Wilck and Gurman Obtain Pre-Answer Dismissal of Legal Malpractice Claim

March 28, 2018 | Professional Liability

David Wilck and Amanda Gurman prevailed on a pre-answer motion to dismiss in a legal malpractice action based on plaintiffs’ failure to allege proximately caused damages. The legal malpractice action arose out of the defendant attorneys’ representation of plaintiffs in an action to recover amounts owed to them on a loan which was secured by a mortgage on personal property owned by the debtor.  The defendant attorneys commenced a foreclosure action, but due to a defect in the caption, the action was dismissed without prejudice.  Instead of re-commencing the foreclosure action, the attorneys commenced an action to recover the debt owed under the note.  Plaintiffs ultimately discharged the defendant attorneys and retained new counsel in that action – notably while the foreclosure claim was still timely.  Plaintiff then commenced a legal malpractice action alleging that the defendant attorneys failed to properly bring and prosecute their claims in the foreclose action, rendering the foreclosure claim time-barred and forever precluding the plaintiffs from foreclosing on the property and recovering the debt.

In obtaining dismissal of the claims, Wilck and Gurman relied upon an obscure area of law to argue that, even if the defendant attorneys’ actions were a deviation from the standard of care, plaintiffs could not establish they had suffered proximately caused damages because at the time the defendant attorneys were discharged, plaintiffs still had a viable foreclosure claim.  This argument was predicated on little known legal authority which allows a creditor to maintain both a foreclosure action and a note action as long as the note action was commenced first in time – where typically a note action and foreclosure action cannot be maintained simultaneously.  In granting the motion to dismiss, the Court agreed with these arguments and held plaintiffs had failed to allege how the attorney defendants’ conduct precluded them from foreclosing on the property or otherwise obtaining a favorable outcome.  Thus the Court held plaintiffs failed to allege proximately caused damages, which is an essential element of the legal malpractice claim, and dismissed the case in its entirety.

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