Legal Question in Real Estate Law in California

Default judgement has been made. Attorneys fault . We lost the case. Help

A default judgement has been made against us, due to our attorney's neglection. Our property has been in court for a partition case for almost a year. First we received a default notice from the other parties attorney, which i'm sure our attorney also received it. Then comes a default judgement, which our attorney said he's going to file a motion to appeal and says don't worry about it. Now the case is over and we loose, due to a default and we lost everything, money has been distributed to court fee, attorneys fee,to other party. etc.. the share of equity and all. We Don't even received a notice that we have to appear in court which we've been waiting for a long time, so the judge can hear our side of the story. The judge give all the favor on the other party, since we're in default that we dont even know.

We have a good proof that we can win the case. But our attorney i think just ignore the other parties notice, or dind't do anything about it.

Is there a way that we can reopen the case, or fight the judgement. So the judge can hear our side and see our proof, evidence, and all. Since it's not our fault that our attorney didn't respond on time or just completely neglect us.


Asked on 3/30/06, 2:58 am

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Default judgement has been made. Attorneys fault . We lost the case. Help

Partition cases are darn hard to win outright, i.e. to convince a court that the property shouldn't be partitioned at all. Partition is a right of co-ownership. It can be lost in very limited circumstances by waiver or laches, and possibly otherwise. Few partition plaintiffs lose outright.

Where you get screwed if your attorney is lax is on the resulting division of the net proceeds.

Relief from a default judgment is possible, but there are time limits and other limitations.

I have a mini-specialty in partition cases, and I would be pleased to review your facts, in detail, free. Please contact me at [email protected].

I don't do malpractice suits, but I can also counsel you on whether you have a malpractice case against your attorney and assist you in finding someone in that field. You very well may have a case.

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Answered on 3/30/06, 3:59 am

Re: Default judgement has been made. Attorneys fault . We lost the case. Help

Based upon the facts as you have laid them out, you would have a difficult, if not impossible, time of convincing a judge to set aside the judgment.

First, what is your "defense" to the partition suit? Partition is nearly an absolute right of any co-owner of property. For example, if two persons own a property as tenants in common (joint owners), then either has the right to sue for partition. There is not a whole lot you can do to stop that. The real meaty issues in partition suits turn on how much each owner is entitled to in terms of deductions, reimbursements, attorneys fees, etc.

So first, I would need to know whether you had a legitimate defense to the case.

Second, I would need to know when the default was entered. Even if relief were available to you (to set aside the judgment), there are strict time limits and procedural limitations.

Finally, if the property has been sold, it is likely too late to do anything about that, because it was likely sold to a bona fide third party purchaser and also per court order.

Sounds like this ordeal has been going on a long time. I would expect the other side, and the judge, to question why you did not act sooner to replace your attorney and/or get into court to set aside the default. Once default is entered, you don't get to come to court to tell your side of the story.

You may have a claim against your attorney for legal malpractice.

Find yourself a good real estate attorney fast. We are litigators with extensive experience with title and tenancy issues, including partition. We would be pleased to sit or chat with you.

Good luck.

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Answered on 3/30/06, 9:45 am

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