Torts — legal malpractice

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Wisconsin Court of Appeals

Civil

Torts — legal malpractice

Kevin and Penny Klein appeal the circuit court’s judgment dismissing their legal malpractice action against their former bankruptcy counsel, Attorney Christopher Duren, his law firm, and the firm’s malpractice insurer. The Kleins’ arguments relate to the enforceability of a reaffirmation agreement between the Kleins and one of their creditors, Associated Bank. A reaffirmation agreement is a contract between a debtor and a creditor that allows a debt that is otherwise dischargeable in a Chapter 7 bankruptcy to survive the bankruptcy. In re Golladay, 391 B.R. 417, 421 (Bankr. C.D. Ill. 2008).

Attorney Duren represented the Kleins in their Chapter 7 bankruptcy and allegedly advised the Kleins that they needed to sign a reaffirmation agreement with Associated Bank in order to keep their house. After the Kleins received their discharge in bankruptcy, Associated Bank sued to recover a debt that, the bank asserted, survived the bankruptcy because of the reaffirmation agreement. The basis of the malpractice suit here is the proposition that entering into the reaffirmation agreement ran contrary to the Kleins’ interests.

Attorney Duren’s primary defense to the Kleins’ suit is his assertion that the agreement is unenforceable.

The circuit court concluded that the reaffirmation agreement is unenforceable as a matter of law. The court further concluded that, if the Kleins’ claims were tried, the jury would be instructed that the agreement is unenforceable. ¶4 Faced with the court’s conclusions that the agreement is unenforceable and that a jury would be told the agreement is unenforceable, the Kleins stipulated that they could not show that Duren’s alleged negligence caused them compensable damages. The Kleins now challenge the circuit court’s conclusions,

making two main arguments that we quote verbatim:

(1) “The reaffirmation agreement met all the requirements for enforcement, making it an error to hold it invalid as a matter of law.” (2) “The Kleins could prove damages to a jury, regardless of the enforceability of the reaffirmation agreement, if a jury is not told that it was unenforceable.” We reject the Kleins’ arguments, and affirm. Not recommended for publication in the official reports.

2013AP1216 Klein v. Duren Law Offices, et al.

Dist IV, Dane County, Niess, J., Lundsten, J.

Attorneys: For Appellant: Pagel, Briane F., Jr., Madison; For Respondent: Covelli, Claude J., Madison