update




LACBA Update Back Issues - January 2015


Motions to Quash, Unlawful Detainer, Temporary Restraining Order: Not Your Standard Pro Bono Matter

No one would expect handling a pro bono case—which began as a trusts and estates matter—would involve so many twists and turns, revealing a family bully and the victim becoming the victor.

That’s exactly what happened in a case recently resolved through the LACBA AIDS Legal Services Project (ALSP) by a team of volunteer attorneys and support staff over the course of two years and 800 hours.

Jason (not his real name), 60, originally from Nebraska, has been HIV+ since 1999. In 1989, his parents paid $110,000 for a townhouse for him to live in perpetuity.

He works out of his home as a self-employed florist, with a monthly income of about $2000 when able to work.

The townhouse was owned by a family trust drawn up in Nebraska, where the father died in 2009. Since the time of purchase in 1989, Jason paid $1,500 each month, assuming that the amount covered the mortgage in addition to Homeowner’s Association dues, insurance, and property taxes. After his father died, he had been faithfully sending payments to one of his brothers, who is the trustee of the father’s estate.

Jason became unable to work for over seven months due to a back injury. During that time, he couldn't make the full payments and offered to pay $1,100 per month instead. But the brother, a successful business owner, refused to accept anything less than the $1,500 and attempted to evict him.

Yet, the trust document clearly showed that the parents wanted to secure housing for Jason as long as he paid “reasonable” costs and even included language that would help him if he became disabled, which he clearly was.

The Plot Thickens

Jason had never made payments directly to the lender, and after 23 years, he had never received an accounting for the $400,000+ he had paid. Was the mortgage ever refinanced? Was the mortgage paid off? An attorney at Public Counsel who was assisting Jason with his public benefits referred him to ALSP for help. At first, Jason was referred to Arnold Kassoy, a trusts and estates attorney at Manatt, who tried to resolve the matter by reasoning with the brother, to no avail. Next, ALSP contacted a second attorney, Stephen Hicklin, a mortgage finance specialist, who filed a motion to quash the unlawful detainer but didn't have the resources at the time to be more aggressive.

At this point, Proskauer became involved in the case, with partner Kenneth Sulzer facilitating the ALSP referral with the approval of partners Andrew Katzenstein from the Personal Planning Department and Ronald Wood from the Litigation Department and the firm's Pro Bono Initiative Committee. Proskauer filed supplemental papers in support of the motion to quash and appeared at the hearing. Wood reported back to ALSP:

We've managed to keep the client in his home (where's he's still running his floral business), and we've succeeded in defending against the brother's unlawful detainer action. Separately, we filed a Petition for Accounting in the Probate Court and prevailed over the brother's demurrer to attack our petition. In law-of-the-jungle terms, prey has become predator.

It appears the mortgage on the property may have been paid off some time ago, but the brother/trustee never notified Jason of that fact. Instead, he has continued to extract substantial monthly payments from Jason (up to 75% of his monthly income), even when he was unable to work, all while a surplus—and perhaps a substantial one—has been accumulating that could have been tapped to substantially reduce Jason’s monthly financial burden.

If there was no mortgage, and the annual taxes, monthly condo association dues, and insurance maintenance have totaled approximately $500 per month, where has the excess of nearly $1,000 each month been going, especially since the "overpayments" were in contravention of the parents’ wish expressed in the trust that Jason pay the minimum amount necessary to keep and maintain the property?

At this point, instead of trying to work out a settlement, the brother coerced his elderly mother to amend the trust agreement to terminate Jason’s life estate and to insert a Nebraska choice of law provision. Proskauer promptly disputed the amended trust agreement and successfully argued that the mother couldn’t act alone to amend, alter, or revoke the trust.

Therein Lie the Mystery and the Fight!

A team of 14 attorneys and support staff from Proskauer never let up for a moment and, over the course of nearly two years, devoted more than 800 hours of pro bono legal service on Jason’s behalf. Finally, in November 2014, Ronald Wood, one of the lead attorneys on the case, e-mailed ALSP with a last update:

After 19 months of aggressive litigation, we settled the Jason trust litigation. In addition to Jason having saved approximately $30,000 in housing costs the past 19 months (as the matter has been tied up in litigation, with his brother/trustee refusing to accept payment out of concern that it might compromise his legal position), Jason will be paid a substantial sum—more than 152% of what he told us was his ideal number—and will be allowed 90 additional rent-free days to wrap up his life and business before moving to Seattle. Jason has scouted out some land there he intends to buy and, along with his partner and a ready-made community of friends and acquaintances in the flower industry, will open a new floral business in the greater Seattle area.

We appreciate the opportunity to have served as Jason’s counsel. He was a good client, with an unfortunate health situation and a bullying family member. We are pleased to have helped him push back and come away with a dignified result, in which he is not only able to make a smooth transition into a new life, but is doing so with his head held high and financed entirely by the bully.

In addition to Ronald Wood, the core team from Proskauer included Robert Escalante, Amy Dunphy, Joan Varela, Joshua Kopple, Rochelle Emert, Yena Kim, and Stephanie Eady.

Afterward, ALSP received a communication from Jason:

Thank You—Thank You—Thank You. I so appreciate everything everyone has done for me!!! Ron Wood and Robert Escalante were terrific support these last few years. It was an emotional roller coaster for me! Ron is really a classy guy and a powerhouse attorney, and I can speak the same for Robert—so professional!!

I wish to thank you and all your team for the help you have given me the last few years!! You are the best at what you do! Again, thanks for getting me through this.

For more information about the LACBA AIDS Legal Services Project, contact Project Director Laurie Aronoff at (213) 833-6776 or by e-mail at laronoff@lacba.org.