Shuster & Saben reaches confidential settlement in Foreclosure Trespass case.

Nearly four years ago a Melbourne, Florida resident in foreclosure left town for the weekend.  Although her home was in foreclosure she continued to live there and run her home based business from the property.  When she arrived home after the weekend away, the lock on her front door had been changed.  A field service agent sent by her loan servicer had broke in the back door, changed the lock on her front door, and left his business card.  When she found her front door locked she went around to the back of the house where she found her broken in back door left wide open.  When she went inside she found that many of her possessions were gone.

The homeowner called the police and a police report was filed.  The police did not arrest anyone and told her that because she was in foreclosure this was a “civil” matter.  Our client did not know if the field service agent took her belongings or merely enabled some other person to take her stuff by leaving the back door unlocked.

The home owner took pictures of her home after the break-in to show that the property was in good repair and could not have been mistaken for an abandoned property.  She asked several different lawyers in the Space Coast to take her case.  Every attorney she spoke to told her the same thing:  that her damages (about $6,000.00 of lost property) were to small and she had no proof that the field service agent left the back door open or took her property.   One lawyer told her “Perhaps the field service agent broke into the property, changed the locks, and locked all the doors and then a thief broke in and left the back door open.”

When no lawyer would take the case the homeowner tried to obtain a settlement from the loan servicer who said they would look into her report.  Unfortuantly, the loan servicer did not offer her one thin dime.

Just before the deadline to file a law suit expired the home owner stumbled upon this blog.   She met with foreclosure litigator Richard Shuster, at Shuster & Saben’s Melbourne office.  Attorney Shuster advised her, this case will be hard there is almost no evidence but we are not a firm to shy away form hard cases.   This is not a case that will make you rich but if we are lucky we will recover damages sufficient to replace your stuff. Since the loan servicer did not obtain a final judgment of foreclosure or writ of possession and the property was not abandoned the servicer had no right to change the homeowner's locks.  Shuster & Saben filed suit against both the loan servicer and the field service agent.  Both the loan servicer and the field service agent hired top law firm’s to defend the case.  Approximately four months after suit was filed the firm reached a confidential settlement for an amount sufficient to cover most of what our client lost. 

About Shuster & Saben:  Shuster & Saben seeks justice for homeowners.  When banks and loan servicers trespass, break & enter or violate consumer protection statutes will sue the bank and handle such matters on a contingency fee basis.  For homeowners facing foreclosure who want more than just delay, we seek to save our clients’ homes, assets, time, and sanity.  If you only have one home and only one foreclosure case we encourage you to diligently review the results obtained by every law firm you are considering and interview more than one firm.  This blog has over 60 entries with a significant sample of our firms victories and settlements.  A well informed homeowner is our  best client.  

Can We Put Dave Samson in the New Marlins Fish Tank?

 
This story about the Marlins not willing to cough up a few bits so displaced Little Havana residents can have a place to park on game day just made my blood boil:

Just last week, Miami city commissioners voted to convert four city-owned lots into parking spaces for Little Havana residents whose on-street parking was eliminated to accommodate traffic around the new Marlins Park.

The only thing missing was about $20,000 to clear the lots, install lighting and throw down some gravel, and another $20,000 or so for annual maintenance and security costs.

Speaking confidently, City Commissioner Frank Carollo stipulated that the funding would not come from city coffers. Both he and Art Noriega, executive director of the Miami Parking Authority, refused to say where they expected to get the money.

On Thursday, a dejected Carollo said he had personally appealed to the Marlins for the money, and was surprised to get a flat-out no from the team’s president, David Samson.

“Obviously I’m disappointed,” said Carollo. “We expected the Marlins were going to help.”

You expected that?  Why?

Like being in an abusive relationship, Miami city commissioners keep thinking the next time will be different -- and are shocked when things unfold exactly the same way, again and again.

Here's an idea -- let's put Dave Samson in the new fish tank behind home plate and see if he can feel the vibrations of drilling a ball repeatedly at the glass with a pitching machine -- I understand slimy scaly bottom-dwellers love that!

BTW, the concerns of animal rights activists are overblown here -- I can't think of a quieter, less populated area for these fish to be than in Marlins stadium on game day.

Read more here: http://www.miamiherald.com/2012/03/29/2722543/marlins-park-neighbors-city-hit.html#storylink=cpy

Be Careful When Firing the Pregnant Human Resources Manager.

 
They usually know where the bodies are buried (and who buried them).

In this very comprehensive opinion from Judge Altonaga, the Judge denies defendant Crown ("rocking lounge") Liquors' motion for summary judgment on a FMLA claim brought by the human resources manager:

It appears to the Court that the parties can hardly dispute whether Williams’s discharge was motivated by her pregnancy-related conditions. Crown itself states the following:

. . . WILLIAMS’ claim of discriminatory treatment regarding working at home misses the larger point that, in the June 18 understanding, CROWN allowed her to work at home for the duration of her pregnancy. This understanding was defeated, not by CROWN’S insistence that she work in the office, but by WILLIAMS’ deteriorating medical condition.
(SMF ¶ 34) (emphasis added).

No one disputes that this deteriorating medical condition was due to Williams’s pregnancy. This purported change in the understanding, from Crown’s point of view, is what led to Williams’s termination. (See id. ¶ 35; Aug. 14 Letter). In fact, Judge Meale’s findings, which Crown endorses wholesale, could not be clearer in stating that the termination “was due to complications associated with her pregnancy.” (Recommended Order 4–5).

At the very least, there is an issue of fact as to whether Crown’s leave policies were applied unequally to Williams.

Nice win by Boca's Ellen Marcie Leibovitch! 

Come on people, is it the summer slow down already? -- send us some tips.

Nanny Not Invited to Jeremy Alters' Obama Fundraiser!

 Yes yes yes we can?:

When trial lawyer Jeremy Alters hosts an April 10 fundraiser for President Barack Obama at his Golden Beach home, it'll be like walking on to the set of a South Florida telenovela.

There's a spurned nanny. A hint of poison and betrayal. A multi-million case against a bank. Allegations of financial impropriety. Cut-throat lawyers. A bar complaint. An ongoing lawsuit. A lie-dector test. The forced sale of tony Colorado homes, and a $2.2 million loan made with a handshake.

This has been Alters' life for the past few years.

"Ever since I took on the banks, this all happened," said Alters, 41, who initiated a suit against Bank of America that resulted in an initial $410 million settlement.

But no spurned nanny and mere suspicious food poisoning can bring down Alters:

"It's going to take more than a nanny to bring me down," he said.

Hey, isn't that a Pierce Brosnan line from Mrs. Doubtfire?

ad more here: http://miamiherald.typepad.com/nakedpolitics/2012/03/the-nanny-diaries-obama-fundraisers-squabble-with-au-pair-sounds-like-miami-soap-opera.html#storylink=cpy

Read more here: http://miamiherald.typepad.com/nakedpolitics/2012/03/the-nanny-diaries-obama-fundraisers-squabble-with-au-pair-sounds-like-miami-soap-opera.html#storylink=cpy

Fourth District Reverses Timesharing Schedule Failing to Address Parental Responsibility

In today’s opinion in Munroe v. Olibrice, the Fourth District Court of Appeal reversed an order establishing a time-sharing schedule for the parties’ minor children on the grounds that the time-sharing schedule failed to address parental responsibility and did not create a parenting plan.  By not establishing a parenting plan establishing how the parents make decisions in addition to adopting a time-sharing schedule, error was committed.

Second District Permits Corporate Discovery Notwithstanding Legal Ownership

The Second District Court posted its ruling in Bushong v. Peel today, and granted a petition for writ of certiorari permitting the Husband to obtain documents related to corporations that he contends form part of the marital estate.  The lower tribunal granted three motions for protective orders preventing the release of the documents as a result of a finding that the Husband had not established any ownership interest.  The Second District, however, held that the Husband showed sufficient interest in the companies to warrant quashing the protective orders, and in a footnote stated that “It may be that Mr. Bushong had failed to establish that he had any ownership interest in the Companies. But that interest would be a "legal" ownership interest only. Mr. Bushong has shown that he had a substantial equitable interest in them as marital assets because he started the Companies, operated them in conjunction with Ms. Peel until his summary dismissal, and was a major factor in their success. We do not detail here the many individual documents that are subject to the protective orders because Mr. Bushong has shown entitlement to all of them. His interest is substantial enough and his discovery requests were not too overbroad or burdensome.”  Bushong v. Peel, 2D11-4795 (Fla. 2d DCA 2012).

Second District Reverses Equitable Distribution

In Kumar v. Kumar, the Second District released an opinion today which reversed the equitable distribution schedule for several errors.  First, the lower tribunal had wrongly considered the Former Wife’s jewelry to be non-marital.  Second, the lower court erroneously valued a certificate of deposit awarded to the Husband as of the date of filing, a value $40,000.00 lower than the value as of the date of trial.  And, third, the court failed to distribute the contents of the former marital home.  While the Former Wife agreed to the court’s choice, instead, to order mediation of those items, the Former Husband did not, and, as the Second District quoted, the “parties are entitled to a final distribution…at time of dissolution.”  Kumar v. Kumar,  2D10-5546 (Fla. 2d DCA 2012), citing  Collinsworth v. Collinsworth, 624 So.2d 287, 290 (Fla. 1st DCA 1993). 

3d DCA Watch -- Everybody Knows This is Nowhere.

 So I guess nothing happened today.

(Sorry kids!)

Surprise -- Somebody Filed for Rule 11 Sanctions in the Toe-Tapping Yacht Case!

You know how they used to do retrospectives at the end of the TV season, where Tom Bosley or John Ritter would introduce their favorite clips and you could reminisce about how funny it was when Jack Soo used to crack up Barney Miller?

That's sort of what this Rule 11 motion filed by the defendants in the toe-tapping yacht case feels like, a "greatest hits" collection of the high (or low) points of the litigation -- from the defendants' perspective.

Note this was filed after final judgment and after an appeal was taken.

The plaintiffs' response is here, and the reply is here.

More collateral litigation -- will this case ever end?

Hey Man, Is This Real?

I sure hope so:

The Honorable Jonathan Goodman, United States Magistrate Judge, will address the must-hear-this topic: "Rock & Roll Music in Judicial Opinions"

Coming on the heels of Judge Gold's excellent mindfulness and wellness presentation, I must ask the obvious question:  just what the hail is going on over at the FBA?

I'm just wild about saffron....

As you know we have been closely documenting Judge Goodman's rock-and-roll (and country!) references, as well as the elaborate (some would say byzantine) 300-word citation system he employs to simply name-check a Petty song.

All kidding aside, this one is a winner -- the presentation is on April 11 and you can grok all the groovy details here.

(Quite right slick!)

So Now Banks Have to Have Signatures on Their Notes?

Oh federal court with all those rules and pesky legal requirements!

Now comes one from Judge Seitz -- banks need to have their notes signed by the borrowers!

Plaintiff has moved for summary judgment because no dispute exists that Plaintiff has a valid First Preferred Ship's Mortgage and because Alvarez is individually liable for payment under the Note. Plaintiff has failed to meet its burden of establishing that no genuine issue of material fact exists. Plaintiff seeks summary judgment based on the terms of the Note. However, Plaintiff has not established that Alvarez signed the Note or that the terms of the Note are the governing term s of the loan. While Alvarez has acknowledged that she is indebted because of the loan, she has not acknowledged that the terms of the Note were the terms of the loan. Thus, Plaintiff has failed to meet its burden.

I know I know, HCR before the Supremes.

Listen, if you're that interested, go pay someone to fight the Civil War wait in line to see the arguments like the rest of the proles.

Criminal Defenses | Statute of Limitations | Bank Fraud

Bank Fraud
Criminal Defense Attorney
Lawyer

Tampa Criminal Defense Lawyer / Attorney has been researching the Statute of Limitations as applied in Florida Courts. Here is the latest case I found. The court threw out most of the charges when a violation of the time provisions under the Florida Statute of Limitations. The defendants were charged in  a “downpayment assistance” program where it was alleged they tricked various lenders into making loans on residential properties located in Florida. The fraud was supposed to make lenders believe buyers had money for a down payment when they did not. The properties were purchased between February 2006 and October 2007.  The grand theft charges for defrauding a financial institution were based on a false statement in violation of section 655.0322(5), Florida Statutes (2005) in mortgages obtained on the properties. The prosecutor charged the defendants with "one count of aggravated white-collar crime, in violation of section 775.0844, Florida Statutes (2005), a first-degree felony (count one), and eleven counts of defrauding a financial institution."

We have posted the complete decision here at our Tampa Criminal Defense - Bank Fraud resource. 

A number of these offenses were linked to offenses outlined in the original criminal charges filed earlier in the case. These claims involved , Florida Statutes section 655.0322(6) (2005) that states:

Any person who knowingly executes, or attempts to execute, a scheme or artifice to defraud a financial institution, subsidiary, or service corporation, or any other entity authorized by law to extend credit, or to obtain any of the moneys, funds, credits, assets, securities, or other property owned by, or under the custody or control of, a financial institution, subsidiary, service corporation, or any other entity authorized by law to extend credit, by means of false or fraudulent pretenses, representations, or promises, is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

The defendants argued that some charges were "brought beyond the three-year statute of limitations applicable to second-degree felonies." The court ruled "[T]hese counts alleged new crimes and are barred by the statute of limitations."  "The white-collar charge was based on thirteen prior acts of defrauding a financial institution alleged to have been committed from February 1, 2006 through October 31, 2007.  This makes February 1, 2010, the final cut-off date as to all predicate offenses included in the charge.  The third amended information was filed on January 15, 2010, rendering one of the charges timely. The rest of the charges were thrown out.


Case Excerpt:


"The fact that the individual (predicate) offenses would have been untimely if brought as independent charges does not affect the timeliness of the prosecution for aggravated white-collar crime.  This is a continuing offense, based on the commission of numerous predicate acts. Because of the large number of predicate acts required to establish the offense, the Legislature obviously gave the State additional time to include prosecution for offenses which might have otherwise been untimely.  The same result has been reached in the RICO context.  See Cheffer v. Judge, Div. ‘S,’ 15th Judicial Cir.,  614 So. 2d 632, 633 (Fla. 4th DCA 1993) (holding RICO prosecution based on predicate acts of trafficking illegal drugs not barred by statute of limitations, although predicate acts were individually barred by four-year statute of limitations, because RICO prosecution was subject to five-year limitation).  Because count one was filed inside the end date of the statute of limitations, the count was timely, and the trial court erred in quashing this count of the information."


Fraud Charges? Call Casey at 813-222-2220

Resisting A Police Officer With Violence in Florida

Resisting A Police Officer With Violence in Florida is a Felony Crime.   If you are arrested for the crime of Resisting an Officer With Violence in South Florida you should contact Criminal Lawyer Roger P. Foley.

Mr. Foley has offices in Broward and Palm Beach Counties.

Here are some things that you should know about the crime of Resisting an Officer With Violence:

1. Its not hopeless - you can fight your criminal case. (See Florida Statute 843.01 for full details
2. Resisting An Officer with Violence is a third degree felony
3. A third degree felony is punishable by a maximum of five (5) years in a Florida Prison
4. When Police use excessive force they often claim that the defendant resisted with violence and the defendant’s resistance is what caused the police to use force against him/her.   It justifies your bruises.   If you did not resist, then they would not have taken you to the ground,
5. To find you guilty of Resisting an Officer With Violence the state must prove 4 elements beyond and to the exclusion of a reasonable doubt:
   1. (Defendant) knowingly and willfully [resisted] [obstructed] [opposed] (victim) by [offering to do] [doing violence] to [him] [her].   Offering to do violence means threatening to do violence.  
   2. At the time, (victim) was engaged in the [execution of legal process] [lawful execution of a legal duty].  
   3. At the time, (victim) was [an officer][a person legally authorized to execute process].
   4. At the time, (defendant) knew (victim) was [an officer] [a person legally authorized to execute process].
6. The crime of Resisting an Officer With Violence is an offense that can be sealed or expunged from your record if any of the following are true:
   1. The state attorney’s office files a No Information - they decline to file official charges.
   2. The case is dismissed on a technicality.
   3. The case is Nolle Prossed by the State Attorney’s Office.
   4. The case goes to trial and you are acquitted of the charge.
   5. You receive a Withhold of Adjudication and have no other convictions on your criminal record.
7. Get the notion out of your head that you can’t win.   If you did not commit the crime, hire a Criminal Defense Trial Lawyer that will be your voice in the courtroom.   Just because a police officer says it is so does not mean that your case is impossible.
8. Hire the best criminal defense lawyer possible to defend you. Remember you can choose the players on your team.   Talk to several lawyers and then pick the Criminal Lawyer that makes you feel most comfortable.

If you are charged with Resisting a Police Officer With Violence, contact Florida Criminal Defense Lawyer, Roger P. Foley.

Mr. Foley is an aggressive criminal defense attorney who has a no-nonsense approach to defending his clients.   When accepting a criminal case he will do everything legally possible to win your case.   If your looking for a Criminal Defense Lawyer that brings his best effort on every case then contact Florida Criminal Attorney, Roger P. Foley.

Mr. Foley has been recognized as one of “Florida’s Legal Elite.”   Roger P. Foley has also been recognized as a “Florida Super Lawyer.”

The Law Offices of Roger P. Foley, P.A.

SFL Friday: The Check is in the Mail!

Literally:

When asked about the outstanding bills, Ruiz said: “It’s not past due. We mailed it out already. It’s always paid on time.” 

Shorter Julie Kay -- Rhett Traband once had a prom date(!):

"We were on the short list, and we kind of got disinvited," said Rhett Traband, who represents Caro Group, which claims a $10 million investment loss. "I feel like I had a prom date and lost it."

Sheesh Rhett, I sure know what that's like (see above).

(What can I say -- I still love Amy Irving -- I just wished she would have married the Pickle Man!).

Yes, Once There Really Was a Case About Venetian Salami!

Oh great Khaleesi, upon the seventh dark moon of the House Targaryen our forefathers set forth from the Dothraki desert and ventured into the wilds of the Red Lands (i.e., Tallahassee), where they were captured by the powerful yet benevolent Lord of the Eighth Kingdoms, Ser Venetian Salami:

And thusly Ser Salami did reveal upon the noble Dothraki litigants this great and enduring truth:

The first step of the Venetian Salami analysis may involve a burden shift.

Together Khaleesi, we must all say it together:

ALL HAIL VENETIAN SALAMI!! 

ALL HAIL VENETIAN SALAMI!!

3d DCA Watch -- The Jungle Line Edition.

Is it just me or is it getting hot out there?


(Time to turn up the AC in the bunker.)

Hmm, how much does elemental fairness play into the 3d DCA's decisionmaking process?

Consider this opinion, in which Judges Suarez and Shepherd disagree about whether Ocean Reef Club has worker's comp immunity when it failed to report the workplace injury to its worker's comp carrier:

Wilczewski and Leon worked at a beauty salon owned by Ocean Reef. Wilczewski was employed as a hairstylist and Leon as a nail technician. Wilczewski and Leon allege to have been exposed to chemical fumes inherent in the operation of the beauty salon which caused them to experience asthma-like symptoms, headaches and respiratory problems over a period of time for which they had to receive medical treatment and hospitalization. Wilczewski and Leon claim they notified their supervisor of their health issues, but, while they were employed, neither they nor Ocean Reef notified the workers’ compensation insurance carrier. It was not until after Wilczewski and Leon brought a civil action for damages against Ocean Reef, that Ocean Reef notified the workers’ compensation insurance carrier of the claims. The carrier denied the claims contending that the illnesses did not occur in the course and scope of employment. The claims also were denied because the statute of limitations had run.

 Here is what Judge Suarez held:

It would be inequitable for the employer, through its insurance carrier, to take the position that there were no work-related injuries and hence no workers’ compensation coverage, and then later, when the employee brings a tort action against the employer, to assert as a defense at law that there was workers’ compensation coverage entitling the employer to immunity from suit. As the employer may not separate itself from its compensation carrier’s determination that the employee’s injuries did not occur during the course and scope of employment, the employer is estopped from taking the totally inconsistent position that the injuries did occur during the course and scope of employment and claim worker’s compensation immunity when sued in tort.

But Judge Shepherd says it is all about the injured workers being "liberated" to sue:

The issue in this case is whether the alleged failure of an employer to report a workplace injury to his workers’ compensation carrier, pursuant to section 440.185(2) of the Florida Statutes (2006), liberates the employee to sue the employer for workplace negligence. The answer to the question is “no.”

In short Judge Shepherd believes it is the injured employee's responsibility to file the worker's comp claim, not the employer, and the employer is not bound by a determination of its insurance carrier:

As to their first argument, I already have demonstrated that Wilczewski and Leon were personally, legally responsible to initiate the benefits delivery process on their own behalf if they wish to receive them.  As to the actual denial, it appears this action was commenced sua sponte by Ocean Reef’s workers’ compensation insurance carrier. There is no evidence Ocean Reef encouraged, requested, or participated in this act by the carrier.

Here is his conclusion:

Wilczewski and Leon both admit in the case before us that they knew of the compensable character of their respective claims before they resigned their positions at Ocean Reef in 2006, but made no effort to protect their rights, or, for that matter, to inquire of their employer why the benefits they fully believed were theirs had not flowed to them. Unlike Timmeny, Wilczewski and Leon’s first claim for compensation was in its counsel-filed complaint years after leaving the employment of Ocean Reef. Judicial estoppel does not and should not apply to cases of this type.

Question -- what does "counsel-filed" mean?

Broin v. Philip Morris:

Judge Bagley's disqualification of "counsel-filers" Steven Hunter and Phil Gerson in dispute over flight attendant research fund reversed.

You Shold Proof This Video.

Our friend Jason Diamond has a new video (h/t Random Pixels)!

Aside from the strong production values and innovative editing, check out the disclaimer at the end.

Also, no Rhonda??

Isn't There a Proverb About Excessive Footnotes?

 

Don't get me wrong, Magistrate Judge Goodman's orders are always a treat and I particularly enjoy the various and far-ranging references sprinkled therein.

In this one he goes to elaborate lengths in a footnote to explain the old precautionary principle "it's better to be safe than sorry":

To invoke a well-known proverb, Jorda may have been best served by following the rule that it is “better to be safe than sorry.” This popular idiom means “it’s wiser to be cautious and careful than to be hasty or rash and so do something you may later regret.” The saying is well-known enough to be used in popular music. For example, singer/songwriter Alicia Keys used the proverb in “Un-thinkable (I’m Ready),” a remix she performed with hip-hop artist Drake. http://oxforddictionaries.com/definition/better (last visited March 19, 2012); http://www.lyricsondemand.com/a/aliciakeyslyrics/unthinkableimreadyremix1lyrics.html (last visited March 19, 2012).

Ok, the Alicia Keys cite is a bit of a stretch but it does show creativity.

More importantly, if you don't already know the meaning of this idiom you probably have no business practicing law.

Finally, speaking of footnotes, I'm pretty sure the footnotes in this order exceed the text -- Judge, as a famous and sultry singer once crooned, "put it in a love song."

Ho Hum. So a Law Firm Fired 14 Workers for Wearing Orange Shirts.

Who is Elizabeth R. Wellborn and why did her Deerfield Beach law firm fire 14 workers for wearing orange shirts?

Four workers tell the story this way: For the past few months, some employees have worn orange shirts on pay-day Fridays so they'd look like a group when they went out for happy hour.

This Friday, 14 workers wearing orange shirts were called into a conference room, where an executive said he understood there was a protest involving orange, the employees were wearing orange, and they all were fired.

The executive said anyone wearing orange for an innocent reason should speak up. One employee immediately denied involvement with a protest and explained the happy-hour color.

The executives conferred outside the room, returned and upheld the decision: all fired, said Lou Erik Ambert, 31, of Coconut Creek, a litigation para-legal who said he was terminated.

"There is no office policy against wearing orange shirts. We had no warning. We got no severance, no package, no nothing," said Ambert. "I feel so violated."

From her website she appears to be doing a lot of foreclosure work for banks:

We are proud to represent institutional and private lenders in the reclamation of titled assets. We maintain attorneys who are well versed in replevin, attachment and foreclosure. In fact, the foreclosure department represents the lender in the reacquisition of real estate assets, resale of those assets in it's "REO" department and pursues deficiency judgments in effort to make our clients whole.

So now maybe she will have more "reclamation of titled assets" work:

"I'm a single mom with four kids, and I'm out of a job just because I wore orange today," Meloney McLeod told the paper.

And your point is?  This is an at-will state -- you want protection, get a dog (I'm trying to channel my inner fiscal conservative).

Who are the Gambling Lawyers?

This is a great article from the Herald on all the lawyers and law firms profiting from the gaming industry.

Genting has tapped Bilzin's Al Dotson and Vicki Garcia-Toledo to handle land use and zoning issues, Alan Koslow is mentioned of course, but who knew this guy is a playa too:

In one of the fastest-growing areas of gaming, 1,000 Internet cafes are in operation in strip malls throughout the state, operating slot-machine-like games under a loophole in the state’s sweepstakes law. A variety of Florida’s lawyers represent those businesses, including Alan Kluger, a partner in Miami’s Kluger Kaplan, Silverman, Katzen & Levine.

“The gaming laws are going through a complete top-to-bottom examination in order to provide comprehensive legislation,” Kluger said. “The legislators will have to be even-handed and not fall prey to economic pressure from groups pressing only their self-interest.” 

Internet cafes running faux slot machine games in strip malls --  America, I have a dream!

(Ideally you can have one right next to an advance payday loan store, add a liquor store and a gun shop, and we're talking the inexorable march of progress.)

Read more here: http://www.miamiherald.com/2012/03/18/2696326_p3/florida-lawyers-hit-jackpot-in.html#storylink=cpy

Diversion Program Issues

“If you tell the truth, you don’t have to remember anything.” – Mark Twain

I have often wondered why some people take the time to find the right criminal attorney to represent them, sign paperwork, pay them, etc., and then feel the need to be dishonest. If I am the one who is going to represent you and defend you diligently regardless of your crime, it would be best if you were upfront with me.  No?

Let me share a great example of what happens when clients lie to their attorney.  Perhaps in reading the outcome some people will think twice if they are ever asked the following question:

  “Have you ever been arrested for a crime in Florida or anywhere else in the world?”

I have clients come into the office all the time and one of the first questions that they are asked on their intake sheet is the question, "Have you ever been arrested? Have you ever been convicted?"   “No, Mr. Foley, I swear” and “Nope, my record is clean” are often their response.

The reason this question is asked to my client is because if they have not been arrested and they are truly a first-time offender, they may be eligible for some type of diversion program.

“What is a diversion program?”  First off, let me state again, it is for first-time offenders only.  So, if you have racked up a few misdemeanors or felonies convictions, you are ineligible.  Diversion programs are great for those who have been arrested for their first offense, and if the offender follows all of the stipulations set forth for the duration of the program (usually 6-12 months), then the case is dismissed and life continues on.

What is involved in applying to a diversion program?  That is where I come in.  Not every crime is eligible and some crimes are admitted on a case-by-case basis.   Entering any diversion program requires paperwork, background checks, and contacting the department of corrections, supervisor signatures, and several court dates.  It takes time and patience, and as I mentioned earlier, there are a lot of forms that come along with the process.  It is worth it for someone who is a first-time offender, as it is a guaranteed victory for someone who follows the rules and has no previous arrests or convictions.  If the offender does everything requested of them then the case is dismissed.  No attorney, no matter how great they are in the courtroom can guarantee you a victory but once in a diversion program, it is guaranteed that your case will be dismissed if you adhere to the rules.

Here is where the aggravating part comes in:  I start every conversation with my clients by telling them that what they say in my office is confidential.  I try to get to know each client and make them feel as comfortable as possible.  Why do some clients lie to me?  I wish I knew the answer to that.  What is frustrating about a client doing this in regards to the diversion program is that I have spent months filing paperwork, making phone calls, kissing the ass of supervising attorneys at the State Attorney’s office, and often going to several court appearances while I wait for a document that say my client’s request to enter a diversion program is granted.  I wait and wait only to receive a letter for the State Attorney’s office and Corrections that my client is ineligible because they have previous been arrested and have a criminal record.

Because this has happened repeatedly, I have had no choice but to do something about it.  Now, all of my contracts let the client know that if you lie to me and I spend time trying to get you into a diversion program and you are not admitted because of a prior arrest, then my work for you is complete, you do not get a return on your money.  If you wish, you can re-hire me as your lawyer for your case that will now be fought in a courtroom.  End of story.

There are a few particulars that I want to mention about diversion programs.  Many diversion programs are discretionary.  It is up to the prosecution to make that decision.  Sometimes juvenile records are used against you when applying to a diversion program, sometimes they are not.  For example, if you are 21 years of age and are arrested for the first time as an adult you would think that you are eligible to enter a diversion program.  That is not always correct as the state attorney can and often does look at your juvenile record and that juvenile record can prevent you from entering a diversion program.  Remember, it’s not a right it’s discretionary.

Second, if you are lying about not having any prior arrests or convictions, I will find out eventually.  One client recently told me they had no priors, only to find out they were an eight time convicted felon!  No surprise he was not eligible for a diversion program.

Remember, an attorney can withdraw from any case if they cannot effectively communicate with their client. Do you find it easy to effectively communicate with someone who is lying to you? Me neither.  Please, just be upfront and I will give you my best.

If you read this far, I want to thank you for taking some time to hear what I have to say and hopefully you learned a thing or two about the legal system.  I do not consider myself the next award winning writer, but I do like to discuss a variety of subjects on my blog and this was one that I thought was important.

Thank you.

If you have any questions regarding pre-trial diversion programs for either Felony or Misdemeanor cases contact The Law Office of Roger P. Foley, P.A.

Fifth District Reverses Rosen Fees

The Fifth District Court reversed a post-judgment fee award Friday in Colado v. Caryi, a case in which the lower court had awarded the Former Husband his fees from the Former Wife based on vexatious litigation on her part.  The Fifth District Court, after an examination of Rosen v. Rosen, 696 So.2d 697 (Fla. 1997) and its progeny, found that there was no evidence of vexatious behavior on the Former Wife’s part, and reversed the award.

Perfect For A Friday: Magistrate Judge Brown Offers "Diatribe" on "Speedbumps"!

Hey, I don't write this stuff.

But I'm sure glad to be able to share it, so let's dig into a nice Friday lovenote from Magistrate Judge Brown on that elusive "meet and confer" rule we always seem to be talking about:

First, the Court will address compliance with Local Rule 7.1(a)(3). It was not properly complied with in this situation. Indicative of how this case is being litigated is the statement by plaintiff that there is no “authority for the proposition Local Rule 7.1(a)(3) requires counsel to discuss every detail of an anticipated request to the Court with the opposing party.” (Reply p. 5).  What part of “good faith” is counsel missing? It’s not “an anticipated request to the Court” that this rule is about, it’s about a discovery disagreement between the parties that, in most cases, should be worked out/compromised between professional parties without the need for the Court to act as referee. It is not “anticipated” until after the parties are unable, using the aforementioned good faith,to compromise. The rule does not exist as some speed bump counsel must travel to run to the Court - it exists because problems should be worked out wherever and whenever possible before coming to the Court. This rule exists so the parties will discuss exactly and entirely what their problems are to try to resolve them before running to the Court . . . not to go through some charade so as to cross the “speed bump” and run to litigate some more. While this diatribe is directed to plaintiff’s counsel, given the history of this case, it is not one-sided. The Court must agree that the parties can’t agree on who is signing this order, much less anything else. Were it not for that fact, this motion would be denied without further comment.

 'Nuff said!

BTW, did the Judge say "speed bumps" or "my humps"?

Oh well it's Friday:

Enfinger Overruled!

I have always been a huge fan of Goldfinger Bowfinger Enfinger, the 1957 Florida Supreme Court venue decision that limits residency to the county of residence shared by the individual and corporate defendant.

Well, who knew, but it turns out our judicial elders are human like the rest of us, and apparently just as capable of a huge screw up as you or I:

Because Enfinger was predicated on a serious misinterpretation of the governing statutes, we resolve the conflict by receding from Enfinger. We conclude that the Florida courts should uniformly apply the plain language of the venue statutes enacted by the Legislature, not the judicially created joint residency rule.

A "serious misinterpretation of the governing statutes"?

Later on Justice Canady piles on, calling Enfinger a "serious interpretive error" for which the principle of stare decisis must be abandoned.

And it's only taken more than fifty years to correct?

(Actually, that's pretty good by Florida standards.)

This Seems Like a Good Idea.

Especially with Magistrate Judge Rosenbaum testifying live right now before the Senate Judiciary Committee:

On March 14 and 15, call your senators toll free at 1-866-338-5720*and urge them to give President Obama’s judicial nominees an up-or-down vote. Senate Republicans, in their unprecedented obstruction, are filibustering 17 of President Obama’s district court nominees to the federal bench. A few facts to highlight:

• At this point in the Bush administration, the average district court nominee waited 22 days for confirmation. The average wait time for President Obama’s district court nominees is 93 days.
• At this point in the Bush administration, the Senate had confirmed 140 district court nominees. Only 105 of President Obama’s district court nominees have been confirmed.
• On average, each of the 17 filibustered nominees has been waiting more than 210 days since nomination. The vast majority of these nominees were approved either unanimously in the Senate Judiciary Committee, or with only Sen. Mike Lee (R-Utah) opposing.

The judicial vacancy crisis is grinding the federal judiciary to a halt. Half of all Americans – over 160 million of us – live in judicial districts or circuits that have a vacancy that would be filled today if the Republican obstruction of judicial nominations would end. And eight of these 17 filibustered nominees represent districts in which there is a judicial emergency.

There is precedence for the Senate to act. On November 2, 2002, Senate Democrats confirmed 17 of President Bush’s district court nominations – plus a circuit court nomination – all by voice vote.

 Is there really any good reason to oppose this?

Feds Cannot Bypass Android Security Pattern Screen Lock!

Android Search Warrant

Feds cannot Bypass Android Security Pattern Screen Lock! After too many failed attempts phone is locked. Forensic software apparently cannot read a locked Samsung Android phone. We have just posted the FBI application for the search warrant issued to Google to tell Feds how to retrieve data here: Android Phone Search Warrant

Easy to Bypass Security Screen Lock on iPhone Wired has published a "quick method to circumvent an iPhone’s passcode-protected lock screen: tap the “Emergency Call” button, then enter three pound signs, hit the green Call button and immediately press the Lock button. That simple procedure gives a snoop full access to the Phone app on the iPhone, which contains the address book, voicemail and call history."

Thanks to Wired Story here: http://m.wired.com/threatlevel/2012/03/fbi-android-phone-lock/


Search Warrant For a Phone? Call Casey at 813-222-2220

http://centrallaw.com/AndroidSearchWarrant.pdf

Second District Reverses Denial of Modification

The Second District Court of Appeal reversed today in Morrell v. Morrell, a case in which modification of alimony was denied to the payor in part on the basis of his substantial relationship.  The Second District reversed in part on the basis that the payee is the only one whose supportive relationship is relevant for alimony modification purposes.  Because it was unclear what weight this particular issue was given by the lower court, the entire denial of modification was reversed for reconsideration without consideration of the Former Husband’s relationship.

First District Again Reverses Deviation in Administrative Support Action Without Parenting Plan

As it did recently in D.O.R. ex rel Mash v. Ingram, and last year in D.O.R. ex rel Sherman v. Daly, the First District Court of Appeal again reversed today in D.O.R. ex rel Taylor v. Aluscar, yet another case in which a deviation from the guidelines was based on an informal timesharing arrangement and not a formal parenting plan.

First District Reverses on Alimony

The First District Court of Appeal reversed today in Rucker v. Rucker, a case in which the lower court awarded 18 months of bridge-the-gap alimony after a twelve and a half year marriage.  As the evidence appeared to suggest that the lower court had miscalculated the parties’ incomes, and as there were insufficient findings to determine whether alimony was awarded pursuant to the factors, the First District reversed and remanded for recalculation of the incomes and new findings of fact.

3d DCA Watch -- Can You Smell What the Bunker is Cooking?

Who's excited The Rock is coming home to beat up on puny John Cena when Wrestlemania returns to South Florida on April 1st?

[crickets].....

No one?

Sheesh, where are all my lawyer wrestling fans?

Ok, let's talk something really exciting -- Judge Peter Adrien!

wha wha wha....

Roll tape:

FHLMC v. De Souza:

This is an appeal of a Judge Adrien order.

Need I continue?

Apartment Investment v. Flamingo/South Beach 1 Condo:

Oy veh -- nothing worse than a condominium parking dispute.

In its complaint, the Association alleged that AIMCO was improperly charging the Association’s condominium residents and their “permittees” for parking. The Association claimed this violated the Agreement and deprived them of the full enjoyment of their property, depreciated the value of the individualproperties, and otherwise injured their personal and property rights. According to the Association, when a resident or “permittee” (usually a guest) obtains a parking pass from AIMCO, AIMCO does not determine whether South Tower’s allocated spaces are available, but instead charges the resident or guest and retains the fee. The Association further alleged that after it began to dispute these charges, AIMCO retaliated by selectively enforcing the policies governing issuance of parking permits, and began aggressively exercising its right to tow unauthorized vehicles owned by South Tower residents and their permittees.

Too bad so sad -- there's an arbitration agreement!

(Anyone remember John D. MacDonald's Condominium?)

Let's see how the Court ruled:

 Because the parties intended to exempt equitable claims from arbitration, and the complaint only seeks equitable relief, all of the claims may be resolved by the trial court without requiring resolution by arbitration.

Nice call by Judge Butchko!

Now back to something really important:

Down the Garvin Hole!

If it's Tuesday, that means the Herald's most prolific writer -- our Twain, our Mencken, our Ed Anger -- must contractually bloviate opiniate on something of interest to somebody still mad at Norman Lear for cancelling Phyllis. 

"Go suck an egg!"  (why did that not catch on??)

In any event, I have decided to take Garvin's column today and convert it to a classic, Al Krieger-style cross in which Garvin will ask a perfectly-phrased leading question and I will have no choice but to answer "yes":

Micky Arison is greedy, correct?

I suppose.

He chased those street vendors away so he can sell overpriced crap in the Arena?

Sure sounds like it.

The Marlins are also greedy, correct?

Umm, well....

Dave Samson crowed about how pathetic and lazy our politicians and voters are, right?

Well, for the most part I happen to agree with him on that.

Samson also said the Marlins might move to San Antonio or Vegas but he didn't really mean it?

Welcome to business, Glenn.

It's wrong that he's telling the truth now, right?

It's wrong you believed him then.

Samson's stepfather owns the Marlins and got him his job?

Welcome to business, Glenn.

I'm the greatest columnist the Herald has, next to Cal Thomas?

You've just asked one question too many.

First DCA Finds Exception to Hearsay Rule in Sexual Violence Proceedings

Despite the general law regarding hearsay testimony from a minor, the First District Court affirmed today in Berthiame v. B.S., finding that, implicit in the statutory provision of Florida Statute §784.046 (2011) permitting a parent to proceed on behalf of a child is a finding that the parent’s allegations are sufficient, especially after hearing where witnesses may be called and cross-examined, even where the child does not appear for the hearing.

First District Court Again Reverses Deviation Without Parenting Plan

The First District Court of Appeal reversed today in D.O.R. ex rel Mash v. Ingram, in so doing citing to its recent ruling in D.O.R. ex rel Sherman v. Daly, 74 So.3d 165 (Fla. 1st DCA 2011), which held that deviation in administrative support cases can only be proper when it is pursuant to an approved parenting plan.  The previous ruling was noted here.

Buju Banton -- 57 Years and Counting.

How's this for an appellate brief opening:

"In the 57 collective years of law practice by the signatories to this brief, we have yet to receive an appellate brief that so fundamentally misrepresents the facts as the Government's brief does." 

Just wait until 58!

Shuster & Saben Defeats Nationstar Mortgage in Vero Beach Foreclosure Case and Recovers Attorney’s Fees.

 

Things did not look good for a Vero Beach resident when he drove to Melbourne to hire Shuster & Saben to defend his home.  Before Shuster & Saben was hired Nationstar had already obtained summary judgment against the homeowner.  All that was left in the case was for the Indian River Circuit Court to conduct a foreclosure sale which was scheduled to take a place about a month after the firm was hired.  When Shuster & Saben was first hired Nationstar was so confident in their position that they rejected a request made by attorney Shuster for a deed-in-lieu of foreclosure settlement.

After the firm was hired, Shuster & Saben moved to set the summary judgment aside based on promises made to the homeowner that his loan would be modified.  Before the hearing on the motion to cancel sale and vacate summary judgment took place, Nationstar’s original counsel Ben-Ezra Katz, P.A., withdrew the affidavit that had previously been filed in support of Nationstar’s motion for summary judgment.  Shortly thereafter Nationstar, Fannie Mae and numerous other lenders discharged the Ben-Ezra firmunder suspicious circumstances. 

Firm attorney Richard Shuster argued that if the affidavit used in support of summary judgment was withdrawn and was possibly fraudulent the Court should vacate the summary judgment previously entered against our client.  The Court agreed, canceled the foreclosure sale and vacated the summary judgment against our client. 

Shuster was not content just to stop the banks forward movement.  Once the summary judgment was vacated, it was time for the firm to go on the offensive.  Days later the firm sent discovery to Nationstar, the Ben Ezra Katz firm and Nationstar’s new counsel to find out what Nationstar knew about alleged misconduct by the Ben Ezra Katz firm and when and how they learned such information.  When Nationstar did not produce the documents requested or answer the firm’s interrogatories concerning the allegations of fraud, the firm obtained a Court order compelling Nationstar to provide the discovery within thirty days.  A few days before the thirty day deadline expired Nationstar dismissed their case to avoid answering the questions under oath.   Shuster & Saben then filed a  motion to make the Nationstar pay our client’s attorney’s fees.

The firm ultimately recovered $8,500.00 of attorney’s fees from Nationstar.  In the eight months since the case was dismissed Nationstar has not refilled.  Our client, on his way from Vero Beach to our Melbourne office passed many lawyers that change less for foreclosure defense than our firm.  He realized the high cost of a bad result necessitated hiring the best lawyer willing to take his case.  Now a significant portion of the fees our client paid will be reimbursed from attorney’s fees recovered from Nationstar.  

To view a redacted copy of Nationstar's dismissal of the foreclosure case click here. 

About Shuster & Saben:  Shuster & Saben’s Melbourne office is receiving more and more calls from sophisticated homeowners in Vero Beach, Orlando, and Daytona who are looking for lawyers that solve problems and win foreclosure cases rather than merely just trying to drag cases out.  Firm attorneys Richard Shuster ( Melbourne Office) and Thomas Willis ( Miami and Doral Offices) have been quoted in Time Magazine, Wall Street Journal, Daily Business Review, and appeared on National Television.   

Loan Me Fifty Dollars (So I Can Have a Brooklyn Bagel)!

This story represents a near perfect storm of what I love about South Florida.

Let us count the ways:

(1)  A lawsuit;
(2)  Over alleged "Brooklyn water" bagels;
(3)  Involving Bob Zarco; and
(4)  Larry King.

Let's start with the "Brooklyn bagel" concept:

Since launching its flagship restaurant in Delray Beach in August 2009, The Original Brooklyn Water Bagel Co. has expanded to 14 other locations in three states. With the slogan "It's all about the water," the company touts on its website how a 14-step "proprietary water treatment" system allows it to replicate the water that flows from upstate New York reservoirs to Brooklyn faucets without having to be filtered.

Seriously?

Let's assume the company's claims are true and there is some magical way to recreate New York tap water.

Why??

Get over it -- listen, you haven't lived in New York for more than 30 years, Namath no longer plays for the Jets, and buying a bagel at a strip mall in Boca will just never be the same as picking up a bagel and schmear at Zabar's like you used to when you were fourteen.

Deal with it.

Have you ever considered your mythical attraction to New York bagels and pizza reflects more of a yearning for your lost, innocent youth then it does some objective measure of which tap water ingredient indisputably makes for the best bagel?

Just go to Bagel Bar East or Deli Lane, complain like everyone else,  and be content you wake up every day happy, healthy and hungry.

Then there's this:

Former CNN talk show host Larry King signed on to be a company spokesman and do franchise development in Southern California.

Oy!

This isn't a red flag?

Finally, there is this:

"The water filtration system is not unique and does not render water equivalent to Brooklyn water," said Robert Zarco, an attorney representing Andrew Greenbaum, who bought franchise rights for the restaurant in Broward, Miami-Dade and Monroe counties. "You want Brooklyn water, go to Brooklyn. You want a Brooklyn bagel, go to Brooklyn."

Read more here: http://www.miamiherald.com/2012/03/10/2686908/lawsuit-bagel-companys-brooklynized.html#storylink=cpy

No kidding, Bob!

Read more here: http://www.miamiherald.com/2012/03/10/2686908/lawsuit-bagel-companys-brooklynized.html#storylink=cpy

Bankruptcy Nerds: This Opinion Could Mean Something to Somebody!

 
I bless my lucky stars every day I don't have to think about bankruptcy court and the odd quirks of its jurisdictional reach, the appropriate scope of and standard for district court review, and what can and can't be heard there and why.

(We have geeks skilled bankruptcy specialists for that.)

That's why when I read this important opinion from Judge Marra (involving Judge Stettin, the Rothstein bankruptcy, and TD Bank), I promptly forgot all about it and went to lunch.

Then, as my food was digesting nicely, I felt a sudden rumble in my belly and remembered I forgot to write anything at all about it.

So take that sucker off my bucket list!

A Few Good Men.

This shouldn't have been necessary, as every lawyer deserves to be paid for their good work, but perhaps that is what makes the sacrifice especially noteworthy:

An internal squabble between the lawyer representing Eric Brody and his former employer is behind the sudden decision to scrap all fees.

“By declining all fees it will make sure that Eric doesn’t have to pay $1 million to a bunch of rich lawyers that never did anything” on the case, said Lance Block, Brody’s attorney. Block said his former employer, West Palm Beach law firm of Searcy Denney Scarola Barnhart & Shipley, hired a lobbyist to try and collect part of the $10.75 million payment.

The dispute over fees is recounted in more detail here.

In other news, the Florida Supremes have approved the House redistricting plan and rejected the Senate map.

Very interesting 200+ page opinion from Justice Pariente (with cool embedded color maps!).

Remember to retain these judges!

TD Bank Takes Another Rothstein Hit.

 All the bad headlines for TD Bank involving Scott Rothstein must really interfere with their big outreach efforts in South Florida, and this order from Judge Marra in yet another investor suit can't help:

Through their Complaint, Plaintiffs allege that “Defendant intended Plaintiffs to rely upon its misrepresentations,” Complaint at ¶ 53 (emphasis added), and “Plaintiffs relied on Defendant’s misrepresentations [and omissions] and engaged in the Transactions based upon the misrepresentations and Plaintiffs would not have engaged in the Transactions had he known the truth.” Complaint at ¶ 54. The Court finds that these two statements adequately plead “justifiable reliance” as required by Florida law. The Court will not dismiss an action simply because Plaintiffs fail to use “magic words” when the pleading is otherwise sufficient. See Cabrera v. Martin, 973 F.2d 735, 745 (9th Cir. 1992) (“We therefore find no reason to reverse the district court on the grounds that the appellees failed to plead § 1983 as a basis of their complaint or because they failed to use the magic words ‘under color of state law’ . . .”) However, in an abundance of caution, the Court will grant Plaintiffs’ request to amend their Complaint to include the word “justifiable.”

Defendant also alleges that Plaintiff has failed to meet the heightened pleading requirements of Rule 9(b). After carefully reviewing the Complaint, the Court finds that Plaintiffs’ claim for negligent misrepresentation satisfies the heightened pleading requirements of Rule 9(b). Plaintiffs expressly allege that Frank Spinosa (“Spinosa”), TD Bank’s Vice President of Operations, misrepresented TD Bank’s verification of the ultimately fictitious plaintiffs that were the source of funding for the structured settlements at the heart of Rothstein’s ponzi scheme. Complaint at ¶ 35-41. Plaintiffs assert the date (September 24, 2009), method ofommunication (telephone), and specific content of the conversation between Spinosa and Plaintiffs’ representatives. Complaint at ¶ 35-41. Plaintiffs also allege specific quotations advanced by Spinosa intended on assuring Plaintiffs’ representatives of the validity of Rothstein’s ultimately illegitimate scheme. Complaint at ¶ 39-41. These allegations are sufficient to avoid dismissal at this stage of the proceedings.

 Judge Marra did dismiss two other counts but granted leave to replead.

Rhett Traband from Broad & Cassel represents the plaintiff.

Boilermakers anyone?

3d DCA Watch -- Dumb Cases Make Dumb Law.

As we prepare ourselves for a post-Ramirez 3d DCA, let's take a look at what the bunker dwellers have been doing with The Big Man still on board:

Leibell v. Miami-Dade County:

Here we have Judge Shepherd and a class action.

Now before you jump to any conclusions, let me just say this sounds to me like a really dumb case so I can understand why the trial and appellate courts ruled the way they did.

Next stop for plaintiff:  OCCUPY VENETIAN ISLANDS!

Crestview II v. TotalBank:

 Have you heard this one -- Harry Payton, Tew Cardenas, and Dexter Lehtinen walk into a bar......

Alvin Gentry v. Morgan:

This is a child support modification case, in which Judge Ramirez observes:

While there may be moral deficiencies in Gentry’s refusal to facilitate his child’s academic achievement, we cannot say these deficiencies require overriding an agreement that is legally valid.

 So true.

That's where the whole Hebrew National "higher authority" thing comes in.