The eight-year itch

Esser won a pro bono case, but when his client disappeared and the loser didn't pay, he refused to give up

By April Wilkerson, NC Lawyers Weekly

It took him nearly eight years to complete, but attorney William L. Esser IV of Charlotte stuck with a pro bono case that resulted in a very happy - and surprised - client.

Esser serves on the pro bono committee for his firm, Parker Poe Adams & Bernstein. In 2002, he began working on a landlord-tenant referral from Legal Aid. The case required him to be part attorney, part investigator, but solidified his belief that good things happen when lawyers help those who need it the most.

His client had already received an eviction notice from her landlord, and a judgment had been entered against her for late rent. According to court records, she had told her landlord about numerous problems in the house, and he refused to fix them.

Esser appealed to district court, and in the meantime, his client moved to another place. But the judgment against her was still looming.

"She'd also paid a significant amount of rent to the landlord while the property was in this condition, so we asserted counter claims back against the landlord," Esser said.

The result was a default judgment against the landlord, and treble damages for unfair and deceptive trade practices. Esser tried to collect the judgment for her, but the landlord's main assets were his home and the rental building in which the client had lived. The buildings were side by side.

That's when the case became even more circuitous. There was a private mortgage on the property, which didn't play in Esser's favor. If a bank were involved instead, there are mechanisms to figure out the amount owed, he said. And once the amount of a prior mortgage is known, an attorney can determine if there is sufficient equity in the property to have the sheriff sell it. But that wasn't an option.

"We tried all kinds of ways to figure out this private mortgage," Esser said. "I tried to find the guy who owned the private mortgage, but he had died. Then it got distributed through his estate, but there wasn't a formal estate file, so I started calling around trying to track down his kids, who I thought were the most likely ones to have gotten this. I even tried to get the landlord himself into court so I could cross-examine him under oath and he could tell me how much he owed, but we had significant difficulty in finding him to get him served. But I just could get nowhere."

Time passed, and Esser said he was always nagged by the fact that he couldn't get to the bottom of the case. He lost contact with his client as well.

But every three to six months, he would pull out the file again to see if the mortgage, which covered both properties, had been discharged.

One day, in July 2009, it was.

"Lo and behold, the mortgage had been satisfied of record," Esser said. "I couldn't believe it. I thought, 'Yes, we're clear. We're in first-place lien position now.'"

So Esser primed the sheriff to sell the rental house. That's when the landlord decided to retain counsel. His attorney filed a motion to set aside the judgment on the alleged grounds that the landlord had not been properly served with the original documents about seven years before.

Esser prepped again for district court. Not only did the landlord's attorney put on testimony to have the judgment set aside, the landlord and a friend of the landlord's testified that Esser's client lied about the condition of the property and that if there were any problems with it, she must have caused them.

"But my favorite part about it was that the landlord got on the stand and went through this whole cross-examination about how he couldn't read," Esser said. "And therefore because he couldn't read, if he had gotten any documents from me in the mail, he wouldn't have known what they said. So I'm like, 'You didn't have an attorney when you proceeded with the summary ejectment action against her; if you can't read, how did you fill out the forms and know to go to court?' It just wasn't credible."

Eventually, the district court ruled against the landlord, and he paid the full amount. That's when Esser put on his investigator's hat. He called a local relief agency, which was able to track down his client. And Esser told her that she had about $18,000 coming her way.

"That was a fun conversation to be had with her," he said.
But Esser's perseverance was about to be matched by his client's generosity. She wanted to give Esser something, but he didn't feel right about accepting anything. However, he told her that if she really wanted to do something, she could help Legal Aid. So she bought the agency two computers.

Ted Fillette, assistant director of Legal Aid of North Carolina, said the timing was serendipitous. Two recent graduates from the Charlotte School of Law were coming for a nine-month fellowship, focusing on housing issues, but the office had no computers for them.

"There was a certain symmetry to it that she was willing to share from her award enough to enable us to have two recent law grads come in and do the same kind of work that Will Esser had done on her behalf," Fillette said. He said the law grads helped about 100 clients who were living in indecent conditions or on the verge of becoming homeless.

For Esser's part, he stuck with the case, he said, because he knew the landlord had assets and that his client was a deserving person who simply found herself in a bad situation.

"I guess I'm a firm believer that at the end of the day, when I have to meet my maker face to face, he's not going to say, 'How many billable hours did you do, Will?' He's going to say, 'What did you do that wasn't just in it for you?' I guess that's my motivation," Esser said. "God has blessed me in a heck of a lot of ways, and if I can't share that with others, then that's selfish."

_______________