KempKlein

 

Morrow successful in securing complete dismissal of lawsuit

Raymond L. Morrow was successful in securing a complete dismissal of a lawsuit brought in Oakland County Circuit Court against a client, who had previously been president of the company that sued him, after the client resigned and went into competition with his former employer. The lawsuit was for breach of fiduciary duty, misappropriation of trade secrets, conversion, interference with business relationships, defamation and conspiracy. The Plaintiff company sought more than one million dollars in damages, but as a result of the dismissal, recovered nothing.

 


 

Probate attorney Alan A. May has continued to develop methods to ensure that the intent of an Estate Plan is carried out without interruption.

Probate attorney Alan A. May has continued to develop methods to ensure that the intent of an Estate Plan is carried out without interruption.
Recently the Oakland County Probate Court entered an Order, during the lifetime of a client finding and determining that his Trust was valid and that he was competent and not subject to undue influence. The facts were simple. The client had 12 children and did not care for 10 of them. He favored two. We wrote a Trust and petitioned the court to declare it valid. We served the 12 children, not only with a copy of our petition, but with the Trust itself. Our theory was it is easy to speak about your parent after his death, but difficult to look him in the eye while he is still alive. The court agreed, and we got our Order.

Some people may prefer to keep their Estate Plan secret, and also to minimize conflict during their lifetime. These, of course, are valid considerations to weigh against the above approach.

 


 

Zawideh gets large collection case thrown out of court

Plaintiff, a national debt collection firm that buys and collects on defaulted loans across the country, filed suit against a client of Robert S. Zawideh seeking to recover an alleged outstanding debt in excess of $105,000 plus interest and costs. Instead of filing an answer, or conducting any discovery on the issue, Zawideh filed a motion for summary disposition (a motion to dismiss the lawsuit) based in part on the fact that the Plaintiff failed to attach to its complaint any proof that it bought the debt from the Defendant’s original lender. In response, Plaintiff attached to its answer to the motion a copy of the contract between the original lender and the Defendant. Plaintiff also attached a document it claimed to be an assignment. Comparing the document to a blank deed to real estate, Zawideh argued that the alleged assignment was fatally defective because it made no mention of the contract between the original lender and the Defendant. The Court agreed and granted Zawideh’s motion for summary disposition and dismissed the Complaint.

 


 

Buttiglieri and Feliksa Defeat Paper-Plate “Will” through Arbitration

Joseph P. Buttiglieri and Tracy L. Feliksa represented three brothers contesting the validity of a note written on a paper plate, which was purported to be their father’s last will and testament. The paper plate was kept in the daughter’s home and shown to her brothers only after her father’s death. The daughter would be the only one of the four children to benefit if the paper plate was determined to be the man’s will and was admitted to probate. The paper plate contained cryptic words that, if read as the daughter argued, would have required that the man’s liquid assets be used to pay-off the loans on his house and that the house be given to his daughter. It would have resulted in an effective disinheritance of his three sons.

Words written on a paper plate might serve as a valid Will under Michigan law, under one of three scenarios: (1) it is witnessed by at least two individuals and is signed by the testator, (2) it is a “holographic will” in which the material provisions are in the testator’s handwriting and it is signed and dated by the testator; or (3) it is shown by clear and convincing evidence that the decedent intended the document to be his Will. In this case, the paper plate was not witnessed and did not contain the full signature of the decedent- only his initials. The daughter argued that the paper plate still met Michigan’s holographic statute and that the father intended for the paper plate to be his Will.

Buttiglieri and Feliksa argued against admission of the paper-plate on the basis that (1) the initials did not meet the requirements of Michigan’s holographic statute;  (2) that the paper plate was the product of undue influence by the daughter, on whom the decedent had come to depend after his beloved wife’s death; and (3) that even if the plate was determined to be a testamentary document, the words on the plate did not make a devise of the decedent’s home to his daughter but rather were a list of directions for her to follow upon his death. Buttiglieri and Feliksa defeated a motion for summary disposition, and the parties proceeded to a two-day arbitration hearing.

The evidence presented was used to try to establish a presumption of undue influence by the daughter over the father- that he acted against his natural inclinations when writing the paper plate. Buttiglieri and Feliksa were able to demonstrate that although the father had a good relationship with each of his children, he became dependent on his daughter. Testimony from family, text messages, and old financial documents were used to illustrate the father’s severe depression after the death of his wife, his increasing social isolation and dependence on his daughter, and his fear of doing anything without her approval.

Buttiglieri and Feliksa also argued that the words on the paper plate lacked clarity of intention and could be interpreted as a list of instructions to the daughter, rather than a devise of the father’s house. They were able to discredit the daughter’s two surprise witnesses who testified that the father intended to leave his house to his daughter. One was a cousin who coincidentally also had been the beneficiary of a “surprise” deed, produced after death, devising a house from her grandmother. The other was a neighbor, who when cross-examined, changed his testimony. Opposing testimony was provided to support the sons’ position that the decedent and his late wife had always wanted their estate divided equally between the four children.

The arbitrator concluded that the evidence provided by the daughter was not convincing enough to show that the paper plate stood as a clear and accurate depiction of the decedent’s intent. Additionally, no evidence was provided to show that the decedent intended the initials to be his signature. The arbitrator agreed that the words on the plate were ambiguous, and did not clearly indicate that the decedent wanted his daughter to have his house after death. The paper plate was not admitted to probate, and the sons were able to share equally in their father’s estate.

 

 


 

Zawideh and Bisio Reinstate Guardianship and Conservatorship Petitions

Robert Zawideh and Richard Bisio were retained by a brother and sister whose petitions for guardianship and conservatorship over their elderly mother were denied by the probate court.  Previously, the brother and sister, who were two of ten adult children, were represented by an attorney who did not notify them until nine days before trial that he had a scheduling conflict that prevented him from representing them at trial, and that they needed to find replacement counsel.  Despite their best efforts, the clients were unable to obtain substitute counsel in such a short time.  As a result, the day before the trial was to begin, the former lawyer filed a motion for withdrawal that was immediately granted (the order of withdrawal was time-stamped at 9:00 a.m. that same day).

Without trial counsel, subpoenaed witnesses, or exhibits, the brother and sister had no chance against their opponent, a seasoned, highly regarded probate trial attorney.  After the court dismissed their petitions, Bisio and Zawideh defeated counsel’s efforts to have the probate court impose a $70,000.00 sanction against their client.  Then, Zawideh and Bisio succeeded in convincing the Court of Appeals to vacate the orders dismissing those petitions, and to give their clients their day in court.

 

 


 

Zawideh Successfully Defends Son’s $2.1 Million Inheritance

Robert Zawideh’s client was the youngest child of four children, (three sons and a daughter) whose father passed away in the summer of 2013.  Long before his passing, the father provided seed money to the three older children to start a real estate development company that became extremely lucrative for them.  Mr. Zawideh’s client did not share in that success, however, and his father decided to make up for that, years before his passing, by making his youngest son a joint owner on four bank accounts totaling approximately $2.1 million dollars.

The three sons were also equal shareholders in a trucking company.  During his lifetime, the father, through his trust, extended loans to the company which was evidenced by a secured promissory note, a note for which he refused payments.  One month before his death, the father amended his trust in two ways.  First, he confirmed his intention that four bank accounts were jointly owned with his youngest son, and that he was to be treated as a surviving owner of the four accounts on the father’s death.  Second, he wanted his wife to be able to demand payments on the secured promissory notes during her lifetime, should she survive him, and on her passing, the note would be forgiven.

After the father’s passing, the daughter, using a Durable Power of Attorney filed suit on behalf of her mother against Mr. Zawideh’s client, another son, and their company, seeking recovery of over $4.85 million. Specifically, the daughter claimed that the promissory note was worth $2.45 million and sought to accelerate the entire indebtedness.  She also alleged that Mr. Zawideh’s client was required to turn over to the estate $1.5 million remaining in the joint accounts another $600,000 spent from the accounts loan that wrongly described as a “loan”. The daughter also claimed that another brother was required to repay $300,000 as on another loan.

After the daughter filed suit, Mr. Zawideh’s client and his company went to court to require the daughter to accept $14,000 a month, which would be used to pay for their mother’s needs, which the Company timely paid every month for the rest of the mother’s life.

Following hotly contested litigation in the circuit court, probate court and Court of Appeals, and on the eve of trial, the parties reached a settlement, the ultimate cash payment amounted to approximately $0.15 on the dollar relative to the original claims asserted by the daughter.  Specifically, while the settlement agreement provides for a settlement amount of $1,800,000.00, the express language only required Capacity to actually write a check to the Mother’s Trust (of which the four adult children were 25 percent beneficiaries) for $750,000. The remaining $1.05 million was given to Mom’s Trust in the form of a promissory note, which in turn divided that note into three equal promissory notes of $350,000, each of which was assigned back to the Company’s shareholders, the three sons.

Ultimately Mr. Zawideh’s client never had to repay (1) any of the money given to him by his father in the joint accounts, nor (2) the alleged $600,000 loan. Further, his company (1) reduced its liability on the promissory note, (2) provided for his mother’s needs for the rest of her life, and (3) avoided having to be liable for any tax on the forgiveness of the indebtedness had the note actually been terminated on Eva’s passing pursuant to the trust amendment.

 


 

Robert Zawideh Obtains Award Granting his Client Her Rightful Inheritance from Her Father’s Trust

The father of Robert Zawideh’s client died in 2015, leaving a substantial estate and trust. The Trust provided that Mr. Zawideh’s client was entitled to 1/3 of the value of two securities accounts owned by the client – identified by account numbers in the Trust – provided they existed on the date of his death. On the date of the father’s death, the accounts existed, however, the account numbers changed between the time the Trust was written, and the date of the father’s death. The client’s prior counsel wrote to the Trustees, decedent’s brothers and uncles to Mr. Zawideh’s client, requesting information on the client’s share of her father’s trust. Receiving no response, the attorney referred the client to Mr. Zawideh who commenced proceedings for accountings and immediate distribution of his client’s share. The Trustees responded, arguing for the first time that the accounts no longer existed by virtue of the change in account numbers. The Court disagreed and sided with Mr. Zawideh, ruling that his client was entitled to her inheritance, which was in excess of $1,000,000.00.

 


 

Robert Zawideh Convinces Bank to Set Aside $540,000 Judgment in Exchange for Pennies on the Dollar

Like so many other real estate investors, Attorney Zawideh’s client suffered substantial losses when the real estate market collapsed in 2008. The Client invested approximately $600,000 in vacant Florida real estate, and financed that property with the Plaintiff Bank. When the market collapsed, the bank filed for judicial foreclosure in Florida, and also sought a deficiency judgment for the difference between the value of the property and the remaining debt on the loan. The bank submitted an appraisal claiming that the same property they appraised for approximately $500,000.00 was now worth less than $100,000.00. Receiving no response from the client, in 2013, the bank obtained a default judgment against Mr. Zawideh’s client of approximately $540,000.00.

In 2016, the bank sought to domesticate the judgment in Michigan in order to begin collection proceedings. Once Mr. Zawideh was retained, he researched the Florida court filings and found that the process server who claimed to have served Mr. Zawideh’s client filed another Proof of Service attesting that he served another defendant in the case at another location on the same date at exactly the same time. Still, the bank stubbornly refused to set aside the judgment until after the deposition of the process server revealed that his assertions were completely indefensible. Thereafter, the bank agreed to set aside the Florida Judgment and dismiss all the proceedings in exchange for $10,000.00 paid over time.

 


 

Zawideh Successfully Defends Trustee Against Claims of Fraud

Twenty years ago, the Settlor, a widow, established a trust for the benefit of her daughter, “Jane Doe” (“Jane”), Jane’s two sons, and the Settlor’s son, ”John Doe” (“John”), and daughter-in-law, “Mary Roe” (“Mary”). The Trust nominated Jane as the successor trustee of the trust, except as to that portion of the Trust that was to benefit John and Mary; for John and Mary’s trust, the Settlor nominated her CPA as the successor trustee. Under their trust, on the Settlor’s death, John and Mary received two cars and the Settlor’s home, or the proceeds of that home to be used to purchase another home, plus their trust was to be funded with cash to be used for John and Mary’s benefit.

Settlor died eighteen years ago. Last summer, Mary brought an action against the CPA demanding an accounting of the trust and claiming that the CPA breached her fiduciary duties to Mary regarding payment of funds for Mary’s maintenance. Six months later, Mary amended her petition to add Jane, claiming that when the settlor died, Jane “fraudulently” underfunded John and Mary’s trust by over a quarter of a million dollars. Jane retained The Kemp Klein Law Firm, and attorney Robert Zawideh immediately noticed up Mary’s deposition. At her deposition, Mr. Zawideh got Mary to admit that Jane owed her no duties, and that she had no evidence to support her claims against Jane. Minutes after the end of that deposition, Mr. Zawideh explained to Mary’s attorney that if he did not immediately dismiss Jane from the case, that both he and his client would be subjected to a claim for sanctions. The following day, counsel wrote to Mr. Zawideh agreeing to have his client dismissed from the lawsuit.

 


 

Buttiglieri and Nahhat Win Jury Verdict in Trust Contest

Kemp Klein attorneys Joseph P. Buttiglieri and Edward Nahhat recently won a jury’s verdict affirming a contested Trust Amendment. Shortly before his death, the Decedent amended his Trust – substantially reducing the share of one of his children, who previously was to receive one-third of the Trust assets. The decedent had a difficult relationship with his son, so he decided to favor his two daughters in the amendment, and allocate to them the great bulk of his estate. While he was a seriously ill widower, there was no allegation that the Decedent was mentally incapacitated, only that he had been allegedly “unduly influenced” by the two daughters to change his Trust near the end of his life.

Testimony from various witnesses and documents were presented over a three-day jury trial before seven jurors. After the close of the case and final arguments, the jury determined that the Decedent’s Trust was valid, declining to find undue influence, and sustaining the surviving daughters’ unequal benefit.

The Trust and the amendments were not drafted by Kemp Klein. Unfortunately, when the last Amendment was signed, the scrivener attorney did not ask one of the daughters (who was named as Trustee and beneficiary) to leave the room while the document was reviewed and the Decedent signed it. Also, the lawyer apparently was unable to bring a second witness to the signing appointment in the decedent’s home, so the attorney was the only disinterested live witness to the execution. These signing anomalies were factors in sending the case to jury. One key fact elicited at trial appears to have been the decedent’s decision to visit with a priest the day before he amended his trust for the last time.

Kemp Klein attorneys are always very careful in planning the execution of instruments in such a way to reduce potential challenges to those documents. This not only includes making sure that beneficiaries of the Trust and/or Will are not present at the execution – but that appropriate witnesses are available and, if necessary, that a medical examination of the client is conducted to assure not only their competence, but that the testator is not being unduly influence by anyone. While we try to make sure that our clients do not face litigation, it sometimes happens. Kemp Klein stands ready with an experienced litigation team to successfully represent clients in Trust, Will and all other contested Probate litigation.