Bar calls Dues' behavoir 'serious and disturbing'

By Lawrence Smith | Feb 13, 2009

CHARLESTON - Despite dismissing a collateral complaint Nicholas Loan and Mortgage filed against Ted Dues for committing fraud in refinancing a loan on two automobiles, the state Bar still had some harsh words for the allegations leveled against him.

Prior to filing its lawsuit in January 2007, Nicholas lodged a complaint with the Office of Disciplinary Counsel, the investigative arm of the state Bar, against Dues on Nov. 1, 2006. Similar to its lawsuit, Nicholas alleged Dues and his wife, Mona, not only defaulted on, but also committed fraud with a $56,000 loan they secured in October 2004 to refinance a 2001 Infiniti QX4 and a 1989 Mercedes-Benz 420 SEL.

Because Mona is not an attorney, Nicholas' complaint, which was filed by its secretary, Joy DeMoss, was only lodged against Ted.

In the complaint, DeMoss alleges Dues defrauded Nicholas on the Infiniti when instead of using an insurance check meant to pay for damages, he cashed it and pocketed the proceeds. On the Mercedes, DeMoss alleges Dues committed fraud when despite using it as collateral for the loan, he lost possession of it.

An incident report filed with the Huntington Police Department shows the Mercedes was impounded on Aug. 21, 2002, after it was left unattended for 48 hours and cited for "sidewalk and curb violations" on the 1100 block of 10th Street in Huntington. In his answer to the lawsuit, Dues alleges that's where his son, Ted III, left it when it broke down.

As he did in his answer to the lawsuit, Dues denied he defrauded Nicholas in his reply to the ethics complaint.

After receiving the insurance check he made arrangements with a repair shop to not only do the body work, but also minor repairs to the engine. Before the repairs could be done, the Infiniti was repossessed.

Believing the Mercedes was in a safe place because it was near one of Ted III's friend's house, Dues said he didn't feel the immediate need to have it towed back to Charleston. Also, when he was well enough to leave the house to help Ted III retrieve the car, they were unable to locate it.

On Oct. 30, ODC closed Nicholas' complaint. In his closing order, Stephen G. Jory, chairman of the investigative panel for the Lawyer Disciplinary Board, the Bar's prosecutorial arm, citing the preamble to the Bar's Rules of Professional Conduct stating that a lawyer's business and personal affairs should "conform to the requirements of the law," said Dues' "conduct in this matter clearly does not conform to the standard of conduct expected of attorneys."

Despite finding Nicholas' allegations "serious and disturbing," Jory said they "would be best addressed by the tribunal with the appropriate jurisdiction to make the necessary findings of fact and conclusions of law." After two years of litigation, Dues agreed to accept Nicholas' motion for summary judgment that he and Mona defaulted on the loan, and agree to repay Nicholas $89,345.49 plus interest with a stipulation the Infiniti was repossessed before the repairs could be made and the they were not in possession of the Mercedes when attempts were made to repossess it.

Despite the dismissal of Nicholas', Dues, who is administratively suspended by the Bar for failure to pay his 2008 and 2009 dues plus disclose whether he has malpractice insurance, has two pending complaints with ODC.

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