This is such a catch-22. I saw some similar questions posted and answered. I understand this question should be directed towards a legal professional. But so far I'm turning up nothing anywhere I look. Situation:
I am caregiver for my mom. She's 84, early stages dementia. I have DPOA and no one has ever had an issue with me using it. She no longer understands 'bank accounts' or 'debit cards'. Luckily so far, I'm getting over-all gratitude for everything I do, no accusations/paranoia/threats etc.
She receives Social Security and that's it. I am an independent contractor, lately with very little income, mainly due to an ongoing dispute over her 2 family property, and a certain large bank that has the mortgage on it.
She receives a summons to appear in Superior Court. Soon after a Default judgement. I come in to the case, filing my DPOA document, filing my Appearance Pro Se, but on behalf of the defendant, my mother. I file Motion to Vacate default because she didn't realize she needed to do anything. I file for a Motion to File Late Answer. Judge approves everything. Several months and hearings later, when I was late for 'Conference to Review Status', a new judge retroactively Denies all of my filings, and then IMMEDIATELY enters Judgement for the Plaintiff, by DEFAULT. All he writes on all of my filed docs is "not signed by attorney admitted to the BAR.'
The plaintiff's initial Motion for Default immediately goes back into standing, and there's not a thing I can do about it. Due Process = none.
Hire a lawyer? No for several reasons. Money is one of them. I was so close, and I have a very strong defence/counter-claim to at least force them into a settlement. But instead, now we've been served with a 90 day notice, a necessary step preceding a foreclosure. The judge told me, in plain English in session "There is a way around this but I cannot give you legal advice". Anybody, please please, I need a hero with a simple answer.
-I have learned a lot, but I still haven't found THE answer to this, likely there is no simple correct answer
-But, in some states it is simple. Arizona is famous for being the first state to abolish there "Unlicensed Practice of Law" clauses. It is claimed that this had a very positive effect over all on 'fairness' and 'justice' as reported by the people that live there. Similar in California.
-In Massachusetts, 'UPL' statutes remain strong, and for certain things, bring heavy penalty. Kind of funny but one of them is offering any sort of help with foreclosure defense- without being licensed by the BAR is a criminal penalty. Also, the advertising of it.
-I noticed in the case's docket, when I initially came in to represent my mother, my name wasn't entered in the 'counsel' field, but the word 'proper'. I didn't think much of it. Welll, I'm onm to them, i think! Someone 'erred' and they meant to type 'Pro Per' which is latin for 'as their own person'...despite me introducing myself with the 'Pro Se' designation, which is latin for 'as him/her self'. Sometimes, there is no difference. Sometimes, there is one difference. Which is that Pro Se, means I am not an attorney, but I have been accepted as a member of the court. All regular attorneys are members of the court, and this is crucial for establishing 'jurisdiction', first step in a civil law suit. Pro Per can sometimes mean Pro Se, but as a 'Person' that is not part of the court. Which clearly proven to be an accurate assumption, since I didn't notice this little clue, and didn't say a word or write a word about it. So after giving me some time to figure it out, I didn't, and enough was enough, all my filings were struck/reversed.
-There's a perfectly contradicting statute, in the same section of 'laws', that says any person can choose to appear Pro Se, or appoint anyone they'd like, to appear on their behalf, but maximum 2 people. Haha...hmm. I have a plan.....
you may not find what you are looking for on this site BUT they give an option to ask for additional information
I know it's basically just translation of many new, and other mortgage related state laws, from pure legalese in the Mass General Laws, to English-ish.
I'm completely at a loss as to what the CMR indexing thing is, and what that is citing. Maybe there's a gem buried under that mystery! Thank you!
I did have one thought though about the issue of your representing your mother pursuant to the DPOA. It's the possibility of a "Next Friend" lawsuit to get around the lack of a specific clause authorizing court appearances. It might be argued, if there's a broad clause allowing representation generally, that such a clause could be interpreted as legal representation in a court.
I've seen Next Friend representation used when a parent represents a child who isn't of legal age. I don't know though whether or not it could be used for an elder parent.
Common sense could suggest that since a Next Friend acts on behalf of someone who's not old enough (or capable of) representing him or herself, that this could apply. In your mother's case, it wouldn't per se be an age issue, but rather one of capacity, as you perceptively wrote in your introduction.
I will look this up for sure.
One more thing I forgot to mention. Obviously the assistant Clerk assigned to my case decided she hated me one day. But I called the main number, someone else answered in the 'docket room'. And actually offered some advice(that i'm taking with a grain of salt)
To this same question she said to just draft the docs and have my mom sign.
Buut, I don't think that will resonate very well with the incompetence thing. Although debatable, as this issue is a very complex task that she honestly would never have any clue about regardless of age. But most times she definitely still has capacity to , for example, agree to amend the POA document. I'm still putting off the medical poa(healthcare proxy) papers for a bit, only because I sensed some nervousness last time I brought it up.
And great to hear the feedback! I'm a tech/science guy by trade and kin, parents including aforementioned mother - Mathematicians.
Never ever would I have thought I would not only learn some stuff about the practice of Law, but even enjoy it. In a certain way, it's even MORE of a precise science than math/physics/etc. The strict precision of definition and the trees of deriving constructs, it's, in a way, perfect(despite being an incomprehensible mess, to the uninitiated.)
Cheers!
“not signed by attorney admitted to the BAR.”
I have known judges to be very annoyed when a person did not hire proper representation. I would get on the phone to find the proper attorney.
Meanwhile, study this.
https://www.mass.gov/info-details/massachusetts-law-about-self-represented-litigants
I have read that whole text in the past and again just now.
And all the research on the matter has turned up that:
a Agent-In-Fact cannot represent their principal in a court of law.
However, exceptions may be granted by the judge.
Some of the possible simple solutions the judge was hinting at, that i'm trying to drill down one by one:
1. SImplest. There isn't a specific clause in the DPOA document that says the principal grants the agent authority to appear on her behalf in court. What is and is not assumed via statutory definition of POA, i read varies state by state. But combing all of my states general laws, I could not find anything regarding that question. I found an article with a matrix of all states, comparing what POA means by default. Buuuut I don't haev a Lexis subscription so I could not view it
2. Add myself, in some form, as a beneficiary to what my mother 'barely' possesses. I would think this would allow me to appear Pro Se for myself. In my state a 'Warranty Deed" seemed applicable, and legal
3. Most states have the clause that says any 3rd party who does nto allow me to exercise my POA to protect my principal, is subject to claims etc. The gotya: Of course this would not apply to a judge. BUT, I might be able to apply to the plaintiff. Because the *Plaintiff* CAN add additional respondents to a claim. So I would file a ..something.. addressing the plaintiff, and asking that since his client has been talking with me exclusively for quite some time, and only I know enough about the situation to effectively argue my mother's side, the plaintiff MUST bring me into the case, or risk a claim based on the aforementioned clause. Groovy, eh?
4. Somehow file something into the case that says my mother's constitutional right to Due Process has been neglected. along with an Affidavit of Indigency.
Everyone else's big picture advise is dead on. But this judgement was entered end of May. CLerk 'claims' i've lost my chance to file notice of Appeal(didnt wanna go down that road anyway), but that there are only maybe 2 things I can still file. Or otherwise I could of course bring in a new lawsuit against the bank.
1. Best recollection from when I worked for law firms is that this kind of situation would require a Motion to Set Aside (+/ or reverse) the Judge's decision. However, you should review the Court Rules for the Mass. Superior Court for specifics.
2. In Michigan, Motions typically required support of a Brief (sometimes short, sometimes more complicated), and other pleadings. But the Brief requires legal knowledge. Are you prepared to engage in legal research on the issues? Have you ever done legal research? I'm not trying to criticize or intimidate you, but one has to understand precedents in case law to effectively research.
3. And, equally important, are you prepared to argue a Motion in front of this judge? Do you have strong nerves and a great deal of confidence, b/c that's what it will take? And how do you propose to respond to the plaintiff's counsel's arguments? You can rely on the fact that he/she will have citations and far more experience in motion practice.
4. Even if you wanted to hire an attorney, the politics of the court might mitigate against an attorney being willing to challenge a judge, assuming the judges are elected (I haven't researched to make that determination.) The value of the case and how much the attorney could make from it would also be a factor. But if you're low on funds, this wouldn't be an option.
5. I think serious consideration should be given to working toward a compromise. Big banks are powerful, have their own legal staffs and can also afford to hire silk stocking law firms. You're literally up against a potential tornado of challenges by the firm representing the bank, or the bank's in-house attorneys.
6. You write that you feel you have a "very strong defense/counter-claim". Did you include an Affirmative Defense in your pleadings, and/or file anything reflecting that claim yet? If not, why?
7. If not, I think it's time to do so and use it as leverage to negotiate a compromise. It will improve your standing, and save the bank and/or its law firm money and time (which is often more important than legal costs).
And seriously consider this from the bank and counsel's position. How will this defense/counter-claim benefit them? It often comes down to that - what do they get out of it? Make a proposed settlement appealing to them and it'll be easier to resolve this situation.
I'm serious; you're up against a literal potential tornado of power from the bank and its legal counsel.
8. Lastly, how did all this start in the first place? If the mortgage was in default, was any attempt made for a work-out (bad word in the legal profession though) or renegotiation of terms? Does the mortgage cover the 2 family unit?
If the bank is foreclosing, and is successful, will your mother lose the 2 family unit?
I think these issues bear some very serious consideration. Right or wrong, it's hard to battle power.
-real estate industry places = immediate attempts to lure me into a con scheme. Which almost happened, and I learned a lot from t
-FB groups for, what the court staff(fairly) would call 'predatory litigants'.
In particular for matters of foreclosure. They have done an incredible job at discrediting anyone else that may actually have a real issue, that it makes it very difficult persuade any professional, pro bono or $$$$$, to even consider that I'm not a delusional con artist my self. "There is no such thing as debt! Screw the banks!' blah blah
-Online law Q/A sites, most of which are just marketing funnels for desperate attorneys. The advice is always brief and ends with "You need to hire an attorney"
-Slightly more legit Q/A sites : immediately deleting my question, and explaining that they did not want to be responsible if someone's advice screwed me over and then --> hire an attorney
If only I found this place first. Seriously, thank you so so much!
1. Well I was doing fine with my motion to vacate default. Once granted, it turned back the clock to the point where I would begin performing discovery.
2. OMG please don't feel like you need to soften your blow or sugar coat. It's beyond clear to me the sincerity of your intentions. Tear me to shreads! Yes I have, I've learned much, and have yet more to learn. I'm pretty ok with research of statutory law at this point. Case law, i'll find on occasional review of. But you nailed it. I don't really know the proper approach.
3. " And, equally important, are you prepared to argue a Motion in front of this judge? Do you have strong nerves and a great deal of confidence, b/c that's what it will take? And how do you propose to respond to the plaintiff's counsel's arguments? You can rely on the fact that he/she will have citations and far more experience in motion practice."
Well so far I felt ok in front of the judge, the one time I had to orally persuade him to allow me to file into the case. He asked "What is your concern?" and i told him. And he said "ok"
As for the plaintiff, how does the saying go?
"Age and treachery shall always defeat youth and skill"
Hahah this guy REALLY plays hardball. It's almost a little pathetic, and is one of a plethora of tipoffs that they screwed something up and are praying I don't figure it out.
But what he does is, when speaking at session, every single word out of his mouth is a lie, I'm serious. But he's not under oath. And they are the sort of lies that ...actually no theyre just totally lies, and clearly the judge is used to it, cause I see the skeptical look on his face.
To answer most of your other questions in one fell swoop:
Yes I have gone through just about every single special program that the mortgage servicer offers. i've come to learn that nearly all of them, are kinda pointless.
It's a mortgage that was originated in 2006. It's a classic example of the irresponsible underwriting, terrible terms, but designed to close the deal type of mortgage that caused the big collapse shortly there after.
5. . That is the whole point. I definitely can't seriously site statutes and caselaw on the fly etc. The entity that holds the note, the mortgage* , and whose name takes up a paragraph, bascally told me they would entertain any deal if I drafted it. The one and only consumer/poor people protector, that didnt just hang up the phone, make excuses, or most often, try to introduce me to their real estate developer friend, was our state's A.G.. One of their super fancy attorneys said she would glance over my proposal before I send it.
6. Yes I had an affirmative defence. No counterclaims
There are no simple answers, though, so what I'll ask while I'm resurrecting my response are these questions:
1. Are you litigating a suit for foreclosure?
2. Have you or the bank, through its counsel, offered any compromises, settlements or other action?
3. Have the rents from the 2 family properties been "attached" (a legal term) and the rents confiscated by the bank or its attorneys?
Back later; I need some refreshments after I lose such a long post.
1. no. my state is non-judicial foreclosure. I'm almost nervous to say what the lawsuit was for, because it's SO weird, it may reveal my identity. And I know that if there's any hope for equitable relief for my mother and I, it certainly would mean no publicity, possibly a gag order clause. It was filed as 'Real Property - Other'. And the plaintiff was seeking relief, that a. already occured a year prior. b. was in my favor not theirs. So clearly there was some trickery hidden in there. It appears that the judge, before entering judgement for plaintiff, figured out what they were REALLY up to. And basically spoonfed me what I need to do(and what my defence should be, and against what) in the form of scribblings on the plaintiff's motion document. ....."Subject to any defences the defendant may bring against this action"
This is why although everything was between-the-lines and I got cornered into a seemignly no-recourse situation, I still feel that the court treated me fairly, despite being Pro Se.
3. no
Also, OMG thank you X 1000!
Did you provide a doctor's letter that Mom has dementia and can no longer make informed decisions? This really seems unfair when the defendant has a Dementia and someone is trying to help them.
The Judge asked me , "Does your mother competent to appear for these proceedings?"
I answered honestly "No she is not"
From much research, this is generally sufficient in my state for most matters, except for things like protective custody or Against-Medical-Order stuff. If i'm lying, no other party is liable to any damages such lying would cause. ANd for most purposes, capacity is defined by the context that requires its assessment, and 'best good faith judgement' is sufficient.
At least I think that's why he asked me that.
A friend of a friend had something similar happen. For some reason she was able to remain in her home. Maybe hardship due to age and health. I don't remember now.
It's Pro Se or nothing. One wise person told me, for this matter.