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Firm Seeks to Dismiss a multimillion Dollar Malpractice Claim

U.S. District Court for the Northern District of Texas asked to reject a second pass from a client to collect a Multimillion Dollar Malpractice Claim (3.16 Million) given in regards to a sexual harassment lawsuit. 

Martina Smart Simmons originally filed a Multimillion Dollar Malpractice Claim in March 2015 against Burt Barr and Associates, and attorneys John H. Barr and John Howell House. Simmons alleged that the defendants failed to file proper procedures when they obtained a $3 million final judgment against Piyush V. Patel on behalf of Simmons in the 238th Judicial District Court of Midland County, Texas.

Patel was Simmons' employer in connection with his medical practice. Simmons alleged that Patel committed numerous acts of sexual harassment, false imprisonment, and ultimately, retaliation against her. She hired Burt Barr and Associates to represent her in her claims against Patel.

A $155,000 judgment against The Heart Center and Heart Place Hospital, LP was obtained from the Equal Employment Opportunity Commission on Sept. 23, 2004.

In 2004 and 2005, Patel and some of his affiliated entities filed for bankruptcy in the Western District of Texas. According to Simmons' original complaint, the defendants obtained the $3 million judgment against Patel in 2011 without obtaining relief from the bankruptcy court. Specifically, Simmons claimed that the defendants failed to protect her claims by not obtaining relief from the automatic stay imposed by the bankruptcy filings before the judgment was entered, and by failing to object to Patel's and the other debtors' discharge of Simmons' claims in the various bankruptcy cases.

As a result of the defendants' alleged misconduct, Simmons' claims were discharged in the bankruptcy proceedings and the $3 million judgment "is not any good."

Simmons subsequently filed her lawsuit against the defendants, asserting claims for legal malpractice, negligent infliction of mental anguish and emotional distress and Texas Deceptive Trade Practices Act (DTPA) violations. In March, the district court granted the defendants' motion to dismiss the negligent infliction of mental anguish and DTPA violations claims, but denied their motion to dismiss the legal malpractice claim.

After the March ruling, Simmons filed a second amended complaint, which asserts the legal malpractice claim. The defendants have asked the court to reject the second amended complaint.

In their June 3 reply filed in defense of their dismissal motion, the defendants said Simmons "is proposing that the court presume that Dr. Patel had real property subject to collection, that Dr. Patel possessed excess equity of at least $3.155 million in the presumed property and that plaintiff would have collected on the underlying judgments, merely because Dr. Patel's bankruptcy attorney informed defendants that the debts were discharged."

"Plaintiff's presumption that the underlying judgments would have been collectable because Dr. Patel's bankruptcy attorney responded to defendants' attempt at collection is insufficient to state the element of collectability," the defendants said in their reply. "Alleging that a lawyer wrote a letter informing a creditor seeking payment that the creditor's collection effort was unlawful due to discharge in bankruptcy is not an allegation that allows a plausible conclusion the bankrupt debtor holds title to real estate with equity, or that he has come into $3.155 million or any other amount."

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