Unconscionable, A Rich Coleman Novel Vol 3 Page 9

  Chapter 8

  Demand

  After the meeting with Cindy Sharp, Matt began researching what legal theories might be applicable to the facts of her case. The promissory note and deed of trust were contracts, as was the forbearance agreement. If there was a defect in the foreclosure process, that could be a breach of the deed of trust. If it could be shown that the parties entered into a forbearance agreement, then that was obviously breached by the foreclosure. A contract required an offer, acceptance, and consideration. It could be oral or written unless it couldn’t be performed in a year; then it had to be in writing. The forbearance was only for the period it took to approve the modification. That was clearly less than a year so an oral contract was okay. The problem was consideration. Cindy had not paid any new consideration because she was told not to make payments, as past due amounts would be added on to the end of the note.

  Without new consideration the contract wouldn’t stand up, which left a cause of action called promissory estoppel. This was the situation where there was an offer, acceptance, no consideration, but the plaintiff had fully performed the terms of the contract, and it would be a gross miscarriage of justice not to honor it. Matt liked this theory and thought he could prove it. He also planned to look into RMS’s foreclosure of Cindy’s property to see if there were defects, the most obvious one being a break in the chain of ownership of the note or defects in the lien.

  Texas had another law called the Unfair Collection Practices Act that he thought had promise. This statute provided a cause of action for misrepresentations that were made while trying to collect a debt. Matt thought this had possibilities because the early collection letters misrepresented that the account was delinquent when it wasn’t. He also thought that RMS’s representation that it would not foreclose while a modification was pending was a lie and a misrepresentation that would be actionable under the statue.

  Once he had his legal theories developed, he turned to the question of Cindy’s damages. They had lost the equity in their house, Cindy had spent a lot of time moving and resettling the family and would be entitled to damages for her lost time and toil, and she’d be entitled to recover her attorney’s fees. These were her economic damages and they would be fairly easy to prove. More difficult were her mental anguish damages and the damages associated with her wrongful death claim.

  Mental anguish, to be recoverable, had to be severe and accompanied by physical injury or symptoms such as headache, insomnia, nausea, depression, and so forth. Matt didn’t think he’d have a problem with that, as Cindy’s own testimony alone would be enough to prove it. More difficult would be establishing the causal connection between the foreclosure and Tony’s suicide. That would be a stretch but not an impossible one. If this connection could be made, then Cindy would be entitled to recover medical expenses, funeral costs, loss of consortium, Tony’s mental anguish, loss of his future income, her mental anguish associated with his death, and the list went on and on.

  Once he had his legal theories and damages set Matt called Cindy back in to discuss making a demand. In a breach of contract action it was required to make a demand before filing a lawsuit in order to be eligible for attorney’s fees if the demand was not met. It made sense to try to settle anyway since litigation was expensive, time consuming, and traumatic for the client. It was always better to settle for a little less than one might think one was entitled to and avoid the chance of getting nothing. Cindy took a seat across from him.

  “So, the reason I called you in is to discuss what amount of money you would be willing to settle for rather than going to court.”

  Cindy took a deep breath. “How much do you think I can get?”

  “That’s hard to say. There are a lot of variables we have no control over, like, what judge is assigned to us, what kind of a jury we draw, how you and the other witnesses perform in court, and so on.”

  “Hmm. So, how do we figure out what to demand?”

  “Well, you want to get the equity in the house back. I’ve calculated that at about $50,000.”

  “Right.”

  “You’re going to be entitled to something for the mental anguish you have suffered. That’s a very difficult amount to calculate. How much do you think you should get to compensate you for what you went through—not considering your husband’s death. Just what you went through up to the time of his death.”

  “A couple hundred thousand at least.”

  “Okay, you’ll have to testify as to what you went through and convince the jury that it was severe enough to warrant that kind of an award.”

  “I can do that,” Cindy said.

  “Then you have lost time, out-of-pocket expenses, loss of credit from the foreclosure . . . so I’d add another $50,000. So, that is $300,000 plus attorney’s fees of one-third.”

  “What about Tony’s suicide?”

  “Well, you are at $400,000 right now. That’s a pretty healthy demand. If you ask for more, I think your changes of settling pre-suit are nil. But if you could live with $400,000 less our third, then that’s the demand I would make. We can stipulate that this demand doesn’t take into consideration any claim you might have for punitive damages or wrongful death. That way if we don’t settle we can demand a lot more later on after the suit is filed.”

  “I don’t know. I would really like to get at least $500,000.”

  “Okay, we can demand that and see what happens. They might go for it considering you could recover another million if we can get punitive damages or get you wrongful death damages.”

  Cindy nodded. “Okay, that sounds good.”

  After Cindy left Matt drafted up a demand letter demanding $500,000 and sent it to RMS. He wasn’t very optimistic that RMS would accept it, but it was a necessary part of the process and got them one step further on the long road to justice. Now all he had to do was wait thirty days for a response. But that time wouldn’t be wasted. He would use it to draft the original petition so it would be ready the moment RMS rejected his demand.

  Once the petition was filed they’d have to wait another thirty days for a response before they could start doing discovery. Litigation is a slow process and takes a lot of patience. Matt figured it would take a year and a half to two years before they got to trial. A lot of clients couldn’t handle that, so Matt was careful to warn them not to expect anything exciting to happen for quite a while. He didn’t need clients calling him every week wanting an update when nothing was happening.

  Matt had learned to be patient in prison. He had nothing but time to kill so he learned how to make himself busy when it seemed there was nothing to do. Since he hadn’t been reinstated yet, his father couldn’t assign him any other cases to handle, so Matt planned to spend every minute on the RMS case even though there was nothing technically that needed to be done yet. This was his father’s advice: Act as if the case is about to go to trial and prepare accordingly. In doing so he’d get a much better perspective on what evidence he would need to prevail at trial and be able to adjust his discovery plan accordingly. His father also promised he’d be much calmer and confident because everything he would need during the prosecution of the case would already be done. Oh, he’d have to make changes and conform his work to the actual facts as they developed, but those tasks would be a lot easier with the basic work done.

  “I’ve always wanted to handle litigation this way but never was in a position to do it,” Rich said one day. “But you have that opportunity and should take advantage of it.”

  “I will,” Matt promised. “So, I heard from Ryan that you’re going to publish your true crime book.”

  Rich shrugged. “Yeah, I kind of got pushed into it. It wasn’t my intention to ever publish it, but I didn’t want to alienate my future daughter-in-law.”

  “Why did you write it if you didn’t want to get it published?”

  Rich sighed. “Well you see, my recollection of what happened to Aunt Martha and Erica’s aren’t the same.”

  This shoc
ked Matt; he’d never known this. He had only heard his father’s version of Aunt Martha’s murder and his mother’s trial. He didn’t know Erica had a different version.

  “How are they different?” he asked warily.

  “I have never told anyone, nor has your mother, but she seems to think I killed Aunt Martha.”

  “What? Why would she think that?”

  “I don’t know. I have no memory of what actually happened that night. I thought I’d been mugged and was out of commission when the murder took place, but your mother says she found me hovering over Aunt Martha at the motel and hit me over the head not realizing it was me. She says she and Joe carried me to the alley behind the bar where the police found me.”

  Matt’s eyes widened. “So, you can’t let any of this get out.”

  “No. It’s okay. We’re going to publish my version of the murder, and it’s not a lie because it’s what I remember. No one will be able to contradict it except your mother and Joe, and that would never happen.”

  Matt just stared at his father. “Does Ryan know?”

  “No. I’m only telling you because I know I can trust you. I can’t tell Ryan because of his relationship with Amanda. Amanda can’t know anything about this. She’d probably like the revised version better because it would make it look like I got away with murder.”

  “Did you?” Matt asked.

  “Like I said, I have no memory of what happened that night.”

  “Does Joe confirm Mom’s story?”

  Rich nodded. “I’m afraid so.”

  Matt sighed deeply. “Shit!”

  Rich laughed. “Exactly.”

  “So, why don’t you tell Ryan the truth and tell him to get Amanda to back off?”

  “No. She’s already shown the manuscript to her boss and if I try to back out now, they will know I’m hiding something. I think the best thing is to just publish my version and after a few months it will all go away.”

  Matt shook his head. “I hope you’re right.”

  “Me, too,” Rich said.

  “Did Mom write her version down?”

  “Yes.”

  “Where is it?”

  “Still up in the attic.”

  “Are you sure?”

  Rich suddenly got a worried look on his face. “Well, that’s where it was the last time I saw it.”

  “You’d better find it and shred it,” Matt suggested. “You don’t want that getting into the wrong hands.”

  “Okay, I’ll do that tonight when I get home.”

  “Good.”

  Matt went back to his office, still reeling from the revelation that his father might be a murderer. It was so out of character he had trouble accepting it. Yet his mother would have no reason to lie about it and Joe was his best friend, so it almost had to be true. But he still couldn’t believe it. There just had to be some other explanation.