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.
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.
Zawideh Defends Widow’s Inheritance
The decedent was a widower with no children of his own. From 2007 – 2011, using his own attorney, decedent created his estate plan and amended it several times. Initially, following the death of decedent and his wife, decedent left 50% of decedent’s assets to Plaintiff, with the other 50% to Defendant and his father. Two years later, decedent reduced Plaintiff’s share to 1/3, with Defendant and his father each receiving 1/3 of the trust. After moving into a nursing home, Plaintiff visited decedent less even though his business was across the street. Defendant and his family continued to regularly visit with the decedent at least twice a week. Thereafter, decedent removed Plaintiff completely from his estate plan. This occurred on 3 different days, in 6 different documents over a 20-month period.
Plaintiff accused Defendant of working with decedent’s attorney to remove Plaintiff from the estate plan. Plaintiff’s evidence of this was the fact that decedent’s attorney rented space from Defendant and his father one day a week and periodically shared a receptionist/legal assistant. Plaintiff also established a presumption of undue influence at trial, i.e., that Defendant had a confidential or fiduciary relationship with decedent, that he had an opportunity to influence the decedent, and that he benefited from the changes to the estate plan.
The Court, however, found that Defendant rebutted the presumption. Every witness testified decedent was strong-willed, even feisty, and made his own decisions. This was borne out in an audio recording where decedent clearly stated he took good care of Plaintiff and his family and that Defendant and his family had done far more for the decedent. The Court further found no evidence that Defendant was “guiding” decedent’s attorney “behind the scenes”. That lack of evidence regarding the connection between decedent’s attorney and Defendant was significant in light of all the other testimony presented.
The Court also noted that an important indicator of undue influence is whether the testator or grantor had been isolated from family and friends since isolation from other formerly trusted people could indicate an attempt to assert control over the victim. In this case, multiple witnesses testified that Defendant never discouraged or prevented decedent from contacting anyone, even Plaintiff or his family. Defendant took decedent to the Plaintiff’s restaurant and did not restrict or attempt to restrict visits by anyone to decedent when he lived in the nursing home. Nor was there any testimony that Defendant disparaged Plaintiff to the decedent.
According to the Court, there was no evidence that Defendant even attempted to isolate or control his relationship with the decedent. Further, Plaintiff never contradicted the evidence that decedent and Defendant were close. In fact, there was ample uncontradicted testimony that decedent thought of Defendant as a son.
For all these reasons, the Court found that Petitioner failed to carry the burden of demonstrating undue influence on the decedent by Respondent and therefore dismissed his claim.
Zawideh Defends Widow’s Inheritance
Petitioner, Mr. Zawideh’s client, married her late husband (“the decedent”) in November 2002, after a two-year engagement during which they lived in different states. Two days before their wedding in Michigan, her then fiancé picked up the Petitioner from the airport and told her for the first time that his aunt, the matriarch of his family, who employed decedent and controlled his finances, wanted decedent and petitioner to sign a prenuptial agreement that would leave Petitioner with nothing in the event of the decedent’s death. The alternative was that the aunt would not allow them to get married. This demand put Mr. Zawideh’s client under tremendous pressure to sign the agreement. To get Petitioner to sign the prenup, decedent assured her that it was merely a formality and that it was just something to please his aunt. Given the stress of the moment, Petitioner relied on decedent’s word and signed the prenup after meeting with decedent and an attorney who represented both the decedent and his aunt. To complicate matters, decedent and petitioner signed a postnuptial agreement one year later that also left Petitioner with nothing in the event of either divorce or decedent’s death.
The aunt passed away 12 years later, leaving everything to the decedent. After the aunt’s death, decedent and Petitioner agreed that neither the prenuptial nor the postnuptial agreements would be honored or enforced. But before they took action on that agreement, decedent’s health began to dramatically deteriorate. By December of 2016, decedent was diagnosed with kidney failure and was on dialysis three times per week. In August of 2017, decedent instructed his attorney that he “wanted to take care of” both petitioner and his nephew. Unfortunately, the attorney took no action on decedent’s instructions until December of 2017, after decedent was gravely ill and admitted to the hospital. The attorney then spoke to his law partner and advised him that decedent wanted to update his estate plan and advised him about the prenuptial agreement. The partner waited until decedent was well enough to have the discussion, which he did on December 28, 2017 in decedent’s hospital room. Unfortunately, the partner did not get into specifics because the Petitioner and the nephew were present. Although he did mail to decedent at his home an estate planning template for decedent to fill out, the decedent died within the week and never made it home.
Immediately after his death, several family members, many of whom had not spoken to or seen the decedent in years came forward to – as one of them testified – “enforce [decedent]’s wishes.” Robert Zawideh aggressively attacked the circumstances of the signing of the two agreements and sought to prove that, regardless of those circumstances, the decedent and the petitioner verbally agreed to dispense with them. Significantly, there existed an approximately 15 year old deposition transcript where decedent testified to ownership of a large asset not disclosed in the prenuptial agreement. After two years of litigation, 11 depositions, extensive discovery and multiple cross motions for summary disposition, the parties agreed that, instead of receiving nothing, Petitioner will receive approximately 1/3 of her late husband’s $3.1 million dollar estate.