Suing Lenders and the Settlement Process

Q: I sued my lender a couple of years ago and the case dragged on and on. I found out my attorney wasn't doing his job and he subsequently resigned. I hired a new attorney and we agreed to a settlement with the lender.
 

After a deadline passed, I contacted my attorney and she convinced me that it was normal to run past a deadline.

When the settlement documents were drafted, the documents had a number of errors and my attorney told us to wait for new documents. Later my attorney suggested that we might be able to get the lender to agree to my suggested corrections but even if they did not we would have a 60- day rescission period.

I have waited for almost six months but we have not yet finalized the settlement. When we agreed to the settlement I expected it to take a while but not over a year.

It seems that my attorney is more concerned with her professional relationship with the opposing attorney and other cases than with handling my case. I need an attorney who is not afraid of big corporate attorneys. Can you offer me any help?

A: It isn’t unusual for settlements and negotiations to take a very long time. But court dates should never be missed.

On the other hand, if the date that was missed was a date set between the parties to negotiate the settlement, your attorney and the opposing counsel’s attorney might have extended the date in order to continue their negotiations. If one of the parties to the litigation fails to participate in the negotiations, the other party can go back before the judge and continue the litigation.

You should be able to discuss the timetable for the settlement process with your attorney.

If the settlement documents had errors that affect the amount of money you will be paid or would affect you in other ways, these errors should have been corrected immediately. If the errors are minor and do not affect the overall settlement, your attorney may be trying to obtain the settlement without the inevitable delay that occurs when settlement documents are revised.

What you need to do now is determine whether these mistakes are major and need immediate attention. Your attorney may be correct in her judgment but your involvement is crucial to make sure your best interests are protected.

There are a couple of puzzling statements in your letter, including your reference to a 60-day right of rescission and your comment that your attorney does not know if the lender would agree to your changes in the document.

It seems as though there are some items that are still in dispute. If so, but you agree to the overall settlement and are happy with it, you may decide to proceed with the settlement regardless of whether these disputed items are resolved.

On the other hand, if these disputed items are basic to your suit against the lender and you don’t want to settle unless they concede these issues in your favor, you must make your wishes known to your attorney.

If your attorney is unwilling to listen to you, you must find one that will. Sometimes an attorney and his or her client will disagree on tactics or settlement issues – which works as long as you understand the reasons why you and your attorney have a different view.

But if there are fundamental differences of opinion, and you and the attorney cannot agree on how to proceed, then you need new counsel.

A final thought: many client’s that feel that they know the law better that their attorney. Once in a while, that might be true. More often, clients disagree with their attorneys because they don’t like the way or pace with which the case is proceeding.

There are times in court cases when a client may become angry or distrustful of his or her attorney solely because the case does not appear to be going in the client’s favor. But just because you’re losing the case, doesn’t mean the attorney has done a poor job or does not have your best interests at heart.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Ilyce R. Glink’s latest book is The REAL U Guide to Bank Accounts and Credit Cards. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website www.thinkglink.com