How can I sue my attorney if she is no longer practicing?

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In 2005, I filed chapter 7 bankruptcy. The attorney went over everything with us and told us we could reaffirm the mortgage debt. We agreed. Losing our home was not an option. We did everything we were asked and went to the court date and all was well, so we thought. Well, our mortgage company recently explained that we did NOT reaffirm our debt and that as long as we payed the payment, they would “let” us keep our home. We have an ARM and tried to take advantage of some loan modification programs but that’s when we found out the info stated and were refused the modification. The attorney is no longer practicing law. But, the firm she worked for is still in practice. We are in VA. My question is…can I sue her or the firm? I think it would be malpractice but Im not sure. Do attorneys pay E and O insurance or something like it? Would that even apply? And, if so..after 4 years and her not in practice? I really don’t have any proof of our intention to keep our home. It seems like we probably completed a questionaire asking us that question though. I’d think that would be on file. I appreciate any responses. We are in a terrible spot, cant refi and cant afford the adjustable mortgage.

  1. Reply
    Political Junkie & a proud Repub
    February 21, 2011 at 1:04 am

    The attorney you had is no longer practicing at that particular firm, but it doesn’t mean she is no longer practicing. If you don’t have any proof, how can you sue your attorney for something the mortgage lender said they did not have? The burden of proof lies on you, my dear. I’m not clear on how the attorney in this matter is guilty of legal malpractice.

  2. Reply
    February 21, 2011 at 1:08 am

    How about just getting back in contact with that law firm – meeting with who ever took over the former attorneys cases and explaining the situation to them. They may be able to fix it.

    If your ultimate goal is to keep your home (as you claim) then this will work a whole lot faster than trying to find one attorney who is willing to sue another attorney.

  3. Reply
    February 21, 2011 at 1:41 am

    You hired the firm, you would sue the firm.
    Yes, they are insured.
    Be prepared to prove that the lawyer failed to follow proper procedures or was grossly negligent. Lawyers can not guarantee the outcome of a case or be held responsible for how it turns out.
    First, check the statute of limitations in your state. This was 4 years ago. It may be too late to seek remedy for malpractice.

  4. Reply
    February 21, 2011 at 2:28 am

    She told you: you could reaffirm the mortgage debt. Did YOU? Obviously not as the debt was not handled. You should have followed up and made sure all things were done. It seems this problem was created as much by you because of not understanding it all.

  5. Reply
    February 21, 2011 at 3:07 am

    So…you can’t make your mortgage payment, but you want to go through the trouble of retaining an attorney to sue your old attorney?

    Even if you’re going pro-se, you should at least consult with someone who could tell you the statute of limitations. I think where I’m from (NOT Virginia) it’s set at 3 years. However, I’ve been told that it can vary depending on circumstances and the point from which one could legally say involvement ended. In order to determine if the statue of limitations is up you’ll need a lawyer.

    Do you have anything to prove that the mortgage company isn’t the one jerking you around?

    Even if your attorney is out of practice she or her firm should still be maintaining records up to about 8 years. You should contact them and try to get a copy of your file. If she was thorough there should be the paperwork/correspondence reflecting your desire to reaffirm. Theoretically there ought to be a paper-trail for it.

    It doesn’t really make sense that with a chapter 7 (which I understand to be a liquidation of assets) you’d be able to keep your house *without* re-affirming. I mean, if the idea is to sell everything else off, why would the house not be let go unless there was some sort of agreement in place? *Especially* if they’ve let you go for this long without trying to take you for more. I don’t have the greatest trust for mortgage banking, especially after October.

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