1. Mediation

As discussed in the Mediation section of our website, mediation is a non-formal, non-binding method of resolution. A third party neutral, known as the mediator, helps the parties discuss the elements of their claims, bring about the strong points of each party’s case and helps the parties find a resolution that fits both sides. The mediator’s role is to remain impartial. A successful mediation results in a mediation agreement/settlement. If the case is already filed in court, the settlement agreement will be sent to the courts and ordered by a judge. If the mediation happens before any documents are filed with the court, then the agreement just exist. Let me explain that concept a bit more. For all practical matters, a mediation settlement agreement is a contract. The parties agree that they will settle the dispute according to the terms contained in the agreement; both parties sign and date the agreement. The agreement contains all material terms to their agreement. Thus, there really is no need for the agreement to be recognized by the court, unless it is violated later on.

2. Binding Mediation

Binding mediation utilizes the same concepts described above where the mediator attempts to have the parties come to a resolution on their own. However, if they fail to find a solution by the end of the mediation, then the mediator will make a decision for them. This form of mediation is not very common, but if utilized properly and with a mediator that “works hard” to find the proper solution for both parties, this mechanism can be very useful, effective, and efficient in terms of time and money.

3. Arbitration

Arbitration is a formal method of alternative dispute resolution. It usually has 1 or 3 arbitrators who act as private judges. While arbitration cannot be talked about very well in general terms because of the different option in rules, format, and procedures that the parties may pick, this mechanism tends to be fast, binding and more calibrated to fit certain disputes. A strong advantage is that the parties can pick arbitrators who are familiar or even specialize in the field of the dispute. For example, in a construction dispute, the parties may elect an arbitrator who is an expert engineer or extremely familiar with construction circumstances, terms and methods. It is important to know, however, that arbitrators are also neutral third parties and cannot pick or defend a side. They have to make formal decisions that are explained in what is called an award (the equivalent of a judgment).

An additional advantage of arbitration is that it can take place almost anywhere in the world and under any language agreed to by the parties. The disadvantage is that the award has to be enforced in a court to be validated. Yet, even with the requirement of going to court to have the award recognized in a certain jurisdiction, arbitration still remains a less costly, more efficient and effective method of dispute resolution.

For more information regarding mediation and arbitration, please visit our sections on the website or call us – we will be glad to explain more !

A valid contract

The formation of a valid contract  starts mainly with three elements: 1. offer, 2. acceptance and 3. consideration. The offer contains the terms of the agreement and the acceptance is enough to understand. You would have to note, however, that an  ”acceptance” that would contain other material elements from the other (important elements), would usually be considered a counter-offer. In such a case, the original offeror would have to accept the counter-offer. Consideration is what is considered something “bargained-for.” This means that you would get something more (or less) and the other person something more or less from the agreement as well- an advantage or disadvantage. Finally, the signature at the bottom of an email has also been considered sufficient and the equivalent to a normal signature.

In short, while technology has made it easier to form a binding contract through less conventional means than a formal written form on paper. While this may seem like common sense to some, this type of holding by the court is a bit new and unconventional.

The Board of Directors Owes a Fiduciary Duty to the Homeowner’s Association and the Homeowners of Saturnia Lakes

The Board of Director’s fiduciary duty requires the directors to use good business judgment and act in the best interest of the association. Using good business judgment means that the decisions taken by the board are financially sound, well analyzed and thought through. Furthermore, a decision taken by the association must be within the scope of the association’s authority and reasonable.

Specifically and in accordance with Florida statute 617.0830, “an officer, director, or agent shall discharge his or her duties in good faith, with the care an ordinarily prudent person in a like position would exercise under similar circumstances, and in a manner he or she reasonably believes to be in the interests of the association. An officer, director, or agent shall be liable for monetary damages as provided in statute 617.0834 if such officer, director, or agent breached or failed to perform his or her duties and the breach of, or failure to perform, his or her duties constitutes a violation of criminal law as provided in statute 617.0834; constitutes a transaction from which the officer or director derived an improper personal benefit, either directly or indirectly; or constitutes recklessness or an act or omission that was in bad faith, with malicious purpose, or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.”

Decisions taken where directors felt that the responsibility to act in the best interests of the corporation conflicted with personal or emotional needs, such as the basic human need for personal approval from one’s neighbors and friends, are usually considered improper and must be remedied.

The Board of Directors Must be Careful as to How they Allocate Funds so as not to Breach Fiduciary Duties

As explained above, the Directors’ obligations are towards the corporation as whole. Loyalty to the corporation means subordinating personal objectives and needs to the financial requirements of the association. It further means allocating association funds in the best interest of the association, especially when the economical situation already places the association in many thousands of dollars of debt from unpaid dues. The allocation of funds for unnecessary expenses violates the good business judgment rule and negates any implication that good faith was used. As a board, make sure you are applying association funds in necessary places and try to save money wherever possible.

The Board of Directors Should Make Sure There are No Conflicts of Interest 

While any attorney who represents a client has the ethical obligation of ensuring there are no conflicts of interest with his representation, whether personal or professional, the Board of Directors also has the obligation to make sure no such conflicts exists. The combination of representing the association with other interests in the community, especially financial interests, are unethical. In such a case, the Board of Directors should change the attorney representing the HOA.

Election Procedures and Board of Directors Meetings Must Follow Florida Statutes and the HOA’s Bylaws  

Most Bylaws state how the elections should take place. Additionally, Florida Law gives further guidance on how they must directed. An example is the secret ballot requirement where  the election of directors made be conducted by placing the ballot in an inner envelope with no identifying markings and mailing or delivering same to the association in an outer envelope bearing the name of the owner, the lot or parcel for which the vote is being cast, and the signature of the lot or parcel owner casting the ballot. The bylaws must be respected and any changes to the rules and procedures of the association must be voted on by a majority of the homeowners. Failure to do so may invalidate decisions that were taken and may also result in civil liability for the Board of Directors.

Additionally and in accordance with Section 720.303(2)(a) of the Florida Statutes, “all meetings of the board must be open to all members except for meetings between the board and its attorney with respect to proposed or pending litigation where the contents of the discussion would otherwise be governed by the attorney-client privilege.” This rule requiring open meetings further applies to “the meetings of any committee or other similar body when a final decision will be made regarding the expenditure of association funds. There seems to have been decisions made with regards of expenditure of association funds in closed meeting sessions or without informing homeowners. Such decisions are improper under Florida Law and under the association’s bylaws. This group of concerned homeowner thus requests that the rules and procedures found under Florida Law and within the incorporating documents of the association be respected.

Give us a call if you have any questions or concerns as a board of director or as a homeowner! We’re always happy to help!

Notification of Foreclosure Lawsuit

When served with a summons (document notifying the client that a lawsuit has started), a client/homeowner has 20 days to respond. This 20 day period is critical in analyzing all the documents to find any possible fraud, holes in the documents and in deposing any parties that can be helpful in evaluating the validity of the lawsuit. All these elements help find defenses to the foreclosure, especially since the banks have to follow certain procedural steps before being able to file suit and foreclose. Thus, we also make sure that these procedural contractual and real estate steps have been followed. In the event that a client comes too close to the end of the 20 day period, we can file for an extension of time. This allows us to still take the necessary steps.

If there seem to be insufficient defenses or no defenses at all in the case, the next best option is to attempt short sales or mortgage modification talks with the bank. These types of negotiations can be complex, but may also be worth a try. Homeowners who are likely to face foreclosures in the near future may want to consider these options before suit is actually filed.

Motion for Summary Judgment is Already Pending

In a case where the client has waited a while already before going to an attorney, a Motion for Summary Judgment may be already presented to the court. In analyzing a Motion for Summary Judgment, the Court must look at the evidence in light most favorable to the non-moving party (the homeowner/client), and reject any contrary inferences and evidence. Summary judgment is proper “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavit, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317 (1968); Fed. R. Civ. P. 56(c).  The moving party (the bank) bears the heavy burden of proof that there is an absence of evidence to support the nonmoving party’s case. This means that the bank has a heavy duty to prove to the court that there are no issues left to dispute.

Our goal in such a situation is to argue all the points of dispute still present in the case, including pointing out all the defenses that are plausible and applicable to the client’s situation. After winning the motion, the case goes on “normally” and all the applicable defenses to foreclosure can be presented in detail.

By failing to respond to the motion or failing to defend it, the court is likely to grand a judgment against the homeowner/client.

After losing a Summary Judgment

If a client comes to see us after a Motion for Summary Judgment has been granted against them, our best option is to file a motion to set-aside the judgment. This means that we contest the decision made by the judge against the client. Often, the best way to do so is arguing that the decision is improper because the foreclosure includes faulty documents. Of course, this type of procedure can only be done if there were faulty documents and to know whether there are any, all the documents relating to the mortgage, note, foreclosure, payments, etc. have to be analyzed carefully.

Where the Bank sues for a Deficiency Judgment

In such a case, the best option is to negotiate with the bank to reduce the debt owed.

Call us so we can help you with your foreclosure situation! We hope to have the pleasure of speaking with you in the near future!

Another good idea is to mark the goods as “on consignment” in your inventory and in the “buyer’s” inventory. In your agreement with the “buyer,” including a clause that allows you to file UCC lien notices without the “buyer’s” consent every time. This will make the filings more efficient and less costly.

It’s hard to know whether the person you are doing business with is likely to find itself in financial difficulties in the near future. So why gamble? Unless you have received payments for delivering the goods, they are still yours. However, to ensure you still have a standing right to them from third parties, you must give notice that they belong to you. The best way to do so is to file a UCC lien.

Call us so we can help you or further explain how you can protect your interests!

1. An Increase In Foreclosures

Over the past year, banks have been faced with many defenses from homeowners and have had to respond to their inability to present documents indicating their right to the property and, thus, their right to foreclose. However, with time, courts have found ways to recognize and “bypass” certain contractual principles and requirements, limiting the defenses and increasing again the rate of foreclosures. Even though Florida just voted not to adopt a new bill that would have expedited and simplified foreclosures, the economic situations are changing, causing the banks to have more reasons to foreclose on many homeowners. Specifically, some of these reasons are: increases in inflation (and thus cost of living), stagnant or decreasing salaries, and soon to rise interest rates (if projections are correct). Due to these factors, there is an increase in homeowners that are unable to pay their mortgages. Additionally, the banks are now moving forward to foreclose on “homeowners” who have been living in their homes for “free” for years or those who have tried to re-finance their mortgages still find themselves in difficulties paying their mortgages.Courts are rejecting the defense of “showing me the note” and mortgage modifications are failing.

Bottom line: too many loans have gone bad, which allows the banks to go and foreclose.

What does this mean in practical terms?

The number of houses available for sale will likely increase, the demand will decrease, and the prices will also plunge. As people get kicked out of their homes and unable to buy another home, they will rent. As a result, the number of rentals will increase and the prices of rentals will also increase.

What can you do?

If you’re a homeowner looking to buy a property, make sure the title is free and clear before you do so. If you are about to rent a property, know that the landlord has no obligation to tell you that he is getting foreclosed on or about to. Also know that the bank foreclosing on the property must honor the duration of your lease and a buyer must give you 3 months to move out. You might also want to go check the docket at the courthouse to see if there are any risks of foreclosure.

If you want to rent your property, make sure you have a strong lease agreement that holds the tenant liable for damages they may cause. I also strongly advise you to run a background check more than ever.

2. An Increase in Interest Rates and Inflation

An increase in interest rates and inflation means that the cost of living is going to up. Meanwhile, the salaries are likely to remain the same. Interest rates going up also means that it’s going to be harder and more expensive for people to buy homes, cars, etc. People are more likely to look for any penny they can from anyone to stay afloat.

In short: If you are not currently at risk, protect your assets by setting up an LLC or multiple ones. Call us for multiple asset protection options – we can find one that helps protect what you’ve worked for. If you want to sell your home, now is probably a good time to get the deal rolling – we can help you with negotiations and the contract. And if you want to take the opportunity to set up a new business, do it before the rates go up. Let us discuss with you the options of an LLC, S-Corp, C-Corp or partnership and see which option best fits your needs.

3. Court Budgets Decreasing : Consider Your Dispute Resolution Options 

If you have a dispute arising or are in a dispute, you may want to consider how far along it is with the courts and how much longer it may take. If you have not yet filed in court, you may want to consider whether you want to arbitrate or mediate the dispute first. And if you are negotiating a new contract, including alternative dispute resolution mechanisms in the contract may not be a bad idea. Call us so we can help you decide whether alternative dispute resolution is a good fit for you. I invite you to look at our arbitration and mediation pages for more details on the advantages of alternative dispute resolution, on the costs of it and on how it works.

We hope to have the pleasure of speaking with you in the near future !

The corporate veil can be broken under multiple scenarios, including: 1. a court finds that the business entity was set up as a fraud to deceive creditors, 2. the business entity and its owners mixed their funds (commingled funds) with corporate ones, 3. the business entity is considered an alter ego of the individual. An alter ego situation occurs when a corporation is used by an individual for personal business and matters. While there are other circumstances, these are the most common ones. In such cases, the protection/status that was sought original through the business formation elected will now be disregarded. The corporate will become an open book and its owners may see liabilities imposed on themselves directly.

Now, the main question is: how do I protect myself from the corporate veil being pierced?

There are some key “rules” that a business owner should follow. By following the following “rules,” you should be able to limit corporate veil piercing risks:

1. Do not commingle personal and company assets – this means that you should keep a personal bank account separate from the business one. In fewer words: what you have invested in the business is no longer yours, but the business entity’s and what’s yours should remain yours and not be mixed with the business unless accounted for as further investment or a loan to the entity.

2. Diversion of company assets for personal use without adequate payment- if you are using an asset that was invested in the company or is in the name of the company, you should be paying the company a certain amount for such use. For example, if you have a house in an LLC and you live in the house, you should be paying the LLC rent. You then receive that money back as a dividend or salary, depending on your preference.

3. Do not treat the company assets as your own – while you have invested in the company with your own assets, these assets no longer belong to you. You cannot use what belongs to the company or company money for your own personal benefits. This includes: buying food, products, etc. that is not directly for the benefit of the business.

4. Maintain company books and records- you should have bylaws or operating agreements that identify the rights and obligations of shareholders/members and their directors. It outlines meetings that need to be held, minutes that need to be taken, etc. You must keep track and abide by these rules.

5. Hold your shareholder and director meetings and keep a record of the decisions taken.

6. If you have more than one entity for different protections – consider maybe adding a member with limited benefits or powers in order to re-enforce any arguments of fraud. This point is not key, but a consideration for owners of multiple “businesses” with an objective of asset protection.

7. Maintain sufficient insurance and capital to meet reasonably anticipated business needs of the company.

By following these guidelines, you can limit the risks of veil piercing. Additionally, you ensure that your business and relationship with “partners” runs smoothly.

Please call us if you have any questions or concerns regarding how to protect your business entity and personal assets. We are always happy to analyze your situation and discuss ways to improve it or let you know you are already doing a great job.

We hope to have the pleasure of speaking with you in the near future!

    a. Filing of the Forms

    b. Proof of Permanent Residency of 5 years or 3 years if married to a U.S. Citizen for 3 years

    c. Passing a Citizenship Exam

To pass the exam you must be able to: 

1. speak, read and write basic english

2. know U.S. history and government structure (civics)

3. know and understand the rights and responsibilities of U.S. Citizens

(Information and studying material can be found online at www.uscis.gov. If you want, we can order the material for you.)

The following questions and documents must be answered and presented with your application before proceeding with your naturalization/U.S. Citizenship Immigration Application. In order to obtain your citizenship 

1. 1. When and where were you born?
2. 2. When did you acquire your Permanent Residency in the U.S.?
3. 3. When and who applied for it?
4. 4. Where you ever in the U.S. illegally (past Visa period, without a visa or without a green card)?
5. 5. Are you married to a U.S. Citizen? If so, for how long?
6. 6. Have you left the country since you acquired your U.S. Permanent Residency for periods of 6 months or longer?
7. 7. Do you have a basic understanding and knowledge of the English Language?
8. 8. Have you ever been arrested (whether or not charges were brought against you)?
9. 9. Do you have any convictions (whether or not your record was expunged)?
10. 10. Is there any evidence in your favor for the crimes you have been arrested or convicted for?
11. 11. Do you have any traffic violations involving drugs or alcohol?
12. 12. Do you have any traffic violations of more than $500?
13. 13. Are you or have you been in the U.S. Armed Forces?
14. 14. Have you been honorably discharged from the U.S. Armed forces within the past 6 months? Why were you discharged?
15. 15. Have you performed military service during WWI, WWII, Korea, Vietnam, Persian Golf, or on or after September 11^th, 2001?
16. 16. Have you changed your name? If yes, is that name different from the one found on your Greencard? When did you change it? What did you change it from? Why did you change it?
17. 17. Do you have any children or are you expecting children?
18. 18. Do you have a dependent child or spouse that does not live with you? If yes, do you provide any financial support?
19. 19. Have you ever failed to pay support?
20. 20. Have you ever failed to timely file an income tax return since you became a Lawful Permanent Resident? If yes, what have you done about it?
21. 21. Do you have any Federal, state or local taxes that are overdue?
22. 22. Do you have any disabilities that are Medically Certified?
23. 23. Your current and previous employment in the U.S.

Simpler Questions:

-       Do you support the U.S. Constitution?

-       Are you of Good Moral Character?

The Following are Documents Needed for a Regular Application:

-       A Photocopy of our Permanent Resident Card (formerly known as Alien Registration Card or Green Card)

-       Tax returns, Bank accounts, leases, mortgages

-       Birth certificates of children

-       Two Identical 2×2 passport style photographs taken within 30 days of filing the application showing your full face and with a white background (I will tell you when)

-       If you changed your name, the documents supporting this change.

-       Proof that any of your previous marriages are terminated (divorce decree, annulment or death certificate)

-       If you are in the military service, your original Form N-426 Request for Certification of Military or Naval Service

-       Rent or mortgage payments and pay stubs

-       Original documents of any official statement of arrest or original or court-certified  copy of the arrest record for each incident and, if applicable, evidence that you have completed your sentence

The Following are Additional Documents Needed if Married to a U.S. Citizen:

-       Marriage Certificate

-       Proof of spouse’s U.S. Citizenship by one of the following:

1. Certificate of Naturalization, or

2. Birth Certificate, or

3. Certificate of Citizenship, or

4. The inside of the front cover and signature page of your spouse’s current U.S. Passport or

5. Proof of your spouse’s Report of Birth Abroad of a U.S. Citizen

-       Birth Certificate of your spouse

-       Naturalization certificate of spouse, if applicable

-       Photocopy of spouse’s U.S. passport’s front cover and signature page

-       IRS-certified copies of income tax Forms filed jointly in the past three years or an IRS tax return transcript for the last three years

There are two different circumstances when a CEO Succession Plan is usually needed: 1. your CEO is about to retire 2. death or illness hit your CEO and he needs to be replaced. Whatever the circumstance, your company needs to keep functioning properly in order to maintain profits (or limit losses). The best way to do so is to have a plan that meets your company’s needs and can be implemented efficiently. The retirement succession plan should be re-evaluated every time there is a new CEO (within about 6 months of the CEO beginning in his position). However, the emergency succession plan should be ready at all times (note that a large corporation must have disclosures regarding CEO succession in the proxy statement or in its principles of corporate governance).

Here are some key elements to take into consideration for your succession plan:

1. Identify the Who. State who will have primary responsibility for the process of succession and the desired qualifications for such persons. Acknowledge the role of the CEO and senior managers, and allow for engagement of outside advisors.
2. Establish the scope of the plan. Identify critical positions other than the CEO, and direct the CEO to formulate, for the board’s review, succession alternatives for those positions.
3. Contemplate both long-term and emergency transitions. Craft long-term succession plans with an eye toward various time horizons and the company’s long-term goals. Use emergency succession plans to ensure interim appointments within a short time after an absence event. Consider selecting an interim leader who will navigating crisis rather than accomplish long-term objectives.
4. Decide how you want your next CEO to be qualified: list the experience, education, competencies and personal characteristics that are desired for the next CEO. Consider strengths in business ethics and learning agility; the rest of the characteristics are likely to be very specific to your industry and business structure.
5. Identify who could be the internal talent to become the next CEO and set-up a development and retention plan applicable to executives and senior managers under the CEO. Ensure your board is aware of the development and performance of senior managers. A method of retention is by a compensation system that rewards outstanding performance and balances short-term payouts with long-term wealth creation, although more difficult in today’s economy.
6. Have the board conduct ongoing assessments of internal and external candidates: identify multiple potential candidates, and understand how the candidates compare to one another.
7. Establish a method of evaluating candidates: facilitates the efficient and consistent comparison of candidates.
8. Provide for ongoing review of the succession plan. As legal and corporate changes, including corporate circumstances and objectives, take place throughout the year – you should re-evaluate your succession plan annually.
9. Set-up a timeframe for your CEO to achieve certain goal.

Call us if you need help drafting or updating your CEO Succession Plan. 

Why use a Letter of Intent?

Letters of Intent are useful in setting-out parties’ expectations, intents, and essential terms in the deal early in the negotiation process. Some parties also see it as a demonstration of their definite intent to enter into the agreement, a way of showing their commitment. It may also serve as public notice for a publicly traded company of its intention to enter in the future agreement or as a form of exchanging and obtaining documents from lenders or governing boards. Finally, it also serves to set a definite time-frame for signing the said agreement and officially concluding the deal.

What does a Letter of Intent Usually Include?

• A description of assets to be included and/or excluded
• The purchase price and any good faith deposit
• The exclusivity period during which the proposed seller will be required to deal exclusively with the proposed buyer while negotiations of the definitive agreement(s) and due diligence are under way;
• The due diligence period for the proposed buyer;
• Each party’s obligation to keep the information it acquires during negotiations confidential, and a prohibition on making any public announcements regarding the proposed transaction unless otherwise required;
• The target or outside date for the execution and delivery of the definitive agreement(s);
• Certain additional important terms and conditions of the transaction, such as:
1. the time required for obtaining consents and/or representation
2. warranties and covenants, or
3. a statement that the terms and conditions to be set forth in the definitive agreement(s)
• The allocation of expenses for each party, including expenses related to the transactions and fees to financial advisors and attorneys;
• The governing law to the definitive agreement; and
• A provision regarding the binding nature of the Letter of Intent

The parties usually agree that only certain provisions of the Letter of Intent will be binding. However, unless there is a firm and clear clause indicating that the Letter of Intent is not to be construed as a binding agreement between the parties, the court is likely to find it to be a binding formal agreement. For example, courts have found that Letters of Intent containing the following clause insufficiently stated that there was no meeting of the minds and, thus, no formal binding agreement, and found the Letters of Intent to be fully binding on the parties (resulting in liabilities):

The parties hereto acknowledge that this letter does not contain all of the material matters, terms and conditions necessary in order for the purchase and sale to be binding. Therefore, the obligations of the parties hereto to consummate the purchase and sale are subject to the negotiation and execution by the parties hereto of the Definitive Agreements by [a specified date]. Accordingly, this letter is intended solely as a basis for further discussion and is not intended to be and does not constitute a legally binding agreement; provided, however, that the provisions set forth in paragraphs 4, 5, 7 and 8 below, and this paragraph shall be binding upon the parties hereto and, only with respect to paragraphs 7 and 8, shall survive the termination hereof. If the Definitive Agreements are not executed and delivered by the parties on or before [the specified date] for whatever reason, either party may terminate this letter upon written notice to the other party. Time is of the essence in the performance of this letter.

In Conclusion

It follows that parties enquiring or planning on using a Letter of Intent due to its numerous advantages should consult with an attorney who should focus on strong and clear language to limit the parties’ potentially unintended liabilities.