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cooljoe51 · May 15, 2009, 04:04 AM

I have a couple of questions. I'm suing for breach of contract, damages resulting from, and failure to act in good faith. I'm suing because in my attorney review contract, it was stated that any warranties, insurances, etc. would be transferred over to me at closing. My house had oil tank insurance before I purchased, but my lawyer NEVER transferred the insurance over to me. I'm taking him to special civil court where I can only sue for a max of 15k. I have the estimates and the attorney review to show this. His lawyer responded asking for a affidavit of merit. This should not be required of me since I am only suing for breach of contract and not malpractice, correct? Any advice would greatly appreciated. Thanks!

JudyKayTee · May 15, 2009, 05:45 AM

If the Attorney was supposed to do something and did not, then it's legal malpractice. He/she also undoubtedly has insurance against acts of malpractice, insurance which would pay your claim.

So I would comply because it looks like this is going to end up as a malpractice claim.

LisaB4657 · May 15, 2009, 05:53 AM

Even though you may be claiming that the attorney breached a contract, in essence it is a malpractice claim and it will be treated that way. From the info you provided it sounds like you are in NJ. If so then you'd better get an attorney to represent you or at least get a consultation with one because the requirements for successfully filing a malpractice claim in NJ are strict and if you don't follow them to the letter then you will lose any chance to collect on your claim.

cooljoe51 · May 15, 2009, 06:07 AM

Originally Posted by LisaB4657

Even though you may be claiming that the attorney breached a contract, in essence it is a malpractice claim and it will be treated that way. From the info you provided it sounds like you are in NJ. If so then you'd better get an attorney to represent you or at least get a consultation with one because the requirements for successfully filing a malpractice claim in NJ are strict and if you don't follow them to the letter then you will lose any chance to collect on your claim.

Lisa,
You are correct. I am in NJ. I have spoken with a few different lawyers. Most told me they would not take the case because I'm going up against another lawyer. The other told me he would want a 7500 dollar retainer and that probably would not cover all the costs and to sue over 15000 dollars, really is not worth it. I spoke with a friend of mine who's a very descent attorney and he says although it's not worth it for me to take the case, to sue for breach of contract, but not malpractice. I'm not sure if this helps at all... I'm not sure if I can fight it as a non malpractice case? I'm really hoping I can. I'm not a rich man at all and am only trying to get my property fixed. I can't afford any of these things :( Thanks.

LisaB4657 · May 15, 2009, 06:16 AM

If there is a specific contract that is only between you and the attorney, which is signed by both of you, and which says that he will arrange to have the warranties transferred to you, then you may have a pretty good contract case and won't have to go with malpractice. But if you are relying on the contract you had with the seller and there is nothing in writing specifically between you and the attorney then breach of contract won't work.

cooljoe51 · May 15, 2009, 06:24 AM

Originally Posted by LisaB4657

If there is a specific contract that is only between you and the attorney, which is signed by both of you, and which says that he will arrange to have the warranties transferred to you, then you may have a pretty good contract case and won't have to go with malpractice. But if you are relying on the contract you had with the seller and there is nothing in writing specifically between you and the attorney then breach of contract won't work.

The only thing I really have is the attorney review which states, "At or before closing, the Seller will provide to and transfer over to the Buyer copies of any warranties regarding any structure, fixture or appliance included in the sale." Which my attorney had okay'd on my behalf. He also did end up signing over power of attorney. Does this help my case at all? Thanks for all the advise thus far!

LisaB4657 · May 15, 2009, 06:42 AM

What do you mean, your attorney review? Are you talking about the contract between you and the seller? If so then that wasn't signed by your attorney so there is no contract between you and your attorney. Thus, no breach of contract. You'll have to sue for malpractice.

cooljoe51 · May 15, 2009, 06:46 AM

The attorney review was the contract that had to be agreed upon from both parties before the sale could go further. It was supposedly the whole reason I needed the attorney. He looked it over and signed it on my behalf. But, wouldn't it be his job to make sure that is transferred over at closing?

LisaB4657 · May 15, 2009, 06:57 AM

The attorney review was part of the contract between you and the seller. The fact that the attorney signed it on your behalf did not create a contract between you and the attorney. The relationship between you and the attorney is created by the rules of law practice. When the attorney didn't do his job properly it became legal malpractice. That's why you can't rely on contract law to sue him. You have to follow the rules for legal malpractice. That means that you're going to have to get an affidavit from another attorney who practices real estate law in NJ, saying that your case has merit.

cooljoe51 · May 15, 2009, 06:59 AM

Ugh... and that all costs money :( Do you think it's something that I can still bring to court and try? If the judge deems it as a legal malpractice suit, I can get an extension to get the affidavit of merit?

LisaB4657 · May 15, 2009, 07:03 AM

You don't have a contract with your attorney. I can't see a judge allowing you to get around the rules and sue for breach of contract when there is no contract. It shouldn't cost that much to get an attorney to sign an affidavit saying that your case has merit.

LisaB4657 · May 15, 2009, 07:11 AM

I just checked. You can download a form Affidavit of Merit for only $14.95 at Findforms Search Results

Getting an attorney to sign one shouldn't be more than $200.