Legal Malpractice

Mortgages, Imposters and Legal Malpractice

By (Andrew Lavoott Bluestone)

Perhaps its the economic downturn, perhaps just a coincidence, but we have heard of three "imposter" closing scenarios recently.  Here is one that stands out.  In Layton v Layton 06/04/2010 Other Courts 2010 NYSlipOp 31381(U)  wife and husband are divorcing, and the marital house is to go to the wife. A closing is scheduled, and defendant attorneys are there for the bank.  They are to earn $ 580 to be the settlement agent.  At the closing a man, with two forms of expired identification, appeared as husband.  He was not.

What remedies does husband have against the attorneys?  Here is the more interesting question.  If there is no privity between the husband and the settlement agent, does the settlement agent owe a fiduciary duty to the husband [as transferror}?  If the settlement agent owes a fiduciary duty, does presentation of a legal malpractice cause of action in addition to a breach of fiduciary duty cause of action doom the fiduciary duty cause of action?  Here is seems to have colored the picture to the detriment of plaintiff.  The general rule is that a breach of fiduciary duty which relies on the same facts as a legal malpractice cause of action is faulty.  How about a single cause of action on the one set of facts>

We do not know the answer to this question, but would a single cause of action for breach of fiduciary duty have succeeded? 

Full post as published by New York Attorney Malpractice Blog on June 09, 2010 (boomark / email).