Question
I had some land that I sold to a contractor for an agreed amount of dollars. That contractor made one payment before filling bankruptcy and losing the land to the bank/lender, leaving me without money or the land. I hired an attorney who promised to get the land back for a fee of $30,000.00 but hasn't been heard from. What do I do about the attorney and the land?
Answer
The action against the attorney is a simple one. You need to sue for a refund of your $30K.
More complicated is the issue with the land. If it has been lost by foreclosure of a senior lien, you may have no recourse, However, you will have recourse against the land if you were not properly notified of the foreclosure. This would require a review of the foreclosure documents and the bankruptcy proceeding.
Answer
Mr. Sussman is basically correct. There is no way to tell if anything can be done about the land without reviewing all the facts and documents. You may also have recourse against the contractor if there was fraud involved, by filing a non-discharge claim in the Bankruptcy. ANYTHING you might be able to do, however, has a VERY short time limit from the date of foreclosure and/or the bankruptcy. You need to find a new lawyer YESTERDAY.
As for the other lawyer, in addition to suing for your money back, I suggest you immediately file a complaint with the State Bar.
Answer
The previous answer may be correct insofar as it goes, but I think there is more to be said.
First, suit for a refund of $30,000 is only appropriate if you paid the $30,000 up front and got no services in exchange. Even then, you may have good cause to sue for additional damages if you were poorly represented.
However, I think it's likely that you agreed to pay a $30,000 fee, but didn't advance the entire amount. Hopefully, you paid only a modest retainer, with the balance to become payable upon his successful completion of the work.
Next, you have a right to file a complaint against the attorney through the State Bar of California. In contacting the State Bar, you should know they have a "Victims of Fraud" fund that may, in certain cases and under certain conditions, reimburse clients who have been defrauded by their attorneys. While your case probably isn't eligible, it's at least worth making a full inquiry.
As to the loss of the land itself, or the loss of the payment for it, I wonder if you sold it to the contractor on credit and failed to get some collateral. As you certainly know, most sales of real estate that aren't "cash" sales involve a lender, or the seller himself, getting a promissory note that's secured by a deed of trust. If, however, you sold land on credit without getting a deed of trust (tsk, tsk!), you may still have a legal recourse. California Civil Code section 3046 describes the "Vendor's lien" as follows: "Lien of Seller of Real Property. One who sells real property has a vendor's lien thereon, independent of possession, for so much of the price as remains unpaid and unsecured otherwise than by the personal obligation of the buyer."
The Bankruptcy Court should recognize your vendor's lien under California law, and you should be able to get it back, or get your unpaid balance. However, in order to do so, you must timely present your claim to the bankruptcy court as a secured creditor. Hopefully, the "bar date" for presentation of claims to the U.S. Bankruptcy Court has not passed. You apparently need to be represented in the bankruptcy case and get a claim on file in timely fashion.
The one thing that is not clear is, when the land was lost to the bank/lender, whose loan, and whose bank or lender are we talking about? The contractor's, or yours? If you sold land that was subject to your loan, you probably had a duty to pay off the loan from the sale proceeds, or have the buyer assume the loan with permission of the bank/lender.
Your Zip code suggests that you are in Sacramento. Is that where the bankruptcy case is filed? I would be pleased to provide you with a proposal for competent, responsive and economical representation, at least to get this figured out and handled to your greatest advantage. (I appear in various courts all over Northern California, from Marin to Siskiyou).
