• Blog Post

    FRAUD CLAIMS AND THE RULE 9 HEIGHTENED PLEADING STANDARD

      What is Fraud?   Fraud is broadly defined as an intentional misrepresentation or concealment of material fact made with intention and calculation to deceive, causing the other party to be deceived and, as a result, harmed.   Elements   In North Carolina, a civil claim of fraud has five essential elements. A false representation or concealment of material fact; Reasonably calculated to deceive; Made with the intent to deceive; Which does in fact deceive; and Resulting in damages to the party deceived.   Rule 9   North Carolina is generally a notice pleading jurisdiction – if a Defendant is “on notice” of the facts in a complaint, and the…

  • Blog Post

    LAMARRE V. MARTINEZ: A (QUIET) DISCUSSION OF ACTIONS TO QUIET TITLE

    The recent North Carolina Court of Appeals decision in LaMarre v. Martinez addresses an action to quiet title between parties to a real property transaction.  Specifically, the court provides guidance for determining the applicable statute of limitations.   Actions to Quiet Title   In North Carolina, an action to quiet title may be brought to determine the validity of adverse claims by multiple persons to an estate or an interest in real property.  The court’s role in such actions is to determine the rightful owner to a particular piece of real property.  Disputes over rightful ownership to real property often arise in the context of interfamilial transfers or transfers that…

  • Blog Post

    Twelve Causes of Action That May Accompany a Breach of Fiduciary Duty Claim

           Several causes of action may be pled in conjunction with a claim for breach of fiduciary duty, depending on the facts and circumstances surrounding the case.  Attorneys should consider the following claims when filing a breach of fiduciary duty cause of action and determine which, if any, also apply to their clients:           1.   Constructive Fraud           Constructive Fraud occurs when a person or entity gains an unfair advantage over another through unjust means, usually by lying or omitting important details. Constructive fraud differs from actual fraud because the elements of constructive fraud do require intent, or actual…

  • Blog Post

    Breach of Trustees’ Fiduciary Duty – Part 1: General Considerations

              This is the first of a four-part series examining trustee’s fiduciary duties and the circumstances that could result in litigation.  To begin, we will discuss basic principles that will lay a groundwork to inform our larger discussion.     What is a Trust and a Trustee?[1]             A trust is a financial instrument or tool through which people can transfer their assets to others over time.  People who create trusts are called “settlors,” because they “settle” or initially put assets into the trust.  Those who stand to benefit from the assets in the trust are known as “beneficiaries.”  The person…

  • Blog Post

    Six Basic Questions and Answers about Executors

              If you have a will or have ever dealt with estate administration, you are probably familiar with the term “executor.”   However, most people don’t know what an executor is or what the executor’s role is.  Additionally, what do you do if you suspect an executor is behaving fraudulently or contrary to the deceased person’s wishes?   What is an executor?             An executor is a person or institution appointed to carry out the terms of a person’s will.  They are appointed by the person who wrote the will, the testator, to conclude the business and financial arrangements the testator had…

  • John C Lindley III
    Blog Post

    Six Ways to Challenge a Will’s Validity

              Wills must meet several basic requirements to be valid and enforceable under state law.  If any of the below factors are at work, then a will’s validity may be challenged.   (1) Undue Influence              Undue influence exists when a person uses coercion to influence the testator (the person creating a will) into executing a will that does not accurately reflect the testator’s true wishes.  There are several red flags to keep in mind if you are suspicious a loved one’s will is the product of undue influence.  Unusual dispositions of property, sickness and vulnerability of the testator to undue influence,…

  • Firm News

    Lindley Law Secures Order Striking Deed from Chain of Title

    Earlier this month, Lindley Law secured an order declaring a contested deed null and void for lack of proper authentication.  Representing the guardian of the estate of an elderly woman who was adjudicated incompetent, Lindley Law sought to protect her property interest from an attempted transfer by her son.   Lindley Law alleged the deed was invalid under eight different legal theories, including fraud and forgery.  In performing its due diligence, Lindley Law located the mother’s notarized signature from twenty-nine (29) other documents over a time period spanning more than twenty (20) years.  The signature on the deed in question did not resemble the other known signatures, but a handwriting…