Fall      Winter
Fall/Winter 2010
Fisher's Law Office

Welcome to the NEWSLETTER of Fisher’s Law Office, providing you with legal information you can use in your everyday life. If you have questions about what you read in this newsletter, please call us today.

What is a difference between a Regular DUI (Driving Under the Influence) and a “Mini DUI”?

Most of our clients know that driving under the influence is a crime. Florida Statute 316.193 states that anyone whose blood alcohol level is greater than .08 can be subject to imprisonment for up to six months, probation for an additional six months, 50 hours of community service, and a $500.00 fine.

In addition, a drunk driver’s vehicle must be impounded for 10 days and the defendant is subject to a 180-day suspension of driving privileges.

The law allows for a hardship permit to be issued once driving school has been completed for a first time offender.

On the other hand, a “Mini DUI” is an administrative suspension of persons under the age of 21 for driving with an alcohol level of  .02 or above. (As little as one drink of an alcoholic beverage can cause a person’s blood alcohol level to be at .02 by volume.)

The rules regarding a “Mini DUI” are contained in F.S.§ 322.2616. This law requires a young offender to have a suspension of his driving privileges for six months. Also, if a young person has a blood alcohol level greater than .05 the suspension must remain in effect until the completion of a substance abuse evaluation course. If you have any young people in your family warn them about this new Mini DUI law

New Court Secrecy rules formalize the process of making court files out of reach to the public.

A new Florida Rule of Judicial Administration (Rule 2.420) will allow a court to make court records confidential. Any party can request that non-criminal court files or portions of them be made off limits to the public.

Before court records are sealed there must be a hearing before a judge. Once the judge signs the court order, the court clerk must publish the court order in a prominent place on its web-site. The public then has (30) days to object to the sealing of the court file.

Judges have the right to seal all or part of a court file including the power to seal the court docket if good cause is shown. The end result will be that the public will have less access to non-criminal court records in the state of Florida.

What is a “Holder in Due Course” and what does it mean in the context of foreclosure cases?
Most people are familiar with “holder and due course” if they have a checking account. For example, if someone endorses a check to you, you would have every right to expect that the check would be valid if it was presented to the bank of the maker of the check.

However, if you take the check knowing that it is forged or has been dishonored in any way you may not be able to cash the check. Similarly, promissory notes passed around in the stream of commerce can be enforced without the normal defenses if the buyer is a holder in due course.

The buyers of mortgage notes are often aware of problems with the notes they are buying. For example, the note might be lost or over-due.

Therefore most purchaser’s of notes in foreclosure cases can not truly claim to be holders in due course and be entitled to the rights and privileges containing the uniform commercial code.

If you are involved in a foreclosure in which your note may have been sold prior to a lawsuit being brought against you, seek legal counsel as you may have defenses to the claim against you.

Here are some of the current trends in foreclosure cases.

1) The Florida legislature recently awarded $9 million to the court system to clean up the foreclosure mess.

2) Many Circuit Courts in Florida have used their share of the money to hire “senior judges” to return to the courtroom to hear foreclosure cases to take the load off of the other judges.

In Hillsborough County, there are two foreclosure divisions that hear foreclosure cases. The new hearings take place daily in what some are calling “rocket dockets” in which attorneys have five minutes or less to argue their case. As a result, some clients feel that their case is not being given the due process that it would otherwise be given by a circuit judge.

3) On the other hand, the Rocket Docket judges are becoming specialists in foreclosure law and can more readily give more appropriate rulings.
4) Another trend is that banks are reluctant to foreclose on homes that are in communities that have homeowner’s associations or condominium associations. This is because once the foreclosure is completed the bank is liable for all of the homeowner association fees and other dues.

5) Another new trend is for homeowner’s associations to foreclose on condo units and homes where owners have not paid their homeowner association fees and then convey the property to the bank and sue the bank for the homeowner’s fees.

 6) Another trend is that persons going through foreclosure are finding that they can afford to pay off their credit cards and other debts because they are not paying any house payment, insurance payments or taxes on their home. In the two to three years that it takes for a foreclosure to go through the system, some homeowners are even saving money and funding retirement plans and college plans for their children.

7) The federal government and the U.S. Federal Reserve reimbursed the banks for most of their losses using printed money from the Federal Reserve. (Over 2 trillion dollars was pumped into the financial system Federal Reserve Bank.)

Meanwhile, the value of the U.S. Dollar has fallen to multi-year lows against other world currencies and the price of gold is at an all-time high. Most experts expect inflation to increase soon.

8) Savers have been hurt because interest rates have plummeted to all time lows on certificates of deposit and money market accounts. Savers are hurting but consumers are starting to pay down debt.
9) The current trend is for the government to attempt to keep people in their homes even when they can not afford to pay for them. This has had the perverse effect of protracting the foreclosure crisis in America. It may take as long as 8-10 years to clear out the inventory of foreclosed homes that are referred to as “shadow inventory” in the real-estate business.

10) Lastly, ironically, the U.S. government owns Fannie Mae and Freddie Mac. These entities own or guarantee over seven trillion dollars of mortgages. They are foreclosing on property at an increasing rate, making the government itself the biggest creditor of Americans in foreclosure trouble.

Foreclosure creditor fraud issues.

Some of the banks and holders of mortgage paper have been caught committing fraud by backdating assignments. Other banks or their representatives have been contacting homeowners falsely telling them their home will be sold on the courthouse steps when in fact that is not the case.

Lawyers should warn clients not to overreact to unsolicited phone calls. It is improper for a bank’s attorney to threaten a homeowner or engage in direct communications with a homeowner during a foreclosure case.

If you die without a will in Florida who gets your property when you die?

Florida provides a will for persons who chose not to write a will for themselves.

For example, if a married man dies without any children his wife inherits his entire estate. On the other hand, if a man dies and he is survived by a wife then the first $60,000 of his estate goes to his spouse and the rest of the estate is split equally between his spouse and his children. (However, if the children are not the children of his spouse then the estate is split equally between the children and the spouse.) These laws are contained in F. S. 732.102 and F. S. 732.103.

Every Florida resident should have an updated, properly written will.

Is Alimony Taxable?

In general, permanent, periodic alimony is taxable under United States tax law. The recipient of the alimony must pay income tax on alimony received in accordance with 26 U.S.C. § 71 and is deductible to the paying spouse under 26 U.S.C. § 215.

Joint account pitfalls to avoid.
Joint accounts can be very convenient and can also cause problems for clients. Here are some examples of who inherits different types of joint accounts:

If an account is a “tenant in common” account, each account holder’s share is separate. When one such joint tenant dies, his share of the account goes to the heirs named in his will.

If, on the other hand, if the account is “with right of survivorship”, then upon death of a joint tenant, the other joint tenant inherits the entire account.

Which type of joint tenancy you have can determine whether an account must go through probate or is simply put into the name of the joint account owner when an account holder dies.

For example, if you have an account with a loved one that is “by the entireties” or “with right of survivorship” then the entire account will be put into your name if you show the bank a death certificate of the other account holder. A tenancy in common would

require a probate of the account to get it into an heir’s name.

Also be aware that a joint accounts are subject to garnishment by creditors. If a joint account is garnished, the court will often conduct a hearing to determine the portion of the account owned by the debtor.

In a case our office handled, our client placed his daughter’s name on his bank account so that if he died she would have access to the money in the account.

The daughter never made deposits into the account and never took money out of the account. The sole purpose of her name being on the account was for survivorship and estate planning purposes.

The account was garnished by a hospital that had a judgment against the daughter. A hearing was conducted and the judge concluded that the daughter did not have any interest in the account and the creditor was not allowed to have any of the money.

Be cautious before you open up a joint account with children who may be the subject of garnishment because of unpaid medical bills, credit bills, or other debts that have been reduced to judgment.

When must a lawyer reveal your secrets?

Florida Bar rule 4-1.6 requires a lawyer to maintain the confidentiality of information given to him by a client with certain very important exceptions.

These exceptions include the following: A lawyer is required to stop a client from committing a crime particularly a crime of violence that the client says that she is going to commit. A lawyer is also required to stop a client from committing injury or causing the death of another person.

A lawyer is also allowed to tell a client’s secrets in a bar investigation proceeding dealing with a lawyer’s ethical behavior.

Generally, information given to an attorney is secret but do not reveal anything to a lawyer that would put the lawyer in a position of having to reveal what you have told him to prevent harm to another person or that involves the commission of a crime.