causes of action are and, on those adduced facts, determine whether a motion for summary judgement supported by documentary evidence and affidavits will likely result in a dismissal of plaintiff’s case.

Fifth, I do not know what short of summary judgment can dismiss plaintiff’s case with prejudice or induce them to withdraw it.  Pleading defects are cured by amendment.  Its important to keep in mind that these substantive or procedural attacks can only occur after submission to the St. Louis Circuit Court.
When is it prudent to remove your case to federal court in your own jurisdiction on forum non convenience grounds?

Lastly, plaintiff’s veracity is such a large part of this case that attorney complicity in bringing a frivolous case must be part of your counsel’s initial entreaties as to why such a bogus case is being brought. Can they be persuaded to dismiss their own complaint short of protracted litigation either in Missouri or Illinois?    Your counsel’s “come to Jesus” meeting with apposing counsel  after filing your  limited and special appearance to save default and ask for time to answer, plead, or otherwise motion the court, could be just the thing to create some clarity and save some unnecessary effort and fees.

Given this short sketch, find out what your counsel’s approach will be and why.  Feel free to share this email with them.

  1. Real Estate Sale Contract Negotiation

Real estate sale contracts are binding upon the parties even before they reach an attorney for closing.  The terms and conditions of the contract may for the first time be fully understood by the parties as they are interpreted by their closing attorney as they march toward closing.  This fact belies the importance of sound advice during the contract negotiation phase of the real estate purchase. Such advice includes:

  • REVIEW AND ADVISE ON THE DRAFTING OF A REAL ESTATE SALE CONTRACT
  • CONTRACT NEGOTIATION