Thursday, December 31, 2009
Former prosecutors Erin Barnett, Erin Wolfe, Julia Rice and Lauren Dabule recently formed Barnett, Wolfe, Rice & Dabule. The firm's practice will focus on criminal defense, family law and civil litigation.
Please join us as we "welcome" the firm to the Bay area legal community.
To RSVP Contact Ginny at 727-344-5297 or email firstname.lastname@example.org.
The new mediation rules will only apply to homestead residential properties and the program is not retroactive to existing foreclosure cases.
Under order mediation managers must schedule sessions no earlier than 60 days and no later than 120 days after a foreclosure suit is filed. After attending mandatory foreclosure counseling, homeowners should bring tax forms, pay stubs, bank statements and credit reports to mediation.
Lenders must pay the $750 fee, but can recover the money if mediation results in an impasse and the foreclosure suit continues.
The court order comes from a recommendation by the Supreme Court's Task Force on Residential Mortgage Foreclosure Cases.
Prior to this statewide foreclosure mediation program, the Sixth Judicial Circuit implemented a similar mediation program for foreclosure cases. As foreclosure filings continue to pile up in Pinellas and Pasco counties, the courts have implemented a new mediation program.
Shortly after Chase announced a 90 day moratorium on foreclosures Citigroup announced that it was going to halt foreclosures and evictions in connection with mortgages it holds. While this might appear to be a measure of corporate good will, the devil is in the details.
The suspension of foreclosures and evictions only lasts for 30 days, after that all foreclosures and evictions will resume. Next, the suspension does not affect mortgages Citigroup services. So the suspension does not apply to you if your mortgage gets paid to Citigroup but is owned by someone else. Only 4,000 people are going to be affected by this nationwide suspension.
The move by Citigroup is likely in response to the Obama administration's criticism of lenders complying with the "Home Affordable Modification Program." As a result, the administration announced several steps intended to increase modifications including: (1) In house daily monitoring of mortgage companies & servicers by Treasury Department "SWAT" Teams to ensure companies are processing modifications; (2) Withholding inducement payments to lenders and servicers until modification becomes permanent; and (3) Public "shaming" of servicers and lenders that are not actively modifying loans by the release of a list of servicers/lenders who are not modifying loans.
As of October 650,000 borrowers (or 20% of those eligible) applied for modifications, but only 1700 resulted in permanent modifications
Sunday, November 15, 2009
Tampa Bay area personnel appointments, promotions and announcements
By Dolly Brosan, Times Staff Writer
Published Friday, November 13, 2009
Brian Giglia has been named an audit senior in the audit department at Lewis Birch & Ricardo LLC, Clearwater. Giglia was an audit supervisor at Horn LLP, Nashville.
Julie Trimpe-Steed has been named CAM division manager at Fredrick James Accounting, Tax and Consulting, Clearwater. Trimpe-Steed will oversee the firm's new homeowners and condo association management services division. Trimpe-Steed is founder and president of CAM (Condo Association Management) Academy & Consulting.
Marlene "Marley" Rusch has been named family services director at Anderson-McQueen Family Tribute Centers, St. Petersburg. Rusch was a mortgage adviser at Pinellas Mortgage Services, Dunedin.
Michele Leo Hintson has been named to the Stetson Lawyers Advisory Council. Hintson is an associate in the litigation practice group at Shumaker, Loop & Kendrick LLP, Tampa.
Eric D. Nowak has been named an associate at de la Parte & Gilbert PA, Tampa. Nowak is a recent graduate of the University of Florida Levin College of Law.
David R. Phillips has been named an associate at Macfarlane, Ferguson & McMullen, Tampa. Phillips, who recently earned his juris doctorate from Florida State University, will concentrate in the areas of medical malpractice defense and health care law.
Matthew J. Zipay has been named an associate in the wealth preservation, trusts and estates practice group at Fowler White Boggs, Tampa. Zipay was an associate at Quarles & Brady, Naples.
Gallagher & Associates Law Firm PA, St. Petersburg, announces that Alison A. Parker has joined the firm as an associate; and Jason A. Cox has been named paralegal/firm administrator. Parker was a law clerk with the Hillsborough County Environmental Protection Commission. Cox was paralegal and firm administrator at the law firm of B. Edwin Johnson PA.
Wilkes & McHugh PA, Tampa, announces that Lydia Wardell and Carl R. Wilander have been named associates. Wardell was a prosecutor in the Pinellas County State Attorney's Office for 15 years; and Wilander was an assistant state attorney at the State Attorney's Office in Tampa.
Keral Kronseder has been named executive director of the Alpha House of Tamp Inc. Kronseder was executive director of the Lee County Coalition for Drug-Free Southwest Florida.
Saturday, November 14, 2009
1 in 4 U.S. households has been a victim of identity theft in the past five years.
10 million people a year are victimized identity theft.
The cost to victims was $5 billion in out-of-pocket expenses.
Average out-of-pocket loss for victims: $500
Hours spent per victim resolving the problem as shown by identity theft statistics: 30
Hours spent resolving problem: 297 million (Source: FTC identity theft survey report)
1/3 of identity theft victims report that the thieves committed check fraud
66% of victims' personal information is used to open a new credit account in their name
28% of victims' personal information is used to purchase cell phone service
12% of victims end up having warrants issued in their name for financial crimes committed by the identity thief
Tips for Preventing Identity Theft:
*Shred Personal Financial Documents
*Use your credit card and not your Debit Card or Checks
*Leave Purse/Wallet in the Trunk When Shopping
*Carefully Review your Statements
*Only Shop on Secure Websites
*Pull Your Credit Report Once a Year
*Don’t Put Your DOB, SSN and Drivers License on Your Checks
*Don’t Give Your Credit/Debit Card Info Over the Phone
*Obscure Your Entry of PIN Number When Making Purchases
*Utilize a Credit Monitoring Service, i.e. LifeLock
*Do not Make Purchases Over Free Public Wi-Fi Connections
What Do I Do if I am a Victim of Identity Theft?
*Contact law enforcement to make a report of the identity theft.
*Contact all credit card companies and banks to report the theft.
*Contact credit reporting companies to alert them of the theft Equifax, Experian and Trans Union
Friday, November 13, 2009
Q: Should I open and respond to all mail from my lender or lender's attorney?
A: The first notices you receive will advise you of a default under your mortgage and the acceleration of your mortgage. Later mail may include important notice of pending legal action and important dates. Your failure to open the mail will not be an excuse in foreclosure court, and ignoring these notices will only make the situation worse. Before responding, contact us immediately for a free consultation. Your lender will have an attorney working for them, so should you.
Q: I have just been served with a summons and foreclosure complaint. What do I do?
A: YOU MUST RESPOND IN WRITING AND/OR SERVE AND FILE A RESPONSE WITHIN 20 DAYS OF BEING SERVED WITH THE COMPLAINT. IF YOU DO NOT ANSWER, YOU WILL BE IN DEFAUL OF THE COURT. THIS RESULTS IN A LOSS OF YOUR DEFENSES AND RIGHTS. Any delay may make the situation you are in worse, and if a borrower or homeowner fails to do anything at all, the situation may become the worst case scenario possible. Contact us immediately for a free consultation.
Florida's mortgage foreclosure process will absolutely have serious, long lasting ramifications that you may have to deal with in the future, so it absolutely in your best interest to participate now while it is occurring. Your decision to participate now may preserve, protect and safeguard valuable legal rights affecting your future income, credit worthiness and income tax consequences. Contact us immediately for a free consultation.
Q: If I do nothing, what will happen?
A: A default and default judgment will be entered, and the clerk of the court will auction your property, usually within 25 to 30 days from entry of a final judgment and you could be subject to a money judgment which is good for twenty years.
Q: Should I use a foreclosure prevention company?
A: The lender will have an attorney and you should secure an attorney to do battle for you. You don't need to pay fees for foreclosure prevention help-use that money to pay the mortgage instead or pay for an attorney. Watch out for foreclosure recovery scams! If any firm claims they can stop your foreclosure immediately if you sign a document appointing them to act on your behalf, you may well be signing over the title to your property and becoming a renter in your own home. Never sign a legal document without reading and understanding all the terms and getting professional advice from an attorney.
Q: Will the foreclosure process affect my credit score?
A: A foreclosure will have an adverse effect on your credit report. It is hard to say exactly how many points your credit score will drop due to a foreclosure. There are numerous factors that affect your credit score. It does appear though, that loss mitigation options that do not result in the completion of the foreclosure are better for your credit score depending on which credit bureau you are looking at.
The impact on credit scores diminishes over time though. Loss mitigation efforts and foreclosure are definitely better than a bankruptcy, as the filing of a bankruptcy is viewed by the credit reporting industry as an attack against all trade lines across the board, whereas a mortgage foreclosure is only an attack against a single trade line, your mortgage lender. Some foreclosure settlements can include credit restoration or the deletion of adverse credit information.
Q: What if I file bankruptcy?
A: In addition to defending your foreclosure, a bankruptcy will stop the foreclosure. A chapter 13 bankruptcy may allow you to make up the arrearages and reinstate your mortgage, over a period of time, usually 5 years. It means you make a regular payment and part payment each month until you get caught up. In a chapter 7, you will have to pay back the arrearages much quicker than 5 years, the foreclosure will continue. The general rule is bankruptcy negatively affects your credit score for 10 years, but sometimes the creditors on a chapter 13 will voluntarily remove it after 7 years to encourage people to file a 13 rather than a 7.
Q: Are their income tax consequences as a result of a foreclosure?
A: If the property is your primary residence, the law will not tax any capital gain you receive in connection with the lender discharging parts of your loan. If the property is a second residence, this does not apply. Also, it depends on whether or not your home or property has equity and what type of loan it is. If there is no equity, it is likely that the property or home will be sold for less than the mortgage amount owed. The Internal Revenue Service will consider debt forgiveness by the lender as income, and the borrower may also have income in the form of capital gains from the sell or transfer as well. However, there are several ways to offset this gain or income such as off setting income and capital gains with losses, being insolvent at the time of the transfer and bankruptcy. CONSULT WITH AN ATTORNEY AND ACCOUNTANT. These rules are complicated and you are advised to make a thorough examination of your personal financial situation with an experienced tax professional.
Q: After the property is auctioned by the court clerk, do I have to get out?
A: Yes. The sheriff's office will physically evict you and remove you and your personal effects from the property, usually in as little as 10-15 days.
Q: What can an experienced and knowledgeable lawyer do?
A: File a response (motion to dismiss, motion to strike, answer and affirmative defenses). File a counterclaim against the lender for predatory lending, mortgage fraud, and mortgage underwriting violations. In the answer, is a denial of the lender's complaint all I need to do? Usually not. You must state all affirmative defenses, otherwise they may be waived or may be may not be sufficient to stop the foreclosure process.
Q: What are affirmative defenses?
A: They are special defenses which must be specifically alleged, such as truth-in-lending violations, usury, fraud and other specific types of improper conduct by the lender, which may defeat or partially defeat the lender's claims.
Q: Why are affirmative defenses different than just an answer with denials?
A: The lender has a sufficiently more difficult burden to obtain a "fast" or summary judgment of foreclosure when affirmative defenses are filed.
Q: Can an attorney just delay the case without justification?
A: Having an attorney will generally delay the process as opposed to not having an attorney. While an attorney cannot cause delay solely for that purpose and attorney can use all of the discovery methods provided under law to fully investigate the facts of your case and make the lender prove their case fully. The full exercise of your legal rights will result in delay as a by-product of a proper defense, often caused by the plaintiff not properly and promptly responding to your attorney's rightful demands.
Q: If I get a lawyer, does he automatically get more time to file an answer?
A: No, the 20 days continues to run. If a default is taken against you, it will pose, at a minimum, difficulties in getting the default set aside and allowing your attorney to use the defensive arsenal otherwise available on your behalf.
Q: If my property is sold by the court clerk, what price will it bring?
A: Usually much lower than fair market value. Most of the time it is sold for the total amount of the mortgage, or less. And the foreclosure sale does not discharge your obligation under the note. So you could loose your house and have a money judgment against you for up to twenty years.
Q: Will I get any of the sales proceeds?
A: Only if there is a surplus (if the property is sold for more that what is owed in total to the plaintiff and all other mortgages and liens on the property). However, this is very unlikely.
Q: If the property is sold for less than the total owed, can the lender collect the difference?
A: Yes, this is where the Lender obtains a deficiency judgment.
Q: I have lots of other questions, can I call the judge or the court for advice?
A: No. Judges, judicial assistants (judge's assistant), court clerks and sheriff's department employees cannot practice law or give you legal advice. They can only point out the existence of certain procedures, but cannot tell you how to follow them or how effective they will be.
Q: Do I have the right to reinstate? (bring the mortgage current)
A: Not always, unless your mortgage or mortgage note specifically gives you this right. However, many mortgage lenders often voluntarily consent to reinstatement.
Q: What exactly does a Quit Claim Deed mean?
A: A Quit Claim Deed only transfers the impaired title to property you own. It does not warrant fee simple ownership, rather it only gives what you have.
Defense of Foreclosure Litigation
Predatory Lending Litigation
Deeds In Lieu of Foreclosure
Due to shortages in drywall products between 2004 and 2006, many builders in Florida used drywall imported from China in the construction of homes, apartments, and buildings. This drywall, in many cases, is now believed to be defective, resulting in the stench of rotting eggs that homeowners have been unable to eliminate. Some have even been forced to leave their homes because the odor was so severe. Residents have also reported problems with their air conditioning systems.
Both Lennar Homes and Taylor Morrison have had the most reports of defective Chinese drywall, though other companies also used Chinese drywall. The problem has been acknowledged by Lennar Homes and they are willing to replace defective drywall, as well as air conditioning, pipes and wiring damaged by the fumes.
For more information on defective Chinese drywall, please feel free to contact G&A.
In addition to a will, it is equally important to execute a power of attorney, healthcare surrogate, and living will. A power of attorney is a legal document in which one person delegates power to another person over their finances and assets. The person making a designation is known as the principal, and the person to whom power is being conferred is called an attorney in fact. Power of attorneys can be general or limited, and they can also be made to withstand the principal's incapacity. This is known as a durable power of attorney.
A healthcare surrogate is a document that appoints someone to make your healthcare decisions should you be incapacitated. Unlike a power of attorney, the healthcare surrogate is only in force if the person that made the designation becomes incapacitated. The healthcare surrogate gives your surrogate the ability to make medical decisions and review your medical records on your behalf. Thus, this document is of extreme importance because you never know when something may happen to you.
A document that goes hand in hand with the healthcare surrogate is a living will. In a living will, you state that should you become incapacitated AND have either a terminal condition, an end stage condition, and/or a persistent vegetative state, AND two doctors determine you have no reasonable medical probability of recovery, whether or not you want your life to be artificially prolonged. There are some people who do want to be kept in life support in hopes of advances in medical technology, and you can make a living will expressing your desire to have your life artificially prolonged. Conversely, there are those who would prefer to be taken off life support should they be incapacitated. You can be as specific as you want in your living will.
With this year almost half over already, maybe it is time to evaluate your estate planning situation. Take the time to execute a will and accompanying auxiliary documents to spare your loved ones the possible guilt of making difficult decisions on your behalf without knowing what you would have wanted?
Workman's Compensation Attorney Gee Glitch (HB 903):
A victory for Florida employers, this bill will restores a cap on attorneys' fees in worker's compensation cases and ensure that injured workers get more in benefits then their lawyers receive in attorney's fees.
Buren of Proof in Property Tax Challenges (HB 521):
This bill lowers the burden of proof in property tax challenges from "clear and convincing evidence" to a "preponderance of the evidence" and helps to level the playing field between the taxpayer and the property appraiser. This is bill is the result of the Florida Chamber and the Florida Association of Realtors' continuing fight to restore fairness in Florida's broken property tax system.
Court Funding (SB 2108):
In an effort to create greater efficiency for the court system, this bill consolidates the activities of judicial clerks by removing some of the duties from the clerks and transferring them to the judiciary. In addition, this bill imposes a requirement on the clerks to undergo the same budgetary process that other state government entities are required to undergo.
Crash Tax Ban (SB 2282):
Recently, local governments have proposed laws that would allow for the billing of motorists involved in accidents for any emergency response services required. However, this bill bans any such legislation and prevents this additional burden on Florida consumers and business.
While several bills of great significance were passed, many remained unheard in either chamber. For instance, a bill that would strengthen the standard for expert testimony in Florida courts did not make it to the floor of either chamber. Since Florida is among a minority of states still following an out-dated standard for regulating expert testimony, this bill would have helped in preventing the unfair decisions resulting from Florida's current expert testimony standards.
Most credit card companies (as well as cell phone providers and employers) include language in their agreements that disputes must be referred to arbitration and the consumer has waived the right to file a lawsuit. Most credit card disputes are handled each year through arbitration. Ironically, Congress is presently considering whether to ban mandatory arbitration clauses in contracts, and credit card companies.
The National Arbitration Forum is one of the largest providers of arbitration services for the credit card industry. The lawsuit alleged that the company "actively encouraged" issuers to place mandatory arbitration clauses in their contracts and sometimes "assist(ed)" issuers in arbitration claims against consumers.
The National Arbitration Forum, claims that its contractors are "independent," ensuring the "impartiality" of arbitration. NAF further responded stating that "at no point does any minority shareholder or fund have any role or influence" over the arbitration process. The lawsuit could serve as a catalyst for national reform of the arbitration process.
Summer Law Clerks Jeri Ostuw and Tracy Evans will return to Stetson to continue their course work.
At a celebration lunch, both Evans and Ostuw received Certificates of Achievement for their excellent work over the summer. Both Jeri and Tracy will be missed.
*Charles Gallagher presented a talk on Bad Faith Insurance Litigation for the National Business Institute in Tampa.
*Alison Parker and Charles Gallagher served as Judges for Stetson College of Law's Opening Statements Competition.
*G&A fielded a team for the Susan Komen Race for the Cure.
*Charles Gallagher was nominated to serve on the Board of Directors for the Gulfport Chamber of Commerce.
You need not look far to find someone whose life was affected by breast cancer. A group of bay area lawyers recently participated in the Breast Cancer 3 Day walk. The “3 Day” includes stops across the country, including St. Petersburg. Walkers trek 60 miles over three days in order to raise awareness and support for breast cancer. The 2009 Tampa Bay 3-Day raised almost $4,000,000. Over 1700 walkers were supported by an all volunteer crew of 300, who set up camp, transported supplies, provided meals, provided medical care and supported the walkers.
Several St. Pete Bar members and local attorneys participated in the 3 Day: Tracy Leduc, Amy Drushal, Kathie Joe Malti, Erin Whittemore, Erin Allen, Charles Gallagher and the St. Petersburg Bar’s own Kathy Parker. Tracy became involved in the 3-Day after her mother (and later she) was diagnosed with breast cancer. Amy Drushal walked the 3 Day for the past three years, but this year was special as she walked in support of her good friend, Christy, who was recently diagnosed with breast cancer. Charles Gallagher “crewed” the 3-Day for the past four years on the sports medicine team. Erin Whittemore walked in support of her grandmother and friend who were both diagnosed with breast cancer. After walking the 3-Day, Kathy Parker decided to give back by crewing the 2008 and 2009 events.
The days are grueling and the walk is challenging, but no one complains during this amazing shared experience. Why do we 3-Day? Everyone has a different reason, but we are all drawn to this powerful experience because we know that one person can make a difference.
We understand that even minor legal issues can result in anxiety for our clients. Therefore, we strive to help our clients understand the intricacies of the legal system while using our experience to provide the legal services every client deserves. We view our clients as essential members of the team, and we welcome frequent client interaction. Also, we are happy to answer questions and concerns, at any time, throughout the legal process.
Additionally, we recognize the importance of our clients remaining informed of changes in the law. Therefore, we offer a monthly newsletter with relevant and informative topics that may effect you, our client. We also present free seminars to help the community remain informed on important matters such as living wills, credit fraud, and hurricane insurance claims. Please visit Firm News & Links for more information.