Q: How to set aside dismissal w/prej issued before hearing on a probate pet'n for tee fraud (no due process)?
In 2013 petition filed against ttee proved enough fraud for the ct. to order ttee to account. Ttee would not comply w/discovery order & delayed, knowing the judge would be transferring. Plan was to keep complainant & further evidence out of court & keep the new judge in ignorance of the facts. Ttee PAID petnr's atty to NOT file her objections and stall, & her atty undermined case. They delayed a full year until the petitnr, who (they knew) couldn't pay her mortgage, faced foreclosure on her home & became financially desperate. With her under duress, they coerced her to sign an unlawful "agreement" giving ttee her entire share of trust property ($425K value) for $89K -- just enough to save her home from foreclosure. In 2015 the 2nd judge dismissed the action w/prej on basis of the disputed "agrmt", W/OUT a hrg & upon proven misreps by ttee's counsel re: the "agrmt". Is a FRCP Rule 60(d)(3) mtn appropriate, & can it be filed in the local ct? No appeal done; just today got the transcrpts)
A:
Where you would file your motion to relieve yourself from a judgement or whether an appeal is required would depend on what court entered the order or judgement. That is a Hawaii court (as a general rule) cannot relieve someone from a state court judgement. A Federal court cannot (again, generally) relieve someone from a state court judgement, absent violation of a Federal statute or the U.S. Constitution.
For example, you cite Federal Rule of Civil Procedure 60, which would apply only if a Federal court entered the judgement. If it was in California, one applicable rule might be California Code of Civil Procedure 473.
You will note that there are a couple of "generally"s and a "might" in there. This is because the rules of civil procedure at this level (attempting to set aside a settlement agreement and/or an order or judgement) are complex and depend on the venue (location) of the case and its unique facts. There is no "one-size-fits-all" answer here.
However, if you have proof that the attorney received payment from the opposition to not file an objection (and throw the case) then you have a pretty good claim for malpractice.
You should discuss this matter with an attorney who can review the particular facts and law that may be applicable as soon as possible. Delay never helps in matters like this. A good place to start is the county bar association where the case was located. At least in California, most counties have referral services that provide free or low cost consultations with an attorney.
A: It sounds like you're alleging all sorts of fraud and abuse of process by the attorneys and trustees. Have a lawyer review the facts in detail to determine if there's any basis and any way forward. More details are necessary to provide a professional analysis of your issue. The best first step is an Initial Consultation with an Attorney. You can read more about me, my credentials, awards, honors, testimonials, and media appearances/ publications on my law practice website. I practice law in CA, NY, MA, and DC in the following areas of law: Business & Contracts, Criminal Defense, Divorce & Child Custody, and Education Law. This answer does not constitute legal advice; make any predictions, guarantees, or warranties; or create any Attorney-Client relationship.
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