Sub-prime mortgages and mortgage litigation in general has expanded if not exploded.  New rules, new fees, limitations and new court parts have all followed in the wake.  Borrowers who lose at the mortgage litigation stage then look to legal malpractice as a follow up.  in Jay v. Gallagher
2011 NY Slip Op 32563(U); September 20, 2011; Supreme Court, Nassau County; Docket Number: 323/11; Judge: Karen V. Murphy we see one example.

Plaintiff borrowed and then defaulted on mortgage 1.  Plaintiff e-negotiated and then defaulted on mortgage 2.  Plaintiff filed for bankruptcy, had the bankruptcy dismissed, and then settled the foreclosure litigation.  As part of that litigation the target attorneys moved for and received a charging and retaining lien.

Plaintiff then sued, pro se for legal malpractice.  She loses, for reasons of collateral estoppel and res judicata.

"Collateral estoppel bars relitigation of an issue that has already been decided in prior action, and where the part against whom the estoppel is being asserted had a full and fair opportunity to contest the issue in the prior proceeding (Tydings v. Greenfield, Stein & Senior, LLP 11 N.Y.3d 195, 199, 897 N. 2d 1044, 868 N. S.2d 563 (2008); Jeffreys v. Grifn 1 N.Y.3d 34, 801 N. 2d 404, 769 N. 2d 184 (2003); Schwartz v. Public Administrator 24 N. 2d 65 , 246 N. 2d 725 298 N. S.2d 955 (1969)).
Pursuant to this doctrine, a legal malpractice action generally will be barred by the defendant’ s ‘ successful prosecution of a prior action to recover fees for the same legal services which the (plaintiff) presently allege(s) were negligently performed”’ (York v. Landa 57 A.D.3d 980 981 , 870 N. 2d 459 (2d Dept., 2008) citing Pirog v. Ingber, 203 2d 348, 348-349, 609 N. 2d 675 (2d Dept., 1994)). Specifically, a charging lien entered in an underlying action against plaintiff in a legal malpractice action bars plaintiff from asserting the malpractice claim. By fixing the value of the defendant attorney services, the court necessarily concludes that there is no malpractice. (see Lusk v. Weinstein 85 A.D.3d 445, 924 N. 2d 91 (1 st Dept. , 2011); Wallach v. Unger Stutman, LLP, 48 D.3d 360, 853 N. 2d 295 (2d Dept., 2008); Afsharimehr v. Barer 303 A. 2d 432 755 N. 2d 888 (2d Dept., 2003); Lefkowitz v. Schulte, Roth Zabel 279 A. 2d 457 718 N. 2d 859 (2d Dept. , 2001))."