Legal Question in Real Estate Law in California

In 2008 we have paid a loan modification company $3,500 for a loan modification services. A few months later that company was shut down by DRE. We filed a lawsuit with the small claims against the company. Nobody from the company showed up at the court and we automatically won the case. We could not collect the judgement from the company, its bank accounts were empty. We researched the company and found out that the lawyer that signed our contract was listed as an owner of that modification company on the Fictitious business name website. We filed affidavit of identity to change the defendent from the company name to the lawyer, the owner of that company. The affidavit of identity was approved by the judge. We contacted the owner/lawyer to collect the judgement, he said that he had no idea about the case against him. He filed a motion to vacate the judgement, but he did it too late, so it was denied by the judge. Yesterday he paid us the judgement amount and at the same time he handed us a notice that he filed a lawsuit against us for damages to his reputation etc,. in the amount of $350,000 plus $350,000 punitive amount. His lawsuit stated that we gave false testimony at the court, we did not pay him personally any money, but collected judgement from him etc. We do not have money to hire an attorney for this case. I would appreciate some advise. What evidence would you recommend to collect to tie him to that modification company? Would fictitious business name that lists him as an owner and his signature on the contract would be enough for the judge? That's everything we have right now. We do not know anybody that works at that company, to ask questions.

We have 30 days to write an answer. Can we file a Cross-complaint and ask for compensation of demages for all the loan modification mess and all the lawsuit stress? Will it increase the court costs? Can the judge reward us with some compensation of we do not file a cross complaint.

Actually any advise will be appreciated.


Asked on 10/21/10, 10:06 am

3 Answers from Attorneys
Gary R. White Burton & White

You need to consult with an attorney.

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Answered on 10/26/10, 11:05 am
Anthony Roach Law Office of Anthony A. Roach

He's an idiot for an attorney. You need an attorney right away. You need to file what is known as a Special Motion to Strike pursuant to SLAPP. That stands for strategic litigation against public participation. Your attorney can ask for his fees in that motion, and have the thing dismissed.

A small claims lawsuit is not a springboard for a malicious prosecution action.

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Answered on 10/26/10, 3:14 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

I also suggest you consider contacting the California State Bar and discussing the facts with a staff member with responsibility for receiving public complaints about unethical attorney practices. You need to fine an answer to this lawsuit, but this situation is sufficiently shocking that it should also be brought to the attention of the watchdogs who supervise the profession of law in California.

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Answered on 10/26/10, 9:32 pm


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