Can I file an Appeal?

[gusto102]

My question is in regards to my grounds for filing an Appeal to a summary judgment ordered against me in favor of the plaintiff, Capital One.

I had retained an attorney months prior to this judgment because I WAS considering filing for bankruptcy (this is separate issue) after receiving my first summons from Capital One. This particular attorney is a public defender who has a reputation for not doing a very good job of representing his clients. But he is affordable and all I needed him to do is draft bankruptcy documents. However, I have found him difficult to work with, i.e. he doesn't keep appointments as scheduled, doesn't return any calls, waits till the last minute to do anything, etc.

So when I received Request for Admissions, Production of Documents and Interrogatories from Capital one I took them straight to my attorney who copied them. I wrongly assumed that he would handle this. Drafting the bankruptcy documents continued at a snails pace and meanwhile I received a Motion for Summary Judgment from Capital One which I again took to my attorney. The hearing was scheduled and we still hadn't filed for bankruptcy (I have since decided to wait to file until a separate issue with a trust account is settled).

The day of the hearing, I arrived and my attorney showed up. I told him that I wanted to request that the Plaintiff validate the debt which they had not done. I wanted to at least buy more time to file for bankruptcy. My attorney seemed frustrated and refused to even talk about it. Needless to say, once in the hearing the plaintiff won their motion for summary judgment. The judge even told my attorney that she was surprised that my attorney had not even filed a response to any of the plaintiffs requests.

So now I have decided to take matters into my own hands and deal with this myself. So my question is, what, if any, grounds do I have to file an Appeal to this judgment? I am currently researching this topic and have yet to find any legal grounds for appeal.

My reasoning so far... my attorney, who I had relied on for legal guidance, failed to respond to any of plaintiff's requests. Also, the Plaintiff did not prove their case.

Any advice would be helpful. By the way, I live in Kansas.

[msm859]

Your question is way over what could be answered in this forum. However, if you are going to file for BK you should concentrate on that -- it will make the judgment academic.

[gusto102]

I cannot file bankruptcy now because there is a separate action pending to terminate a trust of which I am a beneficiary. Filing for BK at this time would complicate matters as no attorney is sure as to whether or not the trust would be considered part of the bankruptcy estate. There is also an inherited IRA which I understand would be included in the bankruptcy estate. This is another matter that I want to settle before filing so in the meantime I would like to buy time.

[despritfreya]

1. You have a trust that I will presume will eventually be paid to you. I will also assume that it is a spendthrift trust and while the $$ is in the trust no creditor can get to it. However, once the $$ goes to you your judgment creditor will attempt to collect from it.

2. My guess is you cannot file bk until all of the $$ from the trust (how much are we talking about) has been received and spent.

3. When was the state court judgment against you entered and how long does one in Kansas have to file an appeal (its normally between 10 and 30 days after entry of the judgment)?

4. Ineffective assistance of counsel is not a valid cause to appeal. Maybe you have a malpractice complaint against the lawyer but that is not your creditor's issue.

5. There is very recent case law that an inherited IRA is protected from the bk Trustee. Your bk attny should research this.

Sorry that I cannot give you any words of "support" but I agree, eventually you will just have to file the bk and be done with it or pay the judgment (using the $$ from the trust I assume).

Des.

[kansasgirl]

I do not know about the judgement. IRA's are exempt in Kansas if it is in your name, but don't know if it is exempt when it is inherited.