Skip to main content
Michael Raymond Daymude
Avvo
Pro

Michael Daymude’s Answers

7,774 total


  • When spouse dies, only asset is ins. policy w/ me beneficiary & she has no Trust, can the ins. co. refuse to let me chg.

    My spouse died with a will naming me as sole beneficiary (no trust). Her only asset was the will insuring my life. That policy would go to my estate but, according to the insurance co., I could not change the beneficiary (me). The only way to do t...

    Michael’s Answer

    If you are the named beneficiary of your wife's insurance policy, and your wife has died, you will receive the policy benefits if you make appropriate application.

    If you are not the named beneficiary and there is no other named beneficiary, the proceeds are payable to your wife's estate.

    Depending on the exact facts, you may be able to obtain the benefits without a full-blown probate of your wife’s estate.

    I strongly suggest you consult and retain counsel to assist. Otherwise, you may wind up with more of a mess than you are in now.

    See question 
  • I think my lawyer committed ethical violations. Do I have any recourse?

    Aside from repeatedly not responding to me, and not communicating my requests to opposing counsel, I feel that he compelled me to sign legal documents that I did not understand (and that I considered erroneous) under threat of sanction from opposi...

    Michael’s Answer

    My colleagues have provided guidance. My take is a little different. It appears from your narrative that you are not complaining about the result or seeking new counsel to continue your case, but are complaining about the fee and services you received.

    You appear to seek leverage due to perceived ethical violations, after the fact. If you are willing and able to pay reasonable attorney fees for an attorney to review your file and billings, seek those services.

    OTOH, if you simply do not want to pay outstanding fees, don’t pay until you are sued. Many lawyers will not sue for fees. If you are sued, request fee arbitration. If your lawyer has a lien for fees, take the bull by the horns and request fee arbitration now. This assumes that you and your prior lawyer cannot agree to an acceptable compromise without intervention.

    See question 
  • Who is the legal title holder

    our home was in a living trust. my husband quick claimed the title to me. he is a trustee of the trust. but he just put his name. Who is it really on title. since 2006 everything comes in my name, taxes and stuff. But, then I was told that there i...

    Michael’s Answer

    “Who is legal title holder?” -- Impossible to tell from your narrative. A review of the documents of title is necessary.

    Transfers between spouses are subject to different rules than transfers between non-spouses. How title is held may not be determinative of legal interest.

    If you wish to avoid problems down the road in the event of death or dissolution, I strongly suggest you consult counsel who can review the necessary documents and facts.

    See question 
  • I have a civil lawsuit filed but I'd like to fire the attorney I'm working with. Do I need to hire another attorney first?

    Civil suit. Inexperienced attorney.

    Michael’s Answer

    It is unclear if you have filed suit as an individual or LLC. An LLC must be represented by an attorney. In that case, you definitely should retain other counsel first.

    In the event you have filed as an individual, you can substitute yourself in pro per and then hire another attorney.

    Beware: you will have more difficulty finding a new attorney than you had initially. The best practice in all cases would be to retain new counsel, first.

    See question 
  • A year ago i READ A POST ON THIS SITE which said if a person sues a trustee of a family trust ad fails to name the trust as well

    he cannot collect a judgment since he failed t name the trust. It cited 2 California cases which held this. Is this still good aw if I win a judgment against the trutee but did nt name the trust also as a defendant?

    Michael’s Answer

    Your question makes no legal sense A trust generally is not a separate legal entity. Unless you sued the individual in his representative capacity as trustee, you may not be able to obtain a judgment against that individual.

    You may wish to consider amending your complaint or petition, if possible, to correct your error.

    The probate court (not civil court) has exclusive jurisdiction over issues between a trustee and beneficiaries. If you are a beneficiary, and did not file a petition in probate, you are probably in the wrong court.

    I highly recommend you consult counsel. If you have filed a frivolous action you could be liable for the adverse party’s costs and attorney fees.

    See question 
  • Attorney Fee Contract - unreasonable deposit requirements?

    A lawyer I am considering hiring for a civil matter has sent me a fee contract that requires a sizable deposit (he does not call it a retainer payment) up front, which he says will be held in a trust account and will be refunded to me upon conclus...

    Michael’s Answer

    Evergreen retainers are common in litigated matters and are designed to assure there are sufficient financial resources to prosecute or defend the case. If you deem the terms too onerous, perhaps you have undervalued the time and effort that may be required to reach your litigation objective. You are free, of course, to consult other attorneys and to negotiate the terms of any fee agreement.

    See question 
  • What's the deadline to appeal a ruling from a Motion to Vacate Default Judgment under CCP 473(b) in California? 15 or 30 days?

    What's the deadline to appeal a ruling from a Motion to Vacate Default Judgment under CCP 473(b) in California? 15 or 30 days?

    Michael’s Answer

    Your post does not contain enough information.

    If the motion was made post-judgment, it is an appealable order and you would generally have either 30 or 60 days from notice of entry to file an appeal: 30 days for limited civil case; 60 days for unlimited.

    Respectfully, this is not something you should attempt on your own. You should seek advice and counsel immediately to determine if an appeal is well taken. Good luck.

    See question 
  • What can i do if a foreclosing party used an expired NOS at an auction

    An NOS was recorded on 6/26/2015 and a sale was conducted at an auction on 6/27/2016 pursuant 2924f the trustee only has 365 days to complete the sale i believe they missed it by 1 day.

    Michael’s Answer

    The last day to complete the sale fell on a Sunday, so doing it on Monday the 27th is OK.

    See question 
  • ACCORDING to the HOA CC&Rs, the insurer indeminfies the Board and Agent and covers their legal fees. But not in cases of gross

    negligence, fraud or intentional misrepresentation. Are the fees paid at the outset of the case to the attorney representing the HOA and Agent and where do these monies come from? Is it the insurer paying them or the HOA out of their own funds and...

    Michael’s Answer

    The policy between the HOA and the carrier determines coverage, not the CC&Rs. Assuming the HOA has insurance, the carrier pays for defense. If the HOA does not have insurance, the HOA must pay for defense counsel.

    Assuming the acts complained of potentially fall within coverage, the insurer will provide defense counsel, subject to any deductible. In some cases, the insurer will defend under a reservation of rights.

    This means if it turns out the insurer is not liable to indemnify the HOA, the insurer will seek reimbursement of defense costs from the HOA. The HOA, in turn, has a right of action for indemnification against the BOD and Agent.

    See question 
  • Arbitration clause in retainer agreement - risk to client? (CA)

    An attorney I am considering hiring has sent me a retainer agreement that includes a binding arbitration clause. This clause states that "any and all disputes that arise out of, or relate to said Agreement, including but not limited to claims of n...

    Michael’s Answer

    Arbitration is designed to be a cost effective way of resolving disputes. Some E&O carriers may require it. In most cases, IMO, an arbitration agreement benefits the client because claims are quickly and efficiently resolved. The downside is that arbitration is by 1-3 arbitrators whose decision cannot be appealed, even for errors of law. The choice is yours whether to retain this attorney or another.

    See question