This year’s session for the Florida legislature marks a turning point and a departure from business as usual in our Capitol. Faced with enormous financial limitations as well as a new Governor and many new legislators, change appears to be the theme. In Florida, the legislature faces one constitutional requirement during session and that is to balance the budget. However, momentum also exists for a myriad of changes in regulations for businesses as Florida’s state leadership is attempting to make Florida more inviting to prospective businesses and employers.
On a recent visit to Tallahassee with a local delegation of central Florida businesses, I was encouraged by the sense of optimism within the legislature. The Governor’s goal of increasing jobs within Florida is not only a possibility but an obtainable goal within the next two years.
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In Florida, if you cannot resolve a dispute for property valued at or money in an amount of $5,000.00 or less, you may look to the Small Claims Court. The rules and procedures in the small claims court are simpler, speedier and more informal than the regular court process and may offer you the best way to recover your property or money.
Prior to filing a lawsuit, you should attempt to reach resolution through direct communication with the other party. If that does not provide you a satisfactory resolution, then you need to evaluate whether or not you would be successful if you take the matter to the Small Claims Court. In other words, do you have a valid legal claim and do you have sufficient proof to succeed in court?
Any person over 18 years of age or any business may file a small claims lawsuit. A person under 18 years of age may also file a lawsuit but only if it is filed by his/her parent or guardian.
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A Non-Disclosure Agreement or NDA is a contract in which one party agrees that it will disclosure information and/or documents which it considers valuable and confidential to another party so long as the receiving party agrees to maintain the confidentiality of the disclosed information and/or documents. NDAs can also be mutual when each party is both disclosing its confidential information and receiving the other party’s confidential information.
The confidential information could be anything which one party considers its secret, such as, a new invention, its financial information, a manufacturing process, its list of customers, a marketing plan, or a recipe. To be protectable, the information must not have been previously publicly disclosed or available from another source.
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It is never easy to discuss estate planning issues with one’s parents. Be assured it is probably not easy for them either. This becomes increasingly more difficult when a spouse has died.
However, being proactive, organized and prepared in this situation will greatly enhance your ability to assist the surviving parent. If possible, it is usually better if the parent continues to make the decisions regarding their life and planning and only relies on you for assistance (rather than your taking control). With that in mind:
- Conduct an inventory of the surviving parent’s assets and debts. Locate and review the important documents related to them.
- Verify that the surviving parent is knowledgeable about their bills and accounts, any arrangements for automatic deposits and withdrawals, and any email or other electronic passwords.
- Determine if the survivor is entitled to any benefits – pension, social security, veteran, life insurance – and apply for benefits as appropriate.
- If title to land, automobiles, investment accounts or other assets were held jointly by the spouses, work on changing the titles. Title can be held solely by the survivor or jointly with another person, or the asset may be capable of being designated as “payable on death.” Such changes should be made consistent with the wishes of the survivor’s Last Will and Testament.
- If the survivor is elderly, determine if he/she is now capable of living on his/her own or if some type of assistance is needed (e.g., visiting nurse or assisted living). Be aware that this status may change with time and needs to be monitored. Assess the home conditions and make any improvements needed for better safety and accessibility. If the survivor is no longer capable of living on his/her own or making his/her own decisions, consider alternative living arrangements for them.
- Update insurance policy beneficiaries, estate planning documents (i.e., Last Will and Testament, Living Will, Durable Power of Attorney) as needed.
- If you do not live nearby, consider making arrangements with the survivor’s other relatives, neighbors and friends who do live nearby to visit and assist as needed.
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In today’s marketplace, a prospective commercial real estate tenant has numerous properties from which to choose and has a significant opportunity to negotiate the terms of a lease. The prospective tenant should not be deterred from negotiation because the landlord says that the proposed standard form lease is the same form everyone else signed. If the landlord is intractable from that position, the tenant will need to evaluate the proposed lease terms as is. But faced with the prospective of continued vacant space, the landlord may change his/her stance if his/her bluff is called.
How can a tenant decide what issues should be negotiated? This determination will vary from tenant to tenant and from lease to lease. A commercial lease can be a very complex document which can control the outcome of many planned and unplanned events. So before deciding on what “standard” terms need to be varied, the prospective tenant needs to thoroughly understand all of the proposed lease terms.
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A Chapter 13 bankruptcy provides an opportunity to eliminate a second mortgage from the residence of the debtor filing for bankruptcy. What is known as a “stripoff” is allowed where the lien or mortgage is “wholly unsecured”.
The legal basis for this relief is found in 11 U.S.C. 1322(b)(2) which in essence provides that a Chapter 13 plan may modify the rights of holders of secured claims other than a claim secured only by a security interest in real property that is the debtor’s principal residence. The courts have consistently ruled that where a lien or mortgage is in reality unsecured there is no protection from a court ordered modification. Further, pursuant to Section 506 of the Bankruptcy Code a wholly unsecured creditor cannot make a lien claim, i.e. a wholly unsecured lien claim is void. Therefore, if the value of the residence is less than the amount owed to the first mortgage company the second mortgage company has no collateral to secure the debtors obligations. Under this scenario the second mortgage company is “wholly unsecured’, and the Chapter 13 debtor may submit a motion to the court seeking a “stripoff” of the second mortgage.
Under current real estate market conditions the second mortgage company rarely contest a motion to stripoff. The Debtor bears the burden of proof to show the sum owed to the first mortgage and the value of the residence. If there is a dispute over the value the debtor will need to obtain an appraisal and be prepared to pay the appraiser for court testimony. The sum owed and values are determined as of the date of the petition filing.
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Many banks are foreclosing on homes or taking ownership of them by a deed in lieu of foreclosure. One question that has come up is whether the bank has continuous coverage under the Mortgagee Title Insurance Policy from when the mortgage was originated. This can be important if title problems are discovered after the bank has already taken title to the property.
Paragraph 2(a) of the 1992 ALTA mortgagee policy Conditions and Stipulations states in part:
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As you begin to accumulate wealth, you should consider various means to protect yourself from claims of creditors. There are a variety of ways to do so, but you must act in a timely manner. Once there is a foreseeable creditor claim against you or your assets, it may be too late to take any action to protect your assets.
How does a creditor claim arise?
You may become liable for a breach of contract or for a claim against a guaranty you provided for the debt of someone else. You could be subject to domestic relations proceedings (such as, unpaid alimony or child support). You could be found liable for injuries you caused to someone else (e.g., a car accident or professional malpractice). These are just a few means in which a creditor’s claim could arise against your assets.
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There are many steps to take before deciding to proceed with a lawsuit. One step is weighing the risks (i.e., cost) of proceeding with the lawsuit against the potential gains.
One risk, even if you prevail in the lawsuit, is that you will spend more money on your attorney fees (and the associated court costs) than you are awarded in the judgment.
Generally, in the United States, each party in a lawsuit pays for its own attorneys’ fees and court costs. There are 2 broad exceptions: (1) the lawsuit is based on a particular statute which includes a fee-shifting provision, or (2) the parties have contractually agreed in writing that the prevailing party is entitled to reimbursement of its attorneys’ fees and costs.
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For the most part, an oral contract is as legally valid in Florida as a written contract. There are exceptions though.
Florida law creates a defense to a claim of breach of contract, called the Statute of Frauds. Generally, to defeat the Statute of Frauds and create an enforceable agreement, a contract has to be in writing and appropriately signed in the following situations:
- a contract for the transfer of any interest in land. This affects not only deeds but includes, among other things, a lease, an option to purchase, and the grant of a mortgage or easement;
- a contract for the sale of goods in excess of $500.00;
- a contract in consideration of marriage, such as a prenuptial agreement;
- a contract which cannot be performed within one year (excluding contracts of indefinite duration);
- a contract guaranteeing the payments of another’s debts; and
- a contract by the executor of a will to pay the debt of the estate from his/her own funds.
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