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Surety Defense Counsel Prevails In Trial On Unreasonable Surcharge Petition

By April 23, 2024No Comments

Surety counsel, Tracy Stevenson, Esq. (ret. senior associate), and Amber Kim, Esq., were successful in preventing a $353,000 Co-Trustee bond loss. In a long awaited week long trial that spanned over a year given the court’s impacted schedule, the court overwhelmingly agreed with the surety’s position that any attempts to surcharge trust expenditures including caregiver charges against formerly resigned co-trustees were unreasonable and based upon conjecture and speculation.

Prior to litigation, surety counsel made several attempts to obtain the surcharge petitioner’s evidence in support of the surcharge request. Petitioner failed to cooperate with the surety and instead argued the burden of proof was on the formerly resigned co-trustees to prove the charges were proper. Trial commenced and the court ultimately agreed that once the account was substantiated, the burden of proof shifts to the challenger to show the items in question are wrong. Here, the petitioner was unable to meet said burden. If it wasn’t for the surety’s subpoena of the caregiver to appear at trial, the court would not have critical evidence to defeat the surcharge petition. Even under intense cross-examination from the petitioner’s counsel, akin to an experienced felony prosecutor, the court found the caregiver’s testimony regarding services rendered to the trustee as credible and reliable.

Congratulations to Mrs. Stevenson and Mrs. Kim!

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