Murray Trachtenberg being counter sued!
The case file contains 109 pages. As we read the material we found it troubling. Here's a synopsis:
(1) There are a lot of moving parts and several parties involved. Donald Schade formerly from Winnipeg now Calgary was Executor of his parents' estate. He hired Murray Trachtenberg
(2) At some point his brother Larry Schade engaged an attorney (Gordon Katenikoff) to challenge Donald Schade's right to probate his parent's will
(3) Enter a Bankruptcy Trustee (solicitor Byran Hyman) to represent the interests of the Provincial Registrar
(4) Mr. Donald Shade claims only a verbal agreement existed with Counselor Trachtenberg who quit giving rise to a dispute over approximately $5,700 in what the latter claims are unpaid legal fees. Mr Trachtenberg filed a Small Claims action to recover the funds
(5) There are several e-mail written by Donald Schade in which he appears increasingly angry, frustrated, agitated - whatever the descriptives - with Counselor Trachtenberg
(6) Donald Schade claims he suffers from a medical condition (not explicitly identified) which impacts on his physical and cognitive capacities. He is self-represented
Here are three documents from the file - you be the judge.
Clare L. Pieuk
The Queen's Bench - General Division Centre
Civil Disposition Sheet
Sitting date(s): April 16, 2008
Judge: J. Hanssen
If the counter claim is going ahead $150 security for costs to be paid within 30 days or counter claim will be struck. Court is not appointing counsel at this time. No other parties will be added by by D. Schade. Amend title of proceedings to add the public trustee.
Adjournment to May 12, 2008 at 10 a.m. in court room 317 for trial.
Notice to Plaintiff
If you do not appear at the hearing of the counterclaim, a default judgment may be given against you and you may not then appeal this decision unless you first obtain leave to appeal from a judge.
Queen's Bench Small Claims
File No. S/C 07-01-09647
Between: Murray N. Trachtenberg
- and -
Estate of Alfred Schade, Executor Don Schade and Beneficiary Don Schade
Notice Of Intention To Appear
The defendant Don Schade intends to appear at the hearing to dispute the claim.
1. Donald Schade is the executor of his late father, Alfred Schade's estate. Alfred Schade resided in Winnipeg at the time of his death.
2. The Grant of Probate for the estate of Alfred Schade issued from the Court of Queen's Bench in Manitoba.
3. The principle remaining asset of the estate is a house located at 2 Windermere Bay, Winnipeg Manitoba.
4. Donald Schade retained the plaintiff to provide legal services including commencing an action in the Court of Queen's Bench Winipeg Centre to obtain vacant possession.
5. The contract for legal services was made in Manitoba. The legal services were provided in Manitoba. The contract provided for the plaintiff to charge an hourly reate, plus disbursements and taxes.
6. Donald Schade personally and the estate are jointly and severally liable to the plaintiff for payment of the outstanding amount.
7. Services were provided by the plaintiff and invoices were sub mitted in accordance with the terms and conditions of the retainer agreement.
8. The following amounts remain unpaid:
November 1, 2006
February 27, 2007
April 16, 2007
May 16, 2007
August 16, 2007
October 15, 2007
November 29, 2007
9. The plaintiff has demanded payment but the defendants have failed to pay the amount due.
10. The claim may be served on the defendants outside of Manitoba without an order of the Court in accordance with Queen's Bench Rule 17.02 as follows:
17.02(f) (i) the contract was made in whole or in part in Manitoba
(iv) the breach of contract has been committed in Manitotba
(h) the loss/damage claimed was sustained in Manitoba
SCHEDULE "A" Response
1) Donald Schade WAS the Executor of the Estate of the late Alfred Schade and the Manitoba PUBLIC TRUSTEE is the executor, and has assumed all responsibilities for the estate. When I was asked by my late father to be the executor I resided in Calgary, and it was understood and agreed by my father and I, that the jurisdiction was where I lived.
At no time when Mr. M. N. Trachtenberg was hired was I informed of issues relative of jurisdiction AND I would have made them by agreement, Calgary.
2) From my vague recollection, this Grant of Probate may be true. I do not believe my lawyer explained what this document was.
3) I believe that is fact, except to say I told my lawyer at that time, that Larry Schade may have had Power of Attorney over the estate of Alfred Schade, and that this has not been disclosed. L. Schade has also not fully disclosed under his Power of Attorney for the late Rachel Simone Shade, wife of Alfred Schade, and my mother. So there may be an "Accounts Receivable" issue as an asset of the estate
4) "VACANT POSSESSION," was never obtained. I arrived about June 25, 2006 at 2 Windermere Bay, (Winnipeg) after 15 hours of driving. The property smelled of dog urine, sewer gas, and full of dangerous black mold on the ceiling, walls and floors. Both sinks leaked severely, the home was filthy, food was left in two freezers (one which had thawed and then replugged in) and fridge. I took about 150 full size pictures of the damage. I had difficulty in getting the key for the home and thus the garage as well.
I put phone service in the home and attempted to talk with my lawyer, who I had never met in person. Through his secretary, Louise, I asked to talk with him and meet with him. I also asked if he could view the home first hand. I said I was available from 8:00 a.m. until 11:59 p.m. weekends included. I was told he was "too busy" could/would not meet or talk with me. After about 8 days my lawyer said he was going to make a claim for my not receiving "vacant possession [v.p]." The estate had no funds, and I am on a federal Canada Disability Pension, since 1993.
5) The agreement was made in Calgary. The hierarchy was in Calgary.
Initially, the executor has asked for a large retainer and my lawyer was told that the only asset was the home which was clear title. The verbal agreement was that the estate would pay for "opening the file" which was for out of pocket costs, which was deemed fair by the executor. I sent him a $500 cheque for the filing fee. I never saw a receipt for the filing fee and believe $500 was not the real cost and was not as agreed. There was no retainer. He was to be paid $250 per hour and the total legal fee was to be paid when funds were received from the sale of the home.
6) Don Schade, is a beneficiary and was kind enough to rpovide the filing fee as a loan to the executor and the estate. If beneficiaries are liable then Larry Schade and Cheryl Schade should also have been sued. Suing beneficiaries would be precedent setting. Ironically, the executor is not sued.
There was no written agreement as it was verbal. In case I had errored, I repeatedly asked my lawyer for a copy of the agreement he provided none and ignored me. I then wrote the Law Society of Manitoba and asked them to get me this "agreement." None was provided. If there was an agreement, why was one submitted much later. It asked for a "personal guarantee." I was not in a position to provide such a guarantee, nor was one ever asked for before or agreed to!
I was advised that if I did not let the lawyer exhort this agreement he would quit.
He did quit twice but in between he sent out documentation to two opposing lawyers. I AM NOT A LAWYER BUT IS THIS LEGAL?
7) The executor instructed his lawyer to discuss matters with Mr. B. Hyman, which I believe was not done. Mr. Hyman was a lawyer with the Public Trustee and represented my sister who is a beneficiary.
8) The lawyer does not provide a full accounting and statement from when he was retained by the estate which as I recall was about June, 2006. I believe he is suppressing evidence.
9) Payment was from the sale of 2 Windermere Bay. There was nowhere else it could have initially come from. The executor brought offers as early as about March, 2007 and more recently twice about September, 2007. None of these were acted on but were ignored.
Recovery of funds could have come from "costs" given to the estate twice in amounts of about $1,200 and about $1,400 (with interest). Contempt of Court could have been validated I understand the executor could have got title to 2 Windermere Bay and moved without interference.
A second finding as plaintiff was begun against Larry Schade for fraud under his Power of Attorney for not disclosing what happened to my mother's funds. About that time, my lawyer asked me where I was going to get the funds to make repairs/renovations to 2 Windermere Bay. I told him from my mother's estate, and he gave a surprised "OH!" Where did he think the funds are going to come from?" He then told me he had done nothing, even though I had paid him a lot of money for filing. AFTER THE FACT, he told me it would cost a lot of money not before! In other words I was being tricked again.
I advised my lawyer to ask the court if funds were recovered, that after everyone was offered a chance to participate, like in a bankruptcy, only those participated in the recovery would lose or win. I spent as best I can tell about $4,000-$5,000 on this second file.
Finally, Larry Schade owned up to defrauding about $11,000. Though these facts may pertain to the file being used on, it shows a pattern of my lawyer not working in the best interest of his clients(s).
I asked Mr. Trachtenberg if he was withdrawing because what he was suing had lapsed and the statute barred/expired, TWICE! He refused to answer, saying it was a legal question. He was still on the court record.
Mr. Trachtenberg withdrew with court permission on or about November 23, 2007. As he was going to charge costs, I gave him consent to withdraw if there were no costs. He advised me that he told the Judge that this was with consent and he took costs as well. This matter was with conditional consent if no costs were charged. The court was deceived. Justice was mislead!
On or about December 10, 2007 Mr. Trachtenberg withdrew from the second file opened in 2007. He indicated that "He could not work for that man" or words to that effect defaming me. He told me he could not work for me as the two other lawyers objected to his not handling both files. He hid the fact that he stayed with the second file, as he had duped me into paying additional fees. When I became aware, and stopped paying (as he had done no work) he quit.
He also advised me that I could not appear in court under Rule 15.01 (1) without a lawyer (which I could not afford as he had all my funds and refused to collect on Order/Judgments which was valid.
After calling Legal Aid 5-6 times and approaching about 5 other lawyers, I found one who was interested and wanted to see my file. Mr. Trachtenberg would not let him see the file unless this lawyer was retained.
My lawyer violates the "Statement of Principles on Self-Litigants" which comes from the Canadian Judicial Council chaired by the Right Honourable Beverley McLachlin, Head of the Canadian Supreme Court.
My lawyer, interestingly originally honoured the Canadian Human Rights when he agreed to get paid from the sales proceeds. HOWEVER, when he made a change as evidenced by his new contract he VIOLATED Canadian Human Rights and Manitoba Human Rights which mimic CHR.
I advised my lawyer at the outset that I had virtually no money. I also advised him at the outset that I had a disability which is classified by medical personal as "prolonged and severe." One needs "prolonged and severe" to qualify for CPP Disability. CPP D pays me about $1,000/month which equates to about 50% of the poverty level. I am in debt to the tune of about $250,000+/-. My disabilities relate to cognitive and physical. These matters herein have put me under a doctor's care and I saw two doctors yesterday and have appointments with two later. Two medications have been prescribed in addition to the one I was already taking.
A huge amount of time was correspondence demanding, coercing, exhorting new agreements and funds in violation of the original agreement. This to me is over billing and of no value as it did not benefit anyone or anything. As such I am in the process of having the bills taxed by the Law Society of Manitoba.
On at least two occasions, stupid old me had to advise my lawyer that the action(s) were seized by a particular judge and that my lawyer was going to the wrong court.
I will be filing a human rights complaint and have talked with the human rights lady at the Law Society trying to get her to mediate. This action was unsuccessful.
The breaching of the verbal agreement for no significant and valid reason(s) has left the estate executor and the beneficiaries disadvantaged severely, I am being flooded with Motions/Affidavits, etc.
I am spending 100s of of hours as I am not a typist, have no filing system. Often I start at about 8:00 a.m. and finish after 1:00 a.m. in the morning, physically and emotionally exhausted with these matters.
My lawyer's actions and inactions are causing increased utility costs (gas, electricity, sewer, water, telephone) plus flying to Winnipeg, car rental, office expenses (paper, printer ink, courier and documentation commissioner and notary charges, car and gas), etc. related to 2 Windermere Bay.
Mr. Trachtenberg advised me at one stage to go deeply into debt with a mortgage on 2 Windermere Bay; do all the work, pay all the bills, be responsible for the mortgage and take my 1/3; while no one else provided any benefits. THAT is the investor we are all looking for, "You take all the risk and do all the work and get 1/3 of the return." I desperately look for such a party in a fools paradise!
Don Schade has loaned the estate and paid taxes twice to stave off a tax sale on 2 Windermere Bay, in an amount totaling with interest about ($3,500 and $3,700 approximately) $8,000 and is the most penalized in these matters. One or more of the parties sued today plans to take further action and/or has the option to do so and asks for a judgment and/or award in such a way that this award goes to Don Schade in a form such as "damages?"
All three parties ask for $10,000 each (i.e $10,000 x 3) intrusted to Don Schade to do as he wishes/pleases or as the good court decides in fairness.
I attest to the information provided above on these 4 pages and others herein.
The Queen's Bench Winnipeg Centre
Between: Nurray N. Trachtenberg
- and -
Don Schade (Funder and Beneficiary) and/or Estate of Alfred Schade and Executor Don Schade
The Defendant (as above) counter claims against the plaintiff M. N. Trachtenberg for the sum of ($1,000 x 3 or $10,000), plus prejudgment interest and costs of this counterclaim, for the following reason or the reasons set out in the attached document: (as included on a separate page)
Date: January 31, 2008
(Signature of Defendant or Solicitor)
116 Deercrest Close
Calgary, Alberta T2J 5T3
Don Schade and the other parties if they are still included in this action:
That amount sued for by the lawyer, $5,709.06 be denied and the filing fee(s) of $500 and $500 the second being because the files are linked even in Queen's Bench Court in documents as recent as January 25, 2008.
- That amount of $10,000 x 3 ($30,000) for each of the parties sued as this really is 3 actions under the guise of one file number, be awarded under the sole control of Don Schade to do as he solely wishes
Or if denied:
- An award to Don Schade, the party most harmed and disadvantaged, an award of $10,000
Both the above with interest and costs
Or as the good Court awards
File no. CI 06-01-48519
The Queen's Bench Winnipeg Centre
Donald Schade in his capacity as the Executor of the Estate of Alfred Schade and the Estate of Alfred Schade (Plaintiff)
- and -
Larry Schade (Defendant)
Affidavit of Don Schade
Sworn The 22 Day Of November, 2007
Hearing Date Of Friday, November 23, 2007
Before Madam Justice Duval
Don Schade, Executor
116 Deerecrest Close SE
Calgary, Alberta T2J 5T3
Telephone: (403) 225-0202 (MST)
Affidavit Of Don Schade
I, Don Schade, of the city of Calgary, in the Province of Alberta
Make Oath And Say:
1. I hired lawyer Mr. Murray Trachtenberg and as such have personal knowledge of the matters herein.
2. I advised Mr. Trachtenberg that I had a limited income as I was on a long term disability under the Canada Disability Pension Plan term of "Prolong and Severe" since 1993 and have cognitive problems.
3. There was an agreement that he would receive his payment from the sale proceeds of the 2 Windermere Bay and he would be paid $250 per hour and I paid $500 for the filing fee.
4. When I asked Mr. Trachtenberg for a copy of our agreement which I thought may be in writing, he submitted a new agreement which made me personally guarantee the Estate. As he would not provide the old agreement, which I recalled as verbal, I asked the Law Society of Manitoba to get it for me. What I received was not an agreement, and I sadly believed that I was being tricked adn deceived.
5. I was being told that I would have to sign a personal guarantee for the Estate which I refused to do as that was not our original agreement, or he would quit, which he currently intends to do with costs. This is most unfair and I believe he is punishing me for going to the Law Society.
6. His actions violate my Canadian Human Rights and I am told by and adviser at Manitoba Human Rights, and that the Manitoba Human Rights mimic the Canadian Human Rights.
7. Mr. Trachtenberg actually quit twice and in between sent out written communications to the other lawyers and I believe this was because he was tardy in responding to them.
8. I believe that considerable time and probably billings were caused by his trying to get me to sign a new contract, which I was told was the same as the old one and this confused me as it made no sense if they were the same?
9. I have asked Mr. Trachtenberg if any of our actions had lapsed time or expired and have not had a response.
10. Mr. Trachtenberg advised that I can not appear and present in court because I must be represented by a lawyer because of my disability. I have contacted Winnipeg Legal Aid 5-6 times and have not had my telephone call returned. I have contacted 3 other lawyers and been unsuccessful. I was told that because of poverty they would not work for me and they wanted a large retainer and the file was very/too complicated.
11. With regards to Mr. Trachtenberg's Point 5, I am confused with his comment. The issue was Mr. Trachtenberg demanding me to sign a PERSONAL GUARANTEE for the Estate something which I felt was grossly unfair as I was not in a position to do so. His not providing a copy of the initial agreement made me suspicious. I believed he was using my disability against me.
12. His Point 6: I believe the issue of my not signing the Personal Guarantee and his now wanting to be paid every month is in contravention of our original verbal agreement. I am not aware of any communications I made to my lawyer which show loss of confidence. IT IS INTERESTING TO NOTE THAT AT THE TIME OF HIS "UNCONTESTED" NOTICE OF MOTION, he was prepared to carry on the file on my mother's estate which I believe is paid far in advance and was an error on my part. As there is no example of any "certain e-mail communications" so I can not comment. It is true that I am sometimes considered agitated, which I am not really inside, and this is a disability symptom. I also often use CAPITALS for speed and readibility and NOT shouting.
13. I did have a concern my lawyer was appearing before The Master and Not the Judge seized the two files, as I seemed to know and he did not and that this would waste time and money. I did bring this to his attention as time had been wasted before the Master who felt could not make a decision on the matter presented. I advised him that I did not want this Estate to be my career.
I did see communications from other lawyer(s) asking why I was not giving instructions and I was concerned. I was concerned when I was being blamed for delays because my lawyer was on holidays. I recall a communication/concern Mr Hyman as to what the Executor was doing with the Estate. I responded in detail, about 3 pages. My lawyer had this information. I invited my lawyer and the other lawyers to see the VERY SORRY state of 2 Windermere Bay, which was NOT received "Vacant Possession" meaning usable, safe, dangerous. No one attended.
15. His Point 7: I am not a lawyer and could not sign an agreement I did not understand, was not explained and most importantly the consequences to the Executor and the Estate. As a lawyer has a power over his client, is this not a conflict of interest?
16. His Point 8: I did request the name of the Trustee's lawyer and the name of the last female/Madam Judge directly from my lawyer. He did not ask why I wanted this information NOR did he object. Subsequently, I did about 2-3 weeks ago receive a telephone call from Mr. B. Hyman and he told me he had permission from my lawyer to talk with me and progress seemed waining. He did not even seem interested in meeting with me when I was in Winnipeg at the end of June/early July, 2007.
17. I have paid the outstanding amount of the last two tax payments for 2006 and 2007, now pay the water and sewer, heat/natural gas, insurance, phone service and have spent hundreds of hours on these estate matters.
18. I believe this court appearance on November 23, 2007 is unnecessary as I have sent two registered e-mails to my lawyer and these e-mails do not appear to have been opened. These e-mails said I would release him from the file of the Estate of Alfred Schade because of the threat of the Estate being charged with costs by my lawyer. I consider this unfair.
19. I believe I may have asked my lawyer for more time as I was trying to get a lawyer and am not well as the stress of these matters increases the symptoms of my disability.
20. Rule 15.01(1) says "a party to a proceeding who is under disablilty or acts in a representative capacity shall be represented by a lawyer.
I ask that a lawyer familiar with estates and related litigation be appointed by the QUEEN'S BENCH for the Executor and the Estate.
21. As I know that I can not contact a Judge directly, I received the times Madam Justice Duval was in court and may be available in court either as an ex parti or a special.
22. THE REASONS I wanted to meet the Judge in open court was to ask for directiion on issues and concerns I had as Executor as I felt I had hit a wall:
The serious condition of 2 Windermere Bay which made me ill because of sewer back up and gas, dog urine and black mold and my lawyer has the 100-200 pictures
23. I did not believe this court appearance would happen until this last moment because I offered his release though extorted. My travel by car is about 15 hours each way or 30 hours return.
Repeated threats by Larry Schade of wanting to smash my face and strangle me and I and others have a concern for my/their safety. And to discuss threats initially made to me by Larry Schade to extortion by reporting me to Revenue Canada and now the use of 2 cheques from my mother's estate which are my funds which are being used with a fraudulent explanation that they were a loan from my mother to me.
My lawyer is aware of the above.
I never borrowed any funds from either of my parents. And Mr. G. Katelnikoff, Larry Schade's lawyer is using these cheques with the Public Trustee's Office to defame my good name and ask for my removal.
Mr. G. Katelnikoff represented me as my lawyer and bungled a transactin and the Law Society of Manitoba removed his/my file from him. This bungling cost me a huge sum of money probably at this stage $200,000 +/-. He has personal information about me and it is most unfair and unprofessional that he be involved against me in this Estate matter.
That costs not be awarded to Mr. M. Trachtenberg as this action does not serve the benefit of the Executor and Estate and, in fact, harms it.
That costs and penalties be awarded to Don Schade and/or the Executor and/or the Estate of Alfred Schade for breach of contract, misrepresentation and attempted fraud and,
That all funds paid by me, such as my personal payment for filing costs, be returned as there will be additional costs to the Estate in hiring.
Cost for the huge amount of time and stress on me personally and
Such further and other relief as the natuure of the case may require and this Honourable Court deem just.
Please find attached 23 pages of documents marked as Exhibit "A."
SWORN BEFORE ME at the)
City of Calgary, in the)
Province of Alberta)
22nd of November, 2007.)
Katarina Ruta Holdaway A Commissioner for Oaths in and for the Province of Alberta. My Commission expires December 7, 2009.
DON SCHADE, EXECUTOR