KEYSER – The attorney named as a defendant in a lawsuit alleging he allowed her to lose her house has filed a motion to dismiss and an answer and affirmative defense.


In his answer and affirmative defense, James E. Smith II denied that he, his secretary or anyone else acting on his behalf, advised Kelly S. Brown that she was the sole owner of her home and that she could sell it or rent it out, according to the document, which was filed Jan. 26.


In his motion to dismiss, Smith moved to dismiss all claims in the civil action and noted that he was not properly served with the summons and complaint in the matter, according to the Dec. 29 motion to dismiss.


Smith claims the docket sheet notes that the summons and complaint were served in person on Dec. 2, however, they were not served personally upon Smith and instead were served at his law office to his secretary, Rhonda Kolberg.


Kolberg was also not an agent or attorney-in-fact authorized by appointment or statute to receive or accept service of the summons and complaint on Smith's behalf and was also not a member of Smith's family, according to the motion to dismiss.


Brown claims Smith allowed her to lose her house while he allegedly worked too slowly on her case, according to a complaint filed Dec. 1 in Mineral Circuit Court.


Brown was still living with her ex-husband when he died, and Brown hired Smith in August 2012 to represent her in his estate, according to the suit.


Brown claims her ex-husband's son was threatening her in an attempt to get her to vacate her home on Wasterside Street in Ridgeley and hand over her belongings, so she gave Smith a copy of her divorce agreement and house deed and asked him to find out whether she was the beneficiary of various accounts of her late ex-husband's.


Kelly Brown attempted to speak with Bank of America, the mortgage holder, but Justin Brown had told them not to speak with her, so she attempted to speak with Smith on a weekly basis, with his secretary telling her each time that he knew nothing more.


After three months, Kelly Brown says Smith’s secretary requested more money on his behalf because the matter was complicated, and when she met with Smith, he suggested she give up, according to the suit.


Kelly Brown claims Smith’s secretary informed her she was the sole owner of her house but she then received a letter announcing the foreclosure of her home.


The house did not sell at auction, but Kelly Brown did not move out, waiting to hear from Bank of America’s lawyers, according to the suit.


Kelly Brown claims one day, she returned home to find the house locked and a Century 21 for sale sign in the yard.


Century 21 removed the lock box when Kelly Brown called, but she was continually harassed, and Bank of America demanded $5,000 to reinstate the loan, which she could not afford, according to the suit.


Kelly Brown claims she has suffered physically and emotionally from the trauma, which she says could have been avoided if Smith had timely researched the law regarding her home or informed her that she should find a new lawyer.


Kelly Brown is seeking damages in the value of her home and possessions she had to sell in addition to moving expenses and storage fees. She is representing herself.


Smith is represented by Robert J. D'Anniballe Jr. of Pietragallo Gordon Alfano Bosick & Raspanti LLP.


The case has been assigned to Circuit Judge Lynn A. Nelson.


Mineral Circuit Court case number: 14-C-142




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