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If an attorney does not notify clients of a Notice to Cure

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If an attorney does not notify clients of a Notice to Cure

Postby cgbtechcorp » Wed Apr 15, 2015 9:58 am

I'm in more than a bit of a situation right now, my ex-landlord and I came to a settlement that he was very unhappy with after his attorneys advised him to take whatever was offered when he committed perjury after 3 questions into cross examination. I was countersuing for harassment, his unwillingness to make reasonable repairs, and his constant presence in the backyard of the dwelling he did not live in specifically due to my letting him know that it made me uncomfortable.

In short, I still don't see why my attorney sold my wife on settling, especially since she was the person who drove me crazy about the apartment. The landlord and I had good relations prior to my asking for rights I didn't really want to ask for, the apartment served my needs fine without 311 needing to be called (although I did have serious problems getting him to provide heat in the winter and exterminators in the summer.)

Recently I suffered from an illness that kept me from making payment on the deal by the due date. The attorney notified my wife and I that they had levied judgments against us and that we were due in court in just over a week to determnine whether we owed over 40k in legal fees that my landlord incurred. We asked what happened to the Notice to Cure that was clearly written in the stipulation and he responded that one of his paralegals had left a message with me the day it was received by fax. I provided him with phone records, text records and internet records that proved that my phone was on throughout the day and that no one had contacted us from his office. In fact, my wife had called in early March after my illness required hospitalization to see if damage control was needed and the lawyer said that "he hadn't heard anything."

My wife is 7 months pregnant, I'd been unemployed and we'd been living at our in-laws. Not only are there judgments against us (I had submitted control of my voicemail and email to my wife in late January) but our attorney is flat out lying to us. Phone records can still be produced if he wanted them to be, yet he said that despite the overwhelming evidence that we were never notified of the notice to cure that his paralegal had "called me and left a voicemail."

We found out about this last Friday and today is Wed, I've been living on couches since I came back from the city on Friday (I was at interviewing) and so basically, I'm homeless. I'm also basically separated because if I am responsible for a 50k judgment against my wife, that'll be it. I doubt I'll even get to meet my son. It kills me to think that a) we specifically gave her access to my phone and email to prevent situations like this (late payments, missed opportunities) and that I'd paid my attorney over 7k in this matter and now he's lying about letting us know about a notice to cure.

Does our attorney have any liability for not passing on that Notice to Cure to us? How about for flat out lying over email to us?

Does anyone know any way that we can get the settlement arrangements put back together? If necessary, I will pay off the rest of them by cashing the rest of my savings. If not, we are in such serious trouble that this would be the most trouble I've ever been in. I am getting letters from my doctors stating that I was incapable of being held responsible for my actions, but will that be enough? I'm not terrified for myself, I'm terrified for my wife who I met at the attorney's office yesterday and who looked exhausted, paler than milk and generally not in the health that she was in on Friday before our lives were upended. We just survived a major blow to our marriage when I was hospitalized, this is the worst thing that could possibly happen.
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Re: If an attorney does not notify clients of a Notice to Cu

Postby TenantNet » Wed Apr 15, 2015 7:26 pm

Seems you're more resentful of your wife, but whatever.

You haven't given us sufficient information here. How in the hell did you incur $40,000 in legal fees to the LL, especially since you had you own attorney to advise you?

In L&T law, a Notice to Cure is required for Holdover proceedings against rent stabilized tenants. That is written in the Rent Stabilization Code and is required prior to a Notice of Termination and then the commencement of the Holdover proceeding. A Notice to Cure would advise the tenant they are in violation of the lease by a certain behavior. It basically says, "fix this" or we will take you to court.

However here, this legal matter you are now in seems to resolve around some sort of default on your part. You don't say if it was an OSC or a motion for contempt by the LL. Either way, I do not know if a Notice to Cure, or similar notice, would be required unless it is in a so-ordered stipulation that had been used to initially resolve the matter.

If that's the case, then you can properly raise the lack of such a notice in your defense.

If your attorney did not do something he was required to do, in some cases that might be malpractice, but more likely what is called "Law Office failure" and a legitimate reason to use as a defense.

Recently in a case brought by my landlord (yes, I'm a tenant), the landlord's attorney simply didn't show up for the case and the court dismissed the case. A few weeks later the LL lawyer submitted a motion in court to "vacate the default." All he had to do was claim it was "law office failure" coming up with a VERY lame excuse for why he didn't apper and the judge reinstated the case. So it can happen.

We can't help you with your personal situation, but there should be a way to put things back together. We don't know enough about it to give you specific solutions, but in many cases, it might be in the interest of both parties to re-engage.

You might consider getting a second opinion from another lawyer if you feel your current attorney isn't up to snuff. But be aware, as you surely know, another lawyer means more legal bills.
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