Four Kluger Peretz Partners Fly To.....Akerman?

It's old news now to read of departures at Kluger & [partner to be named later], but to hear of four high-level lawyers heading to Akerman -- which has had its own shakeups recently -- is a fresh twist:

Akerman Senterfitt today announced the continued expansion of its Litigation and Bankruptcy practices, as Dee Dee Fischer, Andrew Gold, Jason Oletsky and Brett Marks have joined the firm as shareholders in the Fort Lauderdale office. Ms. Fischer, Mr. Gold and Mr. Oletsky bring extensive trial experience in complex commercial litigation for private equity firms on a national level. Mr. Marks is a seasoned attorney with deep involvement in bankruptcy, creditors' rights and workouts. All four were most recently partners at Kluger Peretz Kaplan & Berlin. And in the last few months, Akerman has added more than 30 new attorneys in Corporate, Litigation, Bankruptcy, Healthcare, Governmental Affairs and Public Policy as well as other practice areas.

First of all, congrats to this top-notch team and to Akerman for landing them.

But to our many Akerman insider readers, are things really as rosy as their PR department claims?

Boy they can do just about anything with numbers nowadays.

SFL Monday -- Michael Hanzman to Rule Ft. Lauderdale, Too.

Hi kids, well it's that day again.

We've previously discussed how recent criticism regarding the composition of the Federal JNC may impact Michael Hanzman's long road to a federal judgeship, and here we see his name in the mix again in this excellent John Pacenti column:

Even before a call for official applications, some prominent names are swirling in the Miami legal community to replace U.S. District Judge Daniel T.K. Hurley, who took senior status.

Federal Public Defender Kathleen Williams and Miami-Dade Circuit Judge Robert Scola are expected to apply. Sources say three other Miami-Dade judges — Kevin Emas, Mary Barzee Flores and Darrin Gayles — also plan to throw their hats into the ring.

Flores spent more than a decade as an assistant public defender before taking the bench in 2003. Emas was on the short list for the Florida Supreme Court twice last year.

Attorneys Michael Hanzman, a name partner with Hanzman Gilbert in Coral Gables, and Judith Korchin, a Holland & Knight partner in Miami, also are expected to be in the mix when the Federal Judicial Nominating Commission seeks applications. A notice is expected any day.

So far, the lawyers who are said to be interested in applying are exclusively from the Miami area even though Hurley sits in West Palm Beach. The Southern District has recommended to the administrative office of the 11th U.S. Circuit that the new judge be assigned to Fort Lauderdale, according to the office of Chief U.S. District Judge Federico Moreno.

Guy Lewis, former U.S. attorney and two-time candidate for federal judge, said some of those mentioned have called him about the process.

“It’s an excellent slate, but I think you will see a number of other people come forward, including sitting judges and judges from the 3rd District Court of Appeal. I think you will see a federal magistrate,” he said. “I don’t think the slate is complete. I think you will see a number of names come out of Broward County.”

Lewis said the Broward County bar is decidedly Democratic and played a key role in getting Barack Obama elected.

“I think a lot of weight will be given to Broward,” said Lewis, a name partner with Lewis Tein in Miami.

Mitchell Berger, a founder of Berger Singerman in Fort Lauderdale and a big player in Democratic fund-raising, said local bar politics will play as big a role as it does in state judgeships.

“People in the Southern District who practice in federal court are quite used to going to Palm Beach, Broward or Miami-Dade counties with respect to their cases,” he said. “I do think it’s important judges have a feel for their community in common law jurisprudence. In federal court, the community is the Southern District at large.”

The 56-member JNC will whittle the applicants to a handful to present to U.S. Sen. Bill Nelson, who make the final recommendation to President Obama. The U.S. Senate must confirm Obama’s pick for the position.

Hanzman has contributed to political campaigns for both parties. Among Hanzman’s contributions since 2000 is $15,000 to the Democratic National Committee and at least $4,000 to Nelson, according to the Federal Elections Commission. He also contributed $5,000 to Sen. Mel Martinez in 2004, according to the Federal Elections Commission.

Kathleen Williams and Judith Korchin are certainly prominent women lawyers, at least here in Miami, and both are well-known and respected among the federal judiciary. And Michael of course is eminently qualified.

But where are the powerhouse Hispanic applicants in this mix? And which Judge from the 3d DCA is Guy talking about?

(please no)

SFL Friday -- Multitasking The Weekend Away.

Kids, close your other seven browsers, stop updating your online profile, mute the conference call you are barely listening to, and stop text-messaging your kids for a moment.

It turns out that multitasking may not be a good thing:

[A]ccording to David E. Meyer, director of the Brain, Cognition and Action Laboratory at the University of Michigan, not only do mistakes go up when we multi-task, but it also takes us longer to complete a task, compared to if we did each task sequentially.

The other choice we have involves putting our full attention on one activity (and yes, reading Twitter or Facebook updates is an activity, so doing that while attending to another task is two, not one, activities). It turns out that we can accomplish more by focusing on one item, such as composing an email, with our full attention than if we continually toggle back and forth between composing the email and reading Twitter or Facebook updates. There is power in our undivided attention.

Maybe that's why Judge Moreno banned emails and so forth in district court.

Smart guy, that judge.

So it's a huge South Florida weekend and there's lots and lots to do. Tennis out on Key Biscayne, jazz all weekend at Dolphin Stadium, even the Dade County Fair just began on Thursday.

Boy I remember my first date at the fair, with a pretty girl I had a big crush on. Now it's true I was 37 at the time, but you know, those memories do live forever.

Me, I have packed my big bag of tricks because this is going to be a great weekend. Camera, check. Beat-up 8-track of Bolero, check. Assorted windsurfing items, check. Malaccan gin and cocktail onions, you bet.

Still, I am planning to do all things in moderation, and you all know how seriously I feel about charity. In fact, I urge you all to bid on this donated item and help out the New North London Synagogue, which could really use our help.

Hey, it's a mitzvah!

And remember -- one thing at a time, peoples.

See you all Monday and have a great weekend!

An Accountability Moment.

In David's trial:

Two federal prosecutors in Miami are being reassigned for their roles in the secret tape recording of a defense attorney and his investigator in a criminal case.

Court documents show that prosecutor Karen Gilbert voluntarily stepped down as chief of the Miami U.S. attorney's narcotics section. Prosecutor Sean Cronin asked to be transferred from the criminal division.

The U.S. attorney's office acknowledges serious mistakes in a decision to have witnesses tape conversations with defense lawyer David O. Markus and investigator Michael Graff. Markus wants a federal judge to order the government to pay his fees and costs because of the misconduct.

That's refreshing, huh? We've had way too few of these moments from our federal government over the last few years. We could use some more.

UM Names New Law Dean; Kluger Breaks Up With Peretz

DBR reports:

Patricia White, a visiting taxation professor at the Georgetown University Law Center and former law school dean at Arizona State University, has been chosen as the new dean at the University of Miami School of Law.

The position was offered after interviews with a search committee and UM president Donna Shalala.

Does anyone know her? Congrats!

In other news, I took the Beatles break up hard, don't even get me started on Shields and Yarnell, and now I see more going on at Kluger & Associates, or whatever it is now named:

Kluger Peretz Kaplan & Berlin is set to become a 24-attorney litigation boutique of Kluger Kaplan as name partners Howard Berlin and Steven Peretz go their separate ways after 22 years.

Alan Kluger, a founder of Kluger Peretz, confirmed Peretz is taking members Michael Chesal and Leora Herrmann and launching their own intellectual property firm. Bankruptcy partner Howard Berlin has joined Berger Singerman’s Miami office along with former Kluger Peretz bankruptcy member Deborah Talenfeld.

Name partner Abbey Kaplan is remaining with the firm.

Kluger declined to say when the firm would officially change its name.

The changes take place in the wake of the departures of six transactional attorneys the DBR reported last week. Kluger said the firm is striving for a more narrow focus on litigation and bankruptcy litigation.

That's one way to do it. You know, you can get an even more narrow focus by simply having less attorneys working at the firm.

Just saying!

Who Is Bowman Brown's Mystery Man?

Remember when Bowman Brown nearly had his own Teevee show, appearing all over the media and sharing that now-apocryphal "brush with Stanford" anecdote? I love the anecdote personally, but even I started to wonder when I turned on iCarly and dang it! -- there he was again....

But it is such a great story. To borrow from Gore Vidal for a moment, the art of a good lawyer war story is to craft something that manages to burnish your own skills and competence at some other lawyer or judge's expense.

By that measure Bowman has hit it out of the park.

Still, there was always this lingering unanswered question:

"What he wanted to do was just not workable in my view, it was not anything I wanted to be near," Brown said. "I told him that I couldn't help him, so he went across the street and found somebody who could and set up in Miami."

So -- just who is Bowman talking about??

Now comes this tantalizing clue:

As part of his effort to locate and recover Stanford assets, Ralph Janvey, a court-appointed receiver, asked a judge to force the law firm Hunton & Williams LLP to turn over all records of its work for Stanford International Bank, according to papers filed March 24 in federal court in Dallas.

The Richmond, Virginia-based law firm rejected a Feb. 24 request to ship the receiver original files and billing records for Stanford’s foreign businesses, including the Antigua-based bank and operations in Ecuador, Panama and Grenada, according to Janvey.

“The Hunton & Williams law firm has declined to relinquish possession and control of records that are part of the receivership estate,” Janvey said in the filing. “Information regarding valuable assets belonging to the bank and other offshore Stanford entities may be found in the files.”

The law firm and one of its Miami-based lawyers, Carlos Loumiet, questioned Janvey’s jurisdiction over Houston-based Stanford’s foreign records. Janvey, appointed to recover assets to repay victims, said Hunton & Williams is providing only the requested documents for Stanford’s U.S. businesses.

We previously wrote about Carlos here (he was completely acquitted, by the way).

Now Carlos appears to only be representing his firm regarding the subpoena, from what I can tell.

But does this bring us any closer to solving the mystery?

3d DCA Watch -- PCAs And Crickets Edition.

Hi kids, oh yes the sun is shining, the wind is up, and our busy judicial scriveners to the south have been toiling in their hermetically sealed concrete bunker of justice, listening to the faint noises of both highway traffic and appellate advocacy as they work they way through their overloaded docket.

In this week's edition of 3d DCA Watch, the coffee-swilling robed ones mostly throw their hands up, sigh, issue a bunch of PCAs and call it a day:

Let's see, in the "Opinions" section, the first civil case is a one-paragraph per curiam.

The second one is a per curiam, with a case cite.

The third one is a per curiam, with a short opinion that doesn't shed much light on anything.

The fourth one is a per curiam, with a case cite.

Ok, here we go:

All Seasons v. Busca:

Judge Schwartz -- bring it!

This is a suit by condo homeowners against the association for failure to care for the building and common elements. The trial court appointed a receiver for the association. This non-final order of appointment was appealed.

Let's see what the very senior one has to say:

The association appeals and we reverse with directions to vacate the order because there is simply no cognizable basis for such an appointment in such a case.

[crickets chirping.....]

That's it?

No explanation for why the trial court appointed the receiver, or why the Court reversed? Just "no cognizable basis" and a few case cites and we're done. Oh well....

Gielchinsky v. Vibo:

Hey, an actual opinion! Wait, I take that back.

Apparently the law is that if you consent to a special magistrate for discovery disputes and the special magistrate gets too expensive, you can withdraw your consent and the matter goes back to the trial judge.

[crickets.....]

We needed an opinion for that?

Oh hail, I'm joining the judges and heading out to do some early windsurfing -- see you all soon!

What's For Dessert?

So let's get the important stuff out of the way -- an Akerman birdie reported that none other than the big man himself was spotted heading into state court on Flagler yesterday shortly before lunchtime.

Oh man, God help the poor sap he had for lunch.

What else? Did anyone else find this story a little odd:

Joel Jacobi, the Bal Harbour council member who tried to fight off allegations that he did not live in the village when he ran for reelection two years ago, resigned Monday.

The resignation came five days after the start of a civil trial challenging his election victory in 2007.

In his letter to the village clerk, Jacobi cited ''personal issues'' for his sudden resignation.

''I finally came to the difficult decision that I could no longer fight this matter,'' said Jacobi, who was a Village Council member for seven years. ``It has exhausted me both financially and emotionally.''

His last day in office will be April 1. The Village Council plans to appoint a replacement to serve the rest of Jacobi's term, which ends in 2011.

Jacobi, a family and personal-injury attorney, declined to comment.

His attorney, Joe Geller, said the resignation did not mean his client conceded he was ineligible to hold office.

The prospect of a lengthy and expensive trial and possible appeals was daunting, Geller said.

''You are talking about a job that pays $92 a month,'' said Geller, who would not reveal how much Jacobi has spent on legal fees. ``How much can you expect from the guy to sacrifice for a $92-a-month job?''

Jacobi's former opponent, Lynne Bloch-Mullen, filed the civil lawsuit questioning whether Jacobi was living in the village when he defeated her in April 2007 with almost 70 percent of the vote.

The civil trial began Wednesday in Miami-Dade Circuit Court.

Now Joel Jacobi is an attorney, and of course so is Joe Geller. They know roughly what the costs are going in, right? Shouldn't they have agreed on a sensible plan to reach the finish line on this matter?

Or did they already have a feel for the outcome?

March 20, 2009

Cowan, 34 FLW 534, 4th DCA, Post-Arrest silence, video recording made of interaction between def and companion after they were arrested and left unattended in back seat of police car may have been admissible for limited purpose of showing that contrary to his testimony at trial def actually spoke to the companion, cross-exam of def as to why he did not to respond to companion's implied accusation and prosecutor's comments in closing argument emphasizing def's silence in patrol car was improper, comments on def post arrest silence - new trial

Robinson, 34 FLW 572, 1st DCA, sexual offender registration - evidence insufficient to support conviction for failing to comply with registration requirements by failing to report change in residence, although def was sleeping outside on the sidewalk of the homeless shelter which he listed as his current permanent residence, undisputed def advised local authorities where he could be located and complied with statutory requirement - fact that a client services rep. at homeless shelter did not see def at the shelter is not dispositive where def explained in unrebutted testimony he left early in the morning for work before rep arrived at shelter for his workday.


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

Does Anyone Fact-Check Glenn Garvin?

I know they probably don't have many fact-checkers left over there, but still.

I mean, it's one thing when the burning issue is whether it was Danielle Brisebois or Soleil Moon Frye who starred in the revival of Hair that played at the old Konover Hotel back when it was owned by Abe Hirshfeld.

(It was a deliciously grown-up Danielle Brisebois, by the way.)

It's another thing when it's something of actual substance:

And that paled before the tragic memory loss of Democratic Sen. Chris Dodd of Connecticut, who was so freaked out by the bonuses that he proposed a special tax to take them back, forgetting completely that he was the one who stuck an amendment into the stimulus bill the Senate passed last month that specifically OK'd the AIG bonuses.

Oy.

Now what Glenn wrote is technically true, and yet utterly and completely false:

Dodd was pressured to put that carve-out in at the insistence of Treasury officials (whose opposition meant that Dodd's two choices were the limited compensation restriction favored by Geithner/Summers or no compensation limits at all), and Dodd did so only after arguing in public against it. To blame Dodd for provisions that the White House demanded is dishonest in the extreme....

In other words, it would be like writing "King George granted the colonies their independence" or "Japan sought to negotiate a peace with the Allies during WWII."

Hey -- all technically true, right?

Let's discuss something positive:

Lisa Pisciotta is an associate with Hughes Hubbard & Reed in Miami. An attorney for nine years, her practice concentrates on commercial litigation, products liability and intellectual property.

But on Friday, she had one thing on her mind — the defense of Daniel Gray, who was charged with misdemeanor driving under the influence in Miami-Dade County Court.

“It’s hard to get trial experience when your cases are worth $300 million,” she said Friday referring to the caseload she handles with one of her firm’s partners. “It’s also a side of the law you don’t see.”

Pisciotta is one of 23 attorneys participating in a pilot project spearheaded by the Miami-Dade public defender’s office to bridge an expanding budget gap.

Miami-Dade Public Defender Carlos Martinez already has won a court ruling — which is on appeal — that his attorneys are spread too thin to adequately represent clients charged with third-degree felonies. On Friday he made a public appeal for help from private attorneys who may want a bit of trial experience to consider participating in the project.

Now this is a great idea -- a way to match BigFirm attorneys, many of whom are looking for trial experience or just plain old-fashioned work -- with a desperate need for legal representation here in South Florida.

Good job all around (except you, Garvin).

SFL Monday Monday.

It's cold, rainy, dreary, and wet, everywhere I look there are toxic assets -- and I haven't even left my house yet.

Welcome to Monday.

Let's see, I like happy endings, don't you?

Here's one for the Carlton Fields white collar trial team of Mike Pasano, Paul Calli, and Marissel Descalzo, who represented attorney Luisa Inclan Bird:

A jury found Puerto Rico's former governor not guilty Friday on all nine counts including conspiracy, money laundering and lying to the FBI, concluding his monthlong corruption trial.

Anibal Acevedo Vila, who could have faced 20 years in prison if convicted, was the first governor to be charged with a crime since the island became a semiautonomous U.S. commonwealth in 1952.

Acevedo made the sign of the cross as he heard the verdict and began to cry, as did former adviser Luisa Inclan, who was also cleared of similar charges.

Judge Paul Barbadoro faced both defendants after the verdict. "This case has ended. You are free to go," he said.

The acquittal is a major blow to the U.S. Attorney's office, which prosecuted the governor in an election year — likely contributing to his defeat in one of the most lopsided elections in Puerto Rican history.

U.S. Attorney Rosa Emilia Rodriguez said Friday that she respects but disagrees with the verdict. She also denied that evidence was weak.

"The circumstantial evidence allowed for inferences to be made that the jury did not understand as such, but we accept that," she said.

In other words -- great prosecution, dumb jury. Congrats guys!

In other news, our elusive butterfly may have spread his wings again, and we are looking for Peggyann Delaney in connection with a 50th high school reunion. Any leads, please let me know.

Sheesh, what am I, the local pennysaver?

Are You Friends Yet With Miami-Dade's Ballpark?

Hi folks, hope you all are having a great weekend.

I had to emerge from my weekend reveille to comment on how Miami-Dade's Ballpark has joined that annoying Facebook thingy where you have to list 25 random things about yourself:

Each alpha user annoyingly asked 25 friends to write 25 random things, too, and each of these friends' friends annoyingly asked 25 more, and so on, until this week, when the viral loop catapulted into the bizarro realm: 25 Random Things About Me, by Miami-Dade's Ballpark.

No. 2: ``None of the money used in my construction can go to other government services like education, police, public housing or parks. It's state law!''

No. 19: ``I'm ready for my close-up: I'll have some great views of the Miami skyline from the stands, which should be great for showing off the city during nationally televised games.''

No. 25: ``I'm beloved already.''

If this stadium were a person -- close-talking, unfunny, boastful but discomfitingly insecure -- you might de-friend.

And you might suspect that these Things About Me are not random at all. You might suspect that, coming a few days before the Miami and Miami-Dade County commission votes on the stadium deal, they read more like propaganda encouraging public support for a yes vote.

(Miami commissioners approved the stadium in a 3-2 vote Thursday; county commissioners will vote Monday.)

''This is not information,'' said Commissioner Carlos Gimenez, who opposes the deal. He claimed 11 of the 25 Random Things were inaccurate, and seemed unlikely to forward the list to 25 Facebook friends. ``When you put something down that says Miami-Dade County, it shouldn't just be a puff piece like this.''

No puffiness, said county spokeswoman Marie Bertot: ''It's not so much selling an idea as communicating information,'' she said. ``It's a way to disseminate accurate information and reduce those misconceptions out there.''

Oy. This is like when your Uncle crashed your high school party and tried to show all your friends how "hip" he is. And hit on your girlfriend.

Please stop.

In other news, here is another example of a governmental entity doing the wrong thing, litigating for no good reason, and having to pay a lot more as a result. By not coming to the table early and reaching a reasonable resolution, they incurred significant fees, paid a larger amount, and had to cover the plaintiffs' fees too as a result of a 3d DCA ruling on liability.

That's South Florida for you. Continue to make the same dumb mistakes and hope no one notices.

Well, it's almost Spring so enjoy this lovely seasonal ditty by Tom Lehrer and we'll see you all tomorrow!

SFL Friday -- Sun and Fun Edition

Well kids, another week is ending -- hooray!

And what did we learn?

That well-meaning populist outrage can lead to crappy legislation.

That some little pointless war is having its 6th birthday (they are so cute at that age!).

That there is some very kinky stuff going on inside the CIA.

Oh yeah, this one's my favorite -- that there is at least one tangible positive benefit to this awful economy. It's about time on that last one.

Well I have grand plans for the weekend, and I hope you do too. I plan to do a little bedtime reading, ponder how I can get an early copy of the new Dylan album, and finally learn how to properly smile.

Folks, be like me and put your well-manicured hands on something valuable and precious this weekend.

I always do.

Have a great weekend!

Tod Aronovitz Is A Mensch.

So I thought the Federation reception was pretty good for this type of event.

Lots of judges, some very touching speeches (Judge Gerstein introduced his family and longtime staff, to much applause), and Randy Kroner.

What more can you ask for?

Did you all catch this moving story about Tod Aronovitz' fight for justice for Leonard Krys:

On Nov. 30, 1991, Krys boarded a Lufthansa 747 in Miami, headed to a seminar in Frankfurt, Germany. About an hour out, off the Georgia coast, severe chest pains hit and he turned gray.

The pilot refused to divert or return to Miami. In legal filings, Krys described how a flight attendant forced him back to his seat after he lay down in the aisle, how some passengers complained that they couldn't see the movie because he kept raising his arms, and how other business-class passengers groused about not being able to smoke.

`HE REALLY SUFFERED'

Although a German gynecologist on the plane gave him nitroglycerin tablets, Krys spent nine hours gasping, sweating and clutching his chest.

''He really suffered,'' his wife said. The episode destroyed much of his heart-wall muscle.

''He was bedridden for months and lost his business,'' Sebastian said.

Krys won a lawsuit against Lufthansa in Miami federal court -- a non-jury trial -- which the 11th Circuit Court of Appeals upheld. The airline argued that the incident should have been classified as an accident, per the Warsaw Convention, capping his payout at $75,000.

The United States Supreme Court refused to hear the airline's appeal, and in 1999 awarded Krys and his wife $3 million.

''As a result of his seven-year legal battle . . . domestic carriers for the first time installed defibrillators onboard all their flights,'' said Miami attorney Tod Aronovitz, who represented Krys.

Several lawyers had turned down the case before Krys found Aronovitz, who said he saw ``an honest and sincere man who had undergone a nightmare. . . . He was a man with a very positive attitude toward life, and a pleasure to represent.''

Krys ''filed the lawsuit for all the right reasons,'' Aronovitz said. ``He was looking for an apology and to get them to be more customer-friendly.''

See, what do I always say -- you do well by doing good.

Tampa Bay House Flipper Sent to Federal Prison

A Tampa Bay House Flipper was Sent to Federal Prison this week according to the United States Attorney's Office for the Middle District of Florida and the St Pete Times. Judge James D. Whittemore called him "a good example of why we are in an economic crisis," and sentenced a Clearwater house flipper to 13 months in prison for lying on applications for loans.

"It's simple greed, and we're going to see a lot more of it in this court than we should in coming years," the Judge continued "The harm occasioned by mortgage fraud is not just economic, it is much broader than lenders simply losing money."

"You knew better," the Judge told him, "You did what millions of people have done, and look where we are today."

As noted numerous times by Tampa's Board Certified Criminal Trial Lawyer W.F. ''Casey'' Ebsary, Jr., the fallout from recent economic events will be landing in State and Federal Courts. Casey is available to consult on these matters Toll Free at 1-877-793-9290.

House Flipper Sent to Federal Prison

Foreclosure Rescue Scams:  How to tell a Helping Hand from a Hand Grenade.

The filing of a foreclosure action or notice of lis pendis is a matter of public record.  As such if the bank files a lawsuit against you to take back your home a large number of people are going to know about it.  Many of these people are con artists who prey upon unsophisticated consumers in a time when the homeowner is stressed out and vulnerable.  In times of old the most common scam was an attempt to steal the homeowner’s equity.  The foreclosure rescue consultant / con artist usually would trick the homeowner into quit claiming the deed to the consultant, a third-party straw buyer, or a shell corporation which would pay off the mortgage and pay little if anything to the seller at the closing.  This rescue consultant would justify this action by telling the homeowner ‘we need to get the house out of your name.’  The new owner of the home would then lease it back to the former homeowner.  Many times the homeowner would not even realize that all of the legal papers he or she was signing were transferring ownership of the home.  The new owner would then refinance the property or take a second mortgage to pocket the difference between the amount paid by the “rescuer” and the value of the home.  At this point the “rescuer / con artist” would stop making payments on the new mortgage(s) while continuing to collect rent from the prior owner.  The former owner realizes he has been duped when he is served with a foreclosure action as a tenant in his own home.  By this time the amount of the mortgages that encumber the property may be double the amount the original owner owned on the property. 

 

Florida has passed a NEW foreclosure rescue scam prevention law which I have reproduced at the end of this post. This statute PROHIBITS foreclosure consultants from charging any fee prior to the completion of foreclosure consulting services.  Attorneys are exempt from this statute.  This means that if a homeowner engages the services of a loan modification company or other foreclosure consultant the homeowner should not pay any fee until the service is completed. 

 

We have had clients come to us who hurt badly when they failed to show around for a home mortgage and were put in high interest subprime loans when their credit rating would have qualified them for a 30 year fixed prime loan at a much lower interest rate.  These same clients upon being served with foreclosure paid $1,500 to $2,500 to non-lawyers to assist them with their foreclosure case.  The non-lawyer often did absolutely nothing or wrote only a single letter to the lender or lender’s attorney.  In one case the consultant hand wrote a “pro se” (self-represented) answer for the client to sign.  One of the companies offering these foreclosure services was run by a disbarred lawyer.  Hiring a non-lawyer to represent you in a Court proceeding, when the non-lawyer cannot appear in Court, is about as smart as hiring a car mechanic to perform heart surgery.  What is truly said is that for the price some of our clients paid non-lawyers they could have obtained competent representation from one of several law firms.  The non-lawyers “services” was no help but rather a hand grenade.  Thankfully we were retained early enough to repair the damage.  This far the disbarred lawyer has refused to return our client’s money.  When we sue this guy and his company we will post the suit on this blog. 

 

OK – for those that are interested here is the statute:

501.1377  Violations involving homeowners during the course of residential foreclosure proceedings.--

(1)  LEGISLATIVE FINDINGS AND INTENT.--The Legislature finds that homeowners who are in default on their mortgages, in foreclosure, or at risk of losing their homes due to nonpayment of taxes may be vulnerable to fraud, deception, and unfair dealings with foreclosure-rescue consultants or equity purchasers. The intent of this section is to provide a homeowner with information necessary to make an informed decision regarding the sale or transfer of his or her home to an equity purchaser. It is the further intent of this section to require that foreclosure-related rescue services agreements be expressed in writing in order to safeguard homeowners against deceit and financial hardship; to ensure, foster, and encourage fair dealing in the sale and purchase of homes in foreclosure or default; to prohibit representations that tend to mislead; to prohibit or restrict unfair contract terms; to provide a cooling-off period for homeowners who enter into contracts for services related to saving their homes from foreclosure or preserving their rights to possession of their homes; to afford homeowners a reasonable and meaningful opportunity to rescind sales to equity purchasers; and to preserve and protect home equity for the homeowners of this state.

(2)  DEFINITIONS.--As used in this section, the term:

(a)  "Equity purchaser" means any person who acquires a legal, equitable, or beneficial ownership interest in any residential real property as a result of a foreclosure-rescue transaction. The term does not apply to a person who acquires the legal, equitable, or beneficial interest in such property:

1.  By a certificate of title from a foreclosure sale conducted under chapter 45;

2.  At a sale of property authorized by statute;

3.  By order or judgment of any court;

4.  From a spouse, parent, grandparent, child, grandchild, or sibling of the person or the person's spouse; or

5.  As a deed in lieu of foreclosure, a workout agreement, a bankruptcy plan, or any other agreement between a foreclosing lender and a homeowner.

(b)  "Foreclosure-rescue consultant" means a person who directly or indirectly makes a solicitation, representation, or offer to a homeowner to provide or perform, in return for payment of money or other valuable consideration, foreclosure-related rescue services. The term does not apply to:

1.  A person excluded under s. 501.212.

2.  A person acting under the express authority or written approval of the United States Department of Housing and Urban Development or other department or agency of the United States or this state to provide foreclosure-related rescue services.

3.  A charitable, not-for-profit agency or organization, as determined by the United States Internal Revenue Service under s. 501(c)(3) of the Internal Revenue Code, which offers counseling or advice to an owner of residential real property in foreclosure or loan default if the agency or organization does not contract for foreclosure-related rescue services with a for-profit lender or person facilitating or engaging in foreclosure-rescue transactions.

4.  A person who holds or is owed an obligation secured by a lien on any residential real property in foreclosure if the person performs foreclosure-related rescue services in connection with this obligation or lien and the obligation or lien was not the result of or part of a proposed foreclosure reconveyance or foreclosure-rescue transaction.

5.  A financial institution as defined in s. 655.005 and any parent or subsidiary of the financial institution or of the parent or subsidiary.

6.  A licensed mortgage broker, mortgage lender, or correspondent mortgage lender that provides mortgage counseling or advice regarding residential real property in foreclosure, which counseling or advice is within the scope of services set forth in chapter 494 and is provided without payment of money or other consideration other than a mortgage brokerage fee as defined in s. 494.001.

(c)  "Foreclosure-related rescue services" means any good or service related to, or promising assistance in connection with:

1.  Stopping, avoiding, or delaying foreclosure proceedings concerning residential real property; or

2.  Curing or otherwise addressing a default or failure to timely pay with respect to a residential mortgage loan obligation.

(d)  "Foreclosure-rescue transaction" means a transaction:

1.  By which residential real property in foreclosure is conveyed to an equity purchaser and the homeowner maintains a legal or equitable interest in the residential real property conveyed, including, without limitation, a lease option interest, an option to acquire the property, an interest as beneficiary or trustee to a land trust, or other interest in the property conveyed; and

2.  That is designed or intended by the parties to stop, avoid, or delay foreclosure proceedings against a homeowner's residential real property.

(e)  "Homeowner" means any record title owner of residential real property that is the subject of foreclosure proceedings.

(f)  "Residential real property" means real property consisting of one-family to four-family dwelling units, one of which is occupied by the owner as his or her principal place of residence.

(g)  "Residential real property in foreclosure" means residential real property against which there is an outstanding notice of the pendency of foreclosure proceedings recorded pursuant to s. 48.23.

(3)  PROHIBITED ACTS.--In the course of offering or providing foreclosure-related rescue services, a foreclosure-rescue consultant may not:

(a)  Engage in or initiate foreclosure-related rescue services without first executing a written agreement with the homeowner for foreclosure-related rescue services; or

(b)  Solicit, charge, receive, or attempt to collect or secure payment, directly or indirectly, for foreclosure-related rescue services before completing or performing all services contained in the agreement for foreclosure-related rescue services.

(4)  FORECLOSURE-RELATED RESCUE SERVICES; WRITTEN AGREEMENT.--

(a)  The written agreement for foreclosure-related rescue services must be printed in at least 12-point uppercase type and signed by both parties. The agreement must include the name and address of the person providing foreclosure-related rescue services, the exact nature and specific detail of each service to be provided, the total amount and terms of charges to be paid by the homeowner for the services, and the date of the agreement. The date of the agreement may not be earlier than the date the homeowner signed the agreement. The foreclosure-rescue consultant must give the homeowner a copy of the agreement to review not less than 1 business day before the homeowner is to sign the agreement.

(b)  The homeowner has the right to cancel the written agreement without any penalty or obligation if the homeowner cancels the agreement within 3 business days after signing the written agreement. The right to cancel may not be waived by the homeowner or limited in any manner by the foreclosure-rescue consultant. If the homeowner cancels the agreement, any payments that have been given to the foreclosure-rescue consultant must be returned to the homeowner within 10 business days after receipt of the notice of cancellation.

(c)  An agreement for foreclosure-related rescue services must contain, immediately above the signature line, a statement in at least 12-point uppercase type that substantially complies with the following:

HOMEOWNER'S RIGHT OF CANCELLATION

 

YOU MAY CANCEL THIS AGREEMENT FOR FORECLOSURE-RELATED RESCUE SERVICES WITHOUT ANY PENALTY OR OBLIGATION WITHIN 3 BUSINESS DAYS FOLLOWING THE DATE THIS AGREEMENT IS SIGNED BY YOU.

THE FORECLOSURE-RESCUE CONSULTANT IS PROHIBITED BY LAW FROM ACCEPTING ANY MONEY, PROPERTY, OR OTHER FORM OF PAYMENT FROM YOU UNTIL ALL PROMISED SERVICES ARE COMPLETE. IF FOR ANY REASON YOU HAVE PAID THE CONSULTANT BEFORE CANCELLATION, YOUR PAYMENT MUST BE RETURNED TO YOU NO LATER THAN 10 BUSINESS DAYS AFTER THE CONSULTANT RECEIVES YOUR CANCELLATION NOTICE.

TO CANCEL THIS AGREEMENT, A SIGNED AND DATED COPY OF A STATEMENT THAT YOU ARE CANCELING THE AGREEMENT SHOULD BE MAILED (POSTMARKED) OR DELIVERED TO  (NAME)  AT  (ADDRESS)  NO LATER THAN MIDNIGHT OF  (DATE) .

IMPORTANT: IT IS RECOMMENDED THAT YOU CONTACT YOUR LENDER OR MORTGAGE SERVICER BEFORE SIGNING THIS AGREEMENT. YOUR LENDER OR MORTGAGE SERVICER MAY BE WILLING TO NEGOTIATE A PAYMENT PLAN OR A RESTRUCTURING WITH YOU FREE OF CHARGE.

(d)  The inclusion of the statement does not prohibit the foreclosure-rescue consultant from giving the homeowner more time in which to cancel the agreement than is set forth in the statement, provided all other requirements of this subsection are met.

(e)  The foreclosure-rescue consultant must give the homeowner a copy of the signed agreement within 3 hours after the homeowner signs the agreement.

(5)  FORECLOSURE-RESCUE TRANSACTIONS; WRITTEN AGREEMENT.--

(a)1.  A foreclosure-rescue transaction must include a written agreement prepared in at least 12-point uppercase type that is completed, signed, and dated by the homeowner and the equity purchaser before executing any instrument from the homeowner to the equity purchaser quitclaiming, assigning, transferring, conveying, or encumbering an interest in the residential real property in foreclosure. The equity purchaser must give the homeowner a copy of the completed agreement within 3 hours after the homeowner signs the agreement. The agreement must contain the entire understanding of the parties and must include:

a.  The name, business address, and telephone number of the equity purchaser.

b.  The street address and full legal description of the property.

c.  Clear and conspicuous disclosure of any financial or legal obligations of the homeowner that will be assumed by the equity purchaser.

d.  The total consideration to be paid by the equity purchaser in connection with or incident to the acquisition of the property by the equity purchaser.

e.  The terms of payment or other consideration, including, but not limited to, any services that the equity purchaser represents will be performed for the homeowner before or after the sale.

f.  The date and time when possession of the property is to be transferred to the equity purchaser.

2.  A foreclosure-rescue transaction agreement must contain, above the signature line, a statement in at least 12-point uppercase type that substantially complies with the following:

I UNDERSTAND THAT UNDER THIS AGREEMENT I AM SELLING MY HOME TO THE OTHER UNDERSIGNED PARTY.

3.  A foreclosure-rescue transaction agreement must state the specifications of any option or right to repurchase the residential real property in foreclosure, including the specific amounts of any escrow payments or deposit, down payment, purchase price, closing costs, commissions, or other fees or costs.

4.  A foreclosure-rescue transaction agreement must comply with all applicable provisions of 15 U.S.C. ss. 1600 et seq. and related regulations.

(b)  The homeowner may cancel the foreclosure-rescue transaction agreement without penalty if the homeowner notifies the equity purchaser of such cancellation no later than 5 p.m. on the 3rd business day after signing the written agreement. Any moneys paid by the equity purchaser to the homeowner or by the homeowner to the equity purchaser must be returned at cancellation. The right to cancel does not limit or otherwise affect the homeowner's right to cancel the transaction under any other law. The right to cancel may not be waived by the homeowner or limited in any way by the equity purchaser. The equity purchaser must give the homeowner, at the time the written agreement is signed, a notice of the homeowner's right to cancel the foreclosure-rescue transaction as set forth in this subsection. The notice, which must be set forth on a separate cover sheet to the written agreement that contains no other written or pictorial material, must be in at least 12-point uppercase type, double-spaced, and read as follows:

NOTICE TO THE HOMEOWNER/SELLER

 

PLEASE READ THIS FORM COMPLETELY AND CAREFULLY. IT CONTAINS VALUABLE INFORMATION REGARDING CANCELLATION RIGHTS.

BY THIS CONTRACT, YOU ARE AGREEING TO SELL YOUR HOME. YOU MAY CANCEL THIS TRANSACTION AT ANY TIME BEFORE 5:00 P.M. OF THE THIRD BUSINESS DAY FOLLOWING RECEIPT OF THIS NOTICE.

THIS CANCELLATION RIGHT MAY NOT BE WAIVED IN ANY MANNER BY YOU OR BY THE PURCHASER.

ANY MONEY PAID DIRECTLY TO YOU BY THE PURCHASER MUST BE RETURNED TO THE PURCHASER AT CANCELLATION. ANY MONEY PAID BY YOU TO THE PURCHASER MUST BE RETURNED TO YOU AT CANCELLATION.

TO CANCEL, SIGN THIS FORM AND RETURN IT TO THE PURCHASER BY 5:00 P.M. ON  (DATE)  AT  (ADDRESS) . IT IS BEST TO MAIL IT BY CERTIFIED MAIL OR OVERNIGHT DELIVERY, RETURN RECEIPT REQUESTED, AND TO KEEP A PHOTOCOPY OF THE SIGNED FORM AND YOUR POST OFFICE RECEIPT.

I (we) hereby cancel this transaction.

 Seller's Signature 

 

 Printed Name of Seller 

 

 Seller's Signature 

 

 Printed Name of Seller 

 

 Date 

 

(c)  In any foreclosure-rescue transaction in which the homeowner is provided the right to repurchase the residential real property, the homeowner has a 30-day right to cure any default of the terms of the contract with the equity purchaser, and this right to cure may be exercised on up to three separate occasions. The homeowner's right to cure must be included in any written agreement required by this subsection.

(d)  In any foreclosure-rescue transaction, before or at the time of conveyance, the equity purchaser must fully assume or discharge any lien in foreclosure as well as any prior liens that will not be extinguished by the foreclosure.

(e)  If the homeowner has the right to repurchase the residential real property, the equity purchaser must verify and be able to demonstrate that the homeowner has or will have a reasonable ability to make the required payments to exercise the option to repurchase under the written agreement. For purposes of this subsection, there is a rebuttable presumption that the homeowner has a reasonable ability to make the payments required to repurchase the property if the homeowner's monthly payments for primary housing expenses and regular monthly principal and interest payments on other personal debt do not exceed 60 percent of the homeowner's monthly gross income.

(f)  If the homeowner has the right to repurchase the residential real property, the price the homeowner pays may not be unconscionable, unfair, or commercially unreasonable. A rebuttable presumption, solely between the equity purchaser and the homeowner, arises that the foreclosure-rescue transaction was unconscionable if the homeowner's repurchase price is greater than 17 percent per annum more than the total amount paid by the equity purchaser to acquire, improve, maintain, and hold the property. Unless the repurchase agreement or a memorandum of the repurchase agreement is recorded in accordance with s. 695.01, the presumption arising under this subsection shall not apply against creditors or subsequent purchasers for a valuable consideration and without notice.

(6)  REBUTTABLE PRESUMPTION.--Any foreclosure-rescue transaction involving a lease option or other repurchase agreement creates a rebuttable presumption, solely between the equity purchaser and the homeowner, that the transaction is a loan transaction and the conveyance from the homeowner to the equity purchaser is a mortgage under s. 697.01. Unless the lease option or other repurchase agreement, or a memorandum of the lease option or other repurchase agreement, is recorded in accordance with s. 695.01, the presumption created under this subsection shall not apply against creditors or subsequent purchasers for a valuable consideration and without notice.

(7)  VIOLATIONS.--A person who violates any provision of this section commits an unfair and deceptive trade practice as defined in part II of this chapter. Violators are subject to the penalties and remedies provided in part II of this chapter, including a monetary penalty not to exceed $15,000 per violation. 

Florida Supreme Court Upholds Lobbyist Restrictions

Hi folks, I've been busy meditating so I have the requisite mental energy to listen to a lot of boring lawyer war stories later today, but a dedicated reader passes along this Florida Supreme Court opinion released today that upholds the statute regulating lobbyists.

I found the Court's distinguishing of the respective roles of a lawyer as opposed to a lobbyist to be interesting, if somewhat narrow in my view.

Is that all we do?

Judicial Receptions Are For Lovers.

So who else is going to the Federation Judicial Reception tonight:

This year’s Judicial Reception will recognize three outstanding legal professionals in Miami, including the Honorable Joseph P. Farina, who will receive the Community Service Award; the Honorable Norman S. Gerstein, who will be honored with the Lifetime Achievement Award; and Richard C. Milstein, Esq., recipient of the Honorable Theodore “Ted” Klein Special Recognition Award.

I don't know about you, but I'm bringing a complete set of the Zloch/Moreno memos.

You never know when you need some good cocktail conversation material, right?

Seriously, congrats to those being honored, and thank you for your service.

If the bank lost the note, will I get my house for free?

Welcome to the first installment of the Florida Foreclosure Defense Blog.   This Blog is brought to you by the law firm of Shuster & Saben, LLC, a firm with offices in Miami, Florida and Plantation, Florida that defends or is available to defend Florida homeowners in Dade, Broward, Palm Beach, Collier, Lee, St. Lucie, Indian River, Brevard, and Orange counties.  In the weeks ahead we will discuss the foreclosure crisis, what is happening in defended foreclosure cases, common questions about the foreclosure process, the origins of this crisis and potential solutions to the problem.  The opinions expressed herein are purely those of the blog authors and are not meant as legal advice. Homeowners who have been served with a foreclosure should consult and attorney and if they are indigent, unemployed, or qualify for legal aid, are likely to be able to obtain legal assistance for free or at nominal cost.

For our first topic I address the question often presented by potential clients:  If the Bank Lost the Note will I get my house for free?

Homeowners who have received their homes for free have reached the status of Urban Myth on the Internet.  Does it happen in the real world?  It does, but it does not occur that often.  In Florida Statute 71.011 provides for the Reestablishment of papers, records, and files in limited circumstances.  The statue in pertinent part provides as follows:

71.011 Reestablishment of papers, records, and files.--All papers, written or printed, of any kind whatsoever, and the records and files of any official, court or public office, may be reestablished in the manner hereinafter provided.

(1)  WHO MAY REESTABLISH.--Any person interested in the paper, file or record to be reestablished may reestablish it.

(2)  VENUE.--If reestablishment is sought of a record or file, venue is in the county where the record or file existed before its loss or destruction. If it is a private paper, venue is in the county where any person affected thereby lives or if such persons are nonresidents of the state, then in any county in which the person seeking the reestablishment desires.

(3)  REMEDY CONCURRENT.--Nothing herein shall prevent the reestablishment of lost papers, records and files at common law or in equity in the usual manner.

(4)  EFFECT.--

(a)  Any paper, record or file reestablished has the effect of the original. A private paper has such effect immediately on recording the judgment reestablishing it, but a reestablished record does not have that effect until recorded and a reestablished paper or file of any official, court or public officer does not have that effect until a certified copy is filed with the official or in the court or public office where the original belonged. A certified copy of any reestablished paper, the original of which is required or authorized by law to be recorded, may be recorded.

(b)  When any deed forming a link in a chain of title to land in this state has been placed on the proper record without having been acknowledged or proven for record and has thereafter been lost or destroyed, certified copies of the record of the deed as so recorded may be received as evidence to reestablish the deed if the deed has been so recorded for 20 years.

(5)  COMPLAINT.--A person desiring to establish any paper, record or file, except when otherwise provided, shall file a complaint in chancery setting forth that the paper, record or file has been lost or destroyed and is not in the custody or control of the petitioner, the time and manner of loss or destruction, that a copy attached is a substantial copy of that lost or destroyed, that the persons named in the complaint are the only persons known to plaintiff who are interested for or against such reestablishment. 

Our law firm has found that in over 50% of the foreclosure cases we are defending the lender has included a count to "reestablish" a "lost" note.  I think this statute was designed to protect the bank that 50 promissory notes in their vault on Monday, gets hit by a category 4 Hurricane on Tuesday, and takes diligent action to reestablish the notes as soon as the hurricane has past.  From time to time banks make mistakes and this statute could prevent a forfeiture from a clerical error.  In the foreclosure cases we are seeing it is a stretch to say the banks lost the note.  It appears readily apparent that the mortgage brokers who were selling their loans before the ink was dry on the closing real estate closing documents, and the banks forgot the meaning of the word "underwriting" were in such a hurry to write loans, bundle the loans  and sell the loans, that nobody was bothering to take physical possession of the note.  When the loan changes hands three of four times and the fourth holder of the loan says they lost the note, how can they lose something that they never had.  Many times the lender who brought the foreclosure action has no idea which bank lost the note.  

In the real world if the foreclosure complaint has a count to reestablish the note, the bank will have a much more difficult time in the foreclosure cases.  When a bank realizes that it does not have the evidence it needs to prevail and that obtaining such evidence may take years the bank is often amenable to settlement under terms very favorable to the homeowner.  While every case is different when faced with the possibility of losing banks offered homeowners settlements that cut the loan balance in half and reduce the interest rate to 4%.  

While some judges rulings, like the one below (Not our firms case) have set the bar to reestablish a note quite low others have held the banks feet to the fire.  An example of a case where the bank was allowed to reestablish the note follows:

 GLENDALE FEDERAL BANK, FEDERAL SAVINGS BANK, Plaintiff, v. PHILIP L. FRYBERGH; LAKEVIEW VILLAGE II, INC., a dissolved Florida corporation; SUMNER E. ROBINSON, Trustee of the Duncan Florida National Trust Dated 11 July, 1989, SEARS, ROEBUCK AND CO., a New York corporation; WASTE MANAGEMENT INC. OF FLORIDA, Successor by Merger to Southern Sanitation Service; and CAUSEWAY LUMBER COMPANY, INC., Defendants. 17th Judicial Circuit for Broward County, Civil Division. Case No. 93-25033-06. March 2, 1994. Geoffrey D. Cohen, Judge. Robert W. Lee, Smith & Hiatt, P.A., Ft. Lauderdale, for Glendale Federal Bank. Robert A. Arabian, Tamarac, for Frybergh and Lakeview.

PARTIAL SUMMARY JUDGMENT

AS TO COUNT I (LOST NOTE) AND

SECOND AFFIRMATIVE DEFENSE

IN FAVOR OF PLAINTIFF

THIS ACTION came before the Court on motion of the Plaintiff for the entry of a Partial Summary Final Judgment As to Count I (Lost Note) and Second Affirmative Defense, and after consideration thereof and the Court being duly advised in the premises and otherwise,

IT IS ADJUDGED THAT:

1. Plaintiff has established that it owns and holds a promissory note and mortgage, copies of which were attached to Plaintiff's Complaint in this action. The original note has been lost and is not in the custody or control of Glendale. The note has not been paid or otherwise satisfied, assigned or transferred. In Florida, the right to reestablish lost instruments is recognized both by common law and by statute. The destruction or unintentional loss of an instrument does not change the rights or obligations of the parties to the instrument. Florida Real Property Practice III §8.3 (2d ed. 1976). Upon establishing that the instrument has been destroyed, lost or stolen, an interested party is entitled to a judgment reestablishing the instrument. Fla. Stat. §71.011. Accordingly, the note is hereby re-established and the copy of the lost note attached hereto shall stand in place and in stead of the original promissory note. If the original note is ever located, Plaintiff shall immediately deliver it to the Court for cancellation.

2. In Defendant's Second Affirmative Defense, Defendant alleges that Glendale neglected to give Defendants written notice of default and an opportunity to cure before accelerating the note and mortgage. Glendale has, however, established that proper notice was given to Defendants as set forth in the affidavits previously filed with this Court. Evidence of a routine practice of an organization is admissible to prove the conduct of the organization on a particular occasion was in conformity with the routine practice. Florida East Coast Properties v. Coastal Construction Products, Inc., 553 So. 2d 705, 706 (Fla. 3d DCA 1989). The rule is that, when something is mailed by a business, it is presumed that the ordinary course of business was followed in mailing it, and that the mail was received by the addressee. Allstate Insurance Co. v. Eckert, 472 So. 2d 807, 809 (Fla. 4th DCA 1985); Brown v. Giffen Industries, Inc., 281 So. 2d 897, 900 (Fla. 1973). Glendale's affidavits establish that the ordinary course of business was followed in sending its notice of default and acceleration. Accordingly, judgment is hereby entered in favor of Plaintiff as to Defendants' Second Affirmative Defense.

Returning to the initial client question of If the bank lost the note will I get the house for free?  When this question is asked in a first meeting the best answer we can give is MAYBE.  Our firm is a firm of litigators and we fight foreclosures with the goal of getting the case dismissed.   On day one we will not know what cards are in the banks hand.  During the period the case is pending the lost note could be found.  What we do know is that the homeowners position will be stronger if the bank has the added burden of reestablishing the note.  If the bank or the banks lawyers make a mistake, which happens quite frequently we will attempt of capitalize on the mistake.  Many foreclosure cases settle and thus even if the homeowner does not get their house for free a resolution that keeps the homeowner in their home and drastically reduces their loan balance and interest rate is outcome worth working for.

Florida Financial Fraud Defense Attorney on Uptick in Prosecutions

Florida Financial Fraud Defense Attorney, W.F. ''Casey'' Ebsary, Jr., expects an uptick in Prosecutions. According to the New York Times, Senators have introduced new legislation to increase enforcement and detection of white-collar crime in the wake of the $50 billion fraud allegedly perpetrated by Bernard L. Madoff. There is a proposal to add $110 million to the budgets of the Justice Department, the Securities and Exchange Commission and the F.B.I. to help crack down on Wall Street fraud. The new legislation is known as the Supplemental Anti-Fraud Enforcement (“SAFE”) Markets Act. The F.B.I. would get the bulk of the funds, $80 million, to hire 500 new agents in its white-collar crime division.

Florida Financial Fraud Defense Attorney, W.F. ''Casey'' Ebsary, Jr., is available toll free at 1-877-793-9290.

Florida Financial Fraud Defense Attorney

"I Am Not Paying Any Money For Anything."

Boy oh boy what a disaster is unfolding in Judge Gold's courtroom, in the aftermath of the acquital of Dr. Ali Shaygan by uber-trial mensch David O. Markus:

U.S. District Judge Alan S. Gold, who held two days of hearings this week on the matter, said there were "flagrant violations" of basic rules by prosecutors and indicated he would likely order the U.S. government to pay the defense lawyers thousands of dollars in fees and costs.

"It's more than just mistakes. Important safeguards were not met," Gold said. "It doesn't seem like any facts were verified."

U.S. Attorney R. Alexander Acosta on Wednesday called the situation "regrettable" and said the allegations have been referred to the U.S. Justice Department for possible disciplinary action.

The misconduct claims arose earlier this month during the trial of Dr. Ali Shaygan, 36, who was accused in a 141-count indictment of writing illegal prescriptions including one that led to a patient's death from a methadone overdose. Shaygan, acquitted last week of all charges, had faced a minimum of 20 years in prison because of that person's death.

During the trial, Shaygan attorney David O. Markus found out by chance during questioning of a witness that his prior telephone conversation with that witness had been recorded. It later turned out that prosecutors authorized two witnesses - Carlos Vento and Trinity Clendening - to secretly record their phone calls with Markus and his investigator, Michael Graff.

At least one witness seemed to ask Markus to pay a bribe for testimony, according to the recordings. But Markus wouldn't go along.

"I am not paying any money for anything," the attorney said in one recording, according to a transcript.

In addition, Vento and Clendening had agreed to become confidential informants for the Drug Enforcement Administration - a critical fact never disclosed to the defense. Such information is important in criminal trials because a jury could otherwise never learn that the witnesses might have a bias in favor of prosecutors.

Of course David did the right thing -- no one would expect anything different. Can the same be said of the other actors involved in this tawdry drama?

David, always so serious.

Now me, if I had suspected the feds were recording me without my knowledge, I would have sang old Dr. Demento songs, Tom Lehrer, probably would have done a little Allan Sherman, you know, the classics.....hey my singing voice is quite good.

3d DCA Watch -- Rubber Biscuits and Wish Sandwiches Edition

Thank you Judge Salter!

You know, some weeks it ain't easy to write 3d DCA Watch. No offense to the judges, but it's hard sometimes to work with material like this:

In the case before us, the record reflects that Diaz presented sufficient evidence to submit to the jury the issue of whether Impex Logistics was Diaz’s “joint employer” or his “single employer.” Nevertheless, the trial court did not rule on the sufficiency of the evidence because it found that the “joint employer” and “single employer” tests were inapplicable. Instead, the trial court granted the motion for directed verdict because Impex Logistics had less than ten employees. However, there was sufficient evidence for the “single employer” and “joint employer” issue to be decided by the jury. Consequently, the trial court erred in granting Impex Logistics’ motion for directed verdict.

Zzzzzz. Huh, right, where was I?

My point is, as brilliant and as resplendently robed as our coffee-swilling brethren to the south are -- and please don't tell anyone -- but sometimes they write dull opinions.

So this week we are deeply indebted to Judge Salter.

Not because his opinion this week wasn't dull (oh hail it certainly was!), but because it contained this sterling footnote:

The court is reminded of the wistful adage: if I had some cheese, then if I had some bread, I’d have a cheese sandwich.

Hallelujah!! ZING!!

However, to be serious for a moment Judge, no self-respecting student of late 20th-century American culture could possibly reference the immortal "wish sandwich" without mentioning the mighty Blues Brothers! That's just not right!

Or, as Judge Elihu Smails might say, that would be illegal.