RECENT SETTLEMENTS AND JUDGMENTS

 (All of the cases below were concluded in 2008 or 2009)

Clients sold a condominium unit in South Boston and took back a second mortgage from the buyer. The borrower subsequently sold the unit to his attorney, who failed to arrange for the payoff of the client’s mortgage in connection with his purchase. Alan sued the attorney on the clients’ behalf, contending that the attorney was obligated to pay the mortgage contemporaneously with the mortgage. Result: After a four-day trial, court entered judgment in clients’ favor for the amount due on the note and awarded clients their attorney’s fees.

Client had significant money in several mutual funds with one mutual fund company. Client accessed her account online and discovered that nearly all of the funds in her account were no longer in the account. The mutual fund company performed an investigation and determined that when client divorced her husband, she did not change the user name and password on the account. The company suspected the former husband and investigated the loss but could find no evidence to suggest that he made the transfers in question. Client sued the mutual fund company based on a statement in their prospectuses that provided that the company would not reimburse customers for losses caused by the customer or someone who the customer allowed to access the account. Alan argued that this language could be interpreted as a warranty that the company was guaranteeing that it would reimburse customers for losses in their accounts that were beyond their control. The court agreed and denied the company’s summary judgment motion. Result: Case settled, with client getting back all amounts lost from her account and most of her attorney’s fees.

Clients are two of three children of a woman who died in 2007. In 1994 the decedent prepared a trust that sought to evenly divide certain bank and brokerage accounts equally among the three children. In 2006, the decedent amended the trust to leave all of the accounts to the third child (son), who had been managing the decedent’s finances. After the decedent died the clients learned of this amendment and sued their brother, claiming that he had used undue influence to cause his mother to change her estate plan. Result: Case settled prior to the taking of any depositions, with clients receiving approximately 60 percent of the amount in the trust as of the decedent’s death.

Clients are four of five children of a woman who died in 2003. The fifth child—the clients’ sister—was the only one of the children living with their mother as an adult. Approximately three weeks before the mother’s death, the sister caused the mother to sign over to her a deed for the house. During discovery it was revealed that the sister was present when the mother signed the deed; that she reviewed all draft documents that were sent by the attorney who prepared the deed; and that she paid the attorney’s bill. The mother signed a will at the same time and discovery revealed that the attorney had two of his paralegals signed their attestation to the mother’s signature though they admitted they had not been present when the will was signed. Alan arranged for the four children to take an assignment from the administrator of the mother’s estate of the right to sue the mother’s attorney for malpractice. In the lawsuit the children claimed that the attorney facilitated the transaction with the deed for the purpose of benefiting the clients’ sister and not his actual client, the mother. Result: Case settled for $220,000.

Client is a 70-year-old woman with significant mental disabilities. Client and her two sisters (one of whom was also disabled) were beneficiaries of a trust established by their father, of which the “non-disabled” sister was the trustee. The trust said that it was not a requirement but the father’s “intention” that the trustee secure a “housing benefit” for the disabled children. The trustee decided to sell the house and initiated an eviction proceeding against the client. Discovery in the case revealed that the trustee did nothing to assist the client in finding a place to live (the client ended up initially in a motel, and then in public housing). Further discovery revealed that the trustee used funds from the trust to pay for certain personal expenses, such as a new car. Result: Trust severed by the court, with 40 percent going to a new trust for the benefit of the client, and with that trust managed by a professional money manager. Trustee agreed to personally pay $20,000 directly to the new trust.